James Lawless (Kildare North, Fianna Fail) | Oireachtas source

I too welcome the youth justice strategy and the progress made by the Minister of State, Deputy James Browne, in advancing these matters and many of the aspects addressed under his stewardship.

Looking beyond the strategy to other issues in the sphere of youth justice, the justice committee, which I chair, published a comprehensive report recently on the decriminalisation of certain substances - drugs - with a greater focus on cannabis but with a variety of substances in mind. It was signed off on all-party basis and many of its recommendations are with the citizens' assembly for discussion. I mention this because the figures represented to us during deliberations in the committee showed that often when somebody comes into contact with the criminal justice system, particularly a minor or youth, it is because they have been accused of possession of drugs, often a small quantity. The question we posed and answered in the report was whether it was appropriate for a young or older person to have a criminal sanction and record because they were found to have a small quantity of cannabis or some other soft drug in their possession. I look forward to the deliberations of the citizens' assembly but we could spare many young people that stigma and avoid much court time and Garda resources being devoted to the pursuit of such activities were we to adopt a different approach. I know the jury is out on that but I look forward to the citizens' assembly making its recommendations and hope they will be somewhat, at least, in line with what we found on the justice committee.

I raised an issue with the Minister in a recent parliamentary question session that relates to a postcode lottery. There is an anomaly or lacuna in the Children Act in the way prosecutions operate for persons under 18. If somebody commits an offence while under 18, they are as a child in the eyes of the law. That is managed in conformance with the Children Act and brought about through investigation and prosecution. When they come before a court, certain sanctions are considered appropriate for children and others for those who are over 18 and considered to be adults, which is effectively the full gamut of the criminal law. The deciding factor is not their age when they committed the offence or when the charges were served, as one might expect, but their age when they come before the court for sentencing. In a district which is expedient and processes charges and books of evidence quickly, somebody could be brought before a court within a matter of months and charged while still a certain age. On many occasions, unfortunately, an individual of 15 or 16 at the time of committing an offence might face delays, which could be for good reason. Not all delays are negative. It could be because a probation report was ordered, because there were further inquiries or because a psychological assessment or victim impact statement was awaited. There are many reasons a child or its legal team may wish to engage further in different services. The parent may have a particular view. It may take some time before that case gets to court. If the child turns 18 in the meantime, they are tried and sentenced as an adult with the full section which that brings into play, which seems inappropriate and completely unfair. The same offence in similar circumstances could be committed by two children in the same day in different districts. One is tried as a child, convicted, and sentenced as a child, with all the protections they then enjoy, rightly; another is sentenced as an adult, purely because of the date on which the case was heard. I said the Minister before that it is a lacuna and something that should be looked at.

Another situation I have seen is where judges, with the best intentions, use the sentencing regime to apply a suspended sentence, which is used to great effect in many cases, as a form of deterrence to say the person is getting another chance, a sentence is being imposed and if the person reoffends, it is hanging over him or her for a certain amount of time. If the person behaves themselves in the meantime, it elapses and he or she moves on. In certain situations where a sentence was suspended for a child defendant, the child unfortunately reoffended and when the case came back before the court and the judge attempted to trigger the suspended sentence, it was not possible under the Children's Act. There is a lacuna there. It should not be possible to impose a suspended sentence if it is incapable of being triggered. I know the victim of such an instance who nearly lost her life in a road traffic accident where there was a criminal prosecution afterwards and it transpired there was a previous offence but it could not be re-entered because of the lacuna on suspended sentences.

I welcome the report and the significant progress on this. The justice committee considered the Criminal Justice (Engagement of Children in Criminal Activity) Bill 2023, which has been nicknamed Fagin’s law after the Dickens character with his gang of pickpockets roaming the streets of London. It concerns the agency of the third party benefitting from the crime and largely innocent children, or misled at any rate, being sent into action. It will be possible when the Bill becomes law to criminalise the commissioner of the offence, the one who profits from and organises it, as opposed to the child who is effectively an innocent agent.

On a solemn and serious note, not every offence is suitable for youth diversion and not every child is innocent. We had in the law for a long time the principle of doli incapax, which was a presumption that children under a certain age were incapable of serious crime. In my constituency we very sadly had the Ana Kriégel case in Leixlip in the last couple of years, RIP, and in the UK a number of years ago the Jamie Bulger case. Other stories have made the headlines in recent years in other countries and, thankfully not many, but some in Ireland. We should not be so naive as to think it suitable for every case. Some of the most serious crimes are committed by those considered children in the eyes of the law but they do not act like children. That is something we need to be wise to. There must remain the potential for the most serious sentences for the most serious crimes, regardless of the age of those committing it.

I support the Minister of State in what he is trying to do with the youth diversion scheme and thank him for his work to date.

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