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The net point is this – if the operative period is coterminous with the period fixed in the
recognisance can the convicted person be sanctioned for a breach during such period if the
operative period has expired? It could be argued that all that remains byway of sanction
at that stage is the obligation to pay any surety for breach of the recognisance, but a
convicted person so bound over may not be amenable to the main sanction of the
suspended sentence itself. 125
The necessity to seek a revocation of the suspension of the sentence during the period
fixed for the duration of a bond or the operative period is critical if one applies the
decision of MurphyJ. in D.P.P. (Comiskey) -v- Traynor (a minor) (High Court 27 th of July,
2005, IEHC 295). In the latter case the District Court having placed the offender on a
probation bond for twelve months revisited the case on a number of occasions during the
twelve month period to review the offender’s compliance with conditions of his bond.
The offender had not complied with conditions specified in the probation bond. The
court finally adjourned the case for sentence outside of the 12 month period and without
extending the period of the probation bond. The High Court held that to properly
proceed to conviction and sentence, when the accused had been in breach of conditions of
a Probation Order, this must be done within the period specified on the Probation Order.
Accordingly, time must be seen to be of the essence in any application to revoke a
suspended sentence.
The extent to which this may be analogous to the bond for a suspended sentence was
addressed in the case of Mark McManus -v- Judge O’Sullivan and the D.P.P., High Court,
unreported 5 th March 2007 where Dunne J. rejected the analogyargument on the basis that
the probation bond under Section 1 of the Probation of Offenders Act 1907 could not be
so activated as the statute itself prohibited such order of the court. In contrast, the
suspended sentence is unregulated as to the time limits for activation. 126 However, the
McManus case gave some direction on the issue of time and the activation of a suspended
sentence. Firstly, Dunne J. pointed to the “self evident” point that the alleged breach must
occur within the period of the bond itself. Thus, no liabilityfor breach mayarise in respect
125 Order 25 Rule 4 of the District Court Rules 1997 would allowa warrant to issue for a period of six months after the period fixed for the fulfilment of a
condition of a suspended sentence. There are no rules of court for the Circuit and Central Criminal Courts to regulate such issues. Perhaps, the District
Court jurisdiction is the exception in the circumstances.
126 In the instant case it should be noted that the common lawform of sentence was used. However if the statutoryform was used there is still a lacuna in
the Act relatingto the time limits on activation.
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