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An analysis of the wording that “a court … maymake … the communitysanction (includinga
communityservice order) if it considers that the imposition of such a sanction wouldbe
the most suitable wayof dealingwith the case” appears to liberate communityservice
orders in respect of sixteen andseventeen year olds fromthe restricting role of section 2 of
the 1983 Act. If communityservice orders as set out in section 115 and116 are to be
interpretedas subject to the limitations of section 2 of the 1983 Act then one might have
expecteda clause, subsection or wording in the Children Act 2001, to indicate such
limitation. In this regard, the speeches bythe Minister for Justice, the Minister of State
with responsibilityfor Children, Senator OrmondandDeputyMaloneywere not qualified
or later correctedin the Oireachtas Debates leading one to conclude that what was saidin
the Dail andSenate adequatelyexplains the literal andpurposive interpretation of the
Children Act 2001 that communityservice for sixteen andseventeen year olds was
henceforth to be interpretedas a penaltywithout reference to custody, except andonly
when the issue of compliance with such order was to be addressedbya court, but
otherwise the role of custodyin the determination of a communityservice order as a
suitable penaltywas not to apply.
The restriction upon the use of detention for failure to complywith a communitysanction,
(section 116(4)), which must include a communityservice order under section 115, is
further evidence of the legislative intent that a communityservice order could be made in
respect of sixteen/seventeen year olds without a court first concludingthat but for the Act
of 1983 the penaltywould have been a custodial sentence. McIvor’s reference to
“torturedlogic” which requires a court to contemplate a custodial sentence before deciding
upon a communityservice, becomes excruciatingwhen one applies the strictures of section
2 of the 1983 Act to subsection 4 of section 116 of the Children Act, 2001. Quite simply,
logic however tortured, fails in this exercise, yielding one clear interpretation that
communityservice orders under sections 115 and 116 of the Children Act 2001 must
henceforth be regardedsui generis, a distinct penaltyfromthat which applies to adult
offenders. It is arguedthat the legislators intendedthis result but the manner bywhich they
sought to bring this about remains open to question.
These two positions are neither similar nor compatible. Perhaps this policyimpasse of
simultaneouslystructuring andde-structuring the prison systemis best captured in a
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