Child Defendants
Introduction
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The treatment of child defendants is mainly dealt with under the Children Act 2001 which defines a chlid as a person under 18 years of age.
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There are a number of aspects in respect of the child defendants which differ from adult defendants. These include:
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An appropriate adult being required to be present throughout the criminal process
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Detention as a last resort
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Anonymity for the child defendant
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All proceedings to be held in camera
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Availability of diversion programmes where appropriate
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In line with our neighbouring common law jurisdiction, Ireland has established a suite of support measures for vulnerable witnesses for use in criminal proceedings including video link, recorded testimony and the use of intermediaries. These measures have been extended for use with a focus on protecting victims from victimisation, intimidation or retaliation under s.14AA of the Criminal Evidence Act 1992.[1] In line with DPP v Donnelly[2], these measures may serve to alleviate stress and trauma for the witness. As outlined in the UK legislation,[3] one of the ambitions of the support measures, is the maximising of the evidence before the court. This is implicitly the goal of the support measures in this jurisdiction.[4] One of the notable aspects of legislation here is the fact that the defendant is explicitly excluded from eligibility for these support measures.
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The use of registered intermediaries in the UK highlighted the communications discrepancies and challenges facing the court but also presented solutions which would not undermine the rights of the defendant. As the intermediaries are independent, their skills have also been used, on an inherent jurisdiction basis, for child defendants with communication difficulties. Case law indicates how important their involvement has been in respect of the quality of the evidence before the court.[5] The establishment of this support measure on a legislative basis has yet to be completed but has been drafted and is awaiting commencement.[6] This and the inclusion of training materials on The Advocate’s Gateway[7] to assist the participation of the young defendant[8] indicate a fundamental shift in attitude towards the vulnerable defendant. Intermediaries have been used in respect of vulnerable defendants in this jurisdiction but on an ad hoc manner. Specialist Interviewers in this jurisdiction have been trained in respect of the best manner to take evidence under s.16(1)(b) Criminal Evidence Act 1992 from children and persons with an intellectual disability. It should be noted that the officer involved in the questioning of the accused teenagers in the Ana Kriegel trial noted at trial that he had consulted with Specialist Interviewers prior to the beginning of questioning of the suspects. But extensive modification for the questioning of children by An Garda Siochana and specialised personnel such as intermediaries are not available for child defendants in this jurisdiction.
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While there are a number of aspects, under the Children Act 2001, which differentiate the questioning of children from that of adults, the essential interviewing procedure in terms of detention periods, personnel and locations remains the same, albeit with some added protections. This contrasts significantly with the witness suites and trained personnel available for the recording of interviews taken under s.16(1)(b) Criminal Evidence Act 1992. While the suspects in the Ana Kriegel trial were able to sleep in a specially cleared room rather than a cell and while a parent was present throughout, the essential elements of the interview process were strikingly similar to that of any adult suspect. The use of support measures has increased awareness of how to better hear child witnesses in the criminal justice process without causing undue trauma. There should be an equivalent reappraisal of support measures in terms of the goal of better participation of the child defendant under the principles of T v UK[9].
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Child defendants may benefit from the reporting restrictions under s.93 Children Act 2001 but it is submitted that further examination of the potential reporting challenges is warranted is warranted in light of recent high profile cases before the courts. The aspect of media reporting for child defendants is a particularly sensitive matter in respect of the trial process itself as well as the possible lifelong ramifications for the parties involved. Whether through human error, negligence or other reasons, contravention of reporting restrictions may have severe and negative consequences. While the importance of the public interest aspect in relation to the reporting of trials is foremost, the consequence of a trial disrupted or of a mistrial due to inaccurate or prejudicial reporting may endanger the health and safety of the child defendant as well as that of the injured party and their families.
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A legislative provision which facilitates the introduction of a moratorium on reporting for a specific duration of the trial, perhaps until the verdict is delivered, or even after sentencing, may be warranted for cases involving child defendants. The imposition of a restriction on contemporaneous reporting was considered in the Irish Times v Ireland [1998] 1 IR 359 and was deemed to be in excess of what was required in that case. It could be argued that since then, the world, in terms of media and social media has changed drastically. In addition, that case did not involve child defendants which it is submitted must warrant a higher degree of protection in terms of media exposure.
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The greater use of social media and the obligation on news outlets has increased the risk of issues which might interfere with a fair trial. The trial judge must be able to focus on the primary responsibility of supervising the trial itself not the policing of the reporting on the trial. For any Court, this would add an onerous burden as the online presence of many outlets is numerous and updated continuously. In addition, the issues in respect of social media are substantial and complex. In terms of mainstream reporting, the obligations have grown considerably in recent years. The pressure on journalists for instant reporting through social media platforms such as Twitter leads to an urgency to report which risks mistakes through simple human error.
An order for a restriction on contemporaneous reporting would remove this pressure and ensure that a trial, once begun, is better protected from applications for a mis-trial due to erroneous or prejudicial reporting. While there is undoubtedly a public interest in contemporaneous reporting, it is submitted that there are particular trials, such as with child defendants which, if derailed would cause particular difficulties. The question as to what specific public interest is served in these cases, must be examined and appropriate legislative provisions established as necessary.
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[1] As amended by the Criminal Justice (Victims of Crime)Act 2017
[2] Donnelly v Ireland [1998] 1 IR 312 (SC).
[3] S.16 Youth Justice and Criminal Evidence Act 1999
[4] See Irish Law Reform Commission Report on Child Sexual Abuse (1990)
[5] See: C v Sevenoaks Youth Court [2009] EWHC 3088 (Admin) R v Dixon [2013] EWCA Crim 46
[6] S. 104 of the Coroners and Justice Act 2009
[7] See generally: www.advocatesgateway.com
[8] See : Effective participation of young defendants Toolkit 8 20 March 2017 The Advocate’s Gateway
[9] T v UK (Application no. 24724/94) V. v. the United Kingdom (application no. 24888/94). ECtHR 16 December 1999
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Physical Court Buildings and Custody Areas
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The Children's Court can refer to the individual courts in Smithfield, Dublin 7 that specifically deal with child defendants. Other District Courts can deal with child defendants but usually on a different day/sitting to ensure that child defendants do not mix with adult defendants. While non - minor matters are dealt with in the same Circuit Courts and Central Criminal Court as adult defendants, the statutory protections for child defendants remain the same. It can be said that any court is acting as the Children's Court when a child defendant is before it.
It has been recognised that the accommodation of the Children’s Court, the physical buildings in Dublin, needs development. The 2018 Annual Report of the Courts Services notes that:
The Family Law and Children Court complex referred to in the National Development Plan will include a new Supreme Court facility and accommodation for court offices. The Government’s Infrastructure and Capital Investment Plan also provides for this important project. The complex will be located on a site bounded by Church Street and Hammond Lane in Dublin in close proximity to the Four Courts. It will allow for the necessary replacement of the existing child and family law facilities in Dolphin House, Phoenix House, Áras Uí Dhálaigh, and the Children Court with a state of the art purpose built facility at a single location in the heart of the city’s legal quarter. A Project Board, chaired by a judge of the High Court, continued to oversee the project during the year. The National Development Finance Agency confirmed that the project is suitable for procurement by way of public private partnership. A range of surveys, including topographical, geotechnical, archaeological, traffic, noise and vibration, have been carried out on the site. A detailed business case/capital appraisal as required by the Public Spending Code was submitted to the Department of Justice and Equality for approval in April 2017. An updated project costing and business case was submitted in April 2018.
The national provision of courts and custody areas require appraisal as to how child defendants interact with their physical surroundings from initial contact with An Garda Síochána to interaction with the judiciary. It is vital that there is a consistency of experience for all children across the country. It was notable that in respect of the suspects in the murder of Ana Kriegel, accommodations were made. While Boy A was questioned in two different Garda Stations, the same Member in Charge was present so that there would be a familiarity with the personnel responsible for protecting his rights in custody. There were no other prisoners held in the Garda Stations during that time and instead of staying in a cell in the Garda Station, a room was cleared and camp beds installed to allow the defendant and the appropriate adult to stay in accommodation that was not a conventional Garda Station custody cell. While these facilitations are welcome, it is submitted that improved, standardised accommodations be made for all child defendants who may have to undergo Garda questioning and subsequent appearances in court.
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During the trial, both Boy A and Boy B, who were on bail for the duration of the trial, had separate rooms adjacent to the court for breaks and lunch. They arrived through a separate entrance to the Criminal Courts of Justice.
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Age of Criminal Responsibility
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The age of criminal responsiblity in Ireland is 12 except for the most serious offences of murder, rape, rape under s. 4, or aggravated sexual assault which still apply to children aged 10 or 11. Any further procedings ( except for remands on bail or in custody) for a child under 14 charged with an offence must be with the consent of the DPP.
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Where a child under 14 years of age is charged with an offence, no further proceedings in the matter (other than any remand in custody or on bail) shall be taken except by or with the consent of the Director of Public Prosecutions.
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s. 52 of the Children Act 2001 sets out the age of criminal responsiblity in Ireland:
Restriction on criminal proceedings against children.
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52.—
(1) Subject to subsection (2), a child under 12 years of age shall not be charged with an offence. (2) Subsection (1) does not apply to a child aged 10 or 11 years who is charged with murder, manslaughter, rape, rape under section 4 of the Criminal Law (Rape) (Amendment) Act 1990 or aggravated sexual assault.
(3) The rebuttable presumption under any rule of law, namely, that a child who is not less than 7 but under 14 years of age is incapable of committing an offence because the child did not have the capacity to know that the act or omission concerned was wrong, is abolished.
(4) Where a child under 14 years of age is charged with an offence, no further proceedings in the matter (other than any remand in custody or on bail) shall be taken except by or with the consent of the Director of Public Prosecutions.
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Arrest and Detention
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The general powers of arrest and detention apply to child defendants as they do to adults. However, Part 6 of the Children Act 2001 applies to their treatment as suspects in Garda Siochana Stations.
S. 55 states:
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55.—In any investigation relating to the commission or possible commission of an offence by children, members of the Garda Síochána shall act with due respect for the personal rights of the children and their dignity as human persons, for their vulnerability owing to their age and level of maturity and for the special needs of any of them who may be under a physical or mental disability, while complying with the obligation to prevent escapes from custody and continuing to act with diligence and determination in the investigation of crime and the protection and vindication of the personal rights of other persons.
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S. 56 of the Act states that any child detained should be separated, as far as practictable, from an adult who is detained and also should not be kept in a cell unless there is no other secure accommodation available.
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Separation of children from adults in Garda Síochána station.
56.—The member in charge of a Garda Síochána station shall, as far as practicable, ensure that any child while detained in the station shall not associate with an adult who is so detained and shall not be kept in a cell unless there is no other secure accommodation available.
The Member in Charge should explain to the child what he or she has been arrested for and also that he or she is entitled to a solicitor as well as the fact that their parent or guardian is being told where they are, why and requested to attend.
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Notification to child. 57.—Where a child is arrested and brought to a Garda Síochána station on suspicion of having committed an offence, the member in charge of the station shall without delay inform the child or cause the child to be informed, in a manner and in language that is appropriate to the age and level of understanding of the child— (a) of the offence in respect of which he or she has been arrested, (b) that he or she is entitled to consult a solicitor and how this entitlement can be availed of, and (c) that the child’s parent or guardian is being— (i) informed that the child is in custody in the station, (ii) given the information specified in paragraphs (a) and (b), and (iii) requested to attend at the station without delay.
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Notification of arrest of child to parent or guardian.
58.—(1) When a child is arrested and brought to a Garda Síochána station on suspicion of having committed an offence, the member in charge of the station shall as soon as practicable— (a) inform or cause to be informed a parent or guardian of the child— (i) that the child is in custody in the station, (ii) in ordinary language and in the Irish language when dealing with a child from the Gaeltacht or a child whose first language is Irish, of the nature of the offence in respect of which the child has been arrested, and (iii) that the child is entitled to consult a solicitor and as to how this entitlement can be availed of; and (b) request the parent or guardian to attend at the station without delay. (2) (a) If the member in charge of the station— (i) is unable to communicate with a parent or guardian of the child, or (ii) the parent or guardian indicates that he or she cannot or will not attend at the station within a reasonable time, the member shall inform the child or cause the child to be informed without delay of that fact and of the child’s entitlement to have an adult relative or other adult reasonably named by him or her given the information specified in subsection (1)(a) and requested to attend at the station without delay. (b) Subsection (1) shall apply in relation to a person named by a child pursuant to paragraph (a) as it applies in relation to a parent or guardian. (3) Where the child is being transferred to another station or other place, the member in charge of the station from which the child is being transferred shall inform any person who has been informed under this section that the child is in custody, or cause him or her to be informed, of the transfer as soon as practicable.
Notification to health board. 59.—
(1) Where the member in charge of a Garda Síochána station has reasonable cause to believe that a child who is in custody in the station on suspicion of having committed an offence may be in need of care or protection, the member shall, as soon as practicable, inform or cause to be informed the Child and Family Agency accordingly, and it shall send a representative to the station as soon as practicable.
(2) Where it is not practicable for the representative of the F70[F71[Child and Family Agency]] to attend at the station within a reasonable time, he or she shall at the first available opportunity attend at the station to ascertain why the member in charge had reasonable cause to believe that the child may be in need of care or protection.
(3) The Child and Family Agency shall, where appropriate, exercise its powers under the Act of 1991 in relation to the child.
(4) The Minister, with the agreement of the Minister for Health and Children, may issue guidelines in relation to the practical operation of this section.
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Notification to solicitor. 60.—(1) Where a child who is in custody in a Garda Síochána station has asked for a solicitor, the member in charge of the station shall notify the solicitor or cause him or her to be notified accordingly as soon as practicable. (2) Where the solicitor cannot be contacted within a reasonable time or is unwilling or unable to attend at the station, the child shall be so informed and given an opportunity to ask for another solicitor, and the member in charge shall notify or cause to be notified that other solicitor accordingly as soon as practicable. (3) Subsections (1) and (2) shall also apply in relation to a request for a solicitor for the child by any parent, guardian, adult relative, any adult reasonably named by the child or other adult (not being a member of the Garda Síochána) who is present, in accordance with section 61(1)(b), during the questioning of the child or the taking of a written statement. (4) Where the child is being transferred to another station, the member in charge of the station from which the child is being transferred shall notify any solicitor who has been notified under this section or cause him or her to be notified of the transfer as soon as practicable. (5) Where a solicitor (other than a named solicitor) has been requested by or on behalf of a child, the member in charge shall give the person making the request or cause him or her to be given the name of one or more than one solicitor whom the member in charge reasonably believes may be willing to attend at the station within a reasonable time.
Interviewing children.
61.—(1) Subject to subsections (2) to (4), a child who has been detained in a Garda Síochána station pursuant to any enactment shall not be questioned, or asked to make a written statement, in relation to an offence in respect of which he or she has been arrested unless in the presence of— (a) a parent or guardian, or (b) in his or her absence, another adult (not being a member of the Garda Síochána) nominated by the member in charge of the station. (2) Notwithstanding subsection (1), the member in charge of the station may authorise the questioning of the child or the taking of a written statement in the absence of a parent or guardian, where the member has reasonable grounds for believing that to delay the questioning would involve a risk of death or injury to persons, serious loss of or damage to property, destruction of or interference with evidence or escape of accomplices. (3) The member in charge of the station may authorise the exclusion of a parent or guardian during the questioning of the child or the taking of a written statement where— (a) the parent or guardian is the victim of, or has been arrested in respect of, the offence being investigated, (b) the member has reasonable grounds for suspecting the parent or guardian of complicity in the offence, or (c) the member has reasonable grounds for believing that the parent or guardian would, if present during the questioning or the taking of a written statement, be likely to obstruct the course of justice. (4) The member in charge of the station may authorise the removal of a parent or guardian during the questioning of the child or the taking of a written statement where the member has reasonable grounds for believing that the conduct of the parent or guardian is such as to amount to an obstruction of the course of justice. (5) Where the child or his or her parent or guardian asks for a solicitor, he or she shall not be asked to make a statement, either orally or in writing, in relation to an offence until a reasonable time for the attendance of the solicitor has elapsed. (6) A child who is from a Gaeltacht area or whose first language is Irish shall be entitled to be questioned or to make a written statement in the Irish language, and any other child shall be entitled to make a written or oral statement in that language. (7) In this section references to a parent or guardian include references to an adult relative of the child, an adult reasonably named by the child pursuant to section 58(2)(a) or the adult mentioned in subsection (1)(b).
Notification of proceedings to parent or guardian. 62.—(1) Where a child who is in custody in a Garda Síochána station is charged with an offence and the child’s parent or guardian is present at the station, the member in charge of the station shall ensure that— (a) a copy of the charge sheet containing particulars of the offence is handed to the parent or guardian, and (b) as soon as practicable, a notification in writing is sent to the child’s parents or guardian of— (i) the time, date and place of the child’s first appearance before the court, and (ii) the provisions of section 91 concerning non-attendance, without reasonable excuse, of a parent or guardian at the court proceedings. (2) Where the child’s parent or guardian is not present at the station and his or her address is known, the member in charge of the station shall ensure that as soon as practicable— (a) a copy of the charge sheet containing particulars of the offence is sent to the parents or guardian, and (b) a notification in writing is sent to the parents or guardian of— (i) the time, date and place of the child’s first appearance before the court, (ii) the provisions of section 91 concerning the non-attendance, without reasonable excuse, of a parent or guardian at the court proceedings, (iii) whether or not a recognisance was taken from the child, (iv) the name of any adult who attended at the station at the request of the child, and (v) if the child consulted a solicitor, the solicitor’s name and address. Notification of proceedings to adult relative or other adult. 63.—(1) Where a child who is in custody in a Garda Síochána station is charged with an offence and the child’s parent or guardian is not present at the station, the member in charge shall ensure that a copy of the charge sheet containing particulars of the offence is handed to an adult relative of the child who is so present. (2) The member in charge of the station shall also ensure that as soon as practicable the adult relative is notified of the time, date and place of the child’s first appearance before the court and, if the child has consulted a solicitor, of the solicitor’s name and address. (3) Where neither the parent or guardian nor any adult relative of the child is present at the station, the member in charge of the station may send a copy of the charge sheet and a notification of the time, date and place of the child’s first appearance before the court to an adult relative. (4) The duties of the member in charge under this section shall apply only where the member is of opinion that the child’s parent or guardian would not be available to attend court with the child and that the adult relative in question is likely to be of assistance to, and provide support for, the child during the court proceedings. (5) In this section “adult relative” includes any adult reasonably named by the child pursuant to section 58(2)(a).
Procedure by summons. 64.—(1) Where proceedings in respect of an offence alleged to have been committed by a child are to be commenced by the issue of a summons, the child’s parents or guardian may be named in the summons and, if named, shall be required to appear at the sitting of the court specified in the summons. (2) Where the summons names the child’s parents or guardian, it shall also specify the provisions of section 91 concerning non-attendance, without reasonable excuse, of a parent or guardian at the specified sitting of the court.
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Notice to adult relative or other adult where proceeding by summons. 65.—(1) Where proceedings in respect of an offence alleged to have been committed by a child are to be commenced by the issue of a summons and the whereabouts of his or her parents or guardian are unknown, a notice under this section may be issued to an adult relative of the child or other adult reasonably named by the child, whether or not the adult relative or other adult attended at the Garda Síochána station pursuant to section 58(2). (2) A notice under this section shall be issued by the member of the Garda Síochána dealing with the child in respect of the offence for which the summons is being issued. (3) The notice shall state the time, date and place of the sitting of the court in respect of which the summons was issued and shall contain particulars of the offence which the child is alleged to have committed. (4) The notice shall issue only with the agreement of the child and where the member is of opinion that the adult concerned is likely to be of assistance to, and provide support for, the child during the court proceedings.
Provisions common to sections 56 to 63 and 65. 66.—(1) In this section “the relevant sections” means sections 56 to 63 and 65. (2) A failure on the part of any member of the Garda Síochána to observe any provision of the relevant sections shall not of itself render that member liable to any criminal or civil proceedings or of itself affect the lawfulness of the custody of a detained child or of the admissibility in evidence of any statement made by the child. (3) A failure on the part of any member of the Garda Síochána to observe any provision of the relevant sections shall render that member liable to disciplinary proceedings. (4) The duties imposed by the relevant sections on members of the Garda Síochána in relation to the treatment of any child who is in custody in a Garda Síochána station are without prejudice to any other duties imposed on them in that respect by or under any other enactment. (5) The provisions of the relevant sections shall not apply if and for so long as the member in charge of the Garda Síochána station in which a person is in custody has reasonable grounds for believing that the person is not below the age of 18 years. Amendment of section 5 of the Criminal Justice Act, 1984.
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67.—Section 5 (which provides for access to a solicitor and notification of detention) of the Act of 1984 is hereby amended by the deletion of subsection (2) of that section and the substitution of “eighteen years” for “seventeen years” where the latter expression occurs in subsections (1) and (3) thereof.
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Bail
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Station Bail
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When a child is arrested by a member of An Garda Síochána, he or she may be released on 'station bail' to appear before court at a later date. s. 68 Children Act 2001:
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Release on bail by member of Garda Síochána.
68.—(1) When a child is arrested and brought to a Garda Síochána station by a member of the Garda Síochána, the member in charge of the station may, if he or she considers it prudent to do so and no warrant directing the detention of the child is in force, release the child on bail and for that purpose take, or arrange to have taken, from the child a recognisance, with or without sureties, for his or her due appearance—
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(a) before the Children Court at its next sitting in the district court area in which the child has been arrested or at any subsequent sitting thereof in that district court area during the period of 30 days immediately following such next sitting, or
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(b) in the case of the Children Court in the Dublin Metropolitan District, before the next sitting of that Court or any subsequent sitting thereof during the period of 30 days immediately following such next sitting.
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(2) The recognisance referred to in subsection (1) may be taken from the child’s parent or guardian and may be for the due appearance before the Children Court of the parent or guardian as well as of the child concerned.
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(3) The recognisance may be estreated in like manner as a recognisance entered into before a judge of the District Court is estreated.
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(4) If the recognisance is conditioned for the payment of a sum of money, that sum may be accepted in lieu of a surety or sureties.
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(5) Any recognisance taken under this section, or any sum of money accepted under this section in lieu of a surety or sureties, shall be transmitted, by the person taking the recognisance or receiving the sum of money, to the district court clerk for the district court area in which the sitting of the Children Court before which the child is to appear is being held.
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(6) This section does not apply in the case of an arrest of a child under section 251 (which deals with the arrest of suspected deserters and absentees) of the Defence Act, 1954.
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(7) Section 31 (which deals with release on bail by members of the Garda Síochána) of the Criminal Procedure Act, 1967, shall cease to have effect in relation to a child.
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In relation to an application in court for bail, there are a couple of differences when it comes to children
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Under S. 89 Children Act 2001,S. 5 of the Bail Act which relates to the payment of money into court is amended so that it doesn't apply to persons under 18;
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89.—Section 5 (Payment of moneys into court) of the Bail Act, 1997, is amended by the addition of the following subsection: “(4) This section shall not apply in relation to a person under the age of 18 years.”.
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Under s. 90 of the Act, there are also child specific conditions which the court may impose if granting bail:
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Conditions of bail.
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90. (1) When releasing a child on bail the Court may, in the interests of the child, make the release subject to one or more than one of the following conditions:
(a) that the child resides with his or her parents or guardian or such other specified adult as the Court considers appropriate,
(b) that the child receives education or undergoes training, as appropriate,
(c) that the child reports to a specified Garda Síochána station at a specified time at such intervals as the Court considers appropriate,
(d) that the child does not associate with a specified individual or individuals,
(e) that the child stays away from a specified building, place or locality except in such circumstances and at such times as the Court may specify,
(f) such other conditions as the Court considers appropriate.
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(2) Where a child who is released on bail does not comply with any condition to which the release was subject and is subsequently found guilty of an offence, the Court, in dealing with the child for the offence, may take into account the noncompliance in question and the circumstances in which it occurred.
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(3) Subsection (2) is without prejudice to any other enactment which empowers a court to deal with offences committed by a person while on bail.
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Delay /Ageing Out
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The Court Services Annual Report indicates that waiting times in the Central Criminal Court are, on average, 11 months and that ‘earlier dates are made available for trials involving child and other vulnerable witnesses’. This figure does not take into account time spent in the District Court for service of the Book of Evidence. In this jurisdiction, the issues regarding delay for hearings of child defendants have been comprehensively examined in the case of RD v DPP [2018] IEHC 164. Domestic and international legislation requires that there is no delay when it comes to matters involving child defendants ( S. 73 Children Act 2001, Rule 20.1 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules") states that:
Each case shall from the outset be handled expeditiously, without any unnecessary delay
Article 40.2 (b)(iii) of the Convention on the Rights of the Child states the State Parties shall ensure:
(iii) ‘To have the matter determined without delay…..’
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Furlong v DPP [2021] IEHC 326
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Judgment released on www.courts.ie 13th May 2021
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Judicial Review case where child defendant had turned 18 during the criminal proceedings. A case wa brought to restrain proceedings as the defendant had lost opportunites to apply under s.75 Children Act 2001 to have the opportunity to have the case tried before the District Court as well as other provisions e.g. reporting restrictions, obligatory probation report. The JR application was successful and the judgment is interesting as the Court looked at all the elements of the delay. While finding that the defendant was culpable for part of the delay, the Court ultimately restrained the prosecution of the offences.
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Support Measures for Vulnerable Defendants
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The support measures available to the vulnerable witness or victim are generally unavailable to the vulnerable defendant.The role of the defendant is different to that of the witness or victim and there is no obligation on the defendant to give evidence unless he or she wishes to. What is very important is that the vulnerable defendant is able to participate in the trial process and to do that, he or she must be able to understand what is going on and to be able to give instructions to his or her legal representatives. The main case grounding this is the case of T and V v UK ECHR 1999 where the Court found that while there had been accommodations made for the very young ages of the two defendants, the procedures and media attention resulted in a violation of their right to a fair trial. The sue of intermediaries appointed through the inherent jurisdiction of the court may go some way to improving the situation for a particularly vulnerable defendant. This has been the experience in England and Wales and while there is still no panel of trained intermediaries to draw from in this jurisdiciton, the Courts have appointed persons who they deem suitable to assist the vulnerable defendant.For example in DPP v BD (Children's Court, June 2019) Judge O'Connor appointed an intermediariary to assist a child defendant who had some cognitive issues to assist his participation in the course of a hearing.
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