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And
“Provision may be made by prison rules for enabling the prisoner sentenced to
imprisonment, whether by one sentence or cumulative sentences, for a period
prescribed bythe rules, to earn byspecial industryand good conduct a remission of
a portion of his imprisonment and on his discharge his sentence shall be deemed to
have expired”. Section 1 Prisons (Ireland) Act, 1907.
Rule 38(1) of the Rules for the Government of Prisons, 1947 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 servedone month.”
But a certain difficultypresented in the case of Michael O’Brien –v- Governor of Limerick
Prison [1997] 2ILRM where the prisoner on a part-suspended sentence claimed to be
entitled to remission of sentence of 1 year, having served 3 years of the initial custodial
sentence of 4 years which was then to be suspended for the remaining six years. The
appellant to the Supreme Court had been sentenced to ten years imprisonment but the
sentencing court had ordered that the latter six years of the sentence were conditionally
suspended. It should be noted that the entire sentence was given at the one sitting of the
court. In the High Court, in an application for an Order under Article 40 of the
Constitution of Ireland 1937, the applicant challenged the lawfulness of his detention by
the respondent on the grounds that he was entitled to be released pursuant to Section 1 of
the Prison (Ireland) Act, 1907 and the Rules for the Government of Prisons, 1947 Rule 38
(1). The applicant had served in excess of three years out of four years imprisonment as
originallyordered bythe sentencing court. The applicant claimed ceteris paribus, that he was
entitled to one quarter remission for good behaviour. The High Court upheld his
detention on the basis that the original intention of the sentencing Judge was that he
should serve a minimum of four years in custody. On appeal, the Supreme Court,
holding in favour of the appellant, agreed that it was the intention of the sentencing judge
that the prisoner should serve a minimum of four years in custody, but notwithstanding
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