11th October 2024
The draft Criminal Justice (Amendment) Bill 2024 was approved by Government on 18 September 2024. Following that, it was debated at Second Stage in the Dáil on 24 September 2024 and again at Committee and Remaining Stages in the Dáíl on 25 September 2024, where the Criminal Justice (Amendment) Bill 2024 (‘the Bill’) was passed. On 11 October 2024, the Bill was signed into law by President Higgins, following the completion of all stages in both Houses of the Oireachtas the previous week.
This legislation will address an issue of unconstitutionality recently identified by the High Court in which the Court ruled that a child who commits murder but turns 18 years old before sentencing should not be subject to the mandatory life sentence for murder.
In the case of Amah and Musueni v. Ireland and Ors on 2 September 2024, the High Court found that it was unconstitutional to impose the mandatory life sentence for murder on a person who committed the offence when they were still a child but was sentenced after their 18th birthday. The High Court held that to impose the mandatory life sentence on a child who ‘ages out’ would be a breach of their rights under Article 40.1 of the Constitution because of this inequality compared with other children who commit the offence of murder.
As a result, this legislation was brought forward as a matter of urgency and the Oireachtas Joint Justice Committee waived pre-legislative scrutiny of the Bill. The main purpose of the Criminal Justice (Amendment) Bill 2024 is to amend section 2 of the Criminal Justice Act 1990 to dis-apply the mandatory life sentence for murder for persons who commit murder when they were under 18 but subsequently turn 18 before or during the trial or sentencing process, or as it is commonly known, to ‘age out’. It also amends section 4 of the Criminal Justice Act 1990 to dis-apply the mandatory minimum sentence for treason, certain murders (of a Garda or prison officer) and attempts to commit certain murders for those who committed the offence when they were under 18 years of age but subsequently turn 18 before or during the trial or sentencing process. Following the enactment of this Bill, an ‘aged out’ person who commits murder may still receive a life sentence. However, it will no longer be a mandatory life sentence.
Section 4 of the Bill inserts a new section 4A into the Criminal Justice Act 1990 to provide for the retrospective application of these amendments. As such, the amendments shall apply in respect of offences committed before the Bill comes into operation, in cases where final judgment has not been given.
In presenting the Bill, the Minister noted that the Bill will complement other proposals the Department of Justice is bringing forward with respect to amendments to the Children Act 2001. The proposals outlined in the General Scheme of the Children (Amendment) Bill 2024, which was published in July, arise from recommendations made in the Youth Justice Strategy 2021-2027. The Minister, in her comments during the Second Stage debate, noted that the approach taken in both pieces of legislation follows recommendations of the United Nations Committee on the Rights of the Child. The Minister made reference to General Comment No.24 (2019), which states, in section 31: “Child justice systems should also extend protection to children who were below the age of 18 at the time of the commission of the offence but who turn 18 during the trial or sentencing process.”
IPRT has previously highlighted the issue of ‘aged out’ children coming before the Courts. For example, this was explored at our 2019 seminar on Developing Youth Justice. IPRT also previously welcomed that the indicative schedule of areas for amendment in the Children Act 2001, which were outlined in the Youth Justice Strategy 2021 – 2027, contained a proposal to allow the Children’s Court to hear cases of young people aged over 18 in relation to offences that occurred while aged under 18.
While IPRT welcomes that the issue of inequality under the Constitution has been addressed through the Criminal Justice (Amendment) Bill 2024, we also believe that the provisions of the Children Act 2001 (or similar) should apply to the processing of all offences with reference to the young person’s age at the time an offence is committed, irrespective of the age of the young person when the case proceeds to trial, not just in cases of murder. As such, IPRT looks forward to engaging with related proposals being brought forward to amend the Children Act 2001 through the Children (Amendment) Bill 2024.
Respect for rights in the penal system with prison as a last resort.