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abandon” claims Osborough (1982:256). But the prospect of regulating the suspended
sentence in Ireland in the context of a statutorily prescribed sentence raises the interesting
possibility of judicial resistance to what has heretofore been regarded as a common law
authorityto impose such a sentence and in a manner where Irish sentencers have exercised
wide discretion in the fashioning and execution of such sanctions. The regulation of the
suspended sentence in Ireland by statutory prescription might well launch the suspended
sentence on the same legislative trajectoryas the suspended sentence in England and Wales
over time, eventually leading to its near extinction. This, of course, presupposes the
courts relinquishing any assumed common law power which has been “long recognised”
(O’Dalaigh C.J., McIllhagga The Supreme Court 29 th July, 1971). The distinct difficulty
presents when seeking to change an already established sentencing practice; that
sentencers are resistant to adjusting their approach to sentencing on the passage of
legislative measures to effect such adjustments (Ashworth 1977, Thomas 1974, Young
1979) and are particularly resistant to such changes when the sentencing practice is firmly
establishedanddeveloped within a judicial setting. 100
Thus far, the arrival of the suspended sentence and its ambivalent use has been discussed.
To achieve a fuller understanding of the suspended sentence, particularly as it operates in
Ireland, the sanction must be examined in greater detail. While a theoretical discussion on
the sanction may advance our knowledge of it, to a certain point, it is not possible to fully
understand the sanction until it is seen in operation. In the following chapter, and in
chapter 7, the operation of the suspended sentence in Ireland is more fullyexplored.
100 A striking example of judicial resistance to legislative measures which seek to direct the hand of the sentencer present when one analyses the practice of
the Circuit Criminal Court when disposing of cases under Section 15(a) of the Misuse of Drugs Act, 1977 as amended. While the political and policy
intention behind the introduction of the section was to make drug dealing a highly undesirable pursuit for the offender on a cost benefit basis, the Courts
invariably apply the “special and exceptional circumstances” clause in the section. This resulted in the reduction of what was intended as a presumptive
minimumten year sentence of imprisonment being reducedto approximatelysix anda half years imprisonment in almost all cases (Kilcommins et al 2004).
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