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“Such a hearing should have been held and should have been seen to have been
held. Such hearing did not have to be of a veryformal nature, provided that the
minimum requirement to which I have referred was met … [In] myopinion, the
prosecutor (prisoner) was entitled to be judged by the respondent (Prison
Governor) but not pre-judged. Since the respondent was not in possession of any
evidence from which he could have held that a breach of any conditions to which
the prosecutor’s release was made subject had occurred, it follows that there could
not have been a hearing and accordingly, there could not have been a hearing
which followed these procedures”. (The State (Michael Murphy) –v- William Kielt
[1984] I.R. 466).
In Dignam –v – Groarke and the D.P.P., (17 th November, 2000, I.E.H.C., 150, Bailii)
McCracken J. applied similar reasoning to the case before him. The original sentencing
judge, Judge Groarke, had reactivatedthe sentence on the testimonyof a D/Sgt. Kellywho
stated that the accused had been charged with the murder of his brother and was separately
charged with the unlawful taking of a motor car contrary to Section 112 of the Road
Traffic Act, 1961, since the imposition of the suspended sentence. In the judicial review
proceedings, McCracken J. held that in the application to reactivate the suspended
sentence, the sentencing judge had not afforded the accused sufficient information or fact
upon which to base a cross examination of D/Sgt Kellyin defence of the application.
McCracken J. held that the lawyers actingon behalf of the prisoner
“… came into Court without an opportunity to investigate the allegation against
the applicant, and while they were given an opportunity to cross-examine D/Sgt.
Kelly, theyhave no information or fact upon to base such cross-examination.”
Andhe concluded:
“… the principles set out by Barron J. above were not complied with to any
degree, and the principles of natural justice (and) in fair procedures were not
complied with”. McCracken J. Dignam –v- Groarke 2000 IEHC 150 17 th of
November, 2000( p.4.)
Prior to Section 99 of the Criminal Justice Act 2006 coming into force, an application to
revoke a suspended sentence was initiated by the prosecution only. A notice to the
convicted person and his solicitor on record was served by ordinary pre-paid post that a
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