James Reilly (Dublin North, Fine Gael) | Oireachtas source

Amendment No. 3 proposes to insert the words “and may be less” and a statement that “[t]he Court shall have regard to the age, level of maturity, best interests of the child and the principle of detention as a last resort in determining the nature of any penalty imposed” into section 149(1) of the Bill.

On the insertion of the words "and may be less", it is provided at section 149(1) that the period of detention imposed on a child by a court shall not be more than the period of detention or imprisonment that could be imposed on an adult. That does not mean that a lesser period of detention cannot be imposed on a child. It is inherent in the provision that the period of detention imposed on a child may be less than that imposed on a person of full age and capacity.

Section 96(4) of the Act provides for the principles relating to the exercise of criminal jurisdiction over children. It provides that the penalty imposed on a child for an offence should be not greater than that which would be appropriate in the case of an adult who commits an offence of the same kind and may be less. It does not state it "shall be less". It already includes the words "and may be less". A penalty may include any one of a number of sanctions ranging from community sanctions to detention as a measure of last resort. I do not consider inserting the words "and may be less” is necessary as section 149(1) already implicitly makes provision for a lesser period to be imposed on a child. In addition, section 96(4) is explicit on this point, clearly providing that the penalty imposed by a court on a child which may include detention as a measure of last resort may be less than that which would be imposed on an adult.

On adding the words, “The Court shall have regard to the age, level of maturity, best interests of the child and the principle of imprisonment as a last resort in determining the nature of any penalty imposed", the principles proposed in the amendment are already explicitly provided for in the Children Act 2001, as the Deputy acknowledged.

Part 9 provides for the powers of the courts in relation to child offenders. As I have mentioned, section 96 provides for the principles relating to the exercise of criminal proceedings in the case of children.

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