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sessions (Hardiman 2004:5). By way of experimentation in the form of sentence, he
devised “a probation system of his own” whereby “the prisoner is not asked to serve (his
sentence) unless and until he breaks the lawagain” ( Hardiman 2004:5). The tendency of
Irish judges to experiment in the formulation of sentences continues to the present day.
Sometimes, as was the case with the suspended sentence, these organic practices acquire
the mantle of general acceptability and application as is evident from the judgement of Sir
James Andrews above.
An earlier reference to a type of suspended sentence may be identified in the sentencing
practice of Special Commissions to quell agrarian unrest by holding a sentence of death in
abeyance pending “the future conduct of the peasantry” (Lefroy 1871:72). At the Cork
Special Commission of 1822 Baron McClelland, having convicted 366 offenders, sentenced
35 to death. Of the remainder he “…announced that the death sentences would be
suspended and that their several fates would depend on the “future conduct of the
peasantry”: “if tranquillity were restored, and the surrender of arms in the district became
general, mercy would be extended to them; but if no sure signs of returning peace
appeared, their doom was inevitable’” (Lefroy 1871:72). 63
220
This form of suspended
sentence was predicated not necessarily upon the individual and voluntary actions of the
convicted person but on the compliance of his neighbours and on his co-conspirators to
keep the peace generally in the locality. One cannot recognise this judicial approach in
modern sentencing law when comparing the current practice of suspended sentences.
The use of the penalty as a generalised deterrent upon the population as a whole is
incongruent with the modern use of the suspended sentence which seeks to deter
specificallythe convictedperson from further criminal behaviour andnobodyelse.
Osborough’s search for the origins of the suspended sentence forced him to conclude that
a number of judges serving in the criminal courts in Ireland in the late nineteenth century
“quietlyand unobtrusivelycommenced to suspend prison sentences”, justifying this course
of action by referring to the inherent jurisdiction of the court and arguing, too, by analogy
from the practice of “recording” death sentences.
However as the development of the suspended sentence, as it emerged, had no statutory
basis and therefore found its roots within the common lawor judge-made law, Osborough
63 TomLefroy inamoratus of Jane Austen (Hardiman 2004:16)