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sentences in the future. One expects however that the statutory suspended sentence
under Section 99 will emerge over time as the dominant disposition as sentencers recognise
the more advantageous enforcement mechanisms containedin the statutorysentence.
A particular aspect of the statutory suspended sentence under Section 99, which will
undoubtedly find favour among the judiciary, is the automatic re-entry of the suspended
sentence before the sentencing court upon a further conviction of the accused where the
original sentencing court may exercise its discretion to revoke or not to revoke the
suspension. However, it mayprove difficult to tell themapart when the court is exercising
its jurisdiction to suspend a sentence under the common lawor statutoryprocedures unless
the recognisance used specifically refers to Section 99 of the Criminal Justice Act, 2006 as
the operating jurisdiction. If the court utilises a suspended sentence which is not in strict
compliance with Section 99, for example without using a bond, it is argued such a
suspended sentence will be permissible as a common law type suspended sentence, but
would clearly offend against the statutory suspended sentence under Section 99(1). One
can expect such anomalies to arise if the two procedures are used simultaneously or
interchangeably. 161
If uncertainty is to result from the mixed use of the two procedures constitutional issues
may arise under Article 38 of the Constitution which require certainty and due course of
law.
In summary, it has been argued in the preceding paragraphs that the introduction of a
statutory replacement for a common lawprovision, whether as an offence, a rule of lawor
a common law jurisdiction or power such as the jurisdiction to suspend a sentence of
imprisonment, will not displace the former common law provision unless there is an
express provision declaring the abolition of the provision in the statute. As a result, the
powers of the criminal courts in Ireland to suspend a sentence of imprisonment will
survive and will continue to co-exist alongside the new statutory arrangements for the
suspension of sentences. Moreover, any organic practices especially in relation to the
making of the suspended sentence at common law, together with the rules of procedure
161 When making a suspended sentence, a judge maynot state explicitlywhich type of suspended sentence s/he is utilising. It maybe possible to discern which jurisdiction was utilised
once the sentence has been made however. For example, if no bond was used, then the statute has not been complied with (Section 99(1)) but the sentence would nonetheless
conformwith the common lawsuspendedsentence if the accusedverballygave his/her wordto the court to be of goodbehaviour andto come up for sentencingif calledupon to do
so. The latter procedure is notedbythe court registrar on the court file.
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