Earlier this year James* stood outside a district court with his social worker, trying to keep warm.
It was wet and cold and passers-by stared at him and his fellow court attendees as they waited. Covid-19 restrictions meant everyone had to wait outside until their case was called.
There were a lot of names on the list ahead of James. His social worker asked a staff member if his case was likely to be reached. Probably not, was the reply, but they had to stay just in case.
It was the 22-year-old’s 13th court appearance after being charged with possession of €10 worth of cannabis in October 2018; a Garda had caught him and a friend smoking a joint in a parked car in south Dublin.
His case was not reached. Instead it was adjourned for a 14th and subsequently a 15th time. James is due back before the court this month. Despite a guilty plea and 14 court appearances over a three-year period, the matter appears no closer to being finalised.
It is not even James’s oldest outstanding case. Another charge, stemming from his fingerprints being found on a stolen car, dates to 2015 when he was 14 years old.
“He feels like giving up,” his social worker says. “He thinks he will never get out from under this.”
James is no angel. He has multiple previous offences, mostly related to cannabis, and has spent a brief time in custody. But, according to his arrest record, he has not been in trouble for two years. These days he mainly sits in his room, on his PlayStation for up to 10 hours a day, his social worker says.
Series of delays
He is one of many young people caught in a seemingly endless series of delays in the youth justice system, says Aisling Golden, the justice programme manager with the Solas Project which supports young people in the justice system.
"We tell these young people, 'This is how you do it, this is how you make it work.' And we're being proven wrong. All these delays are doing is proving to young people that the system doesn't work," says Golden who has previously worked for the Garda Youth Diversion Project and with gang members in Boston.
“This feeling of hopelessness sets in. They feel they can’t win and they ask ‘What’s the f**king point?’”
The UN Convention on the Rights of the Child, which has been ratified by Ireland, states children facing criminal charges have a right to have the matter "determined without delay".
To a large extent, this is not happening in Ireland. And it is not a new problem. Four research studies conducted in 2005-2010 found delays in court lists and the habitual use of adjournments were common in the Children Court.
“It is clear that the length of time currently involved in processing the cases of young people serves to dilute the impact and seriousness of the court process and the consequences arising from their offending behaviour,” a 2008 report from the Office of the Minister for Children and Youth Affairs stated. “Furthermore, and most seriously, it places young people at greater risk of detention on remand as a result of re-offending or breach of bail.”
A 2019 Department of Justice report noted that delays “continue to be a challenge” while the new Youth Justice Strategy pledges to combat the problem by prioritising cases involving children and young adults, and minimising the number of court appearances they face.
Neurological differences
Young people should be treated differently because they are different, at least on a neurological level, says Dr Louise Forde, a lecturer in law at Brunel Law School who has extensively studied the Irish youth justice system.
“We know that one of the reasons teenagers and young adults tend to get into trouble at a higher rate is because of issues relating to their development.
“We have got a lot of neurological research coming out in the past few years confirming what we already knew, that children are different, that their brains are not fully developed yet, they have less understanding of risks of particular actions and more likely to want to act in a way that pleases peers.
“All of these combine to mean that crime tends to peak with adolescents and young adults and then taper off as young people reach fuller maturity in their early to mid-20s.”
Extended court delays can severely impact a child’s mental wellbeing, says Forde. It can also have serious legal consequences. If an offender is sentenced while under 18 they enjoy the full projections of the Children Act, including a right to anonymity and a much greater chance of receiving a non-custodial sentence.
However, if they turn 18 while awaiting finalisation, they lose almost all of those protections. They will also be sent to an adult prison where there will be more violence, more drugs and far less emphasis on education than in Oberstown, the State’s only juvenile detention facility.
Delays are also bad for society, says Forde, as they mean a young person is less likely to be deterred from future offending by whatever punishment is handed down. “The longer it takes, the more likely it is that the response will lose its desired outcome. That’s because you are breaking the temporal connection between the incident and the outcome.”
Causes of delay
The causes of delays in the youth justice system are varied. According to figures from the Court Service, an initial hearing can be obtained in the Children Court within a few months.
The main chokepoints occur later in the process when, for example, gardaí are unable to produce witnesses on a particular date. The defendants or their solicitors often seek adjournments themselves, especially if the charge is a serious one.
“If they know they’re very likely to get a custodial sentence, they will typically want to get it put back for as long as possible, to get that bit more freedom,” says one solicitor who frequently acts for young offenders.
Some of the biggest causes of delays can be down to the judges themselves, according to social workers and young people interviewed by The Irish Times.
In James’s cannabis case, many of the adjournments are because the judge has requested a report of some sort or has mandated that James carry out some sort of restitution.
At the order of the court he has taken courses in both the dangers of drugs and driving (because the offence occurred in a car) and has made a donation to a hospital.
James has also voluntarily gone on a residential drug treatment for cannabis addiction but left when a close family member died. Now the judge has told him he must do the course again before his case can be finalised.
“Even the guards are shocked it’s being dragged out like this,” a social worker said. James has joked that he would be quicker campaigning for cannabis to be legalised rather than waiting for his case to end. “I’m just stuck in a rut now,” he says.
Solicitor Gareth Noble, who specialises in child law, says the number of adjournments in a case often depends on the judge, with some seeing it as part of the process, to make the young person "think twice next time".
According to Prof Ursula Kilkelly, chairwoman of Oberstown Board of Management, Courts, judges "tend to give the benefit of doubt to children to allow them adjust behaviour, to get into line, to comply with conditions, to work with Probation. All of that is good. All of it can lead to delays.
“It is a difficult issue, knowing when to take a decision, knowing where to close things out and give finality to a set of charges and giving young people a chance to change their behaviour.”
Pleading
In 2017, Colm* (23) was charged with handling stolen property. As he tells it, he is innocent. He went to meet his friend who was on a stolen bicycle. A garda found them and charged both with handling.
Despite maintaining his innocence, Colm had originally planned to plead guilty after being told by his solicitor he would likely receive a two or three-month sentence. His girlfriend was pregnant and he wanted to be out in time to help with the baby.
However, after finding out the case would likely be adjourned anyway, he opted to plead not guilty. More than four years later, the case has still not been finalised. It was recently adjourned to September 2022 when Colm’s child will be three years old.
He has not been in trouble with the gardaí since the birth of his child and is now planning to seek an apprenticeship. But the outstanding court proceedings cast a shadow.
“I want to start a full-time job, and get papers behind me because I’m a father. But if I was starting a job on Monday I might have to ask my boss can I take Thursday off because I have to go to court.
“It makes you feel like shit. Because they’re already looking down at you when you go into a job.”
Golden says in her work she sees two types of reaction to the repeated delay of cases. “There’s one they say ‘Screw it, I’m going to continue to be a little bollix,’ and that’s not good for anyone.
“Or they get depressed and say ‘I’m not going out, I’m not going to get a job because my life is just going to get messed up again.’”
Outstanding charges
Another major problem is that children are coming out of Oberstown with charges still outstanding, says Golden. This is despite official guidance that, as much as possible, children should leave Oberstown with a clean slate. One youth worker says she has seen a young person in detention in such a situation having no incentive to better themselves, knowing they will come out of detention just to go back in again.
This is a particular grievance of Noble’s who says it is frustrating when young people are charged the week before they are released from custody or gardaí not bringing the next charge until a young person has finished one case in the Children Court.He says the young person can be under rolling bail conditions. “And then just trying to motivate the young person to engage and comply with those conditions can be very difficult.”
A case management system was supposed to bring all a younger person’s charges together so they could be dealt with quickly and efficiently, says Kilkelly.
“But certainly it happens that a young person spends time in detention, does really well with support and development and makes good progress to go back out and live constructively, and then charges are further processed and results in further time in detention and further sanction.”
The public has an interest in seeing charges investigated and prosecuted properly, Kilkelly says. “Balancing that with the young person’s needs is one of the big challenges of youth justice.”
She says one of the barriers to an efficient case management system is that offences are sometimes dealt with in different court jurisdictions, meaning a single judge may not have the power to deal with all charges.
“One of the definitions of a child-friendly system of justice is justice that is speedy. It’s in the person’s interest for them to be able to move on and play a positive role in their own community.”
She says one area the Government could examine is extending the protections of the Children Act upwards, so that even if a case is delayed, a young offender would not be exposed to the full rigours of the law the day they turn 18.
“The whole area of emerging adults recognises that 18 is actually a pretty arbitrary cut-off and that vulnerability and lack of development exists right up to the 20s.”
Providing a buffer of even one extra year in cases where there has been a delay “would be really important to look at from a legislation point of view”, Kilkelly says.
“Time is not children’s friend,” she adds. “And particularly not in criminal matters.”
*Names of young people before the courts have been changed
