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opinion, this does not require anything in the nature of a judicial determination.
… [a]n informal procedure is all that is required, provided such procedure is
conductedfairly” (p.472).
Although it may be informal, the Chief Justice cautioned against applying the modality of
common sense thinking to the process when he stated:
“The facts of this case show that the respondent Governor treated the arrest of
the prosecutor (prisoner) on the serious charges as terminating the temporary
release. In doing so, the respondent was probably acting in a common sense
manner. However, I doubt whether he could lawfully do so without it being
clearly established that a breach of the peace had occurred”. (O’Higgins C. J.
p.470).
(iii) Judicial discretion in revocation proceedings.
Thus far, it is noted that an application on notice to the convicted person is required
before a court should consider the revocation of a suspended sentence. Moreover, the
convicted person is entitled to be given details of the alleged breach of the condition of the
suspended sentence and should be allowed answer the allegation through the assistance of
a lawyer. Although the standard of proof required in determining whether the convicted
person has failed to keep the peace may not be as high as the proof of guilt beyond a
reasonable doubt and certainly does not require the production of a record for a
subsequent conviction, a clear finding of fact is required by the court to establish that the
breach of a condition has occurred. Thereafter, certain discretionary features emerge in
the disposal of the application for the activation of the sentence. The first issue which
presents in the activation of a suspended sentence is the matter of judicial discretion to
disregard the breach entirelybyregarding it as sufficientlytrivial that would not warrant the
activation of the original sentence. The second issue to be addressed is whether the court
has discretion to activate the original sentence but for a lesser period of time than that
specifiedin the original order.
Firstly, courts have jurisdiction to ignore trivial breaches according to Hederman J. in
People (D.P.P.) –v- Aylmer [1995] 2 ILRM638. 138 Hederman J. statedin that case:-
138 The case of D.P.P. –v- Aylmer [1995] 2 ILRM 624 is authority for the proposition that a trivial breach may be disregarded. The accused had been
sentenced to ten years imprisonment but Butler J. directed that he be brought back for a reviewof sentence after he had served thirtysix months in custody.
Butler J. had died in the meantime and the case came before the President Finlaywho suspended the balance of the term of imprisonment, on condition that
the accused acknowledged himself in the sum of £100.00 to keep the peace and be of good behaviour for five years and to come up if called upon to do so at
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