I move amendment No. 204:
In page 25, before section 24, but in Part 4, to insert the following new section:
"127.—The title to Part 5 of the Act of 2001 is amended by the substitution of "RESTRICTION ON CRIMINAL PROCEEDINGS AGAINST CERTAINCHILDREN" for "CRIMINAL RESPONSIBILITY".".
This is the substance of the issues relating to the age of responsibility that we have been discussing. I will first explain my amendments and then consider the amendments proposed by Deputies Ó Snodaigh and O'Keeffe, which I presume Deputy Murphy has adopted.
My amendments propose to ensure that the age of responsibility is 12 years, which was already provided for in Section 52 of the 2001 Act. It is reasonable to ask why it is necessary to repeal Section 52 and replace it with these amendments. It is first necessary to understand exactly what is meant by the expression "the age of criminal responsibility" before considering the amendments. There is confusion over its meaning which often leads to questions on why other countries have a far higher age of criminal responsibility than Ireland. The answer lies in different legal systems, in particular the difference between common law jurisdictions, such as Ireland, and civil law jurisdictions found throughout much of mainland Europe.
In Ireland the age of criminal responsibility means the age which determines capacity to commit an offence, that is, children under the age are deemed by law incapable of committing the offence and the offence is not available as a ground for intervention in relation to the child. This means there can be no intervention by any agency where a child's actions, but for his or her age, would constitute an offence unless the child is also in need of care and protection, in which case HSE intervention is possible. It is quite possible that such a child would be in need of care and protection and this is particularly the case with older children.
Before examining the proposals I want to complete my point regarding the different meanings attached to the age of responsibility. In many civil law systems in Europe the expression denotes an age at which punishment can be applied in respect of the commission of an offence, that is, children under the age may commit offences but are not punished for them through the criminal justice system, though the offence may be used as a ground for applying compulsory measures. Such compulsory measures can, and usually do, include detention. Such a system is not possible in Ireland, even if it were sought, because, under our constitutional system in the common law tradition, justice must be administered in courts established by law.
In effect, in continental countries with high ages of responsibility on paper, children are still detained, but under an administrative rather than a penal procedure. This explains how some countries can have relatively high ages of criminal responsibility and in others, like our own, this age is relatively lower. In the United Kingdom and Northern Ireland the age of criminal responsibility is ten years. Therefore, on enactment of this legislation, we will have a higher age of criminal responsibility than our neighbouring jurisdiction. When the new proposals come into operation, three months after the enactment of this legislation, Ireland will have an age of criminal responsibility that is higher than most common law countries.
Amendment No. 204 is technical and changes the heading to part 5 of the Act to reflect the new focus. Amendment No. 205 provides for a new section 52. It abolishes the common law rule under which a child under 14 years of age is presumed to be incapable of committing an offence. Currently, where the child is under seven years of age the presumption cannot be rebutted and between seven and 12 the presumption can be rebutted by evidence. I propose to replace this common law rule with statutory provisions which ensure, for almost all practical purposes, the charging with offences of children under 12 years of age. In addition, this amendment provides that a child between 12 and 14 years of age can only be charged with an offence with the consent of the Director of Public Prosecutions.
I have two reasons for proceeding in this manner. By accepting that a child under the age of criminal responsibility is capable of committing an offence it will be possible for State agencies to intervene with the child and his or her family, in particular to admit the child to the diversion programme if appropriate. By acknowledging that children are capable of committing offences, something that is self-evident, it will be possible to exclude from the statutory age of criminal responsibility the most serious offences. It is very rare, but not unheard of, for ten and 11 year olds to commit very serious offences and when this occurs the likelihood of criminal charges occurring is low. Other agencies, such as the HSE, would intervene with the child and his or her family.
It is important, however, that the State does not appear to undermine public confidence in its ability to respond in any reasonable way to very serious offences, even when the perpetrator may be ten or 11 years of age. This morning, of all mornings, we should be very conscious of this. When ministerial responsibilities were assigned to me regarding the implementation of this legislation I was concerned that I would be taking responsibility for overseeing a measure that would see that an 11 year old who killed someone could no longer be brought before the courts. The same would apply in cases of serious sex crimes. I have checked the matter with the DPP and happily in this jurisdiction, in recent times, there has not been a case where a ten or 11 year old killed someone. This happened in the UK in recent years and it was possible to charge the person because the age of responsibility there is ten.
On sex crimes there have been occasional serious cases in this jurisdiction involving 11 year olds. I do not believe that the public would be satisfied in such cases if the response of the State was to merely refer the case to a social worker. Of course social workers should be involved in supporting the child and his or her family, but the public would expect, at least, the court to pass a verdict in such a case. This is why I have to decided to recommend to this committee and the house that we modify the age of responsibility in very serious cases where a ten or 11 year old is involved. Such circumstances would be highly unusual but can happen and should be provided for in legislation.
It is unacceptable that a child who killed another child, or older person, continue as if nothing happened. In recent years legislation has recognised the gravity of rape and aggravated sexual assault and it is important that, in relation to the age of responsibility, these issues be addressed also. This may not be necessary very often but, as legislators, we must have regard for it.
No child under 12 years of age can be charged with an offence except in the case of the most serious offences in the statute book, where the option of charging ten and 11 year-olds is left open. I will list the precise offences involved because there is no question of any but the most serious offences being included within that section. They are murder, manslaughter, rape, rape under Section 4 of the Criminal Law (Rape) (Amendment) Act 1990 or aggravated sexual assault. The amendments would not apply to sexual assault.
This is the outline of the basic proposal. Included is the provision that no child under 14 years of age can be proceeded against without the consent of the DPP. As I mentioned, a child aged ten or 11 years of age can be admitted to the diversion programme, and must when the conditions for entry are fulfilled. There are various consequential amendments relating to the Garda and their obligations which essentially restate the existing law and adapt it.
Deputy Ó Snodaigh has tabled an amendment and I want to deal with it. The Deputy wants to raise the age of criminal responsibility in an unqualified way. He also wants to oblige the DPP to uphold the best interests of children aged 12 or 13 years of age when considering whether to prosecute. He is also anxious to retain the rebuttable presumption in regard to children aged seven to 14. However, if I can correct the Deputy's drafting, it is no longer seven to 14 but ten to 14. It was seven under the old common law rule, but we are all agreed we should move away from that. These are drafting problems.
On the substance, I have already addressed the various issues Deputy Ó Snodaigh raised in his amendment. There is one issue he raised which I am prepared to examine. I do not want to rehearse again the arguments I made in regard to the age of responsibility. I have outlined the nature of my proposal which is that for the vast majority of offences the age at which a person can be charged will not be below 12. I have explained the very limited exception for very serious offences. I have also explained the basis of continuing to permit admission to the diversion programme, and the control on prosecution which I propose to bring in through the Director of Public Prosecutions.
Deputy Ó Snodaigh suggests the DPP should be obliged to act in the best interests of the child. I have no doubt the DPP will, but it has not been traditional in statutory provisions to prescribe how the DPP should exercise his discretion and it would be an undesirable departure to do that. The DPP has to have regard to the public good in deciding whether to prosecute. He cannot decide to act instead in the best interests of a particular class of offender.
There is one final matter on which Deputy Ó Snodaigh's amendment touches which has troubled me, that is, that at present in common law we have a rebuttable presumption that the child is incapable of committing an offence up to the age of 14. In other words, at present the prosecution must demonstrate by evidence that the child had a criminal intent, if the child is under the age of 14. I have abolished that presumption. I am examining this issue in the light of what Deputy Ó Snodaigh has proposed. Some provision will have to be inserted in regard to the age and maturity of the child. I accept that it has to be a factor the court can take into account. I intend to bring forward a proposal on that issue because, while the control the DPP will exercise is a valuable safeguard — in some ways it is a more valuable safeguard than the existing presumption ofdoli incapax — the legal authorities suggest that particularly in the case of a 12 or 13 year old the presumption is rather weak in its application and judges and prosecutors have little regard for it. The United Nations has been very critical in its reports on the rights of a child of the operation of the presumption of doli incapax in common law jurisdictions. It argues that the presumption is weak and uncertain in application and that there is a huge diversity of practice by judges and prosecutors in regard to it. However, I still think that we cannot whittle down the existing protection for a child. If, as is envisaged under this legislation, we have a case involving a ten or 11 year old it would be very important in that context that the age and maturity of the child would be taken into account in deciding whether the child had criminal intent. I intend to bring forward a proposal to address that issue. It is an issue that was raised by many interested groups in their submissions. I am prepared to examine that aspect of Deputy Ó Snodaigh’s amendment.
Deputy Murphy proposed an amendment to raise the age of responsibility. He also raised in his amendment the need to retain the rebuttable presumption up to the age of 14. In other words, there must be some threshold in regard to criminal intent. I am prepared to examine the issue. There is an amendment which places the best interests of the child in the context of the reality of criminal proceedings and the various legitimate interests involved. That will go some way towards addressing the concerns raised here. However, I am open to examining the issue of the age and maturity of the child.