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was 5 years for assault and you were getting a suspended sentence, you would get 5
years for the assault and it is suspended for 5 years. What I would tend to do is
measure the sentence as appropriate, say 3 years for an assault and suspend it but
for 3 years. I do not in general terms suspend for longer than the term of the
imprisonment because I have doubts about the legality.”A5J1CC
In the case referred to by A5J1CC, Keane C.J. declared that it is not a desirable practice to
suspend the sentence for a longer period than the actual term imposed unless there were
exceptional circumstances pertaining (People (DPP –v- Hogan, unreported Court of
Criminal Appeal, 4 th March 2002). 122 The Chief Justice was concerned, as was the
Respondent A8J1SC, to avoid the difficulty presented in the case of Ian Stewart where
under the common law procedure, the court has no jurisdiction but to impose the full
sentence once the decision to activate the sentence has been made. As noted, this difficulty
has been significantly ameliorated by the passing of Section 99(10) Criminal Justice Act
2006, which allows the court wide discretion to impose a lesser custodial sentence when
the sentence is to be activated. Accordinglythe reluctance of the Court of Criminal Appeal
to contemplate a operative period in excess of the custodial period may be significantly
addressedbythis allowable discretion.
As noted, there is specific statutory provision in Northern Ireland 123 and in England and
Wales to allowfor the suspension of a sentence for a period of in excess of the actual term
of custody imposed. It is important to distinguish the difference between a period,
allowed under statute, which permits suspension of a sentence for a period in excess of the
custodial period and a period prescribed in a statute which limits the revocation of a
suspended sentence to a certain period of time. This distinction seems to have presented
in the first attempt to put a suspended sentence on a statutory footing in Section 50 of the
Criminal Justice Bill 1967. The Bill would have allowed for the making of a suspended
sentence to be suspended for a period in excess of the actual sentence by the use of the
phrase in Section 50(1)(a) “as the court thinks proper”. But the Bill then went on to limit
the period during which a suspended sentence could be activated in Section 50(2) by
stating that the same suspended sentence should cease to be enforceable after 3 years. In
122 This was approved in the case of Gareth MacCarthy–v- Judge Brady(High Court, unreported 30th July 2007) when De Valera J. stated obiter that the
period of suspension should not exceed the stated period of custody. De Valera J. placed great emphasis on the Ian Stewart case also. However the suspended
sentence before the court on that occasion was originallymade prior to the Criminal Justice Act 2006 coming into force.
123 Section 18(1) Treatment of Offenders Act 1968 as amendedbyArticle 9(1) Treatment of Offenders Order 1989.
297