Price v Governor of Wheatfield Prison
| Jurisdiction | Ireland |
| Judge | Ms. Justice Máire Whelan |
| Judgment Date | 08 December 2020 |
| Neutral Citation | [2020] IECA 345 |
| Docket Number | Appeal No. 2019/273 |
| Court | Court of Appeal (Ireland) |
| Date | 08 December 2020 |
[2020] IECA 345
The President
Whelan J.
Kennedy J.
Appeal No. 2019/273
THE COURT OF APPEAL
Unlawful detention – Sentencing – Remission – Appellant appealing the decision of the High Court declining to order the release of the appellant – Whether the trial judge erred in law and in fact in finding that the correct method of calculation of a sentence involved the conversion of a sentence expressed in years into a period of days, rather than calendar months
Facts: The High Court (Noonan J), on 17 May 2019, in an ex tempore judgment, declined to order the release of the appellant, Mr Price, on foot of an enquiry pursuant to Article 40 of the Constitution. The appellant appealed that decision and that appeal came before the Court of Appeal. In his notice of appeal, the appellant raised six grounds of appeal which contended that the trial judge erred in law and in fact in: (i) finding that the correct method of calculation of a sentence involved the conversion of a sentence expressed in years into a period of days, rather than calendar months; (ii) failing to interpret the order of sentence of the Circuit Court in a correct manner by failing to give due regard and weight to relevant matters including the appellant’s constitutional right to liberty, the lack of statutory basis for the method of calculation of release dates adopted by the respondent, the Governor of Wheatfield Prison, the relevant provisions of the Interpretation Act 2005 and relevant caselaw; and (iii) not finding that, where two valid methods of calculation of sentences exist, the method of calculation which resulted in the least term of imprisonment in a given case should be adopted in that case by the respondent. The respondent opposed the appeal in its entirety.
Held by Whelan J that the appellant had not identified any basis for the proposition that the calculation of remission should be placed on a statutory footing. Whelan J found that to recalibrate a sentence imposed in terms of years to one given in terms of calendar months rather than days for the purpose of the calculation of standard remission would introduce an unjustified element of ambiguity and generate unwarranted anomalies and inconsistencies since, unlike days, “calendar months”, though all are accorded the like unitary descriptor, have been throughout history of varying, contested and irregular duration. Whelan J found that the method of calculation of the appellant’s standard remission was correct; it reflected not only the precise terms of the sentencing order, but also the precise length in years of which the sentence was comprised. Whelan J held that the appellant’s detention was lawful for the period in dispute, namely the 24-hour period between midnight 17 May 2019 and midnight 18 May 2019, and the trial judge was correct in so determining.
Whelan J held that the appeal would be dismissed.
Appeal dismissed.
Judgment of the Court delivered by Ms. Justice Máire Whelan on the 8th day of December 2020
On 17 May 2019, the High Court (Noonan J.), in an ex tempore judgment, declined to order the release of the appellant on foot of an enquiry pursuant to Article 40 of the Constitution. The appellant has appealed that decision and that appeal has come before this court. It comes before the court in circumstances where he has long since been released from custody. Indeed, when Noonan J. dealt with the enquiry on 17 May 2019, he was dealing with it in circumstances where the contention on behalf of the appellant was that, at midnight 17 May 2019, he had completed serving a sentence of imprisonment. The argument on behalf of the respondent prison governor, seeking to justify the detention, was that the prison sentence in question had not yet expired and would not expire until midnight 18 May 2019 i.e. some hours later.
The background to the case is to be found in the fact that on 24 February 2017, the appellant was sentenced to a term of three years imprisonment in respect of an offence of endangerment contrary to s. 13 of the Non-Fatal Offences Against the Person Act 1997. The sentence was to date from 17 February 2017. It was not in dispute between the parties that this was a sentence to which standard remission of one-quarter applied i.e. there was no suggestion that it was a case where enhanced remission was applicable, nor, on the other side of the coin, was there any suggestion that it was a case where any remission had been forfeited. Thus, the disagreement between the parties distilled down to a disagreement about how remission should be calculated, and in practical terms, that was a disagreement as to whether, when remission was applied, the sentence was served at midnight on 17 May 2019 or at midnight on 18 May 2019.
Both in the trial court and in this court, counsel on behalf of the appellant was at pains to point out that the application came about as a result of concerns over how it was that the media had made references to the appellant's pending release date. Counsel on behalf of the appellant was anxious to avoid any suggestion that the application for an order under Article 40 might be seen as a disproportionate response to a disagreement about how remission was calculated which had limited practical effect.
The explanation as to how the parties find themselves in disagreement about the lawfulness of the detention for a 24-hour period arises in circumstances where the practice of the Irish Prison Service in calculating release dates on the basis of standard remission is to first of all express the sentence in terms of a total number of days, divide that figure by four and multiply by three. When, as a result of this exercise, a fraction of a day results, the practice of the Prison Service is to round this number down.
The application of this mathematical exercise in the present case means that the sentence imposed by the court, without regard to remission, was 1,095 days, and the sentence, having regard to standard remission, was one of 821.25 days, rounded down to 821 days. The appellant, on the other hand, takes issue with the approach of the Irish Prison Service, positing that the appropriate and more correct way to calculate remission, and therefore the sentence required to be served, is to express the sentence in terms of months. On that basis, the sentence imposed was one of 36 months, giving rise to an entitlement of 9 months remission and a net sentence of 27 months to be served which would see the sentence served on 17 May 2019.
The trial judge heard evidence from Ms. Aisling Heaney, an executive officer in Wheatfield Prison responsible for calculating release dates. She confirmed that the method of calculation in a case such as this where standard remission applies involves converting a sentence into a number of days (taking a year to be 365 days), then dividing that by four and multiplying by three. She informed the court that this calculation is done initially on a computer system and then is checked manually. She confirmed that this was done by convention across the prison services.
In an ex tempore judgment delivered on 17 May 2019, the day of the appellant's Article 40 application, the trial judge held that the detention of the appellant was lawful. The trial judge noted that it was not in dispute that it was the convention of the Irish Prison Service to calculate release dates based on standard remission by converting a sentence to days, applying the relevant percentage of remission to that and then proceed to round down to the nearest full day. On that calculation, the appellant was due to be released at midnight following the hearing.
The trial judge further noted that this convention was acknowledged in Dumbrell v. Governor of St. Patrick's Institution [2006] IEHC 9, [2006] 4 I.R. 268. However, it appeared that the appropriate method of calculating release dates was not argued or contested in that case so it was of little assistance to the trial judge.
The trial judge accepted that the correct question to be posed in this case is what is 75% of 3 years; the obvious answer being 2.25 years. He held that the only logical way to calculate 2.25 years was by reference to days. He considered that the approach of the Irish Prison Service was likely adopted because doing so by reference to calendar months, as proposed by the appellant, could potentially give rise to anomalies where sentences expressed in equal terms of years could result in different periods of detention depending on the time of year they were imposed.
The trial judge held that the manner in which the sentence was both expressed and calculated in terms of remission could only lead to the conclusion that the calculation method would be in terms of days. Thus, the appellant's detention was lawful in all the circumstances.
In his notice of appeal, the appellant raised six grounds of appeal which, in summary, contended that the trial judge erred in law and in fact in:
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i. finding that the correct method of calculation of a sentence involved the conversion of a sentence expressed in years into a period of days, rather than calendar months;
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ii. failing to interpret the order of sentence of the Circuit Court in a correct manner by failing to give due regard and weight to relevant matters including the appellant's constitutional right to liberty, the lack of statutory basis for the method of calculation of release dates adopted by the respondent, the relevant provisions of the Interpretation Act 2005 and relevant caselaw; and,
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iii. not finding that, where two valid methods of calculation of sentences exist, the method of calculation which resulted in the least term of imprisonment in a given case should be adopted in that case by...
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