A MAN whose death sentence was commuted to life in prison on the understanding that there would be no remission has claimed he is being discriminated against compared to others given life sentences who are allowed out after spending various terms in jail.
Noel Callan, who has served 25 years of a 40-year sentence for the murder of a Garda sergeant during an armed robbery in 1985, has claimed his sentence was unlawfully commuted by then president Patrick Hillery, acting on the advice of the government, when it should have been fixed by a court.
Callan (47), Cullaville, Castleblayney, Co Monaghan, also argues he has unlawfully been deprived of a right of remission, which could reduce his 40-year term by up to one third. The fact his original death sentence was commuted to 40 years on the “understanding” he would serve that full term amounts to unequal and unfair treatment, he claims.
Other persons convicted of the murder of gardaí after passage of the Criminal Justice Act 1990 can seek remission, the court heard.
A document of May 29th, 1986, signed by President Hillery, commuted Mr Callan’s death sentence to penal servitude for 40 years, but contained no reference to any “understanding” there would be no right of remission, Deirdre Murphy SC, for Mr Callan, argued.
Any such “understanding” was “of no legal effect”.
Callan was in court yesterday and will give evidence in the case, which has been adjourned to July 25th by Mr Justice Michael Hanna to allow the pleadings to be amended to formally make the case that the 1986 document places no ban on remission. Paul O’Higgins SC, for the State, had argued he needed time to respond to this point.
Outlining the case earlier, Ms Murphy said Callan was aged 22 when convicted by the non-jury Special Criminal Court in December 1985 of the capital murder of Sgt Patrick Morrissey (49), at Rathbrist, Tallanstown, Co Louth, on June 27th, 1985, after an armed robbery that day at Ardee labour exchange.
This was “a particularly gruesome murder” in which Sgt Morrissey was initially wounded by Callan’s co-accused Michael McHugh, Clonalig, Crossmaglen, Co Armagh, who then went back and “executed” him, Ms Murphy said.
Her client accepted he was part of a common design in relation to a robbery, but he was not in the vicinity when Sgt Morrissey was shot.
Callan’s father had died when he was 16 and his mother died of cancer two years later, Ms Murphy said. Callan, “alone and immature”, came under the influence of McHugh, an older man, and was persuaded to get involved in the robbery. He was not trying to diminish the seriousness of what was done, Ms Murphy added.
While Callan acknowledged he gave perjured evidence at trial, this was in circumstances where he was a young man of 22 on the INLA wing in Portlaoise Prison, with a co-accused who had affiliated to the INLA and was “intent on pleading not guilty”, Ms Murphy said. The court would also be hearing of “the atmosphere that prevailed in 1985”.
Both men were sentenced to death for murder, but their sentences were later commuted by the president to 40 years of penal servitude. They also received 12- year sentences for the robbery.
Callan has served 25 years in Portlaoise and was “worthy of remission”, Ms Murphy said. He was of “exemplary behaviour” as stated in a memo from the prison governor, had completed many educational courses and he was studying for an Open University law degree.
In his proceedings, Callan claims the commutation of his sentence by the president, three days after receiving a memo from the government, was a sentencing exercise carried out in secrecy, in breach of his rights under the Constitution and European Convention on Human Rights to have a sentence imposed by a court.
The sentence was in effect imposed by the government, in breach of the constitutional separation of powers, and was “entirely invalid”, Ms Murphy said.
