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queries the absence of such a sentencing procedure within the jurisdiction of England and
Wales at the same time. He makes a convincing argument to the effect that the suspended
sentence may not have been universally part of the common law, otherwise the procedure
would have been known widely in all common law jurisdictions, but concedes that the
sanction enjoys “an impregnable position in modern Ireland” (Osborough 1982 :229).
Interestingly in Morris and others –v- Crown Office [1970] 2 Q.B. 114 Denning M.R.
when dealing with the issue of the power of the civil court to suspend a term of
imprisonment for civil contempt, confirmed that such a power to suspend a sentence of
imprisonment in effect exists at common lawbut more importantlywent on to state:
“I have often heard a judge say at common law, for ordinary offences, before these
modern statutes were passed; ‘I will bind you over to come up for judgement if
called upon to do so. Mark you, if you do get into trouble again, you will then be
sentenced for this offence. I will make a note that it deserves six months
imprisonment. So that is what youmayget if youdo not accept this chance.’ That is
the common law way of giving a suspended sentence. It can be done also for
contempt of court”. Lord Denning M.R. (Morris – v – Crown Office, Court of
Appeal [1970] 2 Q.B. 125).
This observation presents a challenge to the received wisdom that the suspended sentence
in England and Wales did not pre date the statutory manifestation of the sanction
introduced under the Criminal Justice Act, 1967. The very words of the sentence quoted
above seem to answer the requirements for the suspended sentence initiated in Ireland in
the late 19 th and early20 th centuries. The accused is bound over, presumablyfor a definite
period of time, and a sentence is recorded to be imposed if the accused is in breach and
does not “accept this chance”. However on closer examination the sentence which the
Master of the Rolls had often heard pronounced at the conclusion of criminal trials in
England and Wales appears no more than a conditional binding over to keep the peace
because the actual sentence of imprisonment is not pronounced as such and then
suspended. Instead the sentencing judge merely notes what is deserving if the accused is
in breach of his/her bond, which is not quite the same thing as the suspended sentence in
use in the Irish criminal courts on a common lawbasis. 64
64 The practice of English sentencing judges to note what sentence is deserving before placing the accused on a bond to keep the peace may have developed from very pragmatic
requirements to recordwhat sentence might have been most appropriate while the facts and issues of the case were fresh in the mindof the sentencer. Thus the sentencer would be
in a position to refer to the sentence which s/he was intendingto impose before placingthe accused upon his/her bond if the accused is called up for sentencing. The court is thus
saved the difficultyof embarking upon a newhearing to “fix” the appropriate custodial sentence at a temporal remove when the facts and issues of the case mayhave receded in the
sentencer’s memory.
221