Plenary 4: The Honourable Mr Justice John McMenamin – The Minor List in the High Court: A case study

Mr Justice John McMenamin was in charge of the minor’s list in the High Court for three years. The list evolved in the 1980s in response to holes in the statutory regime. Young persons at risk of suicide, drugs, prostitution, abuse and other exceptional circumstances would be taken out of the custody of their parents but there was no suitable legislative framework at the time, so the minor’s list in the High Court evolved as an important response. Justice McMenamin said an important lesson he learned after taking over the list is that one does not have to reinvent the wheel every time a new judge takes control of the list. Other judges had been dealing with the same issues in the past – shortages of resources, the channelling of cases to court, and the upholding of order, for example. In this paper Justice McMenamin brought attention to the particular kind of difficulties that arise in balancing a youth’s right to liberty and right to life and the benefit of inter-agency discussion and co-operation in trying to arrive at sensible and appropriate solutions to these difficulties. These issues were highlight by means of a case study from the Judge’s experience in managing the Minor’s list.

In this paper he presented a case study, based on the story of an individual he referred to as Shay (not his real name). At 15 Shay found himself before the court – he had no contact with his father, he had been the victim of sexual abuse within the family, he had been assaulted by a neighbour, he suffered from an attachment disorder and had psychological and drug-related problems but he had never been convicted of an offence. He was placed in the centre in Finglas where he did well but once he left Finglas there was a difficulty as to where he could go. The right to liberty militated against him being detained – he could be placed in a unit with youths who had committed offences, but he had not been convicted of any offences; he could have been left free but there was a high risk of suicide; he could be placed in a low security unit but there was a risk he would abscond. Thus the High Court had to come up with some kind of solution that would respect both Shay’s right to liberty and his right to life

Ultimately Justice McMenamin took the unprecedented step of bringing all parties and agencies together to sit down and examine the problems faced in practice and the shortcomings in the system. There was an attempt to work through the issues. The central issue in Shay’s case was whether a long-term order could be made for his detention up to the age of eighteen. The making of long-term orders without review is outside the limits of our constitution. Just as Justice MacMenamin was about to make an order in the case the District Court were also making an order the same day. Shay had two different legal representations. He pointed out that this typifies the need for joined up courts and law and an idea of what is in the best interests of a child. He pointed out that in only 2% of the cases before him parents were represented; it was mainly the state who took an interest in a child. Frequently parents suffered their own problems. Ultimately after balancing out all the issues a decision was made to detain Shay in a high security unit under review.

Justice McMenamin concluded by highlighting some of the lessons that can be learned. Involvement of the courts should be as a last resort. They should be use in an emergency as a means of intervention on the behalf of the state. The duties of parents are correlative to the rights of minors. This is difficult when parents do not want to be responsible. The balancing of libertarian values and the right to life offer difficult problems. He pointed out that there will always be holes in the system, no system is perfect. There is a strong indication that one size does not fit all, the institutions available do not suit all scenarios. Agencies can all interact in a positive manner to intervene where necessary.

Summary provided by LL.M (Criminal Justice) candidate, John Cronin.

Semi-Plenary 1: Brian Fitzpatrick – Restorative Justice an Irish Perspective: Reflections on the National Commission on Restorative Justice

Mr Fitzpatrick of the National Commission on Restorative Justice, began by outlining who is on the National Commission. The committee has representation from the Gardai, the Courts Service, the Probation Service, the Principal Prosecution solicitor and two lay members. The recent Joint Oireachtas Committee report was significant in the area of restorative justice (RJ) as it had cross party consensus, this helps to create momentum. The report recommended more use of RJ, put it on a statutory footing, foster judicial interest and to profile the benefits of RJ for victims.

He then went onto examine what exactly RJ is. Like O’ Mahony he conceded there was no unanimous idea of what it is and he gave a sample of the definitions available. It offers the victim fairness, respect and satisfaction. It offers them the opportunity to speak, participate in the outcome and to receive an apology. It offers the offender a greater appreciation of the harm caused and hopefully a positive impact on recidivism. It empowers the community via involvement.

Over 80 countries use some form of RJ, with Canada having 12 distinct models. Fitzpatrick pointed out that many models of RJ are rooted in the community and address cultural and ethnic issues. He then went on to highlight how RJ is used throughout the world and its use in both adult and juvenile cases. After this brief discussion he focused his attention on Ireland how we have used RJ. He focused mainly on the Garda Diversion Programme. He applauded the Gardai’s commitment and professionalism in helping with implementation of the 2001 Children Act. There was a 93% satisfaction for victims in the restorative approach. Juveniles said it was not an easy option. There was a 33% reconviction rate of juveniles subsequent to diversion. Fitzpatrick pointed to the distinct advantage of having both the victim and the offender’s family involved.

He went on to point out that RJ in the future will only be one of a number of options available to the criminal justice system, it will not overtake the existing system but offers some distinct benefits. He pointed out the large number of people receiving sentences of six months or less. It is his belief that if more of them were diverted there would be better outcomes for both victims and offenders.

He concluded by saying that RJ has now gained a foothold in Ireland and can be used as an alternative to tackle crime. It is limited but growing and the Commission’s task is a work in progress.

Summary provided by LL.M (Criminal Justice) candidate, John Cronin

Semi-Plenary 1: David O’Mahony – Restorative justice and criminal justice: Complementary or conflicting paradigms?

O’ Mahony opened by acknowledging the fact this is a topical debate and providing a background for the emergence of restorative justice. There has been a growth in the area of alternative dispute resolution as well as the increasing dissatisfaction of victims with the criminal justice system. Restorative justice (RJ) offers, perhaps, a more active role for victims, who for many years were alienated by the mainstream criminal justice system. O’ Mahony pointed out the various international attempts to make RJ more a part of criminal justice. An EU framework promoted mediation as advantageous and the UN Vienna Declaration also committed members to implement RJ.

He then attempted to define RJ. This he pointed out is not an easy task as there are in existence many varying definitions of RJ. Many of these definitions are too broad and vague. The danger of this according to O’ Mahony is that RJ may mean all things to all people, in other words nobody knows exactly what it is all about. He set about highlighting some of the varying definitions in a bid to bring some clarity to the purpose of RJ.

The implementation of RJ programmes may vary greatly; different programmes attempt to achieve different things. Some may be special to a particular locality such as the work done with the Loyalists in Northern Ireland. Some commentators would argue that RJ belongs in the community rather than the criminal justice system. He then added that RJ is divergent in its scope, range and intention.

RJ may contrast in many ways to the criminal justice system. The state takes the conflict away from the key people in the offence, whereas in RJ these people are at the heart of any programme. Criminal justice seeks to be cold and impartial. Punishment is objective and retrospective, whereas RJ will often look at the potential to repair future harm. Criminal justice is effective at fact finding but RJ is all about dealing with the aftermath of the facts.

O’ Mahony then went onto examine some of the main types of RJ. First he examined victim-offender mediation. This is marginalised from criminal justice. It began in Canada and operates only on a small scale in the UK; it is developed on an ad-hoc basis. It is developed at a local level and is operated by the Probation service. The second example of RJ was community reparation boards. These help to give the community a further stake in the criminal justice system. In the UK they are mandatory for first time offenders and low-level offenders. According to the Newburn study their outcomes have been mostly positive. O’ Mahony pointed out that victims and offenders are generally more satisfied than the traditional criminal justice route. However he also noted the problems with resources and the low-level of victim participation (only 13%). He begged the question if this is truly a restorative measure with such a small uptake from victims. Also the mandatory participation of offenders also makes this questionable.

The next example of RJ was police-led restorative conferencing. Similar initiatives to this are available in Ireland. Although police participation is strong, victim participation is again weak (14%). O’ Mahony pointed out that the Irish system is much stronger in this area with high levels of participation from all parties. There were 320 such conferences in 2006. However, he did point out that this was out of 27,000 referrals. So the good progress was on a small scale. Finally, he gave the example of restorative conferencing. According to O’ Mahony, only Northern Ireland has a fully-fledged system. Victim participation is high (69% in 2005). It is a resource intensive process. 91% of victims get at least an apology, with only 11% who would have preferred to have gone to court.

He concluded by saying that RJ is no panacea but the process has some distinct advantages. It needs to be managed carefully. It has the potential to be harmful if it is not operated effectively. RJ and criminal justice can be brought together with effective safeguards and if managed properly.

Summary provided by LL.M (Criminal Justice) candidate, John Cronin.

Plenary 3: Michael Donnellan, Director of the Probation Service

Mr. Donnellan, the Director of the Probation Service, began by giving a brief overview of probation in Ireland and its continued use today. In 2004 the Irish Youth Justice Review decided a dedicated youth probation service was required. In the limited time available to him he wished to highlight some of the options available to the probation when a case is referred to them.

The first of these options is the Family Conference. This is a restorative option that diverts the youth from the core criminal justice system. It is an intervention that can be powerful for the offender; it offers them a voice in proceedings. In court they would not have such an opportunity. It also offers the victim a voice. There have been 140 to date. Donnellan pointed out that the remorse of children was often heartfelt. The victims are often only looking to explain how the offence affected them; they do not wish to be punitive. Donnellan believes that there is a need for more multi-agency conferencing and that conferences should be used sparingly as they can be resource intensive.

The next option that may be used is the Parental Supervision Order. This strengthens the family conference model. It is popular in other jurisdictions. Its core strength is that it involves working with children and parents together. It has been piloted in Cork and is about to extend to other locations around the country. It involves 14 sessions with a multi-agency approach. It costs €10,000 per programme but there may be up to 45 people involved. It works out about €17 per person per night.

Finally, he referred to the Mentor (family support) Order. This was set up by the Le Cheile project and is similar to the buddy programme run in the USA. A youth is assigned a mentor who will help them with their educational and welfare needs. There are currently 70 in Ireland and there is an intention to extend the scheme to parental mentor supports as it has been identified that parents often need as much support as their children.

Donnellan concluded by saying that there are a number of developments in the pipeline such as the introduction of remand fostering rather than detention. It is also their intention to pilot a bail support scheme in Limerick. He hopes to see the introduction of more innovative programmes with some joined up thinking. Finally he made the point that the probation service is currently just a 9-5, Monday to Friday organisation. He stressed that children exist outside these times and need a system that reflects this.

Summary provided by LL.M (Criminal Justice) candidate, John Cronin.

Plenary 3: Assistant Garda Commissioner Louis Harkin

Assistant Garda Commissioner Harkin opened by saying that it is important for the Gardai to be involved in this type of conference in order to get a flavour of what aspects of the system the various organisations and academics believe are in need of improvement. In his paper, Assistant Commissioner Harkin sought to deal primarily with the Gardai’s role in the system and what they can offer in terms of juvenile justice. He began by examining the diversion programme run by the Gardaí. This programme was highlighted several times throughout the two day conference, most notably by Sergeant Ben Flahive who presented a comprehensive power-point during one of the parallel sessions. Harkin indicated the high levels of training undertaken by the Juvenile Liaison Officers to take part in the programme. He highlighted the criteria for inclusion on the programme and the success rates of the programme. He addressed criticisms of the programme saying that critics need to take a more holistic view of the programme. A youth taking part in the programme may re-offend while still working through some behavioural issues and Harkin believes it is unfair to deem work in progress a failure. Harkin also noted the use of the Youth Diversion programme. It is based in the community and seeks to target those most at risk of offending.

He then went on to explain the Restorative Justice Programme. This is a conference where the victim will attend. The offender hopefully realises the effect of the crime on the victim, also that the crime was not just against the victim but against the community as a whole. There were 378 restorative conferences in 2007 and figures show that 60 % do not re-offend in the following 12 months.

He then went on highlight the challenges facing Gardai. It is Harkin’s belief that the delivery of services provided by the Gardai must be effective to both the offender and to society. The multi-agency approach so talked about must be embraced. A large number of people from many cultural and ethnic backgrounds have settled in Ireland in the recent past and a relationship of trust must be built between the Gardai and these new communities. Many of these communities are coming from countries where there are hostile police forces; the Gardai must present themselves as approachable and even-handed.

He concluded by saying that Youth Justice in Ireland is changing dramatically and that the Gardai are looking forward to working closely and developing links with other relevant agencies.

Summary provided by LL.M (Criminal Justice) candidate, John Cronin.

Plenary 3: Michelle Shannon – Irish Policy Makers and Services Providers: Challenges and Reform

Ms. Shannon, National Director of the Irish Youth Justice Service, began her paper by highlighting some of the recent reforms of the youth justice system in Ireland such as the formation of the Irish Youth Justice Service and the Office of the Minister for Children. All provisions of the 2001 Act have now been commenced, more resources have been provided to the Garda Diversion Programme, and more Children’s Court judges have been appointed. The Government have approved the National Youth Strategy 2008-2010 and new detention school facilities.

She then pointed out the goals of the National Youth Justice Strategy and the need for a multi-agency approach. She argued that is gone beyond the time for talking, there is now a need for action and outputs; a Youth Justice Oversight Group has been established and approved by the government to help in this respect. This will include representatives from various agencies and departments that will come together to work on a more holistic basis. At local level Local Youth Justice Teams linked to Children’s Service committees have been established, which seek to develop best practice and interventions are targeted having regard to level of risk.

Shannon pointed out that the 2001 Act compared favourably with international standards and highlighted the need to be aware of international standards and obligations. There needs to be justice, fairness and accountability. All initiatives must also have the confidence of the public. There is a real hope that with this multi-agency approach that there can be a reduction in offending, value for money and efficiency.

Summary provided by LL.M (Criminal Justice) candidate, John Cronin.

Plenary 3: Máiréad Seymour – The Irish Youth Justice System

In Dr. Seymour’s paper she endeavoured to give a brief overview of the Youth Justice System in Ireland as a way of setting the scene for the session. She began by pointing out that developments in this area are relatively new. The Children Act 2001 was the first piece of legislation to deal solely with children since 1908. The 2001 Act has been broadly welcomed but Seymour pointed out the well known problem with its slow implementation. She pointed out that a significant reason behind this delay was the fact that there were a number of departments responsible for children. She went on to add that the Criminal Justice Act 2006 contained several provisions relating to children. This resulted in amendments to some sections of the 2001 Act before they had even been commenced. She then highlighted the fact that a Youth Justice Review took place at the end of 2005 with the Irish Youth Justice System set up in 2006 as a result of this. Seymour pointed out that this conference was timely as the National Youth Strategy 2008-2010 had been published in recent weeks. She concluded her examination of the background of the Irish system by highlighting the dearth and quality of data and research in the area of Youth Justice. However she was confident that this is changing thanks to various third level institutions and interest groups.

Seymour then moved on to point out some of the key aspects of our juvenile justice system. She began by speaking about our age of criminal responsibility which was raised to 12 in the 2001 Act. However, she added that in the 2006 Criminal Justice Act an exception was introduced to charge 10 and 11 year olds with serious offences. The consent of the DPP is required to prosecute a child under the age of 14. Seymour then moved onto explain the Garda Juvenile Diversion Programme. She ran through the eligibility requirements, the responses available and how it all works in practice. She pointed out that the diversion programme has now been extended to 10 and 11 year olds despite the fact that they can only be prosecuted for serious offences at this age as envisaged by the 2006 Act. Garda statistics would indicate that the programme is a resounding success, but Seymour argued that there is limited data and the Garda statistics lack transparency. There are concerns around net widening, the absence of due process that are available in the legal process and the absence of external evaluation. She then briefly reviewed behavioural orders which are a recent addition in Irish law. The breach of this civil order can bring a child into the criminal system but to date no such order has been issued.

Seymour then moved on to the Children’s Court. The 2001 Act has much to say about how these courts should be run. They should take place at a different time and preferably a different place to the normal business of the court to avoid the mixing of juveniles with adult. She pointed out that this is easy in Dublin where there is a dedicated Juvenile Court but more difficult everywhere else. Hearings are in private but if a child is sent forward to the Circuit or Central Criminal Court for trial they may be identified in the media if it is in the public interest. Parents are obliged to be present but often do not come to court. This results in the issue of a bench warrant.

She then highlighted the principles contained in the 2001 Act that form the basis of the system. The child has a right to be heard and to participate, criminal proceedings should not be used to sort out care and protection issues, detention should be a last resort and be for the minimum amount of time possible and the child’s age and maturity should be taken into consideration. She went on to examine some of the sanctions available but emphasised that not all sanctions are in operation due to funding issues. 17 % of cases finalised result in detention. There appears to be a downward trend in the use of custody, but Seymour expressed caution here as the continuous flow of prisoners if counted may give a different result. The main detention facility for those 16 and over is St. Patrick’s Institution. Seymour revealed a statistic that is quite staggering in respect of Pat’s, a third of all detainees are on remand.

She concluded her paper by examining the challenges and issues faced by Ireland. She stressed the need to comply with international standards, the need to co-ordinate the delivery of effective youth justice services and the need to build a knowledge base for youth justice in Ireland.

Summary submitted by LL.M (Criminal Justice) candidate, John Cronin.

Semi-Plenary II – Policing, Accountability and Youth Justice

This second of two semi-plenary sessions comprised a presentation by Niamh McKeague of the Garda Siochána Ombudsman Commission (GSOC) followed by a Q&A; session from the floor with Ms. McKeague and Michael O’Neill BL, Legal Advisor to the GSOC. The session was chaired by Sophie McGuinness of the Office of the Ombudsman for Children.

Ms. McKeague began by outlining the functions and processes of the GSOC as provided for by the Garda Síochána Act 2005. The GSOC began to operate in May 2007 and can consider complaints relating to Garda conduct (including breach of discipline), investigate any practice, policy or procedure of the Gardaí with a view to reducing the level of complaints relating thereto, and consider matters referred by either the Garda Commissioner or the Minister for Justice.
After outlining the remit, functions and processes of the GSOC Ms. McKeague proceeded to provide a number of statistics about the Commission’s work up to the end of January 2008. From its establishment to the end of January 2008 the Commission had received over 2000 complaints, just under 2% of which had come from children and young people. The Act provides that a complaint may be made by any member of the public and does not impose any age-related standing requirements for complainants, therefore children are eligible to submit complaints to the commission. It was on the appropriate way to deal with such complaints, and the particular challenges arising therefrom, that the remainder of the presentation focused. More information on the GSOC is available here.

Ms. McKeague firstly considered the challenge of deciding on the definition of ‘child’ for the purposes of the GSOC – although the Act does not prohibit children from complaining, it does not offer any substantive guidance on the particular challenges connected thereto. Having considered the various ages by which childhood is defined in different instruments (UNCRC – 18; Non Fatal Offences against the Person Act 1997 – 16;12 for criminal responsibility) the GSOC decided to treat all complainants under the age of 18 as child complainants in order to ensure that, as much as possible, potentially vulnerable complainants would be identified and appropriately dealt with. In this connection she also noted the commitment of GSOC to providing appropriate training to GSOC staff and the cooperation between GSOC and the Office of the Ombudsman for Children in equipping the GSOC to deal with child complainants.

Ms. McKeague then addressed two particular challenges to the GSOC in dealing with child complaints. The first related to information and the provision of information to certain parties once a complaint had been lodged. She noted the importance of making it clear to child complainants that GSOC can not guarantee the absolute confidentiality of complaints, particularly since s. 103 requires that all interested parties be kept informed about the progress and results of an investigation. In this context, interested parties might, she reflected, sometimes include parents of the child complainant. The issues surrounding information are further complicated by s. 81 of the Act which prohibits the disclosure of information to anyone where such disclosure may have a harmful effect. Although certain bodies are exempted from causing harmful effect through receipt of information, the HSE and parents are not included in this list. Thus, the investigators must make a case by case determination of whether or not disclosure of information to a non-exempted party such as parents or the HSE might have a harmful effect and advise the individual commissioners in each case as to whether or not they can sanction release of information. The disclosure of information in violation of s. 81 can result in criminal sanctions and can therefore cause significant difficulties for investigators working in the GSOC.

Ms. McKeague also considered the difficulties relating to duty of care. While all parties accept that there is a duty of care to children, certain structures involve numerous actors all of which may have a duty of care but where there is no clear delineation of whether one party’s duty stops and another’s begins. In this context she referred specifically to the area of child protection and the Children First strategy in which parents, the HSE and an Garda Síochána are all relevant actors. Children First has been incorporated into the Garda code, therefore a question arises as to whether or not a member could be investigated for and found to have engaged in dereliction of duty for not acting in a particular way in relation to a child and the difficulties that would pose in a situation where there is no clear delineation of duties between the three main actors.

Finally Ms. McKeague reflected on the usefulness of meaningful communication and co-operation between GSOC and various different bodies in developing a policy relating to child complainants and considering the manner in which the questions that arise in the early stages a new scheme can be resolved in a manner that ensures the paramouncy of the child’s best interests.

The Q&A; session involved a fruitful exchange between the representatives of the GSOC and delegates from Include Youth (Edel Quinn), Children’s Law Centre (Paddy Kelly), Finglas Child and Adolescent Centre (Colette Walsh), the Bar (Mary Ellen Ring SC), and the Ombudsman for Children, Emily Logan.


Plenary Session 2: Thomas Hammarberg – Youth justice based on child rights norms

Commissioner Hammarberg (Council of Europe Commissioner for Human Rights) opened his address by highlighting the fact that east is starting to look west as many countries’ systems have failed from a human rights perspective and also from a recidivism perspective. He gave some examples of countries to the east of Europe that have criminal justice systems that are far from desirable; where there is disproportionate imprisonment of ethnic minorities and difficulties within youth detention centres. Having highlighted a number of problems being experienced in the east of Europe, he then went on to focus the remainder of his presentation at Ireland and the UK

The Commissioner noted that he had just arrived from inspecting detention centres in England and a report is due out in 2008. Previous reports have criticised the UK for the large numbers of young people in detention; a situation that Hammarberg noted has yet to be addressed. He also noted in particular the use of restraints in youth detention centres and the ongoing debate as to what types of restraints are permissible. This is an issue that Mr. Hammarberg believes there is a striking focus on in the UK, perhaps more so than in other countries. He then went to note that as the UK is seen by other countries as an important role model, it is imperative that it would bring its system in line with international standards. He referred to the unanimity between academics and practitioners over how the English system ought to operate, but also that media and public opinion may make it difficult to make these changes from a political perspective.

Commissioner Hammarberg then moved on to consider the age of criminal responsibility, which he noted was too low in both the UK and Ireland (in spite of the fact that there is no actual age specified in the international standards). He went on to say that too many young people are being brought into the system and labelled as criminals when in fact they are victims of their background. There are many more detained who should be in special units to tackle their mental issues. He referred briefly to his recent examination of the Irish youth justice system although he could not go into much detail as the report is due out at the end of April. There will be a number of recommendations in the report.

Summary provided by LL.M (Criminal Justice) candidate, John Cronin.

Plenary Session 2: Lesley McAra – In the best interests of the child? Scottish youth justice in comparative context

Dr. McAra opened by outlining the Scottish model of justice based on the Kilbrandon philosophy. Under this model, offending is seen as a symptom of deeper-seated needs, and it is acknowledged that decisions ought to be made in the best interests of the child and that the experience of the criminal justice system ought to be as de-stigmatising as possible. McAra highlighted the strong association between offending and vulnerability and noted that violent offenders in particular are most vulnerable as they have high levels of self harm and para-suicide.

McAra then went on to point out that the Kilbrandon model has been under pressure since devolution. There has in fact been a convergence of policy with New Labour in England. Many of the changes in the English system have also been adopted north of the border; a process that McAra refers to as ‘de-tartinization’. She then went on to acknowledge the tension that now exists in Scotland in terms of youth justice policies. There are two opposing camps, one of which favours the punitive approach and the other of which remains committed to the Kilbrandon system. McAra however believes that the punitive voice is shouting loudest and that the Kilbrandon approach has been undermined by both the police and the Reporter.

Certain categories of young people are recycled in the system and stigmatized. According to McAra, there is a labelling process going on whereby these young people are consistently charged with offences whereas other equally serious and vulnerable offenders escape tutelage of agencies altogether. McAra gives the interesting statistic that at age 15, 72% of self-reported violent offenders remain ‘unknown’ to social work or the children’s hearing system. McAra highlighted that the findings in the Edinburgh survey mirror those in international comparative research, namely the Denver/Bremen longitudinal studies. The further you take a young person into the system the more damaging it is for the young person. The most vulnerable children are propelled into the adult system. McAra then moved on to suggest that early behavioural problems are not generally a good indicator of later offending.

McAra concluded by suggesting some lessons that need to be learned from the Scottish experience: it is crucial to protect our most damaged young people, in particular those who are hidden offenders; there needs to be maximum diversion and minimum intervention; and there should be early intervention to problem areas rather than just problem families.

Summary provided by LL.M (Criminal Justice) candidate, John Cronin