A MAN who has served 25 years of a 40-year sentence for the murder of Garda Sgt Patrick Morrissey during an armed robbery in 1985 has lost his High Court bid to be considered for remission.
He had been sentenced to death but this was commuted at the time by President Patrick Hillery. Callan was in court yesterday for the judgment, as was Bernadette Morrissey, Sgt Morrissey’s widow.
While rejecting Callan’s case, Mr Justice Michael Hanna noted Callan had “flourished artistically and intellectually” in prison and, at this remove from the crime, could advance “substantial arguments” that his circumstances “should be looked at afresh”.
Some might persuasively invoke fairness and compassion in aid of Callan’s plight, while others might understandably take the view, given the “appalling nature of this crime inflicted on a courageous servant of the State”, Mr Callan has already received “his full quotient of mercy”. The judge added: “In my opinion, these matters and their potential resolution, if any there be, lie outside the walls of these courts.”
Callan (47), Cullaville, Castleblayney, Co Monaghan, is expected to appeal to the Supreme Court. He had claimed he has unlawfully been deprived of a right of remission, which could reduce his 40-year term by up to a third.
His death sentence was commuted in 1986 by Mr Hillery, on the advice to the government, to 40 years’ penal servitude. Among a series of claims, Callan claimed the president’s decision contained no conditions on remission and he was therefore eligible for standard remission.
Others convicted of the murder of gardaí following the passage of the Criminal Justice Act 1990 were entitled to seek remission, the court heard.
Yesterday, Mr Justice Hanna ruled Callan was not eligible for remission under the Criminal Justice Act 1951, the Criminal Justice Act 1990 or the Prison Rules.
Because Callan is not serving a “sentence” imposed by a court and his imprisonment is based on a commutation order from the president, he was not eligible for remission under section 23 of the 1951 Act or under the Prison Rules, the judge found.
While section 5 of the 1990 Act provided for remission for those convicted of the murder of a garda acting in the course of their duty, Callan was neither convicted nor sentenced under that Act, he said.
When the 1990 Act was enacted, Article 13.6 of the Constitution prohibited the conferring on other authorities of the power of the president to remit capital sentences, meaning that, even if the 1990 Act purported to allow for remission of Callan’s sentence, Article 13.6 rendered that unconstitutional, he added. This prohibition has since been removed.
The judge found Callan has not been treated unequally or discriminated against because his remission entitlements are different to persons sentenced under the 1990 Act. The judge said the power of commutation was “executive rather than judicial in nature”, and the executive not only administered the sentence imposed by the court but also had power to commute or remit sentences.
Because the commutation constituted “an exercise in clemency” by the president and was a privilege extended to Callan, it did not attract the protection of constitutional justice, he ruled.
Callan was 22 when convicted by the Special Criminal Court in December 1985 of the capital murder of Sgt Morrissey (49) at Rathbrist, Tallanstown, on June 27th, 1985, after a robbery.
Sgt Morrissey was wounded by Callan’s co-accused, Michael McHugh, Clonalig, Crossmaglen, Co Armagh, who then “executed” him, said Deirdre Murphy SC, for Callan. Ms Murphy said her client accepted he was part of a common design in relation to a robbery but was not in the vicinity when Sgt Morrissey was shot.
