(Limerick East): I move amendment No. 15:
In page 5, between lines 32 and 33, to insert the following:
"(7) (a) Subject to paragraph (b), subsection (2) shall not apply to a person below the age of twelve years.
(b) If the member in charge of the Garda Síochána station in which a person is detained has reasonable grounds for believing that the person is not below the age of twelve years the subsection shall apply to him as if he were of that age, provided that, where such member ascertains or has reasonable grounds for believing that the person is below that age, he shall be released from custody forthwith unless his detention is authorised apart from this Act."
Paragraph (a) of amendment No. 15 provides for the exclusion of children below the age of 12 years of age from the scope of section 4 of the Bill, that is, detention after arrest, and consequentially from the scope of the related sections conferring new powers on the Garda in relation to persons detained under that section. The amendment takes account of the concern expressed within and outside the House that the powers of detention being conferred on the Garda were applicable — on the face of the Bill — to children of seven years of age and upwards.
I say "on the face of it" to emphasise again what I said on Committee Stage that we are dealing here essentially with theoretical possibilities and not in any real sense with probabilities or likely possibilities when we visualise children of very tender years being arrested and detained in Garda stations. I remain firmly convinced, therefore, that the campaign against this Bill deliberately exploited this matter and did so in a very emotive and I think quite unfair manner to secure support for its cause. It succeeded in gaining support from sincere people. Deputies in this House expressed concern here and as a result I brought in this amendment. A similar amendment suggesting the age of 12 years was introduced by Deputy Woods on Committee Stage.
I hope that the effect of this amendment will not produce any unfortunate results. As I said before, the fact is that children under 12 years are involved in serious crime from time to time. It is noteworthy that the Report on Crime for 1983 shows that in the five-year period 1979 to 1983 there were 3,371 indictable offences of which children under 14 years of age were convicted or had charges proved against them. It may well be that many of these offences were committed by children under 12 years of age.
It should be noted that the amendment will not affect the general age of criminal responsibility or the existing powers of the Garda to arrest and charge children suspected of crime. The question of the age of criminal responsibility of children is a matter that will be dealt with in the Children Bill which is at present being prepared by the Minister for Health. If that Bill provides that some age other than 12 years will be the new age of criminal responsibility it may be desirable to include in it an amendment of this Bill to bring the two into line.
Paragraph (b) of amendment No. 15 provides for the position where the member in charge of a Garda station authorises the detention of a child whom he bona fide believes to be 12 or over. It will be appreciated that this could quite easily happen either because the child looks to be about that age or above, or he might say that he was and there might be no on the spot way of checking. So long as the member concerned has reasonable grounds for his belief, the detention will be lawful and the member will be protected from an action for false imprisonment.
However, as soon as it becomes known to the member in charge that the child is under 12, or as soon as the reasonable grounds for his belief cease to exist, the child must be released immediately, unless there is other lawful authority for detaining him, for example, in order to charge him and bring him before a court, or where a bench warrant has been issued for his arrest. Apart from any such exceptions, if the child were detained beyond the point at which his correct age became known his further detention would be unlawful.
Amendment No. 18 covers a point adverted to when the exclusion of children under a certain age from the scope of section 4 was being discussed, that is, that provision relating to proof of age would also be necessary in section 5 in relation to children under 17 years of age. It caters for the difficulty that could arise where a young person who is being detained appears to the Garda to be over 17 when he is, in fact, under that age.
The amendment provides that, if and so long as the member in charge of the Garda station where a person is being detained has reasonable grounds for believing that the person is 17 years or over, he will be entitled to treat the person as if he were over 17 and notify him of his rights in accordance with subsection (1) of section 5.
The critical words are "if and so long as" he has reasonable grounds for believing that the person is 17 or over. That means that if at any time during detention the Garda ceases to have reasonable grounds for so believing, or receives information that the person is under 17, he will be obliged to apply subsection (2) of the section and notify the young person's parent or guardian of his detention and whereabouts and of his right to consult a solicitor.
Deputy Mac Giolla and Deputy De Rossa suggested that the age of 12 years should changed to 15 years. The effect of their amendment would be to increase from 12 years to 15 years the age below which a young person could not be detained pursuant to section 4. The Deputies sponsoring this amendment did not, in my view, make a convincing case on Committee Stage. Perhaps they will have something more substantial to say now.
We are also taking amendments Nos. 2 and 4 to amendment No. 15. I accepted the spirit of the amendment moved by Deputy Woods on Committee Stage when he advocated that we should bring in an amendment to ensure that children under 12 years of age were excluded from the provision of section 4. The effect of the amendment No. 2 to amendment No. 15 in the name of Deputy Woods is to raise it from 12 to 14. If there are any other points I can take them up when I am replying.
There are two points of conflict on the age question. There are three elements in my amendment. The first is that children under 12 years will be excluded from the detention provisions of the Bill. That presents the Garda with a difficulty in establishing who actually is or is not 12 years of age. The second part of the amendment deals with that. The same consideration arises at 17 years of age, not as to the lawfulness of the detention but as to whether the person is 17 or not with regard to notification of a parent, etc. and amendment No. 18 meets this point.