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formal imposition of a custodial sentence notwithstanding any possible informal intent of
the sentencing judge. Thus, the two sanctions occupy a unique relationship with the
sentence of imprisonment.
As noted previously, the formal relationship between a custodial sentence and the
community service order may not have been observed with consistency even in a
jurisdiction which prohibits the use of community service unless a custodial sentence is
specificallycontemplated. While the making of a community service order is regulated by
clear statutory provisions, the suspended sentence in Ireland emerged from less well
defined parameters as a judge-made disposition in the early twentieth century. It will be
shown how the development of the suspended sentence continued throughout the
twentieth century in Irish sentencing and proved quite adaptable as a procedure in
changingcircumstances andtimes.
This chapter sets out to explore the emergence of the suspended sentence in Irish
sentencing practice. As the disposition is historicallya judge-made sanction in Ireland, it is
useful to explore the sanction against the backdrop of the use of suspended sentences in
other jurisdictions to understand more fully the unique characteristics of the penalty as it
developed and is applied in this jurisdiction. By applying this method one may ask the
following questions: What is the suspended sentence and does it have an internationally
recognised character? What is the function of the sanction and howdoes it work? This
approach enables one to enquire if the Irish suspended sentence differs from the
suspended sentence in other jurisdictions in its rationale andfunction.
The chapter then proceeds to explore the possible rationales of the suspended sentence as
it developed in Ireland with particular attention being paid to the possibility of identifying
conflicting purposes for utilising the sanction. 61
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It is argued here that the use of the
suspended sentence in Ireland maybe seen to promote conflicting rationales. At a formal
level a custodial sentence is pronounced and is then avoided by the convicted person
undertaking to abide byconditions of compliance for the duration of the operative period.
At an informal level, the court maynever intend the imposition of a real custodial sentence
61 Section 99 Criminal Justice Act 2006 gives a statutory expression to the avoidance of custody rationale for a suspended sentence, which came into effect on the 2nd October 2006
pursuant to S.I. 390/2006 This will be discussedseparatelyin Chapter 7 as adiscrete formof suspendedsentence pursuant to statute.