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ehaviour was clearly settled in the O’Brien case and this was not adversely affected by
subsequent changes in either primary or secondary legislation relating to prisons (Prisons
Act 2007 and Prison Rules 2007, Rule 59, S.I. 252 of 2007). Section 99(19) Criminal
Justice Act 2006 states that the operation of Section 99, which includes the power to make
a part suspended sentence, shall not affect the operation inter alia of Regulation 38 of the
Rules for the Government of Prisons 1947. Notwithstanding the legislative attempt to
protect the entitlement to remission under Regulation 38 (nowreplaced by Rule 59 Prison
Rules 2007), a clear difficulty presents in calculating the “sentence” which is to be subject
to remission. On the facts presented in the O’Briencase, was the Executive to calculate the
“sentence” as the custodial part of the sentence of four years or for the full period of ten
years which would have encapsulated the entire sentence? In the event, the Supreme
Court granted habeas corpus on the basis that the prisoner was in illegal custody having
earned entitlement to release for good behaviour after three years. The Supreme Court
adoptedthe former viewin respect of the issue of remission.
The difficulties presented in the O’Brien case look set to endure into the statutory
arrangement for part suspended sentences. This problem could have been addressed if
provision had been made in the Criminal Justice Act 2006 or in secondary legislation to
amend the effect of Rule 38 of the rules for the Government of Prisons 1947 to allowfor
the separate and discrete calculation of remission for the prisoner serving a part suspended
sentence where the prisoner, having served his/her initial sentence is again committed to
prison upon breach. 170
The case of Michael O’Brien – v – the Governor of Limerick Prison [1997] 2 ILRM p.349,
presented two inextricably linked issues only one of which has been addressed in statutory
provisions. It is argued that without statutory or regulatory amendment, the future
operation of the statutorypart suspended sentence under Section 99 mayremain uncertain.
The precise difficultywhich presented in the O Briencase was not adverted to byanyof the
judges interviewed. The judges who make use of the part suspended sentence are almost
exclusively in the Circuit and Central Criminal Courts. They believed that the suspended
170 Section 99 (19) of the Criminal Justice Act 2006 provides:
“This section shall not affect the operation of (a) Section 2 of the Criminal Justice Act 1960 (relating to temporary release) or Rule 38 of the
rules for the Government of Prisons 1948 (S.R.S. andO.320/1947).
386