In the Irish Courts
| DOI | 10.1177/002201835101500306 |
| Date | 01 July 1951 |
| Published date | 01 July 1951 |
| Subject Matter | Article |
In the Irish Courts
NORTHERN
IRELAND
·COURT OF CRIMINAL
APPEAL
SUSPENDED SENTENCES
R. v. Edward Wightman
"THIS
appeal",said
the
LordChief]ustice in
the
course of
the
judgment delivered on behalf of
the
Court, "raises
aquestion of some importance in
the
administration of
the
criminal law in Northern Ireland, upon which authority is
hitherto lacking". The question raised
by
the
appellant
in R. v. Edward Wightman (1950,
N.I.
124) was whether
the
Irish practice of postponed sentences is warranted in law.
For
over a century, there has been a practice in
both
England
and
Ireland of requiring
an
offender to enter into
recognizances (with or without sureties)
to
keep
the
peace
and
be of good behaviour
and
also
to
come up for judgment
if
called upon
to
do so.
In
Ireland there grew up
the
further practice of naming
at
the
same time
the
sentence
which would be imposed upon
the
offender upon his re-
appearance before
the
Court.
That
this practice is com-
mendable,
if
legal, there can be no doubt :
it
is, as
the
Court
put
it, "certain in itself
and
salutary in its operation", for
it
not
only assists
the
judge upon
the
prisoner's re-appear-
ance,
but
is also of assistance
to
the
prisoner in
that
it
indicates clearly
to
him
what
is
the
precise risk which he
takes
if
he 'gets into trouble again'. There is, therefore,
nothing abhorrent
to
the
requirements of justice in this
practice, which is
not
apunishment in futuro, since
the
prisoner is
not
finally dismissed until
the
period expires,
even under
the
English
practice:
see
Castro
v. The Queen
(1881, 6
App.
Cas.
229, 237)
per
Lord Selbourne L.C.
citing Wilmot C.]. in R. v. Wilkes (1769, 19 St. tv. 1075,
1133-4).
But
in
the
instant
case,
the
legality of such a
287
288 THE JOURNAL
OF'
CRIMINAL LAW
sentence was denied,
not
by
the
accused, whose notice of
appeal (drawn without legal advice) complained merely
that
the
sentence was
"very
severe",
but
by
the
Court,
which amended
it
by
adding
the
further ground
that
a
recorded sentence is invalid.
The appellant was indicted for
the
larceny
and
forgery
of a cheque and, upon his pleading guilty,
the
Recorder
recorded asentence of twelve months' imprisonment,
and
boundhim to keep
the
peace for two years
and
to
attend
for
judgment within
ten
days of receiving notice from
the
Crown Solicitor
at
any
time during
that
period. The
recognizance did
not
contain a reference to
the
recorded
sentence,
but
the
Clerk of
the
Crown
and
Peace asked
the
defendant whether he understood
the
position
and
he
received an affirmative reply. Within four months
the
accused was convicted or larceny
and
given notice
to
attend
for judgment before Black
L.J.
who held
that
lie
had
no
option
but
to enforce
the
earlier sentence, though he did so
with manifest reluctance, saying "Well, you see
the
effect
of this. This
man
steals afountain pen
and
is sent to gaol
for twelve months for
that".
It
mav
be submitted
that
this is scarcely an accurate descriptionof
the
situation,
but
no doubt it encouraged
the
accused
to
appeal-and
on
appeal
it
was eventually argued
that
the
practice of impos-
ing recorded sentences is without
authority
in statutes, law
reports or text-books
and
is therefore invalid.
For
the
Crown,
it
was contended
that
this practice of long-standing
in Ireland rests upon
the
fact
that
there is no distinction in
principle between
the
recognised practice of binding a
man
over to come up for sentence
and
that
of binding
him
over
to come up for a sentence nominated
then
and there.
It
was shown
that
"at
least aconsiderable number" of
Irish
Judges (many of whom
had
been Law Officers)
had
followed
the
latter
practice,
but
the
Court's "research which we have
caused
to
be officially made" failed to find
the
origin of
the
practice-not
because
it
is lost in
the
mists of antiquity,
but
because
the
documents revealing
the
origin of this
Irish practice are
not
in
the
hands of
the
Northern Ireland
authorities. Indeed,
they
may
not
be
extant,
since, in
the
destruction of
the
Four
Courts in Dublin, most of Ireland's
legal history was scattered
to
the
winds. Since, therefore,
no formal authorisation of
the
practice could beestablished,
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