THE public hold dear the 40-year jail term for capital murder handed down to people who kill gardai in the line of duty.
Under the 1990 Criminal Justice Act, anyone who kills a garda receives a 40-year jail term and there is a 20-year sentence for anyone who attempts to do so.
Before 1990, capital murder was punishable by death (the last executions were in 1954), but a practice grew whereby the President – acting on the advice of the Government – commuted death sentences to 40 years' penal servitude.
Noel Callan and Michael McHugh were the last people to receive the death sentence for capital murder. Both had their penalties commuted to 40 years' penal servitude
The Government was severely criticised by the Supreme Court. The State had initially argued that Callan was not entitled to remission because his sentenced had been commuted on the understanding that the full 40 years would be served "without remission".
But on the third day of the High Court hearing, the State radically changed its case after a file – which included the actual advice of the Government to the President on Callan's case – was produced.
That advice was that his sentence should be commuted to 40 years' penal servitude. Critically, however, the advice made no reference to remission.
The State then changed tack, accepting that the President's decision did not impose any conditions in relation to remission.
It argued that Callan was not serving a "sentence" but rather a "commutation", which placed him outside the scope of prison rules.
The Government then offered a third alternative: that Callan was entitled to the protection of prison rules – apart from those relating to remission.
The Supreme Court rejected the argument that Callan was serving a commutation, rather than a sentence, describing this novel category of non-prisoner as "a nonsense".
Mr Justice Adrian Hardiman also criticised the Government for relying on a 56-year-old Supreme Court ruling which refused to extend remission to penal-servitude prisoners.
The reprimand by the judiciary is one of the harshest delivered to the State in recent times.