Callan v Ireland & AG

JurisdictionIreland
JudgeMr. Justice Hardiman,Mr. Justice Clarke
Judgment Date18 July 2013
Neutral Citation[2013] IESC 35
Docket Number[S.C. Nos. 371 and 375 of 2011]
CourtSupreme Court
Date18 July 2013

[2013] IESC 35

THE SUPREME COURT

Denham C.J.

Murray J.

Hardiman J.

McKechnie J.

Clarke J.

371/2011 & 375/2011
[Appeal No: 371/2011 & 375/2011]
Callan v Ireland & AG
Between/
NOEL CALLAN
Plaintiff/Appellant

and

IRELAND and THE ATTORNEY GENERAL
Defendant/Respondent

CONSTITUTION ART 13

CRIMINAL LAW ACT 1997 S11(5)

PRISON RULES SI 252/2007 r59

CONSTITUTION ART 40

CARNEY v IRELAND 1957 IR 25

PRISON RULES SI 252/2007 O.59(1)

PRISON RULES SI 252/2007 r59(2)

CRIMINAL LAW

Sentence

Remission - Commutation of death sentence to penal servitude - Penal servitude changed to "imprisonment" in Act of 1997 - Whether plaintiff serving a sentence or a commutation - Whether plaintiff entitled to remission of sentence - Callan v Ireland [2011] IEHC 190, (Unrep, High Court, Hanna J, 15/4/2011) and The State (Carney) v Governor of Port- Laoighise Prison [1957] 1 IR 25 considered - Prison Rules 2007 (SI 252/2007), r 59 - Criminal Law Act 1997 (No 14), s 11(5) - Constitution of Ireland 1937, Art 13.6 - Appeal allowed and eligibility to earn remission declared - (371 & 375/2011 - SC - 18/7/2013) [2013] IESC 35

Callan v Ireland

1

JUDGMENT of Mr. Justice Hardiman delivered the 18th day of July, 2013.

2

Judgment of Mr. Justice Clarke delivered the 18th July, 2013.

3

Judgments delivered by Hardiman J & Clarke J

Overview.
4

This is the plaintiff's Appeal from the judgment and order of the High Court (Hedigan J.) of 15th day of April, 2011, whereby it was held that the plaintiff was not serving a sentence of imprisonment, but was serving a "commutation". The importance of this distinction will shortly appear.

The plaintiff's incarceration.
5

The plaintiff, Noel Callan, has been in jail since the 27 th June, 1985, a period of more than twenty-eight years. A small part of that period was spent on remand, charged with capital murder. This ended on the 3 rd December, 1985 when he was convicted and sentenced to death for the capital murder of Garda Sergeant Patrick Morrissey. His imprisonment under sentence of death lasted from then until the 29 th May, 1986, a period of about six months. On that day, the President of Ireland, acting on the advice of the Government, and pursuant to Article 13 of the Constitution, commuted the death sentence to Penal Servitude for forty years. About eleven years of his period in prison has been spent serving this, from the 29 th May, 1986 to a date in 1997. In 1997 Penal Servitude was abolished and replaced with imprisonment, and the plaintiff has been imprisoned since 1997.

6

The plaintiff's claim in this case, at bottom, is one of great simplicity. He claims that he is undergoing a sentence. This sentence was originally one of death, commuted to one of forty years Penal Servitude. But Penal Servitude itself was abolished as a form of confinement by a statute of 1997 and it was provided that a person undergoing Penal Servitude should be treated as undergoing imprisonment: see s.11(5) of the Criminal Law Act, 1997. Accordingly, the plaintiff contends, he is a person who is required to be treated as one undergoing a sentence of imprisonment. But such a person is, by law, entitled to remission of his sentence, in accordance with law, specifically the Prison Rules 2007.

7

Section 11(5) of the Act of 1997 provides as follows:

8

2 "(5) Any person who, immediately before the commencement of this Act was undergoing ... a form of Penal Servitude shall, ... be treated thereafter as if he or she were undergoing or liable to undergo imprisonment and not Penal Servitude for that term."

9

By Rule 59 of the Prison Rules 2007 (Statutory Instrument 252/2007):

"A prisoner who has been sentenced to a term of imprisonment exceeding one month... shall be eligible, by good conduct, to earn a remission of sentence not exceeding one quarter of such term or aggregate."

10

Accordingly, says the plaintiff, he is entitled to a remission of at least one quarter of the original sentence and perhaps up to one-third by reason of the subsequent provisions of the Rule which it is unnecessary to consider here.

11

That is the plaintiff's fundamental claim. It was advanced on his behalf with elegance, precision and simplicity by Ms. Deirdre Murphy S.C. The simplicity with which it was advanced was the fruit of deep consideration of the case from every point of view and not in any sense a fatuous or artificial simplification.

12

Ms. Murphy also advanced three other arguments which are set out in the judgment about to be delivered by Mr. Justice Clarke. In my view, each of these arguments was in response to the actual or anticipated arguments of the State, which varied a good deal as the case proceeded. I do not propose to consider them here because I do not think it is necessary to do so and I consider that the plaintiff's fundamental case is and always has been the straightforward one summarised above.

13

But if the plaintiff's case is fundamentally simple and straightforward, the State's response to it has varied a great deal over time. It has assumed (in the main) three separate forms, as follows:

14

(1) These proceedings were commenced on the 24 th September, 2007 and the Statement of Claim was delivered four days later. On the 6 th December, 2007 the State filed its first Defence. At para. 2 of this Defence the State defendants pleaded that:

"... the President of Ireland acting upon the advice of the government, as required by Article 13.9 of the Constitution, exercised his power pursuant to Article 13.6 of the Constitution to commute the plaintiff's punishment to Penal Servitude for forty years on the understanding of the government that the full sentence of forty years would be served without remission."

15

That is to say, the defendants accepted that the forty year period of incarceration which the plaintiff was ordered to serve was a "sentence" and indeed used that term, "sentence" in respect of it themselves. Accordingly, the State's initial defence was that the President had commuted the death sentence to Penal Servitude on condition that the "full sentence of forty years" would be served without remission.

16

This is a most important aspect of the case. When the action came on for trial before the High Court the parties were at one in that both sides regarded the plaintiff as being, in law, a prisoner sentenced to imprisonment for forty years. They disagreed only on whether the terms of the "sentence" were such as to exclude remission. This was the State's first defence. It was to change radically.

17

(2) On the third day of the hearing in the High Court the State adopted a new entirely different and radically contradictory position. Counsel for the State had called the evidence of a Mr. Kennedy, a Principal Officer in the Department of An Taoiseach. Mr. Kennedy produced from an official file the actual advice of the Government which it tendered in a letter dated the 29 th May, 1986 from the Secretary of the Government to the President and, of course, the actual instrument of the President whereby the sentence was commuted.

18

It was after this evidence had been received that the State put forward a completely new case. It now contended for the first time, four years after the action commenced, that the plaintiff was not serving "a sentence" at all. Instead, the State contended that he was "serving a commutation". Therefore he was outside the scope of the Prison Rules. He was not a prisoner who had been sentenced to a term of imprisonment; he was a prisoner who had been sentenced to death. The President's subsequent commutation was not a sentence. It was a "commutation".

19

This was the second defence.

20

Counsel for the State was quite open about what had occurred. In closing the case on the fourth day of the hearing at p.56 of the transcript he said:

"I accept that I changed what had originally been my argument because I accept that in the course of the case it emerged that the evidence as to the precise document put before the President was not what I expected it to be."

21

In view of this startling statement it seems appropriate to set out the terms of relevant document. The advice of the Government to the President dated the 29 th May, 1986 was as follows:

"At a meeting held today, the Government decided to advise the President in the exercise of the power vested in him by Article 13.6 of the Constitution to commute to Penal Servitude for forty years the sentence of death imposed by the Special Criminal Court on the 3 rd December 1985 on Noel Callan on his conviction of the capital murder of Garda Sergeant Morrissey. Pursuant to that decision, I have been directed by the Taoiseach to convey the Government's advice to the President to commute the sentence of death accordingly."

22

It appears from this document that the aspect of the advice put before the President which caused such surprise to counsel for the State was that the advice did not specify that it was tendered on the understanding that the whole sentence would be served without remission. Accordingly, because that "understanding" was not included in the advice, it was not included in the President's Order commuting the sentence either.

23

I pause to express my astonishment at the turn of events which took place in the High Court. Counsel for the State was taken by surprise by the contents of a document which has been in the possession of the State continuously, at all times since it came into existence on the 29 th May, 1986, twenty-seven years ago. It appears, accordingly, that counsel had not been briefed with this document, or had it otherwise drawn to his attention. The whole affair is rendered all the more surprising because Mr. Callan commenced his proceedings, not as plenary...

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