Director of Public Prosecution v CC & anor (Approved) [2025] IESC 11 (13 March 2025)

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AN CHÚIRT UACHTARACH

THE SUPREME COURT

S:AP:IE:2024:000008

[2025] IESC 11

Between:

The People (at the suit of the Director of Public Prosecutions)

Respondent

-v-

C.C.

Appellant

and

The Attorney General

Amicus Curiae

O'Donnell CJ.

Dunne J.

Charleton J.

O'Malley J.

Murray J.

Collins J.

Donnelly J.

Judgment of Ms Justice Iseult O'Malley delivered the 13^th day of March 2025

INTRODUCTION

1. The appellant in this appeal has been convicted of a murder committed in 2021, when he was just 14 years old. The trial judge imposed a life sentence but scheduled a review by the court after a period of 13 years. The central issues in the appeal concern the propriety of imposing a life sentence on a child, the jurisdiction of a sentencing court to review and modify a sentence during its currency and the effect, if any, of including such a review in respect of a life sentence for a child. The reasons why the trial judge adopted that mechanism will also have to be examined, in order to determine what options are available to a sentencing judge dealing with the very difficult task of sentencing a child who has committed the offence of murder. In particular, this entails consideration of the question whether it may be possible to suspend or part-suspend a determinate sentence of detention.

2. The appellant has reached the age of 18 while still engaged in the criminal justice court process. In the case of People (DPP) v P.B. [2025] IESC 12, which was heard at the same time as this appeal, the Court of Appeal held that in such circumstances the appellant was no longer entitled to the protection of anonymity conferred by the Children Act 2001. C.C. is by now also affected by the same issue. He adopts the submissions made by P.B., who contends that the proper interpretation of the statute means that he continues to be protected against public identification. The Court has also recently heard submissions in the appeal by the Director of Public Prosecutions in Doe v. Director of Public Prosecutions where the issue of anonymity is argued from a different perspective. The three respondents in Doe say that by reason of blameworthy delay on the part of the gardaí and prosecution authorities they are no longer entitled to any of the protections extended to children by the Act and they seek to prohibit their trials on that basis. The right of a child not to be identified is examined in detail in that context.

3. For the reasons identified in the PB judgment, the Court holds that C.C. remains entitled to the protection conferred by s.93 of the Act and his identity may not be publicly reported.

BACKGROUND FACTS

The offence

4. C.C. was just 14 years old when he murdered Ms Urantsetseg Tserendorj on the 20^th January 2021, by slashing at her neck with a knife having failed to get any money when he attempted to rob her. The cut was small in extent but penetrated her carotid artery. Ms Tserendorj was a Mongolian national who had lived and worked here for about 15 years with her husband and two children. Despite surgery she died in hospital some days later. It is clear from the evidence of her family that her loss affected them profoundly.

5. The appellant committed two other offences on the same evening, both of which involved threatening a woman with a knife.

6. The appellant confessed his involvement to his family on the day after the stabbing, when the incident was reported on the radio, and agreed with them that he should go to the gardaí. Coincidentally gardaí called to his home about another matter shortly afterwards and he made spontaneous admissions to them about the stabbing. He told them that he had panicked and had not meant to do it. Despite his youth, it appears that he had a severe substance addiction at the time and wanted money for drugs. He offered a plea to manslaughter which was not accepted by the prosecution. His first trial, which focussed on the manslaughter/murder debate, ended in a jury disagreement. He was ultimately convicted of murder by a jury on the 11^th November 2022.

Sentencing

7. The sentencing hearing was conducted on a number of days between December 2022 and February 2023. It is clear from the transcript that counsel and the trial judge considered the options available to the court in some detail, including the possible availability of a review procedure. Counsel for the Director indicated that there were questions about the lawfulness of that procedure by reason of the judgment of this Court in People (DPP) v Finn [2000] IESC 75, [2001] 2 IR 25, but a possible source of jurisdiction was identified by reference to the judgment of Walsh J. in State (O) v O'Brien [1973] I.R. 50.

8. On the 8^th February 2023 the trial judge indicated a view that his only option was to impose a life sentence. His concerns about adopting a review mechanism were, firstly, that State (O) v O'Brien related to the provisions and terminology of the Children Act 1908, which had been repealed in its entirety; secondly, that the judgment in Finn had cast considerable uncertainty over the lawfulness of the review procedure, and, thirdly, he considered that the decision of the Court of Appeal in People (DPP) v. A.S. [2017] IECA 310 had made it clear that on a review date a court that had imposed a sentence of detention would have no power to suspend the balance of the sentence. In the light of that decision, the only options available at a review (if a review was legally possible) would be unconditional release or continued detention. However, he agreed to defer a final decision pending further enquiries being made as to whether a legislative solution was under consideration.

9. On the 16^th February 2023 the Minister for Justice and Equality stated in the Dáil that the Children Act 2001 would be amended to ensure that there were "sufficient alternative sentencing options to fully and partially suspended sentences".

10. The trial judge then indicated that he was reassured by this statement and could feel confident that there would be an appropriate statutory provision in place by the date he proposed for a review. He proceeded to sentence the appellant to life detention with a review after 13 years. It was made clear that this would not prevent the appellant from applying for parole when eligible.

11. In passing sentence, the trial judge observed that the appellant had carried out an unprovoked, violent and frightening attack on a defenceless woman. He was undoubtedly young, but the reports did not indicate any particular immaturity or lack of cognitive faculties. He knew right from wrong. In mitigation, the judge accepted that the proffered plea to manslaughter had narrowed the issues in the trial and that there had not been an intention to kill at the outset. There was however an intent, albeit one that was perhaps formed immediately before the act, to cause serious injury. The judge also accepted that the up-to-date reports showed a distinct improvement in the appellant's attitude and conduct, with a change in attitude to his victims and their families, since going into custody. He considered that rehabilitation was a distinct possibility.

12. Finally, the trial judge noted that the appellant had expressed a preference for a determinate sentence. However, in his view the general legislative policy in relation to murder was such that there had to be a distinction between manslaughter and murder. This murder was of such a grave variety that a determinate sentence would not be appropriate, and he thought that 13 years was the minimum period of custody that was required for an offence requiring condign punishment and in order to ensure that rehabilitation proceeded to the point where, in his late 20s or early 30s, the appellant could rejoin society.

13. It is to be noted that in deciding to provide for a review, the trial judge expressed the view that the time was ripe for the Supreme Court to consider and advise in relation to the possibility of a review, and on what a reviewing judge could or could not do. Legislative intervention would be preferable but failing that an updated, definitive ruling was desirable.

The Court of Appeal

14. After an unsuccessful appeal against the murder conviction, C.C. pursued an appeal against the sentence. Essentially, his argument at the level of principle was that a child should not be given an indeterminate sentence. The life sentence was said to breach Article 42A of the Constitution (which emphasises the "best interests of the child" in court proceedings), and the United Nations Convention on the Rights of the Child (ratified by Ireland in 1992). It was contended that the imposition of a life sentence with a review date infringed Article 13.6° of the Constitution (which confers the right of pardon and the power to commute or remit punishment on the President) and amounted to an unconstitutional interference with the executive power.

15. The appellant submitted that the sentence imposed was disproportionate and that the trial judge had failed to have adequate regard to the fact that release after 13 years was not guaranteed. Even if he were to be released at that time, he would have served the equivalent of a 17-year determinate sentence. It was further contended that the sentence did not take proper account of what were described as significantly lower sentences imposed on other children in this jurisdiction for the crime of murder. He maintained that his action was not premeditated. There had been no intent to kill, but, rather, a momentary intent to cause serious injury. He had been genuinely remorseful from the earliest stage. The probation report showed that he had made progress in custody.

16. In delivering the decision of the Court, Burns J. noted that the Court of Criminal Appeal had held in People (Director of Public Prosecutions) v D.G. [2005] IECCA 75 ("D.G.") that the imposition of a life sentence with a review did not in any way impinge on the autonomous power of the executive to exercise clemency, or to provide for special or early release as and when the relevant authorities deemed it appropriate. The Court in that case had specifically stated that such a sentence could be appropriate for young persons, where it would be "inappropriate for others". A review date meant that the court retained seisin of the case, so as to enable it to review the length of the sentence having regard to, in particular, rehabilitation. More recently, in Director of Public Prosecutions v PB (the case being heard in conjunction with this appeal) the Court of Appeal had again stressed that eligibility for parole would not be affected by the setting of a review date. In the instant case the Court concluded that a life sentence with a review date was an appropriate way to sentence juvenile offenders who commit murder.

17. The Court held that such a sentence with a review date also reflected the obligation of a court, imposed by s.96(5) of the Children Act 2001, to have "due regard to the child's best interests, the interests of the victim of the offence and the protection of society". The sentence marked the seriousness of the offence, thereby having regard to the interests of the victim and the protection of society, but also acknowledged that the offender was still a child and that, subject to the child reforming, a lesser term of imprisonment could be appropriate. The responsibility lay on the child to avail of the supports available to him in the custodial setting.

18. Next, the Court considered whether or not the 13-year term was in itself too long. For the purposes of his submissions on this aspect the appellant had referred to a number of comparator cases. Having considered those cases, the Court found that there was no significant divergence from them in the appellant's case. The evidence demonstrated clear, intentional, planned behaviour on his part, which then developed into a fleeting intention to cause serious injury when he had failed to obtain anything from the victim. The sentence imposed was within the range of what could appropriately be imposed, although it was at the upper end of that range. There was no error in principle.

THE CONSTITUTIONAL CONTEXT

19. As a preliminary, it is appropriate to mention certain constitutional provisions. Article 38.1 of the Constitution guarantees that no person shall be tried on any criminal charge save in due course of law, while Article 40.1 guarantees that all citizens shall, as human persons, be held equal before the law. These guarantees apply to children as well as to adults. Article 42A, although primarily concerned with matters such as child care proceedings and adoptions, can be seen as expressly recognising the status of childhood.

20. Within these broad principles, the legislature must, of necessity, have a very broad margin of appreciation in creating procedures to deal with criminal conduct by children. To mention the most obvious point, the Constitution does not define childhood. It leaves it to the legislature to determine as a matter of policy (subject, perhaps, to considerations such as the duty to protect young children and also, perhaps, the need to respect choices made by young adults as to their own lives) when the status, and any specific protections associated with that status, should be deemed to come to an end in various different contexts.

21. The Constitution does not, by the same token, prescribe any particular process or outcome for criminal prosecutions against children. Children are not immune to the criminal justice process and can be subjected to punishment. The point is that the guarantees of fair procedures and equality may, in the cases involving child defendants, justifiably be implemented by way of trial procedures that are adapted to accommodate at least to some extent (without compromising the fundamental principles according to which a criminal trial is conducted) certain relevant features of childhood.

22. There are several reasons why the law should extend particular protection to children rather than simply treating them as holders of rights, similar to but narrower in scope than those of adults. The weakness and vulnerability of children means that they require protection, such that, for example, the State must in some circumstances intervene in the authority of the family unit in order to protect the interests of a child.

23. Another reason to accord recognition to the status of childhood is the interest shared by society and the State in attempting to ensure that children grow to adulthood as integrated members of the community. As a matter of common knowledge, children in general simply do not have the level of ability to think ahead, understand consequences, make choices about their behaviour or control their own impulses in the way that would be expected of adults, and so it follows that they have a lesser culpability in respect of criminal behaviour. But it is also significant that because the personality is still in the process of development, children have a relatively greater prospect of rehabilitation. That is a matter of importance to the general community, and not just to the individual child.

24. These factors - the vulnerability of children, their lesser culpability, the societal interest in assisting their development and the greater prospect of rehabilitation - are central features of the modern criminal law as it relates to children. It will be seen that they are reflected in the Children Act 2001. This does not mean that in a criminal prosecution the interests and welfare of a child defendant should necessarily take primacy over other interests. The contrast with care proceedings or custody disputes is obvious - those processes are concerned primarily with the interests of the child, but a criminal trial involves a far more complex range of rights and interests. There is in each case the broad interest of society in the prosecution and punishment of crime. In most cases there will be one or more victims whose rights also have to be protected and vindicated, and those victims may in some cases be children themselves. The need to have regard to those other rights and interests may mean that it is inevitable that involvement in the criminal justice process can distress and sometimes even cause damage to a child defendant. That does not, in itself, necessarily involve a breach of individual rights.

25. Finally, in this case the effect of Article 13.6 must be considered. This sub-article is part of the provisions dealing with the powers of the President, and reads:

The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may also be conferred by law on other authorities.

26. This provision has been given legislative effect by s.23 of the Criminal Justice Act 1951, considered below.

THE STATUTORY CONTEXT

Pre-2001 - sentencing children for murder

27. Section 1 of the Offences Against the Person Act 1861 prescribed the death penalty for the offence of murder. Section 103 (combined with s.133) of the Children Act 1908 specifically exempted from that penalty defendants under the age of 16 who were found guilty of murder. "In lieu thereof", the trial court was required to order that they be detained indefinitely, in such place and under such conditions as the Chief Secretary might direct, "during the pleasure" of the Lord Lieutenant of Ireland. Under s.105 of the Act the person could be released on licence at any stage. By virtue of, firstly, the Constitution of the Irish Free State, and, subsequently, Article 49 of Bunreacht na hÉireann, the former powers of the Lord Lieutenant became exercisable by the government.

28. The Criminal Justice Act 1964 abolished the death penalty for most murders (apart from a restricted category referred to as "capital murder") and replaced it with a mandatory sentence of penal servitude for life. Children (i.e. under 15 years of age) and young persons (i.e. under the age of 17) could not be sentenced to penal servitude, by virtue of s.102 of the Children Act 1908.

29. Section 1 of the Criminal Justice Act 1990 abolished the death penalty for all murders. Section 2 of that Act provided for a mandatory sentence of life imprisonment - that would not have applied to children, who could not be sentenced to imprisonment. The Act provided for minimum periods of imprisonment to be served by persons convicted of particular kinds of murder but specifically exempted young persons from that aspect.

30. However, Paragraph 2 of the First Schedule of the Act of 1990 provided that s.103 of the Children Act 1908 should have effect in relation to a child or young person who was convicted of an offence for which an adult would be required to be sentenced to life imprisonment, in the same way that it had previously had effect in relation to a child or young person convicted of an offence for which an adult would have been required to be sentenced to death. Thus, a court sentencing a child was obliged to apply s.103 in any case where an adult would be subject to a mandatory life sentence.

31. In People (DPP) v V.W. (unrep., High Court, 23^rd March 1998) O'Donovan J. confirmed that the net result of the foregoing was that children and young persons convicted of murder were still to be dealt with under s.103 of the Children Act 1908. On the basis of the analysis of this Court in State (O) v. O'Brien (discussed below), he saw this as a sentencing provision and it was for the courts, rather than the executive, to determine the duration of a sentence. It was possible, therefore, to impose a determinate or indeterminate sentence on a young person convicted of murder.

32. In recent times an issue arose as to whether a person who committed a murder as a child was subject to the mandatory life sentence in the Criminal Justice Act 1990 if they reached the age of 18 before being tried and sentenced (see Musueni v Ireland [2024] IEHC 523).

33. Perhaps as a result of the decision in Musueni, s.2 of the Act of 1990 has now been amended by the Criminal Justice (Amendment) Act 2024, which disapplies the mandatory life sentence penalty in the case of a person who was under the age of 18 when they committed the murder but has reached that age on or before the date of sentencing. The amendment applies retrospectively, to the extent that it applies to murders committed and proceedings commenced before the date of the coming into operation of the Act provided final judgment has not been given in the proceedings.

Pre-2001 - custodial options for children

34. The 20^th century framework for the custody of young offenders was based on two statutes of 1908. The Children Act 1908 provided that a "young person" (aged over 12 and, after amendment in 1941, under 17) could not be sentenced to penal servitude and could be sent to prison only in certain limited circumstances. The primary form of custodial regime was detention in a reformatory. The sentence had to be of a specified duration - after amendment by the Children Act 1941, it had to be not less than two years and not more than four but could not, in any case, extend beyond the time when the young person would reach the age of 19. The managers of reformatories could release inmates on a conditional, supervised licence before the expiry of their sentences. The Secretary of State had the power to discharge either absolutely or on conditions and, if a discharge was conditional, return the offender to the reformatory for breach of conditions.

35. The Prevention of Crime Act 1908 provided for Borstal detention. It applied to persons not less than 16 and not more than 21 who were convicted of an offence for which they would otherwise be liable to imprisonment or penal servitude. Sentences had to be not less than one year and not more than three. Offenders could be released on licence after six months. A person within the specified age range who was serving a sentence of imprisonment or penal servitude could be transferred to the Borstal, in which case the Act applied to them as if they had been sentenced to be detained there.

36. St. Patrick's Institution opened in 1956, when the inmates of the Borstal were transferred there. The Criminal Justice Act 1960 abolished the term "Borstal" and provided that all statutory references to a Borstal institution were to be construed as references to St. Patrick's. There were, initially, two categories of young offenders in St. Patrick's - 16-year-olds (who could not have been sentenced to imprisonment or penal servitude) and persons over the age of 16 and under the age of 21 (this upper age was reduced to 19 by the Prisons Act 1970). Persons in this second category were liable to be sentenced to penal servitude or imprisonment, but they could "in lieu of being so sentenced" be sentenced to detention in St. Patrick's if the trial judge considered that the character of the accused person was such that they would benefit from it.

37. In State (White) v Martin [1977] 111 ILTR 21 Henchy J. emphasised that detention in St. Patrick's was not to be classified as imprisonment but was a separate and distinct form of penal detention with a separate statutory foundation. Prisons existed primarily for the purpose of penal detention of convicted criminals generally, but St. Patrick's was designed to further the reformation of young males of the specified age group and the prevention of crime.

38. Section 2 of the Prisons Act 1970 enables the Minister for Justice to provide, for the purpose of promoting the rehabilitation of offenders, places of detention other than prisons for the detention of persons sentenced to either imprisonment, penal servitude or detention in St. Patrick's. A person serving a sentence of detention in St. Patrick's could be transferred to such a place to serve the unexpired residue of a sentence, and while there would be deemed to be serving a sentence of detention. Any enactments relating to prisons or to St. Patrick's were to apply to such a place.

39. The Minister for Justice could, on request by the governor of St. Patrick's, transfer an inmate of the Institution to prison to serve any unexpired portion of their sentence. The Minister also had a general power under the Prisons Act 1970 to direct, from time to time, the transfer of any number of inmates of St. Patrick's to prison (if aged 17 or over) for the purpose of relieving overcrowding. Where this latter power was exercised the Minister was obliged, under s.7 of the Act, to commute the unexpired residue of the term of detention of each person to such term of imprisonment (not exceeding such residue) as he might determine.

40. St. Patrick's, and the provisions of the 1960 Act, continued in operation for several years after the enactment of the Children Act 2001. The provisions of that Act dealing with the power to impose sentences of detention in the new children detention school system did not come into force until July 2007. In anticipation of that development, a transitional provision was inserted into the 2001 Act in 2006 to permit continued detention of males aged 16 and 17 in St. Patrick's until places suitable for their admission became available for designation as child detention schools and/or their transfer to such a school before it was designated. Where a person was transferred from St. Patrick's to a school under this provision their period of detention was not to be affected.

41. St. Patrick's was finally closed by Ministerial order made under the Prisons Act 2015. That Act, and the Prisons Act 2015, amended a variety of enactments that referred to the Institution. Among other matters, all persons detained in a place provided under s.2 of the Prisons Act 1970 (essentially, the low-security detention facilities sometimes described as "open prisons") are now deemed to be serving sentences of imprisonment.

The Children Act 2001

42. Although it predates the adoption of Article 42A, the Children Act 2001 can fairly be described as acknowledging and making special provision for the distinct status of childhood within the constraints imposed by the range of interests involved in a trial. It does so by providing for a range of procedures, protections and disposals that are not available to adults and that would in any event frequently be unhelpful or irrelevant to them.

43. Part 9 of the Act is headed "Powers of Courts in Relation to Child Offenders". The general principles are set out in s.96 (as amended) as follows:

96. (1) Any court when dealing with children charged with offences shall have regard to –

(a) the principle that children have rights and freedom before the law equal to those enjoyed by adults and, in particular, a right to be heard and to participate in any proceedings of the court that can affect them, and

(b) the principle that criminal proceedings shall not be used solely to provide any assistance or service needed to care for or protect a child.

(2) Because it is desirable wherever possible –

(a) to allow the education, training or employment of children to proceed without interruption,

(b) to preserve and strengthen the relationship between children and their parents and other family members,

(d) to allow children reside in their own homes,

Any penalty imposed on a child for an offence should cause as little interference as possible with the child's legitimate activities and pursuits, should take the form most likely to maintain and promote the development of the child and should take the least restrictive form that is appropriate to the circumstances; in particular, a period of detention should be imposed only as a measure of last resort.

(3) A court may take into consideration as mitigating factors a child's age and level of maturity in determining the nature of any penalty imposed, unless the penalty is fixed by law.

(4) The penalty imposed on a child for an offence should be no greater than that which would be appropriate in the case of an adult who commits an offence of the same kind and may be less, where so provided for in this part.

(5) Any measures for dealing with offending by children shall have due regard to the child's best interests, the interests of the victim of the offence and the protection of society.

44. Section 98 (as amended) provides:

98. - Where a court is satisfied of the guilt of a child charged with an offence it may, without prejudice to its general powers and in accordance with this Part, reprimand the child or deal with the case by making one or more of the following orders:

(a) a conditional discharge order,

(b) an order that the child pay a fine or costs,

(d) a compensation order,

(e) a parental supervision order,

(f) an order that the parent or guardian pay compensation,

(g) an order imposing a community sanction,

(h) an order (the making of which may be deferred pursuant to section 144) that the child be detained in a children detention school,

(i) a detention and supervision order.

45. Under s.143, the court is not to make an order that the child be detained in a children detention school unless satisfied that detention is the only suitable way of dealing with the child and, also, that a place is available.

46. Section 144 warrants close consideration. Under s.144(1) if the court, having heard all relevant evidence, is of the opinion that the appropriate way to deal with the child is to make a children detention order, it may defer the making of the order if a place is not available in a children detention school "or for any other sufficient reason". Section 144(2) stipulates that the court is to defer the making of the order only if it is satisfied that, having regard to the nature of the offence and the age, level of understanding, character and circumstances of the child concerned, it would be "in the interests of justice" to do so.

47. The court must then adjourn the hearing and place the child under probation supervision. If the deferral is because of the lack of a place, the court shall order the director of the children detention school to apply for the making of the order as soon as a place becomes available.

48. If the deferral is for any other reason, the court must state in open court a) the period of detention that is being deferred, b) the date on which the hearing will resume and c) that the court will take into account at the resumed hearing any information in a probation and welfare officer's report concerning the child's conduct in the meantime. Such a report must include the extent to which the child has complied with any conditions suggested by the court, any change in the child's circumstances, any reparation made by the child and any other information the officer considers relevant.

49. The court must explain to the child why the order is being deferred, what conditions it suggests should be complied with by the child during the period of deferral, the expectation of good conduct and the possible consequences of any failure to comply with the conditions.

50. The resumed hearing must take place not less than one year after the date of the adjourned hearing. It can proceed notwithstanding that the child has reached the age of 18 in the interim.

51. Under s.144(9) a number of options are open to the court at the resumed hearing. It may, having regard to the up-to-date reports, either impose the period of detention that had been deferred, or impose a shorter period, or suspend the whole or any portion of a period so imposed, or impose an appropriate community sanction. It may not order a further deferral.

52. Section 149, as substituted by s.9 of the Children (Amendment) Act 2015, provides that a period of detention imposed on a child shall not exceed the term that could be imposed on a person of full age and capacity in respect of the relevant offence.

53. Where an offender reaches the age of 18 while still serving a sentence of detention, s.155 (as substituted by s.11 of the Children (Amendment) Act 2015) enables their transfer from a children detention school to a prison, or to some other place of detention other than a prison, provided by the Minister under s.2 of the Prisons Act 1970 for the purpose of rehabilitation of offenders, in order to serve the remaining period of detention. The Director is obliged to notify the Minister for Children and Youth Affairs in advance of the relevant date and request authorisation for the transfer. That Minister is to consult with the Minister for Justice and Equality and must then authorise the transfer to such prison or place of detention as is considered appropriate. There is some leeway here if the person concerned is engaged in a course of education or training in the children detention school or is nearing the end of their sentence. In such cases, they may continue to be detained in there for up to six months.

54. Of note, s.155 does not necessitate the commutation of the sentence of detention to one of imprisonment. The transfer is not discretionary, in that the Minister must grant the authorisation and the only decision to be made is where, within the prison system, the person should be sent.

55. It appears that a person who is transferred to a prison pursuant to s.155 is subject, within the prison system, to precisely the same regime as any other person serving a sentence of imprisonment. No distinction of any kind is currently drawn, under either the Prisons Acts 1826 to 2015 or the rules for the government of prisons and the treatment of prisoners, between persons sentenced as adults and persons sentenced as children and transferred on reaching adulthood, whether in respect of remission of sentence or otherwise. The Prison Rules 2007 define a "prisoner" as a person who is lawfully detained in a prison and this definition includes a person detained on foot of a sentence of detention.

56. Section 156 of the Act of 2001 provides that a child may not be sentenced to imprisonment or committed to a prison.

Suspended sentences of imprisonment

57. Suspended sentences have a long history in this jurisdiction as an important sentencing option. Until 2006, they were seen purely as the exercise of a common law power, but s.99 of the Criminal Justice Act 2006 created what must be seen as a comprehensive statutory process for the imposition and activation of suspended sentences of imprisonment.

58. Section 99 has required innumerable amendments since it was originally enacted. For present purposes, only certain features are relevant. The section applies to sentences of "imprisonment". That term is defined in s.98. Originally the definition included a sentence of detention in St. Patrick's Institution but the reference to that Institution was deleted by the Prisons Act 2015.

59. Section 99 provides that a court may, if it is sentencing a person to a term of imprisonment, make an order suspending the execution of the sentence "in whole or in part" upon conditions as provided for in the section.

60. The section does not affect the power to grant temporary release under the Criminal Justice Act 1960 or the entitlement to remission for good conduct under the Prison Rules.

Appeals Against Sentence

61. Section 3 of the Criminal Procedure Act 1993 governs appeals against severity of sentence from the Circuit Court, the Central Criminal Court and the Special Criminal Court. Sub-section (2) provides that on the hearing of such an appeal the Court of Appeal may quash the sentence and in place of it impose such sentence or make such order as it considers appropriate, "being a sentence or order which could have been imposed on the convicted person for the offence at the court of trial".

62. In People (DPP) v Lambert [2023] IECA 124 the appellant had been sentenced to a term of detention while he was a child, but had reached 18 by the time he came before the Court of Appeal. The Court held that, having regard to the phrasing of s.3(2) of the Act of 1993, its jurisdiction in an appeal against sentence was limited to either affirming the sentence imposed by the trial judge or, if it found an error in principle in the sentence, quashing it and freeing the appellant. It could not quash and re-sentence, as intended under the Act, because it could not impose either a sentence of detention (since the appellant was now an adult) or a sentence of imprisonment (since that would not have been a sentence that the trial court could have imposed on the appellant at the relevant time).

63. This problem was addressed in s.62 of the Criminal Justice (Miscellaneous Provisions) Act 2023. A new sub-s.(10) has been inserted into s.3, which provides that in such circumstances the reference to "a sentence or order which could have been imposed on the convicted person for the offence at the court of trial" is to be construed as a reference to "a sentence or order which could have been imposed on the convicted person for the offence at the court of trial had he attained [the age of 18] at the time when the sentence or order was so imposed". Similar provision is made in respect of applications by the Director for a review of sentence on grounds of leniency. The Court of Appeal may, therefore, quash a sentence on grounds of either severity or leniency and, where it does so, may impose a sentence of imprisonment. There is nothing to prevent the Court from suspending that sentence in whole or in part as it sees appropriate.

64. Section 2 of the Criminal Justice Act 1993, as amended, provides for the making of an application by the Director of Public Prosecutions to the Court of Appeal to review a sentence "imposed by a court ... on conviction of a person on indictment" on grounds of alleged undue leniency. A "sentence" for the purposes of this procedure is defined in s.1 as including a sentence of imprisonment "and any other order made by a court in dealing with a convicted person", other than (a) orders relating to persons found to be unfit to plead or insane, and (b) orders postponing sentence for the purpose of obtaining a medical or psychiatric report or a report from a probation officer.

The Parole Act 2019

65. Currently, only persons serving sentences of life imprisonment are eligible to seek release on parole under the Parole Act 2019. The Act empowers the Minister to extend eligibility to prisoners serving long determinate sentences, but no regulations have been made to provide for such extension.

66. Section 2(3)(a) of the Act provides that if a person upon whom a sentence of detention was imposed when they were a child is transferred to a prison in accordance with s.155 of the Act of 2001, they come within the definition of a person serving a sentence of "imprisonment". Section 2(3)(b) ensures that the period of detention in a children detention school before transfer will be included in calculating the time served.

67. A person seeking parole must have served at least 12 years of the life sentence (s.24(1)). Section 13(2)(b)(ii) confers powers on the Parole Board to seek reports, including a report from the director of a children detention centre in which the person has been detained during the course of the term of imprisonment in respect of which they are being considered for parole.

68. The provisions of the Act are without prejudice to the rules concerning remission for good conduct under the Prison Rules 2007, the power of the Minister for Justice and Equality to grant a prisoner temporary release, and the power to commute or remit punishment under s.23 of the Criminal Justice Act 1951.

The Criminal Justice Act 1951

69. Section 23 of the Criminal Justice Act 1951 is the primary example of legislative conferral of the power to commute or remit punishment. As amended, it authorises the Government to commute or remit, in whole or in part, any punishment imposed by a court exercising criminal jurisdiction and further authorises delegation of that power to the Minister for Justice. The power is delegated to the Minister, by virtue of the Criminal Justice Act, 1951 (Section 23) (Delegation of Powers) Order, 1998 (S.I. 416/1998).

70. It may be noted that this power is quite separate to the remission earned by prisoners for good conduct or for engaging in authorised activities, which is regulated by other statutory provisions.

THE EUROPEAN CONVENTION ON HUMAN RIGHTS

71. The Convention does not contain any provision dealing expressly with the trial or sentencing of children for criminal offences. There are, however, cases where Article 3 (the prohibition on inhuman and degrading treatment) has been invoked in relation to the imposition of a life sentence on a child. In T. v. United Kingdom (Application no. 24724/94, 16^th December 1999) and V. v. United Kingdom (Application no. 24888/94, 16^th December 1999) the applicants had murdered a toddler when they were aged 10. As they were children they were sentenced to be detained "during Her Majesty's pleasure". In keeping with the practice followed at the time, it was for the trial judge to recommend a punitive, or "tariff" period which had to be served before they could be considered for release. The Lord Chief Justice could also make a recommendation. Ultimately, it was for the Home Secretary to actually set the tariff. In T. and V., the tariff had been quashed by the House of Lords and had not yet been re-set when the claims were dealt with by the European Court of Human Rights (ECtHR).

72. The Court held that the punitive element in the tariff system did not in itself give rise to a breach of Article 3 of the Convention. States were not precluded from subjecting a child or young person convicted of a serious crime to an indeterminate sentence allowing for the offender's continued detention or recall to detention where necessary for the protection of the public. The Court recalled that the State had a duty to take measures to protect members of the public from violent crime. Further, at the time when the Court was deciding the matter the applicants had been detained for only six years, and despite the fact that a new tariff had not yet been set it could be assumed that they were still being detained for punitive purposes. A period of punitive detention of that length could not be said to amount to inhuman or degrading treatment.

73. However, the ECtHR emphasised that further detention beyond the expiry of the tariff could only be justified on grounds of dangerousness, and that the detained person had to have a right to challenge findings in that regard. An issue under Article 3 might arise if there were to be an unjustifiable and persistent failure to fix a tariff, leaving a detainee in uncertainty over many years as to his future.

74. In Khamtokhu and Aksenchik v. Russia (Application nos. 60367/08 and 961/11, 24^th January 2017) two adult Russian men complained that they had been discriminated against by being sentenced to life imprisonment when women, offenders under 18 and offenders over the age of 65 were exempt from such sentences under Russian law. In considering whether there had been discrimination vis-à-vis the category of juveniles, the Court examined the sentencing guidelines in 37 of the member States of the European Council. (Ireland would not appear to have been included.) It found that life imprisonment of offenders below the age of 18 was prohibited in 32. In the other five, the prohibition was more extensive. Nine States had no provision for life sentences at any age. The Court concluded that the exemption of juveniles under Russian law was consonant with this approach and was also consistent with the recommendation of the Committee on the Rights of the Child to abolish all forms of life imprisonment for offences committed by persons under the age of 18. The purpose was evidently to facilitate rehabilitation.

"The Court considers that when young offenders are held accountable for their deeds, however serious, this must be done with due regard for their presumed immaturity, both mental and emotional, as well as the greater malleability of their personality and their capacity for rehabilitation and reformation."

75. The imposition of a life sentence on a minor is not a matter that has, to date, been brought to the Court.

SUBMISSIONS IN THE APPEAL

Overview

76. The appellant submits that children should be sentenced under a regime that prioritises their rehabilitation, and that sentences should adequately reflect their status as children and take account of their personal circumstances. These rights, he says, flow from Articles 38.1 (the guarantee of a trial "in due course of law"), 40.3.1° (the guarantee that the State will in its laws respect and, as far as practicable by its laws defend, the personal rights of the citizen) 42A (the recognition and affirmation of the natural and imprescriptible rights of the child) and 40.4.1° (the guarantee that there shall be no deprivation of liberty other than in accordance with law) of the Constitution. It is contended that the rights of the child under the Constitution, under the Act of 2001 and under the European Convention on Human Rights require protection in this context, and that international law leans against the imposition of a life sentence on a child. The appellant has provided an overview of the sentencing regime for children in the European Union generally and in a number of other common law jurisdictions.

77. With regard to the sentence imposed in his case, the appellant says that in principle there are no circumstances in which a life sentence should be imposed on a child. Even in the worst case, the gravity of the offence can be met by a determinate sentence of appropriate length, but a child should never be stigmatised and branded as deserving of detention for life. It is said that such a sentence is liable to hinder rehabilitation, that the review process is of uncertain legal validity and that it in any event provides insufficient protection for the rights of the child.

78. The Director agrees that there is a special onus on a court dealing with a young offender to have regard to their rehabilitation and future welfare. She acknowledges that there is uncertainty surrounding the lawfulness of the review mechanism but sees the imposition of a life sentence for murder, in combination with that mechanism and/or the provisions of the Parole Act 2019, as fulfilling the obligations of the courts under the Children Act 2001.

79. The Attorney General accepts that the State has constitutional duties to children in the criminal justice system but submits that any such obligations, including obligations under Article 42A, are fulfilled by the provisions of the Children Act 2001. That measure recognises the special needs of children and seeks to adapt the criminal process accordingly. He argues that the Constitution does not prohibit the imposition of a life sentence on a child. He also submits that the review mechanism may not, contrary to the obiter views expressed in Finn, infringe the Constitution, and suggests that the Court should revisit the analysis in that case.

The principles applicable in sentencing children

80. The appellant refers to s.96 of the Act, and to the analysis in G. v Director of Public Prosecutions [2014] IEHC 33 where O'Malley J. said:

"Children differ from adults, not just in their physical development and lesser experience of the world, but in their intellectual, social and emotional understanding. It is for this reason that it has long been recognised that it is unfair to hold a child to account for his or her behaviour to the extent that would be appropriate when dealing with an adult. Further, it has been accepted since, at least, the enactment of the Children Act of 1908, that the fact that these aspects of personality are still developing means that intervention at an early stage, rather a purely punitive approach, may assist in a positive outcome as the child reaches adulthood.

This is not to say that the law regards adults as incapable of development or change - the principle of rehabilitation is a cornerstone of sentencing and penal policy. It is an acknowledgment of the fact that a child is in the process of development. It is the policy of both the legislature and the courts, therefore, to assist in that process in a positive way where practicable. This policy is one that respects both the rights of the child as an individual and the public interest in steering a child offender into a more lawabiding path."

81. The appellant cites the United Nations Convention on the Rights of the Child (known as "the Children's Convention"), which prohibits the imposition of life sentences without the possibility of release on children. It recognises the right of every child found to have infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society. It is submitted that the Children's Convention enshrines the same principles as the Children Act. In General Comment No. 24 (2019) the UN Committee on the Rights of the Child emphasised that the reaction to an offence should always be proportionate not only to the circumstances and the gravity of the offences, but also to the personal circumstances of the child as well as to the various and particularly long-term needs of society. A strictly punitive approach was not in keeping with the principles of the Convention. Weight should be given to the child's best interests as a primary consideration as well as to the need to promote the child's reintegration into society. In General Comment No. 10 (2007) the Committee recommended that State parties should abolish all forms of life imprisonment, including indeterminate sentences, for all offences committed by persons who were aged under 18 at the time of the offence.

82. In 2015 the UN Special Rapporteur on Torture stated that life sentences had a disproportionate effect on children and caused physical and psychological harm that amounted to cruel, inhuman or degrading treatment.

83. The appellant acknowledges that these instruments are not binding in Irish law but submits that they should be seen as persuasive.

84. The Attorney General points out that the Children's Convention does not have the force of law in the State, and that the General Comments do not confer any enforceable rights on the appellant.

Determinate and indeterminate sentences for children convicted of murder

85. The appellant notes that there are examples of determinate sentences being passed in cases involving children guilty of murder. According to O'Malley on Sentencing Law and Practice (3^rd ed., 2016) it is possible to impose such a period of detention, including life, as the court thinks fit in the circumstances. It is also noted that there are no examples in the modern era of a life sentence being imposed on a child without a court review date being set.

86. It is argued that indeterminate sentences are harmful in the case of children and should not be imposed. The appellant cites Steinberg ("Adolescent Development and Juvenile Justice" Annu. Rev. Clin. Psychol. 2009 5:459 - 485) for the proposition that the use of punitive sanctions in the case of juveniles may increase recidivism and jeopardise the development of juveniles, and that most juvenile offenders mature out of crime in their late teens. The appellant also cites Flynn and Costigan ("The Management of People Serving Life Sentences in Ireland: A Multidisciplinary Model" Irish Probation Journal Vol. 17, October 2020) as finding that indeterminate sentences can have a "derailing" effect in the early years in custody. It is submitted that this risk is particularly acute in the case of child prisoners who move to the adult prison environment.

87. The appellant submits that the operation of the Parole Act 2019, and its potential availability to him, is irrelevant to the dispute between the parties. Accused persons are entitled to receive a sentence appropriate to their degree of guilt and relevant personal circumstances, and the sentencing court should not factor in other matters such as the possible exercise of executive discretion to grant conditional release.

88. The Director's position is that there are cases of murder involving child offenders where the imposition of a life sentence is appropriate. It serves to reflect the gravity of the offence and respects the obligation of the State under Article 40.3 of the Constitution to protect the right to life. Murder must be distinguished from all other offences and a life sentence must be an option. Where such a sentence is coupled with a review it simultaneously provides for the welfare and rehabilitation of the child offender. It is said that the review distinguishes such a sentence from an indeterminate life sentence because there is the potential for release at the time of review.

89. The Director accepts that the practical effect of this may be that a child offender sentenced to life with a review after a lengthy period will be in the same position as an adult sentenced to life imprisonment. They will each be serving an indeterminate sentence with the possibility of making an application to the Parole Board. However, the Director points out that, whereas this is in every case the mandatory outcome for an adult convicted of murder, it will be the outcome for a child only if the trial judge finds it appropriate after consideration of their personal circumstances and mitigatory features. Those matters cannot be taken into account in the case of an adult.

90. Given the possibility that the validity of the review procedure might not be upheld by the Court, and given the current view that there is no power to suspend the balance of a sentence for a young offender after review, the Director submits that the operation of the Parole Act 2019 provides for a similarly effective review mechanism. While the appellant argues that the Parole Act is irrelevant, the Director says that its significance lies in the fact that the Oireachtas has regulated the exercise of the discretionary executive power to release, meaning that the sentencing court should not need to retain a role in the management of a sentence on the basis of a perceived unmet constitutional obligation. The Parole Board must, in assessing an application, consider all the same matters that a sentencing court would see as relevant.

91. It is submitted by the Director that indeterminate sentences for children are not prohibited by either the Constitution or the European Convention on Human Rights. A court review mechanism has an effect equivalent to the United Kingdom tariff system, and even if the review system is invalid the Parole Act 2019 ensures that the sentence remains Convention-compliant.

92. The Attorney General says that the fact that children are not subject to a mandatory life sentence for murder, and may be given a determinate sentence, is an important safeguard of their rights. The mandatory sentence in the case of an adult is, because of the exceptional nature of the offence, a constitutionally permissible departure from the generally applicable principle that sentences must be proportionate to the circumstances of the offender. Even in the case of a child, murder is an offence of profound and exceptional gravity, but the court is enabled to give individual consideration to the child's circumstances in a way that it cannot with an adult. The starting point for sentencing a child for murder must be that it is an especially abhorrent offence that merits a mandatory life sentence for an adult. In principle, it must remain open to a court to impose that sentence on a child. The question whether it is appropriate in a particular case is a separate matter.

Jurisdiction to review a sentence - submissions

93. Neither the appellant nor the Director commit themselves on the question whether or not a trial judge has the power to order a review of sentence in the case of a child, although both raise queries about the basis for such a power. The appellant submits that the uncertainty surrounding the review mechanism makes a determinate sentence more appropriate. The Director submits that the mechanism has been utilised as a means of discharging the special onus to have regard to the rehabilitation of a young offender, but agrees that there are doubts about its validity and also about what order can be made by a court when it carries out a review in the case of a person sentenced as a child.

94. The Attorney General observes that the authorities dealing with the sentencing of children demonstrate a more tolerant attitude to the review mechanism than those concerned with adults, and says that the greater emphasis on rehabilitation in cases involving children could justify an argument that reviews are appropriate in such cases. He suggests that the reasoning in the most significant of the authorities cited, Finn, should be revisited, and points out that the judgment has nothing to say about child cases.

Jurisdiction to review - caselaw

95. Such judicial comment as there has been on the power of a sentencing judge to impose a sentence while reserving the power to review it at a later date is somewhat sparse and not entirely consistent.

96. In State (Woods) v. Attorney General [1969] I.R. 385, Woods had been sentenced to seven years in the Central Criminal Court (Butler J.). According to the warrant he was to be kept in penal servitude for a period of seven years "but upon the completion of 36 months of such sentence order that the residue of such sentence be suspended provided the accused has obeyed prison discipline and enters into a bond...". Part of the argument made on his behalf in a habeas corpus application was that the order was bad because the length of the sentence could be determined by persons not authorised by the Constitution to do so (i.e., the prison authorities). In the High Court, Henchy J. agreed.

"Effect cannot be given to the sentence imposed by the learned trial judge without the operation of the proviso to it; and the operation of the proviso cannot take place without a decision by a Governor or other prison officer as to whether or not the prisoner has observed prison discipline. If at this moment one had to reply to a query as to what sentence the prisoner will have to serve, one would say that it will be three years if he has not been found guilty of a breach of prison discipline, but that it will be seven years if he has been so found guilty. The learned judge in imposing this sentence of penal servitude fixed it at a maximum of seven years and a minimum of three years, but by necessary implication left it to prison officers to say whether the prisoner will have to serve the minimum or maximum period."

97. This Court (Ó Dálaigh C.J., Haugh, Walsh, Budd and Teevan JJ.) had access to the transcript (which Henchy J. had not seen) and held that Butler J. had in fact clearly reserved to himself the decision on the issue of discipline. Any modification of the sentence would be executed wholly within the judicial domain. The Court saw no difficulty with this form of order.

98. In Re Robert McIlhagga (unrep., Supreme Court, 29^th July, 1971) this Court considered an application for habeas corpus by a prisoner serving two concurrent sentences for obtaining money by false pretences.

99. In the first case, Butler J. had imposed a sentence of three years penal servitude. The order contained a proviso to the effect that the accused was to be released if at any time during the three years he paid over the sum of £6,655 by way of restitution and entered into a bond to keep the peace and be of good behaviour for three years from the date of the bond.

100. In the second case, Kenny J. had imposed a sentence of 15 months. He gave liberty to re-enter the case before him if the sum of £500, or a substantial portion thereof, was paid by way of restitution within the period of 15 months.

101. The applicant sought his release on the basis that the sentence imposed by Kenny J.'s order was now spent and that there was no power to pass a sentence such as that imposed by Butler J.

102. Ó Dálaigh C.J. (with whom Walsh, Budd, Fitzgerald and McLoughlin JJ. agreed) held, firstly, that Kenny J.'s order was at the time a sufficient warrant for the applicant's detention - he was wrong about its commencement date. The addendum to the order had been made because Kenny J. had some grounds for hoping that restitution might be made. The Chief Justice added:

"Even if I am to assume in the prosecutor's favour that the addendum to the order is not warranted in law, the fact remains that the addendum of itself does not purport to modify the sentence imposed in any way. Nor has the case been re-entered, for the reason that the condition of re-entry was not fulfilled. It is, in my view, therefore unnecessary to examine whether if the condition of re-entry had been fulfilled, it would then have been competent for the trial judge to vary the sentence he had imposed on the 3^rd November, 1969. It may be that a subsequent modification of sentence should be regarded as amounting to a remission of sentence and as such a function, not of the Court, but of the Government or the Minister for Justice under section 23 of the Criminal Justice Act 1951. For present purposes it is enough for me to say that this did not happen and I do not find it necessary to express any final opinion upon the matter." (Emphasis added.)

103. That was sufficient to dispose of the appeal, but Ó Dálaigh C.J. went on to speak approvingly of Butler J.'s order.

"Mr Justice Butler's order differs from that of Mr Justice Kenny in one important respect: Mr. Justice Butler's order is self-contained, self-executing, and to give effect to it no further order by the trial judge is required.

The "suspended" sentence has long been recognised in the Courts in Ireland as a valid and proper form of sentence. Mr. Justice Butler's order is a modification of the usual form of "suspended" sentence. Under the usual form of "suspended" sentence the condition of suspension is accepted by the accused and he or she undertakes to carry out the condition there and then e.g., enter a psychiatric hospital for treatment. Mr. Justice Butler has not had the accused's acceptance and his order makes suspension dependent upon the subsequent fulfilment of the condition. Mr. Justice Butler's order escapes the criticism that has been directed at the form of Mr. Justice Kenny's order. By the form of his order Mr. Justice Butler is functus officii: he does not seek to exercise any power subsequently. His order, in my opinion, is therefore to be distinguished from an order of remission." (Emphasis added.)

104. The judgment does not refer to Woods.

105. The next reported case is People (DPP) v Cahill [1980] I.R. 8. This was an appeal to the Court of Criminal Appeal against a sentence imposed in the following terms: "... the Court doth order that accused be imprisoned for 7 years but doth direct that when 36 months served accused is to be brought back before the Court and if in the meantime he has obeyed normal prison discipline and has shown a willingness to co-operate in preparing himself for integration into normal society the Court will consider suspending the then balance of said sentence ..."

106. In delivering the judgment of the Court of Criminal Appeal Henchy J. noted that in a number of previous appeals the Court had, in ex tempore rulings, expressed disapproval of this form of order. The reasons for disapproval were:

i) The availability of a High Court trial judge to conduct a review on a future date would depend on whether or not he was nominated by the President of that court to sit in the Central Criminal Court at the relevant time, and a judge could not so nominate himself.

ii) A sentence in this form seemed incompatible with the right of the convicted person to appeal against sentence. The time limits for appeals meant that the person would have to either appeal at a time when they could not identify the term to be served, or else postpone appeal until after the review date.

iii) "Thirdly, a sentence such as this has the defect that it gives the appearance of trenching on what is a function of the Executive. It is part of the judicial function to determine the nature and extent of the sentence, whenever the general rule laid down by statute or common law gives a range of choice. Thereafter it is within the power of the Government, or the Minister for Justice as its delegate, to commute or remit, in whole or in part, "any punishment imposed by a Court exercising criminal jurisdiction" - see the provisions of s 23 of the Criminal Justice Act, 1951. A direction that a prisoner is to be brought back to the court of trial for a review of his sentence after three years impliedly seeks to freeze the Executive discretion as to remission during that period, and then to vest in the court a power of review which is not readily compatible with the powers withheld from the Courts and vested in the Executive by s 23 of the Act of 1951." (Emphasis added.)

iv) Finally, even if such a sentence could be justified on legal grounds it was not in accordance with proper principles of penology, because it was desirable that prisoners and prison authorities should be in a position to plan for the date of release.

107. The Court concluded that a sentence of imprisonment or penal servitude coupled with a reservation to the court, or to the sentencing judge, of a power to review the sentence at a future date should not be imposed.

108. People (DPP) v. Aylmer was decided by this Court in 1986, although not reported until [1995] 2 I.L.R.M. 624. The appellant had been sentenced to ten years imprisonment in the Central Criminal Court (Butler J.). The order stated that he should serve 36 months of that sentence and should then be brought before the court and that, if the court were then satisfied that the prisoner had observed prison discipline and had tried to learn a trade, the court would then consider suspending the balance of his sentence. That came to pass, and he was released. However, he re-offended and the suspended balance was imposed. In his appeal against that last order, the appellant argued, in reliance on the considerations identified in Cahill, that the original order was null and void.

109. Walsh J. rejected this argument, stating that the power of the executive was to commute sentences, not to suspend them. There was no way in which the sentence could be seen as interfering with the power to commute.

"The sole power to impose a sentence is vested in the judicial arm of government and the sole arm to attach conditions to it is the judicial arm. The executive cannot impose a sentence of any description nor can it attach any conditions to a sentence. Its power in respect of sentences is one of commuting or remitting sentences imposed by a court exercising criminal jurisdiction."

110. If, for example, the Executive decided to commute the entirety of the sentence the review process would simply be inoperable. Walsh J. added that when this form of sentence coupled with a suspension of the same kind had come to the notice of the Court in Woods it did not attract any adverse comments from the Court touching either its validity or its desirability. He considered the judgment in Cahill and distinguished it on the ground that it was a case involving penal servitude rather than imprisonment. The order did not usurp the functions of the President of the High Court since it was clear that the case would come before "the Court", not necessarily the same judge. The appropriateness of a sentence in a particular case was a matter that could be challenged in an appellate court, but the sentence in the case before the Court had not been appealed.

111. Henchy J. delivered a judgment in which he referred to his judgment in Cahill but found it unnecessary to determine whether orders of this nature were invalid as opposed to undesirable. That was because the appellant had relied upon the order for the purpose of getting the balance of the sentence suspended, and had thereby lost the right to challenge its validity. Griffin and Hederman JJ. took the same view. McCarthy J. gave a brief judgment in which he stated that the appellant was not estopped from challenging the validity of the order but (with reference to Woods) that there was no invalidity.

112. None of the judgments refer to McIlhagga, and the status of Cahill does not seem to have been settled.

113. The possible validity of a review procedure was referred to in obiter remarks by O'Flaherty J. in O'Brien v. Governor of Limerick Prison [1997] 2 I.L.R.M. 349. The central issue in that appeal concerned the effect of a part-suspended sentence on a prisoner's right to remission. This Court held that such a sentence could not be reconciled with the then-applicable legislation (the Prisons (Ireland) Act 1907 and the Rules for the Government of Prisons, 1947). O'Flaherty J. commented, however, that it would have been proper for the trial judge to have used the review procedure, stating that the validity of that form of order had been upheld in Aylmer (although in fact only Walsh and McCarthy JJ. had expressly endorsed it).

114. In 1999, in People (DPP) v. Sheedy (unrep., 15^th October 1999) the Court of Criminal Appeal disapproved of the use of the review procedure in the circumstances of the particular case but did not appear to doubt its validity in general. Denham J. said:

"The review structure is a process by which a judge is enabled to individualise a sentence for the particular convicted person. It is a tool by which the judge may include in the sentence the appropriate element of punishment (retribution and deterrence) and yet also include an element of rehabilitation. For example, it may be relevant to a young person or a person who has an addiction or behavioural problem and at least some motivation to overcome that problem, it may well be appropriate as part of a rehabilitation aspect of the sentence to provide for a programme or treatment within the sentence as a whole and then to provide for a review of the process at a determinate time. However this was not such a case. There was no evidence of for example, addiction. There were no factors such as would render it appropriate to invoke a structure of treatment and then to review the sentence."

115. With the exception of McIlhagga, all the above-cited authorities were considered by this Court in People (DPP) v Finn. The only issue actually before the Court in that appeal was whether the Director of Public Prosecutions was out of time in making an application to the Court of Criminal Appeal under s.2 of the Criminal Justice Act 1993, in circumstances where the application was not made until after the trial judge had released the convicted person after receiving evidence on two separate dates in a review process. The power of the judge to fix and conduct a review was not disputed by the Director (and indeed the practice of so doing was widespread in the trial courts of the 1990s).

116. The dispute in the case was as to whether the "sentence", for the purposes of statutory time-limits in relation to appeals, was imposed on the original hearing date or the review date. The Director submitted that it was the latter, because that was when the order of the trial court, disposing of the case, was finalised. A sentence of "imprisonment" was not imposed until the term of the imprisonment was fixed. The trial judge had retained seisin and was still exercising jurisdiction up to that point. The defendant submitted that it was the former date, arguing that a review was a process that took place after the imposition of sentence and was concerned with rehabilitation.

117. On this issue, the Court held that, reading s.2 of the Act of 1993 in conjunction with s.1, the operative date was the date on which the trial judge imposed the custodial sentence and fixed a review date. Keane C.J. (with whose judgment all other members of the Court agreed) observed (at paragraph 45):

"The arguments advanced on behalf of the prosecution necessarily involved the proposition that there were in this case at least two, if not three, sentences imposed by the Central Criminal Court. At the conclusion of a criminal trial, in the event of the jury having returned a verdict of guilty on one or more counts, the trial judge is required to impose sentence on the convicted person. When he has done so, he is, as a general rule, functus officio and he cannot thereafter impose a further sentence: the jurisdiction to substitute another sentence for the sentence actually imposed is exclusively a matter for the appellate court. If the review procedure availed of by the court in this case were to be regarded as the imposition by the trial judge of a different sentence at a later stage, its invalidity would be beyond argument: it is clear from the authorities already cited that, to the extent that such sentences are valid, it is because the trial judge is entitled to reserve to himself a power, when imposing sentence, to consider at a later date whether it should be suspended in whole or in part having regard to the behaviour of the applicant in the interim period. To that extent, and to that extent alone, the trial judge is not functus officio: the order made by him at the review procedure is no more than the carrying into effect of the sentence already imposed by him."

118. However, at the request of the Director, Keane C.J. went on to analyse the existing authorities in relation to the power of a trial court to impose a sentence with a review at a later date. This exercise was undertaken in view of the uncertainty in the authorities and the necessity to give some clear guidance to trial judges, although expressly obiter. He accepted that the review was an important mechanism that helped to ensure the rehabilitation of convicted persons, and that it had been adopted for good reasons. There were, however, two important aspects of such sentences that had to be borne in mind. First, there was the factor identified by Henchy J. in Cahill - a sentence in this form was, in effect, "an invasion by the judicial arm of government of the executive domain" which was not authorised by law.

119. Importantly, it was accepted by the Court that the trial judge was not interfering with the statutory power of the Minister to commute or remit the sentence. The "essential legal frailty" of the procedure was not that it deprived the executive of that power. Rather, it lay in the fact that if a court decided, on the review date, to suspend the balance of a sentence and release the convicted person it was "in substance, exercising the power of commutation or remission of sentence which the Oireachtas has entrusted exclusively to the government or the Minister for Justice to whom the power may be delegated." (Emphasis added). The substance of the order made on the review date was that it released the convicted person "before the completion of the sentence which the judicial arm of government had considered appropriate at the sentencing stage". It must, accordingly, be regarded as "in all but name, the exercise by the court of the power of commutation or remission which, during the currency of the sentence imposed by the court, is vested exclusively in the executive". Thus, the making of such orders was not merely inconsistent with the statutory powers of the Minister but offended against the constitutional separation of powers mandated in this regard by Article 13.6.

120. Keane C.J. noted that in State (O.) v O'Brien [1973] I.R. 50 the Court had held that the determination of the length of a sentence was a judicial function. However, once it was vested by the Constitution in an executive organ, the remission power, despite its essentially judicial nature, could not be exercised by the courts without further legislative intervention. He concluded by stating that the Court was satisfied that sentences in this form were undesirable and that the practice of imposing them should be discontinued.

121. It should be noted, however, that the obiter nature of the Court's observations was again emphasised.

"66. They are not to be taken as impugning the validity of such sentences imposed by trial judges in cases which have already come before the courts, either because of the incorporation of review provisions or the manner in which such review provisions have been implemented or not implemented or the manner in which they may be implemented or not implemented in the future. That also applies to the sentence imposed by the trial judge in the present case and the manner in which he operated the review procedure on two subsequent occasions.

67. It must also be borne in mind that, given the clear disapproval of sentences in this form voiced by the Court of Criminal Appeal in 1979, it would have been open to a convicted person to challenge the validity of such sentences either by way of appeal to the Court of Criminal Appeal, or, in the case of the Circuit Court, in judicial review proceedings. That of itself might render challenges now brought to the validity of such sentences, or the manner in which the review clauses were implemented or not, unsustainable."

122. It seems clear that the practice of imposing sentences with court reviews ceased after the Finn judgment, as far as adults were concerned. However, the Attorney General submits that the reasoning in Finn may require further consideration. He sees the key finding of the Court as being that an order of release on review meant release before the completion of a sentence imposed by the judicial arm. He submits that if the trial judge has retained seisin of the matter, then a later order on review does not involve that judge crossing over from a sentencing role into exercising a power of commutation reserved to the executive. Rather, the judge is giving effect to the sentence that they had considered to be appropriate at the time of sentencing.

123. It is necessary, at this point, to consider the separate line of authority concerning reviews in cases involving children. These appear to arise solely in the context of murder cases, commencing with State (O.) v O'Brien [1973] I.R. 50. O. was convicted of murder in 1956, when he was 16 years old. As noted in paragraph 28 above, the death penalty prescribed by s.1 of the Offences Against the Person Act 1861 was still in force for murder (albeit not usually implemented in practice) but s.103 (combined with s.133) of the Children Act 1908 specifically exempted from that penalty children and "young persons" who were found guilty of murder. In lieu of such sentence, the trial court was required to order that the accused be detained indefinitely, in such place and under such conditions as the Chief Secretary might direct, during the pleasure of the Lord Lieutenant of Ireland. Under s.105 of the Children Act the person could be released on licence at any stage.

124. The trial court ordered that O. be detained "until the pleasure of the Government be made known". He was certified insane a year later and was detained in the Central Mental Hospital until 1969 when he brought a habeas corpus application to the High Court. There he argued successfully that the power to select punishment was an integral part of the administration of justice in criminal cases, and that it was inconsistent with the Constitution to vest in the executive the power to determine the length of his sentence.

125. In the meantime, the Criminal Justice Act 1964 had restricted the death penalty to cases of capital murder and otherwise provided for a mandatory life sentence, but it did not amend the Children Act 1908.

126. The respondent's appeal to this Court was dismissed. Ó Dálaigh C.J. considered that the use of the word "during" in the section meant that it had been for the Lord Lieutenant to determine "actively and positively" the duration of the sentence and not just to effect an act of remission. The determination of the length of a sentence for a criminal offence was essentially a judicial function. It was unobjectionable under English law to confer judicial powers on the executive but under the Irish constitution the judicial power had been vested in the courts. Ó Dálaigh C.J. concluded, therefore, that the courts were now the repository of the powers heretofore vested in the Lord Lieutenant. The form of the order made in respect of O. was wrong, but the section survived as "an operable provision which authorises the court to determine the length of the child's or young person's sentence". (Emphasis added.) He considered that it would be possible to return O. to the Central Criminal Court for correction of the order but declined to do so in view of the length of time he had been in custody.

127. Walsh J. (with whom Budd J. agreed) took the view that the power to commute and remit sentences was judicial in nature, in the same way as the selection of punishment. This view derived from his analysis of the history of the monarch's powers as "the fountain of justice", a feature of the common law not consistent with the Constitution. Although the power had been conferred by Article 13.6 of the Constitution on the President (acting on the advice of the government), that did not alter its essentially judicial nature and did not otherwise expand the powers of the executive into the judicial sphere. Accordingly, the power of the Lord Lieutenant under s.103 of the Act of 1908 to determine the duration of a sentence had not been carried over. The section should now be read as if it referred to the Minister for Justice as being responsible for detaining the young person, but the power was that of the court.

"The effect of that wording is to give the court power to order detention for an indeterminate period which, during its currency, may be remitted by virtue of the provisions of Article 13, s 6, of the Constitution and the consequential statutory provisions enacted by the Oireachtas. It also means, however, that the sentence may be brought to an end at any time by the court because, in effect, it would be a sentence to be detained during the pleasure of the court. That would certainly be consonant with the original spirit of this statutory provision which was one enacted in ease of young persons and juveniles; the matter might be reviewed from time to time by the court concerned (though not necessarily the same judge) to enable the court to decide whether the time had come when the particular young person or juvenile might be properly released and discharged from the place of detention in which he was being confined."

128. Walsh J. rejected a submission to the effect that all sentences should be for determinate periods. There was nothing in the Constitution to support that proposition. While it might be very desirable in most cases, there were some where the matter was better left to the discretion of the court. Cases involving young people were seen as "eminently suitable" for that category.

129. Fitzgerald J. simply stated that he agreed that the appeal should be dismissed.

130. McLoughlin J. dissented, seeing the section as permitting the exercise of the prerogative or power of mercy. In his view that was executive in nature rather than judicial.

131. Accordingly, it appears that thereafter children convicted of murder were dealt with under s.103 as interpreted by the majority in State (O.) v O'Brien.

132. The whole of the Children Act 1908 was repealed by virtue of s.5 of the Children Act 2001. As noted above the Act of 2001 came into force in stages and it was not until the 23^rd July 2007 that it came fully into operation (S.I. 524/2007). Section 103 of the Act of 1908 was one of the provisions that remained in force until that point.

133. In 2004 the Central Criminal Court imposed a life sentence on a juvenile (D.G.) and fixed a review date after 10 years. The accused had, at the age of 15, murdered a younger boy. He later said that he had wanted to kill his father and would have done so if he had not killed the other boy instead. In his appeal against sentence, both parties argued that he should have been given a determinate sentence. It was said on his behalf that that such a sentence would have given him "a light at the end of the tunnel". The Director of Public Prosecutions submitted that the imposition of a sentence with a review date was not "good sentencing policy" and was not one that in principle should be applied by the Courts. However, both parties accepted (by reference to State (O) v O'Brien) that the trial judge was entitled to impose such a sentence.

134. The Court of Criminal Appeal upheld the sentence (see [2005] IECCA 75). For present purposes the key passages in the judgment (delivered by Murray C.J.) are these:

"In particular the trial judge concluded, which he was clearly entitled to do on the evidence then before him, that the appellant was a continuing danger to society and in particular a danger to his father.

On the other hand the trial judge had to take into account, as he clearly did, that the appellant himself was 15 years of age when he committed this offence. Whatever about his psychiatric health he clearly has dysfunctional traits to his personality. A person of that age is by definition immature, being a significant number of years from adulthood...

Children or very young offenders convicted of serious offences which would normally involve lengthy custodial sentences must be considered as falling into a special category insofar as there is a special onus on the Court to have regard to their rehabilitation and welfare for the future because of their young age at the time and the reasons outlined above. In one sense counsel for the appellant is correct that there should be "a light at the end of the tunnel" for the appellant. However, in the Court's view the learned trial judge provided for this in determining that the sentence imposed should be reviewed by the Court in the year 2014, ten years after he had been taken into custody in connection with the offence. For young persons like the appellant who fall into the special category referred to above the provision for a later review of the sentence imposed may be appropriate when it is inappropriate for other categories of cases. Moreover, the imposition of a sentence, in this instance a life sentence, subject to a review by the Court, does not in any way impinge on the autonomous power of the Executive to exercise clemency or to provide for special or early release pursuant to statutory powers as and when the relevant authorities deem appropriate." (Emphasis added.)

135. There is no reference in the judgment to Finn. However, it is highly unlikely that the Court was unaware of it. It has to be emphasised that s.103 of the Children Act 1908 was still in force, and had been held as recently as 1998 to govern the position of children convicted of murder. The State (O) v. O'Brien was therefore still the relevant authority in that context. The judgment also cites with approval the ruling of the Court of Criminal Appeal in upholding the analysis by O'Donovan J. in People (DPP) v V.W.

136. To repeat, the Act of 1908 has been repealed in its entirety and there is no provision in the Children Act 2001 as amended that is equivalent to s.103 of the repealed Act. It is common case amongst the parties in the appeal that there is no other possible statutory basis for a power of review. The continuing relevance of the line of authority from State (O) v O'Brien must therefore be open to question. However, it is clear that a number of recent cases have proceeded in the Court of Appeal on the basis that the jurisdiction continues to exist at least so far as child offenders are concerned.

137. In Director of Public Prosecutions v M.S. [2020] IECA 178 the trial judge had imposed a sentence of 11 years with a review after five, for the offence of attempted murder committed by a 15-year-old. The Court of Appeal commented:

"We see merit in the review mechanism. The existence of a review date means that there is a target date for the young respondent to work towards. On that review date, there will be a number of options open to the judge conducting the review. One possibility is that the review might not result in the release of the respondent. Another possibility is that the judge might decide to suspend the balance of the sentence then unserved, either from that point, or from some date in the future. The option would also be available to the judge to provide that the balance of the sentence would be suspended for a period in excess of the sentence remaining to be served, so, by way of example, if there was to be a review at a time when two years of the sentence was unserved, the judge might decide to suspend the balance of the sentence, either from that day, or, perhaps, from a date six months later, and to stipulate that the sentence would be suspended for a period of, say four or five years, on condition that he would specify including that the respondent be of good behaviour during any remaining period custody and for the specified period post-release...

...Having considered the matter, it seems to us that a review offers the best prospects of a managed, supervised and guided reintroduction to society. Clearly, this is a difficult case and there are no easy solutions. No outcome is entirely straightforward, but it seems to us that making provision for a review is the least worst option." (Emphasis added.)

138. The Court noted that the trial judge had been given to understand that there was a power to review the sentence because he was dealing with a child - this, in the Court's view, was correct in the light of the judgment of People (DPP) v D.G. The parties and the Court do not seem to have adverted to the possibility that the repeal of s.103 of the Children Act 1908 might have changed the position.

139. Notably, the judgment in M.S. does not refer to the decision in People (DPP) v A.S. ([2017] IECA 310, considered below) where another panel of the Court of Appeal had held that there was no power to suspend a sentence imposed on a child.

140. In PB (the companion case to this appeal) the Court of Appeal held that the imposition of a life sentence with a review date reflected the sentencing principles set out in s. 96 of the Children Act 2001 (which requires the court to have due regard to the child's best interests, the interests of the victim and the protection of society).

Suspended and partly suspended sentences

141. It is clear that the Irish courts have exercised a power to suspend sentences since at least the early 20^th century (see "A Sword of Damocles Guaranteed Irish", Irish Jurist 1982, by Professor Osborough). The status of the suspended sentence in Irish law was confirmed by this Court in McIlhagga (see paragraphs 98-104 above). It is also clear that this practice was used on occasion in cases involving young offenders although practical considerations involving the relevant age bands and minimum periods of detention made such cases rare.

142. Section 99 of the Criminal Justice Act 2006 prescribes a comprehensive code in respect of suspended sentences of imprisonment, but it is also clear that it does not apply to sentences of detention in a children detention school.

143. In People (Director of Public Prosecutions) v. A.S. [2017] IECA 310 the Court of Appeal held that there was no power to suspend a sentence of detention on a child other than in the circumstances provided for in s.144 of the Children Act. It should perhaps be noted that the issue in A.S. arose in a consultative case stated where a trial judge wished to know whether he had the power to activate the balance of a partly suspended sentence imposed on a child who had, by the time the issue arose, reached the age of 18. The original order suspending the sentence purported to have been made by reference to s.99 of the Act of 2006, and the procedure under s.144 of the Children Act had not been deployed. It may be for that reason that the judgment does not refer to the question of what options, in the absence of a power to suspend, might be available to a trial judge dealing with the different context of a review of a custodial sentence imposed on a child.

144. The Director of Public Prosecutions argued that the power to suspend could be implied from the provisions of the Children Act 2001, on the basis that the policy of the Act was that custodial detention was only to be imposed as a measure of last resort. The accused accepted that there had been a power to suspend such a sentence at common law. He argued, however, that, given the very wide range of non-custodial options set out in the Act (many of which did not greatly differ from the conditions that might have been set in a conventional suspended sentence), the absence of express provision for suspension had to be regarded as a deliberate policy choice.

145. The Court agreed with the view that the absence from that legislation of any express provision on the matter must have been a deliberate and conscious policy choice. The entire scheme of the Act was considered, and found to have been intended to "completely replace the pre-existing and outdated law" including any residual common law powers with "a new and hopefully coherent and comprehensive statutory framework" in respect of the sentencing of children. Accordingly, the Court held that while the common law power to suspend a sentence of detention (the existence of which it did not doubt), could conceivably have survived the enactment of s.99 of the Criminal Justice Act 2006, it did not survive the enactment of the Children Act 2001.

146. None of the parties in this appeal have argued that A.S. was wrong. The Attorney General expressly reserves his position on this aspect. However, the position taken by the parties in this appeal cannot affect the consideration of the issue by this Court, given its centrality to the discussions of the review mechanism and other options available to the trial courts in sentencing children.

147. Assuming, therefore, that a review could be possible, a question arises as to what orders could be made by a judge conducting the review. The appellant says that the options are to adjourn for further review, release or continue the detention. Similarly, the Attorney General says that the options are to release or continue the custodial regime. The Director says that the options are not readily discernible, but that the Parole Act 2019 provides for an appropriate review mechanism.

Life sentences for children in other jurisdictions

148. The appellant refers to a report in 2015 by the Child Rights International Network on life sentences for children in the European Union. As of that date 22 out of 27 member states had abolished such sentences, while in others it had ceased as a matter of practice. In States where a life sentence is prohibited in cases involving imprisonment, many provide for maximum sentences that depend on the age of the child at the time of the offence.

149. The Attorney General comments that these figures may simply reflect the differences in penological approaches between civil law and common law jurisdictions. He submits that the availability of a life sentence in the case of a child does not breach either European Union Law or the European Convention on Human Rights. He further submits that while there may in some jurisdictions be a trend away from the imposition of life sentences on children, the most striking feature is the fact that in each jurisdiction such a sentence remains permissible in principle in at least some circumstances. In general, the Director says that the discussion of cases from other jurisdictions does not assist.

150. The appellant has also provided some information in relation to other common law jurisdictions. In England and Wales, a mandatory life sentence is imposed for murder for children as well as adults. A tariff period, to be set according to the age of the child, establishes the minimum period that must be served in an individual's case.

151. In Canada the issue is governed by statute, which sets a maximum sentence for murder of six years in custody plus four years community supervision. However, the Attorney General may apply in a particular case for an order that a young person be sentenced as an adult.

152. The Court of Appeal in New Zealand considered the propriety of a life sentence imposed on a child in the recent case of Dickey v R. [2023] NZCA 2, a judgment that deserves detailed attention.

153. The appeal in Dickey concerned three teenagers, each of whom had been convicted of murder. Each had been sentenced to life imprisonment with a minimum period of 10 years to be served. Under the relevant legislation, a life sentence was mandatory in murder cases unless the circumstances of the case made such a sentence "manifestly unjust", a term interpreted in that jurisdiction as conveying exceptionality but not necessarily rarity. In a case where a life sentence was imposed, the sentencing court was required by law to set a minimum term of imprisonment to be served of not less than 10 years. In each case, the Court of Appeal found that the life sentence was indeed manifestly unjust, and it substituted a determinate term with a significantly shorter minimum period to be served.

154. It is of some significance that in reaching this conclusion the Court was at pains to say that it could not create a special regime for sentencing children who committed murder, since the legislature had not created such a category. However, it paid detailed consideration to expert reports furnished to it concerning the neurological differences between adolescents (14 - 18-year-olds), "emerging adults" (18 - 25-year-olds) and adults, as well as reports specifically focussed on the individual appellants. The Court accepted, amongst other matters, that lengthy sentences imposed on young offenders damaged their psychological well-being and increased the risk of recidivism. Nonetheless, its view was that where a life had been taken without justification a short sentence could not be appropriate.

155. The Court also accepted that adolescent behaviour reflected the slower pace of development of those parts of the brain that control higher-order executive functioning, such as impulse control, risk assessment and planning ability and that young people behaved and reacted differently from adults due to biological rather than behavioural or personality factors; that neurological development may not be complete until the age of 25; that young persons who committed serious offences frequently exhibited other characteristics which also tended to mitigate culpability, notably intellectual deficits, mental illness and experiences of abuse or other childhood trauma; and that young people were more receptive to treatment and therefore had better prospects of rehabilitation than adult offenders, who might find it more difficult to alter entrenched behaviours.

156. The Court noted that offenders who committed crimes when aged under 25 were, as a matter of fact, rarely denied parole. However, its key finding was that a life sentence could be manifestly unjust for a young person due to a combination of the indeterminacy of the sentence, the length of the minimum term of 10 years and the life-long consequences of being subject to recall to prison. In those circumstances, and having regard to the role played in the offences by each of the three appellants, their age at the time and the relevant personal circumstances, it quashed the life sentences and minimum periods of imprisonment. In substitution, it imposed sentences of, respectively, 15 years with a minimum period to be served of seven and a half years, 12 years with a minimum period of six years and 13 years with a minimum period of seven years.

157. Expert evidence on scientific studies of the adolescent brain was also accepted by the United States Supreme Court when it banned sentences of life without parole, firstly for children convicted of nonhomicide offences (Graham v Florida 560 U.S. 48) and then later in homicide cases (Miller v Alabama 567 U.S. 460).

158. The Attorney General accepts that "at a high level of generality" it may be correct to say, as did the court in Dickey, that lengthy sentences imposed on young offenders damage their psychological wellbeing and increase the risk of recidivism. The general statement that such sentences are "considerably more difficult" for children is not seen as controversial by either the Attorney General or the Director. However, they both emphasise the fact that in Dickey the Court was acting on the basis of the expert evidence put before it, while there is no such evidence in the instant case. The Attorney General says that this Court should exercise caution in acting on the evidential conclusions of a foreign court.

159. The Director submits that the specific New Zealand statutory framework, with its threshold of "manifest injustice", differs from the jurisprudence in this State. However, she also submits that the Court's analysis of the appropriate way to assess "manifest injustice" mirrors the ordinary principles of sentencing in this jurisdiction and the sentencing process in fact undertaken by the trial judge in this case. The starting point is the gravity of the offence and the culpability of the offender, followed by personal aggravating and mitigating factors.

DISCUSSION AND CONCLUSIONS

160. The sentencing of a child for a serious offence is always a difficult task. When the offence is murder, the gravest crime in our criminal code, the task becomes exceptionally difficult. The taking of a human life is a profoundly grave matter. The State is obliged to protect the right to life, to investigate murders and to bring murderers to justice. In the case of a child murderer, however, there is also an obligation to take due account of the reasons why children are given particular protection within the legal system.

161. It is essential, in this context, that trial judges should have clarity as to the options available to them. The questions that must be answered are the following: a) can a sentencing court reserve to itself a future power to modify a sentence by way of the review procedure; b) can a sentencing court suspend or part-suspend a custodial sentence imposed on a child; and c) can a life sentence be imposed on a child.

Reviews

162. There is no doubt that sentencing courts in the era before Finn found the review process to be useful in certain types of case. As outlined by Denham J. in People (DPP) v Sheedy, it was a very practical way of dealing with offenders attempting to deal with addiction issues, providing them with relatively short-term, tangible goals and a greater degree of incentive to change their behaviour than the ordinary remission of sentence could provide. Keane C.J. acknowledged the validity of those considerations in the following passage taken from his concluding remarks in Finn:

"In those circumstances, it appears to us that Thomas O'Malley, the author quoted above, is correct when he says in his book Sentencing Law and Practice (Dublin, 2000), at para 9-59, that:-

"In developing the part suspended and reviewable sentences, judges had very honourable motives. They were endeavouring, in many cases, to counteract the 'revolving door syndrome' by ordering that certain offenders should remain in prison for a minimum period of time. The public would thus have a greater measure of protection and the offender might hopefully be able to get some treatment for drug addiction, aggressive tendencies or some similar problem."

It now appears extremely desirable, to say the least, that the question of remission of sentence, and any review which is to precede it, should be placed on a clear and transparent basis. The Law Reform Commission in their Report on Sentencing (LRC 53 of 1996) reviewed a number of options in this regard. This is not a matter within the competence of this court. It is clearly for the Oireachtas to decide whether to retain the present system unaltered, to retain it on a clearer and more transparent basis, to devolve the function wholly or partly to a parole board or some other entity, or indeed to confer it on the courts. But as the law presently stands the courts cannot exercise this function in individual cases by reason of the separation of powers mandated in this regard by Article 13 of the Constitution. Nor can they prescribe or advocate an alternative system because that is in the remit of the legislature."

163. Turning, as it does, on high-level constitutional principles concerning the separation of powers, the analysis of Keane C.J. is as applicable in cases concerning children as it is in cases dealing with adults. The issue is not the appropriateness of the procedure for different categories of offender. The reason that the children cases took a different path, at least up as far as D.G., was because there was indeed an applicable statute that was interpreted as conferring on the courts the jurisdiction to determine the length of an individual sentence either by imposing a determinate sentence on a child or, in the case of an indeterminate sentence, by bringing it before the court for review from time to time. The statutory provision in question, s.103 of the Children Act 1908, was given renewed effectiveness in 1990 when it was made applicable to cases where an adult would be subject to a mandatory life sentence - that is, in murder cases. The legislature may therefore be seen as having adopted the interpretation applied by the courts at that time.

164. It is true that the review process was seen, for good reasons, as particularly appropriate for young people, but that fact on its own would not have justified the creation of such a jurisdiction without some legal source. Section 103 of the Children Act 1908 has gone, and there is no other statutory provision that could take its place for this purpose. The Article 13.6 question must, therefore, be addressed.

165. The key part of the Finn analysis was the finding that, while the review procedure did not impede the exercise by the executive of its power of commutation and remission under Article 13.6, its "essential frailty" lay in the fact that if a court decided, on the review date, to suspend the balance of a sentence and release the convicted person it was "in substance, exercising the power of commutation or remission of sentence which the Oireachtas has entrusted exclusively to the government or the Minister for Justice to whom the power may be delegated." The substance of the order made on the review date was that it released the convicted person "before the completion of the sentence which the judicial arm of government had considered appropriate at the sentencing stage". The Court saw it, accordingly, as "in all but name, the exercise by the court of the power of commutation or remission which, during the currency of the sentence imposed by the court, is vested exclusively in the executive".

166. To repeat, the Attorney General sees the problem identified by the Court as being that an order of release on review meant release before the completion of a sentence imposed by the judicial arm. He submits that if the trial judge has retained seisin of the matter, then a later order on review does not involve that judge crossing over from a sentencing role into exercising a power of commutation reserved to the executive. Rather, the judge is giving effect to the sentence that they had considered to be appropriate at the time of sentencing.

167. The problem raised by this submission is, firstly, that it was considered by the Court in Finn. The ratio of the decision concerning the relevant date for the purposes of the time limit in question relied on precisely this analysis - but that was on the assumption that the trial judge had the power to review. There is also a question as to what it means to "retain seisin" in this context. It is the task of a sentencing judge to impose a sentence, and in principle the judge is functus officii when that has been done, as the Court noted in McIlhagga and, indeed, in Finn. (Apart from anything else, that principle is the reason why there is an entirely separate body of jurisprudence concerning the power of a judge to alter an order, including a sentence, while the matter is still "in the breast of the court".) The sentence cannot be altered thereafter unless it is either replaced by an appellate court or is commuted or remitted by the executive.

168. To put the matter in simple terms, the judge has either passed sentence or has not. If the sentence has not been passed, neither party has the right to invoke the appellate process and there is no sentence that can be commuted or remitted. If, in accordance with the Finn analysis, a sentence has indeed been imposed and the person concerned is serving it, from where could the sentencing judge derive a power to order their release? That is the point at which the Article 13.6 issue arises - such an order would amount to the exercise of a power to remit or commute that has not been conferred on the courts.

169. None of this is to be taken as deciding that the legislature could not confer a power on the courts to conduct a process of this nature, in accordance with the terms of Article 13.6. It is not necessary to determine here the constitutionally permissible extent, if any, of such a power - for present purposes, it is sufficient to say that it is not available in a case of this nature.

170. I conclude, therefore, that the qualms felt by the trial judge in this case were correct and that he did not have power to order a review date.

Suspended sentences

171. There is no doubt about the existence of a power to impose a suspended sentence of imprisonment, now the subject of legislative prescription under s.99 of the Criminal Justice Act 2006. The issue before the Court concerns the availability of a suspensory mechanism in relation to sentences of detention. In A.S., the Court of Appeal concluded that the Children Act 2001 was a comprehensive code for sentencing children, and that therefore the common law power to suspend a sentence of detention had been in effect extinguished other than as provided for in s.144.

172. I would agree with the judgment in A.S. to the extent that it is implicit in the terms of s.144 that it would not be of assistance in a case such as this. That is because it is predicated upon a deferral of sentence, and the accused must, during the deferred period, be under the supervision of the probation and welfare service. They must, therefore, be on bail, and the objective is to prove that they can live a law-abiding life in the community. In a case such as murder, where there must, in all but the most exceptional cases, be a significant custodial sentence, that procedure would not be appropriate from any point of view. It seems to me that the s.144 procedure is best utilised, therefore, in cases where the court considers that a relatively short period of detention would be appropriate but is prepared, for good reason, to allow the child an opportunity to show that a non-custodial option (including, where appropriate, a suspended sentence) would be sufficient. The possibility of success is enhanced by the obligation imposed on the judge to explain matters clearly to the child and by the necessity to direct probation supervision during the period of deferral.

173. However, I do not consider that the inappropriateness of the specific procedure set out in s.144 necessarily disposes of the issue.

174. I think it may be helpful to look more closely at the distinctions between detention and imprisonment. At first glance, it might appear that there is a bright-line separation. Certainly, a child cannot be sentenced to imprisonment and an adult cannot be sent to a children detention school. But there are a number of situations in which the distinction blurs significantly. A person on whom a sentence of detention has been imposed can end up serving some or all of that sentence in prison (including a place of detention provided by the Minister under s.2 of the Prisons Act, such as Shelton Abbey or Loughan House). Where that happens, the person will be a "prisoner", to be treated as such in accordance with the Prison Acts and Rules.

175. Firstly, if a determinate sentence of detention will not expire until after the person has reached 18, then the period remaining after their 18^th birthday (plus up to six months where provided for) will be served in prison. Secondly, s.144 envisages the possibility that the period during which sentence is deferred will include the date on which the person turns 18. It provides for the resumed hearing to proceed notwithstanding that fact, and further provides that any custodial sentence will be detention. In those circumstances any sentence of detention would be served in prison from the start. Thirdly, s.144 permits the suspension of a sentence of detention. If a person who has received such a sentence reoffends and the sentence is activated, it may, again, be served (in whole or in part, depending on the person's age and the length of the sentence) in prison. Finally, there are cases such as the one now before the Court where the child has been sentenced to life imprisonment.

176. In each of these cases, the committal warrant may use the word "detention" rather than "imprisonment" but that will make no difference at all to the legal regime to which the person will be subject after reaching the age of 18. To all intents and purposes, they are serving a sentence of imprisonment at that stage. If they are sent to a place of detention provided under s.2 of the Prisons Act 1970, they are expressly deemed to be serving a sentence of imprisonment, in a place that comes within the definition of a prison. Even the Parole Act 2019 assimilates a life sentence that commenced with an order of detention into the term "imprisonment". If the effect of the Children Act 2001 is that, say, a lengthy determinate sentence that commences as detention can have no suspensory element, it would be capable of producing gravely anomalous and irrational distinctions between offenders serving their sentence in prison.

177. It seems to me that some consideration must also be given to the significance of the words of s.98 of the Children Act 2001. It opens with the words "Where a court is satisfied of the guilt of a child charged with an offence it may, without prejudice to its general powers...". The potential disposals that are then listed are, for the most part, new. The procedure set out in s.144 is certainly new. Even the term "detention" is arguably new, since it means detention in a child detention school and an institution of that nature is new. It should, however, be borne in mind that at one stage the word "detention" was being used to cover custody in quite different institutions - the industrial schools for children under 12, the reformatories for 12 to 16-year-olds, the Borstal and, after the abolition of the Borstal regime, St. Patrick's Institution. In the kind of case now being considered, the sentence of detention will in large part be served in a prison.

178. It should also be borne in mind that prior to the Children Act 2001 there was very little likelihood that a child serving a custodial sentence would reach the age-limit for detention before the expiry of the sentence. Someone sent to a reformatory could not be given a sentence that would take them past their nineteenth birthday. An offender over 17 would be sent to St Patrick's only on the basis of the trial judge's assessment of their character and if a lengthy sentence was considered appropriate it was not likely that they would be considered suitable. If sent to St. Patrick's, they could be transferred to prison by order of the Minister. Children detained under s.103 of the Children Act 1908 were not, as such, serving a sentence of either detention or imprisonment but could be detained wherever the executive thought appropriate. (I note here that in State (O) v. O'Brien the Chief Justice commented that the average length of detention in such cases was about six years.)

179. Among the many significant innovations in the Children Act 2001 was the abolition of the reformatories and ultimately the closure of St. Patrick's. The Children Court now deals with child offenders up to the age of 18 (and, as will have been seen above, on occasion with persons over the age of 18.) This makes it more likely that the Court will be dealing with young offenders close to the age of 18 who have committed quite serious offences, and who are likely to receive custodial sentences that will not expire until they are over that age. Combined with the repeal of s.103, this meant that it was necessary to provide a statutory mechanism for the automatic transfer of young people serving lengthy sentences from a children detention school into the prison system. The transfer is the result of attaining a particular age, and not the result of any behaviour of the offender. The offender will, as noted above, be a "prisoner" and be deemed for all relevant purposes, other than the historical record of the court that imposed sentence, to be serving a term of imprisonment thereafter.

180. The question, then, is whether a sentencing court might have, as part of its "general powers", a power to suspend part of a sentence imposed on a child where the age of the child and the length of the sentence mean that it will not expire until after they enter the prison system.

181. The phrase "without prejudice to its general powers" is not to be found in s.99 of the Criminal Justice Act 2006, which certainly did extinguish the common law in relation to sentences of imprisonment. But that Act, after the deletion of the reference to St. Patrick's consequential to the closure of that Institution, said nothing about detention. What the Act of 2001 did, in my view, was to introduce a range of new procedures and potential orders but without prejudice to existing powers. It seems to me that the power to part-suspend a sentence arguably came within the term "general powers".

182. Finally, there is the effect of the recent statutory provision concerning the powers of the Court of Appeal in sentence cases. As already described, the amendments to s.3 of the Criminal Procedure Act 1993 effected by ss.61 and 62 of the Criminal Justice (Miscellaneous Provisions) Act 2023 expressly confer jurisdiction on the Court to deal with a person who has "aged out" during the court process. In effect, such a person is dealt with in the Court of Appeal as an adult (albeit one who committed the relevant offence when a child). If the Court quashes the original sentence any new custodial sentence will be one of imprisonment. There is certainly nothing to prevent the Court from suspending such a sentence in whole or in part, and it would seem anomalous to interpret the two Acts as meaning that the appellate court would have a power not available to the sentencing court imposing an equivalent sentence of detention.

183. I would hold, therefore, that where a court contemplates imposing a sentence of detention, the length of which means that some part of it will inevitably be served in prison, it may if it thinks fit suspend part of that period which is composed of imprisonment in accordance with s.99 of the Criminal Justice Act 2006.

Children and life sentences

184. I said above that the protection of the status of childhood requires the courts to take account of the reasons for that protected status - the vulnerability of children, their lesser culpability for criminal behaviour, the societal interest in assisting their development and the greater prospect of rehabilitation. Those factors are, and have always been seen as being, of particular importance in the selection of punishment for children and must be given appropriate significance.

185. I would lay particular emphasis on the lesser culpability of children. The Scottish Sentencing Council's guideline for sentencing young people (published in 2023) is based on an "umbrella" review of over 300 scientific studies, from around the world, on the development of the human brain. While the science itself, and the manner in which different parts of the human brain develop, might require to be the subject of expert evidence in an individual case, the basic findings of the review come as no surprise and could simply be seen as confirmation of everyday experience. It seems to me that in principle the expert evidence received by the Court of Appeal of New Zealand in Dickey is, broadly, to the same effect. Children are generally less able to exercise good judgment than adults, are more vulnerable to negative influences like peer pressure or exploitation by others, may be less able to think about the consequences of their actions and may take more risks.

186. I would also emphasise the significance of a child's greater amenability to rehabilitation. Rehabilitation is not the sole objective of a custodial sentence, but it is highly significant in cases involving children because they are still in the process of development towards mature adulthood. Society has an important interest in that development being successful.

187. In general, I would hold that the lesser culpability of a child means, in principle, that it will often be appropriate to impose a shorter, or even a significantly shorter, sentence on a child than the sentence that might be appropriate or even mandatory in the case of an adult. It is not desirable to lay down a general, binding proposition to the effect that this should always be the case - individual crimes will vary greatly in gravity and individual offenders will vary in culpability. It is not possible for the Court to go so far as to say that a life sentence should never be imposed on a child. As with the Court of Appeal in Dickey, it is not open to us to create an entirely new sentencing regime for children. However, the courts have to be cognisant of the damage, including damage to the prospects for rehabilitation, that a sentence of indefinite duration may do to a child. It will undoubtedly cause greater distress and confusion to a child than it would to an adult. They are also less able to cope with the uncertainty inherent in an indeterminate sentence, and to plan for a future that may quite literally be the equivalent of their lifetime away.

188. In my view, a life sentence should be imposed on a child only in exceptional cases where the evidence shows that the child's intentions and actions can fairly be equated with those of an adult. If there is evidence of premeditation such as the use of a weapon carried for the purpose of killing, or deliberate luring of the victim to the murder scene, or exploitation of the known physical or psychological vulnerability of the victim, or evidence of planned efforts to conceal guilt, or of an intention to inflict sexual violence or particularly brutal physical violence, such evidence may demonstrate adult levels of planning and foresight of consequences. It can be contrasted with evidence demonstrating that the death was caused by an impulsive, angry lashing out by a child.

189. In cases where a life sentence is found to be justified, the offender can have recourse to the process prescribed by the Parole Act 2019. I should say, however, that I have serious doubts about the fact that the Act sets the same eligibility threshold (12 years) for persons who offended in childhood as for adult offenders. It seems to me to be arguable that this apparent equality does not give sufficient recognition to the status of childhood, to the reasons for that status and to the principles in respect of sentencing children. I consider that this aspect should be the subject of urgent reconsideration by the legislature. It is also, in my view, necessary for consideration to be given to the power of the Minister to extend the parole process to children serving lengthy determinate sentences.

190. I should say, in this context, that I find it difficult to see that it could be correct to suspend a life sentence either in whole or in part. One reason is that such a sentence does not appear to be contemplated by s.99 of the Criminal Justice Act 2006, which requires consecutive sentences to be imposed where a person reoffends while subject to a suspended sentence. (The section does envisage disapplication of that requirement where the subsequent sentence is one of life imprisonment.) This, of course, was not an issue for the Court of Criminal Appeal in DG.

191. Other than in the exceptional cases meriting a life sentence, I would see the most appropriate form of sentence for a child convicted of murder as being a determinate sentence with a part-suspended element. The length of the custodial element should be tailored to reflect the age of the child at the time of the offence. As noted above, it may in principle be significantly shorter than the period which an adult might be expected to serve but that will, of course, depend on the facts of the case.

Conclusion

192. In summary, I have reached the following conclusions.

193. A sentencing court does not have jurisdiction to reserve for itself a power to review a sentence. The power under the Children Act 1908 to review the detention of a child convicted of murder no longer exists.

194. Where a determinate sentence imposed on a child is of a length that will necessarily mean that some or all of it will be served in prison, there is no objection to suspending some part of it. Since the applicable custodial regime in respect of the suspended part will be imprisonment, the procedure under s.99 of the Criminal Justice Act 2006 should be used for that part, and not s.144 of the Children Act 2001.

195. A life sentence is not mandatory in the case of a child convicted of murder. It should be imposed only in those exceptional cases where the intentions and actions of the child resembled those of an adult, as where it is shown that there was premeditation, or planning including planned efforts to conceal guilt, or deliberate luring or exploitation of the victim, or sexual violence or gratuitous brutality.

Proposed Order

196. I would allow the appellant's appeal in relation to the applicability of s.93 of the Children Act 2001. Accordingly, it should follow that the Court should in that regard make a declaration that the terms of the section apply to the appellant in this case in respect of the proceedings before the Central Criminal Court, the Court of Appeal and this Court notwithstanding the fact that he reached the age of majority during the currency of those proceedings.

197. The trial judge imposed a life sentence, with a court review date, on the appellant. Having regard to the foregoing analysis, that intended review cannot be carried out. This does not mean that the appellant's current detention is any way unlawful but the inclusion in the sentence order of a future review amounts to an error in principle which should be corrected by an appellate court. Accordingly, the appeal against sentence should be allowed. I would propose inviting submissions from the parties as to the appropriate final order. My provisional view is that the matter should be remitted to the Court of Appeal so that that Court can impose sentence, under the terms of s.3 of the Criminal Procedure Act 1993 as amended, in accordance with the principles outlined in this judgment.

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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Director of Public Prosecution v CC & anor (Approved) [2025] IESC 11 (13 March 2025) URL: http://www.bailii.org/ie/cases/IESC/2025/2025IESC11.html Cite as: [2025] IESC 11

Supreme Court of Ireland Decisions