Opinion: A principled approach recognises the best interests of the child, the need for accountability and the societal interest in public safety
By Nessa Lynch and Ursula Kilkelly, UCC
Murders committed by children (those aged under 18) are rare events in Ireland and globally. Every instance is a tragedy, causing unimaginable harm and trauma to the victim's loved ones and to society as a collective. Such cases frequently attract high levels of public and media interest and are often associated with outrage and sadness. Without specific comment on any cases currently before the courts, we believe that that a review of this challenging and sensitive area of Irish law is long overdue.
The Children Act 2001 requires an age-appropriate and non-custodial approach to children in conflict with the law and is the basis for Ireland's largely progressive youth justice system. Perhaps because most offending by children is minor and may be dealt with informally, the Act makes little provision for serious offending.
Children in conflict with the law are also more likely to have neuro-disability, communication disorders and traumatic brain injury.
This means that children who commit murder (and manslaughter and sexual violence) fall into an uncertain and unprincipled legislative gap. The life sentence is mandatory for adults convicted of murder, but there is no specific law for children. Detention for life has been imposed in past cases, resulting in children serving a disproportionately longer sentence than their adult counterparts.
Criminal law has always recognised children as being less culpable and more amenable to change. Increasingly, as the Irish Youth Justice Strategy recognises, transition to full legal maturity continues past the age of 18. Leading global research evidence on the adolescent brain is unequivocal that the teenage brain is highly deficient in assessing consequences and risks, especially when under stress. This has influenced legislators and courts in the United States to accept the case for diminished culpability, prompting reform of punitive sentencing and parole laws.
Children in conflict with the law are also more likely to have neuro-disability, communication disorders and traumatic brain injury. Importantly, their development also means they have significant capacity for change. For these and other principled reasons, the international human right framework has long recognised that children must be treated differently from adults, and their rehabilitation and reintegration prioritised over punishment.
READ: McEntee presents minimum sentence bill for minors to Dáil
A principled and human rights-based approach recognises not only the best interests of the child, but the need for appropriate accountability and the societal interest in public safety. Public interest should adopt to a long-term lens, taking account both of a child's diminished culpability and their amenability to grow and develop while a focus on outcomes ensures that the child has the greatest possibility to live a positive and violence-free life in the community. It also needs to take account of the significant evidence that indeterminate (where the child’s time in detention is kept under review) and long sentences served in adult prisons are detrimental to successful reintegration.
We believe there are three priorities for reform. First, Ireland’s youth justice system should be governed by coherent principle. As for other offences, the age of the child should be the determining factor, rather than the seriousness of the offence. Public interest in accountability and safety should not require an adult trial or sentence, which should instead be informed by child-specific expertise, with discretion given to the courts to apply sentences that take account in a meaningful way of the child’s age and development.
Second, for children, the purpose of a sentence should be reintegration rather than punishment. With reference to the individualised circumstances of each child, this could well involve a significant period of detention. But detention must be a last resort and this should be the case where public safety can be guaranteed without detention.
Outcomes must recognise the child's individual development, acknowledging that mandatory or indeterminate sentences fail to account for these characteristics.
Although a child will serve the initial portion of their sentence in the specialist environment of Oberstown – where their health, education and other needs are met – consideration should be given to the reality that this investment will largely be undone by transfer to an adult prison environment where few specialist services are available. In our view, there must be an individualised and flexible approach to determining the sentence taking account of the child’s individual and general circumstances, their lack of development and amenability to change.
We all understand that children develop and change rapidly in their teenage years. With the right support, even a year can bring about significant changes in a child’s maturity and understanding. Outcomes must recognise the child’s individual development, acknowledging that mandatory or indeterminate sentences fail to account for these characteristics.
Thirdly, a review should consider developments in other jurisdictions and the current international research and policy evidence. Notably, Ireland is an outlier amongst European Union jurisdictions, and urgent action is required now to risk Irish law falling further behind its peers in this area. Finally, and importantly, this approach has the clear potential to ensure that the potential of children who commit serious crimes to contribute to their communities is realised.
Dr Nessa Lynch holds the Matheson Lectureship in Law, Innovation and Technology in the School of Law at UCC. Prof Ursula Kilkelly is a professor of law with an established profile in children's rights and youth justice in the School of Law and Vice President of Global Engagement at UCC.
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The views expressed here are those of the author and do not represent or reflect the views of RTÉ
