The Criminal Justice (Amendment) Bill 2024 provides that a child who commits murder but turns 18 years old before sentencing will no longer face a mandatory life sentence, after the High Court found that the existing sentencing regime is unconstitutional.

In his ruling earlier this month, Mr Justice Garrett Simons held that the “current age of a juvenile offender does not affect their moral culpability as of the time of the commission of the offence of murder”.

He said that “having made a policy choice to exempt certain juvenile offenders from the mandatory life sentence, the legislature must embody same in legislation which complies with the constitutional guarantee of equality”.

The government’s bill will amend the Criminal Justice Act 1990 to disapply both the mandatory life sentence for murder and the minimum custodial period for capital murder for those who were under 18 at the time of the offence.

However, the current draft does not set out any alternative statutory provision under which these murderers will be sentenced. It simply states that the sections of the 1990 Act which include the mandatory sentences do not apply.

Introducing the bill at second stage in the Dáil yesterday, justice minister Helen McEntee said: “By not providing for any sentence for aged-out children, sentencing will default to the common law powers and the court will be able to impose any appropriate sentence.

“This means that, for aged-out children, judges will have discretion as to whether to hand down a life sentence or a determinate sentence.

“This approach is the most comparable to how a non-aged-out child would be sentenced and therefore ensures the two cohorts are treated the same.”

However, Labour TD Brendan Howlin put the question to TDs: “If the mandatory sentence of life imprisonment does not apply to the aged-out child, what law applies?

“The bill does not appear to state what legislation will give legislative authority to a court to impose any sentence in such a case.”

He continued: “It is clear that the court has no power to deal with the kinds of cases in question under the Children Act because the offenders are no longer children. Where is the legislation that would enable the court to deal with them?

“I do not see how a court would rely on common law powers because common law powers and sentencing rules have not applied in cases of murder since at least 1860. Since then, the rules on sentencing for murder have been based on statute law.

“Surely, we should not regress to a pre-1860 position. It would be better to legislate specifically to provide clear power and authority to a court to impose an appropriate sentence.”

Mr Howlin has proposed a short amendment which will be considered by TDs when the bill returns for committee and remaining stages this evening.

It inserts a line saying that, in cases involving aged-out children, “the court may impose such sentence or order as it considers appropriate”.