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alter due to legislative or administrative changes while the enquiry is proceeding. The
luxury of conducting an enquiry into historically fixed legal topics is denied the researcher
of current issues, who must be capable of adapting the material gleaned to date in order to
make sense of any sudden changes in the law whether real or apparent. Such a situation
presented to this researcher when considering the operation of the suspended sentence in
Ireland thus expanding the fieldof enquiry.
A literal interpretation of Section 99 suggests that a new power is given to the courts to
suspend sentences. However, this view ignores the sentencing jurisdiction already
extensively exercised by all of the criminal courts in Ireland on a common-law basis. As
no attempt is made within the new statutory arrangement to expressly revoke or abolish
the jurisdiction to suspend sentences heretofore enjoyed by sentencing courts in Ireland, a
critical question presents to the legal scholar: whether, upon the enactment of Section 99
and Section 100, there continues to exist alongside the new statutory power and
procedures for the making, maintenance and revocation of the suspended sentence, a
previouslyestablished common-lawtype jurisdiction to suspend sentences?
Besides the dual jurisdictional issues referred to, this chapter sets out to explore a number
of features of the suspended sentence which may have been modified or transformed by
the incorporation of the sanction in a statutoryframework. In particular the search for the
rationale of the sanction must be re-visited to discern whether the statutory form of the
sanction differs from the common law usage. The ownership of the suspended sentence
at common law was presented as a two stage process with the initial judicial ownership
passing to the Executive for the purposes of supervision of the sanction. In the statutory
arrangement, it will be seen how such ownership of the sanction is now a shared process
where judges are obliged to re-enter cases for consideration of revocation. Under the
common law system this latter function was exclusively an executive function and only
rarely exercised. It will be demonstrated howthe statutory prescription of procedures for
the making, supervision and revocation of the suspended sentence address a series of
difficulties to facilitate the operation of the sanction. So comprehensive are the
procedures it is likely that the fractured and ad-hoc procedures used to date to operate the
common law suspended sentence will effectively wither and die and will be entirely
replacedin practice bythe newstatutoryarrangement.
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