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normal way, allow you leniency, I will then suspend the balance of your sentence,
on your entering into a Bond in your own bail of £500.00, to keep the peace for
the remaining four years of the sentence”. (Butler J. Ipsissima verba). (The State
(Woods) –v- A.G. [1969] I.R. 385).
This part-suspended sentence survived a constitutional challenge by the Applicant on the
grounds that the Supreme Court construed the order as reserving unto the court itself and
not to the Executive two essential features which indicated the court retained seisin of the
matter: firstly, whether the prisoner complied with prison discipline; and, secondlywhether
the court having determined he had so complied, should then suspend the remainder of
the sentence. This type of part-suspended sentence became known as a “Butler Order”
(Osborough 1982). 102
Thus, the “Butler Order” or reviewof sentence remainedas the quaint phrase has it “in the
bosom of the court” and it was not subject to executive “interference” by the early release
of the prisoner. The essential feature of this procedure was the review of behaviour of
the prisoner which the court reserved to itself. Usually, good behaviour in custody
required the prisoner to remain drug free while in prison and this was normally confirmed
if the prisoner was housed in the Training Unit within Mountjoy Prison, the only open
“drug free” area of that penal establishment. By adopting this review procedure, the
court was in a position to calculate, to some degree, the element of risk of future criminal
behaviour of the prisoner where drug use was identified as a significant factor in the
offender’s previous criminal activity.
Once again we mayglimpse the rationale of the Irish suspended sentence in this procedure.
The sentence, while utilising the formal imposition of a term of imprisonment for the
remainder of the sentence and then suspending it for the same period, has one express
purpose in mind and that is to control the future behaviour of the offender and not
necessarilythe extraction of further retribution from him/her.
102 The essential difference between a part suspended sentence and a Butler Order or reviewable sentence is that the court is functus officio once it
pronounces the sentence in the former sentence while the court is not functus offico but retains seisin of the sentencing function in the latter. However, the
reviewable sentence does not hold the same degree of certainty for the convicted person serving a custodial sentence until the court actually suspends the
remaining part of the sentence at review. The court might equally not suspend the remaining part of the sentence upon review, although such would be
unusual unless the prisoner failed to comply with the conditions set for compliance. Nonetheless, a degree of uncertainty endures until the court finally
suspends the remainder of the sentence of imprisonment in the Butler Order procedure.
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