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additional or secondary fine which may result from a failure by the convicted person to
observe a condition of the recognisance. 146
But the important point of difference, this writer contends, in the two procedures - namely
an application to activate a suspended sentence and an application to estreat sureties in a
recognisance, is that the former activation is not dependent upon the latter estreatment as
claimed by some writers (Osborough 1982:255, Rottman and Tormey 1985:215). When
an application is made by the Prosecution to the criminal courts in Ireland to revoke a
suspended sentence and to have the custodial sentence imposed, such application usually
proceeds without any concomitant application to have sureties estreated. Quite simply,
applications to estreat recognisances are extremely rare indeed where the courts are
otherwise focussed upon the primaryissue whether to revoke a suspended sentence or not.
The practice of de-coupling the application to revoke the suspension of the custodial
sentence from any application to estreat recognisances does not appear to have adversely
affected the ability of the courts to activate custodial sentences upon finding a breach of a
condition.
In conclusion, the rules developed by the courts in Ireland for the activation of a
suspended sentence are derived from judicial practice and are organic in nature. The
procedures for the estreatment of sureties attached to a recognisance are provided for in
Rules of Court. The interface between these two sets of rules has given rise to some
confusion particularly when the issue of the enforceability of the suspended sentence is
examined. It has been argued here that the enforceabilityof the suspended sentence is not
dependent upon the enforceability of sureties. The role of the recognisance in the
construction of the suspended sentence must be seen as a mechanism to conveniently
record the conditions of the suspended sentence and a record of the convicted person’s
consent to complywith those conditions. Thereafter, the power of the court to revoke a
suspended sentence is not impeded by the issue of estreatment. In fact, applications for
the estreatment of sureties have fallen into desuetude for most recognisances, including
even estreatment of bail recognisances. The number of applications for estreatment of
bail sureties is miniscule compared to the overall number of bench warrants issued and
executeddailyfor the non-appearance of accusedpersons in the criminal courts.
146 Under the Criminal Justice (CommunityService) Act, 1983 a fine maybe imposedfor failure to complywith the terms of a CommunityService Order in
addition to the activation of the alternative custodial sentence. This represents an additional penaltywithin the sanction.
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