The Supreme Court has ruled that the system of suspended sentences imposed by judges, though in use for over a century, has no statutory basis in Irish law.
It also held yesterday that the power of commutation or remission of sentences was exclusive to the Government.
The court has also decided that the main criminal courts have no power to review sentences already imposed by them, although those courts - the Central Criminal Court and the Circuit Court - have conducted such reviews for years.
The practice of imposing sentences in this form should be discontinued, but sentences already imposed with review provisions would not be affected, the five judge court held.
The absence of legislation dealing with sentence remissions and reviews had encouraged and "virtually constrained" judges to try and overcome the deficiency themselves in individual cases.
The Chief Justice, Mr Justice Keane, said remission or review of sentences was clearly a matter for the Oireachtas. It appeared extremely desirable that remission of sentence, and any review that was to precede it, should be placed on a "clear and transparent basis" and was not a matter for the Supreme Court. The Law Reform Commission, in a report on sentencing, had reviewed a number of options on this.
"It is clearly for the Oireachtas to decide whether to retain the present system unaltered, to devolve the function wholly or partly to a parole board or some other entity, or indeed to confer it on the courts," he said.
"As the law presently stands, the courts cannot exercise this function in individual cases by reason of the separation of powers mandated in this regard by Article 13 of the Constitution. Nor can they prescribe or advocate an alternative system because that is the remit of the legislature."
The Chief Justice said the court's observations were not to be taken as impugning the validity of such sentences imposed by trial judges in cases that have come before the courts already.
Earlier, the Chief Justice said there was considerable uncertainty about the legal validity of the practice of providing in custodial sentences for review of that sentence later by the same court which imposed the sentence.
Supreme Court members who sat in the Court of Criminal Appeal or Circuit Court were aware that, while some judges considered the practice not only valid but desirable, others took the view that they should not impose such sentences.
It was to be expected that the Supreme Court would afford clear guidance to trial judges. While mindful of the fact that in legal terms everything it said on this topic must be regarded as not binding, it was satisfied that it was desirable in the public interest that such guidance should be available to trial judges.
There was no doubt, in the opinion of some judges, that the review procedure was an important mechanism that helped ensure the rehabilitation of convicted persons, but there were two important aspects of such sentences that must be borne in mind when considering their legal validity.
One was that a sentence in this form was, in effect, an invasion by the judiciary of the executive domain which was not authorised by law. It was undoubtedly the case that, where such a sentence was imposed, there was in law nothing to prevent the minister for justice exercising his power of commutation or remission during the period between imposition of sentence and review date.
The essential frailty of the review procedure was not that it deprived the executive of its statutory power to commute or remit the sentence. The frailty was that, when the review date arrived, and when the Central Criminal Court or Circuit Court, on being satisfied the relevant conditions had been met, suspended the balance of the sentence and ordered the release of the convicted person, it was in substance exercising the power of commutation or remission which the Oireachtas had entrusted exclusively to the government or justice minister.
It would seem the remission power, despite its essentially judicial character, could not be exercised by the courts without further legislation once vested under the Constitution in an executive order. That was done in the case of ertain drugs offences by the Criminal Justice Act, 1999.
The Oireachtas could also introduce laws for the regular review of sentences by a parole board.
The remarks on sentencing were set out in the Supreme Court's decision on an appeal by the DPP in relation to sentences imposed on Padraig Finn (24), Cranmore, Sligo. He had been sentenced to seven years in October 1996 by the Central Criminal Court after pleading guilty to raping a woman and to three years for assault.
The trial judge ordered the case to be relisted before him for possible review. In October 1998 Finn got bail and in April 1999 the trial judge suspended the balance of the two sentences.
Following an appeal by the DPP, the Court of Criminal Appeal substituted a sentence of six years for rape with no suspension. The Supreme Court decided yesterday that the Central Criminal Court decisions should stand.