View/Open - CORA - University College Cork

minimum procedures required to bring the offender back before the court while protecting
the offender’s right to be heard in full and on notice of any allegation of breach, and the
standard of proof which the court mayapplyin deciding if a breach has occurred. These
latter decisions interweave substantive law and procedural issues which have developed
solely on a judge made basis in the recent past. Except for the discrete issue of
conditional time limits in the District Court Rules, 1997 on the issuance of warrants, all
other procedural issues have been established fromcase lawandthe constitution.
(iv) Activation of the part suspended sentence.
The part suspended sentence presents as a combination of both a custodial sentence and a
fixed period thereafter which is also a custodial sentence but which sentence is
conditionally suspended. As noted previously, the part suspended sentence is used
extensivelybycourts exercising indictable jurisdiction particularlysince the Finncase where
the reviewable sentence was deemed to be incongruent with the principle of the Separation
of Powers under the Constitution. Latterly, the Circuit and Central Criminal Courts have
abandoned the Butler type order in favour of the part suspended sentence. Such courts
therefore no longer retain seisin of the sentencing function once the part suspended
sentence has been pronounced. The execution of the sentence passes entirely into the
hands of the Executive under the part suspended sentence. A part suspended sentence may
be activated in the same manner as the fully suspended sentence and likewise the criteria
for breach and activation and the standard of proof are similar. Moreover, judicial
discretion to activate or not activate apply in equal measure as for the fully suspended
sentence. But the part suspended sentence must be the subject of scrutiny for one
particular reason namely the remission of sentences. This topic requires a specific
consideration especially when one comes to the issue of the activation of the sentence. As
the part suspended sentence is a two phase sentence, the custodial followed by the
suspended custodial, the prisoner is entitled to remission of sentence for good behaviour
for the initial custodial period. Moreover, a sentence may only be remitted by a competent
legal authority. These two related matters must nowbe examined. Up to quite recently the
entitlement to remission of sentence was expressly provided for under The Prisons
(Ireland) Act 1907 andthe Rules for the Government of Prisons 1947.
Section 1(i) of the Prisons (Ireland) Act 1907 provides:
335