Brendan Howlin (Wexford, Labour) | Oireachtas source

As the Minister stated, this is very short, focused legislation to deal with the anomaly that has arisen on foot of the High Court case, one that was considered by the justice committee in light of an application by the Minister to waive pre-legislative scrutiny. I am not a member of the justice committee anymore, but waiving pre-legislative scrutiny is not something I am particularly enthusiastic about, even for short Bills. This is very impactive, important legislation dealing with cases of murder and therefore deserves a little teasing out and consideration here.

The High Court decision related to children who, as the Minister put it, age out subsequent to conviction but before sentencing. It is a matter of how they are to be dealt with. The High Court, in its judgment, determined that imposing a legal mandatory life sentence in such cases is not constitutional because it is not proportionate. The Government considered that, and it had two options, namely to accept the judgment of the court and legislate to deal with the issue that had arisen or to appeal the judgment. The Minister indicated that the advice of the Attorney General was that it would not be fruitful to appeal the judgment. Therefore, we have the Bill before us.

The purpose of the Bill is to disapply the mandatory life sentence for murder for those who commit the offence of murder when under the age of 18 but who attain the age of 18 before receiving a sentence for that very serious crime. In the Bill, people may still receive a life sentence, as I understand it, but it will no longer be a mandatory one. I saw the Bill last week and have tabled an amendment for tomorrow. It is not satisfactory that I am required to table an amendment before Second Stage of a Bill, but in order to clarify a question that arose in my mind and that of my legal adviser, I tabled an amendment to this Bill. That is why I was anxious to hear the Minister's speech. I believed the question would be addressed and that there would be no need for my amendment to be proceeded with. I now have a written copy of the Minister's speech.

The question that arose for me concerns the authority of the court in imposing a sentence on a person who has committed and been convicted of the crime of murder while under the age of 18 but who, on having reached that age, has not yet been sentenced. What and where is the statutory provision that enables the court in that instance to impose a sentence other than life imprisonment? That is my fundamental question for the Minister. I ask her to examine the legal framework within which cases of murder are dealt with.

With the indulgence of the Leas-Cheann Comhairle, I wish to go back a bit. As I understand it, the Offences against the Person Act 1861 consolidated various rules of law with some amendments. Section 1 of the Act provides that whoever shall be convicted of murder shall suffer death as a felon. That remained the law in this State up to 1964, in which year the Oireachtas passed criminal justice legislation that made a distinction between what might be called ordinary murder and what it described as capital murder. In 1964, the death penalty was retained for capital murder for a small category of cases, including the murder of a garda, a prison officer or a foreign diplomat, and for certain other cases. Section 2 of the 1964 Act stated that a person who but for the Act would be liable to suffer death "shall be liable ... to penal servitude for life". That was the provision for murder under our law until the passage of the Criminal Justice Act 1990, to come closer to today. The latter, as some might remember, abolished the death penalty for all practical purposes. Section 1 of the Act of 1990 provided, "No person shall suffer death for any offence." Section 2 states, "A person convicted of treason or murder shall [instead] be sentenced to imprisonment for life." The two differences between the law that existed from 1964 and the 1990 legislation are, first, that life imprisonment was substituted in the latter for the outdated concept of penal servitude for life and, second, that the distinction between capital murder and ordinary murder was ended in the latter. From 1990, all convictions of murder were to result in a mandatory sentence of life imprisonment.

Since 1990, the Children Act 2001 has been in place. Section 156 of that Act provides, quite rightly, that "No court shall pass a sentence of imprisonment on a child or commit a child to prison." Instead, an offence committed by a child is to be made the subject of a detention order under the Children Act.

The Bill proposes to amend section 2 of the 1990 Act. If this Bill is passed, section 2 of the 1990 Act will read that a person convicted of murder shall be sentenced to imprisonment for life. The proposed subsection 2(2) to be inserted into the Act of 1990 states:

Subsection (1) shall not apply to the sentencing of a person convicted of murder who was under the age of 18 years when he or she committed the murder but has attained that age on or before the date of such sentencing.

If the mandatory sentence of life imprisonment does not apply to the aged-out child, what law applies? The Bill does not appear to state what legislation will give legislative authority to a court to impose any sentence in such a case.

On page 3 of the script the Minister circulated, it is stated that by not providing for any sentence for children who age out, sentencing will default to the common law powers and the court will be able to impose any appropriate sentence. As I understand it, the Minister's intention is to have no statute law and revert to common law in these cases. It is clear that the court has no power to deal with the kinds of cases in question under the Children Act because the offenders are no longer children. Where is the legislation that would enable the court to deal with them? I do not see how a court would rely on common law powers because common law powers and sentencing rules have not applied in cases of murder since at least 1860. Since then, the rules on sentencing for murder have been based on statute law.

Surely, we should not regress to a pre-1860 position. It would be better to legislate specifically to provide clear power and authority to a court to impose an appropriate sentence. I come back to the amendment that I tabled in advance. I tabled it not knowing what exactly would be contained in the Bill. I thought the Minister might be able to say that there is statutory authority in some legislation that I have not been able to find in the past couple of days.

I ask the Minister to reflect on this between now and tomorrow. My amendment would adjust section 2 of the Bill by inserting a new subsection (2)(b)(3) that would give specific authority to the court. My new subsection states: "In a case where subsection (1) does not apply by virtue of subsection (2), the court may impose such sentence or order as it considers appropriate." This would mean that in a case where it is not appropriate for a mandatory life sentence to be imposed because the person was under 18 years of age when the crime was committed, specific statutory powers would be available to the court to impose a sentence that it considers appropriate.

As stated, we are dealing with a fairly distinct and clear set of issues here. We have to deal with the High Court decision. It is probable that few in the House would disagree with the High Court decision that there should not be a mandatory life sentence imposed in respect of a crime that was committed by a child, even if the person legally becomes an adult subsequent to the conviction but before sentencing. Equally, and anybody who spoke previously on this has stated, we should try to provide clarity. I have some experience in terms of briefings from officials. The fact that it is not in the Bill currently will not, I hope, preclude the Minister from considering what I am suggesting in order to provide statutory authority as opposed to just reverting to common law authority. Rather than saying that the Government must defend what is being suggested, the Minister may say that there is some merit to the amendment and give consideration to it between now and tomorrow. I ask the Minister to do that.

In general, there is a great degree of wisdom in the decision of the High Court. It is right that the Legislature should address the issue and rather than appealing it, amend the law to provide for flexibility for a court, in the case of a so-called aged-out child, in order that it would, bearing all the circumstances in mind, be able to impose whatever is the appropriate sentence. The mandatory sentence would be ruled out, but any sentence, including life imprisonment, would be a possibility. If there is an issue between us, it is how that authority should be devolved to a court. The Minister states that it would revert to a situation that existed in the criminal law prior to 1860, namely that it would be a common law provision and the court would have the authority to impose a sentence. I am saying that we should make a clear statutory provision such that the court would, by law and by enactment of these Houses, have clear and specific authority to impose sentences that are appropriate in all relevant cases.

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