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governing the activation of suspended sentences at common law (O’Malley 2006:461) as
these do not have statutory prescription. For the sake of clarity, the discussion on the
activation of the suspended sentence might usefully be divided into two distinct analyses.
Firstly, the procedural rules developed to date to bring the convicted person back before
the court will be discussed and then a separate analysis of the criteria necessary for the
activation of a sentence of imprisonment will be presented.
Heretofore, there appears to have been some confusion in the literature as to which precise
aspect of activation is under discussion at any one time. O’Malley usefully observes: “a
Judge may undoubtedly activate a suspended sentence when an application is made and
credible evidence is given of a breach of one or more of the conditions of suspension”
(O’Malley 2006:461). Perhaps the statement could be further qualified by stating that the
application is made to the court on notice to the accused to showcause why the sentence
of imprisonment should not be invoked. Presently it will be demonstrated that activation
of a suspended sentence does not automatically follow upon a proven breach of a
condition attached to a suspended sentence. But before a court is requested by the
prosecution to activate a suspended sentence, certain procedural requirements must be
fulfilled. Some commentators have observed that a breach of a recognisance
automatically activates the sentence of imprisonment (Ryan and Magee 1983:401; Walsh
2002:1033) without stipulating whether such activation occurs at the conclusion of a
hearing upon notice to the convicted person to answer for the alleged breach or by some
other mechanism.
Ryan andMagee suggest a self activatingmechanism:
“… if the offender is in breach of his recognisance, then the sentence comes into
full operation without anyfurther Order.” (Ryan and Magee1983:401).
AndWalsh reports:
“… if the offender breaches his/her recognisance, then the sentence comes into
full operation without the needfor anyfurther Order.” (Walsh 2002:1033).
The authority quoted by the above writers is the English case of The King –v- Spratling
[1910] 1 K.B. 77 where the Court of Appeal had to deal with the issue of the Court of
Quarter Sessions utilising section 1(2) of the Probation of Offenders Act, 1907 (legislation,
common to both jurisdictions at the time) in the disposal of an indictable offence which
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