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this, it was necessary that the same sentence should not usurp the statutory provisions
relating to the granting of remission of sentence. In this regard, the statutory provisions
must prevail. O’Flaherty J., with whom the other members of the court concurred,
havingexaminedthe statutoryprovision and regulations stated:
“… this clearly contemplates that the period of imprisonment should be identical
with the periodof the sentence. Likewise, the Rules for the Government of Prisons,
1947 contemplate that the period of the sentence should be identical with the
period of imprisonment. … [t]he real question is whether a sentence in this form,
can properly be reconciled with the provisions of the Prisons (Ireland) Act, 1907
and the Rules for the Government of Prisons, 1947. In the opinion of this Court
such a sentence cannot be reconciled with the Act and with the Rules and should
not therefore be imposed.” O’Flaherty J., O’Brien –v- Governor of Limerick
Prison [1997] 2 ILRM 356
Mr. O’Brien, the prisoner, was accordingly released. It was held that the discharge of the
prisoner with a period of imprisonment suspended over him was not congruent with the
legislation and the sentence was at an end. The O’Brien case raised two issues which
emerged from an interpretation of Section 1(1) of The Prisons (Ireland) Act 1907. Firstly,
was the prisoner entitled to remission of one quarter as provided in the prison rules and
under the statute and secondly what did the phrase “on discharge of a prisoner his
sentence shall be deemed to have expired” mean? The Supreme Court had no difficulty in
recognising the prisoner’s entitlement to remission of one quarter of the sentence for good
behaviour. Moreover the court also clearly indicated that a sentence which was not
discharged upon the release of the prisoner was inconsistent with the statutory provision
and should not have been made as it would endure as a suspended sentence. Thus the part
suspended sentence under O’Brien was cast in doubt. The court even went so far as to
recommend a reviewable sentence instead of the part suspended sentence to avoid clashing
with the statutoryprovisions of Section 1 (1). 144
Whether by coincidence or otherwise, the difficulty presented for the part suspended
sentence under Section 1 of The Prisons (Ireland) Act 1907 was short-lived. A mere 19
days later the entire section was repealed by Section 23 of the Criminal Justice
144 However, this was before the same court gave its views, albeit obiter, in Finn which deprecatedthe further use of the reviewable sentence.
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