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England and Wales. A practice of imposing or recording a custodial sentence upon
conviction was developed in the early years of the twentieth century by judges of the old
Irish High Court when exercising criminal jurisdiction in indictable matters. This practice
continued in both parts of Ireland after 1920 but the use of the suspended sentence was
limited to the High Court and County Courts in Northern Ireland whereas the penalty
became widely used in all levels of jurisdiction in the Irish Free State and continues to be
so usedto the present day.
Whatever about its obscure origins, the suspended sentence in Ireland has emerged as one
of the major dispositions utilised by sentencers. Unlike other common law jurisdictions
where the suspended sentence was purposefully designed in a statutory format, to act as a
decarcerative device, no such limiting function can be clearly identified for the suspended
sentence in Ireland. Although leading Irish academics advise against the use of the
sanction in a manner inconsistent with the aim of avoiding a custodial sentence, Irish
sentencers appear to utilise the sanction for a number of purposes which may not be
directly connected to such a fixed and primary purpose. In particular, the intention by
judges to change the future behaviour of the offender bythe threat of a custodial sentence
points to a special affinity on their part to the aim of special deterrence as the primary
purpose of the sanction. Ultimatelysuch an approach bysentencers might be criticised on
the basis that it does not sufficiently answer penological aims in sentencing, but is seeking
to answer instead issues of criminal policy which are not necessarily the concern of the
judiciary.
As noted, the Irish suspended sentence developed from an assumed inherent jurisdiction
of the sentencing courts. The suspended sentences referred to in the literature from other
jurisdictions, including common law jurisdictions, were formulated on a statutory basis.
But even where such statutory forms of suspended sentence specified that such a sanction
should only be used as an alternative to custody, the research shows a tendency of judges
in those jurisdictions also to deviate from such a prescriptive regime and to import
deterrent aims into their sentencing. From the replies bythe Irish judges, it is difficult to
come to the conclusion that in almost every case which they spoke of a custodial sentence
would in fact have resulted if the option of substituting the penalty with a suspended
sentence had not been available. Clearlythe respondents adverted to the proximityof the
custodial option when they spoke of the suspended sentence. But would the custodial
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