The definition of a ‘sentence’ and the Callan decision

The decision of Callan v. Ireland and the Attorney Generawas handed down by the Supreme Court this afternoon. Two judgments, one by Hardiman J, the other by Clarke J, were delivered, in which the rest of the five-judge court concurred. The decision contains an important examination of the definition of the term ‘sentence’ for the purposes of benefitting from remission. Though the number of prisoners impacted is small, the implications for the plaintiff of the decision are very significant.

Mr Callan had been sentenced to death in 1985 for the murder of a Garda. In 1986 the Government recommended to the President that this sentence be commuted to one of forty years’ imprisonment. The then President exercised his powers of commutation under Article 13.6 of the Constitution.  There was apparent confusion regarding the precise details of this commutation, and it had originally been thought that the commutation contained the condition that there would be no remission for Mr Callan, but it transpired during the course of the hearing of the case that, in fact, no such restrictions had been placed upon it.

Mr Callan argued that he was entitled to remission of his sentence, which currently stands at one quarter of the time imposed, with the possibility of earning one third remission. This only applies to a person serving a sentence of imprisonment of one month or more. The Prison Rules 2007, specifically Rule 59(2)permits up to one-third remission for prisoners who have shown further good conduct by “engagement in authorised structured activity to such an extent as to satisfy the Minister for Justice and Equality that they are less likely to reoffend and will be better able to reintegrate into society”. The State argued that he was not so entitled. At the Supreme Court hearing the State put forward the position that Mr Callan was serving a “commutation” rather than a sentence of imprisonment.

This argument was roundly rejected by the Supreme Court. It held that the commutation had substituted one form of sentence (a death sentence) for another (originally penal servitude, but then imprisonment, as the concept of penal servitude was abolished in 1997). Hardiman J engaged in an interesting analysis of the Irish language provisions on the power of commutation. Both judgments had no difficulty in finding that the commutation had substituted Mr Callan’s sentence of death to one of imprisonment, and, as such, the rules of remission were applicable.

The State had also argued that a decision of Carney v. Ireland [1957] IR 25 was on point. It had held that the rules of remission did not apply to persons serving a sentence of penal servitude. The prison authorities, had, it seems, effectively ignored this decision and allowed such prisoners the benefit of remission under the Rules. Again, the Supreme Court, particularly Hardiman J was highly critical of this argument, considering that the State could not pick and choose how it would apply decisions of the courts.

Mr Callan had put forward other arguments including an interesting one (and one rejected decisively by the High Court) regarding the discriminatory treatment between him and those sentenced for ‘capital murder’ under section 3 of the Criminal Justice Act 1990. The rules of remission do apply to such individuals. The Supreme Court did not consider it necessary to deal with this aspect of the case. This is a pity given the views expressed by the High Court on the matter. Hanna J held:

in examining whether the plaintiff has been discriminated against, it would be anomalous to compare him to persons sentenced for murder under s. 3 of the Act of 1990, as he was not sentenced under that Act. In determining whether discrimination has occurred, the plaintiff can only properly be compared with those persons sentenced to death under the Offences Against the State Act 1861 (hereafter “the Act of 1861”), as amended by the Criminal Justice Act 1964, whose sentences have been commuted to imprisonment. The plaintiff has not been treated unequally, nor has he been subjected to unfair discrimination. The plaintiff has not identified any one person who was convicted of capital punishment prior to 1990 who has had his/her sentence commuted and has subsequently been given the benefit of remission.

Hanna J also held:

Article 40.1 of the Constitution guarantees equality before the law. However, the plaintiff has not been treated unequally simply because there is a difference between his remission entitlements and those of persons sentenced under the Act of 1990; and nor has the plaintiff been subjected to unfair discrimination. It is the nature of legislation that it changes the legal landscape and the fact that the Act of 1990 altered the remission entitlements of people who had yet to be convicted and sentenced simply reflects the prospective nature of the legislation, and cannot amount to discrimination.

This analysis is in contrast to that of the European Court of Human Rights in the decision of Clift v. United KingdomThe traditional approach under Article 14 of the Convention was to refuse to apply ‘other status’ to prisoners alleging a difference in treatment which was grounded in the State’s view of the seriousness of an offence. In Clift the differential treatment at issue concerned release provisions for those serving determinate sentences compared to those serving indeterminate sentences. The usually restrictive approach of the Court to Article 14 and differences in treatment arising out of the views of States on matters concerning offences and sentences was softened somewhat. The Court considered that where an early release scheme applies differently to prisoners depending on the length of their sentences, there is a risk that, unless the difference in treatment is objectively justified, it will run counter to the very purpose of Article 5. In Clift the applicant was able to prove that he had “other” status and, moreover, that the differential treatment was in breach of Article 14.

It would have made for most interesting analysis were the Supreme Court required to grapple with the question of whether Mr Callan was treated differently to those convicted under section 3 in a manner which breached his right to equality under the Constitution. Such analysis would have important implications for other differences in treatment such as the rules on temporary release.

With respect to temporary release, the Criminal Justice (Temporary Release of Prisoners) Act 2003  states that the Minister for Justice may direct the temporary release of a prisoner who is serving a sentence of imprisonment. The Supreme Court has now indicated its view that Mr Callan is serving such a sentence.

Update: 20/7/13.

A piece in today’s Irish Times quotes Liam Herrick from the Irish Penal Reform Trust indicating that, to date, only one person has ever benefitted from the enhanced remission provisions of the Prison Rules, 2007.

The definition of a ‘sentence’ and the Callan decision