We have not referred to individual sections of the Bill in our submission. We have referred to them in more detail in our full written submission but because of the ever changing numbering of the sections we have endeavoured to provide the committee with an overview and will provide it with an updated submission with those sections included when they have been settled.
The opposition of the Irish Youth Justice Alliance and others to anti-social behaviour orders or ASBOs is very well documented. We believe our clear articulation of the likely and disproportionately negative effect of ASBOs on the lives of young people led the Minister to develop an alternative model for those under 18 years. Nevertheless, we remain opposed to their application in any form to children and young people. They are a crude instrument which, at best, penalise youthful behaviour and, at worst, fail to address the needs of young people who are at risk and vulnerable.
In addition, the alliance finds one aspect of the proposed model particularly worrying. Under the Bill, section 93 of the Children Act which prevents the media from publishing or broadcasting details of a child's identity has been amended in order that in certain circumstances it will be possible to remove reporting restrictions when an ASBO has been made. This involves the weakening of the internationally recognised right to privacy which children currently enjoy before the Children Court and which serves to protect them from the harm publicity can cause in the light of their vulnerability and youth. If the committee rejects our recommendation to abandon the introduction of ASBOs in respect of children and young people in their entirety, we strongly urge it to reject the proposal to remove the child's right to privacy and protection of its identity in this context.
The diversion programme which has been operated by the Garda Síochána since 1963 is one of the uniquely successful elements of the Irish system. Research shows that juvenile liaison officers have had an 87% success rate in diverting children and young people from further offending. Despite this success, the Bill proposes to make three fundamental changes to the programme. The first relates to the admissibility of evidence of involvement in the programme in court and subsequent proceedings. Under the programme, any child admitted must accept responsibility for his or her behaviour and agree to be cautioned by a JLO. The State, on the other hand, agrees not to prosecute in respect of that offence. This is a fundamentalquid pro quo on which the diversion programme and any diversion scheme which operates according to international standards is based. The approach encourages young people to enter the programme as they are guaranteed that the offence in respect of which they have been admitted will not be held against them. The Bill, however, proposes to amend the Children Act by making it possible to introduce evidence as to the child’s involvement in the programme in subsequent criminal proceedings. Contrary to the current position, where the court is not entitled to hear any evidence relating to the child’s involvement in the programme or any of the offences which gave rise to his or her involvement, the amendment will give the prosecution discretion to inform the court, not only of the child’s involvement in the programme and the offences which gave rise to that involvement, but also, importantly, of his or her acceptance of responsibility for his or her behaviour. The amendment will allow information on offences with which the child has neither been charged nor convicted to be admitted in evidence in subsequent criminal proceedings. This also runs contrary to the child’s rights to due process. We also believe the amendment has the potential to undermine the entire basis of the diversion programme. The case has not been made for interfering with such a successful programme in this way.
I will now address the proposals for good behaviour contracts. The proposed introduction of anti-social behaviour orders has resulted in two further amendments, the first of which I will now address. It is proposed to introduce what appears to be a parallel diversion scheme which will act as a precursor to an application for an anti-social behaviour order. The mechanism will involve meetings and the drawing up and supervision of good behaviour contracts. However, it practically duplicates the diversion programme currently run by the Garda under the Children Act in its entirety and as such, it is difficult to discern its added value. The Irish Youth Justice Alliance believes that introducing a second diversion scheme is unnecessary, that such a scheme will be unworkable and overcomplicate the work of the Garda. For these reasons, we ask the committee to reject these proposals.
The Bill proposes to extend the diversion programme to include anti-social behaviour, a measure which could have a significant net widening effect, largely due to the introduction of anti-social behaviour orders in so far as children alleged to have engaged in anti-social behaviour are to be diverted to the programme before an application for an anti-social behaviour order can be made. Nonetheless, the extension of the programme to include behaviour not criminal in nature involves a widening of Garda powers which will allow formal intervention in the lives of children and young people who have not committed a criminal offence.
In addition, the Bill proposes to give the Garda Síochána the power to admit children as young as ten years to the diversion programme, even when the age of criminal responsibility is raised to 12. This runs contrary to best practice which advises against formal interventions for any behaviour that does not harm the child or others.
I will address a number of the proposals relating to arrangements for children in detention, some of which are to be welcomed but others are deeply worrying. The Children Act provides for the establishment of an inspectorate for children detention schools but this provision has never been brought into force. The Bill proposes to replace the inspectorate with a person authorised by the Minister for Justice, Equality and Law Reform and to reduce the frequency of inspections from one every six months to once a year. This weakening of the inspectorate is unacceptable. The circumstances of children in detention need regular, expert supervision by an independent, permanent body. The alliance strongly recommends that this proposal be deleted and that the original inspectorate be established as a matter of priority.
An amendment requiring the courts to take into account a child's educational needs when deciding on the period of detention would allow judges to hand down longer sentences to children with particular educational needs. This appears to break from the constitutional principle of proportionality in sentencing, whereby the punishment must fit the crime. It appears to allow for longer sentences to be handed down to those who have suffered educational disadvantage. The rationale behind this proposal is unclear and the proposal should be deleted.
The alliance is concerned that the Bill proposes to remove section 88 from the Children Act which deals with the duty to detain children on remand separately from those detained following conviction. This represents a rowing back on the commitment in the Act to keep such children separate in order to protect them from being contaminated by those serving a sentence.
We want to address the failure to make provision for the immediate closure of St. Patrick's Institution. It is to be welcomed that the Bill addresses an anomaly in the Children Act, whereby children under and over 16 years were treated differently for the purposes of detention. The Bill provides for the detention of all children under 18 years in children detention schools and gathers the responsibility for all children in detention within the remit of one Department, a development welcomed by the alliance. While facilities for those under 16 years are established, individuals between the ages of 16 and 17 are detained in adult prisons. The majority of prisoners in this age group are detained in St. Patrick's Institution, in which prisoners aged between 16 and 21 years are detained.
St. Patrick's Institution has been heavily criticised by the Inspector for Prisons and the Council of Europe committee on the prevention of torture for detaining children alongside adults and its failure to provide those detained with an opportunity to engage in any meaningful activity or education, giving rise to problems of bullying and abuse. It is neither appropriate nor acceptable that children under 18 should be detained in St. Patrick's Institution. While the proposals clearly envisage the use of St. Patrick's as an interim measure, the alliance is seriously concerned that making specific provision for it in the Act will secure its medium-term future. It will delay, rather than accelerate, the removal of 16 and 17 year olds to children detention schools. For this reason, we call on the committee to remove express reference in the Bill to St. Patrick's Institution.
On behalf of the alliance, I thank the committee for taking the time to engage with us this afternoon. My colleagues and I will be happy to answer any questions members of the committee may wish to pose.