Suspended Sentences

District Court Rules

 

Order 28A

Proceedings Under Part 10 Of The Criminal Justice Act 2006

: S.I. No. 203 Of 2007
The below amendment(s) have been made to this instrument which can be viewed by clicking on the link(s):

No28A-S.I. No. 25 Of 2008: District Court (Criminal Justice Act 2006) (No. 2) Rules 2008
No28A-S.I. No. 105 Of 2009: District Court (Criminal Justice Act 2006) Rules 2009
No28A-S.I. No. 260 Of 2010: District Court (Criminal Justice (Miscellaneous Provisions) Act 2009) Rules 2010

 

Proceedings under Part 10 of the Criminal Justice Act 2006

1. In this Order, “the Act” means the Criminal Justice Act 2006 (No. 26 of 2006).

2. Where a person has been sentenced to a term of imprisonment and the Court makes an order under section 99(1) of the Act suspending the execution of the sentence in whole or in part, subject to the person entering into a recognisance with or without surety to comply with the conditions of, or imposed in relation to, the order, the order and the recognisance shall be in the Form 28A.1, Schedule B.

3. The Clerk shall transmit a copy of any order made under section 99 of the Act by ordinary post to each of the persons referred to in section 99(7) of the Act and, where appropriate, to each of the persons referred to in section 99(8) of the Act.

4. An application by a probation and welfare officer under section 99(6) of the Act for the imposition of any of the conditions referred to in section 99(4) in relation to an order made under section 99(1) of the Act shall, except where the Court otherwise directs or permits, be by information on oath and in writing of the probation officer in the Form 28A.2, Schedule B. Such application may be made at any sitting of the Court for the court district wherein the accused was convicted. Where the Court considers it appropriate to do so, it may issue a warrant to the Governor of the prison where the person is in prison in the Form 28A.3, Schedule B for the production of the person bound by the recognisance to appear before it to answer the application. The order of the Court shall be in the Form 28A.1, Schedule B, with such modifications as are necessary.

5. Where the granting of any application under this rule will require the addition of conditions to a recognisance, the original recognisance shall be produced in Court. Where the Court adds conditions to the recognisance, the person(s) bound shall re-acknowledge the recognisance as so amended before the Court on the making of such amendment.

6. An application under section 99(13) of the Act by a member of an Garda Síochána or the governor of the prison to which a person was committed or under section 99(14) of the Act by a probation and welfare officer to fix a date for the hearing of an application for an order revoking an order under section 99(1) of the Act shall, except where the Court otherwise directs or permits, be by information on oath and in writing of the applicant in the Form 28A.4, Schedule B. An application to fix such date may be made at any sitting of the Court for the court district wherein the accused was convicted. On the hearing of the application to fix a date, the Court shall, if it grants the application, fix a date upon which the application shall be made returnable. For the purpose of informing the person in respect of whom the application will be made of the fixing of a date for the hearing of the application in accordance with section 99(15) of the Act, the Clerk shall give notice to the person concerned by a notice in writing in the Form 28A.5 , Schedule B to the person concerned, returnable to such date, to answer the application or, if the person will on the return date be in prison, the court shall issue a warrant to the Governor of the prison where the person is in prison for the production of the person bound by the recognisance in the Form 28A.3 , Schedule B to appear before it to answer the application, and such notice shall be given in one of the ways specified in section 99(18) of the Act. Notice of the application shall be given to any surety by sending a copy of the notice or warrant to the surety in accordance with the provisions of Order 10 of these Rules.

7. Where a person who is not in prison fails to appear before the Court in answer to a notice issued in accordance with rule 6, a warrant for the arrest of such person may be issued in the Form 22.2 , Schedule B, with such modifications as may be necessary.

8. Where the Court makes an order under section 99(10) or section 99(17) of the Act revoking an order made under section 99(1) of the Act, the Court shall forthwith issue the appropriate warrant of committal in accordance with Order 25, rule 3, in the Form 25.8 , with such modifications, if any, as may be necessary.

9. The provisions of these Rules which relate to appeals against sentence shall apply with such modifications as may be necessary to appeals under section 99(12) of the Act against the revocation of an order suspending a sentence.

10. Where the Court makes an order in accordance with section 100(1)(b) of the Act, the order shall be in the Form 28A.6 , Schedule B.

11. The Clerk shall send a copy of any order made in accordance with section 100(1)(b) of the Act by ordinary post to each of the persons referred to in section 100(4) of the Act.

12. For the purpose of giving notice of the specified date to the person in respect of whom the order under section 100(1) of the Act was made, in accordance with section 100(5) of the Act, the Clerk shall issue a notice in writing in the Form 28A.7 , Schedule B addressed to that person by name, returnable to such date, and such notice shall be given to that person in one of the ways specified in section 100(13) of the Act. Where that person fails to appear before the Court in answer to such notice, a warrant for the arrest of such person may be issued in the Form 22.2, Schedule B, with such modifications as may be necessary.

13. An application by a member of an Garda Síochána under section 100(7) of the Act to fix a date for the hearing of an application for an order imposing the term of imprisonment specified in the Court’s order in accordance with section 100(1)(b) of the Act shall, except where the Court otherwise directs or permits, be by information on oath and in writing of the member of an Garda Síochána in the Form 28A.8 , Schedule B. An application to fix such date may be made at any sitting of the Court for the court district wherein the accused was convicted. On the hearing of the application to fix a date, the Court shall, if it grants the application, fix a date upon which the application shall be made returnable. For the purpose of giving notice of the fixing of a date for the hearing of the application in accordance with section 100(8) of the Act, the Clerk shall by notice in writing in the Form 28A.9 , Schedule B inform the person in respect of whom the application will be made of the date so fixed for the hearing of the application. Such notice shall require the person to appear before the Court on the date so fixed and at such time as is specified in the notice and such notice shall be given in one of the ways specified in section 100(13) of the Act. Where that person fails to appear before the Court in accordance with the requirement in such notice, a warrant for the arrest of such person may be issued in the Form 22.2, Schedule B, with such modifications as may be necessary.

14. Where the Court makes an order under section 100(10) or section 100(12) of the Act imposing a term of imprisonment, the Court shall forthwith issue the appropriate warrant of committal in accordance with Order 25, rule 3, in the Form 25.8, with such modifications, if any, as may be necessary.

15. Where the Court makes a restriction on movement order in accordance with section 101(1) of the Act, the order shall be in the Form 28A.10, Schedule B. The Clerk shall send a certified copy of any order made in accordance with section 101(1) of the Act by registered post to each of the persons referred to in section 101(12) of the Act.

16. An application under section 103(1) of the Act to vary a restriction on movement order shall be brought before a sitting of the Court for the Court district in which the offender resides or is to reside while the restriction on movement order is in force by the issue of a notice of application in the Form 28A.11 , Schedule B. A copy of such notice shall be served upon each of the persons specified in section 103(1) of the Act not later than seven days before the date fixed for the hearing of the application and the original notice shall be lodged with the Clerk not later than seven days before the date fixed for the hearing of the application. Where the Court makes an order varying the restriction on movement order, the order shall be in the Form 28A.10 , Schedule B, with such modifications as may be necessary, and the Clerk shall send a certified copy of such order by registered post to each of the persons referred to in section 103(4) of the Act.

17. An application by a member of an Garda Síochána for an order under section 105(1) of the Act shall, except where the Court otherwise directs or permits, be by information on oath and in writing of the member of an Garda Síochána in the Form 28A.12 , Schedule B. Where the Court proposes to exercise its powers under section 105(1), the Clerk shall issue a summons in the Form 28A.13 , Schedule B to the person concerned. Such summons shall be served in accordance with the provisions of Order 10. Where that person fails to appear before the Court in answer to such summons, a warrant for the arrest of such person may be issued in the Form 22.2 , Schedule B, with such modifications as may be necessary.

Amendment to Order 28A
S.I. No. 25 of 2008:

District Court (Criminal Justice Act 2006) (No. 2) Rules 2008

1. These rules may be cited as the District Court (Criminal Justice Act 2006) (No. 2) Rules 2008.

2. These rules shall come into operation on the 12 day of March 2008 and shall be read together with all other District Court Rules for the time being in force.

3. The District Court Rules 1997 (S.I. No. 93 of 1997) shall be amended by the substitution for rule 8 of Order 28A of the following:

“8. (1) Where the Court convicts a person to whom an order made under section 99(1) of the Act applies, and remands such person in custody or on bail under section 99(9) of the Act, the Court shall make an order in the Form 28A.14. On the making of such order, the Clerk shall send a certified copy of the order by post to the Registrar, County Registrar or Clerk (as the case may be) of the court to which the person so convicted is to be remanded.

(2) Where an order under section 99(9) of the Act is made remanding the convicted person in custody in accordance with sub-rule (1), the Court shall issue a warrant in the Form 28A.15.

(3) Where an order under section 99(9) of the Act is made remanding a convicted person on bail, and the recognisance cannot be entered into immediately, the warrant in the Form 28A.15 shall include the consent to, and conditions of, release in the form of Part B of Form 28A.15.

(4) Where the Court makes an order under section 99(10) of the Act, in respect of a convicted person remanded to appear before it (under section 99(9) of the Act), and remands such person in custody or on bail under section 99(10A) of the Act, the order shall be in the Form 28A.16. On the making of such order, the Clerk shall send a certified copy of the order by post to the Registrar, County Registrar or Clerk (as the case may be) of the court to which such person is to be remanded.

(5) Where an order is made remanding such person in custody under section 99(10A) of the Act, the Court shall issue a warrant in the Form 28A.17.

(6) Where an order is made remanding such person on bail under section 99(10A) of the Act, and the recognisance cannot be entered into immediately, the court warrant in the Form 28A.17 shall include the consent to, and conditions of, release in Part B of Form 28A.17.

(7) Where the Court makes an order under section 99(17) of the Act revoking an order made under section 99(1) of the Act, the Court shall forthwith issue the appropriate warrant of committal in accordance with Order 25, rule 3, in the Form 25.8, with such modifications, if any, as may be necessary.”

4. The Forms in Schedule 1 hereof shall be added to the Forms in Schedule B of the District Court Rules 1997 (S.I. No. 93 of 1997).

Amendment to Order 28A
S.I. No. 260 of 2010:

District Court (Criminal Justice (Miscellaneous Provisions) Act 2009) Rules 2010

1. These rules may be cited as the District Court (Criminal Justice (Miscellaneous Provisions) Act 2009) Rules 2010.

2. These rules shall come into operation on the 1st day of July 2010 and shall be construed together with all other District Court Rules 1997 to 2010.

3. The District Court Rules 1997 (S.I. No. 93 of 1997) are amended:

(…)

(vii) by the substitution for sub-rule (1) of rule 8 of Order 28A of the following sub-rule:

“8. (1) Where the Court convicts a person to whom an order made under section 99(1) of the Act applies of an offence committed after the making of the order under section 99(1), and remands such person in custody or on bail under section 99(9) of the Act, the Court shall make an order in the Form 28A.14. On the making of such order, the Clerk shall send a certified copy of the order by post to the Registrar, County Registrar or Clerk (as the case may be) of the court to which the person so convicted is to be remanded.”

4. The Forms numbered 16.2, 18.2A, 18.2B, 27.9, 27.12, 28A.14, 28A.15 and 28A.16 in the Schedule are respectively substituted for the Forms bearing the like numbers in Schedule B of the District Court Rules 1997 (S.I. No. 93 of 1997). The Form numbered 27.6B is deleted from Schedule B of the District Court Rules 1997.

CRIMINAL JUSTICE ACT 2006

Power to suspend sentence.

99.— (1) Where a person is sentenced to a term of imprisonment (other than a mandatory term of imprisonment) by a court in respect of an offence, that court may make an order suspending the execution of the sentence in whole or in part, subject to the person entering into a recognisance to comply with the conditions of, or imposed in relation to, the order.

(2) It shall be a condition of an order under subsection (1) that the person in respect of whom the order is made keep the peace and be of good behaviour during—

(a) the period of suspension of the sentence concerned, or

(b) in the case of an order that suspends the sentence in part only, the period of imprisonment and the period of suspension of the sentence concerned,

and that condition shall be specified in the order concerned.

(3) The court may, when making an order under subsection (1), impose such conditions in relation to the order as the court considers—

(a) appropriate having regard to the nature of the offence, and

(b) will reduce the likelihood of the person in respect of whom the order is made committing any other offence,

and any condition imposed in accordance with this subsection shall be specified in that order.

(4) In addition to any condition imposed under subsection (3), the court may, when making an order under subsection (1) consisting of the suspension in part of a sentence of imprisonment or upon an application under subsection (6), impose any one or more of the following conditions in relation to that order or the order referred to in the said subsection (6), as the case may be:

(a) that the person co-operate with the probation and welfare service to the extent specified by the court for the purpose of his or her rehabilitation and the protection of the public;

(b) that the person undergo such—

(i) treatment for drug, alcohol or other substance addiction,

(ii) course of education, training or therapy,

(iii) psychological counselling or other treatment,

as may be approved by the court;

(c) that the person be subject to the supervision of the probation and welfare service.

(5) A condition (other than a condition imposed, upon an application under subsection (6), after the making of the order concerned) imposed under subsection (4) shall be specified in the order concerned.

(6) A probation and welfare officer may, at any time before the expiration of a sentence of a court to which an order under subsection (1) consisting of the suspension of a sentence in part applies, apply to the court for the imposition of any of the conditions referred to in subsection (4) in relation to the order.

(7) Where a court makes an order under this section, it shall cause a copy of the order to be given F31[, by electronic or other means,] to—

(a) the Garda Síochána, or

(b) in the case of an order consisting of the suspension of a sentence in part only, the governor of the prison to which the person is committed and the Garda Síochána.

(8) Where a court has made an order under subsection (1) and imposes conditions under subsection (4) upon an application under subsection (6), it shall cause a copy of the order and conditions to be given F32[, by electronic or other means,] to—

(a) the probation and welfare service, and

(b) (i) the Garda Síochána, or

(ii) in the case of an order consisting of the suspension of a sentence in part only, the governor of the prison to which the person is committed and the Garda Síochána.

F33[(8A) (a) Where a person to whom an order under subsection (1) applies—

(i) commits an offence after the making of that order and during the period of suspension of the sentence concerned (in this section referred to as the “triggering offence”), and

(ii) subject to subsection (8B), is convicted of the triggering offence,

the court before which proceedings for the triggering offence are brought shall, after imposing sentence for that offence, remand the person in custody or on bail to a sitting of the court that made the said order to be held—

(I) no later than 15 days after such remand, or

(II) if there is no sitting of that court within that period, to the next sitting of that court thereafter,

and, if there is no sitting of that court on the day to which that person has been remanded, he or she shall stand so remanded to the sitting of that court next held after that day.

(b) The remand of a person in custody or on bail under paragraph (a) to a sitting of the court that made the order under subsection (1) concerned applying to the person may be to a sitting of that court other than a sitting thereof referred to in paragraph (c).

(c) Subject to paragraph (b), references in paragraph (a) to a sitting of a court shall be construed as references to a sitting of the court at a place and time appointed or fixed for sittings of that court by or under statute.

(8B) Subsection (8A) applies to a conviction of a person for an offence if proceedings for the offence are instituted against the person during the period of suspension of the sentence concerned pursuant to the order under subsection (1) applying to the person and 12 months thereafter.

(8C) Subject to subsection (8D), a court to which a person has been remanded under subsection (8A) shall revoke the order under subsection (1) concerned unless it considers that the revocation of that order would be unjust in all the circumstances of the case, and where the court revokes that order, the person shall be required to serve the entire of the sentence of imprisonment originally imposed by the court, or such part of the sentence as the court considers just having regard to all of the circumstances of the case, less any period of that sentence already served in prison and any period spent in custody (other than a period spent in custody by the person in respect of the triggering offence) pending the revocation of the said order.

(8D) Where a person appeals against conviction or sentence for the triggering offence, a court referred to in subsection (8C) may, upon application in that behalf by the person, adjourn the proceedings under that subsection for such period as the court considers appropriate to enable that person to bring the appeal and for it to be determined.

(8E) If an appeal brought by the person concerned against conviction or sentence for the triggering offence is withdrawn or abandoned, the court referred to in subsection (8C) shall, in accordance with that subsection, consider the revocation of the order under subsection (1) concerned.

(8F) On the determination of an appeal against conviction or sentence for the triggering offence brought by the person concerned—

(a) if the order of the court before which proceedings for that offence were brought is reversed insofar as it relates to the conviction for that offence or the conviction for that offence is quashed, the court referred to in subsection (8C) shall dismiss the proceedings under that subsection, and

(b) in all other cases, the court referred to in subsection (8C) shall, in accordance with that subsection, consider the revocation of the order under subsection (1) concerned.

(8G) When an appeal against conviction or sentence for the triggering offence is withdrawn, abandoned or determined, the person concerned shall, for the purposes of subsections (8E) and (8F), appear before the court referred to in subsection (8C) whenever he or she is required to do so by that court.

(8H) In subsections (8D) to (8G), references to an appeal against conviction or sentence for the triggering offence shall be construed as references to an appeal against conviction or sentence, as the case may be, for that offence, whether by way of rehearing, case stated or otherwise.]

(9) … [declared unconstitutional, see E-note below]

(10) … [declared unconstitutional, see E-note below]

F34[(10A) F35[…]]

F36[(11) (a) Where an order under subsection (1) applying to a person is revoked under subsection (8C), any period of imprisonment required to be served by the person as a result of that revocation shall be consecutive on any sentence of imprisonment (other than a sentence consisting of imprisonment for life) imposed on the person in respect of the triggering offence.

(b) Paragraph (a) shall not apply if the execution of the sentence of imprisonment imposed on the person in respect of the triggering offence is wholly suspended under subsection (1).]

(12) Where an order under subsection (1) is revoked in accordance with this section, the person to whom the order applied may appeal against the revocation to such court as would have jurisdiction to hear an appeal against any conviction of, or sentence imposed on, a person for an offence by the court that revoked that order.

(13) Where a member of the Garda Síochána or, as the case may be, the governor of the prison to which a person was committed has reasonable grounds for believing that F37[a person to whom an order under subsection (1) applies has contravened the condition referred to in subsection (2) or a condition imposed under subsection (3), he or she may apply] to the court to fix a date for the hearing of an application for an order revoking the order under subsection (1).

F38[(13A) The Director of Public Prosecutions may, if he or she has reasonable grounds for believing that a person to whom an order under subsection (1) applies has contravened a condition imposed under subsection (3), apply to the court to fix a date for the hearing of an application for an order revoking the order under subsection (1).]

(14) A probation and welfare officer may, if he or she has reasonable grounds for believing that a person to whom an order under subsection (1) applies has contravened a condition imposed under subsection F39[…](4), apply to the court to fix a date for the hearing of an application for an order revoking the order under subsection (1).

(15) Where the court fixes a date for F40[the hearing of an application referred to in subsection (13), (13A) or (14)], it shall, by notice in writing, so inform the person in respect of whom the application will be made, or where that person is in prison, the governor of the prison, and such notice shall require the person to appear before it, or require the said governor to produce the person before it, on the date so fixed and at such time as is specified in the notice.

(16) If a person who is not in prison fails to appear before the court in accordance with a requirement contained in a notice under subsection (15), the court may issue a warrant for the arrest of the person.

(17) A court shall, where it is satisfied that a person to whom an order under subsection (1) applies has contravened a condition of the order, revoke the order unless it considers that in all of the circumstances of the case it would be unjust to so do, and where the court revokes that order, the person shall be required to serve the entire of the sentence originally imposed by the court, or such part of the sentence as the court considers just having regard to all of the circumstances of the case, less any period of that sentence already served in prison and any period spent in custody pending the revocation of the said order.

(18) A notice under subsection (15) shall be addressed to the person concerned by name, and may be given to the person in one of the following ways:

(a) by delivering it to the person;

(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address;

(c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address.

F41[(18A) Where, under subsection (8C) or (17), a court revokes an order under subsection (1) applying to a person and the person is required to serve a part of the sentence of imprisonment originally imposed on him or her, the court may make a further order suspending the execution of the part of the sentence of imprisonment that is not required to be served by the person and such further order shall, for the purposes of this section, be regarded as an order made under subsection (1) applying to the person and that subsection shall apply accordingly.]

(19) This section shall not affect the operation of—

(a) section 2 of the Criminal Justice Act 1960 or Rule 38 of the Rules for the Government of Prisons 1947 (S.R. & O. No. 320 of 1947), or

(b) subsections (3G) and (3H) of section 27 of the Misuse of Drugs Act 1977.

F42[(19A) If, in relation to a person, the application of subsection (11) conflicts with any of the other consecutive sentencing provisions with regard to the sequence in which the following shall be served by the person, namely—

(a) a sentence of a term of imprisonment imposed on the person for the triggering offence,

(b) the period of imprisonment required to be served by the person under subsection (8C), and

(c) a sentence of a term of imprisonment imposed on the person for another offence of which he or she is convicted,

the court referred to in subsection (8C) or any other court concerned may determine that sequence in such manner as it considers just, provided that the sentences of imprisonment referred to in paragraphs (a) and (c) and the period of imprisonment referred to in paragraph (b) shall be consecutive on each other.

(19B) Where a person is convicted of the triggering offence by the District Court and an order under subsection (1) applying to the person is revoked by the District Court under subsection (8C), the aggregate of—

(a) a sentence of a term of imprisonment imposed on the person for the triggering offence,

(b) the period of imprisonment required to be served by the person under subsection (8C), and

(c) a sentence of a term of imprisonment for any other offence imposed on the person by the District Court that is required by any of the other consecutive sentencing provisions to be consecutive on the sentence of imprisonment referred to in paragraph (a) or the period of imprisonment referred to in paragraph (b) or vice versa,

shall not exceed 2 years.]

F34[(20) Where a court imposes a sentence of a term of imprisonment that is to run consecutively to a sentence of a term of imprisonment the operation of a part of which is suspended, the first-mentioned sentence shall commence at the expiration of the part of the second-mentioned sentence the operation of which is not suspended.]

F43[(21) Where—

(a) under subsection (8C), an order under subsection (1) applying to a person is revoked and the person is required to serve a part of the sentence of imprisonment originally imposed on him or her under that subsection, and

(b) a court imposes a sentence of a term of imprisonment on the person that is to be consecutive on the sentence of imprisonment referred to in paragraph (a),

the sentence of imprisonment referred to in paragraph (b) shall commence at the expiration of the period of imprisonment required to be served by the person under subsection (8C) referred to in paragraph (a).

(22) Where an order under subsection (1) is made by a court on appeal from another court—

(a) the reference in subsection (8A) to the court that made the order under subsection (1),

(b) the references in subsections (8C), (8D), (8G), (13) to (17), (18A) and (19A) to the court that may exercise jurisdiction under each of those subsections, and

(c) the reference in subsection (12) to the court that revoked the order under subsection (1),

shall be construed as references to the court from whose order or decision the appeal was taken.

(23) In this section the “other consecutive sentencing provisions” means—

(a) section 5 of the Criminal Justice Act 1951,

(b) section 13 of the Criminal Law Act 1976,

(c) section 11 of the Criminal Justice Act 1984,

(d) section 54A of the Criminal Justice (Theft and Fraud Offences) Act 2001, and

(e) any other enactment that requires or permits a court to impose a consecutive sentence.]

Annotations

Amendments:

F31
Inserted (11.01.2019) by Criminal Justice (Suspended Sentences of Imprisonment) Act 2017 (4/2017), s. 2(a), S.I. No. 1 of 2019.

F32
Inserted (11.01.2019) by Criminal Justice (Suspended Sentences of Imprisonment) Act 2017 (4/2017), s. 2(b), S.I. No. 1 of 2019.

F33
Inserted (11.01.2019) by Criminal Justice (Suspended Sentences of Imprisonment) Act 2017 (4/2017), s. 2(c), S.I. No. 1 of 2019.

F34
Inserted (18.05.2007) by Criminal Justice Act 2007 (29/2007), s. 60(c) and (e), S.I. No. 236 of 2007.

F35
Deleted (11.01.2019) by Criminal Justice (Suspended Sentences of Imprisonment) Act 2017 (4/2017), s. 2(d), S.I. No. 1 of 2019.

F36
Substituted (11.01.2019) by Criminal Justice (Suspended Sentences of Imprisonment) Act 2017 (4/2017), s. 2(e), S.I. No. 1 of 2019.

F37
Substituted (11.01.2019) by Criminal Justice (Suspended Sentences of Imprisonment) Act 2017 (4/2017), s. 2(f), S.I. No. 1 of 2019.

F38
Inserted (11.01.2019) by Criminal Justice (Suspended Sentences of Imprisonment) Act 2017 (4/2017), s. 2(g), S.I. No. 1 of 2019.

F39
Deleted (11.01.2019) by Criminal Justice (Suspended Sentences of Imprisonment) Act 2017 (4/2017), s. 2(h), S.I. No. 1 of 2019.

F40
Substituted (11.01.2019) by Criminal Justice (Suspended Sentences of Imprisonment) Act 2017 (4/2017), s. 2(i), S.I. No. 1 of 2019.

F41
Inserted (11.01.2019) by Criminal Justice (Suspended Sentences of Imprisonment) Act 2017 (4/2017), s. 2(j), S.I. No. 1 of 2019.

F42
Inserted (11.01.2019) by Criminal Justice (Suspended Sentences of Imprisonment) Act 2017 (4/2017), s. 2(k), S.I. No. 1 of 2019.

F43
Inserted (11.01.2019) by Criminal Justice (Suspended Sentences of Imprisonment) Act 2017 (4/2017), s. 2(l), S.I. No. 1 of 2019.

Modifications (not altering text):

C9
References construed (11.01.2019) by Criminal Justice (Suspended Sentences of Imprisonment) Act 2017 (4/2017), s. 3, S.I. No. 1 of 2019.

Construction of references

3. A reference in any enactment, within the meaning of the Interpretation Act 2005, to—

(a) subsection (9) of section 99 of the Act of 2006 shall be construed as a reference to subsections (8A) and (8B) (inserted by section 2 (c)) of the said section 99, and

(b) subsection (10) of section 99 of the Act of 2006 shall be construed as a reference to subsection (8C) (inserted by section 2 (c)) of the said section 99.

Editorial Notes:

E33
Declared unconstitutional: subss. (9) and (10) declared unconstitutional (19.04.2016) by Moore v DPP [2016] IEHC 244. The Criminal Justice (Suspended Sentences of Imprisonment) Act 2017 (4/2017) was enacted in response to this decision.

E34
Previous affecting provision: subs. (9) amended (25.08.2009) by Criminal Justice (Miscellaneous Provisions) Act 2009 (28/2009), s. 51, S.I. No. 330 of 2009 and (18.05.2007) by Criminal Justice Act 2007 (29/2007), s. 60(a), S.I. No. 236 of 2007; subsection declared unconstitutional as per E-note above.

E35
Previous affecting provision: subs. (10) amended (18.05.2007) by Criminal Justice Act 2007 (29/2007), s. 60(b), S.I. No. 236 of 2007; subsection declared unconstitutional as per E-note above.

E36
Previous affecting provision: subs. (11)(a) substituted (18.05.2007) by Criminal Justice Act 2007 (29/2007), s. 60(d), S.I. No. 236 of 2007; substituted as per F-note above.

Imposition of fine and deferral of sentence.

100.— (1) Where a court makes an order convicting a person of an offence in respect of which the person is liable to both a term of imprisonment and a fine, the court may, subject to subsection (2) —

(a) impose a fine on that person in respect of the offence, and

(b) make an order—

(i) deferring the passing of a sentence of imprisonment for the offence, and

(ii) specifying the term of imprisonment that it would propose to impose on the person in respect of that offence should he or she fail or refuse to comply with the conditions specified in the order.

(2) A court shall not perform functions under subsection (1) unless it is satisfied that—

(a) the person concerned consents to the sentence of imprisonment being deferred,

(b) the person gives an undertaking to comply with any conditions specified in an order made under subsection (1) (b) , and

(c) having regard to the nature of the offence concerned and all of the circumstances of the case, it would be in the interests of justice to so do.

(3) An order under subsection (1) (b) shall specify—

(a) the date (in this section referred to as the “specified date”) on which it proposes to pass sentence should the person contravene a condition of the order, being a date that falls not later than 6 months after the making of the order, and

(b) the conditions with which the person concerned is to comply during the period between the making of the order and the specified date, including a condition that the person be of good behaviour and keep the peace.

(4) Where a court makes an order under subsection (1) (b) , it shall cause a copy of the order to be given to the person in respect of whom it is made and the Garda Síochána.

(5) A court that has made an order under subsection (1) (b) shall not later than one month before the specified date require the person in respect of whom the order was made, by notice, to attend a sitting of the court on that date and at such time as is specified in the notice.

(6) If a person fails to comply with a requirement in a notice under subsection (5) , the court may issue a warrant for the arrest of that person.

(7) Where a member of the Garda Síochána has reasonable grounds for believing that a person to whom an order under subsection (1) (b) applies has contravened a condition of the order, he or she may apply to the court to fix a date for the hearing of an application for an order imposing the term of imprisonment specified in the order in accordance with subsection (1) (b) (ii) .

(8) Where the court fixes a date for the hearing of an application referred to in subsection (7) , it shall, by notice in writing, so inform the person in respect of whom the application will be made, and such notice shall require the person to appear before it on the date so fixed and at such time as is specified in the notice.

(9) If a person fails to appear before the court in accordance with a requirement contained in a notice under subsection (8) , the court may issue a warrant for the arrest of the person.

(10) Upon an application by a member of the Garda Síochána for an order imposing the term of imprisonment specified in accordance with paragraph (b) (ii) of subsection (1) , a court may, if it is satisfied that the person in respect of whom the application was made has contravened a condition specified in the order under that subsection, impose the term of imprisonment that it proposed to impose at the time of the making of the order under that subsection (or such lesser term as it considers just in all of the circumstances of the case), unless it considers that it would in all the circumstances be unjust to so do.

(11) On the specified date the court shall, if it is satisfied that the person in respect of whom the order under subsection (1) was made has complied with the conditions specified in the order, not impose the sentence that it proposed to impose when making that order and shall discharge the person forthwith.

(12) On the specified date the court may, if it is satisfied that the person in respect of whom the order under subsection (1) was made has contravened a condition specified in the order, impose the term of imprisonment that it proposed to impose at the time of the making of the order (or such lesser term as it considers just in all of the circumstances of the case) unless it considers that in all of the circumstances of the case it would be unjust to so do, and where it considers that it would be unjust to impose a term of imprisonment it shall discharge the person forthwith.

(13) A notice under subsection (5) or (8) shall be addressed to the person concerned by name, and may be given to the person in one of the following ways:

(a) by delivering it to the person;

(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address;

(c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address.

(14) Section 18(1) of the Courts of Justice Act 1928 is amended by the insertion of “, including an order under section 100 (1) of the Criminal Justice Act 2006” after “the person against whom the order shall have been made”.

Practice Directions