Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

This Bill has been introduced because of the equality provision under Article 41 of the Constitution. Under that provision, there is a requirement to ensure that all citizens shall be dealt with equally before the law. That means that when the State and particularly the Oireachtas, when we enact laws, cannot unjustly or arbitrarily discriminate between citizens. It does not mean we cannot treat citizens differently, however, based on their social function or differences of capacity. For instance, there is much legislation that we have enacted which treats citizens differently, whether it is our taxation code, which is based on people's earnings, with different rates applying to their earnings, or the social welfare code, where social welfare supports are provided based on means-testing and the needs of individuals. We also have it in the public service, where people are forced to retire at a certain age and we set the pension at 66. We can, as a State, differentiate between citizens based on differences of capacity and social function, but we cannot indiscriminately discriminate against them unjustly based on an application of a law which applies to one group differently from another comparator and similar group.

The reason we are discussing this today is because of a decision of Mr. Justice Simons in the High Court that was delivered earlier this month. I commend the Minister and her officials for bringing forward legislation so promptly. We are still in September and the decision was delivered on 2 September this year. It is wise that the State has not gone through the process of trying to appeal this decision since I think it is fairly unanswerable in itself. The High Court ruling was effectively dealing with circumstances where people under the age of 18 years commit murder and yet they are only sentenced after they age out or become 18 years of age. The High Court noted that in circumstances where people commit a crime as a children under the age of 18 and they are sentenced before they reach the age of 18, they cannot be subjected to a term of imprisonment. Instead, they are subjected to a term of what is referred to as an indeterminate term of detention. They are still going to pay a heavy penalty for the serious crime that was committed but section 156 of the Children Act states, "No court shall pass a sentence of imprisonment on a child".

The Children Act also takes into account that when it comes to the sentencing of a child, which is a person under 18 years of age, section 96 requires certain factors to be taken into account. The point is that if a person or a child commits a murder before the age of 18 but his or her trial does not come on for a year or two years, and he or she then assumes the age of 18, he or she will then automatically receive a life sentence if convicted of murder. The High Court correctly appraised that there is an unfair treatment of people who were children when they committed the act of murder, who are treated differently because of something that is fairly arbitrary, namely, how long it took for the trial to come on and when they are sentenced. I think it is an unappealable decision and that the Minister is correct in bringing forward this legislation.

As many other Deputies have indicated, the commission of serious offences by children is extremely disturbing. It requires analysis and, let us be frank about it, it requires punishment too. However, I would not like the message to go out that if children manage to commit murders before the age of 18, they will in some respect avoid liability and responsibility for their heinous acts. That is not the case. When it comes to sentencing, however, they must be treated differently and they cannot be subjected to the mandatory life sentence because of the provisions of the Children Act. I do not know, Minister, whether there are many individuals who committed murder and were convicted of murders that were committed when they were under 18 and who were sentenced after the age of 18, who obviously would have received a life sentence. I do not know if there are many people in that category. If there are, I do not know what the Minister proposes to do in respect of it. It is extremely difficult to go back and deal with a sentence that has been imposed on an individual previously but it is certainly something that those individuals will have to consider themselves.

Regarding criminality by children, we all know that children are like sponges in a way. They absorb everything that is around them. If a child is brought up in a background where violence is common or they see the people who are bringing them up or influencing them engaging in violence, I regret to say it is inevitably the case that the child will also engage in violence. I was recently in a prison-----

See this speech in context