Interested in people's thoughts, but a solution might be to follow the approach taken by SC in Carmody and prohibit prosecution of the two applicants until the Oireachtas takes steps to address the unconstitutional discrimination identified in the Court's judgment.

Declaring (b) unconstitutional would not assist applicants. And declaring (a) unconstitutional would go much further than the argument, especially in circumstances where the SC has recently upheld (a) against a frontal constitutional challenge.

But the really interesting question is the remedy, left over for further argument. The discrimination arises from the intersection of two provisions: (a) mandating a sentence of imprisonment for murder; (b) providing that those < 18 can only be 'detained' not 'sentenced to a term of imprisonment'

The judgment shows renewed vitality in the equality guarantee, following the Supreme Court's finding in January that it was unconstitutional to exclude non-married partners from the contributory widow's / widower's benefit.

The reasoning is broadly persuasive. The best argument to defend the legislation is that the provision was only concerned with the effects of a sentence on a < 18 compared to > 18. But given that sentence continues post the age of 18, this isn't wholly convincing.

Two people each accused of committing a murder while under the age of 18 could be subject to completely different sentencing regimes, depending on the happenstance of when they were tried.

Simons J held this breached A40.1 (equality before the law). While legislature could reasonably decide a different set of criteria should apply to sentencing a child rather than an adult, this discrimination had no justification.

The Irish High Court (Simons J) gave an interesting judgment last week in Musueni v Ireland. 2 people were charged with committing murder when < 18 but will be tried when > 18. Because > 18, they would - if convicted - be subject to mandatory life imprisonment. www.courts.ie/acc/alfresco...

More people there?

probably should make the y axis millions