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In the Circuit Criminal Court and the Central Criminal Court there is no formal procedural
rule of court for the re-entry of a case for the lifting of a suspended sentence. The
practice has been for the prosecution to apply on notice to the accused or through his
solicitor to have the matter brought back to court. On the return date if there is no
appearance by the convicted person, a warrant is issued to secure his/her appearance
before the matter proceeds further.
In the District Court, the prosecution had the sole right to seek to have the suspended
sentence activated (District Court Rules 1997, Order 25, Rule 3) and although a Judge of
the District Court may have suggested a case be re-entered, s/he was not empowered of
his or her own motion to have such a case re-entered. Thus, by virtue of the District
Court Rules, the District Court Judge was denied the opportunity of invoking a judicial
function unless the Prosecution exercised a function which in practice had all the hallmarks
of a discretionary function, to initiate the activation process. Notwithstanding claims to
the contrary by Ryan and Magee (1983) there is no automatic feature to the activation of a
suspended sentence. Everything depended upon the prosecution to initially decide to
seek activation of the sentence and, secondly, the successful service of the Notice for Re-
Entry on the accused or the execution of a warrant to secure the appearance of the
convicted person back before the court. The role of the prosecution as sole gate-keeper
to the process, while invested with what appears to be wide discretionary powers to re-
activate, placed the suspended sentence in a special category of penalty which was partially
judicial but conditionallyso, subject to the prosecution’s effective veto on activation.
Such an anomalous result begs the question: who retains ownership of the sentence which
is suspended? It seems the court retains ownership but this is conditional upon the
prosecution’s discretion to seek to have the case re-entered for activation. In Ireland, the
prosecution of criminal cases in the District Court is performed almost exclusively by An
Garda Siochana in the name of the Director of Public Prosecutions. This dual Garda role
of crime investigator and prosecutor in the District Court mayon occasion be open to the
claim of conflict of interest when a person on a suspended sentence is subject to have
his/her case re-entered by a member of the Gardai who exercises the initial function of
activation of the sentence, while the same offender may be under active investigation in
relation to other offences or may have particular knowledge or “intelligence” in relation to
other offences which the Gardai as investigators, wouldseek to acquire.
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