The State (Beirnes) v The Governor of the Curragh Military Detention Barracks

• Jurisdiction: Ireland
• Judge: Miss Justice Carroll
• Judgment Date: 23 February 1982
• Neutral Citation: 1982 WJSC-HC 1689
• Docket Number: No. 334/1981
• Court: High Court
• Date: 23 February 1982

1982 WJSC-HC 1689

THE HIGH COURT

No. 334/1981

STATE (BEIRNES) v. GOV.CURRAGH MILITARY DETENTION BARRACKS

THE STATE AT THE PROSECUTION OF PATRICK BEIRNES

AND

THE GOVERNOR OF THE CURRAGH MILITARY DETENTIONBARRACKS

1 Judgment of Miss Justice Carrolldelivered the 23rd day of February 1982.

2 Patrick Beirnes, the prosecutor in this application, pleaded guilty to certain offences not relevant to the issue in this case and was sentenced by the Special Criminal Court on the 1st.March, 1977. The relevant part of the Order of the Court is as follows:

"THE COURT having heard the evidence tendered and the submissions of the respective parties DOTH ORDER that in respect of the offences upon which Patrick Beirnes stands convicted he be imprisoned for a period of 10 years on each of counts 1 and 2 the said sentences to be concurrent and to date from the 1st March, 1977, the final four years of such sentences suspended on th(c) conditions that he be of good behaviour towards all the people of Ireland and does notconsort with known criminals and further that he will come up at any time within the said 10 years to serve the said final 4 years of the said sentence of the Court this day imposed upon him if called upon to do so"

3 The prosecutor was transferred to military custody and the warrant authorising his detention was addressed to the Governor of Military Detention Barracks, The Curragh, Co. Kildare. The sentence endorsed on the warrant conformed to the Order of the Special Criminal Court.

4 The prison regulations applicable to military custody are contained in the Prisons Act 1972(Military Custody) Regulations 1972 (S.I. No. 138 of 1972).These regulations are made under Section 2 (9) of the Prisons Act 1972which provides:-

"The Minister for Defence shall make regulations in relation to the places and the manner generally in which persons in military custody pursuant to this section shall be kept in custody and such regulations shall correspond to the rules for the time being In force under the Prisons Acts, 1926 to 1970, governing the treatment, employment and control ofpersons in prison"

5 It is provided by Regulation 35 (1) of the Military Custody regulations 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 a prisoner being discharged before he has served onemonth"

6 On the 2nd March, 1977 the prosecutor was informed (inter alia) by the Governor of the Military Detention Barracks of this regulation and was told that it applied to his term of imprisonment.

7 During the period from the 1st March, 1977 to the 25th November, 1981 the prosecutor both earned and lost remission of sentence. If the remission earned which was not lost related to the six year custodial sentence, he was entitled to be released on the 25th November,1981.

8 In May of 1981 he was first informed that he would not get any remission on his six years imprisonment. It appears that the Department of Justice had decided that any remission earned would only be applicable to the suspended sentence of four years if. the prosecutor was called on to serve it. In a lengthy affidavit the prosecutor sets out the history of communications between him and, the Governor, the Department of Defence and the prison visiting committee.

9 The prosecutor seeks relief on two grounds:-

10 1. That he has earned remission in accordance with the regulations on his six year custodial sentence and was entitled to be released on the 25th November, 1981 and

11 2. That the State is estopped from claiming that remission earned is not applicable to the six year custodial sentence by reason...