Practice of reviewing children's sentences is unconstitutional, Supreme Court rules
High Court Reporter
The criminal courts’ practice of stipulating future reviews of sentences handed down to children is in breach of the Constitution, the Supreme Court has held, in a judgment that may have significant ramifications for a cohort of the State’s young offenders.
The court’s judgment, delivered by Ms Justice Iseult O’Malley on Thursday, also ruled that life sentences should be imposed on a child only in cases of murder where the intentions and actions of the child resembled those of an adult.
The court also ruled that a court may suspend part of a sentence in cases of a minor convicted of murder and other serious crimes.
The judgment arises from an appeal taken by the young man convicted of murdering Mongolian woman Urantsetseg Tserendorj in Dublin in January 2021.
The young man was sentenced to life in detention, with a review of the sentence to be conducted after 13 years.
He was 14 years old when he stabbed Ms Tserendorj on a walkway between George’s Dock and Custom House Quay at the IFSC, Dublin, on January 20th, 2021.
The Supreme Court held that without legislative authority, a sentencing court may not reserve to itself, through a review mechanism, the power to modify a sentence.
To do so amounts to a breach of Article 13.6 of Bunreacht na hÉireann, which gives the President of Ireland – acting on the advice of the Government – the right to pardon and the power to commute or remit punishment.
The practice of setting review dates for sentences handed down to children convicted of murder arises from an interpretation of section 103 of the Children Act 1908. The law was repealed in 2007, and there is no equivalent provision in the Children Act 2001, the court noted.
As such, the judge sentencing the young man who murdered Ms Tserendorj did not have the power to order a review date of the life sentence handed down, Ms Justice O’Malley said in her judgment.
The court ruled that it would allow the young man to appeal his sentence. Ms Justice O’Malley said her provisional view is that the case should be remitted to the Court of Appeal so that the court can impose a new sentence.
The young man had previously, unsuccessfully, appealed his sentence to the Court of Appeal.
As a result of Thursday’s ruling, a small number of persons, sentenced as children to a life sentence with a review date, are now serving straightforward life sentences. The ruling may present grounds for those people to bring appeals against their sentences.
The case was adjourned to late March for the making of final orders, allowing for submissions from the parties.
A separate Supreme Court judgment also delivered on Thursday means prohibitions on naming the young man continue to apply in the proceedings before the courts.
In an appeal brought by the young man convicted of murdering Co Cork student Cameron Blair, the court ruled that the protections under section 93 of the Children Act 2001 – restricting the identification of children in criminal proceedings – should apply when criminal proceedings are commenced against a child and continue to apply throughout and beyond the conclusion of the proceedings.
