Brendan Howlin (Wexford, Labour) | Oireachtas source

I am trying to follow the Minister's logic. We can only deal with the law as is and the laws we are creating, not what might come down from another judgment of the superior courts that might have implications for the law. My difficulty with this, to follow the Minister's logic, is that any child under the age of 18 who is convicted of murder and sentenced in court cannot, under the 2001 Children Act, be sentenced to prison. They can be sentenced to detention but not to prison. That is the law. Anybody over 18 who commits murder and is convicted is liable to a mandatory life sentence. That is the law simpliciter. The grey area is around a child who commits murder and becomes 18 before sentencing. What is the law in that case? That is my question. The children's legislation does not apply to that person because he or she has reached the age of 18. No law applies to that person. The Minister's proposal in that case is that we do not need statute law because common law will apply and it will be up to the judge without any reference to any law. I do not want to rehearse it again but I gave the history of murder in legal terms from 1860 in the various Acts. It has always been a statutory crime with a stated sentence.

I am not proposing a sentence. That is why I do not understand the Minister's objection. I repeat that what I am suggesting is that where this subsection does not apply, where there are aged-out children, the court may impose such sentence or order as it considers appropriate. There is no stated sentence in my proposal. I understand that form of words is exactly what the Minister intends to happen, that it would be open to the court to impose such sentence or order as it considers appropriate. I quoted the Minister's own words on that in the Dáil yesterday. The net difference is that I want to put it into law and the Minister says it does not need to be put into law. She is actually saying something further: that by doing what she intends to do but in a statute of the House somehow creates an inequality but doing it surreptitiously without a statute does not create that inequality. I am at a loss to understand that.

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