A packed Court 46 at the Dublin District Court was treated to an unusual sight yesterday - a prison governor in the dock. Mr John Lonergan, governor of Mountjoy Prison, had been called to the court to explain why a prisoner had not been produced for a hearing on Monday.
Judge Gerard Haughton wanted the governor to account for the release of Elaine Driscoll (22), sentenced last April to 11 months in prison for theft.
The governor explained that it was not he, but the Minister for Justice, who had the power to release a prisoner.
Describing the "chronic" overcrowding at Mountjoy - and particularly at the women's prison - he said the prison could not be run at all if some prisoners were not released to make room for new committals.
After a brief exchange, the judge said he was referring the matter to the High Court for consideration.
The issue has arisen due to a relatively new procedure adopted by judges, the ordering of a "review date" for a prisoner's sentence.
In theory, a prisoner sentenced to 11 months in jail will receive a standard 25 per cent remission, allowing for release after about 8 1/2 months. In practice, the overcrowding - more pronounced in Mountjoy than anywhere else in the prison system - means "temporary" or "early release" happens much earlier.
Every day the governor, like other governors in charge of full jails, compiles a list of prisoners who might be released early to make room for others.
The list is forwarded to the Department of Justice and releases are authorised by the Minister for Justice.
The insertion of a "review date" by judges gives them the opportunity to reconsider a prisoner's progress, and holds out to prisoners the hope that the remainder of a sentence might be suspended.
Typically, a judge might sentence a prisoner to five years but with a review by the court after two. The judge then expects the prisoner to be brought before the court in two years.
Some judges have apparently regarded a "review date" as a safeguard against early release, and as the numbers of prisoners leaving the jails early has grown, so too has the practice of ordering a review in mid-sentence.
The issue now to be considered by the High Court is the legal standing of this "review date", and whether anyone other than the Minister has power over a prisoners' release, once they have been convicted and sentenced by the court (the court clearly has power over prisoners who are on remand, awaiting trial).
The Department is expected to argue that the Minister is the only authority with power over a convicted prisoner. The courts, according to this argument, have no further function with the prisoners once they have been handed over to the prison service.
However, the High Court will also have to consider whether temporary release, as currently practised, is so corrosive of the District Court's authority as to "make a nonsense", as Judge Haughton put it, of the court's orders.
The Department of Justice spokesman said yesterday he could not comment on the particular case. However, the central issue was overcrowding and an "unprecedented building programme" would add 660 spaces to the system by this time next year.