Ms Deirdre Malone:

I am the executive director of the Irish Penal Reform Trust. I have been asked to comment on the State's reply to the Human Rights Committee list of issues that it is "not possible" to remove the reservation on Article 10(2) of the ICCPR and on the implications of such inaction for younger persons on remand or in detention. As Senators will be aware, Article 10(2) contains two important provisions. It is about the segregation of the accused from the convicted and about the separation of juveniles from adults.
It is important to look at why we have this principle and why it is so important to separate juveniles from adults because that goes some way to eliminating the implications of inaction when it comes to this article. The first point is the nature of children's needs. Children are different. The general comment of the Committee on the Rights of the Child states:

Children differ from adults in their physical and psychological development, and their emotional and educational needs. Such differences constitute the basis for the lesser culpability of children in conflict with the law. These and other differences are the reasons for a separate juvenile justice system and require a different treatment for children.

The second issue is protection from harm. Children are particularly vulnerable and it is for that reason that the European Prison Rules provide that, "young prisoners shall be detained under conditions which as far as possible protect them from harmful influences and which take account of the needs peculiar to their age". Indeed, the Committee on the Prevention of Torture has also found that: "regardless of the reason for which they may have been deprived of their liberty - juveniles are inherently more vulnerable than adults. In consequence, particular vigilance is required to ensure that their physical and mental well-being is adequately protected", and further: "to accommodate juveniles and unrelated adults together inevitably brings with it the possibility of domination and exploitation".
The third reason for separation of juveniles and adults is the potential criminogenic effect, and also the fact that children are particularly amenable to rehabilitative treatment, and segregation from adults provides the optimum situation to rehabilitate and, ultimately, for children to reintegrate successfully.
It can be stated why it is so important to separate the accused from the convicted. It is a founding principle of the criminal justice system that one is seen and treated as innocent until proven guilty. That principle is recognised in the different regimes in place for both convicted and unconvicted criminals, and it goes without saying that children on demand should never be housed with those who have been convicted under sentence.
Having looked at why this article is so important, the next matter is to look at what has been Ireland's position in regard to the article. Ireland's reservation to the article was entered in 1989. We are one of only 15 state parties out of 168 who have entered a reservation in respect of Article 10. The wording of Ireland's reservation is important. What Ireland stated was:

Ireland accepts the principles referred to in paragraph 2 of article 10 and implements them as far as practically possible. It reserves the right to regard full implementation of these principles as objectives to be achieved progressively.

Ireland stated categorically that the value and validity of those principles is not in question. The only reservation Ireland entered is the pace at which such change can be achieved. That was in 1989. In 2014, there are still children detained in Wheatfield, albeit in specialised units. It is an adult prison. There are two remand prisoners remaining in St. Patrick's Institution, an institution which has been described in the past as an obscenity.
Looking at the list of issues for the fourth periodic review, the Human Rights Committee asked the State to clarify whether it will review the reservation and, if not, indicate why and identify the remaining obstacles. In Ireland's reply, while the State confirmed that all reservations are kept under review and it remains committed to the implementation, it reiterated that it is "not possible" to withdraw the reservation but, unfortunately, it did not provide a statement of the obstacles to the withdrawal of that reservation.
I have been asked to consider the possibility of the withdrawal of the reservation. There are two points to make in regard to that. It goes without saying, and Senators will be aware, that legally, it is, of course, possible to remove any reservation from an international treaty. It is provided for in Article 22. Indeed, Ireland has withdrawn other reservations.
The second, and more important, issue is whether Ireland can realistically meet the requirements of Article 10. It is also clear that with ongoing political will and adequate resources it is certainly possible to meet them. We know it is possible because after many years of campaigning from organisations such as the Children's Rights Alliance and the IPRT, we are well on our way to doing so. There has been capital investment in Oberstown and an important decision to close St. Patrick's Institution. That was a significant step towards guaranteeing the separation of juveniles and adults. Equally, there has been some movement in the separation of remand and convicted prisoners.

Although a significant minority continue to be kept in non-segregated facilities, the majority of remand prisoners are confined to segregated facilities in two prison sites.

Our submission is that it is both legally and practically possible. I make the point that when one considers fundamental human rights principles and when one talks about what is possible or impossible, it is rarely a reflection of true capacity. The difference between possible and impossible often is really a product of political will, of the availability of resources and of the decision to allocate resources to those who are considered to be the most deserving and the most important. I noted that in the very beginning of the just-published national policy document for children, Better Outcomes Brighter Futures, Nelson Mandela was quoted. It repeated his statement "there can be no keener revelation of a society's soul than the way in which it treats its children". My point is that to maintain the reservation in effect provides an open-ended timetable to the State regarding the fulfilment of these principles. If there can be no greater revelation of a society's soul than the way in which it treats its children, the maintenance of this reservation to a key human rights provision, which is not only about children but about children who are imprisoned - the most vulnerable in society - this is not at all a positive reflection on Ireland. While it should be frankly acknowledged that much progress has been made in this area, we are not there yet. Consequently, the position is still that the formal withdrawal of this reservation would demonstrate concrete commitment to ending this practice of combining juveniles and adults together. Moreover, it would ensure the continuing progress in the protection of fundamental human rights for the juveniles in the criminal justice system.