Prisoner serving 40 year sentence for capital murder of Garda eligible to be considered for remission

Hardiman J (nem diss): Criminal law – imprisonment – appeal from High Court – whether plaintiff was serving a sentence of imprisonment or “commutation” – convicted and sentenced to death for the capital murder of Garda in 1985 – death sentence commuted to Penal Servitude for forty years – Penal Servitude was abolished and replaced with imprisonment – s.11(5) of the Criminal Law Act, 1997 – Rule 59 of the Prison Rules 2007 (Statutory Instrument 252/2007) – whether plaintiff 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.

"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."

Clarke J (concurring with Hardiman J): Criminal law – imprisonment – appeal from High Court – whether plaintiff was serving a sentence of imprisonment or “commutation” – convicted and sentenced to death for the capital murder of Garda in 1985 – death sentence commuted to Penal Servitude for forty years – definition of a sentence in the Transfer of Sentenced Persons Act 1995 – Penal Servitude was abolished and replaced with imprisonment – s.11(5) of the Criminal Law Act, 1997 – Rule 59 of the Prison Rules 2007 (Statutory Instrument 252/2007) – legality of commuted sentence - inequality between applicant's position and that of a person sentenced under the subsequent Criminal Justice Act 1990, s 3 - constitutionality of provisions.

"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."