Brendan Howlin (Wexford, Labour)
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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.

Helen McEntee (Meath East, Fine Gael)
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I thank the Deputy. I acknowledge and thank him and the members of the committee for waiving pre-legislative scrutiny and acknowledging this is very specific and very much responding to the High Court ruling and the need to ensure equality between children and children who have aged out when it comes to the sentencing and the timeline.

There are two elements to the amendment. The first is imposing a sentence as it considers appropriate, and the advice I have clearly outlined is that is already open to the court to apply to a child a sentence it deems appropriate. That is already there.

Brendan Howlin (Wexford, Labour)
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It is not in any statute, that is my point.

Helen McEntee (Meath East, Fine Gael)
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To the second point, the amendment itself specifically references the aged-out child and references murder. Again, the legal advice I have is the Children Act 2001 disapplied any specific sentence specific to murder. While there may be a general sentence, there is no specific statutory sentence for children relating to murder, whereas this would place a specific statutory sentence on the books for aged-out children.

Brendan Howlin (Wexford, Labour)
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It does not.

Helen McEntee (Meath East, Fine Gael)
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The discrepancy we are trying to remove inserts this on the other side. There is a second element to this. There is a Supreme Court case which is looking at murder as it applies to a child. Apologies that I did not say this earlier but this particular case has the potential to require further changes in legislation. The Children Act is being worked on at the moment, and there is an amendment Bill separate from this one, which is emergency legislation, in which I believe we would be able to explore this further, to go into it in greater detail, and to have the time to look at sentencing overall where it applies to children, not just for murder but for other areas as well. That would be the best place to do that.

The very clear advice I have is that, by accepting these amendments, instead of levelling matters we would add a discrepancy for aged-out children where it does not currently exist for children in relation to murder. I hope I am explaining that correctly. I want to work with the Deputy on this and to make sure, given the complexity and the severity of what we are talking about regarding the sentence and the implication for a child, that we have time to be able to work through this.

I believe what we have here in this amendment Bill will address the ruling by the High Court judge and provide that equality that was requested. There is more work we can do to try to explore the sentencing overall when it comes to children or children who have aged out. For that reason I cannot accept the amendment because there is more work we need to do and to work on together to make sure we get that right.

Brendan Howlin (Wexford, Labour)
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I am trying to follow the Minister's logic. We can only deal with the law as is and the laws we are creating, not what might come down from another judgment of the superior courts that might have implications for the law. My difficulty with this, to follow the Minister's logic, is that any child under the age of 18 who is convicted of murder and sentenced in court cannot, under the 2001 Children Act, be sentenced to prison. They can be sentenced to detention but not to prison. That is the law. Anybody over 18 who commits murder and is convicted is liable to a mandatory life sentence. That is the law simpliciter. The grey area is around a child who commits murder and becomes 18 before sentencing. What is the law in that case? That is my question. The children's legislation does not apply to that person because he or she has reached the age of 18. No law applies to that person. The Minister's proposal in that case is that we do not need statute law because common law will apply and it will be up to the judge without any reference to any law. I do not want to rehearse it again but I gave the history of murder in legal terms from 1860 in the various Acts. It has always been a statutory crime with a stated sentence.

I am not proposing a sentence. That is why I do not understand the Minister's objection. I repeat that what I am suggesting is that where this subsection does not apply, where there are aged-out children, the court may impose such sentence or order as it considers appropriate. There is no stated sentence in my proposal. I understand that form of words is exactly what the Minister intends to happen, that it would be open to the court to impose such sentence or order as it considers appropriate. I quoted the Minister's own words on that in the Dáil yesterday. The net difference is that I want to put it into law and the Minister says it does not need to be put into law. She is actually saying something further: that by doing what she intends to do but in a statute of the House somehow creates an inequality but doing it surreptitiously without a statute does not create that inequality. I am at a loss to understand that.

Helen McEntee (Meath East, Fine Gael)
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The objective of the Bill is to provide that level playing field and that equality. Where the 2001 Act is silent is specific to murder, so by including the amendment, where we are specifically referencing murder to the aged-out child, where it is not specifically referenced to children in the 2001 Children Act, and I appreciate this is where we are talking about-----

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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To clarify, Minister, it is the use of the term "murder" as distinct from the sentence.

Helen McEntee (Meath East, Fine Gael)
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There is no specific reference. The 2001 Act is silent on murder.

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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It is the use of the word "murder".

Helen McEntee (Meath East, Fine Gael)
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It is the use of that. It does not exist, so to disapply it for the aged-out child brings it onto a level playing field and brings it back to where it was. I am not saying we should not have on the Statute Book something specific about murder as it relates to children but it does not currently exist. Applying the amendment as it stands inserts something specific to murder for the aged-out child where it does not exist for that child at the moment. It is not to say our objective is not the exact same, and the objective of the amendment is to align us. The objective of this Bill, however, is very simple in that it is making sure there is absolute alignment on this issue between a child and an aged-out child. More engagement and further work are required, however, in the children (amendment) Bill and, separately, the Supreme Court, which may or may not say something that might influence that Bill.

Further work needs to be done on that. It is simply on the basis that the objective here is to completely create that level playing field-----

Brendan Howlin (Wexford, Labour)
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That is not possible.

Helen McEntee (Meath East, Fine Gael)
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By using and specifically referencing murder where it does not exist at the moment, there is the potential to put in place a discrepancy on the other side of things. Our objectives are the same, but the legal advice I have is to comply with the High Court ruling. We need to change it.

Brendan Howlin (Wexford, Labour)
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I do not reference murder. Where the Minister's proposals in her Bill apply, my amendment seeks to leave it up to the court to determine what the appropriate order or sentence is. This is the difficulty I have. You cannot have equality between a person aged under 18 and a person who is 18 or older. That is not possible because the Children Act no longer applies to that person. Somebody aged under 18 cannot be committed to prison. The aged-out person can be committed to prison. There is no equality there. That is the reality, is it not?

Helen McEntee (Meath East, Fine Gael)
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The fact that it is silent on the type of offence in the 2001 Act, by disapplying it to aged-out persons they automatically fall under that category. However, by inserting the words "when he or she committed the murder", there is a specific-----

Brendan Howlin (Wexford, Labour)
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The 2001 Act does not apply to anyone over 18.

Helen McEntee (Meath East, Fine Gael)
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By disapplying the mandatory life sentence of murder to this person, the person automatically falls back under this.

Brendan Howlin (Wexford, Labour)
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Under what?

Helen McEntee (Meath East, Fine Gael)
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It is going back to when the crime was committed, not when the person is being sentenced. That is what it is looking at.

Brendan Howlin (Wexford, Labour)
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I do not understand that.

Helen McEntee (Meath East, Fine Gael)
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The amendment specifically refers to murder, which is not referenced in the 2001 Act for children. Deputy Howlin's amendment would include that where it is not included at the moment.

Brendan Howlin (Wexford, Labour)
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I am not referencing murder at all.

Helen McEntee (Meath East, Fine Gael)
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The amendment refers to it. That is the challenge here.

Brendan Howlin (Wexford, Labour)
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Where in the amendment?

Helen McEntee (Meath East, Fine Gael)
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The amendment states: “(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."

Brendan Howlin (Wexford, Labour)
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That is taken directly from the Minister's Bill. That is a simple recitation of section (2)(b) of the Minister's Bill, where it states: “(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.”

Helen McEntee (Meath East, Fine Gael)
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I am sorry, I was looking at the wrong section. It still applies in the same way because it is silent to murder. There is no need to change it because it already applies. When it is disapplied, it will apply to the child because the offence was committed before the child was 18. This is the very clear advice I have.

Brendan Howlin (Wexford, Labour)
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I am restating the subsection the Minister has in the Bill in relation to a person convicted of murder who was under the age of 18. Whether my amendment is passed or rejected, that statement will be in the Bill and in the law. The only new thing is the new subsection which specifically states it will be up to the court to determine the order or sentence. The Minister said she cannot do that because it will create an inequality. She is now telling us, as I understand it but maybe I am dense and cannot follow what she is saying, that the default mechanism is that the Children Act will apply in those aged-out circumstances. Is that what she is saying?

Helen McEntee (Meath East, Fine Gael)
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It disapplies it. The same approach will be applied.

Brendan Howlin (Wexford, Labour)
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The Children Act cannot apply because it states that it applies to children under the age of 18.

Helen McEntee (Meath East, Fine Gael)
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It will revert to the same common law that is used by the Children Act. It would be the same approach.

Brendan Howlin (Wexford, Labour)
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The Children Act does not apply to anybody over 18. That is a simple fact.

Helen McEntee (Meath East, Fine Gael)
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By disapplying it, it will revert to common law which is exactly-----

Brendan Howlin (Wexford, Labour)
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That is a different thing.

Helen McEntee (Meath East, Fine Gael)
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-----what it falls under in the 2001 Act. It is the same. It will align with and be applied in the same way as the 2001 Act. Again, I have been assured that there is no need to specify that any particular type of sentence or order can be applied because this is already the case.

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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I think we have two irreconcilable perspectives on this.

Brendan Howlin (Wexford, Labour)
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I am just trying to understand the logic of it. Clearly, the Children Act does not apply to anybody who is over 18. The Minister's base point is, as I understand it, that anomalous category. My contention is that you cannot create a perfect equality between somebody aged under 18 and somebody aged over 18 because one is categorised as a child and the other is not. What the Minister wants to do is give discretion to a child who commits murder and is convicted but not sentenced until the child becomes an adult. You cannot create an "equality" - the Minister keeps using that word. I know it was struck down on the equality provision of Article 40.1 of the Constitution. You cannot create an absolute equality between a child and an adult in sentencing. Hopefully, there are not too many children committing murder. In essence, the Minister is saying we will not have this unique category of children who are convicted and aged out and that in that instance, we will be silent as an Oireachtas in terms of what the appropriate sentence and leave it to common law, which is a sort of generalism. Since 1860, we have always specified in legislation what the sentence for the very serious crime of murder should be. I am not prescribing a particular sentence; I am only prescribing a mechanism to impose a sentence. I have laboured this point as much as I possibly can.

Helen McEntee (Meath East, Fine Gael)
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We need to engage further on this in terms of the wider picture and the discussion. In order to comply with the equality principle that is underpinned in the High Court ruling, it was made clear to me that children who are aged out and children are treated the same. There cannot be a statutory sentence for children who are aged out because that does not exist specifically for murder for those who are not aged out under the 2001 Act. By default, it falls back to the same approach. The Deputy and I have different views on this.

Brendan Howlin (Wexford, Labour)
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Children cannot be sent to prison under the Children Act. The Minister is saying that children who have aged out and are now adults can be sent to prison.

Helen McEntee (Meath East, Fine Gael)
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No. We are disapplying it.

Brendan Howlin (Wexford, Labour)
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No, the Minister is disapplying a mandatory life sentence but they can get a life sentence. That is what the Minister told us yesterday.

Helen McEntee (Meath East, Fine Gael)
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Any sentence can be imposed.

Brendan Howlin (Wexford, Labour)
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That is what I am saying. A child cannot be sent to prison. There is no equality there.

Helen McEntee (Meath East, Fine Gael)
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It is silent on it.

Brendan Howlin (Wexford, Labour)
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What is silent?

Helen McEntee (Meath East, Fine Gael)
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In relation to murder specifically, it is silent on that.

Brendan Howlin (Wexford, Labour)
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There is no reference to murder. Section 156 of the Children Act 2001 states: "No court shall pass a sentence of imprisonment on a child or commit a child to prison." That is what the law of the land states. A child who offends can be made subject to a detention order under that Act but, under the Minister's proposal, aged-out children can be sent to prison. Is that not a fact?

Helen McEntee (Meath East, Fine Gael)
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If we were to accept this amendment, there would be statutory sentencing for murder.

Brendan Howlin (Wexford, Labour)
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If I withdraw the amendment now, a court could impose a prison sentence on an aged-out child. The Minister told us yesterday that aged-out children could be sentenced to life imprisonment, in fact. I am trying to understand the Minister's own proposal. If I withdraw the amendment, what will be the state of the law? Will it be open to a court to send such an aged-out child to prison for murder?

Helen McEntee (Meath East, Fine Gael)
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No. It will fall back on the common law.

Brendan Howlin (Wexford, Labour)
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The Minister's officials are saying "Yes", so it will be.

Helen McEntee (Meath East, Fine Gael)
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There is an option there but-----

Brendan Howlin (Wexford, Labour)
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It is possible, then, to send an aged-out adult to prison. It is not possible to commit a child to prison. There is no equality.

Helen McEntee (Meath East, Fine Gael)
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It is this Act that we are amending, not the 2001 Act.

Brendan Howlin (Wexford, Labour)
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I quoted the Children Act because the Minister said it would default to the Children Act in terms of equality. An adult cannot be treated as a child.

Helen McEntee (Meath East, Fine Gael)
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It will default to the way in which it is defined under the Children Act in relation to murder, which is common law.

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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While I do not wish to get involved in this discussion, what I do not understand is that the Minister is saying that, in the event of a child ageing out and having been found guilty, instead of having a sentence to be handed down or not handed down, it is a matter for the judge to determine in the courts.

7 o’clock

It is a matter for the judge to determine in accordance, not with statute-----

Helen McEntee (Meath East, Fine Gael)
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There is already.

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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-----as Deputy Howlin is suggesting, but in accordance with common law, should the judge see fit. Is that right?

Helen McEntee (Meath East, Fine Gael)
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If this were to apply, then you have a statutory sentencing for the aged-out child, which does not exist currently for the child, specific to this.

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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This allows the judge to have discretion in this case.

Helen McEntee (Meath East, Fine Gael)
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Yes.

Brendan Howlin (Wexford, Labour)
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As would my amendment.

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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Am I also to understand that because there is a Supreme Court case-----

Helen McEntee (Meath East, Fine Gael)
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There is potential for further changes.

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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-----there is potential for further changes, and that we are looking at an interim arrangement here, possibly.

Helen McEntee (Meath East, Fine Gael)
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This is specific to the case because four or five current cases specific to this issue are potentially impacted. There will be-----

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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Further change.

Helen McEntee (Meath East, Fine Gael)
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-----possible further change but there are ongoing cases that need to be resolved before this.

Brendan Howlin (Wexford, Labour)
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May I ask the Minister one more question?

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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Yes.

Brendan Howlin (Wexford, Labour)
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If a child commits a particularly heinous murder - and we have seen some - and ages out, and is committed to prison for that terrible crime by a court, is it the Minister's view then that the same challenge could be available to them for that custodial sentence, as was available in the case of the recent High Court decision that gave rise to this legislation?

Helen McEntee (Meath East, Fine Gael)
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My understanding is that there are a small number of cases that this could be applied to but, again, case law suggests that would perhaps not be successful. The advice is despite the fact there are a small number of cases where this has been applied, there is a strong reason to move forward with this specifically. There are a small number of cases. That is not to say a case would not be taken but the very clear advice is that there is case law on this, and that is supported by the ECHR as well.

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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Is Deputy Howlin going to press the amendment?

Brendan Howlin (Wexford, Labour)
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I am actually still of the view that for consistency, we should have this in statute. What the Minister intends to apply should be determined by the Oireachtas as opposed to common law.

Helen McEntee (Meath East, Fine Gael)
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I do not think we disagree but the very clear advice I have is that by doing this we will still have to come back-----

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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We have an irreconcilable situation.

Brendan Howlin (Wexford, Labour)
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I am not going to win the argument so I am going to withdraw the amendment.

Seán Ó Fearghaíl (Kildare South, Ceann Comhairle)
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I thank the Minister for that, and for that stimulating and important conversation as well.