Despite no legislative function, courts tend to circumnavigate this gap by using judicial discretion, which leads to discrepancies and inconsistent sentencing. Simons J, in Wilde v DPP ([2020] IEHC 385), puts it succinctly: “These judicial review proceedings arise against a legislative backdrop, whereby the qualifying criterion for the important procedural protections provided for under the Children Act 2001 is the age of the accused as of the date of the trial of the offences (as opposed to his or her age as of the date when the alleged offences are said to have occurred).
“It is, perhaps, surprising that the legislation does not expressly address the position of an alleged offender who has transitioned from being a ‘child’ (as defined) to an adult between the date on which the offences are said to have occurred, and the date of the hearing and determination of criminal charges arising from those alleged offences.
“Such an interregnum will arise in a significant number of cases, even allowing for prompt garda investigations. For example, if an offence is alleged to have been committed by an individual who is a number of weeks shy of his or her 18th birthday, it is unrealistic to expect that the offence would be investigated and the prosecution completed prior to that birthday. It would have been helpful if the legislation indicated what is to happen in such circumstances.”
Dearth of guidelines
Presently, there is nothing within the Children’s Act 2001 that deals with the sentencing of young persons who have attained the age of majority, even though they committed an offence as a minor. Nor are there any sentencing guidelines relating to how this situation ought to be dealt with.
Principles afforded under the act include, among other things, the right to anonymity, that detention should only be used as a last resort, and the added protection that the court can deal with certain indictable offences summarily (see section 75 of the 2001 act).
Furthermore, there is a special duty placed on prosecutions involving children – over and above that of offences perpetrated by an adult – that they be concluded as expeditiously as possible. In F(B) v DPP ([2001] IESC 18), Geoghegan J explains: “…in the case of a criminal offence alleged to have been committed by a child or young person as in this case, there is a special duty on the State authorities over and above the normal duty of expedition to ensure a speedy trial, having regard to the obvious sensitivities involved”.
This has been cited with approval more recently in the Supreme Court decision of Donoghue v DPP ([2014] IESC 56). Interestingly, in all criminal matters involving minors, the gardaí are required to refer the child to the Garda Youth Diversion Programme, which assesses whether a minor is suitable for various probationary services.
While this is a fundamental requirement, there is, potentially, an added delay in children’s cases, which would not be present in cases involving adults. With the added possibility of delay, all other aspects of investigation, charge, and trial would need to be completed more quickly than usual to conform to the requirement of the special duty.
Britain’s pragmatic approach
Britain takes a much more pragmatic approach in relation to sentencing of minors who have reached the age of majority, despite committing an offence when they were a child. This is evident at both legislative level and through judicial interpretation. The Sentencing Children and Young People: Overarching Principles and Offence Specific Guidelines for Sexual Offences and Robbery – Definitive Guideline sets out the principles for the sentencing of young people.
Of particular relevance are sections 6.1 and 6.2, which state: “6.1 – There will be occasions when an increase in the age of a child or young person will result in the maximum sentence on the date of the finding of guilt being greater than that available on the date on which the offence was committed (primarily turning 12, 15 or 18 years old).
“6.2 – In such situations, the court should take as its starting point the sentence likely to have been imposed on the date at which the offence was committed. This includes young people who attain the age of 18 between the commission and the finding of guilt of the offence but when this occurs the purpose of sentencing adult offenders has to be taken into account, which is:
- The punishment of offenders,
- The reduction of crime (including its reduction by deterrence),
- The reform and rehabilitation of offenders,
- The protection of the public, and
- The making of reparation by offenders to persons affected by their offences.”
This is supported at a judicial level in R v Ghafoor ([2002] EWCA Crim 1857), in which the defendant was 17 at the time of the commission of the offence. The English Court of Appeal held: “The approach to be adopted where a defendant crosses a relevant age threshold between the date of the commission of the offence and the date of conviction should now be clear. The starting point is the sentence that the defendant would have been likely to receive if he had been sentenced at the date of the commission of the offence. It has been described as ‘a powerful factor’.”
Ghafoor has been cited with approval in subsequent Irish case law, most notably in DPP v JH ([2017] IECA 206), where the Court of Appeal determined the factors to be considered when sentencing a person who committed an offence as a child but, subsequently, became an adult in the intervening period.
Mahon J explains: “What is relevant in the context of sentencing is the fact that the appellant, although now an adult, committed the crimes in question when he was 15 years old. A sentencing court is required to assess the offender’s level of maturity at the time of the commission of the offence and to accordingly access his culpability as of that time.”
The legislative lacuna in this area could be filled by sentencing guidelines similar to those in Britain. Guidelines of this type would provide more clarity when it comes to the sentencing of children in general, which, in Ireland, is still subject to much judicial discretion.
Furthermore, this takes the much more logical approach of determining a defendant’s sentence based on the circumstances they were experiencing at the time of offending. While this is how defendants are dealt with at court level, it does seem like an enormous gap in the legislation, considering that there are many positive protections covered under the 2001 act.
Prosecutorial delay
Many of these cases arise in the context of judicial review proceedings, where the defendant claims that the prosecution has been delayed through blameworthy prosecutorial delay (see Wilde and Furlong v DPP [2021] IEHC 326).
The test applied in these types of cases is no different than that of an adult claiming prosecutorial delay, and is derived from the Supreme Court decision in Donoghue, where the court created the balancing test in determining blameworthy prosecutorial delay.
The first limb of the test is to establish whether there has been any such delay in terms of the time – whether during the investigation of the offence, or a delay between charge and trial. The second limb is determining whether the delay caused any prejudice to the defendant in terms of rights – whether legislative or constitutional.
Finally, the court must balance the prejudice to the defendant with the public interest in prosecuting offences. The prejudice suffered by the defendant must outweigh the public interest in the prosecution of offences.
Since 2014, there have been 16 cases of judicial review determined by the High Court in relation to applications for dismissal on the grounds of prosecutorial delay. Of those 16 cases, only three applications were successful, where the prosecution was prevented.
The premise of these cases is that they are decided on their merits but, in all applications of this nature, the applicant claims prejudice on the grounds of loss of legislative provisions under the 2001 act.
Despite this, most of the cases are dismissed because the interest of justice to prosecute cases outweighs the prejudice suffered by a defendant. While plugging the gap in relation to sentencing minors who have turned 18 would greatly improve the situation – and fewer applications would be litigated for prosecutorial delay – the balancing test is too stringent when it comes to cases involving minors.
Defect in the law
The defect in the law creates a serious problem in the event of delay for whatever reason – whether blameworthy prosecutorial delay or not – as well as other likely situations that may arise, as described in Wilde.
It further creates an imbalance between defendants and police authorities, in that the State could, in theory, sit on charges that occurred when a defendant was a minor until they are close to the age of majority, thus resulting in a defendant receiving a sentence of greater severity.
Even in the absence of this, the legislative gap means that a defendant will receive an adult sentence for offences that were perpetrated as a minor. This is of particular concern given the differing nature of juvenile criminal records and adult ones (see section 258 of the 2001 act).
The need for clarity in this area is paramount, whether by way of amendment to the current legislation or in the form of prosecutorial sentencing guidelines, as can be seen in Britain, which set out precisely how matters of this kind are to be dealt with.
The present form creates too much uncertainly, and places an unnecessary burden on the judiciary to come up with ad hoc sentences without protection from statutory provisions.
There seems to be no impediment to having legislative authority on this issue, considering that judges are already applying the principles, as seen in Britain. However, there is a conflict between the judiciary’s desire to apply sentences based on the age and maturity at the time of offending and the legislative shortcomings.
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