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Besides placing the suspended sentence on a statutory footing, thus giving the sanction a
clear status as advocated by Whitaker (1985), the second recommendation by Whitaker on
enforceability has also been addressed in Section 99. The Whitaker Committee had
recommended that if the issue of enforceability was addressed then the courts would
favour using the sanction with greater frequency. The great danger of course is that courts
may favour using the sanction more often instead of imposing fines and probation,
especiallywhere the courts mayhave an increasing level of confidence that breaches will be
brought back to the court for activation or for the consideration of penalty. As a
consequence, if courts commence using the newstatutorysuspended sentence with greater
frequency than they have to date under the common law jurisdiction, and if as a result of
the new procedures for activation, a greater number of breach proceedings are re-entered
before the courts, it is more likely than not that the overall prison population will increase
as a result of the use of the newmeasures. 168
The probability of a rise in the prison population resulting from the greater use of the
suspended sentence in light of the enhanced revocation procedures provided for under
Section 99 was specificallyaddressedbyone judge in the interviews where he stated:
“I think initially both the decoupling of community service from the custodial requirement and the
use of the suspended sentence under the new act of 2006 might have that effect [of increasing the
number of persons committed to prison upon breach], but I think the sooner the better the system
168 When communityservice orders were originallyintroduced in 1984 a clear pattern of experimentation by the judiciary
could be detected, especially in the initial five year period following its introduction. (Jennings 1990) The Irish judiciary
are likelyto followthe same pattern upon the introduction of the statutory suspended sentence, especiallyif, as Whitaker
(1985) anticipated, the issue of enforceability is rectified by automatic re-entry of breach of a suspended sentence upon
subsequent conviction. This “infirmity” has nowbeen removed by Section 99(9). In consequence, the criminal courts
are likely to have a far greater recourse to the use of the sanction. On aggregate, if the number of suspended sentences
made each year is to increase then the number of breach proceedings will inevitably increase also, a certain amount of
which will eventually result in the imposition of the original or substantially similar custodial sentences (Section 99(10)).
Studies from other jurisdictions on breach rates and the treatment of breaches by the courts are instructive on this point.
Bottoms estimated that of those given a suspended sentence in England and Wales, 30% had their sentence activated over
time (Bottoms 1987:189) while Sparks put his estimate at 35%. Sparks hadestimatedthat 40% of those given a suspended
sentence would be reconvicted during the operational period and of those convicted between 84% and 90% had their
suspended sentence activated either in whole or in part (Sparks 1991:391). However, in Victoria, Tait found that a total
activation rate of only10% was evident. He ascribed the difference with the English rates to the length of the operational
period which was limited bystatute to a maximum of 12 months in Victoria, whereas in England and Wales at that time,
the operational period could be fixed for up to 3 years. Interestingly, Tait’s finding of 10% activation rate corresponded
with a sub-group within Sparks study where the operational period was limited to 12 months also. The likelihood of the
breach of a suspended sentence increased with an increase in the period of suspension (Tait 1995:154 – 155).
Additionally, Tait found that the original sentence of imprisonment which he estimated was inflated by virtue of its
suspension, would be reduced somewhat upon activation on a discretionarybasis bythe judges to reflect the sentence that
would have been imposed if an immediate sentence of imprisonment had been given (Tait 1995:155). This possibility
also presents in Irish sentencing practice and Section 99(10) provides for a wide discretion to sentencers when considering
activation upon breach. However, the overall effect of the new statutory suspended sentence in Ireland may be to
increase the length of the custodial period to be served when Section 60 of the Criminal Justice Act 2007 is taken into
account. This requires as a matter of lawthat anysubsequent sentence imposed upon breach must be consecutive. The
possibilityof judicial discretion is removedin this arrangement.
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