Helen McEntee (Meath East, Fine Gael) | Oireachtas source

We will ask for that.

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

At its Cabinet 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 of the Criminal Justice (Amendment) Bill to address the issues identified by the court. Given the significant implications if not addressed quickly, the justice committee, which I thank for this, agreed to waive pre-legislative scrutiny and the Government approved publication of the Bill before the House on 18 September. It will commence on enactment.

Let me turn to the Bill itself and outline what is proposed in order to address the issue identified by the High Court. The Bill 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 Criminal Justice Act 1990, which provides for the mandatory life sentence for murder. The section acts to disapply the mandatory life sentence for murder. This will apply only to children who commit murder when they are under the age of 18 but turn 18 before or on the day of sentencing. The section does not stipulate a sentence which 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 the two cohorts are treated the same.

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 murders, such as the murder of a member of An Garda Síochána or a prison officer. As this provision does not apply to children, it also 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 of this offence.

Section 4 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 the 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. It is necessary to give the Bill retrospective effect because we are dealing with cases where the offence has already been committed, and the aged-out children involved cannot now receive a mandatory life sentence for murder.

Section 5 provides for the Short Title, which is the Criminal Justice (Amendment) Act 2024.

The Criminal Justice (Amendment) Bill is limited to the issues identified by the High Court. The mandatory life sentence for murder will no longer apply to a person who committed the offence when he or she was under the age of 18. This complies with the constitutional guarantee of equality that the court found was deficient in respect of the differing treatment of juvenile offenders at the date of sentencing depending on their age at the time of the sentence. It also reflects the special considerations which apply in respect of criminal wrongdoing by child offenders who lack the intellectual, social and emotional understanding of adults. This Bill will complement proposals my Department is bringing forward with respect to necessary amendments to the Children Act 2001. The proposals outlined in the general scheme of the children (amendment) Bill 2024, which was published in July, arise from recommendations made in the Youth Justice Strategy 2021-2027. Both the provisions of this Bill and the proposed amendments to the Children Act have been developed to reflect the accepted standard that children are treated differently from adults by the criminal justice system. The approach taken in both pieces of legislation follows recommendations of the United Nations Committee on the Rights of the Child. The committee has stated:

Juvenile justice systems should also extend protection to ... [children] who were below the age of 18 at the time of the commission of the offence but who turn 18 during the trial or ... [sentencing process].

I am grateful for the support of the House in progressing this urgent legislation to ensure that we have clarity in law for this most serious of cases. I look forward to Members' contributions in the course of the debate and would be happy to address any aspects of the legislation Deputies wish to raise not just today but subsequently. I commend the Bill to the House.

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