(Darren Gray examines the law relating to the sentencing of juveniles)
Introduction
The difficulties and complexities of sentencing children convicted of serious offences was brought into sharp focus by the harrowing murder of fourteen-year-old Ana Kriegel. Boy A and Boy B, as they became known by the media, went on trial for murder and aggravated sexual assault. In June 2019 they were convicted by unanimous verdict in the Central Criminal Court following a seven-week trial. The perpetrators of this abhorrent crime were only thirteen years old at the time of the offence and were only fifteen by the time they were sentenced. Boy A received a sentence of life imprisonment, with a twelve-year concurrent sentence for aggravated sexual assault. The Court ordered that this sentence be reviewed after twelve years. Boy B received a fifteen-year sentence, which is subject to a review after eight years. Similarly, the day before the Ana Kriegel sentences were handed down, a seventeen-year-old boy was sentenced to eleven years in prison for a premeditated attempted murder. He viciously attacked a young woman, who he met on social media, with a knife and left her for dead. Mr Justice White ordered that this sentence be reviewed in 2023, or after five years. He was fifteen years old at the time of the offence.
The Judiciary have a difficult task when it comes to passing sentences. They have frequently been criticised by certain aspects of the media, and members of the public, for being too lenient, however they must consider what society is trying to achieve when it decides that an individual should be punished for a wrong committed. There are many theories which factor in the Judiciary’s choice of sentence, which include retribution, deterrence and rehabilitation. The most important concept that the Judiciary use to inform their choice of sentence is proportionality.
When cases involve children convicted of the most heinous crimes against society, the Judiciary have an arduous task when it comes to sentencing. They are bound to consider mitigating factors, one of the most important being the age of the child when they committed the offence. The Courts and legislature have said that children are not to be treated the same as adults in such cases and that the sentencing Judge must have a discretion, especially in relation to a life sentence, except for extreme cases. This being said, the Judiciary seem to have overreached into the realm of the Executive when ordering that these sentences should be the subject of Judicial oversight by way of an inbuilt review. The Supreme Court has said in no uncertain terms that it disapproves of this type of sentence and it sought to dissuade lower courts from handing down, and upholding, sentence reviews. The Supreme Court has said that in the absence of legislative intervention the courts should discontinue the use of sentence reviews.
The Judiciary have a distinct role when it comes to sentencing and must be allowed to use their discretion, especially when dealing with children. Judges must consider punishing the conduct in question, deterring similar future criminal conduct and the rehabilitation of the offender. Rehabilitation should be at the forefront of a Judge’s mind when they are considering what sentence should be imposed on a child and this appears to be the rationale behind imposing sentence reviews.
Theories of Punishment
There are many theoretical justifications for sentencing and punishment. Professor Thomas O’Malley in Sentencing Law and Practice highlights the most prevalent theories, namely, retribution, deterrence and rehabilitation .
Retribution
The retribution theory, in its harshest form, can be traced to the old adage ‘an eye for an eye, a tooth for a tooth’. Some theorists believe that a punitive sanction is a way to address the fact that the offender, by contravening an agreed set of rules, has breached the social contract that allows society to function . In more recent times theorists who subscribe to retribution as a theory of penology refer to ‘desert’ or ‘just deserts’ . The theory relies on the notion of commensurability. Professor O’Malley explains this notion in Sentencing Law and Practice. He notes that,
“The object is to impose a penalty which is commensurate with the gravity of the offence. Commensurability, in turn, must be assessed by reference, first, to the gravity of the offence compared to other offences and, secondly, to the gravity of the particular offence compared with other possible manifestations of it. ’
To determine a punitive sanction solely based on retribution, without considering the personal circumstances of the individual, cannot be regarded as a fair system of punishment . However, the Judiciary may use this as a guide when considering what is an appropriate sentence. Denham J, in People (DPP) v M , has stated that sentencing must not be regarded as a form of vengeance. She stated that,
“Sentencing is neither an exercise in vengeance, nor the retaliation by victims on a defendant. However, the general impact on the victim is a factor to be considered by the court in sentencing…The nature of the crime and the personal circumstances of the appellant, are the kernel issues to be considered and applied in accordance with the principles of sentencing, for this is an action between the State and the appellant and not an action between the appellant and victim. ”
A fair and just use of the retribution, or ‘just deserts’, theory must be informed by the concept of proportionality, which will be discussed in due course. The second factor which the Judiciary use to inform their choice of sentence is deterrence.
Deterrence
Deterrence, as the name suggests, is a theory adopted by the Judiciary as a way in which to discourage a certain type of illicit behaviour by delivering a sentence which shows society that this type of conduct has serious consequences . This type of deterrence might more accurately be called general deterrence, as opposed to specific deterrence.
General deterrence is the courts way of attempting to prevent the commission of further crimes. This approach may be favoured by the utilitarian school of jurisprudence. Professor O’Malley says that,
“The moral premise is that the State is justified in imposing such punishment, which may or may not be strictly proportionate to the offence, it will deter offending by others and therefore make society safer and more secure. ”
There are serious moral and constitutional issues raised by this approach to punishment. Individuals should not be regarded as mere tools in the advancement of social policy . This approach to punishment has been shown to have a limited impact on deterring certain conduct. For example, in the United States of America certain States impose the death penalty for murder, however such an offence may be committed impulsively, with the offender having little regard to the punishment at the time of the offence . Another pitfall with this approach to punishment is that the prospective offender may not be aware of a higher sanction for the conduct undertaken. From an Irish perspective, a drug-dealer may be ignorant to the fact that if they are found in possession of over €13,000 worth of drugs then they may expose themselves to a mandatory ten-year sentence .
Specific deterrence is an approach whereby the courts attempt to discourage an individual from reoffending by imposing a specific sanction. Professor O’Malley says that this is a more favourable approach than general deterrence, however,
“…the offender is still be(sic) used instrumentally to some degree, in the sense that the object is to protect society from further offending by him or her personally, rather than by others who might be tempted to emulate the offending behaviour. ”
The use of imprisonment as a form of specific deterrence is rarely effective. Individuals may become recidivists rather than reformed when they receive a custodial sentence . A more appropriate use of specific deterrence may be the imposition of a suspended sentence. This is a way in which the courts can attempt to dissuade future misconduct by threatening punishment for past misconduct . If an individual who is the subject of a suspended sentence and commits a ‘triggering offence’ within the period of the suspension, they may be brought back to court to have their sentence reactivated .
Rehabilitation
Rehabilitation is the way in which the justice system attempts to dissuade offenders from reoffending and reintegrate them into society. Professor O’Malley states that the courts may impose a punishment for retribution or deterrence, but the obligation is on the prison authorities to promote rehabilitation . The European Court of Human Rights has stated that rehabilitation is an important aspect in sentencing. In Dickson v The United Kingdom (2008) the ECtHR stated,
“…while accepting that punishment remains one of the aims of imprisonment, the Court would also underline the evolution in European penal policy towards the increasing relative importance of the rehabilitative aim of imprisonment, particularly towards the end of a long prison sentence. ”
Rehabilitation helps offenders address the reasons why they became offenders and provides them with mechanisms which assist them to reintegrate into society. For some offenders, rehabilitation helps them to deal with substance abuse issues and provides them with training so that they may acquire a skill which may be useful when they return to society. For other offenders, problematic behaviour may be addressed by undergoing anger management or being introduced to healthy coping mechanisms.
Professor O’Malley asserts that this is the most appropriate way to deal with first time or young offenders as it is less likely that they will be stigmatised as a criminal or an outcast and it makes it more likely that they will conform to social norms . He goes on to say,
“Rehabilitative sanctions can help offenders to address problems and issues that they may have contributed to their offending conduct. They can thus have beneficial consequences, not only for the particular offender, but also for society at large which will clearly benefit from the reduced risk of further harm. ”
Both sentencing, and appellate, courts have acknowledged that each of these theories have an important role in determining the nature and duration of sentences. It can be said that the courts have used a ‘hybrid’ approach to sentencing, however, the overarching principle which the courts must have regard to is proportionality.
Proportionality
In People (Attorney General) v O’Driscoll [1972] 3 JIC 0301, Walsh J stated,
“The object of passing sentences are not merely to deter the particular criminal from committing a crime again but to induce him in so far as possible to turn from a criminal to an honest way of life and indeed the public interest would best be served if the criminal could be induced to take the later course. It is therefore the duty of the Courts to pass what are the appropriate sentences in each case having regard to the particular circumstances of the case – not only in regard to the particular crime but to the particular criminal ”
This indication from the Court of Criminal Appeal shows that the Judiciary must have regard to the characteristics of the offender as well as to the conduct in question, in other words, the sentence must be proportionate. Henchy J found that proportionality might be found in Article 40.3 of the Constitution when he said that it should contain,
“….at the very least, a guarantee that a citizen shall not be deprived of his liberty as a result of a criminal trial conducted in a manner, or in circumstances, calculated to shut him out from a reasonable opportunity of establishing his innocence; or, where guilt has been admitted, of receiving a sentence appropriate to his degree of guilt and relevant personal circumstances. ”
The issue of proportionality and sentencing was raised in a challenge to the mandatory nature of life sentences for the offence of murder. In Lynch and Whelan v The Minister for Justice it was argued that the Oireachtas, by setting a mandatory sentence encroached into the judicial sphere. The Supreme Court found that the Oireachtas did not breach the separation of powers, however, it did recognise that proportionality has a role to play. Murray J said,
“That it is not to say that legislation which imposed a fixed penalty could not have its compatibility with the Constitution called into question if there was no rational relationship between the penalty and the requirements of justice with regard to the punishment of the offence specified. ”
The Supreme Court was again asked to consider the mandatory nature of sentences in Ellis -v- Minister for Justice and Equality .
This case involved an individual who entered a guilty plea to an offence under section 27A(8) of the Firearms Act 1964 (as amended). Mr Ellis was previously convicted of an offence under section 27B of the Firearms Act 1964. Section 27A(8) of The Firearms Act provided that a sentencing court must impose a mandatory five-year prison for a second offence under this provision. The Circuit Court imposed a five-year sentence but suspended it in its entirety, as Mr Ellis had made efforts to address his behaviour. The Director of Public Prosecutions sought to appeal this sentence on the grounds of undue leniency. At the same time, Mr Ellis sought to challenge the constitutionality of section 27A(8) of the Act, as he said it was an unconstitutional encroachment into the Judiciary’s function, as this provision was not proportionate. He argued that the mandatory nature of the sentence imposed under this section breached his rights under Article 34.1 and Article 38.1 of the Constitution. Both the High Court and The Court of Appeal found against Mr Ellis. In the Supreme Court, Finlay Geoghegan J reviewed the relevant jurisprudence in this area before finding that,
“…the Oireachtas may, by law determine that a specified penalty shall apply to all persons convicted of a specified offence subject to the constitutional limitation of a rational relationship, or possibly proportionality… ”
Finlay Geoghegan J said, when declaring that the provision is incompatible with the Constitution,
“However, it is not constitutionally permissible for the Oireachtas to determine or prescribe, by Statute a penalty to which only a limited class of persons who commit a specified offence are subject by reason either of the circumstances which the offence was committed, or personal circumstances of the convicted person…and the selection of the appropriate sentence in accordance with law for the particular offence committed by the individual offender forms part of the administration of justice and is pursuant to Article 34.1 exclusively the domain of judges sitting in courts. This is what the Oireachtas purported to do by enacting s.27A(8) of the 1964 Act, as amended. ”
Judicial discretion when sentencing is an essential component of proportionality. The Supreme Court said in Gilligan v Ireland that ‘One of the hallmarks of the exercise of judicial discretion in sentencing is proportionality ’ The leading case in this area is The People (DPP) v M in which Egan J said,
“One should look first at the range of penalties applicable to the offence and then decide whereabouts on the range the particular case should lie. The mitigating circumstances should then be looked at and an appropriate reduction made. ”
Judicial discretion is an important component in most cases however, it is essential when the Courts are sentencing children. This is proscribed by international human rights law, the Constitution and by legislation.
Sentencing Children
Article 37 of the United Nations Convention on the Rights of the Child states that,
“(b) no child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;”
Article 42A of The Constitution was introduced by way of referendum to bolster the rights of children, it states,
“The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.”
The Children Act 2001, as amended, was enacted to ensure that the welfare of a child must be considered when passing a sentence. Section 96 provides that, where possible, children should avoid a custodial sentence and provision should be made for education and training. It goes on to say,
“(3) A court may take into consideration as mitigating factors a child’s age and maturity in determining the nature of any penalty imposed, unless the penalty is fixed by law.
(4) The penalty imposed on a child for an offence should be no greater than that which would be appropriate in the case of an adult who commits an offence of the same kind and may be less, where so provided for in this Part.
(5) When dealing with a child charged with an offence, a court shall have due regard for the child’s best interests, the interests of the victim and the protection of society .”
The 2001 Act also provides that there is a number of options available to a sentencing judge when dealing with children, they include reprimand , parental supervision orders , compensation , community sanction , day centre orders and detention .
Detention of children is always a last resort for a sentencing court. Section 149 of the Act provides,
“Where a child is found guilty of an offence in the Children Court, any term of detention in a children detention school imposed for the offence shall not be for a period longer than the term of detention or imprisonment which the court could impose on an adult who commits such an offence.”
Professor O’Malley has said that the correct interpretation of this provision, to keep within the spirt of the Act, is that ‘…a court should not sentence a child to term of detention longer than would be appropriate, in the sense of being proportionate, for an adult convicted of a similar offence. ’
Children, Remission & Suspended Sentences
Remission is a process whereby a person sentenced to a period of detention is entitled to at least one-quarter off their sentence . There was no provision for the remission of sentences imposed on children. Hogan J found in Byrne (a minor) v The Governor of Oberstown School , that the failure to provide remission to children was contrary to Article 40.1 of the Constitution, as children were being treated in an unequal manner.
This issue was again raised in relation to enhanced remission . Enhanced remission is the process whereby a person who has been sentenced to a period of detention, who has been of good behaviour, is entitled to one-third off their sentence. Enhanced remission is not available for children serving a period of detention. Reynolds J stated this in B. (A Minor) v The Director of Oberstown & Ors. . Reynolds J distinguished this case from Byrne (a Minor) and said,
‘…that the guarantee of equality before the law as contained in Article 40. 1 does not require identical treatment for all persons without any recognition of different circumstances. ’
Reynolds J went on to say,
“The detention of children is primarily focused on rehabilitation rather than punishment, with a multiagency approach that is customised to meet the individual needs of the child and its best welfare interests. The Act of 2001 imposes duties on the respondent in respect of a tailored approach to the individual needs of a child in detention with a view to securing a sustained rehabilitation. It is clear that the opportunity to avail of an enhanced remission regime could potentially conflict with a situation where a planned and coordinated release with other agencies is envisaged. ”
It must be note that this case has been the subject of a leap-frog application to the Supreme Court and judgement is awaited.
Suspended sentences for children have been deemed inappropriate by the Court of Appeal. Edwards J found in The People (DPP) v A.S. that suspended sentences for children did not survive the enactment of The Children Act 2001, in particular Part 9 . The Court said that a sentencing court no longer has the power to impose suspended sentences and that a deferred sentence is more appropriate.
Section 144 of the Children Act 2001 provides,
“(2) The court shall defer the making of a children detention order only if the court is satisfied that, having regard to the nature of the offence and the age, level of understanding, character and circumstances of the child concerned, it would be in the interests of justice to defer the making of the order .”
Section 144(9) states,
“(9) At the resumed hearing the court shall consider the report prepared by the probation and welfare officer and, if the court thinks it necessary, hear evidence from the officer and shall by order—
(a) impose the period of detention which it had deferred or any shorter period,
(b) suspend the whole or any portion of a period of detention so imposed, or
(c) impose a community sanction appropriate to the age of the child concerned… ”
The Children Act 2001 recognises that young people must be treated somewhat differently to adults in the criminal justice system. They are the subject to different treatment, as their cognitive functions are not fully developed. The 2001 Act provides that there should be a more focused approach to rehabilitation and education. One major deficiency in the 2001 Act is the fact that it is silent on what approach should be taken to children convicted of serious crimes, in particular the crime of murder.
Children Convicted of Serious Offences (Murder)
Walsh J said in, Lynch and Whelan v The Minister for Justice , that,
“In committing the crime of murder, the perpetrator deprives the victim, finally and irrevocably, of that most fundamental of rights, the right ‘to be’ and at the same time extinguishes the enjoyment of all other rights inherent in that person as a human being. By its very nature it has been regarded as the ultimate crime against society as a whole. It is also a crime which may have exceptional irrevocable consequences of a devastating nature for the family of the victim… the crime itself, by its very nature, has always been considered at the highest level of gravity among all forms of homicide or other crimes against the person, whatever the circumstances. Again, that is the reason why the most serious of deterrents is provided by law.”
As stated by Walsh J, the Supreme Court was of the opinion that as murder is the most heinous crime that can be committed against a person, a life sentence is the most appropriate sentence and that it is proportionate for the Oireachtas to mandate that such a sentence must be imposed on conviction. This being said, the Oireachtas failed to address the scenario in which a child commits this most heinous crime, however the Courts have stepped in to fill this vacuum.
The leading case in this area is The State (O) v O’Brien . This case involved section 103 of The Children Act 1908, which provided that children convicted of murder should be exempted from the death penalty but instead be held in detention at the Chief Secretary’s discretion. O’Dalaigh CJ found that ‘The determination of the length of sentence for a criminal offence is essentially a judicial function. ’
Professor O’Malley notes that ‘…the absence of mandatory sentences in the 2001 Act, means that a child convicted of murder may be sentenced to a period of detention, including life, as the court thinks fit in the circumstances. ’ In People (DPP) v V.W. (a minor) (1998) , the Court of Criminal Appeal found that it was appropriate for the Central Criminal Court to impose a determinative sentence on a child convicted of murder, or retain seisin of the matter, which means that the court may impose a life sentence and review it from time to time .
The practice of imposing a sentence, with an inbuilt review mechanism became fashionable among sentencing judges and has been used recently by the Central Criminal Court when the children convicted of the murder of Ana Kriegel were sentenced. This type of sentence was also handed down by White J when he sentenced a fifteen-year old to a premediated attempted murder. Although this seems to be the way in which members of the Judiciary have filled the vacuum left by the Children Act 2001, this practice may be on shaky ground constitutionally.
Sentences with inbuilt Reviews
The practice of imposing a sentence with an inbuilt review was criticised by Keane CJ in The People (DPP) v Finn . Chief Justice Keane said that the power to remit or commute sentences can be found in Article 13.6 of the Constitution, which states,
“The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may, except in capital cases, also be conferred by law on other authorities ”.
This power has been delegated to the Government under section 23 of the Criminal Justice Act 1951, it states,
“(1) Except in capital cases, the Government may commute or remit, in whole or in part, any punishment imposed by a Court exercising criminal jurisdiction, subject to such conditions as they may think proper.
(2) The Government may remit, in whole or in part, any forfeiture or disqualification imposed by a Court exercising criminal jurisdiction and restore or revive, in whole or in part, the subject of the forfeiture.”
Chief Justice Keane said when considering sentence reviews that,
“The making of such orders is not merely inconsistent with the provisions of s. 23 of the 1951 Act: it offends the separation of powers in this area mandated by Article 13.6 of the Constitution. That provision expressly vests the power of commutation or remission in the President but provides that the power may also be conferred by law on other authorities … it was for the legislative arm alone to determine which authorities other than the President should exercise that power. In enacting s. 23 of the Criminal Justice Act, the Oireachtas conferred the power of commutation or remission on the government or, where it delegated its power, the Minister ”
He went on to say,
“It would seem to follow that the remission power, despite its essentially judicial character, once vested under the Constitution in an executive organ, cannot, without further legislative intervention, be exercised by the courts. ”
Keane CJ acknowledged the practical, as well as the constitutional, difficulties with such sentences. He said of the sentence review system that, ‘…it was neither sufficiently clear in its principles nor transparent in its operation to meet the penological requirement of reasonable certainty ’. Murray CJ said that sentence reviews give rise to a number of legal issues, are undesirable and should be discontinued . However, he did acknowledge that these comments are obiter.
Despite the clear assertion from the Supreme Court that sentences with such a review mechanism are in breach of the constitution, in particular, the separation of powers, the Courts have continued to impose sentences with inbuilt reviews when sentencing children convicted of serious offences. The Court of Criminal Appeal upheld such a sentence in DPP v D.G. .
In this case a fifteen-year-old boy attacked and killed a fourteen-year-old boy with a hammer, in what was described as a brutal and unprovoked attack. The accused at no point showed remorse for this killing. The Central Criminal Court imposed a life sentence, which was to be reviewed after ten years. When speaking about the sentence generally Murray CJ said,
“Suffice it to say for present purposes that when a Court imposes a custodial sentence on an offender for a grievous offence such a sentence may reflect a punitive element, a deterrent element as well as the need to protect society and individuals… Children or very young offenders convicted of serious offences which would normally involve lengthy custodial sentences must be considered as falling into a special category insofar as there is a special onus on the Court to have regard to their rehabilitation and welfare for the future because of their young age at the time… ”
Murray CJ upheld the constitutionality of sentence reviews when he said,
“…the imposition of a sentence, in this instance a life sentence, subject to a review by the Court, does not in any way impinge on the autonomous power of the Executive to exercise clemency or to provide for special or early release pursuant to statutory powers as and when the relevant authorities deem appropriate. ”
The reasoning behind this appears to be the nature and gravity of the offence, as well as the young age of the offender. Murray CJ said,
“Very young offenders who commit grave offences of this nature may, in the circumstances indicated above, mature or develop into very different personalities as they reach adulthood and grow older, than that which they had at the time when the offence was committed. ”
This seems to indicate that Murray CJ was of the view that there should be Judicial oversight when sentencing such offenders. He refers to the Court having regard to their welfare and rehabilitation in the future and seems to leave open the possibility that other sentence reviews may not be permissible when he said, ‘Invariably, each case will depend on its own particular circumstances and especially the age of the offender at the time when the crime was committed. ’ However, he may have been referring to the length of the sentence imposed.
In any event, although the Court appears to have regard for the welfare of the child, which is a noble endeavour, the use of such sentences does not seem to be constitutionally sound. In DPP v Finn , Keane CJ quoted with authority from Professor Thomas O’Malley in Sentencing Law and Practice (2000) when he said,
“In developing the part suspended and reviewable sentences, judges had very honourable motives. They were endeavouring, in many cases, to counteract the “revolving door syndrome” by ordering that certain offenders should remain in prison for a minimum period of time. The public would thus have a greater measure of protection and the offender might hopefully be able to get some treatment … ”
Keane CJ went on to say,
“It now appears extremely desirable, to say the least, that the question of remission of sentence, and any review which is to precede it, should be placed on a clear and transparent basis. ”
The approach that has been adopted by Murray CJ is neither clear nor transparent. Keane CJ acknowledged the desirability for such an honourable approach, as Murray CJ’s is, but it should be clear and placed on a legislative basis. Murray CJ said that this is a matter for the Legislature when he stated,
“It is clearly for the Oireachtas to decide whether to retain the present system unaltered, to retain it on a clearer and more transparent basis, to devolve the function wholly or partly to a parole board or some other entity, or indeed to confer it on the courts. But as the law presently stands the courts cannot exercise this function in individual cases by reason of the separation of powers mandated in this regard by Article 13 of the Constitution. Nor can they prescribe or advocate an alternative system because that is in the remit of the legislature. ”
In the absence of provision for sentence reviews in the Children Act 2001, or in subsequent legislation, it would appear that such sentences are contrary to the separation of powers and the courts have encroached on the role of the Executive and the Legislature.
It is unfortunate the redacted Judgements of McDermott J and White J are unavailable at the time publication, as it would be interesting to see how experienced members of the Judiciary dealt with the issue of sentence reviews.
Conclusion
The Judiciary have a thankless task when it comes to passing sentence. This task is made all the more difficult when it comes to sentencing children convicted of the most brutal crimes. As has been shown, their choice of sentence is informed by different theoretical positions, such as retribution, deterrence and rehabilitation, all of which must be considered in light of proportionality. Judicial discretion is a component of this concept, which is all the more important when it comes to dealing with children.
The Children Act 2001 explicitly states that judges must use their discretion carefully when dealing with children. There are different options available for members of the Judiciary when dealing with children including community sanction and parental supervision orders, with detention being the option of last resort. As the 2001 Act provides an alternative, the option of a suspended sentence is not permissible. The Court must impose a deferred order as per the Children Act 2001. Enhanced remission, as the law stands, is not permissible either, as the High Court has said that it would interfere with the purpose of their detention, which is primarily rehabilitation. The 2001 Act is of major assistance when dealing with sanctions for children, however, there is somewhat of a lacuna in relation to children convicted of the most serious offences.
When dealing with children convicted of the most serious crimes the Judiciary seem to favour the sentence review approach. This approach was viewed by the Supreme Court to be constitutionally flawed. The Supreme Court noted the honourable motivation behind such sentences but found that, in the absence of legislative intervention, they are in breach of the separation of powers. The approach taken in relation to children is certainly an honourable one, as it has regard to the welfare and rehabilitation of the offender, but again, in the absence of legislation, this approach would seem to be unsound constitutionally. As has been shown, the courts and the legislature do take a different approach to children, which sometimes involves a slight diminution or enhancement of certain privileges and rights. It is extremely difficult to countenance the divergence from a basic constitutional principle, such as the separation of powers, when dealing with a specific class of people in society, no matter how vulnerable they might be.