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The bipolar arrangements of the courts imposing a punishment and another authority
namely the President (Article 13.6) granting a remission of that punishment may be
compromised if courts are further invested with the power to reviewthe behaviour of the
accusedwhile in custody.
Arguably, once the statutorypower to reviewa sentence offends against the doctrine of the
Separation of Powers and Article 13.6 in particular, it offends against such provisions for
all cases. The judicial validation of Section 27(3)(g) as an exception to the objections by
the Supreme Court in Finncannot be sustained merelybecause the power was conferredby
the Oireachtas. It is speculated here that such a provision would not have been inserted
into Section 27(3) (g) of the Misuse of Drugs Act 1977 as amended had the judgment in
Finn been to hand when the legislation was drafted. But the anomalous situation now
presents that Butler Orders, if validated by a statutory provision, may escape the
designation of "impermissible" orders in future. 110
When the issue of review of sentence by the court was addressed by the Law Reform
Commission, a majority of the Commissioners (three) favoured removing the reviewing
role of sentence from the courts. The Commissioners stated that the behaviour of a
prisoner is a matter which falls within the domain of the prison authorities and not of the
courts, while a minority(two) were not convincedthat such cases involved intrusion on the
function of the Executive. The minority of Commissioners believed that the review of
sentences was helpful in the context of rehabilitation and that the review of sentences
carries also the guarantee of objectivity (Law Reform Commission 1996 par. 11.15-
11.17). 111
110 The writer is not aware of anyreviews of sentence made under Section 27(3) (g) Misuse of Drugs Act 1977 as amended. Indeed the possibilities of such
reviews are slim as a minimum sentence of 10 years must firstlybe imposed before a reviewmaybe ordered after 5 years. A sentence in excess of 10 years is a
rarity.
111 It should be noted that the deliberations of the Law Reform Commission, as a whole, focused almost exclusively upon the deterrent and rehabilitative
elements of the sanction and that no effort was made to advance the rationale for the suspended sentence as an avoidance of custody. Whether the Law
Reform Commission regarded this feature of the suspended sentence as so self evident as not to warrant any comment, one cannot say with any degree of
certainty. However, a Law Reform consultative agency, seized of the function to comment on the suspended sentence as a whole, would surely have
advanced this important aspect of the suspended sentence particularlyas comparative analysis of the suspended sentence in England and Wales was central to
their deliberations and discussions. The writer interprets this discussion of the suspended sentence by the Irish Law Reform Commission in their report as
accurately reflecting a prevailing perspective on the suspended sentence which characterises the sanction essentially as a deterrent and rehabilitative device
without overly stressing the avoidance of custody features of the sanction. Ultimately, the Law Reform Commission by a majority opted for the
abandonment of reviewable sentences. Moreover, they advised the introduction of a statutorily regulated suspended sentence on the basis as set out in
Section 50 of the abortedCriminal Justice Bill 1967.
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