News Hugh O'Flaherty

Friday 29 August 2014

Justice systems struggle with the question: when does life mean life?

Published 25/07/2013 | 05:00

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Noel Callan, who was convicted of murdering Gda Sgt Patrick Morrissey

The question posed for the Supreme Court in last week's decision in Noel Callan's case was: does a person who was convicted of capital murder and sentenced to death, but whose death sentence was commuted by the President (acting on the advice of the government) to a period of 40 years' penal servitude, have the same entitlement to remission as any other prisoner serving a sentence of definite duration?

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In December 1985, Noel Callan was sentenced to death by the Special Criminal Court for the capital murder of Garda Sergeant Patrick Morrissey. He continued to serve his commuted sentence – with "imprisonment" now substituted for penal servitude. It was surely the understanding of one and all at the time of the commutation that he would serve 40 years with no remission. The trouble was that this was not expressed in the advice the government gave the President and, therefore, was not in the instrument the President signed allowing the commutation. So the court held that Callan is entitled to the same remission as other prisoners.

This was the latest in a series of attempts by Callan to have his sentence reviewed. The supreme irony about the case is that, on the facts, it is difficult to see how he should have been convicted of capital murder in the first place. Led by a fellow accused, Michael McHugh, they set out to rob the labour exchange at Ardee. They made their escape on a motorbike, which was then involved in a collision, before the injured Callan made his way to a farmhouse.

He was not present when Sgt Morrissey was shot by McHugh, first in the leg and then in the head. Callan could have made the case that, while he was a party to the robbery, he was not complicit in the murder. But he did not make that case; at the trial he gave an untrue version that he was not present with McHugh at the robbery.

Once this was not believed, he left himself open to the finding that there was a common design shared by both accused.

At the same time as the Callan decision, the British government was grappling with the ruling of the European Court of Human Rights at Strasbourg that whole-life sentences for the most notorious murders are unlawful in the sense that such prisoners, having no right of any remission, have no right to even apply to the parole board for possible remission of their sentence.

British Prime Minister David Cameron's spokesman said that he was "very, very, very, very disappointed" and would not rule out withdrawing from the court if the Conservatives win the next general election. "He profoundly disagrees with the court's ruling. He is a strong supporter of whole-life tariffs," the spokesman said.

The case was brought by Jeremy Bamber, who allegedly killed five family members (he continues to protest his innocence); Douglas Vinter, who admitted killing his wife having been released from jail after serving a sentence for a previous murder; and Peter Moore, who murdered four men in Wales in 1995.

In a ruling 16 to 1, the court held that a life sentence could be compatible with human rights only if there was the possibility of release and of the sentence being reviewed. The existing regime was incompatible with human rights laws that ban inhumane and degrading treatment. However, the court added: "In finding a violation in this case, the court did not intend to give the applicants any prospect of imminent release."

In Britain, there are 49 killers serving whole-life tariffs. In this State, the parole board operates to review all sentences in excess of eight years.

However, those convicted of the murders of a garda or prison officer up to now have not been eligible to apply to the parole board. In view of the Supreme Court ruling in the Callan case, this may only be of academic interest.

There is no doubt that there has been a strong backlash against the Strasbourg decision in Britain. The question has been posed: what about the human rights of the victims? Europe is perceived as the villain by many. Yet it was the British who were at the forefront in promoting the ideal of a convention on human rights after the excesses brought about both by fascism and communism and in the aftermath of the misery wreaked by World War Two. Britain was the first signatory to the convention in 1953 and British legal draftsmen played a key role in setting up the convention. Sean MacBride as minister for external affairs (1948-51) also played a key role in promoting the convention.

He was an advocate in the very first case to come before the court, the Lawless case where the court ruled against the use of internment without trial except in the case of a national emergency.

Hugh O'Flaherty is a former Supreme Court judge

Irish Independent

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