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Children (Amendment) Bill 2015 [Seanad]: Report and Final Stages (Continued)

Wednesday, 15 July 2015

Dáil Éireann Debate
Vol. 887 No. 2

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(Speaker Continuing)

[Deputy James Reilly: Information on James Reilly Zoom on James Reilly] On the insertion of the words "and may be less", it is provided at section 149(1) that the period of detention imposed on a child by a court shall not be more than the period of detention or imprisonment that could be imposed on an adult. That does not mean that a lesser period of detention cannot be imposed on a child. It is inherent in the provision that the period of detention imposed on a child may be less than that imposed on a person of full age and capacity.

Section 96(4) of the Act provides for the principles relating to the exercise of criminal jurisdiction over children. It provides that the penalty imposed on a child for an offence should be not greater than that which would be appropriate in the case of an adult who commits an offence of the same kind and may be less. It does not state it "shall be less". It already includes the words "and may be less". A penalty may include any one of a number of sanctions ranging from community sanctions to detention as a measure of last resort. I do not consider inserting the words "and may be less” is necessary as section 149(1) already implicitly makes provision for a lesser period to be imposed on a child. In addition, section 96(4) is explicit on this point, clearly providing that the penalty imposed by a court on a child which may include detention as a measure of last resort may be less than that which would be imposed on an adult.

On adding the words, “The Court shall have regard to the age, level of maturity, best interests of the child and the principle of imprisonment as a last resort in determining the nature of any penalty imposed", the principles proposed in the amendment are already explicitly provided for in the Children Act 2001, as the Deputy acknowledged.

Part 9 provides for the powers of the courts in relation to child offenders. As I have mentioned, section 96 provides for the principles relating to the exercise of criminal proceedings in the case of children.

  Amendment put and declared lost.

Acting Chairman (Deputy Jerry Buttimer): Information on Jerry Buttimer Zoom on Jerry Buttimer Amendments Nos. 4 to 6, inclusive, are related and will be discussed together.

Deputy Clare Daly: Information on Clare Daly Zoom on Clare Daly I move amendment No. 4:

In page 10, to delete lines 10 to 12 and substitute the following:
“(2) The court shall not impose a period of detention in excess of three years.”.

Amendment No. 4 relates to providing for a maximum sentence of three years for children. Maximum sentences for juvenile offenders are common elsewhere in Europe. This country is unusual in the fact that we have not had a maximum sentence since 2006. For example in Spain, between the ages of 14 and 16 years there is a maximum period of four years, irrespective of the crime committed, while between the ages of 16 and 18, it is eight years. In Portugal the maximum period of detention for children is three years; in Germany, five years and in Sweden and Switzerland, four years. The Children Act 2001 contained a provision providing for an upper limit on the length of time a child could spend in detention and did not permit the courts to give a sentence of more than three years. I do not understand the reason such a provision cannot be contained in the Bill. If it was acceptable then, why was the provision changed and why can it not be included now? I compliment the Minister on what is, generally, very good legislation. However, it is based on the premise of assisting vulnerable young people and not seeing them as criminals but as people who need assistance. If detention is supposed to be about rehabilitation and not punishment, three years is a considerable time to work with a person. Engaging with people after their release is equally important, be it on issues relating to drug addiction, their mental health or whatever else.

  Amendment No. 5 is very important as it deals with a court giving its reasons in writing for the handing down of a sentence involving detention. On Committee Stage the Minister noted that the writing down of judgments by judges was under review elsewhere. The strategic review group on penal policy recommended that such an approach be taken. A working group set up by the Minister for Justice and Equality is undertaking this work and examining the entire area. The Minister suggested that if we were to include the measure now, we would be jumping the gun. I do not agree. The fact that these two organisations support the measure and that the Law Reform Commission suggested it in 2003 also means that we are heading in that direction. Why, theredore, would we not be ahead of the posse with legislation dealing with children? That would be beneficial because data on child offenders in this country are scrappy and data collection is left to organisations such as the Irish Penal Reform Trust and the Jesuit Centre for Faith and Justice. The State with all of its resources should support them in their job of gathering data.

  The amendment would assist in that regard because if we want to understand the current use of imprisonment and detention and encourage a more select use of detention as a sanction, it is essential that information on the reasons for the handing down of sentences involving a term of detention must be publicly available. This is particularly important in the case of children, not just because they are children but because it can help us to gain a more thorough understanding of the social inequalities which are such a feature of the lives of children who end up in the criminal justice system and of which they are often the victims. If we were to include the change proposed in the amendment, it would focus judges on the reasons for imposing custodial sentences, promote consistency in sentencing and provide clarity and transparency for courts, victims, offenders and the public and would not involve any extra work for the Judiciary because judges already have to give their reasons. It would just mean they would have to write them down. I do not think that would kill them and it would be a worthwhile social project which other aspects of the criminal justice system are examining. We could be ahead of the posse in accepting amendment No. 5.

Deputy James Reilly: Information on Dr. James Reilly Zoom on Dr. James Reilly As we addressed the issue extensively on Committee Stage, I do not believe there is much point in reading through all of what was said then. As I said previously, it is not unreasonable to talk about a maximum sentence of three years for children who have mental health issues or drug addiction problems, in particular very young children aged 13 or 14 years. However, if one has a 17 year old on a serious assault charge or a sex offence charge or in a serious drug case involving not alone use but also dealing and, most important of all, someone who is found guilty of a murder charge, I do not agree with the suggestion made by the Deputy that the maximum penalty should be three years and that the child should be out of prison at the age of 20. We must remember that there are victims involved and their families. I do not think a one-size-fits-all approach can be used. We have a judicial system that affords judges discretion to allow them to adjudicate on the specific circumstances of each individual case and the impact of the crime on victims and their families. I am sorry, but I cannot accept the amendments.

Deputy Sandra McLellan: Information on Sandra McLellan Zoom on Sandra McLellan Somebody under the age of 18 years should be given a chance. He or she should be assessed regularly according to his or her age and should not be thrown in prison for in excess of three years. Many such children have learning difficulties, special needs and mental health issues. We must work on the basis that a young child can be rehabilitated.

With regard to amendment No. 6, in cases in which the liberty of a child is at stake, it is important that there be clarity in such significant decisions. That is why I believe judgments should be in writing as that would promote consistency in sentencing and ensure transparency for victims, offenders, legal practitioners and the public.

Deputy Clare Daly: Information on Clare Daly Zoom on Clare Daly I will not rehash the arguments we made on Committee Stage either, but children are different. If the Minister is worried about 17 year olds, he could consider putting them in a different category, as distinct from 13 and 14 year olds. In Sweden they do not incarcerate anybody under the age of 15 years, no matter what the crime is. In the main, we are talking about vulnerable children who need assistance and support.

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