Court of Appeal: Prison Service’s calculation of remission time correct



Andrew McKeown BL
Andrew McKeown BL

The Court of Appeal has rejected a man’s argument that he was imprisoned for 24 hours longer than permitted.

Upholding Mr Justice Seamus Noonan’s decision in the High Court, Ms Justice Máire Whelan said that the calculation of the term of his imprisonment was correct.

Background

In February 2017, Cornelius Price was sentenced to a term of three years’ imprisonment for endangerment contrary to the Non-Fatal Offences Against the Person Act 1997 s.13. The sentence was to date from 17 February 2017. The standard remission of one-quarter applied. Disagreement arose about how remission should be calculated, and in practical terms, that was a disagreement as to whether, when remission was applied, the sentence was served at midnight on 17 May or at midnight on 18 May. The sentence imposed by the court, without regard to remission, was 1,095 days, and the sentence, having regard to standard remission, was one of 821.25 days, rounded down to 821 days.

In May 2019, the High Court held an Article 40 enquiry. Mr Price contended that, at midnight 17 May 2019, he had completed serving his sentence of imprisonment. The Governor of Wheatfield Prison (the Governor) argued that his prison sentence had not yet expired and would not expire until midnight 18 May 2019. The High Court refused to order his release. Mr Price appealed.

Court of Appeal

Mr Price argued that the High Court judge had erred in law and fact in finding that the correct method of calculation involved the conversion of a sentence expressed in years into a period of days, rather than calendar months. He argued that the judge had failed to give due regard to his constitutional right to liberty, and the lack of a statutory basis for the method of calculation adopted by the Governor.

Mr Price argued that where there were two bases for calculating 75 per cent of the sentence imposed, the method of calculation which resulted in the least term of imprisonment in a given case should have been adopted. He relied on Dundon v Governor of Cloverhill Prison [2006] 1 IR 518, where the Supreme Court held that “where there is an ambiguity in legislation as to whether the Oireachtas intended, in a given instance, detention or freedom, there is a prima facie presumption in favour of an interpretation involving freedom”.

O’Malley on Sentencing Law and Practice observes that the Constitution vests in the President the power to commute or remit any punishment. It permits that power to be conferred by law on other authorities (being conferred on the Government, which in turn may delegate it to the Minister for Justice as per the Criminal Justice Act 1951 s.23 (as amended by the Criminal Justice (Miscellaneous Provisions) Act 1997 s.17). This framework was recently reiterated by Ms Justice Iseult O’Malley in M v Parole Board [2020] IESC 24.

Ms Justice Whelan referred to a 2019 article by Gemma McLoughlin-Burke BL, “Automatic Remission in Ireland: Time for Reconsideration?”, where the learned author pointed out that the automatic nature of remission arising from the 2007 Act is possibly illustrated most clearly by the Prisons Act 2007 s.13(1), which provides that prisoners who directly breach prison rules may be punished by a forfeiture of a maximum of fourteen days’ remission. The decision may be made by the Governor, and decisions may be appealed to an independent appeals board.

The judge noted that it is “imperative in the context of the exercise of a prisoner’s rights that the principles of fairness and equity are accorded pre-eminent importance to foster harmony and minimise disaffection. To command the respect of the prison population and avoid engendering grievances based on anomalies, it is imperative that the approach to be adopted in the accurate calculation of one quarter remission is transparent, neutral and provides a universality of outcome. For the individual in detention it is imperative that at the point when they commence to serve a sentence imposed for a term of years they can ascertain with confidence the end point of that sentence based on their general entitlement to standard remission.”

The judge said that it was important that the means of calculating the standard remission rate operates equitably “so as to minimise anomalies or ambiguities so that each prisoner can expect to serve a sentence of like duration with any other offender the subject of an identical sentence of imprisonment in terms of years irrespective of the date or month of the year in which the sentence commences”.

While the judge noted that Mr Price had correctly argued that the Interpretation Act 2005 s.18(h) provides for the general rules of construction on periods of time, the calculation methodology utilised by the prison was “commendably straightforward, logical and clear”. The warrant and judge’s order were first checked, with the number of days in the sentence calculated, being three years. That resulted (none being a leap year) in a total number of days of 1,095. They then divided the number of days by four and multiplied by three (rounding down), which in effect identified the release date having discounted the one quarter Rule 59(1) remission. The court noted that the general judicial recognition of the approach to remission is found implicitly in Dumbrell v Governor of St Patrick’s Institution, Harris v Delahunt [2008] IEHC 152 and Leonard v Governor of Wheatfield Prison [2009] IEHC 336.

The court said that it is not in the public interest to encourage calculations that are anomalous. “To do so in the context of remission, where individuals are in detention and where the calculation of a release date is an important consideration in their overall expectation, risks engendering a sense of grievance. It could give rise to an impression of unfairness or caprice.” The judge said the calculation was equitable as between like-sentenced prisoners.

Mr Price failed to identify any basis for the proposition that the calculation of remission should be placed on a statutory footing. The Governor relied on Dundon, where the court held that “…just because some particular aspect is not expressly spelled out in an Act does not necessarily mean that there is an ambiguity as far as interpretation is concerned.”

Conclusion

The court found that Mr Price’s argument, that remission in cases where a sentence of years of imprisonment is imposed should be measured in months, would produces inevitable anomalies, resulting in variations as between prisoners who are the subject of identical terms of imprisonment. The decision of the High Court was upheld.

© Irish Legal News Ltd 2021



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