A MAN entering his 28th year of a 40-year sentence for the murder of a Garda could be freed almost immediately after a five judge Supreme Court ruled today he is entitled to be considered for remission, including the greater remission available for good behaviour.
If granted even normal remission, Noel Callan will be freed by 2016 but the court also ruled he, who was described as a "model prisoner" was eligible for the higher remission of one third.
Mr Justice Adrian Hardiman in his judgment, with which the other judges agreed, described as a "nonsense" various arguments advanced by the State to support its claims Mr Callan was not entitled to remission.
The judge also paid tribute to Sgt Patrick Morrissey, "a courageous, indeed heroic, servant of the State", who was shot dead in 1985 by Michael McHugh, a co-accused of Mr Callan. Mr Morrissey's widow was in court today.
Mr Callan (50), formerly of Cullaville, Castleblayney, Co Monaghan, was aged 22 when convicted by the non-jury Special Criminal Court in December 1985 of the capital murder of Sergeant Morrissey (49) at Rathbrist, Tallanstown, on June 27th 1985 following an armed robbery the same day at Ardee Labour Exchange.
Sgt Morrissey was initially wounded by Mr Callan's co-accused Michael McHugh, Clonalig, Crossmaglen, Co Armagh, who then went back and "executed" him, Callan's lawyers argued. Callan accepted he was part of a common design in relation to a robbery but argued there was no common design to murder.
Both Mr Callan and Mr McHugh were sentenced to death for murder but their sentences were commuted to 40 years penal servitude by the President.
He challenged the refusal to consider him for remission when several others jailed for capital murder whose death sentences were commuted by the President to 40 years were either freed or got temporary release before the end of 40 years.
When the case was before the High Court, the State initially argued he was not entitled to remission on grounds the President's decision commuting his death sentence to 40 years penal servitude was made on the understanding the full 40 years would be served "without remission".
On the third day of the High Court hearing, the State altered its case after a file was produced by a public servant in the Department of the Taoiseach which included the actual advice of the Government to the President on Mr Callan's case. That advice was his sentence should be commuted to 40 years penal servitude but it made no reference to remission.
The State then accepted the President's decision did not impose any conditions in relation to remission but then argued Mr Callan was not serving a "sentence" but rather a "commutation" which, it argued, placed him outside the Prison Rules
Deirdre Murphy SC, for Mr Callan, argued the State was effectively contending Mr Callan was being held under "some new and alien" form of detention, a unique "commutation" process, rather than a "sentence" and that constituted huge and unwarranted unfairness.
The State had argued, when a sentence is commuted, the right to statutory remission is lost. A central issue in the case was whether Mr Callan has the status of a prisoner who has been "sentenced".
Today, the Supreme Court granted a declaration he is a person who has been sentenced to a term of imprisonment exceeding one month who is therefore eligible, by good conduct, to earn remission, including higher remission, under the relevant prison rules.
The court rejected the arguments Mr Callan was serving "a commutation" rather than a sentence.