The Irish Human Rights Commission (IHRC) has forwarded to the Minister for Justice, Equality and Law Reform, its observations and proposals for amendments to the Criminal Justice Bill 2004 (Youth Justice) which the Minister referred to the IHRC for its comments. This set of proposals would substantially amend the Children Act 2001. The IHRC has already made a submission to the Minister on other proposed amendments to the Criminal Justice Bill dealing with adult justice.
The Children Act 2001 represented a significant step forward in bringing Irish law into line with international human rights standards and best practice. It attempted to divert young offenders away from the courts and the criminal justice system. Regrettably some of the proposals contained in the Criminal Justice (Youth) Bill 2004 for amendment may be seen as a diminution of the positive changes introduced in the Children Act. The IHRC are particularly concerned that many of the proposed amendments relate to sections of the Children Act which have not been commenced due to a failure to provide adequate resources and which now are being deleted or being substantially diluted.
Proposed amendments contained in the Bill include, amongst others, changes to the age of criminal responsibility; transfer of ministerial responsibility relating to child detention schools; provisions for the continuing use of St. Patrick’s Institute; changes to the system of inspection of children’s detention schools; a relaxation on the restrictions on reporting of proceedings involving children; and the introduction of a system of anti-social behaviour orders for children. The IHRC made recommendations in relation to those areas as follows:
– Raising the age of criminal responsibility
The raising of the age of criminal responsibility to 12 years was originally provided for in Part 5 of the Children Act 2001. The proposed amendment makes a number of changes to the formulation in the 2001 Act, most significantly by allowing for children over the age of 10 to be charged in relation to certain serious offences. In the view of the IHRC, the proposals for exceptions to the general age of responsibility at 12 should be removed from the proposed legislation. The IHRC is particularly concerned that children under the age of 12 charged with serious offences would be tried in the Central Criminal Court rather than in the Children’s Court.
– Transfer of ministerial responsibility for children detention schools
The Bill provides for the transfer of responsibility for all children detention schools from the Minister for Education and Science to the Minister for Justice, Equality and Law Reform. International human rights standards demand that detention of children should be managed in an educational environment and responsibility for supervising the detention of children should not be transferred to a department with a focus on criminal justice and which is also responsible for prisons. While the IHRC accepts that the proposals are intended to be temporary, the proposals contain no commitment to establish an independent education-focussed agency to oversee these schools at any fixed point in the future.
– Use of St. Patrick’s Institution
The proposals will place the continuing detention of 16 and 17 year old males in St. Patrick’s Institution on a statutory basis. The continuing use of St Patrick’s Institution clearly runs counter to human rights standards and has been highlighted as a matter of serious concern by the Inspector of Prisons and Places of Detention. While the IHRC accepts that it may not be possible to put in place immediately appropriate facilities for the detention of children, it regards the continuing use of an institution that also serves as an adult prison for this purpose to be unacceptable. The failure to make a firm commitment to address this issue within a reasonable timeframe is particularly regrettable. The IHRC is aware that Department of Justice, Equality and Law Reform anticipates that boys will continue to be detained in St. Patrick’s Institution until at least 2010.
– Inspection of children detention schools
The Bill abolishes the position of Inspector of Children Detention Schools and introduces a new system of inspection, whereby the Minister will appoint "an authorised person" to carry out inspections.
The issue of inspection is a fundamental one. The IHRC notes that the Office of the Ombudsman for Children has drawn attention to this issue and that the existing Internal Care Inspection Reports disclose inadequate physical conditions and poor practice in relation to how children are disciplined and supervised.
In the view of the IHRC, the removal of the provisions in the Children Act 2001 for a specialised inspectorate is a regressive step. The fact that serious cases of abuse and mistreatment of children in institutional settings have been unveiled in recent years demonstrates the urgency of a robust system of inspections in all state institutions involved in the care of children. In this regard, the IHRC supports the recommendation of the Ombudsman of Children that the exemption governing her competence in relation to children in detention should be removed.
– Restrictions on reporting of proceedings involving children
The Bill amends the existing ban on reporting of cases involving children contained in the Children Act 2001 by extending the grounds on which a judge can dispense with the ban. The two new grounds on which a judge can allow reporting of a case involving a child are (i) a broad public interest ground; and (ii) where a child is subject to an anti-social behaviour order and "the particular nature of the order is such as to make it necessary to do so to ensure that the order is complied with". The IHRC is particularly concerned at the suggestion that publicity and identification may be seen as an aspect of the enforcement, or even as an objective in itself, of the proposed new system of anti-social behaviour orders. The language adopted here suggests that publicity and the potential serious and long-term harm this may cause to children becomes part of the sanction for anti-social behaviour.
– Anti-social behaviour orders
The Bill introduces a new part to the Children Act 2001 providing for anti-social behaviour orders for children.
While the Bill makes it clear that the anti-social behaviour orders are intended to be used only as a last resort, there are precedents from other aspects of policing practice whereby measures or powers intended to be used minimally acquire an expanded use over time. In this regard the IHRC recommends that careful consideration is given to ensuring that anti-social behaviour orders are not resorted to where a warning or other non-criminal measure is more appropriate. The IHRC has several concerns about the possible impact of anti-social behaviour orders and new proposals relating to the Garda Diversion Programme on the human rights of children. In particular, the IHRC is concerned that the effect of these proposals will be to draw a wider category of children into the formal criminal justice system counter to the principles set out in the UN Convention on the Rights of the Child and the UN Guidelines for the Prevention of Delinquency (Riyadh Guidelines). International human rights law clearly sets out the long-term dangers of excessively criminalising children and the IHRC recommends that large parts of the present proposals should be reconsidered in this light.
The text of the Commission’s Observations is available on the Commission’s website by following the below link:
Click here to download Observations on the Criminal Justice Bill 2004(Youth Justice).doc (140 KB)
For further information, please contact:
Mary Ruddy
Senior Human Rights Awareness Officer
Irish Human Rights Commission.
Jervis House,
Jervis Street,
Dublin 1.
Tel. 01 8589 601
Mobile: 087 2400695
E-mail: info@ihrc.ie
Website : http://www.ihrc.ie