O' Brien v Governor Limerick Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 31 July 1996
• Neutral Citation: 1997 WJSC-HC 1860
• Docket Number: 1063s/1996
• Court: High Court
• Date: 31 July 1996

1997 WJSC-HC 1860

THE HIGH COURT

1063s/1996

O' BRIEN V. GOVERNOR LIMERICK PRISON

IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4 OF THE

CONSTITUTION

BETWEEN

MICHAEL O'BRIEN

APPLICANT

AND

THE GOVERNOR OF LIMERICK PRISON

RESPONDENT

Citations:

CONSTITUTION ART 40.4

RULES FOR THE GOVT OF PRISONS 1947 SR & O 320/1947 RULE 38(1)

DPP, PEOPLE V AYLMER 1995 2 ILRM 624

CRONIN, STATE V GOV OF PORTLAOISE PRISON UNREP BUTLER 1967

WOODS, STATE V AG 1969 IR 385

DPP, PEOPLE V CAHILL 1980 IR 8

BEIRNES, STATE V GOV OF MILITARY DEFENCE BARRACKS 1982 ILRM 491

PRISONS ACT 1972 (MILITARY CUSTODY) REGS 1972 RULE 38

PRISON RULES 1947 SR & O 320/1947 R35(1)

Synopsis:

CRIMINAL LAW

Sentence

Imprisonment - Suspension - Effect - Executive - Power - Remission - Whether remission rules operate only on unconditional part of sentence - Sentence of 10 years imprisonment with last six years conditionally suspended - Prisoner sought release after three years on basis of entitlement to 12 months remission in respect of sentence of four years imprisonment - Remission procedure applicable only to entire sentence imposed by trial judge - Applicant prisoner detained in accordance with the law - Rules for the Government of Prisons, 1947 (S.R. & O. No. 320), r. 38.1 - Criminal Justice Act, 1951 (No. 2), s. 23 - Constitution of Ireland, 1937, Article 40 - (1996/1063 SS - Geoghegan J. - 31/7/96)

|O'Brien v. Governor of Limerick Prison|

MINISTER OF STATE

Powers

Imprisonment - Remission - Authorisation - Conditions - Portion of prisoner's sentence suspended by trial judge - Whether remission rules operate only on unconditional part of sentence - Sentence of 10 years imprisonment with last six years conditionally suspended - Prisoner sought release after three years on basis of entitlement to 12 months remission in respect of sentence of four years imprisonment - Remission procedure applicable only to entire of single sentence of 10 years imposed by trial judge - Applicant prisoner detained in accordance with the law - (1996/1063 SS - Geoghegan J. - 31/7/96)

|O'Brien v. Governor of Limerick Prison|

1 JUDGMENT of Mr. Justice Geoghegan delivered the 31st day of July, 1996.

2 This Inquiry under Article 40.4 of the Constitution concerns a claim by Michael O'Brien, a convicted prisoner, that he is in unlawful detention by reason of a refusal on the part of the Minister for Justice to grant him remission under Rule 38(1) of the Rules for the Government of Prisons, 1947 (S.R. & O. 1947 No. 320). Paragraph 1 of the said Rule 38 reads as follows:-

"A convicted prisoner sentenced to imprisonment, whether by one sentence or cumulative sentences, for a period exceeding one calendar month, shall be eligible, by industry and good conduct, to earn a remission of a portion of his imprisonment, not exceeding one-fourth of the whole sentence, provided that the remission so granted does not result in the prisoner being discharged before he has served one month."

3 On the 18th June, 1993 the Applicant was convicted of burglary and of aggravated sexual assault in the Central Criminal Court. On the same day, Mr. Justice Lavan imposed a sentence of imprisonment for each of the offences. The sentence as recorded on the Order reads as follows:

"To be imprisoned for ten years on each of counts one and three such sentences to be concurrent and to date from the 18th June, 1993 and the Court doth further Order that the last six years of the above sentence be suspended on condition that the Accused enters a bond in the sum of £100 to keep the peace and be of good behaviour towards all the People of Ireland from the 17th June, 1997 to the 17th June, 2003 and further that he will not attend at the village of Doon or the townland of Kilmoylan in the County of Limerick upon his release from custody on the 17th day of June, 1997 and further that on the commission by the Accused of any offence, either while in custody or during the six years suspension, the Accused will come up to serve the balance of his sentence suspended upon him entering this recognisance, the Accused acknowledged himself so bound."

4 The Applicant did not appeal that Order. On the contrary, he effectively approbated it by claiming that he was eligible for remission on foot of it under Rule 38(1) of the 1947 Government of Prisons Rules. He claimed that once he had served three quarters of the custodial part of the sentence, that is to say, three years, he was eligible and ought to receive remission. It is quite clear that initially the Department of Justice agreed with him and a draft reply by way of response to the Applicant's petition was prepared by the Department and sent to the Governor of Limerick Prison on the 18th October, 1995. That draft reply read as follows:

"I refer to an application for mitigation of sentence made by Michael O'Brien, 23 Prospect, Oola, Co. Limerick."

5 According to Section 38(1) of Rules for the Government of Prisons, 1947, "a convicted prisoner sentenced to imprisonment, whether by one sentence or cumulative sentences, for a period exceeding one calendar month, shall be eligible, by industry and good conduct, to earn a remission of a portion of his imprisonment, not exceeding one-fourth of the whole sentence, provided that remission being so granted does not result in the prisoner being discharged before he has served one month."

6 As quarter remission does apply in Mr. O'Brien's case, his release date will be 17th June, 1996.

7 Please advise the prisoner accordingly.

8 Having regard to the express terms of the Court Order, however, the Governor was not happy about the position and was concerned lest by releasing the Applicant on the 17th June. 1996 he might be in breach of the Court Order and therefore in contempt of Court. The Governor was also concerned about the fact that if the Applicant were to be released on that date he would be at large for approximately a period of a year before he would be obliged to enter into the bond with the conditions attached which the Judge had imposed on the date of sentencing. He therefore wanted the position to be legally clarified. An application was then made upon notice to the Applicant by Counsel for the Director of Public Prosecutions to Mr. Justice Lavan to have his Order Clarified in so far as it might impinge on normal remission rules. Mr. Justice Lavan refused to entertain such an application as he expressed the view that the sentence he imposed was quite clear.

9 Before I consider the legal questions involved, I think it desirable for the purposes at least of completing the picture, to set out the relevant part of the transcript of the original trial which led up to the sentence and the part transcript relating to the abortive application for directions to the Judge. The part of the sentencing which is material to the issues involved in this case read as follows:-

"... and I intend to sentence this accused man on count number 1to ten years imprisonment and on count number 3 to ten years imprisonment. Now, Mr. McEntee, I am disposed, not withstanding what I have said about the Courts already having given your client every conceivable assistance, I am disposed to take this opportunity of giving him one last chance. I will suspend six of those years on his undertaking to be of good behaviour for the remainder of the ten year period and not to attend at Doon - the townland of Doon."

Mr. McEntee: Yes, there will be no difficulty about that My Lord.

Judge:	Do you understand that, you are not going to go near the townland of Doon.
Mr. McEntee:	No matter what, no matter what - no excuse.
Judge:	And you understand, and I am going to make this - I will give an express direction to Superintendent Kenneally through the Sergeant - you will serve four years. If you get into trouble between the 17th June, 1997 and the 17th June, 2003 you are to be brought back to this Court and you will serve the full ten - do you understand that?
Mr. O'Brien:	I understand.
Mr. McEntee:	I will make sure, My Lord, that the implications are fully understood. I don't know, My Lord whether he will get remission on the -
Judge:	No, my intent is he will serve four full years.
Mr. McEntee:	He will serve four years, from today.
Judge:	Four years. I have given him account of all the remission.
Mr. McEntee:	Nobody can grumble, My Lord.
Judge:	Very good, Mr. McEntee. Sergeant, you will ensure that the superintendent for the time being is aware of that fact, and when this man is released on the 17th June, 1997, if he gets into any trouble, if he is convicted in any Court for any crime, he is to be brought back to the Central Criminal Court. Is that clear, Sergeant?
Sergeant Long:	Yes, My Lord."

10 I will now set out what is only available partial transcript of what transpired in Court when the attempted application for directions was made. It reads as follows:-

"Mr. Collins:	I think the position now, My Lord, might be that the Governor has it in mind to grant further remission which might make my client available for release next year, of course he would be subject to the same conditions that Your Lordship set out in your original Order with regard to he having to keep the peace and be of good behaviour and what not for a six year period.
Judge:	I permitted this to be listed for the purpose of clarification. I am not entertaining arguments. I am making it perfectly clear that I suspended six years with the intent that he serve four and no Governor of that prison can interfere with that Order.
Mr. Collins:	So, he can't be released before the 17th June.
Judge:	I appreciate the position you find yourself in and I greatly regret if this has been conveyed to your client but the fact of the matter...