I welcome the Minister, the Minister of State, Deputy Hanafin, and their officials. The committee has already spent some time on this Bill and to cover as much ground as possible I ask that we proceed as quickly as possible. Is that agreed?
Children Bill, 1999: Committee Stage (Resumed).
I move amendment No. 33a:
In page 30, subsection (1)(a), line 46, before "accepts" to insert "having first had a reasonable opportunity to consult with his or her parents or guardians, and where sought, having obtained legal advice,".
Section 23 deals with the admission of a child to the programme provided for under this part of the Bill. Section 23(1) states:
A child may be admitted to the Programme if he or she-
(a) accepts responsibility for his or her criminal behaviour,
(b) consents to be cautioned and, where appropriate, to be supervised by a juvenile liaison officer, and
(c) is of or over the age of criminal responsibility and under 18 years of age,
This amendment proposes to insert in section 23(1)(a) before the word "accepts" the words "having first had a reasonable opportunity to consult with his or her parents or guardians, and where sought, having obtained legal advice". The purpose of this amendment is that, to be admitted to the programme, the child must accept responsibility for his or her criminal behaviour. In the context of this happening he or she must first have a reasonable opportunity to consult with his or her parents or guardians or, where sought, to have obtained legal advice. This is to ensure, first, that where the child is accepting responsibility he or she understands the nature of the responsibility that is being accepted and has consulted with those primarily charged with taking care of him or her - the parents or guardian - and, second, that if a child needs legal advice that he or she has the opportunity to obtain it.
Section 23 sets out the requirements which must be met by a child before he or she can be considered for admission to the programme. These include that the child accepts responsibility for his or her criminal behaviour. The diversion programme is a scheme designed to divert young offenders away from further offending. If the child denies committing the offence or refuses to accept responsibility for it, he or she would not be eligible for admission to the programme.
Before a child is admitted to the programme the evidence of the child having committed the offence must be as strong as it would be to bring a charge against the child. This system has worked well for the almost 40 years the juvenile liaison officer scheme, or the diversions programme as it is now called, has been in existence.
The amendment seeks to qualify the condition that the child accept responsibility for his or her criminal behaviour in two respects. First, the child should have had a reasonable opportunity to consult with his or her parents or guardian. In the light of the definition of parents or guardian in section 17 for the purposes of Part IV, and the rights given to a child under Part VI, the amendment in this respect seems reasonable.
The second aspect of the amendment would give the child the opportunity to obtain legal advice, where it has been sought, before admitting to the criminal behaviour. Again under Part VI, where a child in custody asks for a solicitor, the member in charge has an obligation to notify the solicitor or another solicitor as soon as is practicable. Therefore, on a strictly legal level there could be no objection to a child seeking legal advice before accepting responsibility for his or her behaviour.
Part IV was prepared in close co-operation with the director and other officers of the Garda national juvenile office. Apart from the obvious reasons for such co-operation, we wanted to be sure the drafting was flexible enough to cater for all the circumstances in which a child could be admitted to the programme. While accepting that the amendment appears reasonable, I have doubts about the mention of legal advice in this part. I would like to consult with the Parliamentary Counsel before Report Stage. If no procedural or drafting problems are raised I propose to accept the amendment on Report Stage or, if necessary, an amendment drafted by my Department covering the same ground.
The Minister has made a reasonable response and on the basis of his assurance I will withdraw the amendment and resubmit it for Report Stage.
I move amendment No. 33b:
In page 31, subsection (1), between lines 4 and 5, to insert the following:
"(d) admission to the Programme is in the best interests of the child,".
Section 23(1) deals with the criteria for admission to the programme. This amendment proposes that the question of the programme being in the best interests of the child should be an additional criterion to have regard to in determining whether a child is admitted to it. I hope the Minister addresses the amendment in the same spirit as amendment No. 33a.
Where an offence has been committed, whether by an adult or a child, the interests of three distinct groups must be upheld: first, the offender, which is most important where the offender is a child, second, the victim and, third, society. Those interests are reflected in Part IV in a carefully balanced manner. For example, section 23(2) obliges the director to satisfy himself or herself that admission to the programme would be appropriate having regard to the interests of the child and that it would not be inconsistent with the interests of society. Section 23(4) provides that the views of any victim must be given due consideration although the victim does not have a veto on the child's admission to the programme.
The amendment would upset the balance between the valid interests of the child offender, the victim and society. It implies that admission to the programme must be in the best interests of the child but these could conflict with the interests of the victim living next door to the child or with society, where, for example, wanton vandalism or even joyriding is concerned. We are satisfied that the present wording complies with the convention and we have checked this. If Deputy Shatter presses the amendment we could undertake to look again at the wording of section 23(2) to see if it would be possible to strengthen it without upsetting the rights of others, which I am sure is not the intention of the amendment.
The amendment was proposed having regard to provisions contained in the convention and the changes in the law that are likely to occur in the context of the convention. The amendment does not suggest that a child should be admitted to the programme only on the basis of whether it is in the best interests of the child. It should be one of the criteria to which regard is had. It is deemed to be an important criteria that needs to be expressly referred to in the section.
I do not believe it is the Minister's intention that children should be admitted to a programme of this nature in circumstances where it is contrary to the interests of the child to be admitted to such a programme. The programmes are seen as an alternative mechanism to deal with children who have committed offences without them being detained and in a manner which seeks to ensure they do not offend again. The nature of the programme over the years and the intention of it as detailed in the legislation is to deal with difficult children or a child that has got into difficulties in a manner that is in the child's best interest while maintaining the balance of protecting society. The Bill contains another provision where the views of the victim can be taken into account even though they do not dominate what the outcome should be. Adding this provision gives a more consistent thread in the context of children's law and is consistent with the convention. I am willing to withdraw the amendment until Report Stage and I urge the Minister to consider this.
The Minister is considering subsection (2).
I undertake to look at this again to see if we can strengthen it in the best interests of the child without upsetting the balance. That is my difficulty. I do not want to upset that balance. The Deputy is right that I want to ensure the best interests of the child are protected but I want to do so in a way that does not upset the balance. I will undertake to look at this to see if the best interests of the child aspect can be strengthened and we can look at this again on Report Stage. I am not ruling it out.
Amendment No. 34 has already been discussed with amendment No. 5.
I move amendment No. 34:
In page 31, subsection (3), line 37, after "child" to insert "and shall be available in the Irish language to a child who is from a Gaeltacht area or whose first language is Irish".
Amendment No. 35 has already been discussed with amendment No. 5.
I move amendment No. 35:
In page 31, between lines 37 and 38, to insert the following subsection:
"(4) Every such notice shall be expressed in the Irish language when dealing with children from the Gaeltacht or with children whose first language is Irish.".
The Minister accepted this.
I think he did.
It is long ago now. The Minister should take my word for it.
I move amendment No. 36:
In page 31, lines 41 to 44, to delete subsection (2) and substitute the following:
"(2) A formal caution shall be administered in a Garda Síochána station or, in exceptional circumstances, elsewhere by-
(a) a member of the Garda Síochána not below the rank of inspector, or
(b) a juvenile liaison officer who has been trained in mediation skills, in the presence of the parents or guardian and, if the caution has been administered by such a member of the Garda Síochána, a juvenile liaison officer.".
The desirability of this amendment has arisen as a result of the experience gained by the Garda community relations sections under the pilot schemes and conferences they have conducted in the past year or so. It has become clear that mediation skills are required by the juvenile liaison officers who will convene the conferences. Already 38 officers have been trained in mediation and other skills by the Mediation Council of Ireland and a company called Real Justice. A further 40 officers are now almost fully trained in mediation skills and family group conferencing, which means that effectively all officers who will be convening and facilitating conferences will have been trained well before this Bill is enacted. These mediators will, in the family conference context, be able to open up lines of communication between victims and offenders and will assist both parties in resolving their conflicts and differences towards resolving their conflicts and differences and in finding agreed solutions in a safe and non-threatening way. For that reason I consider it important that explicit references to mediation should be included in Part 4.
The first of those references is amendment No. 36, which will permit juvenile liaison officers who have acquired mediation skills to administer a formal caution. Traditionally a formal caution has been administered by an inspector or superintendent dressed in full uniform in a Garda station with the parents also present. The administration ceremony was designed to emphasise with which the child's behaviour was regarded and that in all probability further offending could result in prosecution. That can still be the case with some formal cautions but with the introduction of conferencing and restorative cautioning, the purpose of the formal caution will be different in many cases and in many respects from the present. As well as an offender being supervised to a greater or lesser degree, the formal caution may consist of restorative cautioning, as provided for in section 26 and restorative conferencing will follow in many cases. Mediation will be an important part, but by no means the only part of these proceedings. The gardaí consider it important that, for consistency, experience of the offender and the skills required, the person who administers the caution should also convene the conference. That is the purpose of amendment No. 36.
I move amendment No. 36a:
In page 32, subsection (1)(a), line 33, to delete "12 months" and substitute "not less than 6 months and not more than 24 months".
Section 27(1)(a) provides that where a child has received a formal caution he or she shall be placed by the director under the supervision of a juvenile liaison officer for a period of 12 months from the date of the administration of the caution. I propose that some degree of flexibility be provided in the context of the individual background of both the child and the matter which has resulted in the caution being delivered. I propose to delete the reference to 12 months and to substitute "not less than 6 months and not more than 24 months". That would mean the section would state that where a child has received a formal caution he or she would be placed by the director under the supervision of a juvenile liaison officer for a period not less than 6 months and not more than 24 months from the date of the administration of the caution.
Section 27 specifies the length of the supervisory period associated with the different types of caution. A formal caution entails a 12 month supervisory period and the amendment seeks to change that to between six and 24 months. In preparing this section we decided to follow the 1996 Act in that respect by giving effect to present administrative practice. The national garda juvenile office considers this to be the appropriate period of supervision and, as with other aspects of the diversion programme, it works and has been seen to work. I have been careful with the Bill not to be over-prescriptive and accordingly it will be noticed that the 12 months period can be varied by the director in accordance with any ministerial regulations made under section 47. Also, a family conference can recommend a variation of the period of supervision, which section 38 so provides.
Section 34 sets a time limit for the holding of a conference under Part 4. It must be held during the period of supervision. That is a sensible provision as once the supervision is finished the child will no longer be in the diversion programme. While I expect the majority of conferences will be convened within a few months of admission to the programme, in some cases a delay may be unavoidable and it would be a pity if in any such case time ran out on the holding of a conference. The 12 months gives that extra leeway if such unavoidable delays arise.
In making the case for the present policy on supervision, as reflected in section 27, I am not saying Deputy Shatter does not have an arguable case with his amendment. On balance, however, I prefer to stay with the present successful practice and accordingly I do not propose to accept Deputy Shatter's amendment.
In the circumstances I withdraw the amendment.
I move amendment No. 37:
In page 33, paragraph (b), lines 39 to 42, to delete all words from and including "to" in line 39 down to and including "actions" in line 42 and substitute "to mediate between the child and the victim".
The purpose of this amendment, like amendment No. 36, is to highlight mediation as a function of a conference, that is, to mediate between the victim and the child offender. The amendment also proposes the deletion of the words ". . . so that the child may be given an opportunity to understand the consequences of his or her actions". This is because mediation is much more than that and I do not wish in any way to restrict the development of mediation as part of conferencing. This amendment and amendment No. 36 are testimony to the experience already gained for the implementation of this Bill. I have said that the restorative conferencing provisions have inbuilt flexibility to develop over time in ways we might not anticipate. While this amendment and amendment No. 36 are not essential for the concept of mediation to take a firm hold in the conferencing provisions, they will give it a welcome boost and emphasise an important feature of the conferences.
The Garda research unit has developed a three year research project to evaluate family conferences and restorative cautioning. The project is being overseen by the Institute of Criminology at UCD. It is essential that such new schemes are properly monitored and researched so that changes can be made when and if the need for change is identified.
We are taking amendments Nos. 37a and 37b together.
I move amendment No. 37a:
In page 34, subsection (3)(b), lines 14 to 17, to delete all words from and including "also," in line 14 down to and including "conference" in line 17, and substitute the following:
"have regard to the best interests of such child and where practicable, ascertain whether the victim's parents or guardians are agreeable that such conference be held and to attend at it".
Section 30 deals with recommendations that a conference be held. Subsection (3)(b) provides that where the victim is a child, the juvenile liaison officer shall also, where practicable, ascertain the views of the victim's parent or guardian regarding to the possibility of a conference being held and the attendance of the parent or guardian at any such conference. It is proposed to amend that provision by inserting the words "have regard to the best interests of such child and where practicable, ascertain whether the victim's parents or guardians are agreeable that such conference be held and to attend at it" after the words "the juvenile liaison officer shall also".
Provisions relating to a child victim were introduced by me in the 1999 Bill. The concept of the child victim raises different considerations from the adult victim or the child who commits an offence. Accordingly, I can accept the policy considerations that gave rise to these amendments, that is, the last interest of the child victim should be taken into account in the context of the family conference. However, I will show the amendments to the parliamentary counsel before they become part of the Bill and I undertake to do so before Report Stage, when I can put down amendments covering the same points.
This provision relates to a victim attending a conference that will be held about a child being placed under the supervision of a juvenile liaison officer. It is envisaged that one would have the child who committed the offence at the conference and, possibly, the adult victim of the child. Subsection (3) also envisages the possibility of a child who is being put under supervision having committed an offence against another child. Where the victim is a child, in determining whether the child victim should attend a conference, the juvenile liaison officer must have regard to the best interests of the child victim. That is a different issue. It is a matter of ensuing that a child victim attending a conference where the child perpetrator may be present does not create additional difficulties for the victim. There are a number of circumstances, particularly if a child has been violently assaulted by the child who has admitted an offence and who is to be placed under supervision, in which the victim could be very upset or disturbed by being required by its parents, for example, to attend such a conference. We must consider the best interests of the child victim. The Minister spoke about striking a balance in the public context and the child victim is a member of the public who is entitled to ensure that the arrangements made, which could result in that child being asked to participate, take the best interests of that child victim into consideration.
I am pleased with the amendment in general terms and I accept that the best interests of the child victim should be taken into account. I have already stated that. However, I have also explained that I need to discuss this with the parliamentary counsel before this becomes part of the legislation In principle, I regard the amendments as very good and I intend to accept them but I need to discuss the matter with the parliamentary counsel. If necessary, I will then put down amendments on Report Stage covering the same point. I in no way deny these very good ideas from Deputy Shatter.
I move amendment No. 37c:
In page 37, subsection (3), between lines 25 and 26, to insert the following:
"(e) the undertaking by the child of community services as defined by the Criminal Justice (Community Services) Act, 1983, for a specified number of days over a specified number of weeks for a period of time not exceeding 24 hours in total.".
This section describes the action plan that may be put in place in relation to a child and subsection (3) details various provisions which may be made under the action plan, including the child making an apology or financial or other reparation to a victim, participating in sporting or recreational activities or attending at a school or place of work. My amendment proposes that in the context of what may be included in the action plan and the issues which may be dealt with in relation to a child, there should be an additional option available. I propose a new subsection (e) to read:
. . . the undertaking by the child of community services as defined by the Criminal Justice (Community Services) Act, 1983, for a specified number of days over a specified number of weeks for a period of time not exceeding 24 hours in total.
The idea is that currently community service orders do not apply to persons under 18 years and it is to extend the possibility of a child, pursuant to an action plan, being required to undertake certain specified community service by way of reparation to the community for anti-social behaviour in which the child has engaged and to which he or she has admitted in the context of the arrangements that have been put in place.
For technical reasons I cannot accept this amendment. Regarding policy, the final report of the expert group on the provision of welfare service made recommendations concerning changes to the operation of the community service order scheme. Those proposals are being examined at present in my Department and I am not prepared to give any undertaking on the operation of the 1983 Act until the outcome of that examination is in my hands, which I hope will be later this year.
I said the amendment would be impossible to accept for technical reasons. The community service Act provides for the imposition of community service by the courts and only by the courts. It can be imposed only as an alternative to a custodial sentence and can be imposed only on those who have reached 16 years. The minimum number of hours which can be allocated under the 1983 Act is 40.
In contrast, the amendment envisages community service arising out of an action plan formulated at a Garda conference being imposed on any child from the age of 12 upwards and having a minimum number of 24 hours. The amendment is in complete conflict with the existing legislation from which it seeks to derive its meaning. In pointing out the difficulties with the amendment I do not wish to prejudice the outcome of the examination of the final report of the expert group on the provision of welfare service. I am not arguing against the terms of the amendment but its conflict with the present legislation. I am happy to admit that the amendment is worth following up in terms of content but that is in situations where the court orders the Probation and Welfare Service to convene a family conference and formulate an action plan. Community service could then form part of the plan.
I will undertake to make a copy of the amendment available to the officials examining the final report of the expert group on the provision of welfare service, as the amendment itself is worthy. Unfortunately, I cannot accept it for the reasons outlined but that is not to say it will not be taken into consideration by the expert group.
I deliberately tabled this amendment to give us an opportunity to discuss this matter, as it merits some discussion. The 1983 Act had its genesis in a Private Members' Bill I published in 1981 and at the time it was designed to provide, as the Minister correctly said, for community service orders as an alternative to a conviction on indictment and prison sentence. Those orders have proved to be a very successful mechanism in the armoury of the courts when dealing with people guilty of offences. We are not using community service orders to their fullest advantage and to the benefit of the wider community. Community service orders, whether one is speaking about adults or those under 18, should no longer be available just to the courts as an alternative to a prison sentence. Community service should be seen as a mechanism whereby a person convicted of an offence is required to repay his or her debt to the community in a recognisable manner which does not result in the community, through the taxpayer, incurring substantial expenditure. There is great merit in the concept of people who commit offences being required to undertake work as a penalty for misbehaviour. There is a beneficial and positive role which young people between the ages of 12 and 16, who engage in anti-social behaviour, could play in the community if they were required to undertake community service. This could be done through a structure in the children's court or through the new statutory procedures which we are providing to give statutory effect to the juvenile liaison officer system.
I suggest that we put the issue of community service orders on the committee's work programme for the future.
Chairman, you are anxious to get through this legislation and we are facilitating that. However, I have a serious point to make and I will not be rushed through it as if this were just a rubber stamping exercise.
The Minister said this issue is applicable to other legislation which is being prepared at present.
I do not care what the Minister says. This is Committee Stage of a Bill. I am entitled to respond and to make a point, and I intend to make it. The Minister may say it is not appropriate at this point. I appreciate the way the Minister dealt with the matter. I simply want to make the point. I am entitled to debate this issue and I will debate it for a few moments, if you let me. If you had not interrupted me, I probably would have completed the point by now.
As a matter of policy, I invite the Minister to accept that we should change the basis upon which community service orders are made. They should no longer be confined to people who can be sentenced on indictment to terms of imprisonment. They should be available for offences which would not result in a sentence of imprisonment and they should be available for persons under 16. I accept what the Minister says, that the amendment does not accord with the current operation of the 1983 Act, but before Report Stage I invite him to consider whether there is a mechanism which he could introduce in the Bill to provide for the undertaking of a form of community service by young people. That would not require amending the entire 1983 Act but it would require designing a provision in this Bill which specifically deals with those between the ages of 12 and 16. I invite the Minister to do that. It would be beneficial. I ask the Minister not to leave it until such time as his Department has completed the review of the report on the 1983 Act. If that review involves the introduction of new legislation, I suspect it will take three or four years to introduce, bearing in mind the various other pressures on the Department. Report Stage of this Bill gives the Minister a unique opportunity to address this issue by targeting a specific community service provision at young people between the ages of 12 and 16 in the context of the type of circumstances envisaged in section 39.
I strongly support Deputy Shatter's amendment. The Minister has accepted the validity of the spirit of the amendment; it seems the difficulty is merely with the wording. For most of the children to whom the legislation refers there would be a long history of anti-social problems in their communities, which would have started with damaging a neighbour's front door or car and developed into writing graffiti on walls and damaging public places such as local community centres. The notion of confronting such children with the implications of their actions is valid. Too often we have seen such young offenders being sent to detention centres for a year or two and returning to their communities not having learned the basic idea of respect for other people and their property. There is a great deal of merit in the restorative model which is allowed through community service. That principle has been accepted in the case of adults and it is even more relevant in the case of juvenile offenders.
The Bill already allows for financial or other reparation to victims. Surely we could encompass the spirit of what Deputy Shatter is trying to achieve by rewording the amendment. We are talking about community reparation. If the difficulty is with the term "community service", that should not prevent us from making provision for such a service in the Bill. If we must await the result of the review, it will be put off indefinitely.
This legislation is comprehensive and sets out a new way of dealing with young offenders. Obviously the principle of community service making reparation with the local community is a central point and it should be a central principle underlying the legislation. Therefore I appeal to the Minister to accept the principle of what Deputy Shatter has said and look at the wording of the amendment to allow the spirit to be incorporated in the Bill.
I welcome the fact that the Minister said he considers this is a worthwhile amendment and that he will bring it to the notice of the review group. I am not sure if he indicated when he hopes that review will be completed. If it were possible to incorporate community service into this legislation, I would welcome a measure which would do so.
Last night at a meeting which the Chairman and I attended in our community there were reports of the most horrific crimes being perpetrated on a community by three young boys who were even younger than the children to whom the Bill applies. The gardaí said that without firm evidence they can only speak to these children. We need to be able to prevent children from getting involved in anti-social behaviour at the age of eight or nine and moving on to more frightening offences at an older age. We need to be able to do more than what is mentioned in the action plan. Such young people and their families must be faced with the prospect of having to make reparation within their communities. While the focus is on diverting young people away from that kind of behaviour and encouraging their families to assist them in changing their behaviour, one may have no option but to confront them with a community service plan. Is it possible to incorporate that in the legislation before the review is completed or is the Minister saying we would need to come back and amend this legislation following the completion of the review?
While I know the Minister is anxious to have this Bill passed, and from the reports I have heard at meetings in my community it is vital that it is passed as soon as possible, can we incorporate this measure in the Bill?
I have often expressed the view that the community service order was an original idea but there was always the suspicion that it was put in place because of an insufficient number of prison places. To a large degree, the order was utilised subsequently as a substitute for prison. The intent was obvious, but it may have been used on occasion to alleviate a serious prison overcrowding problem. I am delighted this overcrowding problem has been addressed and continues to be with each passing year. I take on board the view that it is possible at this point to consider the question of extending community service orders. The expert group recommended that the community service order be introduced as a sanction in its own right as opposed to a substitute for imprisonment. I go along with the philosophy underlying that train of thought. There is a difference between the view of the expert group and what Deputy Shatter's amendment seeks to achieve. The expert group was of the view that the community service order should be higher up in the hierarchy of sanctions that might be imposed, whereas Deputy Shatter's amendment seeks to bring the community service order into the lower order of the hierarchy of sanctions. That seems to be the import of what he is saying.
The difficulty with it is that the courts currently impose community service orders as sanctions and this amendment seeks to devolve that power to the director. In addition, it seems that the community service order would be utilised in the course of the care or treatment of the child as opposed to being imposed at the final stage. A later section of the legislation provides that day centre orders can be made by the courts. If a day centre order is made by the court, much of what Deputy Shatter seeks to achieve can be achieved.
There is also the question of the propriety or otherwise of people under the age of 16 working. If we are saying it should be possible to impose a community service order on people under the age of 16, that gives rise to fundamental questions about the age people should work in our society. I am sure no one believes a young person should be obliged to work at an age that is inappropriate. Those are some of the difficulties involved.
The general thrust of what Deputies Shatter, Shortall and McGennis referred to is desirable. However, this amendment is desirable in the context of a far greater degree of debate and in that respect in the context of community service legislation. It would not be appropriate or desirable to include it in this Bill for the reasons I outlined. I accept the need to extend the community service order as a sanction. It should remain higher up in the hierarchy of sanctions. The courts should impose that sanction. I am concerned about the question of children under the age of 16 being put to work by a court.
Is Deputy Shatter pressing the amendment?
I want to respond briefly to what the Minister said. Under section 39 the action plan can include provision for a variety of measures. Included in those are the attendance of the child at a place of work, the participation of the child in an appropriate training or education course or a programme that does not interfere with any work or school schedule of the child. It can include arrangements being made to make the child "more aware of the consequences of his or her criminal behaviour". It seems the provision for a child to undertake a form of community service or a form of service to the community, to refer to it as something other than community service being regarded as a term under the 1983 Act, would fit well within this section.
The Minister referred to hierarchies. I have no interest in the hierarchy in this context. The hierarchies are not relevant. I was not suggesting that one sanction is any better than another, but this should be one of the options available.
Deputy Shortall made the point well in the context of teenage children who engage in anti-social acts such as daubing paint on walls or destroying property. I could envisage a 15 year old who has seen fit to paint obscene signs on walls being given a few hours community work, which would involve removing obscene signs from a wall. I do not think anyone would find that objectionable. That would make the child aware of the consequences of his or her criminal behaviour and might act as a greater deterrent than the child being fined or told off by a judge in a District Court. There is a practical use to which this provision could be put and it could be provided for under this Bill. It should not be a sine qua non to community service that one is liable to a sentence of imprisonment. In the context of us considering different ways of disposing of issues that arise as a consequence of anti-social behaviour by children, there is nothing unique in requiring someone to undertake community service that one confines it to being ordered by a District Court judge. If there is an action plan to be put in place and there is co-operation about matters being dealt with through the juvenile liaison system, there is no reason that co-operation cannot extend to this being an additional feature of section 39.
I appreciate the Minister has said that in the context of the overall issue and having regard to the 1983 Act further consideration will be given to this issue. It is one of direct relevance to the area of juvenile justice. There are discreet and specific provisions that could be enacted that apply to 12 year olds and to 26 year olds. They do not involve any issues such as those the Minister described of children under the age of 16 working in a full-time capacity. That was not suggested. The type of tasks a young person could be required to do under this would be beneficial to the community and enlightening to a young person who has misbehaved. On that basis, I wish to press the amendment.
Before the amendment is put, I wish to make a brief point. With regard to the objective of the amendment, could it not be included in subsection (i), which provides for any other matter that in the opinion of those present at the conference would be in the child's best interests or would make the child more aware of the consequences of his or her criminal behaviour.
When Deputy Shatter was talking about graffiti, I thought he had visited a part of my constituency. Every week a man in my constituency must paint over graffiti on a gable wall before he goes to work at 7 a.m. A group of young thugs decided they would joyride around the area and when mothers in the parish decided to give their names to the local gardaí, the thugs decided to paint on that corner wall every week the words, "Mothers in this area are rats". The corporation supplied that man with paint initially, but he has had to replenish it, as every week he has to paint over that graffiti. That man works, is rearing his children in that community and is trying to counter the behaviour of those thugs. If the Minister is in agreement with this amendment and understands its objective, while it might not be included in the Criminal Justice (Community Service) Act, could it be included in subsection (3)(i)?
Can the Minister refer directly to paragraph (i)?
I will be brief. On the question of hierarchies, that terminology was neither ecclesiastically inspired nor inspired by me. It was inspired by the expert group's report, if I recall, in which it dealt very clearly with the whole issue of hierarchies.
Deputy Shatter referred to section 39(3)(d) regarding the action plan including a place of work. It must be remembered that this legislation refers to people up to the age of 18 years. It might be deemed appropriate, for example, that a person of 17 years would attend a place of work and that a person of 14 years would attend a school. That is fair enough in anybody's view.
Senator McGennis referred to the man who has to get up every second morning and paint over slogans painted on walls - graffiti and so on. There is provision in section 39(3)(b) that the child can be obliged to make reparation to the victim. One of the ideal ways in which reparation could be made to the victim would be if a child who goes around writing graffiti on walls was obliged to rub it out. That is reparation of a tangible kind.
It depends on the meaning of reparation.
In Kerry terminology, it comes within the meaning of reparation.
It is a unique part of the world.
It is reparation to a community rather than a victim.
I move amendment No. 38:
In page 39, subsection (3), line 19, after "committee" to insert "and of whom one shall be a non-Garda person with a background in child welfare".
This section deals with the establishment of a committee to monitor the effectiveness of a programme. It seems to be very heavily weighted in favour of gardaí. It is to be chaired by a senior garda. It is important for the sake of balance that we specify that there should be at least one non-Garda member and that it would be a person with expertise in child welfare.
Section 44 obliges the Minister to appoint a committee of four persons, which includes the chairperson, to monitor the effectiveness of the diversion programme, to review all aspects of its operation and to monitor the ongoing training needs of facilitators. It will be chaired by an assistant commissioner of the Garda Síochána and one other member will be a Garda chief superintendent so there will be two Garda members. What may not be immediately obvious from the drafting is that the other two members of the committee will not be members of the Garda Síochána and my interpretation of the amendment is that there was an assumption that there would be no non-Garda members. Section 44(2) makes that clear. Section 44(3) states that the commissioner will consult the Minister about the appointment of the Garda members, that is, the assistant commissioner and the chief superintendent, making it clear that the other members will not be gardaí.
The reason for the committee to review the effectiveness of the programme is that placing it on a statutory basis and incorporating restorative conferencing and restorative cautioning into it is a unique development. It will be heavily scrutinised and will attract the attention of the public and experts from here and abroad. I have always made clear that there is huge scope under the provisions for the restorative elements, in particular to develop in ways not necessarily envisaged. That is something I wish to see but equally it is important that such developments are kept under review to ensure they are always positive.
I thought it might be over-prescriptive to designate the particular skills required by the lay persons on the committee because time might dictate that, say, experts in mediation, child psychologists, criminologists and others with expertise in child offending or even research experts would be required. As I interpret the amendment, the part requiring one lay person on the committee is unnecessary as there will already be two. The part requiring the person to be expert in child care would be unwise and for those reasons I am not in a position to accept this amendment.
Is the amendment being pressed?
I am going to press it because it is not clear from the legislation, as worded, that two of the members will be non-Garda members. It is important to specify that. The other point is that the track record of official Ireland in dealing with child welfare matters has not been very good. There are often serious concerns about the lack of expertise in relation to child welfare among senior members of agencies. I am not scoring political points. I think there is very often a lack of appreciation of the issues involved in child welfare cases.
Many adults do not know very much about children, particularly the marginalised and troubled children about whom we are talking and who will be covered by this legislation. There are many very senior people in senior positions who would never have come into contact with the type of children about whom we are talking and who would not necessarily have an appreciation of the issues involved. There is also the matter of the cultural gaps that exist.
In fairness to the children concerned and to ensure the plans and the programmes operate satisfactorily, it is essential to have a person with some background and expertise in child welfare. Child welfare is an expert and specific area. It is not something on which people, especially those in senior positions in State agencies, are good. There is a vast area relating to child welfare about which many adults know very little. For the sake of balance, it is important that at least one person has specific expertise in child welfare. I ask the Minister to reconsider this.
Deputy Shortall seems to think the Bill as framed in regard to the committee to monitor the effectiveness of the programme is not clear enough in terms of the non-Garda membership so I will ask the parliamentary draftsman to have another look at it to see if it can be made more explicit. With regard to the expertise the individual would have, I have not been over-prescriptive in that for the very simple reason that I took the fair view that different expertise could be required in different cases. I am not saying that the expert required in one case might not be the person who Deputy Shortall describes but she must appreciate that it is possible, for example, that in another case, an expert in juvenile justice or someone with a myriad of skills might be required. While I will look at the first part, I am loath to look at the second part. We will try to make it more explicit.
It seems extraordinary in light of the Minister's earlier comments about the best interests of the child that he does not see it would be important to have a person with expertise in child welfare on this monitoring committee. There are many different interests in relation to the juvenile justice area and people are coming from different positions and perspectives and sometimes different interests. It is important from the point of view of safeguarding the best interests of the child concerned that one of the four people on that committee would approach it from a child welfare perspective.
I hope everybody on the committee will approach it from a child welfare perspective.
I move amendment No. 39:
In page 39, subsection (10), line 41, to delete "A" and substitute "Subject to the Freedom of Information Act, 1997, a".
The amendment provides for the preservation of the right to apply under the Freedom of Information Act, 1997, for non-personal information.
I am prepared to accept the amendment.
Amendment No. 41 is related to amendment No. 40 and both may be taken together by agreement.
I move amendment No. 40:
In page 41, line 9, to delete "civil or".
The section, as drafted, bars a victim from taking a civil action against a child where the child is admitted to the diversion programme. Will the Minister clarify that point? It is unconstitutional from the victim's perspective and that is why I tabled the amendment.
Section 48 states in any civil or criminal proceedings against a child the evidence of other criminal behaviour in respect of which the child has been admitted to the diversion programme or the child's involvement in the programme should not be admissible. The amendment seeks the deletion of the word "civil" so that such evidence would be admissible in civil proceedings against a child.
This is an interesting amendment but, on balance, the present wording should be favoured. The diversion programme is a scheme that enables the authorities to deal with young offenders without charging them with their offences. It is generally used where the offence is not too serious and the offender is not a persistent offender. As a precursor to admission the offender must admit to the offence and in return he or she is given a guarantee that no criminal charges will follow in respect of the offence.
The standard of evidence of the child committing the offence for admission to the programme is the same as that for bringing criminal proceedings. Given the inclusion in the programme of family conferencing and restorative cautioning I was determined the legislation would do nothing to interfere with the integrity of what is essentially a totally new scheme. Everyone involved in the scheme must be fully confident that nothing said in the course of a conference could have subsequent legal repercussions, otherwise persons would be less inclined to participate or, if participating, less likely to be open, frank and honest. If that were to come about, conferencing would become for all intents and purposes a waste of time.
The primary purpose of the conference is to formulate an action plan to which all those present can subscribe. Where the child in respect of whom the conference is being held has committed an offence causing damage or the offence was larceny, the making of reparation may be part of the plan. The victims may receive recompense for their loss in that way. However, revenge or a demand for the making of reparation is not a typical response of victims in family conferences. If the integrity of conferencing is to be upheld there should be no threat of civil action arising out of the offence in respect of which it was held. I cannot accept the amendment for that reason.
I support the amendment. The section has a complexity that the Minister perhaps does not yet appreciate. There is nothing wrong or objectionable about section 48(a) but section 48(b) gives rise to a problem and a lesser problem derives from section 48(c). It is quite reasonable that the acceptance by a child of responsibility under a programme such as this should not be used later against the child to secure a criminal conviction, which cannot happen because there is an alternative to process matters through the court, or to ground a civil action because otherwise, for example, if a 16 or 17 year old admits responsibility, such admission could result in civil proceedings, with the damages being instituted automatically.
I will outline why section 48(b) is a problem. The Minister stated that in a later criminal or civil proceeding behaviour that has resulted in a child being subject to the programme cannot be referred to in evidence. If a 16 year old beats someone up, is admitted to the programme, does the same six months later and is prosecuted for the second assault, following his conviction it is surely in the pubic interest that the District Court, for example, is informed that this is the first offence of this nature for which the person has been convicted. However, he previously beat up someone else and there was not a prosecution because he was dealt with through the programme.
In the absence of a court knowing that the teenager has behaved like a thug, he will get off as his lawyer engages in special pleading because he has never been prosecuted and the court is deprived of the knowledge that he was involved in violence previously. The likelihood is that instead of a sentence or more severe penalty he will receive a judicial ticking off. There is a public interest in ensuring that when the programme is used, should an individual re-offend, the first offence cannot be used against him to secure a conviction for the second offence but should he or she engage in similar anti-social acts again which result in conviction, the court will get an unreal picture when deciding what penalty to hand down if it is deprived of the knowledge that he had previously been dealt with under the programme for a similar offence.
The second reason I have a problem is that civil proceedings could involve, for example, care proceedings relating to a child. If a child behaves in an anti-social way as a result of which he or she is admitted to the programme and there are more problems with the child as a consequence of which a health board decides to bring care proceedings, does the section deprive the health board of an entitlement to inform the Children's Court in care proceedings brought under the 1991 Act that they relate to a child who has certain family difficulties, has already behaved in an anti-social way and is subject to a programme for certain types of conduct? The reference to civil proceedings under the section means that if care proceedings are brought against a child dealt with under the programme, the court cannot be informed the child is under the programme, what behaviour the child engaged in and the background to the programme.
I understand the Minister's intention. Section 48(a) is correct but I have problems with section 48(b) and section 48(c). The Minister needs to re-examine them.
I am approaching this section from the point of view of a person taking civil proceedings who has been injured. It is incredible that where a young person has admitted to specific behaviour, it is not admissible in civil proceedings. The Minister has given the offender's perspective in this instance but he has not outlined the implications for the victim in the event of the victim taking civil proceedings in the case. The victim's constitutional rights could be seriously infringed by this provision.
There is no question of a person's constitutional rights being infringed. Nobody is prevented from taking a civil action or from acquiring the necessary evidence to support that civil action. The section merely states that the behaviour of the child in question may not be used in evidence.
I have already explained that the concept of restorative justice and conferencing is to ensure there is full participation by everybody, including the child. Anything which militates against full participation obviously militates against the success of the programme itself. There is a balance to be struck. We are not talking here about a child causing serious damage but about minor offences, trying to ensure everybody comes on board in good faith at the conference and seeking to ensure that, in this context, people have a degree of security. With regard to the issue of introducing the behaviour of the individual, one might as well bring in the fact that the individual committed an offence. It is the same thing. A balance must be struck and I believe we have struck the correct balance in the legislation as presented.
Conferencing could not operate adequately or effectively if Deputy Shortall's amendment were accepted. The philosophy underlying the conferencing procedure is that a line would be drawn under what happened in the past and there would be a new opportunity for the young person concerned. Clearly, it would be a matter for the young person to grasp that opportunity. The objective of the exercise is to ensure the opportunity is grasped and that there will be no further offending. Conferencing relates to minor matters and, in my view, the best interests of the child and ensuring the child is properly integrated into society favours the section as drafted.
Amendments Nos. 41a and 41b are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 41a:
In page 43, subsection (2), line 6, to delete "14" and substitute "15".
Section 52 is an important provision which will result in the age of criminal responsibility being changed for the first time since 1908. It sets out, in statutory form, the provisions concerning the capacity of the child to commit an offence. Subsection (1) provides that it should be conclusively presumed that no child under the age of 12 years is capable of committing an offence. The effect of this is that any child under the age of 12 years who engages in anti-social conduct will have to be dealt with under the child care laws.
Subsection (2) deals with the rules of evidence that apply to children between 12 and 14 years of age. Effectively, it applies to 12 and 13 year olds although it is popularly believed that it applies to 14 year olds. It provides that in the context of a 12 or 13 year old there is a rebuttable presumption that the child is incapable of committing an offence because the child did not have the capacity to know that the act or omission concerned was wrong. That does not mean that a 12 or 13 year old cannot be convicted of an offence, it means there is a presumption that the child's intellectual capacities were not sufficiently developed to understand that the behaviour complained of was wrong. It is possible to establish the child well knew such behaviour was wrong and for such a child to be criminally convicted. However, the prosecution must establish the extent of the child's knowledge of right or wrong.
Despite the fact that the Bill has been before the House for two years, there has not been a great deal of public debate about it and I presume that, because these sessions are not reported by anybody, today's proceedings will not lead to such a debate. There has been no debate as to whether the rebuttable presumption of incapacity should apply to children who are under 14 years, 15 years or 16 years and it would be remiss to pass over this provision without debating the issue to some degree. I propose that the rebuttable presumption of incapacity should apply to a child who is not less than 12 years but who is under 15 years of age and that the reference to 14 in the section be replaced by 15.
That does not mean I am trying to exempt 14 year olds from being held responsible for criminal acts. It means that in the context of 12, 13 and 14 year olds there should be a rebuttable presumption of incapacity and that the prosecution should be under an obligation to rebut the presumption. I assume it would be easier to rebut a presumption of incapacity on the part of a 14 year old than on the part of a 12 year old. Children of 12, 13 and 14 years of age are at different levels of cognitive understanding, are socialised to different degrees and come from different family backgrounds. There are extremely smart and street wise 12 year olds while there are considerably less smart and street wise 13 and 14 year olds.
The rebuttable presumption of incapacity which only applies to 12 and 13 year olds is too narrow. We should broaden it to apply to 14 year olds as well, albeit acknowledging that where a 14 year old does something which the general community regards as wrong it is likely that most 14 year olds will have sufficient capacity to recognise right from wrong. There can be only one or two days in the difference between being 13 and 14 years old and there is no great leap of understanding from the age of 13 years, 11 months and 30 days to the age of 14 years. By changing the 14 years to 15 years we are providing a safety valve by ensuring that immature 14 year olds who are not street wise and who do something stupid are not always presumed to have the capacity to know right from wrong and the capacity to commit criminal acts.
These amendments seek to raise the doli incapax range from 14 to 15 years. Before dealing with the amendments, I wish to place them in perspective by explaining in detail the meaning of the expression "the age of criminal responsibility" and the doli incapax rule. Many persons and groups have made representations to me who genuinely cannot understand why our age of criminal responsibility is lower than that in many of the civil law countries of Europe.
In common law countries such as ours, the expression "the age of criminal responsibility" means the age which determines capacity to commit offences. In other words, children under the age are deemed incapable by law of committing an offence and the offence per se is not available as a ground for intervention in relation to the child. This means that the care and protection provisions cannot be used unless the child actually needs care or protection and just because the child commits an offence does not mean that he or she necessarily needs protection. The older the child the less likely it is that there is a connection between the two.
In continental Europe, the expression "the age of criminal responsibility" is usually used to denote the age at which punishment may be applied in relation to the commission of an offence. This means that children under that age may commit an offence but they are not punished for the offence, though it may be used as a ground for applying compulsory measures, Thus, the expression "the age of criminal responsibility" differs in two crucial respects between common law and civil law jurisdictions, which make comparisons between the two useless and misleading.
For example, if an underage child in many continental countries commits an offence, it is regarded as an offence but is not punishable. Instead of punitive action, non-punitive action may be taken against the child. Such actions may result in compulsory measures being taken against the child, including compulsory custodial measures such as detention. In other continental countries a court may consider measures of care and protection inadequate and may relinquish the child to be dealt with by the ordinary criminal courts. It is interesting to note that in Europe our age of criminal responsibility is often understood to be 14 years, even though we describe it at the moment as seven years.
What all that means is that comparing our age of criminal responsibility to that in the civil law jurisdictions of continental Europe is not a valid exercise. What is valid is a comparison with other countries which have common law origins. While our current age of seven years is low by international standards, the new age of 12 years that I am proposing will be among the highest in common law countries. For example, in England, Wales and Northern Ireland the age is ten and in Scotland it is eight. In Canada it is 12 and in New Zealand it is 14 for many offences and ten years for the most serious offences. In Australia it is ten in most territories but in Tasmania it is seven. In many of the United States the age is higher and generally varies between 15 and 18 but in many of those states a juvenile court may waive jurisdiction over a case and transfer it to a criminal court. In many other countries with a common law heritage, such as Hong Kong, Cyprus, India, Nigeria and South Africa, the age is still seven and in Gibraltar and Kenya it is eight. It is nine in Malta.
Regarding the doli incapax rule governing the ages between which a child is exempt from criminal prosecution unless it is provided that at the time of the offence he or she knew they were doing wrong, I have not decided to accept the proposal in the 1996 Bill that it should be placed on a statutory basis. The one difference is that it would apply to children between 12 and 14 years rather than those between ten and 14. In England and Canada the doli incapax rule in respect of children up to 14 years has been abolished - at a time when children mature more quickly than before and young children can be involved in serious crime a case can be made for such a move.
However, the doli incapax rule provides a good buffer zone that allows for immaturity but no case has been made for raising it beyond 14. It has been done nowhere else and, as I said, where valid international comparisons can be made, the tendency is to abolish the rule. I accept with some reservations the argument that one might occasionally come across a young offender of 12 or 13 who does not know right or wrong. However, such a person appearing before the courts would be a rarity. If anyone could convince me that a 14 year old appearing before the courts on a criminal charge would not know right from wrong, no matter how low his or her IQ or level of maturity, I would give serious thought to amendments such as these. I have not been so convinced and, accordingly, I am not prepared to accept the amendments.
I move amendment No. 42:
In page 44, subsection (1)(a)(ii), line 43, after "language" to insert "and in the Irish language when dealing with a child from the Gaeltacht or a child whose first language is Irish".
Is the Minister accepting this amendment?
This is a Gaeltacht amendment. I think it is already accepted.
I move amendment No. 43:
In page 46, subsection (1)(b), line 31, after "station" to insert ", but where the child nominates a particular adult, the member in charge shall have regard to that nomination in exercising his or her functions under this subsection".
This concerns the treatment of children in Garda stations, providing for the inclusion of "but where the child nominates a particular adult, the member in charge shall have regard to that nomination in exercising his or her functions under this subsection". This amendment seeks to restore a provision that was in the 1996 Bill that seems very reasonable and it is difficult to understand why it is deleted from this version. When a child is arrested and brought to a Garda station, a parent or guardian may not be available and the legislation as currently drafted allows the Garda in charge to nominate someone. Obviously if there is someone the child knows, who knows the child and with whom the child is secure and comfortable, it would be good to call that person to act in the place of the parents while the child is being interviewed. I do not know why it was removed from the updating of the 1996 Bill and it seems fair and reasonable that if the child suggests that a youth club leader or neighbour with whom he or she is friendly steps in for the interview, that would be a sensible option and the legislation should allow for it.
This amendment is unnecessary as it assumes that the member in charge has more discretion over whether an adult reasonably named by the child to attend the station is acceptable to that member. Section 58 sets out the circumstances in which the member in charge is obliged to inform the child of his or her right to have an adult advised of the arrest and to have that adult requested to attend the station. In most circumstances the parents or guardian cannot be found or, if found, would not or could not attend the station.
Section 61 deals with the interviewing of the child. If the parent or guardian is present they have the right to attend, subject to subsections (2) and (3). Subsection (6) defines parent or guardian for the purposes of section 61 as including the adult reasonably named by the child pursuant to section 58. In the absence of those, that is, the parent or guardian or the other adult named by the child, the member in charge can nominate another adult.
This amendment is concerned with the adult named by the child in the absence of the parent or guardian. The position of that adult would be little different from that of the parent or guardian. That is one of the reasons for section 61(6) which, as I said, defines parent or guardian as including an adult reasonably named by the child. What does "reasonably named" mean? It is little different from section 58(2)(a)(ii), which deals with the situation where a parent or guardian cannot or will not attend the station within a reasonable period. If the adult named by the child lives 100 miles away or cannot be contacted, he or she has not been reasonably named. If the adult is suspected of complicity in the offence or is deemed likely to obstruct the course of justice, he or she can be excluded in the same way as a parent or guardian. The wording of the amendment appears to presume that the member in charge has wide discretion in deciding whether to allow the adult named by the child to attend the interview. There is no such wide discretion. The position of the adult is little different from that of the parent or guardian if they were present. The amendment is unnecessary and would give a misleading impression, and, accordingly, I cannot accept it.
I move amendment No. 43a:
In page 46, between lines 31 and 32, to insert the following:
"and no questioning of such child shall take place nor written statement be sought in the absence of video recording or what occurs.
(2) Any information obtained by an Garda Síochána pursuant to subsection (1) shall be inadmissible as evidence in the absence of a video recording of the obtaining of such information.".
This amendment deals with section 61(1). The purpose of the amendment is to ensure that no issue or dispute can arise about the manner in which questioning was conducted with regard to the information obtained at a later date.
This amendment implies that every Garda station in the country will at all times have available in it the equipment and facilities to enable a video recording of all interviews with children. Statements made in the course of Garda interviews with suspects are currently being video recorded in a limited number of stations refurbished and equipped for that purpose. Work is also well advanced in terms of a nationwide scheme which will cover approximately 150 stations and it is expected to be completed by the end of this year. At present, Garda video recordings are carried out under the Criminal Justice Act, 1984, and Electronic Recording of Interviews Regulations, 1997. These regulations provide for the recording of Garda interviews in respect of detained persons, but this is subject to the availability of the equipment and other circumstances. Accordingly, it is the case that not all relevant interviews are recorded, even in the stations where cameras have been installed.
The 1997 regulations do not make specific provision for the situation where the person being interviewed is a child but they were drafted to operate in conjunction with the 1987 custody regulations which cater for interviews with persons under 17 years of age. The 1997 regulations are in the course of being revised in the light of experience and to take on board certain points raised by the steering committee overseeing the recording project. In essence, it is envisaged that the existing model would remain largely intact. This would mean that recording would be the general rule but it would not apply if, for example, the equipment was not available or was not operating properly.
The purpose of the amendment appears to be to require that all interviews involving the questioning of children as suspects should be recorded on video. This would be impracticable as the recording equipment would not be available at every Garda station, the costs are substantial and apart from the equipment, each interview room must be fitted out for lighting and other purposes. The estimated costs of providing the appropriate facilities, including training and storage for approximately 150 Garda stations, is in the region of £10 million.
In addition, the amendment makes no distinction regarding the offences to be covered. It is inevitable that the number of recording units would be limited and it would be unrealistic to expect that equipment being used to record an interview with an adult in a very serious case should be brought to an end to make it available for a minor offence involving a child. Serious cases involving children should, of course, be recorded and this would be the general position under the current and the proposed regulations.
The Deputy is aware that section 61 provides for children to be interviewed in the presence of a parent or other adult. This should provide a substantial degree of protection of the child for the interviewing process. In the circumstances the necessity of having child interviews video recorded, certainly for lesser offences, should be reduced. For these reasons I cannot accept the amendment.
I was anxious to raise this issue, especially in the context where children are charged with serious offences. The Minister has failed to live up to his promises to provide for video recording equipment functioning within Garda stations within the original timeframe proposed. It was originally envisaged that the 150 stations referred to by the Minister would be equipped and operating some time ago. It appears that every few months the timeframe for implementation is put back. If the Minister is assuring the committee that in the context of the juvenile justice issue, interviews with children where serious crimes have been committed will be video recorded, I will withdraw the amendment.
The provisions applying to adults in that context also apply to children.
I move amendment No. 44:
In page 46, between lines 31 and 32, to insert the following subsection:
"(2) The Minister shall by regulations make provision for the manner in which panels of persons shall be drawn up for the purposes of subsection (1), and for the functions of such persons.".
I have received representations from a number of organisations working in this field, including the Irish Association of Social Workers, Barnardos and the Children's Legal Centre, which are concerned about the lack of clarity regarding this section and the role and function of the person to be nominated by the Garda to be present while the child is being interviewed. It is important that the legislation should establish a panel of people who are clearly informed about their role in situations where the parent or guardian could not be present during the questioning of a child. The provisions in the Bill are vague and it would appear to be left to the Garda to find a person to be present. Much greater care is needed in terms of setting out the role and responsibilities of such people. There is a need for the Minister to make regulations. That is the purpose of the amendment.
I presume the purpose of the amendment is to provide that panels of persons are drawn up to attend interviews with children in Garda stations when the parent or guardian or another adult is not available. Technically, the amendment does not achieve its aim in that it presupposes there will be panels. As envisaged in the amendment, the regulations would provide only for how they are drawn up and their functions.
The amendment is also too wide in scope in that referring to subsection (1) it includes parents or guardians and other adults named by the child. These would not be part of any previously drawn up panel. Section 70(1)(b) allows the Minister to make regulations governing the role of any of the adults present at the interviewing of children in Garda stations. That equates to the second part of the amendment and it is an important issue. For example, is the adult present to ensure the child is well treated, that procedures are complied with, to offer support or to have a more active role? These important points would have to be teased out in regulation.
Section 70(1)(c) would allow the Minister to make regulations concerning any other matter as may be necessary or expedient for the purpose of allowing Part VI to have full effect and for its due administration. Thus, for example, if the drawing up of panels were considered necessary or expedient for Part VI to have full effect that could be achieved and regulations could be made under section 70. At present, where a parent, guardian or adult named by the child is not available, the Garda will contact the local peace commissioner or other person of stature within the community. In effect, informal panels exist and this system works. In normal circumstances, no child is questioned in the absence of an adult. As long as I am satisfied that the system works I would not be in favour of establishing statutory panels. However, if I become aware of shortcomings developing in the informal system I will consider using my powers under section 70, as I am sure would any subsequent Minister. Accordingly, I cannot accept the amendment.
I move amendment No. 45:
In page 47, between lines 9 and 10, to insert the following subsection:
"(6) A child who is from a Gaeltacht area or whose first language is Irish shall be entitled to be questioned or to make a written statement in the Irish language, and any other child shall be entitled to make a written or oral statement in that language.".
Amendment agree to.
I move amendment No. 46a:
In page 47, between lines 13 and 14, to insert the following subsection:
"(7) For the purposes of this section a parent or guardian shall not be regarded as obstructing the course of justice where he or she advises a child of his or her right to remain silent.".
In the context of section 61 the member in charge of a Garda station can authorise the exclusion of a parent or guardian during the questioning of the child or the taking of a written statement in a number of circumstances, including where the member has reasonable grounds for believing that the parent or guardian would, if present during the questioning or the taking of statements, be likely to obstruct the course of justice. There is also a provision in subsection (4) that provides that the member in charge of the station may authorise the removal of a parent or guardian during the questioning of the child or the taking of a written statement where the member has reasonable grounds for believing that the conduct of the parent or guardian is such as to amount to an obstruction of the course of justice.
My amendment proposes the insertion of a new subsection, subsection (7), in section 61 to read as follows: "For the purposes of this section a parent or guardian shall not be regarded as obstructing the course of justice where he or she advises a child of his or her right to remain silent." I am anxious to ensure that where a child is being questioned and where a parent informs the child that he or she is entitled to remain silent and is entitled not to answer the questions, the member in charge is not in a position to draw the conclusion that the parent is behaving in a manner which could amount to an obstruction of the course of justice. This amendment would ensure that could not occur.
Section 61(4) authorises the member in charge of a station to remove an adult from where a child is being question or from where a written statement is being taken where he or she has reasonable grounds for believing that the conduct of the adult amounts to obstruction of the course of justice. The amendment seeks to offer a partial guideline to the meaning of obstruction by excluding from it advice given by the adult of the child's right to remain silent. I have given considerable thought to this amendment and on balance I have concluded that neither the interests of the child nor the parents, or other adult, would be served by accepting the amendment. I have come to that conclusion for the following reasons. With regard to the question of whether giving legal advice could be regarded as an obstruction, it would seem that obstruction could not be caused by a parent taking reasonable precautions to safeguard the rights of his or her child. If anything, it could be described as furthering the course of justice. Advising a person of a legal right is not an obstruction no matter what the circumstances in which it is given.
My problem with the amendment is that persons should not, by means of a legislative provision, be perceived as being encouraged to offer legal advice for which they are singularly unqualified to give and, therefore, no reference should be made to their giving such advice no matter what the context. Obstruction is not defined here or in other comparable legislation and giving it a partial meaning or providing a guideline towards its meaning could do more damage than good by introducing uncertainty.
Advising a child of his or her right to remain silent amounts to legal advice. In most cases the child would already have received legal advice from his or her solicitor. The solicitor is the person qualified to give that advice. In the vast majority of cases the parent or other adult would not be the appropriate person to give legal advice and, indeed, their amateur advice could conflict with the professional advice already given.
It is not just a question of telling a child to remain silent and that all will be well. A decision to remain silent could have major implications in any subsequent criminal trial and any advice to that effect could only properly be given by a solicitor armed with the facts of the case. For example, under section 7 of the Criminal Justice (Drug Trafficking) Act, 1996, and section 5 of the Offences Against the State (Amendment) Act, 1998, inferences can be drawn from an accused's decision when being questioned or charged by the gardaí for drug trafficking offences or an offence contemplated by the offences against the State legislation to remain silent and not to mention facts which he or she later realise at trial.
At present I am preparing further legislation which proposes to apply to other serious offences provisions similar to section 7 of the 1996 Act. In such cases advice to remain silent could, as I have said, have implications later and clearly these are implications of which the parent or guardian might have no knowledge whatsoever.
The amendment also raises the question of the precise role of parents or other adults when present at the questioning of children. I referred to that on the previous amendment and will not repeat myself other than to point to the power under section 70 to make regulations on that role. For the reasons stated, I cannot accept this amendment.
I move amendment No. 47:
In page 50, lines 5 to 7, to delete subsection (6) and substitute the following:
"(6) A child may not be arrested under section 251 of the Defence Act, 1954, and with effect from the commencement of this section, no child may become or be a member of the Defence Forces.".
Unlike the existing text, this amendment would prohibit child membership of the Defence Forces in line with international recommendations and specifically in line with the UN Convention on the Rights of the Child. I believe strongly that we should be moving in that direction and should make provision for that.
Deputy Shortall should take this argument up with the Minister for Defence, Deputy Smith, because clearly it relates to the Defence Forces. It seeks to raise the minimum age for recruitment to 18. I do not know if Deputy Shortall knows that Minister as well as I do. If she did, she certainly would not attempt to interfere with his Ministry. I will not do so today.
Amendment No. 48 involves the insertion of a new section. Amendments Nos. 48 and amendment No. 1 to amendment No. 48 are related. Therefore those two amendments may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 48:
In page 51, before section 72, to insert the following new section:
"72.-(1) Subject to subsection (2), a judge of the District Court shall, before transacting business in the Children Court, participate in any relevant course of training or education which may be required by the President of the District Court.
(2) Subsection (1) shall apply only in relation to judges of the District Court appointed on or after 15 December, 1995.".
I move amendment No. 1 to amendment No. 48:
To delete subsection (2).
Amendment No. 48 deals with a subject, judicial training, which at one time seemed intractable but which, since the enactment of the Courts and Court Officers Act, 1995, has become more clearly defined. Section 19 of that Act states that a person who wishes to be considered for appointment to judicial office should undertake in writing to the board his or her agreement if appointed to judicial office to take such course or courses of training or education or both as may be required by the chief justice or president of the court to which that person is appointed. That provision, which came into operation after the preparation of the section in the 1996 Bill dealing with the designation of judges now provides the constitutional and legal framework within which the question of the training of judges must be considered.
The training must be independent of any intervention by the Executive. What is at stake is no less than the independence of the Judiciary. In that context, I am proposing to repeal the largely unworkable and in impractical terms potentially meaningless section 72 and to replace it with a new section based on section 19 of the 1995 Act. This will oblige Children Court judges to undergo whatever education or training is required of them by the President of the District Court. This is made all the more possible by reason of the moneys made available by me to the Judicial Studies Institute for that purpose. This year that money amounts to £292,000, an increase of almost one third over last year.
The question of judicial training is delicate. I am aware that over the years much thought has gone into how best to deal with it in the context of the Children Court. I have also given it much thought and while it would have been easy to leave section 72 unchanged, I consider that the amendment in my name is preferable and more consistent with what we all want to achieve.
The training provisions in amendment No. 48 will only apply to judges appointed since 15 December 1995. That is the date the Courts and Court Officers Act came into operation. It is from that date that judges subsequently appointed would have to undertake whatever educational and training courses are required of them by the president of the court.
The legal advice available to me is that one could not make it obligatory for judges appointed before that date to take such courses. That does not mean that those judges would not undertake relevant courses before being considered to sit on the Children Court. It simply means that they would not have to take them. Accordingly, I commend amendment No. 48 in my name to the committee and regret that I cannot accept the amendment to it from Deputy Shortall.
Will the Minister clarify if his reason for picking 1995 is that it coincides with the Courts and Court Officers Act?
Yes. That is the reason.
Are there no circumstances in which he can oblige judges to undergo training?
Before 1995 judges were appointed on certain terms. Obviously none of those terms included section 19 of the 1995 Act and, therefore, I could not now make the provision retrospectively. That is the reason I must move in the direction I indicated.
Presumably the Minister would be urging them to avail of training when they have the choice.
Yes. I regard education, in particular in respect of the Children Court and, indeed, family courts generally, as being of immense importance.
We now come to amendment No. 49.
It is now 4 p.m. and I hope to raise a matter under Standing Order No. 31 in the Dáil. I am sure other members want to prepare for the Order of Business.
We should finish on Part 7.
I thank members for the speed with which they allowed the debate to proceed. We will need to have two further sessions. It would be helpful if we could fit in a further four hours debate between now and the end of next week. Is next Tuesday satisfactory? I take it Deputy Shatter has commitments on Tuesday morning.
We will deal with the Bill again on Tuesday afternoon. Do members have any other available time slot later this week? No. Does the Minister of State wish to speak?
The Minister will deal with the next two sections.
It is a question of when he will be available.
If members cannot be here, it would not be fair of me to superimpose times on them. We will proceed with the Bill next Tuesday. I am grateful for the progress we made today and I thank the spokespersons for that.
We could probably deal with the remainder of the Bill rapidly as we have covered most of the major areas we need to address.
Excellent. We will meet again next Tuesday at 2 p.m.