‘Downright unjust’ law on sentencing of children for murder is ruled unconstitutional by High Court

A law that required children convicted of murder to face mandatory life imprisonment if they reached the age of 18 before sentencing has been ruled unconstitutional by the High Court.
Mr Justice Garrett Simons said judges should be allowed to consider age and maturity as mitigating factors when children commit murder, regardless of how old an accused is at the time of sentencing. He said there is “no rational basis” for the manner in which the law has been applied up to now.
“The fact that a juvenile offender has reached the age of 18 years prior to being sentenced does not affect their moral culpability,” he said.
The application was made by Seamus Clarke SC, Mark Lynam SC, Keith Spencer BL and Oisín Clarke BL on behalf of two teenagers charged with the murder of Tristan Sherry at Browne’s Steakhouse in Blanchardstown, Dublin 15 on Christmas Eve last year. Both accused have since turned 18 and face trial as adults before the Special Criminal Court.
They argued that the differing treatment of child offenders, based solely on their age when they come before the courts, was a breach of Article 40.1 of the Constitution, which requires all citizens to be held equal before the law. While the State opposed the application, Mr Justice Simons’s decision has been broadly welcomed by legal professionals.
Thomas O’Malley SC, a retired senior law lecturer at University of Galway, said “the present law, as we understand it, is downright unjust”.
“It is often a matter of chance whether a child charged with murder has reached the age of 18 years by the time of conviction,” he said, adding that a mandatory sentence for “aged out” murderers was unjust and illogical.
“The reason why we hold that children should not be imprisoned and, if detained at all, only as a last resort, is that children are inherently less culpable than adults,” he said. “Therefore, when determining a person’s culpability, the focus should be on their age at the time they committed the offence and not at the time of sentence.”
Mr O’Malley urged the State not to appeal the decision and to “concentrate instead on reviewing the law on the sentencing of children who commit serious offences, including murder, because such a review is long overdue”.
Another leading barrister, who did not want to be named, said it had “once again” fallen on the courts to “rectify one of the glaring and often identified inequities in the law on the sentencing of children”.
Children who have been convicted of murder and sentenced prior to the age of 18 have faced a range of sentences up to and including detention for life.
One of the boys convicted of murdering 14-year-old schoolgirl Ana Kriegel, known as Boy A, was sentenced to life with a review after 12 years. His accomplice, Boy B, was sentenced to 15 years with a review after eight years.
Both were 13 when they murdered Ana at Glenwood House at Laraghcon, Clonee Road, Lucan on May 14th, 2018. They were convicted by unanimous jury verdicts in June 2019 and were still children when they came before Mr Justice Paul McDermott for sentencing later that year.
In his judgment, Mr Justice Simons said it is recognised that the age and level of maturity of a juvenile offender are relevant considerations in sentencing.
“There is no justification for treating one class of juvenile offender less favourably by reference only to the happenstance of their age as of the date of sentencing,” he said.
A juvenile offender, he said, may lack the insight and understanding of an adult because their cognitive capacity and psychosocial development is less advanced.