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(vi) Activation of sentence the pivotal role of the prosecution.
An outstanding issue relating to the activation of the suspended sentence which endures
since Whitaker reported upon it in 1985 is the inadequacy in identifying breaches of
conditions and particularly the lack of systematic re-entry of cases for revocation. As
observed, a trivial breach may be disregarded by the court when an application for
revocation is made. Moreover, the question of who precisely has the function of
determining whether the alleged breach is trivial or not is critical to the operation of the
suspended sentence. Is it the function of the Executive in the form of the Prosecution or
is it solely a Judicial function? Prior to 2007 the District Court Rules appear to point
exclusively to the Prosecution as the sole moving party, when it comes to the re-activation
of a sentence. This appears to be so even to the exclusion of any Judicial initiative
(District Court Rules 1997, Order 25 Rule 3). 147
Of fundamental importance in the activation of the suspended sentence is the sole
discretionary role of the prosecution in deciding to apply or not to apply to the court, on
notice to the convicted person, to have the original sentence, which was suspended,
activated. Osborough has written of the “dearth of solid information on contemporary
enforcement practice” (Osborough 1982:254). In this writer’s experience when dealing
with criminal matters, the number of cases entered for re-activation of sentence are
surprisingly fewand exceptional, notwithstanding that suspended sentences are given with
reasonable frequency in the District Court. 148 This view is substantially supported in the
interview data in this chapter. Initially, of course, the prosecution, through the Gardai,
must become aware of a breach of a condition attachedto a suspended sentence before the
possibilityof activation can arise. The failure or reluctance of the prosecution to re-enter
cases for activation of sentence is particularly noticeable even in cases where further
convictions are obtained by persons already under a suspended sentence. In the Circuit
and Central Criminal Courts the function of re-activation also commences within the
prosecutor’s discretion, although such cases are re-entered for activation of sentence more
frequently. This pattern was confirmed in the interviews and referred to earlier (A7J1CC,
A3J1CC, A9J1HC). It is not quite obvious what factors may cause the prosecutor to re-
147 In chapter 7, it will be shown how for the first time the courts themselves are also given powers to initiate revocation proceedings upon finding an
offender guiltyof a subsequent offence under section 99(9) Criminal Justice Act 2006.
148 Such breach proceedings are exceptionallyrare even when the same offender is reconvicted within the operative period of the suspended sentence, even
before the same sentencingjudge.
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