Barry Ward (Fine Gael) | Oireachtas source

I move amendment No. 3:

In page 3, between lines 23 and 24, to insert the following: "Application of section 99 of Criminal Justice Act 2006

4. The provisions of section 99 of the Criminal Justice Act 2006 (as amended) shall apply to criminal proceedings involving a person who, at the time the offence was committed, had not reached the age of 18 years, as if the term "imprisonment" were "detention".".

This amendment proposes to amend section 99 of the Criminal Justice Act 2006. It is one of the most vexed pieces of legislation in recent times. It started life as a criminal justice Bill in 2005 and during our colleague Senator McDowell's time as Minister for justice it multiplied in size by four or five times in the Houses and became the Criminal Justice Act 2006. It does a multitude of things but perhaps one of the most significant is in section 99, where it makes statutory provision for suspended sentences. Before this they were done on a common law basis. Section 99 is important. It has been amended five or six times since it passed into law in 2006. I am asking that this be done again. The reason it gets amended so many times is because it was not done right in the first place. I am not specifically inserting a new subsection or changing a subsection. It may well be that the issue I identify here is solved by section 4 and the retrospective action of the Bill we are debating.

Essentially, at present we have a situation where, if a person convicted of murder subsequently appeals, the hands of the appeal court and trial court are tied with regard to suspended sentences. I propose that section 99 will apply to criminal proceedings involving a person who at the time of the offence was committed had not reached the age of 18 years as if the term "imprisonment" were "detention". The reason is that when we put somebody in custody who is not yet 18 we call it detention. When they are over 18 they get moved to prison. There is an important distinction with these things and it is not just semantics. The regime in respect of both is different, even though the closing of St. Patrick's Institution, which I do not quibble with, has blurred the lines in some respects in respect of where we detain young offenders.

If a judge or an appeal court wants to suspend a sentence under section 99 it is difficult, if not impossible, for them to do so when they are dealing with a person under 18 because they cannot suspend a period of imprisonment. They can only suspend a period of detention.If the sentence is for longer than the length of time between the person's age and their 18th birthday, the court’s hands are tied. The same argument applies to amendment No. 3 as was made in respect of amendment No. 2. We are all here and there is a gap or a problem, so let us fix it.