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portion of a part-suspended sentence prior to the expiration of the custodial part of the
sentence. Section 99(13) provides:
Where a member of the Garda Siochana or, as the case may be, the governor of the
prison to which a person was committed has reasonable grounds for believing that a
person to whom an order under this section applies has contravened the condition
referred to in subsection (2) he or she may apply to the court to fix a date for the
hearingof an application for an order revoking the order under subsection(1).
Similarlythe Garda Siochana are empowered to seek revocation of the suspended sentence
if conditions are not complied with once the convicted person is released from the initial
custodial period of a part-suspended sentence or at any time during a wholly suspended
sentence. Subsection 13 is constructed in such a way as to vest the supervision of a
person while on a suspended sentence or a part suspended sentence firmlyin the hands of
the Executive. This desirable result was strongly advocated by Keane C.J. in People
(D.P.P.) –v – Finn [2001] 2IR 46 163 and appears to have been achieved in this section.
However, as previously noted, there is no clear abolition of the common law suspended
sentence or the reviewable sentence which became known as the Butler Order within the
new legislation. Accordingly it is speculated that the Butler Order may quietly fall into
disuse once the provisions of Section 99(13) become accepted by sentencers as the most
appropriate method to supervise compliance with conditions by offenders while in the
custodial stage of a part suspended sentence.
So, except for deferred penalties which will be discussed later (Section 100), the function of
supervision of compliance with conditions of a suspended sentence under Section 99 is
nowlocated exclusivelywithin the Executive domain and is subject to Executive discretion
andarguablya duty, to seek activation of sentence in the event of anybreach of conditions.
163 Keane C.J. stated in People (D.P.P. – v – Finn) 2001 2I.R. p.46 that “the making of such orders is not merelyinconsistent with the provisions of Section
23 of the Act of 1951: it offends the separation powers in this area mandated byArticle 13.6 of the Constitution. That provision expresslyvests the power of
commutation or remission in the President but provides that the power mayalso be conferred bylawon other authorities.” And later at p.46 “it would seem
to followthat the remission power, despite its essentially judicial character, once vested under the Constitution in an executive organ, cannot, without further
legislative intervention, be exercised by the courts”. However at page 48 he stated “the court has already pointed out that its observations in this area are
necessarilyobiter. Theyare not to be taken as impugning the validityof such sentences imposed bytrial judges in cases which have alreadycome before the
courts…” (Keane C.J.).
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