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of the pre-existing power to suspend a sentence is based upon an interpretation of a series
of provisions both constitutional andlegislative.
From a constitutional perspective, the jurisdiction to suspend a sentence was exercised by
the courts in Ireland prior to the enactment of the Irish Free State Constitution Act 1922
to which the Constitution was scheduled. By virtue of Article 73 of that Constitution the
laws actually in force in Ireland immediately preceding the coming into force of the
Constitution were to “continue to be of full force and effect” provided such were not
inconsistent with the Constitution. The 1922 Constitution continued in force until it was
replaced bythe current Constitution in 1937 (Bunreacht na hEireann 1937). 153 Article 50
of the Constitution of Irelandprovides:
Subject to this Constitution and to the extent to which they are not inconsistent
therewith, the laws in force in Saorstat Eireann immediately prior to the date of the
coming into operation of this Constitution shall continue to be of full force and
effect until the same or any of them shall have been repealed or amended by
enactment of the Oireachtas (Article 50(i)).
Although the power assumed bythe criminal courts in Ireland to suspend sentences might
not immediately fit into the neat category of the “laws”, it has been held that the phrase
“the laws” within Article 50 does not refer to statute law only but also encompasses
common lawoffences and rules (The State (Browne) – v – Feran [1967] I.R. 147 Walsh J).
It has been argued in chapter 6 that the power to suspend sentences acquired over time a
common law persona although its genesis cannot be traced to a period in the far distant
past. In fact it is quite recent. But the pervasive use of the sanction, which was twice
blessed by the Supreme Court, ensured its continuous existence as a common lawpractice
of lawful credentials. It is therefore argued that if the common lawjurisdiction to suspend
sentences is not to survive the enactment of Section 99 of the Criminal Justice Act 2006, it
is necessary for such a jurisdiction to be expressly abolished in the creation of any new
statutory power to suspend a sentence. As noted in chapters 5 and 6, the innovation of
the suspended sentence was very much an indigenous Irish disposition which was current
before independence in 1922 and survived under the Constitution of 1922 by virtue of
153 The overall effect, firstly of Article 73 of the 1922 Constitution of the Irish Free State and Article 50 of the Constitution of Ireland 1937 seems to have carried forward into Irish
domestic lawa whole series of enactments of the Imperial parliament which have little or no bearingon the governance of Ireland such as legislation dealingwith the colonies (Forde
1987, Hogan andWhyte 1991).
356