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full opportunityto challenge the allegation, it is argued here that anybreach of proceedings
which sought to ignore these important features would be defective and open to challenge
bywayof judicial review. 135
In a case where an offender, the subject of a Circuit Criminal Court sentence, appeared
before the same Court on a District Court Appeal against conviction and severity, the
Circuit Court activated the suspended sentence on affirming the District Court Appeal
there and then and without prior notice to the unsuccessful appellant. This procedural
short cut was struck down by Order of certiorari by Doyle J. In Re Pratt (Irish Times 2 nd of
May, 1978) on the grounds that the accused should have been afforded prior notice of the
court’s intention to hear an application for activation of the sentence which was denied
him. A more recent case from the Supreme Court is quite instructive on the dangers of
proceeding with a criminal case in the absence of the accused and without securing his/her
presence before the court. In Edward Brennan -v- Judge Desmond Windle, Judge
Catherine Murphy, the D.P.P., Ireland and the AttorneyGeneral, Supreme Court, 31 st July,
2003 Geoghegan J. observed:
“Once the Judge would have in mind to impose a prison sentence and particularly
a sentence as long as four months and particularly also in the circumstances that
the offence in question would not invariably attract a prison sentence, the first
named respondent failed in my opinion to afford the application due process
and/or fair procedures or natural/constitutional justice” (Brennan –v- Windle &
Others, Geoghegan J. Supreme Court 31 st dayof July, 2003, Bailii, I.E.S.C.)
In practice, informal rules apply when an application is made by the prosecution for the
activation of a suspended sentence. In each court jurisdiction the Prosecution requests
the court to revoke the suspended sentence on an application made on notice to the
accused. If the accused fails to present himself/herself in Court on the date of the
application and the court is satisfied that the convicted person has received notice of the
application, the court usually issues a warrant for the arrest of the convicted person rather
than proceeding in his/her absence. It must be observed however that this procedure
evolved in more recent times. Historically, particularlyin the District Court, the court was
empowered under the District Court Rules to issue the warrant on uncontested evidence
135 It is suggested that the District Court Rules could be more comprehensive in providing clarity on the issue of notification of the proceedings to the
accusedeven though the formfor the execution Warrant does include a recital that notification has been given.
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