David Cullinane (Sinn Fein) | Oireachtas source

I move amendment No. 18:

In page 8, between lines 6 and 7, to insert the following:“(b) by the insertion of the following subsection after subsection (7):

“(7A) Where a child is convicted of an offence and a period of detention is imposed on the child by a court, the period of detention shall not exceed the term of detention or imprisonment that the court could have imposed on a person of full age and capacity who is convicted of such an offence, and may be less. 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.”,”.

We note that section 8 amends section 149 of the Children Act 2001 and provides that where a child is convicted of an offence, the period of detention imposed on that child should not exceed that which the court would have imposed on an adult. While it is noted that the purpose of the section is to give consideration to the principle of equality of treatment between children in detention schools and adults in the prison system, considering the importance of the principle that detention should be a last resort for children, we recommend that this provision be amended to more closely reflect the spirit and wording of section 96 of the Children Act 2001. The amendment proposes that where a child is convicted of an offence and a period of detention is imposed on the child by a court, the period of detention shall not exceed the term of detention or imprisonment that the court could have imposed on a person of full age and capacity who is convicted of such an offence and may be less. It also proposes that 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.

Amendment No. 23 also refers to section 8 which provides that where a period of detention is greater than three years is imposed on a child, a court must give its reasons for doing so in open court. It should be noted that the original Children Act 2001 provision, before it was amended by the 2006 Act, contained an upper limit and did not permit a court to impose a sentence on a child in excess of three years. Therefore, we would suggest that the proposed provision under section 149(2) be amended. We make this submission in light of recommendation No. 33 of the report of the strategic review group on penal policy, which was published in September 2014. The group recommended that in all cases where a custodial sentence is imposed by a court, the court shall set out its reasons in writing for so doing. The group further recommends that this requirement be incorporated in statute. As far back as February 2003, the Law Reform Commission also recommended that a District Court judge should be required to give concise written reasons for any decision to impose a custodial sentence on a child. The strategic review group considered whether this requirement would constitute a significant additional burden on the court but concluded that it would not. The obligation to provide reasons already exists and this recommendation simply requires that those reasons are recorded in writing. In cases where the liberty of a child is at stake it is even more imperative that there is clarity around the rationale for such a significant decision. Such a statutory provision would promote consistency in sentencing and bring clarity and transparency not just to the court but also to victims, offenders, legal practitioners and the public.