O'Brien v Governor of Limerick Prison

JurisdictionIreland
JudgeO'Flaherty J.
Judgment Date13 February 1997
Neutral Citation1997 WJSC-SC 1877
CourtSupreme Court
Docket Number(289/96)
Date13 February 1997

1997 WJSC-SC 1877

THE SUPREME COURT

Hamilton C.J.,

O'Flaherty J.,

Denham J.,

Barrington J.,

Murphy J.,

(289/96)
O' BRIEN V. GOVERNOR OF LIMERICK PRISON
AN CH ÚIRT UACHTARACH
IN THE MATTER OF AN APPLICATION
FOR AN ENQUIRY PURSUANT TO ARTICLE 40.4
OF THE CONSTITUTION OF IRELAND

BETWEEN:

MICHAEL O'BRIEN
Applicant/Appellant
.v.
THE GOVERNOR OF LIMERICK PRISON
Respondent

Citations:

CONSTITUTION ART 40.4

PRISON RULES 1947 RULE 38(1)

PRISONS (IRL) ACT 1907 S1

CONSTITUTION ART 13.6

OSBOROUGH : A DAMOCLES SWORD GUARANTEED IRISH 1982 IJ 221

DPP, PEOPLE V CAHILL 1980 IR 8

DPP, PEOPLE V AYLMER 1995 2 ILRM 624

BEIRNES, STATE V GOV OF CURRAGH MILITARY DETENTION BARRACKS 1982 ILRM 491

CRONIN, STATE V GOV OF PORTLAOISE PRISON UNREP SUPREME 10.11.67

CRIMINAL JUSTICE ACT 1951 S23

Synopsis:

Criminal Law

Sentence - inquiry pursuant to Article 40.4 - suspension of latter part of sentence ordered by court of trial - whether applicant entitled to remission on custodial part of sentence under Prisons Act, 1907 - Held: Suspension of part of sentence cannot be reconciled with 1907 Act - remission to be calculated in respect of period of imprisonment - applicant released (Supreme Court: Hamilton C.J., O'Flaherty J., Denham J., Barring ton J., Murphy J. - 13/02/1997) - [1997] 2 ILRM 349

|O'Brien v. Governor of Limerick Prison|

1

Judgment of the Court delivered on the 13th day of February, 1997, by O'Flaherty J.

2

On the 17th December, 1996, the Court allowed the appeal of Michael O'Brien against the judgment and order of the High Court (Geoghegan J.) of the 31st July, 1996; the Court ordered his release pursuant to Article 40.4 of the Constitution and said it would give its reasons later. Geoghegan J.held that the applicant's detention was lawful but he thought it desirable that an appeal should be brought to the Court with some degree of expedition because of a lack of certainty in the law as a result of a number of decisions which he found difficult to reconcile.

3

There follow the reasons for the Court's decision to allow the appeal and order the release of the appellant.

Background Facts
4

The appellant appeared before Lavan J. at the Central Criminal Court on the 18th June, 1993, when he pleaded guilty on a count of burglary as well as a count of aggravated sexual assault. On that date he was sentenced to ten years imprisonment on each of the counts, such sentences to be concurrent and to date from the 18th June, 1993. The learned trial judge went on to order that the last six years of the said sentence should be suspended. The relevant part of his order was 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, [and] the accused acknowledged himself so bound."

5

From a perusal of the transcript of proceedings at the trial court (reproduced in the judgment of Geoghegan J.) it is quite clear that Lavan J. intended that the accused would serve four years, without any remission.

6

The accused did not appeal to the Court of Criminal Appeal. Instead, he asserted that the custodial part of his sentence, viz. four years, should attract the usual remission of one quarter. It is conceded, in the course of the hearing in this court, that if that contention was correct then he would be entitled to a quarter remission and should be set free.

7

It is agreed on both sides that this case is concerned with the proper construction of Rule 38 (1) of the Rules for the Government of Prisons, 1947, which were made pursuant to the Prisons (Ireland) Act, 1907, s. 1 of which is as follows:-

"Provision may be made by prison rules for enabling a prisoner sentenced to imprisonment, whether by one sentence or cumulative sentences, for a period prescribed by the rules, to earn by special industry and good conduct a remission of a portion of his imprisonment, and on his discharge his sentence shall be deemed to have expired."

8

Rule 38(1) provides:-

"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."

9

The question was whether the appellant was entitled to remission of one quarter on the custodial part of his sentence, or whether the effect of the order of the Central Criminal Court was that he had so serve a full them of four years without remission. That in turn raised for debate and resolution whether, if that was the effect of the order, it entrenched on the entitlement of the Executive to grant a remission of punishment, pursuant to its powers under Article 13.6 of the Constitution.

The Suspended Sentence
10

It is not proposed to set forth here the history of the suspended sentence. It has been done by Professor Osborough in his article: ADAMOCLES" SWORD GUARANTEED IRISH [The Irish Jurist, 1982, p. 221]. As the title to the article indicates, the development of the suspended sentence was an invention of the Irish judiciary.

11

The use of a straightforward suspended sentence is so well established in our legal system as not to require any elaboration here except to note that it is obviously a very beneficial jurisdiction for judges to possess. However, in the 1960's emerged a variant of the suspended sentence which was that the latter part of it would fall to be suspended in certain circumstances and, nowadays, it is very common for sentences to carry a proviso that the latter part of it will be suspended. The Court does not propose to pass any general judgment on the desirability, or otherwise, of this jurisdiction: except to note that it is there and provided it is used for some tangible purpose such as to effect the reintegration of the accused into society, or to protect certain members of society from certain forms of crimes, or some such object, the matter should be left reside in the individual discretion of the judge of trial being subject, of course, to the appellate jurisdiction of the Court of Criminal Appeal to order otherwise.

12

A particular type of part suspended sentence, for which Butler J. of the High Court is said to have been responsible, took the form that the prisoner was sentenced to a period of...

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