View/Open - CORA - University College Cork

“Butler Orders”, as noted, require the review of the sentence of imprisonment before the
remainder of the sentence may be suspended. This review procedure survived the
challenge to its validityin the case of People (D.P.P.) –v- Aylmer [1995] 2 ILRM 624. In
the instant case, the appellant to the Supreme Court challenged the validityof his detention
on the basis that the President of the High Court, sitting in the Central Criminal Court
upon revoking a suspended sentence made by Butler J. (who had died in the meantime)
had exceeded his powers, as had the original sentencing Judge, Mr. Justice Butler. The
appellant claimed that the sentencing court had acted unconstitutionallybyinterfering with
the Executive’s sole power to commute sentences pursuant to Article 13.6 of the
Constitution of Ireland 1937. This argument turned upon the appellant’s contention that
Butler J. was exercising a function of commutation of sentence in reviewing a sentence
after the appellant had served a certain portion of a custodial sentence, namely thirty six
months in custodyof an overall sentence of ten years imprisonment. The appellant failed
in his application when a unanimous Supreme Court declared that the sentencing court in
reviewing a sentence in this manner had not finalised the sentence and clearly retained
seisin of the sentencingissue.
McCarthyJ. in the Supreme Court stated:
“If, as I conceive it to be, the two considerations in the instant appeal is the validity,
as distinct from the desirability, of the form of Order made byButler J., then, in my
judgement, the appellant’s challenge cannot be defeated by any form of estoppel
(p.638).
Andhe further stated:
“Insofar as this case turns upon a like consideration, I am of opinion that there was
no invalidity to the sentence imposed by Butler J. As to its desirability, I think it
would be invidious for me to express any viewof intended general application in a
sentencing matter. I would not wish to circumscribe the judicial power in its
application to the circumstances of a particular case” (People (D.P.P.) –v- Aylmer
[1995] 2 ILRMMcCarthyJ. p639).
Thus, in Aylmer’s case the Supreme Court refused to countenance the procedure adopted
by Butler J. of the reviewable sentence as invalid. Provided the sentencing court retained
seisin of the sentencing issue when reviewing a custodial sentence in the manner of a
Butler Order, the court remained within jurisdiction. A different situation might arise if a
273