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unlawful encroachment upon the Executive power… [t]he clear message is that the
Supreme Court in Finnconsidered Butler Orders to be invalid” (Walsh 2002:1035).
In an earlier case of O’Brien –v- Governor of Limerick Prison [1997] 2 I.L.R.M.
O’FlahertyJ. gave tacit approval to the procedure adoptedbyButler J. when he stated:
“If the learned trial Judge had used a formula, such as that which had been used by
Butler J. and which would have made clear that he was retaining seisin of the case,
then there would have been no implied clash with the Executive’s entitlement to
grant remission of sentence” (Michael O’Brien –v- Governor of Limerick Prison
[1997] I.L.R.M. O’FlahertyJ. P. 355).
Thus, the “Butler Order” occupies an ambiguous position in the sentencing jurisdiction of
the Irish Criminal Courts. It was twice given approval by the Supreme Court and once
firmly denounced. Firstly, in People (D.P.P.) –v- Aylmer [1995] 2 I.L.R.M. 624, the
Supreme Court upheld the validity of the reviewable sentence but resisted the temptation
to comment upon its desirability. In Michael O’Brien –v- Governor of Limerick Prison
1997 2 I.L.R.M. the Supreme Court pointed to the reviewable sentence as a safe way of
avoiding the intricacies of trenching upon the Executive domain in calculating remission of
sentences. And finally in People (D.P.P.) –v- Finn 2001 2 I.R.25 the Supreme Court
strongly advised against the continued use of the Butler Order or reviewable sentence.
Accordingly the status of the Butler Order or reviewable sentence remains unclear. The
question which immediately suggests itself at this juncture is to what extent do courts
continue to use the procedure of reviewable sentences with a viewto suspending the latter
part of the sentence if reports of the prisoner are favourable in light of the
pronouncements of the Supreme Court in Finnin 2001? 105
In the surveyof judges conducted in the Winter of 2007, a clear departure is demonstrated
from the previous use of the reviewable sentence. This issue was broached specifically
with the judges of the Circuit Criminal Court, the Central Criminal Court and the Court of
105 In chapter VII it will be seen how the Oireachtas seeks to deal with the issue of reviewable sentences by investing prison Governors with the sole
discretion to applyto the sentencing Court to have the suspendedpart of the sentence revokedwhile the prisoner is actuallyservingthe initial custodial part of
the sentence. Section 99 (13) of the Criminal Justice Act 2006 provides that where a member of the Garda Siochana or as the case maybe, the Governor of
the prison to which a person was committed has reasonable grounds for believing that a person to whom an Order under this section applies has contravened
the condition referred to in sub-section 2 he or she may apply to the Court to fix a date for the hearing of an application for an Order revoking the Order
under sub-section 1.
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