Remission of prison sentences in Ireland is a matter of intense scrutiny and consideration this week, given the imminent release of Larry Murphy who had been convicted of violent rape and sentenced to 15 years imprisonment, one year of which was suspended. In this short post I want to just highlight the basis for statutory remission of this kind in Ireland.

Remission of sentences can be traced back to s.38(1) of the Rules for the Government of Prisons 1947, which 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 served one month.

The 1947 Rules have now been revoked and replaced by the Prison Rules 2007 (S.I. No. 252 of 2007), which provide that a prisoner who was entitled to remission under the 1947 rules would be entitled to similar remission under the new rules (Rule 121(1), 2007). In the case of O’Brien v Governor of Limerick Prison [1997] 2 I.L.R.M. 349 it was held that where some of a sentence has been suspended, the remission period is calculated as per the period of time to be served.

Although the terms of the relevant rules seem to provide that remission will only be given on the basis of “industry and good conduct” and suggest that, while the period of remission can not “exceed[] one-fourth of the whole sentence” it could be less than that 25%, there seems to be a practice of providing 25% remission almost as a matter of course and without particular consideration of the extent to which the individual may pose a danger to the community upon release.

While remission as a general principle seems to be a reasonable policy as it can incentivise and reward good behaviour in incarceration, the difficulty this case highlights is with the idea of remission as an entitlement rather than as discretion. Although there is some discretion here (in terms of deciding on whether someone has displayed industry and good conduct in prison, and determining whether there was a disciplinary incident that justified reducing that remission) there is a perception in law and in society of remission as a right. This is undoubtedly tied to the statutory provisions of the Prisons Act 1997 and the 1997 Rules. Whether one case offers a sufficient argument for changing this policy is disputable, no matter how grave the concerns raised by this case may be; however there can be little question that it offers the occasion for a reconsideration of the policy and an interrogation of whether it strikes the correct balance between the rights of the incarcerated person, the needs and limited resources of the prison system, the objectives of Irish sentencing policy, and the rights of the community at large

Update: On Morning Ireland this morning (11 August 2010) the Minister for Justice and Law Reform, Dermot Ahern, noted that the idea of the remission is to ensure that there would be no breaches of prison discipline and reiterated that judges are fully aware of this remission when they are imposing sentences. He reiterated that as Minister for Justice he has no capacity to remove the remission entitlement in this case, but noted that there is potential for full post-release follow up to ensure that people are properly rehabilitated post release. He also noted that cases such as this are ones that every democratic society deals with, that there are no easy solutions, and that how we deal with them must be carefully thought out if rehabilitation is to remain a goal.

Update2: On this morning’s Morning Ireland (12 August 2010) barrister (and my colleague in UCD) Paul Anthony McDermott traced the development of this law from the idea of a discretionary remission to be earned (as intended by the Oireachtas) to an entitlement to this remission. He expressed the view that, while there is no documented reason for this development, he suspected that the motivation for this developing into an entitlement is an economic one, motivated by the cost of incarceration and the lack of prison spaces. He also noted that had Larry Murphy been given a life sentence (which was available to the Court), early release would be at the discretion of the Minister for Justice and Equality under licence at which point one is always under risk of being reincarcerated if necessary in the future. He further noted that there is in fact very little money within the system for the rehabilitation of sex offenders so that if every sex offender elected for rehabilitative courses and services the system “would collapse”.

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Written by Fiona de Londras

Fiona de Londras is a Professor of Law in Durham University. Her third book, Detention in the War on Terrorism: Can Human Rights Fight Back?, was published by Cambridge University Press in 2011. She specialises in terrorism and counter-terrorism, human rights protection in Ireland and more generally, and international criminal law. You can contact Fiona at fiona.de-londras[@]durham.ac.uk