I welcome the opportunity to present this Bill to the Seanad. It is short but important legislation that addresses constitutional infirmities in law recently identified by the High Court. I thank Senator Ward, who has done a large amount of extremely important work in respect of the legislation. Last month, the High Court ruled that a person who commits murder when under 18 but who turns 18 years before sentencing cannot be subject to the mandatory life sentence for murder. The mandatory life sentence for murder is provided for in section 2 of the Criminal Justice Act 1990. The Bill's objective is straightforward. It seeks to disapply the mandatory life sentence for murder for those who age out, that is, those who commit the offence when under 18 but who turn 18 before sentencing. The Bill gives effect to a surgical fix of section 2 of the 1990 Act to rectify the infirmities identified by the High Court.
I stress that there is an urgency to enacting the amendments before the House because of impending murder trials involving aged-out children in the coming weeks. The proposed amendments the Bill gives effect to will ensure that the courts have appropriate options available when sentencing in these cases, including the option to sentence an aged-out child on trial to life imprisonment. The courts will also have the option to sentence an aged-out child to a determinate sentence.
I will outline the background to the Bill and why there is a need for these urgent legislative amendments. In its judgment in the case of Amah and Musueni v. Ireland and others on 2 September, the High Court found that it was unconstitutional to impose the mandatory life sentence for murder on a person who committed the offence while still a child but was sentenced after their 18th birthday. The case was taken by two persons who were 17 when they were charged with murder but who have turned 18 in the interim. If found guilty, they would be subject to a mandatory life sentence under section 2 of the Criminal Justice Act 1990. That Act provides for a mandatory life sentence of imprisonment for any person who commits murder. However, section 156 of the Children Act 2001 creates an exception to this for children, so the mandatory life sentence does not apply to children who are sentenced as children. The Oireachtas has recognised that a more nuanced approach to sentencing principles is appropriate where the offender is a child under the age of 18. Their age and level of maturity may be taken into consideration by the sentencing court when determining the penalty to be imposed. However, in criminal justice proceedings for murder, it is the date of the sentencing hearing that determines how offenders should be sentenced. Thus, under existing law, where an aged-out child offender is found guilty, they will automatically be sentenced to imprisonment for life on conviction for murder, whereas a child convicted and sentenced while still under 18 does not automatically receive this sentence. The High Court was clear that this unequal treatment of offenders who have committed murder while children but who are sentenced differently because of the date of sentencing is unconstitutional. The High Court held that to impose the mandatory life sentence on a child who ages out would be a breach of their rights under Article 40.1 of the Constitution because of this inequality with other children who commit the offence of murder. 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 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 because there are several murder trials scheduled over the coming months involving aged-out children, including a sentencing hearing this month and two murder trials in November. Consequently, the Attorney General advised that legislative remedy is required as a matter of urgency.
At its 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 this Bill to address the issues identified by the High Court. Given the significant implications if not addressed quickly, the justice committee agreed to waive pre-legislative scrutiny and the Government approved publication of the Bill before the House on 18 September. The legislation will be commenced upon enactment.
I will outline what exactly is proposed in the Bill in order to address the issue identified by the High Court. It 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 Act of 1990, which provides for the mandatory life sentence for murder. The section acts to disapply the mandatory life sentence for murder and will apply only to children who commit murder when they are under the age of 18 but who turn 18 before or on the day of sentencing. The section does not stipulate the sentence that 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 that the two cohorts are treated the same.
The issue of not having a statutory sentence for murder and therefore reverting to common law was raised in the Dáil. I reassure colleagues this is intentional and is necessary to comply with the High Court judgment. It is true there has been a statutory sentence for murder for adults since 1861. However, since section 156 of the Children Act 2001 came into operation and disapplied the mandatory life sentence for murder for children, there has been no statutory sentence for children who commit murder. Therefore, the 2001 Act is silent in respect of children who commit murder. In order to comply with the equality principle underpinning the High Court judgment and to ensure that children and aged-out children are treated equally, there can be no statutory sentence for aged-out children who commit murder. A statutory sentence for aged-out children but none for children would undermine equality in the treatment of the two cohorts and this is precisely what the Oireachtas has to remedy.
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 murder, such as the murder of a member of An Garda Síochána or a prison officer. As this provision does not apply to children, it 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.
Section 4 also 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 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.
