Report on Mandatory Sentences - Law Reform Commission

the Prison Rules 2007. 5 This mechanism provides that all prisoners, excluding prisoners serving life
sentences, 6 are entitled to earn remission of up to one fourth of their sentences for good behaviour 7 or up
to one third of the sentence by engaging in authorised structured activity, such as training or counselling. 8
The effect of standard remission is to cause this portion of the sentence to expire. 9
3.05 As standard remission is not available to prisoners serving mandatory life sentences, it is thus
necessary to consider the two other mechanisms by which the Executive may grant early release. The
first mechanism (which, in practice, is rarely used) is the power to grant “special remission”. This power
is vested in the Executive by Article 13.6 of the Constitution and section 23 of the Criminal Justice Act
1951, as amended. 10 The power to grant special remission (which has been described as the modern
equivalent of the royal prerogative of mercy 11 ) is the power to commute or remit any sentence. Special
remission may be granted at any time at the discretion of the Executive and prisoners have no legal
entitlement to it. 12 The effect of special remission is that the offender is no longer subject to punishment
for the offence in respect of which he or she was serving the sentence. 13
3.06 The second (most frequently used) mechanism is the power to grant “temporary release”. This
power is vested in the Executive by section 2 of the Criminal Justice Act 1960, as amended. 14 The power
to grant temporary release, which is broadly equivalent to parole regimes in other jurisdictions, is a
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The Prison Rules 2007 (SI No. 252 of 2007), made under the Prisons Act 2007, revoked and replaced the
Rules for the Government of Prisons 1947 (SR&O No.320 of 1947).
Rule 59(3) of the Prison Rules 2007 provides that prisoners serving life sentences are not entitled to this
“standard remission.” The exclusion also applies to prisoners committed to prison for contempt of court.
Rule 59(1) of the Prison Rules 2007 provides that a prisoner who has been sentenced to (a) a term of
imprisonment exceeding one month or (b) terms of imprisonment to be served consecutively the aggregate of
which exceeds one month shall be eligible, by good conduct, to earn a remission of sentence not exceeding
one quarter of such term or aggregate.
Rule 59(2) of the Prison Rules 2007 provides that the Minister for Justice and Equality may grant remission of
up to one third of a sentence “where a prisoner has shown further good conduct by engaging in authorised
structured activity and the Minister is satisfied that, as a result, the prisoner is less likely to re-offend and will
be better able to reintegrate into the community.”
O’Malley “The Ends of Sentence: Imprisonment and Early Release Decisions in Ireland in Padfield, van Zyl
Smith and Dunkel, eds, Release from Prison: European Policy and Practice (Willan Publishing, 2010) at 14.
Section 23(1) of the Criminal Justice Act 1951 as enacted provided that “except in capital cases” the
Government may commute or remit, in whole or in part, any punishment imposed by a Court exercising
criminal jurisdiction, subject to such conditions as they may think proper. Section 9 of the Criminal Justice Act
1990 deleted the words “except in capital cases” as part of the abolition of the death penalty. The effect of this
was that the Government’s right to commute or remit a prisoner’s sentence applies to any type of case.
O’Malley “The Ends of Sentence: Imprisonment and Early Release Decisions in Ireland” in Padfield, van Zyl
Smith and Dunkel, eds, Release from Prison: European Policy and Practice (Willan Publishing, 2010) at 3.
Ibid at 8.
Re Royal Prerogative of Mercy upon Deportation Proceedings [1933] SCR 269 and R v Veregin [1933] 2 DLR
362; and O’Malley “The Ends of Sentence: Imprisonment and Early Release Decisions in Ireland” in Padfield,
van Zyl Smith and Dunkel, eds, Release from Prison: European Policy and Practice (Willan Publishing, 2010)
at 5 and 8.
Section 2 of the Criminal Justice Act 1960, as substituted by section 1 of the Criminal Justice (Temporary
Release of Prisoners) Act 2003, provides that the Minister for Justice and Equality may make rules providing
for the temporary release, subject to such conditions (if any) as may be imposed in each particular case, of
persons serving a sentence of penal servitude or imprisonment, or of detention in Saint Patrick’s Institution,
and (as amended by the 2003 Act) sets out the matters which the Minister should consider before granting
temporary release. (Section 2 of the 1960 Act was also amended by section 110 of the Criminal Justice Act
2006 but the terms of this amendment are not relevant to this <strong>Report</strong>).
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