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legislation. 55 However, for the purposes of analysis, this chapter proceeds on the premise
that a distinctly new form of community service order has been provided for in this
legislation and that orders of community service may be made in respect of sixteen and
seventeen year olds (children) where the court would otherwise not be bound to
contemplate a custodial sanction as the first choice of penalty before substituting such
penaltywith a communityservice order.
Clearly, the Children Act 2001 indicates a radical departure from the settled policyof using
communityservice orders in a restricted manner while coupled to custodial sentences. It is
important to emphasise that the settled policysince 1983 has not been altered in respect of
adults or persons over eighteen years of age. The reply by the Minister for Justice to
DeputyStanton that he does not envisage anychange in the policyconfirms a continuance
of such an approach into the future (supra). But evidently, and this is clear from speaker
after speaker in the Oireachtas debates on the Children Bill 1999, the inclusion of
communityservice as one of the ten “communitysanctions”, which byanymeasure would
be characterised as middle range or intermediate penalties, severed the custodial
requirement in making a community service order for sixteen or seventeen year old
children and in that respect created a wholly newpenal sanction. It will be recalled that a
primary rationale for the introduction of community service orders in 1983 was to relieve
the prison system of “unnecessary” committals for short term sentences, a large cohort of
the overall prison population. It is somewhat difficult to reconcile this rationale with the
new measure created under Sections 115-116 of the Children Act 2001, except to assume
that the legislators were of the viewthat communityservice was under-utilised in respect of
sixteen and seventeen year olds to date. The inclusion of community service orders in the
newcategoryof communitysanctions presumablywould promote their further use thereby
lessening the need to make detention orders in respect of these specific offenders. It is
argued in this chapter that the new statutory arrangement providing for the making of
community service orders for children is unlikely to achieve this objective and may instead
have the unintended consequence of increasing the number of sixteen and seventeen year
old children in detention notwithstanding the legislative intent to use detention only as the
penalty of last resort (Section 96 Children Act 2001, Whitaker 1985). It is possible, as a
result of the major prison-building programme conducted by the Department of Justice in
the late 1990s and despite the continuous growth in the prison population since 1983, the
55 Acommunityservice order mayonlybe permittedunder Section 2 of the 1983 Act providedthe Court has first decidedto impose an actual custodial sentence.
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