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Two Jurisdictions One Sentence
In this section the possibility of the emergence of two distinct sentencing jurisdictions will
be explored in more detail. It will be argued that the assumed jurisdiction bythe courts in
Ireland to impose a suspended sentence, namely the common lawjurisdiction, will endure
despite the statutoryform of suspended sentence introduced pursuant to Section 99 of the
Criminal Justice Act 2006. Such claims to the existence of two sentencing jurisdictions to
impose a suspended sentence are based upon considerations of constitutional, historical
andlegislative factors but subject to the rules of construction necessaryin such an exercise.
Central to this argument is the claim that the Oireachtas has not sought to resolve the
ambiguity concerning the inherent power of the courts to impose a suspended sentence
under the common law jurisdiction in the statutory form of suspended sentence enacted
pursuant to Section 99. Rather, the Oireachtas has superimposed a statutory form of
jurisdiction over an already pre-existing common law jurisdiction without removing the
original common lawjurisdiction in the same enactment.
It is argued here that there is no clear intention expressed on the part of the Oireachtas to
abolish the common law jurisdiction to impose the suspended sentence and to replace it
firmlywithin a statutoryframework only. The writer interprets the approach taken bythe
Oireachtas as an intention on its part not to create an entirely new form of sentence but
merely to provide the necessary structures in a statutory format to give effect to such a
power. As observed in the preceding two chapters, the construction and operation of the
suspended sentence is shown to be distinctly threadbare when the issue of activation of
sentence is examined.
A clean break with the old jurisdiction could have been made by a simple amendment
within Section 99 providing that all powers heretofore exercised bythe courts in Ireland in
respect of the making of suspended sentences shall be revoked and abolished and
henceforth such powers to make a suspended sentence shall be provided by this Section
only or by any statutory amendment made thereafter. The jurisdiction to deal with
suspended sentences already in existence upon the enactment of Section 99 could have
been provided for bywayof a transitional provision, but this was not done. 152 The survival
152 For example, Section 2 of the Non Fatal Offences against the Person Act 1997 introduced a newstatutoryoffence of assault. Section 31 repealed the offence of assault at Common
Lawbut Section 32 allowedaperiodof transition of 3 months.
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