Author: Órla Ní Mhuirneacháin
Órla Ní Mhuirneacháinis a third-year law and political science student at Trinity College Dublin in Ireland. She has previously studied abroad at the University of Helsinki, Finland. Órla has participated in ELSA Prague’s Winter Law School in February 2020 on Security Law in Present and Future. She sits on three publication editorial boards in her university, as well as working as a student journalist.
The recent juvenile murder case of Ana Kriégel has unequivocally shifted Ireland’s juvenile sentencing system into sharp focus. A once-neglected area of Irish legal literature, the criminal justice system for young offenders has finally come to the public’s attention in recent decades, and this national scrutiny is duly justified. It is worth questioning such a regime’s objective and methods in contemporary society. But how can this evaluation be achieved?
This essay proposes that a comparative analysis of the Irish youth justice system with its counterpart in Finland will enable Ireland to understand the merits and flaws in its own legislation. With a uniquely Nordic approach to criminology and ranking consistently among the lowest rates of crime in the world, Finland is considered a pioneer of a groundbreaking juvenile justice system, making it the ideal case study for comparison to Ireland to highlight the latter’s need for reform. This paper will compare and contrast the respective criminal ages of liability, pre-trial and trial procedures, and the relevant sanctions in both Ireland and Finland to concludingly prove that the Irish justice system for young offenders is, in some instances, in need of recalibration.
2. Political Systems and Legal Ideology
Politically, Ireland and Finland can be considered quite similar: both are members of the European Union, with domestic parliamentary democracies and multiparty political systems. Both have a long history of colonisation by foreign powers and internal conflict, as well as a strong tradition of the separation of powers enshrined in their Constitutions. However, in legal terms, these countries are staunchly dissimilar. Firstly, Ireland is a common law country, which means that while its legal system stems from a Constitution and parliamentary acts, its court system is bound by the principle of stare decisis and case law. Meanwhile, Finland is a civil law country, with strict adherence to the will of the legislature and the wording of parliamentary acts, but it does not have a rigid civil code per se. Unlike Ireland, “instead of one Constitution, Finland has a number of Parliamentary Acts of a constitutional status … the most important of which is the Constitution Act 1919”.
In terms of its philosophical underpinnings, criminal policy in Finland has evolved historically to take a hybrid approach to juvenile justice, that constitutes a compromise between the neoclassical approach of punishment and the rehabilitative approach known as “humane neoclassicism”. This approach stresses “both legal safeguards against coercion and less repressive measures in general”. This ideology stems from the belief that law and justice ought to be more humane and account for the needs of the offender as well as society. However, the Finnish consensus on punishment is significantly less than the principles of “just deserts”, which is found in Irish criminal law. While Ireland also emphasises the importance of rehabilitation, its philosophy is more nuanced than Finland’s in relation to criminal offenders, scintillating into a somewhat more punitive ethos and has even branched into areas such as actuarial justice. The Irish approach that assumes a criminal is an inherently in immediate need of retribution is one that is arguably outdated, and fails to account for the tangible reality that criminal behaviour patterns can change with positive interventions as Finnish humane neoclassicism does.
Furthermore, in a similar fashion to Ireland, Finland emphasises the rule of law and the principles of predictability and proportionality as the cornerstones of its criminal justice systems. It is a core requirement of any liberal democracy and consistent with fundamental human rights principles. These principles stress the ideals that the degree of punishment should foreseeably match the severity of its corresponding crime. Yet, it is still a more prominent line of thought in Nordic criminal practice to emphasise a lesser degree of punitive sanctions: judges tend to focus on a more equitable approach that accounts for the offender’s circumstances, rather than mere punishment matching the degree of wrongdoing. This is true even with respect to adults, and this ethos is enshrined in Chapter 6 of the Finnish Penal Code. In this light, it is fair to claim Ireland lags behind Finland. To issue punishment without due regard to an offender’s personal conditions is to disadvantage those who are most vulnerable to becoming “the usual suspects” by the Irish system, especially those from working class or “deprived” backgrounds. Research even suggests that this labelling process has actually become the norm in Ireland. Opposingly, in Finland, this stigmatisation is curtailed through punishment mitigation and acknowledging the systemic factors influencing criminal behaviour beyond one’s control. This approach should be adopted in Ireland in order to foster a more equitable penal system that will benefit those who need said mitigation the most.
Interestingly, a related criticism can also be levelled at Finland and Ireland for adopting the erroneous risk-based research approach to youth crime prevention. Although Finland once held a tradition of generalised criminal deterrence, Ireland’s Anglo-Saxon, neoliberal ideology of “risk reduction” has recently emerged Finland, focusing on crime reduction at an individual level: children and their families in the two states are increasingly seen in isolation from their community and their justice systems focus on personalised “early intervention”. Criticism of this approach can be found in each state’s respective literature: for example, Kuovenen argues that this strong interventionism in Finland can “easily violate integrity, which is pervasive as a fundamental right”, whilst Carr and Mayock contend the Irish model of identifying “risk factors” among offending children in care “confuses causes and effects” of crime, while narrowly defining what constitutes a “risk”. There is no guarantee that a child’s background and personal circumstances will necessarily lead to the prediction of crime participation: such a method risks increasing the likelihood of negatively typecasting those from disadvantaged backgrounds, and dampening their fundamental rights to self-determination, liberty and development – a fact irreconcilable with the neoliberal, capitalist ideology dominating both Ireland and Finland today. A more egalitarian approach, perhaps, would be to redistribute prevention resources equally among all communities – rather than singling out one class of persons as inherently more prone to criminality.
3. The Age of Criminal Liability
One must examine the stark difference between Finland and Ireland’s ages of criminal responsibility in order to understand why the Irish judicial system errs in its means of sentencing young offenders.
In Finland, the Young Offenders Act 1940 clarified that no offender under 15 – known as a “child” – could be charged with a crime. As Joutsen explains, this age was determined by due regard to “the intellectual, emotional and social development of the child”: at such an age, a child is still within “the close social control of his home and immediate neighbourhood”, and will likely still be in full-time education. The reason behind this threshold holds that children under 15 do not possess the full mental capacity to understand the culpability involved in their crimes. A further utilitarian argument posits that only when a child has finished their compulsory education and is capable of independently entering the labour force may they be regarded as mature enough to assume criminal responsibility. Any child committing an offence under this threshold is dealt with by child welfare services. It is in this light that Finland paints children as “victims” of their social circumstances and in need of assistance, rather than as guilty or immoral. Finnish offenders between 15 and 17 years old at the time of offence are known as “young offenders”. A distinctive feature of this category of offenders is that they are subjected to the care of both the Finnish welfare systems and the court system: while an offender under 18 may be taken into care by the welfare system or be supplied a Junior Parole Officer, they can still stand trial. They cannot, however, be sentenced unconditionally. Those aged between 18 and 20 are subjected to the normal rigours of the criminal justice system, being considered to have reached full legal maturity.
Ireland, in sharp contrast to Finland, has not been so deft in this differentiation. Unlike Finnish law, Ireland’s Children’s Act 2001 (as amended by the Criminal Justice Act 2006) abolished the old presumption of doli incapax– a rebuttable presumption that children under 14 were incapable of crime – and established the minimum age of criminal responsibility as 12 years. This signifies a sizable age gap between these two legal systems. As Hanly points out, the move away from a focus on the child’s capacity relative to age has left Irish law in an unusual position where it accepts a child under 12 “can in fact commit a crime but prevents any sanction being visited upon the child for doing so”, but children immediately above this threshold can face prosecution: consent is needed by the Director of Public Prosecutions in Ireland to take a case against any young offenders under 14 years of age Arguably, Ireland’s threshold age of 12 is too low for criminal liability in comparison to Finland’s threshold age of 15, having regard to the emotional and psychological maturity of children at these very different stages of development. Inarguably, Finland’s laws are more comprehensive and preferable to Ireland’s, strengthened by their simplicity and proportionality in severity of punishment relative to age and maturity.
Perhaps the most striking flaw of the Irish juvenile justice system, which is absent in Finland, is the law that states children between the ages of ten and twelve can be held criminally liable and sentenced for crimes of a serious nature – including among them manslaughter, rape and murder.This has created a dual system wherein younger children can be held culpable solely due to the nature of their offence. The UN Committee on the Rights of the Child has been vocal in its criticism of this duality, from a child’s rights perspective, “not least because it ensures that children in more serious trouble will experience more harsh treatment”, whereas the Finnish system measures out justified punishment with due regard to both the severity of the crime and the child’s age and maturity. Ireland’s lacuna has also been criticised by the European Committee of Social Rights, which has accused the Irish state of breaching Article 17 of the European Social Charter with such a low age for these special crimes.Moreover, Ireland completely disregards how such an act and the trial process could impede such a young child’s mental health and development, while Finland takes greater care to ensure that a child of identical age receives the care they need – after all, a child convicted of such a weighty offence will be “better served through social welfare services, deserving more protection than punishment”. It can even be argued that the latter system adheres to, while the former runs contrary to, Rule 5.1 of the United Nations’ Beijing Rules, which requires that any domestic juvenile justice system “emphasise the well-being of the juvenile and shall ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offenders and the offence”. Ireland, therefore, can be critiqued for failing to match Finland in its adherence to internationally-recognised standards for juvenile offenders between 10 and 12 years.
4. Pre-Trial Procedure
The pre-trial procedure in Ireland and Finland are comparable. If a young offender is arrested in Finland, they cannot be arrested but can be taken in for questioning. The Pre-Trial Investigation Act 1987 guarantees their right to remain silent and the right to free legal counsel after the child is informed of their entitlement to a lawyer by police prior to questioning. This can be likened to the recent Irish Supreme Court case of DPP V Doyle, which reaffirmed a Constitutionally guaranteed right to free counsel prior to questioning. In both systems, the relevant police must inform the child’s parents of their arrest and a guardian must be present during questioning. However, the Irish pre-trial regime is weaker than its Finnish equivalent by virtue of the fact that Gardai (Irish police) cannot be held liable in law for failing to comply with these provisions, hampering the transparent administration of justice.
A further similarity can be witnessed through the conduct of personal history reports that are drawn up by the respective courts in relation to an upcoming trial process. In Ireland, these reports are conducted by the Young Person’s Probation Office, “a specialised branch of the Probation Service established to work with young people”, taken in a narrative format based on interviews with the offenders and their relatives. In Finland, the report is conducted through the relevant local welfare board, examining the accused’s personal circumstances, offence, culpability and history. However, both the Irish and Finnish systems can be faulted for using personal history reports: for example, some scholars argue their conduct runs contrary to the presumption of innocence. Quigley also contends that these reports also increase the likelihood of the negative “labelling” of disadvantaged children. It is worth considering alternative means of assessing childrens’ culpability in these two justice systems that will reinstate the presumption of innocence to the most vulnerable group in their respective societies.
5. The Court Process
For any child who is taken to trial, the stark differentiation between the Finnish and Irish juvenile justice systems is perhaps clearest inside the courtroom. Finland, following the trend of “Scandinavian exceptionalism”, does not have a juvenile court. This is because “age is seen as the mark of responsibility”: those above 15 years are tried in their local district courts, or higher courts for more serious crimes, while children under 15 are remanded to child welfare services. This contrasts sharply to Ireland, which has a Children’s Court based in the capital city, Dublin, to deal especially with non-serious offences committed by those under 18. Quigley explains that the purpose of a designated children’s court stems “from a period [in Ireland] when young people were recognised as being in need of special treatment with a view to rehabilitation”. However, Finland arguably has taken the stronger approach in amalgamating the adult and juvenile justice systems: Seymour has found that the Irish Children’s Court has resulted in “excessive periods” of delay in case hearings for children, which actually increased the child’s likelihood of reoffending. Moreover, she has found that several breaches of children’s privacy occurred in this Court as members of the public frequently attended the in camera hearings. Clearly, the Irish system, while well-formulated in theory, has severe flaws that endangers the very group it aims to protect through its bureaucratic complications which are circumvented in Finland.
Both court systems deploy an adversarial process, with the prosecution leading the charges against the child defendant. However, in the two courts, the judge is not bound to follow the prosecution’s suggested sentence. In Finland, there is a very strong tradition that the judge exercises the discretion to lessen a sentence by up to three-quarters of the full penalty on the grounds of the child’s age, as articulated in Chapter Three of the Finnish Penal Code, or can even dismiss the case if so requested by the prosecution with a view to commencing mediation proceedings. Irish law has a similar provision designed to mitigate juvenile punishment. Section 96 of the Childrens’ Act 2001 states that:
‘ …any penalty imposed on a child for an offence should cause as little interference as possible with the child’s legitimate activities and pursuits, should take the form most likely to maintain and promote the development of the child and should take the least restrictive form that is appropriate in the circumstances; in particular, a period of detention should be imposed only as a measure of last resort.’
Ireland and Finland therefore comparably take a theoretically enlightened approach to juvenile penology that aims to interfere as little as possible with the child’s right to development and a normalised childhood, but the consequential usage of more lenient methods of punishment, as discussed above, is still quite asymmetrical between the two systems.
In evaluating the degree to which a child is culpable, these diverging courts have been proven to use differing methods. Precedent serves as the main source of culpability in the Irish system: it indicates that it tends to equate a high degree of foresight with intent, although the case law has been somewhat inconsistent on this issue. Contrastingly, in Finland, which does not rely as heavily as Ireland on case law, often leaves the guilty verdict to the judge to reconcile individual circumstances of the offender with the strict Finnish values of uniformity and rule of law. Finland, not unlike Ireland, equates a higher degree of foresight with culpability, but additionally accounts for motives, desires, alternative means by which the offender could have acted, and the degree of premeditation involved. It is submitted that the Finnish approach is favourable as it enables the judge to use objective reasoning to find a fitting punishment, rather than being constrained by rigid criteria stipulated by precedent, which may be outdated or flawed. Ireland’s scales for calibrating culpability should follow suit from Finland, in order to gain a wider picture of the context in which an offence is committed rather than focusing on incriminating criteria in isolation.
Juvenile sentencing methods between Ireland and Finland have some notable parallels. This is understandable considering that most common juvenile offences in Finland are petty theft and property damage crimes – almost identical to Irish statistics. Alcohol-related crimes are also equally prominent, which is unsurprising given the rampant alcohol culture in the pair of countries. The most commonly used penalty is fines, of which Finland uses day fines calculated on the basis of one’s earnings.
Community-based sanctions are not frequently used in Finland. This was introduced for juveniles in 1990s Finland after a recalibration towards individualisation of punishment and prevention. However, the suitability of the punishment depends heavily on the young offender’s maturity. Lappi-Seppälä￼
Ireland has a much more elaborate system of community service orders for juveniles than Finland. The Children’s Act 2001 makes several provisions for a variety of community service orders, including among them a residential probation order, a day centre order, and a training-based probation order. However, as in Finland, these specific provisions are rarely used in practice. The most common type of community supervision orders in Ireland are those known as “an order for supervision during deferment of penalty”. However, as Seymour highlights, this penalty is somewhat umbrageous as “retaining children in the criminal justice system for undefined periods of time compromises their right to have criminal matters finalised in an expedient manner and potentially risks drawing them further into the criminal justice system”, which defeats the sanction’s very purpose. Therefore, it would be advisable that Ireland abolish these unnecessarily complex community-based sanctions, and look to Finland’s simpler model as a means of achieving swifter justice, to consider using these types of penalties as a final alternative to juvenile internment in extraordinary cases only.
Mediation is an emerging alternative sanction that is particularly well-suited to the juvenile criminal justice system in Ireland as well as Finland. This is a new form of restorative justice, that aims “at resolving the conflict between offenders and victims by redressing the harm within a voluntary and organised process, based on the interaction of the affected parties through the help of an impartial party” Mediation works particularly well for Finnish and Irish young offenders as an alternative to punishment as it enables young offenders to fully assess the consequences of their actions and even to re-evaluate their attitudes towards committing crime. In addition, in mediation, the victim becomes a party to the proceedings, a feature which is often neglected in the court process. In Finland, almost 30 per cent of contemporary juvenile sanctions result in a mediation order. Local councils are obliged to provide these facilities available at all times during the criminal procedure. In the 90 per cent of Finnish mediation cases that are successful, the charges against the offender are dropped.Among Finnish youths, mediation has reported significantly positive feedback on attitude change in young offenders towards crime, proving that mediation has served the Finnish juvenile justice system well in mitigating criminal behaviour.
In Ireland, the mediation process for children is akin to Finland’s: those under 18 have mediation sessions with a Junior Liaison Officer under the Juvenile Diversion programme with the Gardai and on the consent of the victim. The offending child will receive a formal or informal caution, and in the presence of the Officer and their parents, will issue an apology to the victim and occasionally some form of financial compensation. The reasoning underlying this process falls along the same ideological lines as Finnish law: the aim of mediation is to humanise the victim for a young offender, and to stress the fact that a child’s actions have consequences. This method, it is submitted, is perhaps the best-suited form of punishment for juvenile offenders and both Ireland and Finland were correct in introducing these measures into their respective legal systems. As well as stressing the importance of building one’s own sense of wrongdoing at such a young age, which lends itself to the moral development of the child and curtails the likelihood of reoffending, both systems emphasise the crucial element of community reintegration through reconciliation to give the child a sense of belonging. However, both states should err on the side of caution in using this method of punishment, as the mediation process has been criticised for being ineffective unless it is used among victims and offenders who belong to the same socio-ethnic background. As Ireland and Finland become increasingly multicultural and less homogenised with inward migration and globalisation, it will be more pertinent than ever for each state’s respective authorities to pay closer attention to childrens’ and victims’ socioeconomic circumstances in their deployment of mediation services to ensure an equitable result is reached between the parties.
Ireland mirrors Finland insofar as both have abolished their former juvenile prison systems. Firstly, Finland abolished its former juvenile prisons in the 1970s. Any offenders between the ages of 15 and 17 imprisoned shall be incarcerated on a lessened sentence in an adult prison, but segregated from older inmates for protection. Opposingly, Ireland has taken a slightly deviated approach, going one step further than Finland: the existing penitentiary institution for under 18s in Ireland is Oberstown Detention Centre, which opened in 2017 and housed 132 young offenders in detention or on remand in 2018 under section 142 of the Children’s Act 2001. Section 158 of the 2001 Act regulates this detention centre, which requires it provide “appropriate educational, training and other programmes and facilities for children having regard to their health, safety, welfare and interests, including their physical, psychological and emotional well-being”. Although falling detention rates among children might suggest that detention is becoming increasingly outdated and only used in the most severe cases, research reveals a contradiction between practice and theory as a disproportionately high number of admissions to Oberstown are children on remand out of necessity.
Nonetheless, this paper suggests that Ireland’s penal approach is actually favourable over Finland’s. And while it is indisputable that the segregation of children from adults in detention under Finnish law is advisable, it is concerning that there is little available research on the conditions of the few Finnish young offenders in prison, ensuring there is no virtual way of surveying its effectiveness. Moreover, the less formal and specialised approach taken to detention by the Irish detention centre is better tailored to care for emotionally vulnerable individuals, rather than conflating their needs with those of “normal” adult prisoners as done in Finland.
Whereas Finland is regarded as a world leader in the field of juvenile penology, Ireland still clearly has some maneuvering room for improvements in its criminal laws concerning young offenders. While the Irish criminal justice system does have some strengths – such as its specialised detention centre – it is indisputable that its flaws substantially outweigh its merits in comparison to the sophistication of its Finnish counterpart. The more coherent system of gauging criminal liability, higher age threshold, and the holistic sentencing system are hallmark examples of what makes Finnish law for young offenders so remarkable, and Ireland can draw on many of these cues from its Nordic neighbour to reinstate a more holistic understanding of “justice” in the Irish juvenile justice system.
This paper, however, is limited in its conclusions. For example, this essay failed to consider how the European Union has impacted upon both of these member states’. It is also worth noting that the prominent role of the welfare state in criminal proceedings in Finland falls outside the ambit of this paper. Perhaps the most significant shortcoming of this paper is the shortage of research materials at the disposal of the author: the juvenile justice system has long been left in the dark by Irish scholarship, and “academic criminology in Finland may be characterised as rich in content and thin in volume”. It is hoped that this trend will change and that both states will eventually recognise the value of taking measures to protect the special place of children in their respective legal systems as the most vulnerable members of society.
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Tapio Lappi-Seppälä, “Sentencing and Punishment in Finland: the Decline of the Repressive Ideal” in Michael Tonry and Richard Frase (eds), Sentencing and Sanctions in Western Countries(OUP 2001) 92
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Lappi-Seppälä(n 2) 241
Finnish Penal Code 1889, 6:1
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Criminal Justice Act 2001 52(1), see also the Criminal Justice Act 2006 s 129
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Criminal Justice Act 2001 52(4)
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 IESC 1
Joutsen (n 23) 83; Conway et al (n 21) 204
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Etain Quigley, “Pre-Sentence Reports in the Irish Youth Justice System: A Shift to Risk-Oriented Practice?” (2014)Irish Probation Journal 11(1) 68
Matti Joutsen, Young People in the Finnish Criminal Justice System(Research Institute of Legal Policy, 1976) 3
Quigley (n 27) 68
Joutsen (n 28) 2
Quigley (n 27) 65
Seymour (n 5) 336
Lappi-Seppälä(n 14) 12
Childrens’ Act 2001 (n 18) s 96
See Clifford V DPP  IESC 43
Joutsen (n 13) 24
Lappi-Seppälä(n 2) 243
Seymour (n 5) 331
Tapio Lappi-Seppälä, “Nordic Youth Justice” (2011) Crime and Justice40(1) 229
Tapio Lappi-Seppälä, Nordic Sentencing (University of Chicago Press, 2016) 55
Lappi-Seppälä(n 41) 232
Seymour (n 5) 240
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Conway et al (n 20) 207
Pat Carlen, Alternative Justice(Taylor and Francis Press, 2019) 75
Finnish Penal Code 1889 4:8
Oberstown Children’s Detention Centre Annual Report (2018) 5
Seymour (n 5) 339
Lappi-Seppäläand Nuotio (n 4) 194
Conway et al (n 20) 201
Lappi-Seppälä(n 47) 207