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But the “custodial” designation of the sanction is only nominal unless the sanction is
invoked for breach of conditions. If conditions are not breached or proven to be
breached the custodial sanction cannot be activated. Thus, while the suspended sentence
may be initially identified as occupying a position just short of a custodial sentence it
cannot be equatedwith a custodial sentence.
When the offender signifies his consent to be bound under the conditions of a suspended
sentence certain actuarial considerations may be seen to apply. The scant possibility of
ever having to serve the custodial sentence, even if in breach of conditions of the bond,
has been one of the most salient features of the suspended sentence in Ireland to date.
Widespread knowledge among the criminal fraternity and the legal community points to
this feature of the sanction (Osborough 1982:254-255). One senior judge confirmed this
viewbyofferingan insight into the offender’s cognitions:
“…I think the Courts have to be, especially the criminal courts, have to be credible to the
criminals…The criminals are surprisingly sensorious of what they see as undue leniency, as
inefficacy, and it almost peaks their professional pride and certainly if they know that the reality is
that this sentence will not be reactivated. If it is going to be used, it should be taken seriously and
re-activated when called upon. For many years when I was practising, it was a complete joke
because nobody ever reactivated it…I believe now that things in the District Court and the Circuit
Court, things are coming together … there is a big group of people for whom the mere fact of this
court case pending is sufficient to achieve the purpose of a suspended sentence, if that hasn’t
achievedthe purpose, I ama little cynical as to whether a suspendedsentence will.”A8J1SC
The latter judge and a judge of the Circuit Criminal Court pointed to the likelihood of
continuingcriminalityon the part of the offender on a suspended sentence as follows:
“…I have to admit that one of the worrying aspects of the suspended sentence on conditions is…
whether the Guards are supervising it or the Probation Service, there just isn’t any real supervision
(of the conditions). If somebody is on a suspended sentence subject to conditions and commits a
bank robbery, you will hear about that. But there are myriad and numerous other cases of
infractions which you never hear about.”A5J1CC
“The other thing as we all unfortunately know is that there is a large group in the community for
whom we know that by the time the suspended sentence is activated, there will be other sentences
andtheycan all be run in (concurrently)”. A8J1SC
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