Brendan Howlin (Wexford, Labour) | Oireachtas source

I move amendment No. 1:

In page 3, to delete lines 15 to 19 and substitute the following: “(b) the addition of the following subsections after subsection (1):

“(2) 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.

(3) 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.”.”.

I set out my reasons for this amendment on Second Stage, I hope. It is a bit odd that an amendment had to be tabled before Second Stage because Second Stage was only yesterday. There was no pre-legislative scrutiny, so there was no great opportunity to tease out the specifics.

This whole Bill, which is short, was brought about simply by a decision of the High Court to declare as unconstitutional the imposition of a mandatory life sentence where a child convicted of murder has aged out, or in other words has reached 18, before sentencing and is therefore is not subject to the Children Act, which prohibits a prison sentence for a child. The High Court has determined – the whole House agrees, quite rightly – that it represents an unequal and unfair situation. The Government decided not to appeal the judgment and instead amend the law. I have no difficulty at all with that approach, as I indicated yesterday.

The only issue I have is that from the time of the 1861 Act, the crime of murder has been codified in statute law with prescribed penalties. I understand the difficulty that has arisen. A child convicted of murder who has aged out or has become 18 before sentencing should not be liable to a mandatory life sentence. The Minister indicated in response to me on concluding her Second Stage speech yesterday that it would simply entail a common law referral by the courts and that the judge would, under common law, be able to give an appropriate sentence. In essence, the Minister and I are not at odds at all on this. It is only the mechanism for achieving the same objective that I want to tease out.

There is no statutory sentence for a child murderer; instead, there is an open-ended power of detention under the Children Act.

I was involved on Committee Stage of the Children Act and remember those discussions. In the amendment I tabled I am not proposing any particular sentence. What I am proposing is exactly what the Minister suggested, that is, to use the Minister's own words, the court would be able to impose any appropriate sentence. This means that for aged-out children, judges will, under statute if this amendment is accepted, have discretion as to whether to hand down a life sentence or a determinate sentence as the judge sees fit on the specifics of the case. The only difference between the approach I am suggesting and the Minister has proposed in her Bill is that while the Minister says the court will have a default power to achieve this, I am saying that, for the reasons I have set out and I tried to articulate yesterday, it is important to have statutory powers laid out.

I am not a lawyer, as I repeatedly say. We live in a common law jurisdiction. Common law is judge-made law, as it is sometimes called. We do not go into judge-made law since a very long time. Old precedents are there but we rely on statute law and laws made in the Houses of the Oireachtas to determine matters, particularly in matters of fundamental importance such as sentencing for murder. This is a tricky particular case, and I am very grateful to the Minister for contacting me to explain her own view on it. If the amendment is accepted, I believe the Minister's view is that we are prescribing a sentence, but we are not. We are only proposing, as the amendment says in subsection (3), that in cases where subsection (1) does not apply by virtue of subsection (2), that is, in the aged-out case, a court may impose such sentence or order as it considers appropriate. I believe that is exactly what the Minister intends only I am trying to codify it in a statute as opposed to non-codifying it. If, as the Minister indicated to me, that might run foul of equality, I need to have explained to me why doing it in common law, the way she is suggesting, does not have that impact but codifying it in statute, as I am suggesting, does. I am interested in hearing the Minister's views.

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