View/Open - CORA - University College Cork

(v) The role of consent.
In the classical suspended sentence and particularlythe form of suspended sentence which
was developed originally in the criminal courts in Ireland, a convicted person was always
required as a condition of suspension of the sentence to enter into a bond or recognisance
to keep the peace and to come up for sentencing when called upon to do so (Osborough
1982:222). 131
The requirement to enter into a bond is a condition precedent to the suspension of a
sentence of imprisonment. A recognisance to keep the peace is a contract of record
between the court and the convicted person secured bya promise on his/her part to paya
specified sum known as a surety if there is failure to fulfil a condition of the bond (Sandes
1939:167). Thus, consent of the convicted person is essential before s/he may be bound
over on a bond to keep the peace and to come up for sentence if called upon to do so.
The tendering of such consent is consistent with the voluntary nature of the requirement
that the convicted person may have to comply with conditions which are essentially
motivational in character. These may include inter alia a requirement to co-operate and
take advice from the Probation Officer, the attendance at a drugs/alcohol treatment
programme, the payment of compensation, or the avoidance of contact with injured
parties. The contractual nature of the recognisance or bond promotes the participatory
requirement of the convicted person to fulfil his/her obligation pursuant to the bond,
albeit the recognisance is underwritten by the threat of activation of the custodial sentence
which is conditionallysuspended.
The formal entrybythe convicted person into a recognisance also represents a clear record
of the “sentencing event” where the court actively communicated with the offender
(Thomas 1970) in the disposal of the case. However, in contrast with the passive
communication between the court and the prisoner who is given a custodial sentence and
is removed to prison, in the case of the suspended sentence secured bya recognisance, the
prisoner undertakes a commitment into the future to fulfil conditions attached to his/her
recognisance. The obligation to remain compliant endures over time and this is
acknowledgedbythe convictedperson.
jurisdiction. In Tralee, Co. Kerry, in 2007 a District Court Judge sought to impose a condition upon an offender that the offender leave the jurisdiction as a
condition of a suspended sentence. The offender had veryrecentlyarrived in Ireland from Poland. Interestingly, the accused through his Solicitor, told the
court he didnot wish to leave the jurisdiction andfurther indicatedhe wishedto appeal. The matter endedthere.
131 Section 99 Criminal Justice Act, 2006 makes similar provisions.
314