File No 371 & 375/2011

IpsofactoJ.com: International Cases [2013] Part 7 Case 3 [SCIre]


SUPREME COURT OF IRELAND

Coram

Noel Callan

- vs -

Ireland

DENHAM CJ

MURRAY J

HARDIMAN J

McKECHNIE J

CLARKE J

18 JULY 2013


Judgment

Justice Hardiman

Overview

  1. 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

  2. The plaintiff, Noel Callan, has been in jail since the 27th 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 3rd 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 29th 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 29th 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.

  3. 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.

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

    (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.

    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.

    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.

  5. 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.

  6. 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.

  7. 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:

    (1)

  8. These proceedings were commenced on the 24th September, 2007 and the Statement of Claim was delivered four days later. On the 6th 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.

  9. 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.

  10. 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.

  11. 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.

    (2)

  12. 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 29th 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.

  13. 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”.

  14. This was the second defence.

  15. 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.

    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 29th 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 3rd 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.

  16. 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.

  17. 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 29th 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 proceedings but as an application for an order in the nature of Habeas Corpus under Article 40 of the Constitution. The State, in its return to the conditional order exhibited inter alia both the order of the Special Criminal Court, the advice of the Government and the Presidential Order on foot of it, as part of the documentation justifying the appellant’s detention. It appears that this documentation was lost sight of in the intervening period, after Mr. Callan’s first proceedings had been converted into plenary proceedings and the State’s present Counsel was briefed.

  18. Ms. Murphy S.C. characterised the State’s change of front as a “complete volte-face” and it is impossible to disagree with that description.

    (3)

  19. The State’s second position - that the appellant was not a sentenced prisoner and was accordingly outside the scope of the Prison Rules - was not without its difficulties. It suggested that the prisoner was liable to be held in custody for forty years without being subject to the obligations of, or entitled to the protections contained in, the Prison Rules. It must be doubted whether that form of imprisonment would comply with the Constitution or with the State’s international obligations. Accordingly, on the hearing of this Appeal the State adopted yet a third position which was this:

    The appellant is not a sentenced prisoner but is a person who is subject to the obligations of the Prison Rules, and entitled to the protections contained in those Rules other than Rule 59 about remission of sentence.

  20. This is the State’s third defence.

  21. I have indicated above that the State’s varying Defences to the Plaintiff’s claim were “mainly” based on the three points summarised above. In the course of the argument, other points were canvassed, but very wisely not persisted with. For example, the State referred to the case of Carney v. Ireland [1957] IR 25 where it was held that the predecessor of Rule 59 of the Prison Rules did not apply to prisoners serving sentences of Penal Servitude. Accordingly, it was suggested, the provisions for remission could never have applied to the plaintiff during the period of years when he was undoubtedly serving a sentence (if he was serving a sentence at all) of Penal Servitude. Under considerable pressure from the Court, however, Counsel for the State took instructions and came up with the information that, notwithstanding the decision in the Carney case the authorities, that is the Government, had continued to apply the remission rules as if they applied to prisoners serving sentences of Penal Servitude. The legal basis of this, State Counsel said, is “not clear”.

  22. I wish to express my grave distaste for arguments such as the one just summarised. It was solemnly contended that, though the State itself ignored a decision of this Court and continued to apply the remission rules to Penal Servitude prisoners, the appellant was not entitled to claim the benefit of this practice because, in point of law a Penal Servitude prisoner was not entitled to remission, although in practice it was routinely granted. The State’s action in conniving at a situation in which actual practice deviated sharply from law, is gravely lacking in respect for the Courts and for anything resembling transparency. The State’s action in bringing about a situation in which a citizen cannot, by consulting the laws of the country, come up with a reliable guide as to what the actual rights and obligations of individuals may be, is not one of which a court can approve. It shows little respect for the rule of law itself.

  23. The barefaced technicality of this argument is breath taking. The remission provisions of the Prison Rules were found, fifty-six years ago, not to extend prisoners sentenced to Penal Servitude. It would have been quite possible to amend the Prison Rules but this was not done. Instead, it was decided simply to proceed as though the Carney case had never happened, to ignore a decision of the Supreme Court.

  24. The State case continued in this way until Penal Servitude was itself abolished in 1997, forty years after Carney was decided. But, fourteen years later again, when the present plaintiff claimed that he was entitled to remission it was solemnly decided to rely on Carney, the case which the State itself had ignored for forty years, with a view to defeating this prisoner’s claim to remission, or at least reducing the amount of remission accrued.

    Details of the crime

  25. Although it is not strictly necessary for the resolution of this case, I consider it proper to set out a summary of the circumstances leading to the appellant’s conviction of capital murder. I would not think it appropriate to withhold reference to the circumstances in which an unarmed member of the gardaí was callously murdered and to focus exclusively on the rights of a person convicted of that murder, important as those rights undoubtedly are.

  26. On the 27th June 1985, the appellant, then twenty-two years old, was approached by an older workmate, Michael McHugh, with a plan to rob the Labour Exchange in Ardee. McHugh had procured guns. The two of them robbed the Exchange and made off with the money, first in the Manager’s car and later on a motor bike.

  27. The robbers crashed the motor bike into an oncoming car at a place called Rathbrist Cross. The appellant was injured in the collision. He made his way up a laneway to a farmhouse. As he reached the house he heard a shot. After a lapse of some further time, perhaps two or three minutes - he heard a second shot. The evidence at the trial was that the first shot was fired by McHugh and hit Sergeant Morrissey in the leg and, after what the presiding judge at the trial, Hamilton J. (as he then was), called “an appreciable interval”, McHugh walked up to the injured Sergeant Morrissey and shot him in the head. This was an act of cold blooded murder.

  28. On this account (which was not contradicted) the appellant played no direct part in the shooting of the Sergeant. He was not physically present when it occurred but was some distance away and disabled having suffered head and leg injuries in the collision. He was however convicted of murder on the basis of common design. He might have argued that the common design extended only to the robbery and the firing of shots to frighten pursuers and that the deliberate killing of the already disabled Sergeant Morrissey was never in his contemplation but was a gratuitous act on the part of McHugh. That was a case which he could have put before the Court of Trial, but he did not do so. Instead, he gave perjured evidence to the effect that he had no involvement at all in the robbery or with McHugh in the death of the Sergeant. This denial was rejected and the conviction was upheld on appeal.

  29. This perjured evidence was both criminal itself and extremely counterproductive. It cannot be excused but it is explained by the appellant on the basis that he entered Portlaoise Prison a week after McHugh and was assigned to a wing of the prison where McHugh and members of the INLA and other dissident groups were located. These included the notorious Dessie O’Hare. The appellant says that McHugh denied he was involved in the robbery and threatened him (Callan) against doing anything which would prejudice that position. He says that “warning” was reinforced by others in the INLA faction. It is beyond dispute that this group included violent and dangerous men.

  30. On any view of the case, however, the late Sergeant Morrissey emerges as a courageous, indeed heroic, servant of the State. He pursued armed robbers despite the obvious dangers of doing so and was subjected to a gratuitous but fatal assault by being shot in the head as he lay on the ground already disabled. His devoted service and death in heroic circumstances is commemorated by a dignified and prominent monument on the main street of Belturbet, Co. Cavan, his native place. He is remembered by many with affection, gratitude and admiration.

    The State’s eventual case

  31. In the course of argument, Mr. Paul O’Higgins S.C. for the State was able to disembarrass the State’s position of the various contradictory and technicality-based arguments in which it had become entangled. He did this by clear headedly replacing the State’s case on the only basis on which it was arguable. This was that the appellant was not serving a sentence at all but was “serving a commutation”.

  32. Expressed in terms of Rule 59 of the Prison Rules, 2007, this amounts to a contention that the appellant is not “a prisoner who has been sentenced to a term of imprisonment exceeding one month ....” The appellant, said Mr. O’Higgins, was a prisoner who was sentenced to death by the Special Criminal Court. The commutation of this sentence to one of Penal Servitude by the President is not itself a “sentence”.

    Difficulties

  33. There are obvious difficulties with this argument. The first is that, when the appellant challenged the legality of his detention by Article 40 proceedings, the Governor of the Prison produced to establish the legality of the appellant’s detention, the order of the Special Criminal Court, which directed the appellant’s detention prior to execution of the death sentence, and the advice of the Government to President Hillary in 1986, which is quoted earlier in this judgment, and the actual instrument of President Hillary dated the 29th of May, 1986 whereby he commuted the death sentence to Penal Servitude for forty years.

  34. In other words, all of these instruments, and not simply the sentence of the Court, were relied upon as justifying the appellant’s imprisonment.

  35. The second difficulty is that, as we have seen from the first defence filed by the State, the forty year period of incarceration (to use a neutral term) was there described by the State itself as a “sentence”.

  36. Thirdly there is the fact that all prisoners sentenced to Penal Servitude for forty years since 1982 apart from three, one of whom is this appellant’s co-accused, have in fact been released by executive action.

  37. Fourthly there is the difficulty that the plaintiff is manifestly not a remand prisoner but a prisoner condemned to imprisonment for forty years. The State contend that he is not a sentenced prisoner at all. He must, therefore, if his detention if lawful at all, be regarded as a prisoner in an entirely novel category not so far identified in any statute, instrument, or judgment of the Court. The State say that this is exactly what he is: he is a prisoner “serving a commutation”.

  38. I believe that, in terms of logic, law and language, this is a nonsense. The word “commute” as it is used in Article 13.6 of the Constitution has a specific meaning. In the (dominant) Irish language version the expression “to commute.... punishment” is expressed as “chun maolaithe pionós” which means “to mitigate punishment”. But “commutation” is expressed in Irish as maolú (mitigation). The phrase “the right of pardon and the power to commute” is expressed in Irish as “ceart maithiúnais agus cumhacht chun maolaithe”.

  39. Apart altogether from the Irish language, it must be noted that the word “commutation” derives from the Latin root, mutare, to change. According to the Shorter Oxford English Dictionary, this has the primary meaning of “the action or process of changing or altering”. In the same source, the primary meaning of the word “commute” is simply “to change” (from or into); to exchange.

  40. This is suggestive of the reality of this case. The first sentence imposed on the appellant, which is a sentence of death, was changed or altered to a sentence of forty years Penal Servitude. By a statute of 1997 a person serving a sentence of Penal Servitude is to be regarded in law as serving a sentence of imprisonment. The notion of “serving a commutation” is a nonsense for it means “serving a change”. The nature of the commutation is to be gleaned from the thing which is changed which was, in the first place, a sentence of death which was changed to a sentence of forty years Penal Servitude, in the State’s own usage. This is, however, no less a sentence. By the Act of 1997 this second sentence was itself changed, for legal purposes into a sentence of imprisonment. Nor is there any mystery as to the meaning of the word “sentence”. It derives from the Latin word sententia meaning, according to the Dictionary quoted above, “mental feeling, opinion or judgement and arises from the verb sentire, to feel. It has come to mean therefore “the opinion pronounced by a person on some particular question, an authoritative decision”. It has a general meaning of “the judgement or decision of a court or tribunal”, and has a secondary meaning of “the punishment to which a criminal is sentenced”.

  41. In Ireland at the relevant time (December 1985) the Court was bound to impose a death sentence on conviction of capital murder. The President was bound to commute that sentence if so advised by the Government. It is clearly appropriate to describe the period of incarceration to which the appellant was condemned by the commutation by Act of the President on the advice of the then Government, as a sentence. The State itself so described it and resiled from this description only after it discovered that neither the Government nor the President had specified that there was to be no remission. But this has nothing to do with whether the forty year period is a “sentence”.

  42. I have no doubt that the prisoner is presently serving a sentence of imprisonment. I therefore concur that the Court should make a declaration:

    That the plaintiff is a person who has been sentenced to a term of imprisonment exceeding one month and is, therefore, eligible, by good conduct, to earn remission under Order 59(1) of the Prison Rules 2007 and is also a person to whom the provisions in respect of the possibility of greater provision, found in Rule 59(2) of the Prison Rules 2007, apply.

    Justice Clarke

    1. Introduction

  43. Does a person convicted of capital murder, when that particular offence still existed, lawfully sentenced to death but whose death sentence was commuted by the President, under Article 13.6 of the Constitution, to a period of 40 years penal servitude now have the same entitlement to remission as any other prisoner serving a sentence of definite duration? That is, in reality, the net issue which arises in these proceedings.

  44. On the 3rd December, 1985, the plaintiff/appellant ("Mr. Callan") was sentenced to death by the Special Criminal Court for the capital murder of Garda Sergeant Patrick Morrissey. While Mr. Callan both appealed against that conviction and sought, subsequent to the enactment of the Criminal Procedure Act, 1993, to reopen his case, that conviction stands. On the 29th May, 1986 the President of Ireland, acting on the advice of the Government, commuted the sentence of death imposed to one of penal servitude for 40 years. In so doing, the President was exercising the power conferred on him by Article 13.6 of the Constitution and acted, as he was required to do by virtue of Article 13.9 of the Constitution, on the advice of the Government. Subsequent to those events the Oireachtas passed the Criminal Law Act 1997 ("the 1997 Act") which, in s. 11(5), provided that any person then "undergoing" a term of penal servitude was to be treated as if he or she were "undergoing" imprisonment for a like term. It follows that since 1997 a combination of the original conviction and sentence of Mr. Callan, the exercise by the President of the power of commutation under Article 13.6 of the Constitution and the provisions of s. 11(5) of the 1997 Act, Mr. Callan has, to use the language of the 1997 Act, been undergoing imprisonment for a term of 40 years.

  45. Under the prison rules currently in force (the 2007 Rules) certain prisoners are entitled, under Rule 59, to remission on account of good behaviour. In the ordinary way prisoners are entitled to remission in the amount of one quarter of their sentence although there is a discretionary provision to allow such remission to be increased to one third in cases where the prisoner concerned has made a particular effort in fields such as education or other activities. If Rule 59 applies to Mr. Callan, then he would undoubtedly be entitled to be considered for remission of a quarter which would reduce his term of imprisonment to 30 years (a period which would, it would appear, expire in just under three years) and further would, at least in principle, have available to him the possibility that the greater remission of one third might be applied in his case which would allow him the possibility of immediate release.

  46. Mr. Callan brought these proceedings in the High Court seeking, on a number of bases, to contend that he is entitled to what I might term "ordinary remission". The defendants/respondent ("the State") argues that he is not. In the High Court, Hanna J. found for the State and dismissed Mr. Callan's case (see Callan v. Ireland [2011] IEHC 190). Mr. Callan has appealed to this Court. I should start by briefly outlining the issues raised on this appeal on behalf of Mr. Callan (which were the same as those raised before the High Court and rejected by the trial judge) together with a brief account of the State's response.

    2. The Issues

  47. On behalf of Mr. Callan four arguments were raised. The first, and I think it is fair to say the principal and central, point made was to suggest that Mr. Callan clearly came within the provisions of Rule 59 of the 2007 Prison Rules (S.I. no. 252/2007) ("the Prison Rules"). While it will be necessary to set out the position of the State in more detail in due course it is, for present purposes, sufficient to note that the wording of Rule 59 refers to persons who have been "sentenced" to terms of imprisonment. The State argued that the sequence of events leading to Mr. Callan's current imprisonment for 40 years, by virtue of the intervention of a Presidential commutation, leaves Mr. Callan in a situation where he cannot be characterised as having been "sentenced" to a term of imprisonment. It was, however, accepted by counsel for the State at the hearing that if, contrary to his primary submission, Mr. Callan could be said to be a person "sentenced" to a term of imprisonment in the sense in which that term is used in the Prison Rules, then it would follow that Mr. Callan would come within Rule 59 and would, therefore, be eligible, in the words of that rule, "by good conduct, to earn a remission of sentence not exceeding one quarter of such term ...." and to the further benefit of being enabled, if the Minister exercised his power under Rule 59(2), to the greater remission provided for in that rule. The first issue, therefore, turns solely on the narrow question of whether it can be said that, in all the circumstances, Mr. Callan is a prisoner who has been sentenced to a term of imprisonment for the purposes of the Prison Rules.

  48. The second issue concerns a contention on the part of Mr. Callan which questions the legality of the process whereby a decision to impose a defined sentence of 40 years penal servitude was taken without any entitlement on his part to be heard. In that context it was argued, therefore, that the only sentence to which a death penalty could lawfully and constitutionally be commuted was a sentence of life imprisonment (or penal servitude) on the basis that such a life sentence was the only alternative lawful sentence for murder. On the other hand, the State, while accepting that it appeared likely that commutation carried with it an implication of a lesser sentence, and while further accepting that a penalty imposed by commutation had to be one known to the law, argued that a defined sentence of 40 years was a sentence known to the law. On that basis it was suggested that there was no barrier to the President, on the advice of the Government, and in furtherance of an express constitutional entitlement, substituting a sentence for a defined period of imprisonment to replace, by commutation, the death penalty. It was made clear on behalf of Mr. Callan, however, that the argument under that heading was made in the alternative and only arose in the event that Mr. Callan was unsuccessful on the first issue.

  49. The third issue raised involved a further alternative argument based on what was said to be an inequality arising between a person in Mr. Callan's position and persons who, subsequent to the passage of the Criminal Justice Act 1990 ("the 1990 Act"), were convicted of the form of murder described in s. 3 of that Act. In substance, the 1990 Act abolished the death penalty and thus the separate crime of capital murder of which Mr. Callan had been convicted. However, what replaced capital murder was what might be called s. 3 murder involving the same ingredients as the former crime of capital murder. Persons convicted of s. 3 murder are, by statute, sentenced to life imprisonment with a provision that a minimum term of 40 years must be served. However, the 1990 Act makes express provision for the fact that the minimum term to be served may be reduced on good behaviour in a like manner to the way in which remission can be earned by persons serving a term of imprisonment for a defined period of time. It was argued on behalf of Mr. Callan that there was no good reason why persons convicted of the identical offence post-1990 should have the benefit of a system analogous to remission while he should not. Counsel argued that a constitutional construction of the 1990 Act required same to be construed in a way which applied the relevant provisions, giving the capacity to earn a reduced minimum period, to persons, such as Mr. Callan, who had been convicted prior to its enactment and who had had the death penalty imposed on them commuted to a 40 year term. Counsel for the State drew attention, under this heading, to the fact that a person convicted of s. 3 murder, because they received a life sentence with a minimum term, was not, therefore, entitled to be released after the minimum term had been served and that the reduction in the minimum term, by analogy with the remission rules applicable in other cases, did not, therefore, guarantee release.

  50. Finally, and fourthly, although in fairness counsel for Mr. Callan did not press the point very strongly, there was an attack on the constitutionality of the provisions of s. 1 of the Offences Against the Person Act 1861, as amended by s. 1 of the Criminal Justice Act, 1964.

  51. As is clear from that analysis of the issues, the primary argument advanced on behalf of Mr. Callan was that which arose under the first question. It is clear that if Mr. Callan succeeds on that point, he is entitled to succeed on the appeal and in the proceedings generally. It is also clear, for the reasons already analysed, that the issue turns on the narrow question of whether Mr. Callan can be said to have been "sentenced" to a term of imprisonment. I, therefore, turn to that question. In so doing, I propose first to set out the manner in which the trial judge addressed that issue.

    3. The High Court judgment

  52. It is, of course, the case that the High Court judge had to deal with all of the issues raised in these proceedings. However, for present purposes I am concerned only with the manner in which the trial judge dealt with the narrow question of whether Mr. Callan qualified under the relevant prison rules.

  53. The trial judge first looked at what he described as a "distinction between commutation and sentencing". Having referred to the definition of a sentence in the Transfer of Sentenced Persons Act 1995 (a definition to which I will return), the trial judge also referred to the definition of "commute" in Murdoch's Dictionary of Irish Law, 5th Ed., (Dublin, 2009) being "to substitute one punishment for another". In that context the trial judge continued as follows:-

    Commutation is an exercise in clemency whereby a more lenient form of punishment is substituted for a sentence. The power of commutation has its origins in the royal prerogative of mercy which existed at least up to 1922. Unlike a pardon, the commutation of a sentence does not nullify the conviction.

    The plaintiff was sentenced by the Special Criminal Court to death, and this sentence was commuted by the President, acting on the advice of the Government, to penal servitude for 40 years. The statutory power of remission granted to the Government is in relation to any punishment "imposed by a Court exercising criminal jurisdiction". The plaintiff is not serving a sentence of imprisonment imposed by a court; he was sentenced to death by the courts and this sentence was subsequently commuted by the President to 40 years penal servitude. The plaintiff is, serving a "commutation", rather than a "sentence".

  54. In relation to the Prison Rules, the trial judge held that Mr. Callan was not sentenced to a term of imprisonment exceeding one month as required by those rules in order to qualify for remission. Rather, the trial judge noted that Mr. Callan was sentenced to death. In the view of the trial judge, the commutation by the President of that death sentence to one of penal servitude for 40 years did not itself constitute a sentence of 40 years and, therefore, consequently, Mr. Callan's position did not, in the trial judge's view, come within the four corners of the Prison Rules.

  55. It is clear, therefore, that the trial judge concluded that the intervention of a Presidential commutation altered the status of Mr. Callan from someone who had been sentenced (albeit to death) to someone who, while subject to a constitutionally permissible penalty of 40 years penal servitude, could not be said to have been sentenced to such a penalty or to be serving a sentence in accordance with that penalty. The State contends that the trial judge was correct in so doing. Whether that be so is at the heart of the first issue which it is necessary to address.

    4. Has Mr. Callan been sentenced to a term of imprisonment?

  56. The starting point has to be to note the provisions of Rule 59 of the Prison Rules. It is in the following form:-

    59.

    (1)

    A prisoner who has been sentenced to -

    (a)

    a term of imprisonment exceeding one month, or

    (b)

    terms of imprisonment to be served consecutively the aggregate of which exceeds one month,

    shall be eligible, by good conduct, to earn a remission of sentence not exceeding one quarter of such term or aggregate.

    (2)

    The Minister may grant such greater remission of sentence in excess of one quarter, but not exceeding one third thereof where a prisoner has shown further good conduct by engaging in authorised structured activity and the Minister is satisfied that, as a result, the prisoner is less likely to re-offend and will be better able to reintegrate into the community.

    (3)

    This Rule shall not apply to a prisoner who is serving a term of imprisonment ordered under section 18 of the Enforcement of Court Orders Act 1926 (No.18 of 1926), a prisoner sentenced to life imprisonment or to a prisoner committed to prison for contempt of court.

  57. It is clear that Mr. Callan is a prisoner and that he is currently, in the words of s. 11(5) of the 1997 Act, "undergoing" a term of imprisonment of 40 years. It was agreed by both sides that such is a proper characterisation of his current position in the light of the commutation of his death sentence by the President on the advice of the Government and the enactment of the 1997 Act abolishing penal servitude. What was between the parties is as to whether Mr. Callan can be said to have been "sentenced" to that period of imprisonment in the light of the fact that his original sentence was one of death, and that its alteration to one of penal servitude (since adapted to imprisonment) was by Presidential action under the Constitution rather than by a court. Some of the factual history as to how the issue came to be framed in that way is at least of interest although there may be some debate as to how relevant that history may be to the narrow question which this Court has to decide.

  58. There was a surprising and radical change in the way in which the State approached this case as a result of developments which occurred on day 2 of the trial in the High Court. Prior to the trial commencing, in a second amended defence filed by the State on the 6th September, 2010, at para. 29 it was pleaded as follows:-

    It is admitted that on the 3rd of December 1985 the Plaintiff was sentenced to death for capital murder and that on the 29th of May 1986, the President of Ireland commuted the death sentence to penal servitude for forty years on the understanding that the full sentence of forth years would be served without remission. In so far as the Plaintiff now seeks to resile from that description of what occurred, the Defendants maintain their plea in respect of it. It is denied that the death sentence remains valid and in existence; on the contrary the Plaintiff is imprisoned on foot of the said sentence as commuted.

    The words highlighted were added by amendment.

  59. It is immediately apparent that a significant part of the case as pleaded at that time on behalf of the State was that the President's commutation was "on the understanding that the full sentence .... would be served without remission". Two aspects of that pleading need to be noted. First, the term of 40 years is described as a sentence. Second, there is the suggestion that the commutation by the President was on that particular understanding.

  60. On day 2 of the trial, apparently as a result of evidence given by a State witness who produced contemporary documents, it became clear that the advice of the Government to the President and the documents executed by the President on foot of that advice, made no reference to any such understanding. It is true that there were documents, which passed between the Secretary General of the Department of Justice and the Secretary General to the Government and which may well have been before the Government when it decided to advise the President, which suggested that there was an understanding that no remission would be available. Why the Government might have been under such an understanding was not the subject of any evidence. It is, however, in that context, of some relevance to note that, under the regime for remission then in place, there was no entitlement, at least by rule, to remission in the case of a person who had been sentenced to penal servitude. That situation stemmed from the decision of this Court in State (Carney) v. Governor of Portlaoise [1957] I.R. 25, which held that s. 1 of the Prisons (Ireland) Act, 1907 (which authorised remission) only related to sentences of imprisonment and did not authorise the remission of sentences of penal servitude.

  61. In the course of argument, and on questioning by the Court, counsel for the State informed the Court that it was his instructions that, notwithstanding the absence of any legal basis therefor, prisoners sentenced to specific periods of penal servitude did in fact receive something analogous to remission on the same basis as prisoners sentenced to periods of imprisonment (notwithstanding and after Carney) but that the legal basis for providing such prisoners with remission was not clear. Be that as it may, it seems that, whatever about practice, the legal position that pertained in the mid-1980s, when the question of a commutation of Mr. Callan's death penalty came for consideration, was that there was no provision by law or rule for remission in the case of prisoners serving periods of penal servitude. Thus, irrespective of how one characterises a Presidential commutation and whether it be a sentence or otherwise, no remission would have been available at that time, certainly as a matter of rule, because remission did not apply in the case of penal servitude and the contemplated commutation was to a period of penal servitude.

  62. However, the evidence (which despite the fact that it came from a State witness appeared to come as a significant surprise to the State legal team) made it impossible to argue that the defence plea contained in para. 29 of the defence could be made out for there was no evidence that the President had been advised by the Government of any understanding concerning the availability of remission and likewise there was no evidence that the President, in acting on the advice of the Government, was under any such understanding. It was in the light of that development that the State changed its argument to the one now maintained before this Court which suggests that, contrary to what was implicitly admitted in the defence, Mr. Callan cannot be said to have been "sentenced" to a period of penal servitude (converted to imprisonment) at all.

  63. A further aspect of the facts which were established in evidence in the High Court was that a number of other persons who were in a position similar to that of Mr. Callan were temporarily released in 1995 in anticipation, it would appear, of the implementation of the measures contained in the Good Friday Agreement concerned with the release of prisoners. The necessary legislation to formally allow for such release was not, of course, put in place until 1998. The precise legal basis on which those persons, whose legal status, whatever it may be, appears to have been exactly the same as Mr. Callan, were released, was not made clear. Thus there is at least some evidence which suggests that the State has operated on the basis that persons in Mr. Callan's position were open to the ordinary sort of release measures which are available to the executive.

  64. However, in one sense it does not seem to me that those factual matters could be decisive. In that context it is important to note that counsel for the State accepted at the hearing that, if Mr. Callan can properly be said to come within the Prison Rules, it follows that he has the entitlements which those rules confer. No wider questions arose. At the end of the day, Mr. Callan either does or does not come within the provisions of Rule 59 of the Prison Rules. Even if the State has been confused and mistaken as to the precise legal status of persons such as Mr. Callan (and there is, indeed, a great deal of evidence to suggest that the State has been at least confused), this Court must apply the law. The law depends on the proper construction of the word "sentenced" in Rule 59 of the Prison Rules and a determination of whether, on that construction, Mr. Callan is within the rule. If he is within the rule he is entitled to succeed. If he is not within the rule, perhaps in the absence of a claim in estoppel, the State's confusion could not be decisive although it may provide some argument in favour of the proposition that Mr. Callan is, in truth, within the rule in any event.

  65. Perhaps of greater relevance to the narrow legal issue which this Court has to consider is the fact that Mr. Callan did, in the past, seek an inquiry into the lawfulness of his detention under the provisions of Article 40 of the Constitution. In accordance with normal practices, the prison authorities certified the lawfulness of his detention by reference to the documents said to justify his continuing imprisonment. In the context of Mr. Callan's situation, the documents produced were the advice of the Government to commute as communicated to the President, the document recording the President's commutation and the original order of the Special Criminal Court. It seems to me that each of those elements were a necessary part of the valid certification of Mr. Callan's imprisonment. The lawfulness of his detention is dependant on each of those documents for without a conviction and initial sentence to death, the advice of the Government to the President to commute that death sentence to 40 years penal servitude and the instrument of the President giving effect to such a commutation, the proper basis of Mr. Callan's current imprisonment would not be established.

  66. It follows, therefore, that the current legal basis for Mr. Callan's imprisonment does not stem from a single order or measure but rather from the combined effect of all three measures to which reference has been made.

  67. Turning to the meaning of "sentence", a number of dictionary definitions of the term were referred to in the course of argument. The principal focus of the submissions made on behalf of the State was to draw attention to the suggestion in some of those definitions that a sentence, in the sense in which that term is said to be ordinarily understood, involves the imposition of a penalty by a court or tribunal. In similar vein, attention was drawn to the definition of "sentencing" to be found in s. 1 of the Transfer of Sentenced Persons Act 1995, which is as follows:-

    (a)ny punishment or measure involving deprivation of liberty ordered by a court or tribunal on account of the commission of an offence.

    It is, of course, the case that that definition is only for the purposes of the legislation of which it forms part and does not define "sentenced" for the purposes of Rule 59 of the Prison Rules. However, it was argued that the definition cited also represents the commonly understood meaning of the term "sentenced".

  68. Counsel for Mr. Callan drew attention to some dictionary definitions of the term "sentence" which also include reference to a penalty imposed by law as a result of a conviction by a court. It is, of course, the case that in certain circumstances a court has no option but to impose a specific sentence mandated by law in respect of a relevant offence. The Special Criminal Court in this very case had no option but to impose the death penalty. It certainly does not seem that the ordinary meaning of the term "sentence" necessarily implies a decision or selection by a court of the penalty to be imposed but rather can include, in an appropriate case, the automatic imposition by the court of a penalty mandated by law.

  69. The real issue which falls for decision in this case is as to how a Presidential commutation fits into such a scheme of things.

  70. It seems to me that, at the level of principle, the first condition which must be met in order that a person can properly be said to have been sentenced or to be serving a sentence is that the person concerned must have been convicted (or, of course, pleaded guilty) by or before a court of competent jurisdiction. Thus it may be said that for imprisonment to be on foot of a sentence, it must be consequent and contingent on a determination of guilt by a court.

  71. The second limb of the test seems to me to require that the nature of the sentence be determined either by a court or in accordance with a prescribed legal and constitutional process. In the vast majority of cases, this test will be met by a determination by the court of the appropriate sentence from the range of sentences which the law allows or the imposition by the court of a mandatory sentence in those cases where there is only one option. However, it does not seem to me that the scope of the circumstances which can properly be described as involving a "sentence" is necessarily confined in that way. Where a person is, in fact, sentenced by a court but where there is a constitutionally permissible method by which the sentence imposed by the court can be varied, it does not seem to me that the status of the person to whom the varied penalty is applied changes from one who has been sentenced to one where that person cannot be said to be serving a sentence.

  72. Mr. Callan was undoubtedly sentenced (to death) by the Special Criminal Court. In accordance with a constitutionally permissible commutation, that sentence was varied to one of penal servitude for 40 years. However, in my view, Mr. Callan remained someone who had been sentenced in the ordinary sense of that term even though the precise terms of that sentence had been, in a constitutionally permissible manner, altered. The very fact that his conviction and initial sentence by the Special Criminal Court was quite properly relied on as part of the certification process justifying Mr. Callan's detention when he sought to invoke Article 40 of the Constitution, seems to me to demonstrate this point. Mr. Callan's conviction and sentence by the Special Criminal Court remains part of the legal basis for his continuing detention. His detention is justified on a composite basis by each of the measures to which reference has already been made. The fact that there are additional, constitutionally permissible, measures, involving the advice of the Government to commute and the Presidential act of commuting, does not, in my view, change Mr. Callan's status from one where he can properly be described as having been sentenced even though the penalty to which he is now exposed is different to that contained in the original sentence.

  73. It is, of course, the case that, on any view, Mr. Callan's original sentence no longer stands by virtue of its commutation by the President. But the period of imprisonment to which he is now subject (or "undergoing" in the words of the 1997 Act) is a constitutionally permissible variation of the original sentence. It seems to me that such a constitutionally permissible variation does not alter the essential character of the fact that Mr. Callan is undergoing or serving a sentence imposed by a court but varied in a constitutionally permissible manner by the President. It seems to me that in ordinary usage Mr. Callan would be described as serving a sentence, albeit it one which had been varied from that originally imposed.

  74. On that basis I am satisfied that Mr. Callan is a prisoner who has been sentenced to a term of imprisonment exceeding one month within the meaning of Rule 59 of the Prison Rules and that he is, therefore, eligible, by good conduct, to earn remission under the terms of that rule. It further follows that Mr. Callan qualifies to have at least the opportunity, as a matter law, to obtain the benefit of the greater remission provided for in Rule 59(2).

    5. The Other Issues

  75. As pointed out earlier, each of the other issues were raised as alternative arguments only to be pursued on behalf of Mr. Callan in the event that this Court was not persuaded to accept his fundamental argument which was that he qualified for remission under Rule 59 of the Prison Rules. Given my view that Mr. Callan does so qualify, it seems to me that it is unnecessary to address the other arguments raised for the argument under Rule 59 is, by common agreement among counsel, sufficient to dispose of the case if, as I would find, Mr. Callan succeeds on it.

  76. In the light of the fact that many difficult but important issues could arise in attempting to deal with those other issues, it seems to me to be inappropriate to address same in a case where it is unnecessary, for the proper disposition of the case, to deal with such issues. I would prefer to leave a decision on any of those issues to a case in which a decision on the point in question turned out to be decisive. I, therefore, express no view on any of the other issues.

    6. Conclusions

  77. In the light of the conclusions set out in this judgment, it seems to me that the appeal should be allowed. In all the circumstances it seems to me to be appropriate to make a declaration which is focused on the specific findings made in this judgment rather than in the precise form of any of the declarations sought on the pleadings.

  78. I would propose that the Court should make a declaration in the following terms:-

    A declaration that the plaintiff is currently a person who has been sentenced to a term of imprisonment exceeding one month and is, therefore, eligible, by good conduct, to earn remission under Rule 59(1) of the Prison Rules, 2007 and is also a person to whom the provisions in respect of the possibility of greater remission, to be found in Rule 59(2) of the Prison Rules, 2007, applies.


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