James Browne (Wexford, Fianna Fail)
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I welcome the opportunity to present this Bill to the Seanad. It is short but important legislation that addresses constitutional infirmities in law recently identified by the High Court. I thank Senator Ward, who has done a large amount of extremely important work in respect of the legislation. Last month, the High Court ruled that a person who commits murder when under 18 but who turns 18 years before sentencing cannot be subject to the mandatory life sentence for murder. The mandatory life sentence for murder is provided for in section 2 of the Criminal Justice Act 1990. The Bill's objective is straightforward. It seeks to disapply the mandatory life sentence for murder for those who age out, that is, those who commit the offence when under 18 but who turn 18 before sentencing. The Bill gives effect to a surgical fix of section 2 of the 1990 Act to rectify the infirmities identified by the High Court.

I stress that there is an urgency to enacting the amendments before the House because of impending murder trials involving aged-out children in the coming weeks. The proposed amendments the Bill gives effect to will ensure that the courts have appropriate options available when sentencing in these cases, including the option to sentence an aged-out child on trial to life imprisonment. The courts will also have the option to sentence an aged-out child to a determinate sentence.

I will outline the background to the Bill and why there is a need for these urgent legislative amendments. In its judgment in the case of Amah and Musueni v. Ireland and others on 2 September, the High Court found that it was unconstitutional to impose the mandatory life sentence for murder on a person who committed the offence while still a child but was sentenced after their 18th birthday. The case was taken by two persons who were 17 when they were charged with murder but who have turned 18 in the interim. If found guilty, they would be subject to a mandatory life sentence under section 2 of the Criminal Justice Act 1990. That Act provides for a mandatory life sentence of imprisonment for any person who commits murder. However, section 156 of the Children Act 2001 creates an exception to this for children, so the mandatory life sentence does not apply to children who are sentenced as children. The Oireachtas has recognised that a more nuanced approach to sentencing principles is appropriate where the offender is a child under the age of 18. Their age and level of maturity may be taken into consideration by the sentencing court when determining the penalty to be imposed. However, in criminal justice proceedings for murder, it is the date of the sentencing hearing that determines how offenders should be sentenced. Thus, under existing law, where an aged-out child offender is found guilty, they will automatically be sentenced to imprisonment for life on conviction for murder, whereas a child convicted and sentenced while still under 18 does not automatically receive this sentence. The High Court was clear that this unequal treatment of offenders who have committed murder while children but who are sentenced differently because of the date of sentencing is unconstitutional. The High Court held that to impose the mandatory life sentence on a child who ages out would be a breach of their rights under Article 40.1 of the Constitution because of this inequality with other children who commit the offence of murder. A child convicted of murder may receive a life sentence, whereas a child convicted of murder who has turned 18 must receive a life sentence. The practical effect of the High Court decision is that it will be difficult to proceed with prosecutions in these types of cases, given the lack of clarity on what sentence can be imposed if the person is found guilty.

There is an urgency to these amendments because there are several murder trials scheduled over the coming months involving aged-out children, including a sentencing hearing this month and two murder trials in November. Consequently, the Attorney General advised that legislative remedy is required as a matter of urgency.

At its meeting on 10 September, the Government was informed that an appeal of the court's judgment was unlikely to succeed and agreed to proceed with drafting this Bill to address the issues identified by the High Court. Given the significant implications if not addressed quickly, the justice committee agreed to waive pre-legislative scrutiny and the Government approved publication of the Bill before the House on 18 September. The legislation will be commenced upon enactment.

I will outline what exactly is proposed in the Bill in order to address the issue identified by the High Court. It comprises five sections. Section 1 is a standard provision for definitions of terms used throughout the Bill. The Criminal Justice Act 1990 has been defined as the "Act of 1990".

Section 2 amends section 2 of the Act of 1990, which provides for the mandatory life sentence for murder. The section acts to disapply the mandatory life sentence for murder and will apply only to children who commit murder when they are under the age of 18 but who turn 18 before or on the day of sentencing. The section does not stipulate the sentence that must be imposed on any aged-out child who has been convicted of murder. By not providing for any sentence for aged-out children, sentencing will default to the common law powers and the court will be able to impose any appropriate sentence. This means that, for aged-out children, judges will have discretion as to whether to hand down a life sentence or a determinate sentence. This approach is the most comparable to how a non-aged-out child would be sentenced and therefore ensures that the two cohorts are treated the same.

The issue of not having a statutory sentence for murder and therefore reverting to common law was raised in the Dáil. I reassure colleagues this is intentional and is necessary to comply with the High Court judgment. It is true there has been a statutory sentence for murder for adults since 1861. However, since section 156 of the Children Act 2001 came into operation and disapplied the mandatory life sentence for murder for children, there has been no statutory sentence for children who commit murder. Therefore, the 2001 Act is silent in respect of children who commit murder. In order to comply with the equality principle underpinning the High Court judgment and to ensure that children and aged-out children are treated equally, there can be no statutory sentence for aged-out children who commit murder. A statutory sentence for aged-out children but none for children would undermine equality in the treatment of the two cohorts and this is precisely what the Oireachtas has to remedy.

Section 3 amends section 4 of the Criminal Justice Act 1990.

Section 4 mandates a minimum custodial period for those sentenced for treason, capital murder or attempts to commit such murder, such as the murder of a member of An Garda Síochána or a prison officer. As this provision does not apply to children, it needs to be disapplied for aged-out children in order to comply with the High Court judgment. Similar to the previous amendment, no minimum sentence for aged-out children has been stipulated in line with how non-aged-out children are treated if they are found guilty.

Section 4 also inserts a new section 4A into the Criminal Justice Act 1990. This section will provide for the retrospective application of these amendments. Essentially, the amendments will apply in respect of offences committed before the date of coming into operation of this Bill, where final judgment has not been reached and all appeals exhausted. This is in line with advice received from the Attorney General and with domestic and European Court of Human Rights case law.

Barry Ward (Fine Gael)
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I welcome the Bill. It is overdue. We did not need to wait until the High Court told us last month that this needed to be done. I drafted a Bill that came before the House in March 2023, namely the Criminal Justice (Juvenile Offenders) Bill, Bill No. 30 of 2023, which sought to do the same thing in a different way and went slightly further.

The idea behind this Bill is simple. The notion that somebody can commit an offence as a child but be treated as an adult when it comes to being tried and sentenced for that offence is a nonsense. It completely ignores the fact we treat children differently in criminal law, and with good reason.We take a different attitude to people who are under age, when they have not reached the age of capacity to do certain things, when they have not reached the age of criminal responsibility in certain instances.

The Minister of State mentioned the Children Act. Quite apart from the Children Act, which requires courts to behave differently towards children, in the context of the criminal law we treat them differently and with good reason. There is a major problem with the way the law is now and not just because of the incongruity of treating a child or a person who is accused of a crime differently because they are older. Worse than that, an offence may be committed when a child is 17 and that child may be suspected by the Garda. While I do not for a moment suggest that the Garda do so, in our law there is an incentive for it to delay arresting and prosecuting that child until he or she ages out. There is a greater tariff of sentence available for all offences, including murder, in respect of that person once they are over 18 than would be the case if they were 17 when the offence was committed. That is wrong, it is inconsistent and it should not be the case.

It is not just murder that this applies to. The Children Act has provisions that do not apply to murder and other offences. As a general rule, we should be treating somebody in relation to an offence they may or may not have committed. When they are being tried for that offence, they should be treated as if they were at the age they were when the offence was committed. That makes sense. Murder is perhaps the offence in respect of which there was the most stark contrast because of the mandatory life sentence.

In this jurisdiction, we have life sentences for murder for good reason. I am generally not in favour of mandatory minimum sentences and would much rather a judge would have the discretion, within the tariff on the range set down by the Oireachtas, to make the decision as to where the particular offence and, perhaps most importantly, the offender fall in the context of the scheme of whatever sentences are available. When it comes to murder, we have removed that discretion from the courts because it is literally the most serious offence we can think of in this jurisdiction.

It is important to remember that a life sentence in Ireland is a life sentence. It is not like our neighbouring jurisdiction where it is defined as, I think, being 13 to 15 years or maybe 13 to 17 years. It is not a time-defined matter. That, in itself, is a problem the Department is wrestling with. At the moment, someone sentenced to life imprisonment in Ireland is under sentence for life. It does not mean they are spending their life behind bars but even when they are released, they are on licence. At any point a decision can be made to return the person to jail for whatever stated misconduct. The rules on that are fairly open to abuse.

I can think of some very high-profile people who have been convicted of murder and who spent inordinately longer behind bars in prison than other people may have done for less high-profile murders simply because the person with responsibility for making the decision about the release is the Minister for Justice and it has been politically untenable to release some people because of the nature of murders they committed. That may be a discussion for another day. It is worth marking the fact that life sentences reflect the seriousness with which the Oireachtas and society view the offence of murder. A life sentence is a real sentence; it is a sentence for life.

I will come to this further on Committee Stage. The Criminal Justice (Amendment) Bill only deals with murder; it does not deal with treason. Perhaps the Minister of State might outline why that is the case. Section 2 of the 1990 Act addresses sentences for murder and treason. I know there is a diminishing trade in treason in this jurisdiction. I do not know when we last had a treason prosecution here and I hope we do not have one a long time. I hope even more that no child would be involved in treasonous activity. However, the 1990 Act deals with both offences.

The Bill that I drafted in 2023 removed the mandatory life sentence in respect of both offences. Currently, a person convicted of treason in Ireland gets a mandatory life sentence and a person convicted of murder gets a mandatory life sentence, and the same is true for children. When the Bill before the House is passed, there will not be a mandatory life sentence for a child for murder but there will be a mandatory life sentence for a child for treason. I do not understand why that was left out.

I welcome the Bill. It is very important. I particularly welcome the retrospective aspect of it, which is very unusual in Irish legislation. The provision in section 4 to make this retrospectively active is exceptional but also important because it deals with people who may already have committed an offence or are currently before a court. I welcome that element of it. I do not propose to use the entirety of my time. Suffice to say that on behalf of Fine Gael, I welcome the Bill. I welcome it as somebody who has been pursuing this subject for more than 18 months. I look forward to the Minister of State's response to some of the issues I have raised.

Victor Boyhan (Independent)
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I welcome the Minister of State. He has clearly explained the rationale behind the Bill, which I support. I fully understand the necessity for this important legislation. I thank the departmental officials particularly for the explanatory memorandum. This is a very short Bill containing only four sections. What it involves is clearly explained.

Senator Ward has tabled an amendment that we will deal with later. However, I ask the Minister of State to comment on it anyway because I think this is going to be a pretty tight engagement here today. The acceptance of that amendment involves the deletion of section 2. I do not think that would be the Minister of State's intention. I ask him to flag his intention in that regard. I presume he will not agree to deleting section 2. I ask him to confirm that.

I welcome the Bill and fully understand the necessity for it. I understand why it has come to us at this time and I wish the Minister of State well with it.

Robbie Gallagher (Fianna Fail)
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I welcome the Minister of State back to the House this afternoon for the debate on this very important legislation. As others have mentioned, it is a very short but nevertheless very important Bill. I am delighted to see it moving forward. I compliment my colleague Senator Ward on his work in this area. He has been very vocal on this. He alluded to the retrospective aspect in section 4, which is a very welcome development.

I will not delay matters. I very much welcome the Bill. The Fianna Fáil Party is delighted to see this legislation come through.

James Browne (Wexford, Fianna Fail)
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I thank the Senators for their contributions. I will address a number of matters when dealing with amendments on Committee Stage. In particular, I would like to outline why treason is not included, particularly as that is an obvious issue. We are not including treason at this time. The purpose of the Criminal Justice (Amendment) Bill 2024 is to deal with infirmities identified by the High Court in a limited and targeted way, that is to disapply the mandatory life sentence for murder for those who have aged out. It is recognised that the principle of the High Court judgment could also apply to the offence of treason. However, it was not the subject of the case before court which was murder.

Importantly, disapplying the mandatory life sentence for treason is more complicated because it is a constitutional offence and, therefore, sentencing powers would not default to common law sentencing powers as is the case with murder. The Treason Act 1939 and other references to treason in the Statute Book need to be examined in detail and carefully considered from a legal perspective. This will be done in due course, when not the subject to the present time pressures. It is very much on the Department's radar. It will be looked at with an element of urgency and importance. However, considering the time pressures right here and now and the added complexity around treason, we are not in a position to address it at this time.

Pat Casey (Fianna Fail)
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When is it proposed to take Committee Stage?

Barry Ward (Fine Gael)
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Now.

Pat Casey (Fianna Fail)
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Is that agreed? Agreed.

Barry Ward (Fine Gael)
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I move amendment No. 1:

In page 3, between lines 11 and 12, to insert the following:

“Amendment of section 2 of Act of 1990

2. The Act of 1990 is amended by the substitution of the following for section 2: “Sentence for treason and murder

2. (1) Subject to subsection (2), a person convicted of treason or murder shall be sentenced to imprisonment for life.

(2) Where a person is convicted of treason or murder and the offence for which that person has been convicted occurred before he or she had reached the age of 18 years, the provisions of subsection (1) shall not apply and he or she shall be liable to a maximum penalty of imprisonment for life.”.”.

As I said on Second Stage, in 2023 I drafted a Bill to do the same thing that this Bill does and to maybe go a bit further. I have heard what the Minister of State and Senator Boyhan have had to say on this. I wish to clarify the nature of what I propose to insert into section 2 and the import of what I am suggesting. Section 2 of the 1990 Act simply states, "A person convicted of treason or murder shall be sentenced to imprisonment for life." This amendments proposes the insertion of two subsections, with subsection (1) stating exactly that. Subsection (2) states that subsection (1) shall not apply to the sentencing of a person convicted of murder who is 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. I believe the wording contained in my Bill is better because it includes the provisions relating to treason.It takes the whole of section 2 of the 1990 Act on murder and treason. In both cases it states a person who was a child at the time of committing the offence will not be subject to the mandatory life sentence. There is still a life sentence and everything up to it available to the court but it is not mandatory. This is exactly what the Bill does with regard to murder. I am merely expanding it to include treason.

I have heard what the Minister of State has had to say, and I understand what he says about treason being a constitutional matter. I do not accept what he has said about it being beyond the remit of legislation. Yes this is rushed, although I respectfully submit that I brought this to the Minister's attention in March 2023. I understand the High Court might have more authority than I do in this regard, and might get more notice from Department of Justice officials, however regrettable this might be. This is something that has been knocking around for a while and many criminal practitioners have been raising it. If the principle is correct that if you commit murder as a child you should be sentenced as a child, then the principle equally applies to treason. It does not matter whether or not the High Court specifically addressed the question in its judgment. In fact, the High Court could not address the question in its decision because the case brought to it was one relating to the murder of a person committed by person under 18. It could not possibly address the treason issue.

If I can be perfectly frank, it is a missed opportunity not to include treason in the Bill. It certainly did not require a great feat of drafting if I could do it in my office and it is here now in amendment form. It is something that can be done. Yes, there is a constitutional framework but it does not prevent us from doing it.

Amendment No. 1 deals with section 2 of the 1990 Act in a clearer way than the Bill and deals with the whole of it. It does not cherry pick from it, whereby the Bill will only apply to murder because that is all we have been told to do. We know there is a problem. As I have said, we do not know when the last time a treason case occurred, never mind when the last time a child was charged with treason, but we do not make laws on the basis it may or may not happen. We make laws because of exactly this scenario, where there is a possibility that a child in future or a child now will be charged and convicted of murder and find themselves in a situation where they are immediately subject to a mandatory life sentence no matter what the extenuating circumstances of the case are, no matter what the judge or jury think, or no matter the submissions the lawyers make. To tie the hands of the court in regard to a child in this way is wrong but it is as wrong for treason as it is for murder, which is why I have tabled the amendment.

James Browne (Wexford, Fianna Fail)
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I certainly hear Senator Ward's frustration. He was very much to the forefront in seeking legislation to address what is an unconstitutional element in our legislation. Senator Ward deserves significant praise for this. He highlighted it to the Department a long time ago. Unfortunately, perhaps through not heeding the Senator's warnings, we have ended up in a situation where urgent legislation must be passed. I expect the Department to address the treason situation quite urgently. Drafting can be done quite quickly but the issue is addressing the potential for unintended consequences through other legislation. Not really apropos of this but I am reminded of a senior counsel when I first started. A client was giving out for being charged so much for a ten-minute application and the senior counsel responded that they could teach the person in an hour how to do the ten-minute application but it would take them 25 years to teach them what to do if something went wrong. There is an element of this. Senator Ward's drafting is excellent but we have to take a precautionary approach and ensure there are no other consequences in the legislation. In this respect, unfortunately at this time I cannot accept the amendment. It is a pertinent amendment and one the Department will study and will table its own amendment in due course.

Barry Ward (Fine Gael)
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That senior counsel was clearly not practising criminal law because given the state of the fees in criminal law nobody complains about them. I hear what the Minister of State is saying. I do not agree but so be it. I do not propose to press the amendment.

Barry Ward (Fine Gael)
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I move amendment No. 2:

In page 3, between lines 23 and 24, to insert the following: "Amendment of Children Act 2001

4. The Children Act 2001 is amended, in section 151, by the substitution of the following subsection for subsection (3):

"(3) Subject to subsection (4), the Court shall specify, in its absolute discretion, which portion of a period for which a detention and supervision order is in force shall be spent by the child in detention in a children detention school and which portion under supervision in the community.".".

This proposes an amendment to section 15 of the Children Act 2001 to deal with a situation which is, again, incongruous with regard to certain sentences. The amendment proposes a new subsection (3) and relates to supervision orders. It is something I have included because it was in the Criminal Justice (Juvenile Offenders) Bill I tabled, which went beyond what the court mandated in the case last month. There is another lacuna here and we have an opportunity to fix it. This is with regard to community supervision orders. At present the court's hands are relatively tied on these because essentially the portions have to be 50:50. There is no real reason this should be the case, particularly for children. There is an argument to say we should once again trust to the discretion of our highly trained, expert and impartial judges to decide what portion should be inside and what portion should be outside. It is a sensible suggestion. Arguably, it does not strictly come under the purpose of the Bill but we are all here now, we can make a legislative change that makes sense, and let us do it.

James Browne (Wexford, Fianna Fail)
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I will frustrate Senator Ward again by saying he makes eminently sensible points on the sentencing options, the principles of which I agree with. The general scheme of the children (amendment) Bill was published in July by the Minister, Deputy McEntee, and will go to pre-legislative scrutiny in the very near future. I agree with Senator Ward. I agree with the sentiment and the drafting of the amendment but, at this moment in time and with the urgency of the Bill, there has not been an opportunity to scrutinise the amendment to allow it to be included. I will get the Department to reach out to Senator Ward so we can be assured the legislation that is needed is done as quickly as possible.

Barry Ward (Fine Gael)
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I move amendment No. 3:

In page 3, between lines 23 and 24, to insert the following: "Application of section 99 of Criminal Justice Act 2006

4. The provisions of section 99 of the Criminal Justice Act 2006 (as amended) shall apply to criminal proceedings involving a person who, at the time the offence was committed, had not reached the age of 18 years, as if the term "imprisonment" were "detention".".

This amendment proposes to amend section 99 of the Criminal Justice Act 2006. It is one of the most vexed pieces of legislation in recent times. It started life as a criminal justice Bill in 2005 and during our colleague Senator McDowell's time as Minister for justice it multiplied in size by four or five times in the Houses and became the Criminal Justice Act 2006. It does a multitude of things but perhaps one of the most significant is in section 99, where it makes statutory provision for suspended sentences. Before this they were done on a common law basis. Section 99 is important. It has been amended five or six times since it passed into law in 2006. I am asking that this be done again. The reason it gets amended so many times is because it was not done right in the first place. I am not specifically inserting a new subsection or changing a subsection. It may well be that the issue I identify here is solved by section 4 and the retrospective action of the Bill we are debating.

Essentially, at present we have a situation where, if a person convicted of murder subsequently appeals, the hands of the appeal court and trial court are tied with regard to suspended sentences. I propose that section 99 will apply to criminal proceedings involving a person who at the time of the offence was committed had not reached the age of 18 years as if the term "imprisonment" were "detention". The reason is that when we put somebody in custody who is not yet 18 we call it detention. When they are over 18 they get moved to prison. There is an important distinction with these things and it is not just semantics. The regime in respect of both is different, even though the closing of St. Patrick's Institution, which I do not quibble with, has blurred the lines in some respects in respect of where we detain young offenders.

If a judge or an appeal court wants to suspend a sentence under section 99 it is difficult, if not impossible, for them to do so when they are dealing with a person under 18 because they cannot suspend a period of imprisonment. They can only suspend a period of detention.If the sentence is for longer than the length of time between the person's age and their 18th birthday, the court’s hands are tied. The same argument applies to amendment No. 3 as was made in respect of amendment No. 2. We are all here and there is a gap or a problem, so let us fix it.

James Browne (Wexford, Fianna Fail)
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I recognise there is currently no power to suspend sentences for children and this is being addressed in the general scheme of the children (amendment) Bill 2024 that I previously discussed. As I mentioned, the general scheme was published in July. During the development of proposals in this general scheme, my Department consulted widely on this issue, including with the judiciary. The general consensus of those consultations was that suspended sentences are not appropriate for children. This is because the child is not given the opportunity to deal with their offending behaviour. International children's rights principles highlight the importance of children and youths being able to relate their offending action to its consequences. If a fully suspended sentence is imposed on a child, they may think they got away with it and therefore continue to offend. The Law Reform Commission has expressly recommended against providing for suspended sentences for children. The children (amendment) Bill 2024 will therefore provide for alternatives to suspended sentences.

I reiterate to the Senator my intention to engage with my Department on the drafting of these provisions. For these reasons outlined, I thank the Senator for this considered amendment and regret that I cannot support it. I assure him however that this Bill will address the same objective. It seems somewhat counterintuitive, but at the moment it does appear to be international best practice. Once again, I am happy for my officials to tease out the rationale behind that with the Senator.

Barry Ward (Fine Gael)
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There is a temptation to press the amendment to see how the vote goes.