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“The thirdobjective is to deal with the children foundguiltyof offences through the
imposition of a communitysanction. The Minister has providedten community
sanctions, eight of which are new. This gives great scope to make decisions that will
not criminalise youngchildren”. DeputyMichael Ahern T.D., vol. 517 col. 787,
Children Bill 1999 Second Stage 5 th April, 2000.
The resultingsection 115 lists the communitysanctions as set out above (a) to (j) with the
previouslyestablished communitysanctions of communityservice orders andprobation
orders listedat (a) and (c) respectively. The manner in which these older dispositions are
set out in the legislation has some significance especiallyin relation to communityservice
orders. According to the legislators section 115 has the function of providingeight newly
identifiedcommunitysanctions andreiterating the pre-existing“communitysanctions” of
communityservice orders andprobation (DeputyMichael Ahern Dail Debates vol. 517,
col. 787, Children Bill 1999, SecondStage).
The pre-existingcommunitysanction of the probation order is listedat section 115(c) as an
order under section 2 of the Act of 1907. This merelyhas the effect of marshallingthe
probation order in a list of communitysanctions without amendment to the Act of 1907
andmore importantlywithout changing, in anyway, the character of a probation order
merelybylisting such sanction andcategorisingit under the title of communitysanction
under section 115. However, it is argued that the communityservice order – under
section 3 of the 1983 Act didcertainlyundergo a significant change in character when it
was includedwithout qualification or distinction in the menuor list of community
sanctions under section 115 of the Children Act 2001. It is arguedhere that because
communityservice orders are listed without distinction in section 115, the canon of
construction iusdemgeneris yields an interpretation which obliges one to regardcommunity
service orders as co-equal penalties with the other nine communitysanctions, which
includes probation orders.
If the intention of the legislature was to maintain communityservice orders as a discrete
sanction subject to section 2 of the 1983 Act then communityservice orders wouldnot
have been includedin a list of so-called“communitysanctions” where theycan be
regardedas co-equal and of the same type.
Additionally, section 115 appears to allowa court to make anycommunitysanction provided
onlythe offender is guiltyof an offence. This wouldseemto indicate that not onlyis the
higher Irish standardas prescribedbysection 2 of the 1983 Act abandoned, but the
threshold set out in the original English legislation (Criminal Justice Act 1972, Section 15),
is also demolishedwhere at least the offence in respect of which the penaltywas to be
imposed hadto be “an imprisonable offence”. This raises the interesting question as to
whether a seventeen year oldconvictedof intoxication under section 4 of the Criminal
Justice (Public Order) Act 1994 (as amendedbySec.19 IntoxicatingLiquor Act 2008)
couldbe given a communityservice order where the offence as set out in the statute
provides for a monetarypenaltyonly. If this is correct then one can conclude that the
penaltyof communityservice for sixteen and seventeen year olds as a sanction has been
completelydemolishedandrebuilt in a fashion which is quite unlike anythingexperienced
to date andwhich couldbe describedas potentiallymore punitive.
The role of incarceration was mentioned widelythroughout the Oireachtas debates on the
Children Bill 1999. The views of the Minister for Justice are alreadyreferredto earlier in
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