BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

1. The said Motions came on for hearing before me on Monday the 13th day of November 2000 and, in the light of the contents of the several Affidavits to which I was referred, I came to the following conclusions with regard to the facts of this case, namely;

2. Following the above events, it was submitted on behalf of the Applicant that the Respondent had had no contact with the authorities and, in particular, had made no effort to return to prison and that, therefore, he had failed to comply with the conditions of bail imposed by the said Order of the 8th of April 1998.

3. The facts of the case to which I have referred are, essentially, facts which are deposed to in an Affidavit of Derek O’Neill, a Legal Assistant in the Office of the Chief State Solicitor, sworn on the 16th day of October 2000 and, while I am satisfied that they are true; insofar as they go, they do not appear to me to paint a full picture with regard to the case. In that regard, in an Affidavit sworn herein on the 7th day of November 2000 the Respondent deposes to the following additional facts, which have not been challenged by the Director of Public Prosecutions, namely;

4. While there are a number of reliefs sought by the Applicant in his Notice of Motion herein of the 10th day of October 2000, it seems to me that the essential relief being sought is that the Respondent be returned to prison to complete the balance of the three year sentence of penal servitude imposed upon him on the 23rd day of April 1997. In this regard, it is of very great significance that penal servitude, as a form of punishment, no longer exists; it having being abolished by the provisions of the Criminal Law Act 1997 which came into effect in this Country on the 22nd day of July 1997. However, it did exist as a form of punishment in April 1997 when the Respondent was sentenced as aforesaid and it is a specific form of custodial sentence which was established by the Penal Servitude Act 1891 . One of the features of penal servitude is that, once commenced, it continued to run without cessation. As O’Briaim J. said in the course of a judgment which he delivered a case of The State (Patrick Woods) -v- the Governor of Portlaoise Prison (108ILTR at page 57)

5. And this was so notwithstanding the release of a prisoner during the currency of a term of penal servitude which had been imposed upon him. In this regard, in the case of The State (Langan) -v- Denis Donohue (1974I.R. at page 251), a case in which the facts were fairly similar to those in this case, a prisoner having being admitted to bail during the currency of a term of penal servitude, and the Supreme Court held that the prisoner’s detention was no longer authorised after that term had expired.

6. In addition to the forgoing, I was referred to a decision of the Supreme Court given in a case entitled Application of Michael Woods (1970I.R. page 154) in which, in the course of his Judgment at page 162, the Chief Justice, O’Dalaigh CJ said:-

7. However, given that that case was heard and determined before the Judgment of the Supreme Court in The State (Langan) -v- Donohue hereinbefore referred to, I am satisfied that it has no relevance in the context of this case notwithstanding the submission of the Applicant that the provisions of the Criminal Law Act 1997 give legislative effect to that statement of the former Chief Justice.

8. In my view, the implications of the Judgment of the Court in The State (Langan) -v- Donohue , insofar as it circumscribes this features of penal servitude, cannot be ignored despite what Chief Justice O’Dalaigh said in the case of Michael Woods. That as it may be, it is submitted on behalf of the Applicant that the situation changed following the passing of the Criminal Law Act of 1997 given that by Section 11 (1) of that Act ,penal servitude was abolished and by Section 11 (5) of the Act it is provided that

9. In the light of those provisions and given that the Respondent was being detained at Limerick Prison at the commencement of that Act, it is the submission of the Applicant that the Respondent must be treated as if he had been sentenced to a term of imprisonment and there is no rule of law that a sentence of imprisonment continues to run without cessation. Accordingly, as he has not yet completed the service of three years imprisonment since he was sentenced on the 23rd day of April 1997, the Applicant argues that it is incumbent upon the Court to direct that the Respondent be returned to prison to complete the balance of that sentence.

10. While, on a literal translation of the provisions of Section 11(5) of the Criminal Law Act 1997 , there would appear to be substance to the Applicant’s arguments, it seems to me that that Section must be construed in the light of the provisions of Section 21 of the Interpretation Act 1937 which provides (inter alia) that, where an Act repeals the whole or a portion of a previous statute then unless the contrary intention appears , such repeal shall not affect any punishment incurred in respect of any offence against or contravention of the statute or portion of a statute so repealed which was committed before such repeal. In my view, while the Criminal Law Act 1997 abolishes the punishment of penal servitude, nowhere in the Act is there an expression of an intention that, following the passing of the Act, the features of the punishment of penal servitude which obtained before the passing of the Act would no longer apply to a sentence of penal servitude imposed before the passing of the Act and neither do I think that any such intention can be implied. In this regard, I was referred by Counsel for the Applicant to decisions of the High Court given in the cases of Quinlivan -v- The Governor of Portlaoise Prison and Others (1998 2 I.R. at page 113) and Mullins -v- Hartnett and Others (1998 4 I.R. at page 426) which related to prosecutions in respect of alleged offences which had been commenced prior to the passing of the Non Fatal Offences Against The Person Act 1997 which, in fact, abolished those offences. However, in my view, the decisions in those cases are not relevant to this case because those cases were concerned with offences whereas this case is concerned with the nature of punishment. In any event, in my view, it is clear that it was the intention of the framers of the Criminal Law Act 1997 to rationalise custodial sentences in accordance with modern thinking rather than to exact additional punishment from persons in receipt of sentences of penal servitude imposed prior to the passing of the Act which seems to me would be the effect of interpreting the provisions of the Criminal Law Act 1997 as Counsel for the Applicant has suggested that I should interpret it. In this regard, it seems to me that, before the passing of the Criminal Law Act 1997 , the Respondent had the legitimate expectation that the sentence of penal servitude imposed upon him on the 23rd day of April 1997 would expire on the 23rd day of April 2000 and, unless a contrary intention was expressed or was implicit in the provisions of the said Act of 1997, which, as I have indicated, I do not think is the case, then, by virtue of the provisions of Section 21 of the Interpretation Act 1937 that legitimate expectation cannot be taken from him.

11. Having regard to the foregoing, I refuse the reliefs sought by the Applicant in his Notice of Motion herein dated the 10th of October 2000 and I declare that the sentence of three years penal servitude imposed upon the Respondent on the 23rd day of April 1997 has now been fully served by the Respondent. In this regard, for the sake of completeness, I declare that Section 11 of the Criminal Law Act 1997 does not have the effect of retrospectively altering the nature and condition of a sentence of penal servitude imposed prior to the passing of that Act; one of the essential features of which is that, once commenced, it continues to run without cessation irrespective of whether or not the recipient is actually under restraint.

12. In addition to the foregoing, lest there be any doubt about the matter, I declare that the Respondent did not breach the terms of the Order dated the 8th day of April 1998 by which he was admitted to bail and that, therefore, the sum of £5,000.00 lodged in Court as a condition of his bail should not be estreated or forfeited. In this regard, it seems to me that, far from breaching the terms of his bail, the Respondent is to be commended for voluntarily attempting to surrender himself to the prison authority in Limerick and the State are open to criticism for their failure to take him into custody at that time, for their delay in seeking to enforce the terms of the said Order of the 8th day of April 1998 whereby the Respondent was admitted to bail and for the fact that, notwithstanding that they voluntarily returned the sum of £5,000.00 which had been lodged in Court as a condition of the Respondents admission to bail, together with accrued interest on that sum, they then sought to estreat or forfeit same.