Briefing by SA Law Commission on Juvenile Justice Discussion Paper

Social Development

09 February 1999
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Meeting report

"Young people in trouble with the law"

WELFARE PORTFOLIO COMMITTEE
10 February 1999
BRIEFING BY SA LAW COMMISSION ON JUVENILE JUSTICE DISCUSSION PAPER

Documents handed out
Summary of Discussion Paper No 79 on Juvenile Justice (Appendix 1)
Questionnaire for workshops on Draft Justice Child Bill, closing date for comment: 31 March 1999 (Appendix 2)

Draft Justice Child Bill with prescribed forms (from SA Law Commission website)

SUMMARY

The SA Law Commission gave a report on progress in drafting legislation on Juvenile Justice, concentrating on the welfare aspect. The emphasis of the discussion paper is on ‘the child in trouble with the law’ as opposed to ‘the juvenile delinquent’.


MINUTES
"Young people in trouble with the law"
Pat Moodley, SA Law Commission researcher, stated that the Commission had produced an issue paper in 1997 in order to get comments. This had led to the current discussion paper and draft bill. They were now in the process of holding workshops and eliciting comment. The closing date for comment is 31 March 1999.

Julia Sloth-Neilson, member of the Juvenile Justice Project Committee of the SA Law Commission, outlined the format of the Child Justice System: Police Station – Assessment - Preliminary Inquiry - Child Justice Court - Pre-sentence phase.

Police Station
There is a preference for the use of the term "child" not "juvenile" where a child would be anyone under the age of 18. The report deals with the arrest of the child and establishing who is the child's parent/guardian.

1 Assessment
Assessment is done by a probation office or social worker.
1) To assess the age of a child is very difficult in South Africa.
2) Make sure that it is not a welfare case

3) Probation officer must recommend whether the child can be released to a parent/ guardian or sent to a place of safety – this must be done within 48 hours.

2 Preliminary Inquiry
This step is not at present in place. The inquiry is chaired by an inquiry magistrate in a round- table discussion with referral agency – not conducted in a courtroom. The magistrate would make the final decision as to whether the child can be diverted or must go to court - must make this decision within 48 hours which is the most innovative feature of report. If the child pleads not guilty or the case is too serious to divert, the case is put on the Children’s Court roll. No formal charge is made until this point is reached.

3 Child Justice Court
This is found at the lowest level, the Magistrates' Court. At any stage the matter can still be diverted or sentence passed. All children under 18 years of age go to this Court. Maximum sentence is 5 years though there has to be a probation officers report. Child may not enter prison unless such a report is available.

Pre-sentence Phase
Can still consider case before sentencing. There is an automatic review of all cases including those defended by a lawyer. There is opportunity for appeal to the High Court.

Monitoring System
This will be a three-tier system
1) Local Child Justice Committee
There will be a committee in every magisterial district which will meet four times a year to make sure all three of the above steps have been taken. They will look out for organisations who can help the child.
2) Office for Child of Justice
This will have a permanent full-time staff. There will be an open door policy at all times. Responsible for seeing all steps have been dealt with … are available.
3) Inter-sectoral Committee
This consists of all people and organisations involved with a case.

Anne Skelton, head of the Juvenile Justice Project Committee of the SA Law Commission, outlined the options for a test for criminal capacity:
Option 1: Between 7 (or 10) to 14 years old - presumed not to have criminal capacity. Below 7 may not be prosecuted.
Option 2: Set a minimum age of prosecution regardless of the criminal capacity of the child. The Bill proposes a minimum age of 12 (or 14) years below which a child may not be prosecuted.
Option 3: Compromise
Set a general minimum age (below 12 or 14 but above 10) and provide specific exceptions to the rule if charged with a serious offence.

Age assessment Children often misrepresent their age. Most developed countries do not have this problem as all births are registered. South Africa needs interim measures as many births are not registered. Probation officer must interview child, family and school in the absence of documentation. The district surgeon can also be asked for an opinion on age. The Preliminary Inquiry will fix the age within 48 hours and must decide whether to release the child.

Diversion
Diversion is a central principle of the new child justice system. It means the referral of the child away from the criminal justice system. There is a multi-level approach to diversion to encourage flexibility when tailoring diversion options to individual circumstances.

Preliminary Inquiry
Last chance to seek innovative solutions if the matter has not been diverted by a probation officer or diverted or withdrawn by the prosecutor. The inquiry magistrate talks to child, phones around, does everything possible to save child from court. First 48 hours are vital for diversion. Up until now there has been poor discrimination between children who can be saved and those who are criminals. Less than 20% of Juvenile offenders are hardened criminals, 80% are petty offenders. It is possible to teach children to compensate victims - pay back stolen money or goods. The first option should be to send child home; second option - send child to place of safety or correctional home; third option - send to prison but keep separate and treat differently.

Questions by committee members
Mr Botha (FF) commented that he thought the Constitution should be changed to allow the giving of hidings to juvenile offenders.

Corporal punishment is not a helpful punishment apart from being unconstitutional.
What about parental responsibilty – should the parent be punished for the crimes of their children.

Response: They cannot be accused of the crime but they can be found civilly guilty.

Another committee member commented that the District Surgeon should have guidelines so as to detect the actual age of the child.
Response: Age assessment is arbitrary but the doctor and social worker need to work together.
What about criminal records?

Response: There is no expunging of records for serious offences. For less serious offences there is automatic expunging after 5 years if child has not committed further offences.
How does the child get hold of a welfare officer or social worker?
Response: There are many probation officers and Welfare intends to train more and provide sufficient salaries.

Appendix 1:


Juvenile Justice: Summary of Discussion Paper 79

SOUTH AFRICAN LAW COMMISSION

SUMMARY OF DISCUSSION PAPER 79

Project 106

JUVENILE JUSTICE

Closing date for comment: 31 March 1999

(Discussion Paper)

INTRODUCTION

The South African Law Commission was established by the South African Law Commission Act, 1973 (Act 19 of 1973).

The members of the Commission are -

The Honourable Mr Justice I Mahomed (Chairperson)

The Honourable Madam Justice Y Mokgoro (Vice-Chairperson)

Adv J J Gauntlett SC

The Honourable Madam Justice L Mailula

Mr P Mojapelo

Prof. R T Nhlapo

Ms Z Seedat

The Secretary is Mr W Henegan. The Commission's offices are on the 12th floor, Sanlam Centre, corner of Andries and Pretorius Streets, Pretoria. Correspondence should be addressed to:

The Secretary

South African Law Commission

Private Bag X668

PRETORIA

0001

Telephone : (012) 322-6440

Fax : (012) 320-0936

E-mail : salawcom@salawcom.org.za

THIS DOCUMENT IS ALSO AVAILABLE ON THE INTERNET.

The address is: www.law.wits.ac.za/salc/salc.html

CONTENTS

Working towards a new child justice system

A vision for a new child justice system

The age of the child

Age determination

Police powers and duties

Assessment and referral

Diversion

Preliminary inquiry

The child justice court

Sentencing

Legal representation

Review, appeal and monitoring

Confidentiality and expunging of records

"State Parties recognise the right of every child alleged as, accused of or recognised as having infringed the penal law, to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society."

United Nations Convention on the Rights of the Child (1989)

WORKING TOWARDS A NEW CHILD JUSTICE SYSTEMTOWARDS A NEW CHILD JUSTICE SYSTEM

South Africa ratified the Convention on the Rights of the Child (CRC) in 1995. In so doing, government committed itself to a range of obligations, aimed at establishing and protecting the rights of South Africa’s children. The National Plan of Action, which drew up recommendations for implementation, identified the need for the development of a comprehensive juvenile justice system – a system that would deal separately with children in conflict with the law. The Minister of Justice requested the South African Law Commission to conduct an investigation into juvenile justice with a view to drafting separate, composite juvenile justice legislation.

The Issue Paper (May 1997) prepared by the Project Committee proposed a distinctive juvenile justice system, to be provided for by separate legislation.

In line with the decision of the South African Law Commission and the Project Committee that public consultation is critical, particularly when considering so far reaching a change in our justice system, the Issue Paper was broadly debated. The responses received were carefully considered when preparing the subsequent Discussion Paper and draft legislation.

The second phase of the project, a Discussion Paper with an attached Bill embodying concrete legal proposals, was released in December 1998. The closing date for comment is 31 March 1999. The present summary seeks to encapsulate some of the main ideas and principles contained in the Discussion Paper and the accompanying legislation, and to provide a user-friendly guide to some of the proposed provisions.

You are invited to comment on the recommendations summarised below and to express your opinions on the various proposals and options provided. The Commission’s contact details appear on page ii. The researcher, Ms Pat Moodley, will endeavour to assist you with particular difficulties you may have. Kindly note that the closing date for comment on either this summary or the full Discussion Paper, obtainable upon request, is 31 March 1999.

A VISION FOR A NEW CHILD JUSTICE SYSTEM

The Bill envisages a child justice system that will:

Promote the spirit of ubuntu

Promote the child’s sense of dignity and worth

Protect the child’s procedural rights

Reinforce the child’s respect for the human rights and fundamental freedoms of others by holding him or her accountable and safeguarding the interests of victims and the community.

Adopt a restorative justice approach, by promoting reconciliation, restitution and responsibility through the involvement of parents, families, victims and communities

Provide for appropriate sentencing of children convicted of offences

Promote co-operation between all government departments and other organisations and agencies involved in ensuring an effective child justice system.

A Comprehensive Legal StructureComprehensive Legal Structure

The new child justice legislation will provide a distinctive and comprehensive legal structure or framework to deal with children in conflict with the law.

The system created by this structure should be capable of tracking the child through all processes and ensuring his or her best interests every step of the way. Every official involved in the process should be responsible for implementation of the system and must be accountable for the decisions he or she makes.

The legal framework should give children the opportunity to escape the vicious circle of crime and punishment, while at the same time holding them accountable for their actions.

Accessible to all childrento all children

The new child justice system must allow children and young people access to the opportunities it provides. It has been designed to cater for all children – rich and poor, urban and rural, minor and serious offenders.

Separation of offencesof offences

The Bill includes practical provisions to ensure that the system separates those whose offences are minor and who show good potential for rehabilitation from those who may have to travel a longer road before they can be reabsorbed into society.

Children who commit minor offenceswho commit minor offences

Children accused of minor or less serious offences should be given the opportunity to be held accountable outside the criminal justice system. This gives them the chance to become responsible members of civil society, without the lifelong burden of a conviction. The method of providing children with this opportunity is known as diversion and, successfully applied elsewhere in the world, has resulted in turning young people away from a life of crime and helping them to rejoin their families, communities and societies.

Children who Commit Serious OffencesChildren who Commit Serious Offences

However, the new Child Justice Bill also makes provision for the prosecution and sentencing of children who cannot be diverted. It provides for the secure care of children accused or convicted of violent crime who are regarded as a danger to the people around them. However, in accordance with international human rights norms expressed in the CRC, the Bill continues to stress the fact that children should not be held with adults in ordinary prisons.

The proposed legislation is underpinned by certain principles. The following principles are included in the bill (Section 3).

All responses to children accused of crimes must be proportionate to the circumstances of the child and the nature of the offence. A child must not receive a sanction more severe than an adult would have received in the same circumstances.

Children should be dealt with in a manner that respects their cultural values and beliefs and should be addressed in language they understand.

All child justice matters must be dealt with speedily.

A child must at all times be given an opportunity to express an opinion and to be involved in the making of decisions affecting him or her.

No child must be unfairly discriminated against and children must have equal access to services.

No child must be deprived of his or her liberty unlawfully or arbitrarily.

Arrest, detention and imprisonment must be used only as a measure of last resort and for the shortest appropriate period.

No child should be detained in a residential facility for the sole purpose of gaining access to services.

Every child deprived of liberty must be separated from adults except where, for purposes of education and training, it is considered to be in the child’s best interests not to do so.

Every child must have the right to maintain contact with his or her family, and be given access to health care and social services.

Parents and families are responsible for the well being and development of children who are subject to the provisions of the Bill, and should be supported in this role.

Parents and families have the right to assist their children in proceedings under the Bill.

No child who lacks family support or opportunities to engage in education programmes or employment should, as a result of these factors alone, receive a sentence that is more severe than a child who has access to family support or educational or employment opportunities. Consideration should be given to the age of the child in determining the nature, duration and conditions of any sentence imposed in terms of the Bill.

THE AGE OF THE CHILDAGE OF THE CHILD

The Bill follows the position in international law and the South African Constitution that children below the age of 18 years should be separated from the adult criminal justice system. Accordingly (section 1(iii)):

The term child should be used to describe a young person under the age of 18 years.

The use of the word child (rather than juvenile) has been chosen in order to avoid the stigma attached to the word juvenile, which is traditionally used almost exclusively to describe children who come into conflict with the law.

The use of the word youth is also inappropriate as, in South Africa, it may be regarded as referring to people up to the age of 35 years. The word child has been used as being consistent with the definition of the CRC. The draft Bill proposes, therefore, that the new law be called the Child Justice Bill (or the Child Justice Act, once the Bill is approved by Parliament).

Criminal responsibility in South AfricaCriminal responsibility in South Africa

There is an international requirement that the age below which children should not be tried in the criminal justice system must be set by law. Currently in South Africa, the test for criminal responsibility is determined by whether the child is capable of understanding the nature, quality and wrongfulness of his or her conduct and acting in accordance with this understanding.

There are, however, two common law presumptions that take youth into account:

• A child who is under the age of 7 years is irrebuttably presumed to be doli incapax (incapable of the intention to commit a crime).

• A child who is over seven and under fourteen years of age is presumed to be doli incapax, a presumption that is all too easily rebutted and fails to protect young people from prosecution and conviction.

Furthermore, the CRC Committee recommends that the highest possible minimum age should be set and has criticised countries where the age of criminal responsibility has been set at 10 or below.

The Bill raises three options for comment (section 4):

Option 1

The first option is that a child who is seven (or ten) years old but has not yet turned 14 years is presumed to be doli incapax and that additional measures should be introduced to improve the protection of such children.

The advantage of the doli incapax and doli capax presumptions is that they recognise the need to deal with young children differently from older children. However, various commentators have criticised the over-simplified and unsatisfactory way the courts have applied the test for criminal responsibility. The Bill, therefore, recommends that, if the current presumptions are retained and Option 1 is adopted, -

expert testimony (by a psychologist or other suitably qualified professional person) should be led in each individual case. The purpose should be to establish whether the child was aware of the wrongfulness and consequences of his or her actions and whether he or she had the capacity to act in accordance with that awareness.

When considering Option 1, the feasibility or otherwise of such a recommendation in South Africa, especially outside large urban areas, should be taken into account.

The age of seven as the minimum age of criminal capacity is one of the lowest in the world. Even those who support the retention of the doli incapax and doli capax presumptions have recommended that the minimum age be raised to ten years, with additional protections regarding the rebuttal of presumption.

Option 2

The second option is to depart from the doli incapax presumption and to set a minimum age of prosecution, regardless of the criminal capacity of the child.

The Bill proposes the setting of a minimum age of 12 (or 14) years, below which a child may not be prosecuted.

The advantage of this option is that it is easy to apply. Its disadvantage is that it is inflexible and may be controversial in the light of current concerns about crimes committed by young people.

Option 3

The third option is to set a general minimum age (below 12 or 14 but above 10) and provide specific exceptions to the rule.

One way of doing this is to link the exception to the seriousness of the offence. This would ensure that community outrage in response to violent crimes committed by young people could be accommodated.

Offences for which a child of ten years or older

may be prosecuted are (section 4(1)(a)-(f)):

Murder

Rape

Indecent assault involving the infliction of grievous bodily harm

Robbery with aggravating circumstances

Any offence under the Drugs and Drug Trafficking Act (section 13(f)) if the value of the substance is more than R50 000

Any offence relating to the dealing in or smuggling of ammunition, firearms, explosives and armaments.

It should be noted that children under 12 years are seldom, in practice, sentenced to prison or reform school. Hence, either cases where children below 12 years are convicted of serious offences are very rare indeed, or the courts impose non-custodial sentences or other options on very young children. There is, therefore, both practical and public support for raising the age of criminal responsibility to 12 or 14 years.

Using Examples

Three hypothetical cases will be used to illustrate the way the law will work.

Vusi is in conflict with the law for having allegedly stolen a bicycle, valued at R300 which he found parked outside a corner shop. He lives with his grandmother and aunt.

Johnny is in conflict with the law for having allegedly stabbed a child after a fight at a soccer match. The injuries required hospitalisation. Johnny is a member of a street gang, and this is the fourth time he has been accused of an offence.

Sakkie is in conflict with the law for allegedly raping a girl. He is one of several youngsters accused of this offence.

Examples relating to the Age of the Child

Option 1

Let us assume that Vusi is 7 years of age. If the current presumption is retained, and if the expert evidence led shows that he knew that what he was doing was wrong and would have consequences, he could be charged with a criminal offence. If the age is raised to 10 years, Vusi cannot be charged in court.

Let us assume that Johnny is 10 years of age. If the current presumption is retained, and if expert evidence led shows that he knew that what he was doing was wrong and would have consequences, he may be charged with a criminal offence.

Let us assume that Sakkie is 14 years of age. If the current presumption is retained, it is assumed that he knew what he was doing wrong and what the consequences would be. He is liable to be charged with a criminal offence.

Option 2

If Johnny is 12 years old and the minimum age is 14, he will not be prosecuted for the stabbing.

Option 3

If Sakkie is 11 years of age and the minimum age is 14, he will nevertheless be prosecuted because he is accused of committing a serious offence (rape).

If Vusi is 11 years of age and the minimum age is 14, he will not be prosecuted because he is accused of committing a minor offence (theft).

AGE DETERMINATIONUsing ExamplesThree hypothetical cases will be used to illustrate the way the law will work.Vusi is in conflict with the law for having allegedly stolen a bicycle, valued at R300 which he found parked outside a corner shop. He lives with his grandmother and aunt.Johnny is in conflict with the law for having allegedly stabbed a child after a fight at a soccer match. The injuries required hospitalisation. Johnny is a member of a street gang, and this is the fourth time he has been accused of an offence.Sakkie is in conflict with the law for allegedly raping a girl. He is one of several youngsters accused of this offence.Examples relating to the Age of the ChildOption 1Let us assume that Vusi is 7 years of age. If the current presumption is retained, and if the expert evidence led shows that he knew that what he was doing was wrong and would have consequences, he could be charged with a criminal offence. If the age is raised to 10 years, Vusi cannot be charged in court.Let us assume that Johnny is 10 years of age. If the current presumption is retained, and if expert evidence led shows that he knew that what he was doing was wrong and would have consequences, he may be charged with a criminal offence. Let us assume that Sakkie is 14 years of age. If the current presumption is retained, it is assumed that he knew what he was doing wrong and what the consequences would be. He is liable to be charged with a criminal offence.Option 2If Johnny is 12 years old and the minimum age is 14, he will not be prosecuted for the stabbing.Option 3If Sakkie is 11 years of age and the minimum age is 14, he will nevertheless be prosecuted because he is accused of committing a serious offence (rape).If Vusi is 11 years of age and the minimum age is 14, he will not be prosecuted because he is accused of committing a minor offence (theft).

AGE DETERMINATION

Background

South African children are often unaware of their ages and dates of birth. Sometimes parents are also unable to provide this information. Documentary proof is not always available.

At present, the presiding officer in a court may estimate the age of a young person. It has, however, been pointed out that there should be a proper attempt to find evidence or make a proper determination in respect of age.

Changes in the law on pre-trial detention of children in the past have made it tempting for young people to lie about their ages, since children under 14 years old are more or less guaranteed release from custody. Conversely, officials may be tempted to record ages as 14 or over, in order to ensure detention after a first court appearance. Organisations that monitor prisons have found persons of over 18 years of age incarcerated with children. Likewise, very young children (with recorded ages of over 14 years) have been found in prisons.

Obviously, the solution is that the birth of every child should be registered. However, something must be done in the interim.

The Bill proposes that age determination may take place at any one or more of the various stages of the process.

Role of police officers (Section 5)of police officers (Section 5)

The first person to encounter the child is the police officer who will ask the child his or her age. If the child is below the minimum age of prosecution, the police officer may not arrest the child.

If the police officer is uncertain about the age of the child but believes him or her to be of an age where the Act applies, he or she must take the child to a probation officer or, failing a probation officer, to a district surgeon for assessment.

Age assessment by Probation Officers (Section 6)assessment by Probation Officers (Section 6)

The probation officer should make an age assessment, based on the evidence available and using Form D (age assessment form).

• If there is uncertainty, the probation officer should refer the matter to the district surgeon for an age report.

• If the probation officer concludes that the person is over 18 years of age, the case should be taken through the normal criminal courts. However, the person should have the opportunity of raising the question of age at the first court appearance.

• If the probation officer concludes that the child is below the age of prosecution, he or she will not be subject to the provisions of the Bill.

• If the probation officer concludes that the child is (by virtue of his or her age) subject to the Bill, he or she must proceed to the next stage – the assessment.

Age estimation by a District Surgeon (Section 7)

Once the district surgeon has made an estimation, he or she must refer the child back to the probation officer.

If the district surgeon is unable to make an accurate estimation of age, the probation officer must refer the question of age determination to the inquiry magistrate.

Age determination at the Preliminary Inquiry (Section 8)determination at the Preliminary Inquiry (Section 8)

Proof of age or the completed Form D (assessment of age) must be handed to the magistrate at the preliminary inquiry. If neither the probation officer nor the district surgeon has been able to assess age, the inquiry magistrate must make a determination of age and enter it in the record.

Age determination in a Criminal Court (Section 9)

If a person appearing in an ordinary criminal court claims to be under the age of 18 years, the presiding officer should stand the matter down for an age assessment, after which he or she should make a determination on the age of the accused.

If the person is found to be under 18 years of age and the trial has not begun, the presiding officer should transfer the matter to the inquiry magistrate (in terms of the Child Justice Bill).

If the trial has begun, the proceedings should remain in the court where they commenced.

POLICE POWERS AND DUTIESPOWERS AND DUTIES

Meaning and purpose of arrestand purpose of arrest

The aim of an arrest is to bring the child before a preliminary inquiry or assessment (Section 10).

When making an arrest, the police officer must have due regard to the dignity and well-being of the child. Minimum force must be used and any use of force must be reasonably necessary and proportional to the circumstances.

Deadly force is prohibited except where it is unavoidable due to the threat of imminent death or serious bodily harm.

Alternatives to arrestAlternatives to arrest

When making an arrest, a police officer must consider whether there is an alternative method of ensuring that a child appears for an assessment or whether an informal caution may be used (Section 11(3)).

Where the young person is to be charged with a petty offence (see Schedule 1), the Bill says that alternatives to arrest should be used unless there are good reasons to the contrary (Section 11(4)).

Schedule 1 ("Non-Serious" Offences)

Assault where bodily harm has not been inflicted.

Malicious injury to property where the damage does not exceed R1 000.

Any offence under any law relating to the illicit possession of dependence producing drugs where the quantity involved does not exceed 25 grams.

Theft, where the value of the property involved does not exceed R100.

Any statutory offence where the maximum penalty determined by that statute is a fine of less than R300 or three months imprisonment.

Conspiracy, incitement or attempt to commit any offence referred to in this Schedule.

The Bill proposes the following alternatives to arrest (Section 12(1)(a)-(e)):

1. Requesting the child (in language he or she understands) to accompany the police officer to a place where an assessment can be made.

2. Giving the child (and, if available, his or her parents and family) written notification to attend an assessment (see Form A).

3. Informing the child verbally of the date, place and time of assessment, noting this and informing the probation officer (Form E2) of this.

4. Accompanying the child to his or her home, and giving a written notice (Form A) to the child or his or her family or other appropriate adult.

5. Opening a docket for consideration by the Public Prosecutor.

AN APPROPRIATE ADULT

A member of a child’s family, a guardian who is not a parent, a social worker, a person appointed by the child justice committee or, failing these, a responsible person (aged 18 years or above) who is not a police officer or employed by the police.

Duties of the Police Officer when arresting a Child (Section 15)

When arresting a child above the minimum age of prosecution but below the age of 18 years, the arresting officer must:

Inform the Probation Officerthe Probation Officer

If the child is in detention in police custody, the police officer must take the child to a probation officer for assessment, or ask the prosecutor to set the matter down for a preliminary inquiry as soon as possible.

(If an alternative to arrest is used, the arresting officer must inform the probation officer within 72 hours (Form E2)).

Inform the Child of his or her rightsthe Child of his or her rights

Inform the child in language that he or she understands of the allegation against him or her and inform the child of the following rights:

Ø to remain silent

Ø to have his or her parents or an appropriate adult contacted

Ø to having one of these or a legal representative present during the noting of a confession, admission, pointing out or identification parade

Ø to choose and be represented by a legal practitioner at his or her own cost, or

Ø to obtain legal representation in terms of the Legal Aid Act.

Notify parents and othersparents and others

Notify parents, legal guardian, family member or appropriate adult of the arrest and give them written notice (Form A) to attend the assessment.

Report to the inquiry magistrateto the inquiry magistrate

Provide the inquiry magistrate with a written report (Form C) within 48 hours.

Cautioning (Section 19)(Section 19)

It is proposed that informal cautioning not be regulated in the Bill itself, but dealt with in regulations to be framed by the Commissioner of Police. As far as formal cautioning is concerned, it is proposed that -

a formal caution (Forms F1 and F2) may be administered – with or without conditions – by a police officer of the rank of superintendent or above or a police station commander in the presence of the child’s parents or other appropriate adult.

Detention in Police Custody before Assessment (Section 21)in Police Custody before Assessment (Section 21)

A child should be detained in a police cell before his or her first appearance only as a measure of last resort. The maximum period of detention should be one period of 48 hours, followed by two further remand periods of 48 hours, only if the preliminary inquiry is still in progress. A child in police detention should be held in appropriate conditions.

The Rights of the Child Being Held in Police Custody

A child must be held in conditions and treated in a manner that takes account of his or her age.

A child must be held separately from adults and boys must held separately from girls.

A child must be held, as far as possible, in conditions that would minimise the risk of harm to the child, including the risk of harm from other children.

A child must have the right to adequate food, medical treatment, access to reasonable visits, reading material, adequate exercise, clothing, blankets and bedding.

Considering the release of the child (Section 22)the release of the child (Section 22)

The police officer should consider the release of any child charged with any offence from police detention in the following circumstances:

A child arrested for a Schedule 1 offence (see page 12) must be released into the care of his or her parents or another appropriate adult, with or without conditions, unless there are substantial reasons for not releasing the child.

The above provisions in the law are new as they extend the possibility of release on what is now called "police bail" which is, at present, limited to extremely minor offences.

A child arrested for a Schedule 2 offence (see the next page) may be released from police custody by a police officer, in consultation with the Director of Public Prosecutions, and in accordance with conditions laid out in section 22(4).

Schedule 2 Offences

Public violence

Culpable homicide

Assault, including assault involving the infliction of grievous bodily harm

Arson

Housebreaking with intent to commit an offence, if the amount involved does not exceed R20 000

Robbery (without aggravating circumstances) if the amount involved does not exceed R20 000

Theft, where the amount involved does not exceed R20 000

Any offence under any law relating to the illicit possession of dependence producing drugs

Forgery, uttering or fraud, where the amount involved does not exceed R20 000

Conspiracy, incitement or attempt to commit any of the above offences

ASSESSMENT AND REFERRAL

The central objective of the new system is to divert child offenders away from the criminal justice system, with or without conditions. Diversion may take place at any time from arrest until after conviction - where it is appropriate and where the child acknowledges responsibility for his or her wrongdoing.

All officials dealing with a child must consider diverting the child away from the criminal justice system.

The assessment of the child is the key to diversion and the avoidance of pre-trial detention. For this reason, a child accused of a crime and held in police custody should, wherever possible, be assessed by a probation officer within 12 hours of the arrest. Where a child has been released from detention in police custody, assessment should take place within 48 hours. Where an alternative method of arrest has been employed (see page 14), assessment should take place within 72 hours, as there is less urgency to ensure that the child appears quickly in court.

What is an Assessment?

An assessment is a process of evaluation. It is designed to evaluate the child, his or her home and family circumstances, the nature and circumstances surrounding the alleged commission of the offence and whether the child accepts responsibility for it. Its purpose (section 25) is to -

• establish the probable age of the child

• establish the prospects for diversion

• establish the prospects for referral to a children’s court inquiry

• provide information to support a recommended release into the care of a parent or appropriate adult

• decide what should be done if the child is below the minimum age of prosecution

• recommend appropriate placement of the child where release is not possible.

Where may an Assessment be conducted? (section 25(2))

An assessment can be conducted anywhere. Although a central office may be used, assessment may take place in an informal setting such as a home or local school.

Who May Attend an Assessment? (section 25(3) and 26)

Only the following people may attend an assessment: the child, the child’s parent or an appropriate adult, the prosecutor, a legal representative, the arresting police officer, and any person whose presence is necessary or desirable for the completion of the assessment.

A parent or appropriate adult issued with a written notice or summons to appear at an assessment must do so, unless he or she is exempted from attending.

Responsibilities of the probation officer (section 27)of the probation officer (section 27)

A probation officer must:

Ø assess all children who have been arrested and remain in detention in police custody – within 12 hours of arrest; who have been arrested and released from detention – within 48 hours of arrest; whose attendance at an assessment has been secured by an alternative method – within 72 hours

Ø locate a parent or appropriate adult

Ø explain the purpose of the assessment to the child and inform the child of his or her rights

Ø interview the child and his or her parents or appropriate adult, and may contact or consult with any other person if required

Ø obtain evidence on the age of the child

Ø complete a report (Form H) concerning the prospects for diversion

Ø if the child is not to be diverted, make a recommendation regarding the possible release or placement of the child

Ø consider transfer or conversion to the children’s court and make recommendations in this connection.

The Probation Officer must inform the Child in language that he or she understands of the following rights (section 27(3)):The Probation Officer must inform the Child in language that he or she understands of the following rights (section 27(3))

• the right to remain silent

• the right to have his or her parent or an appropriate adult contacted

• the right to have a parent, an appropriate adult or a legal representative present when a confession, admission or pointing out is noted or during an identification parade

• the right to choose and to be represented by a legal practitioner at his or her own cost or to obtain legal representation at no cost in terms of the Legal Aid Act.

Children’s court’s court

The Children’s Court is a creation of the Child Care Act and does not form part of the criminal process. Children’s Court proceedings are inquiries, not trials, and do not convict or sentence. After an inquiry, the court may make an order placing a child – normally with parents under supervision, with foster parents, in a children’s home or in a school of industries.

Powers of the Probation Officer

general (section 28)(section 28)

In order to conduct an assessment, a probation officer may (using Form G) require a police officer to: bring a child out of custody; obtain documentation in connection with the child’s age; notify a parent or appropriate adult, and ensure transport to secure attendance of the child or appropriate adult.

When the Child is below the Minimum Age of Prosecution (section29)the Child is below the Minimum Age of Prosecution (section29)1

If the child is below the minimum age of prosecution, the probation officer may: refer the child to the children’s court; refer the child or family for counseling or therapeutic intervention; arrange a conference of all interested parties, or decide to take no action.

When children above the Minimum Age of Prosecution commit schedule 1 offences (Section 30)children above the Minimum Age of Prosecution commit schedule 1 offences (Section 30)

After assessment, the probation officer may refer the child to the children’s court; take no further action or refer the child to a diversion option. The probation officer may, therefore, take decisions where non-serious offences are concerned.

Alternatively, the probation officer may recommend that the matter be referred to the prosecutor for the opening of a preliminary inquiry.

When Children above the minimum age of Prosecution commit offences not listed in schedule 1 (Section 31) When Children above the minimum age of Prosecution commit offences not listed in schedule 1 (Section 31)

After assessment, the probation officer must submit an age assessment (Form D) and assessment report (Form H) to the prosecutor with supporting information so that a preliminary inquiry can be opened. Information supplied should include an indication as to whether the child accepts responsibility for the alleged offence and may recommend further action.

The probation officer may make recommendations to the court (section (31(3)).

DIVERSION

Diversion is a central principle of the new child justice system. It means the referral of cases of children alleged to have committed offences away from the criminal justice system, with or without conditions. Its aim is to reintegrate children into society. All officials dealing with children must consider the possibility of diverting the child away from the justice system. They will need to take an innovative and imaginative approach and examine how existing resources in the community can be used. Diversion should not depend solely on an armoury of specially designed programmes.

The purposes of diversion (section 32(1)) are to:

• encourage the child to be accountable for the harm he or she has caused;

• promote an individualised response which is appropriate and proportionate;

• promote the reintegration of the child into the family and community;

• provide an opportunity to those who have been harmed to express their views on the impact of the wrongdoing;

• encourage restitution;

• promote reconciliation between the child and those who have been harmed by his or her actions;

• prevent the stigmatisation that may result from contact with the criminal justice system.

Minimum Standards for Diversion (Section 32(2),(3),(4),(5),(7) and 33(1)Standards for Diversion (Section 32(2),(3),(4),(5),(7) and 33(1))

* The best interests of the child must be considered

* All children must have equal access to diversion options

* Corporal punishment and public humiliation may not be elements of diversion

* A child under 13 years must not be required or permitted to perform community service or other work

* No child must be required to pay for admission to a diversion programme. A child suspected of committing an offence may only be referred for diversion if he or she acknowledges responsibility and consents to diversion, if there is sufficient evidence for the matter to proceed to trial and if there is no infringement of the child’s procedural rights.

PROGRAMME REQUIREMENTS

* Diversion programmes should promote the dignity and well-being of the child and the development of his or her sense of self-worth and ability to contribute meaningfully to society.

* Diversion programmes should be appropriate to the age and maturity of the child.

* Diversion programmes should not be exploitative, harmful or hazardous to a child’s physical and mental health..

* Diversion programmes should, where possible and appropriate, include a restorative justice element which aims to heal relationships, including the relationship with the victim..

* Programmes should, where possible and appropriate, include an element that seeks to ensure that the child understands the impact of his or her behaviour on others, including victims of the offence.

* Where possible and appropriate, diversion programmes should impart useful skills.

* Diversion programmes should not interfere with a child’s schooling.

* Diversion programmes, where possible and appropriate, should be accessible to children and transport should be provided where necessary.

A multi-level approachmulti-level approach

A multi-level approach is recommended, with the opportunity to select diversion programme options from four levels. These options are not intended to be limiting.

This flexible approach not only allows for the tailoring of particular diversion options to individual circumstances, but enables police, probation officers, prosecutors and presiding officers to adopt an imaginative and innovative approach when dealing with children.

In selecting a diversion option, the role-players mentioned above must ensure (section 34(1)) that -

* the child’s cultural, religious and linguistic context is taken into account

* the option recommended or selected is proportionate to the circumstances of the child, the nature of the offence and the interests of society

* due regard is had to the various levels of diversion options.

The Bill proposes that diversion should not be excluded for serious offences and that this question be left to the discretion of the preliminary inquiry magistrate. This implies the view that there should be an individualised approach to each child in conflict with the law. Specific comment is requested on this issue.

Diversion options in the first instance (section 34(2)) may include:

An oral or written apology

Referral for a police caution without conditions (Form F1) or with conditions (Form F2)

Placement under the following orders for a maximum period of three months: a supervision or guidance order (Form K1), a reporting order (Form K2), a compulsory school attendance order (Form K3), a family time order (Form K4), a positive peer association order (Form K5)

Placement under a good behaviour order (Form K6) or an order prohibiting the child from visiting or frequenting a specified place (Form K7)

Compulsory school attendance (for a maximum of 5 hours a week for up to 8 weeks)

Symbolic restitution or restitution of a specified object

Diversion options in the third instance (section 34(4)) may include:

Placement under a supervision or guidance order for a period of over six months but less than a year

Compulsory attendance at a specified centre or place for a specific vocational or educational purpose (for a maximum of 20 hours a week for up to 6 months)

Supervised community service without remuneration for a period exceeding 25 but not exceeding 100 hours for a period of up to 6 months

Referral to victim-offender mediation, a family group conference or other restorative dispute resolution process

Restitution of a specified object to a maximum of R600 where this is affordable

Referral to a programme with a residential element for a period of up to 3 months

A combination of these

Diversion options in the second instance (section 34(3)) may include:

Placement under the following orders for a period less than three but not exceeding six months: a supervision and guidance order (Form K1); a reporting order (Form K2); a compulsory school attendance order (Form K3); a family time order (form K4); a positive peer association order (form K5)

Compulsory attendance at a specified centre or place for a specific vocational or educational purpose (for a maximum of 5 hours a week for up to 12 weeks)

Supervised community service without remuneration for a maximum period of 25 hours for a period of up to 3 months

Restitution of a specified object to a maximum of R300 where this is affordable

Victim-offender mediation, family conference or other restorative dispute resolution process

A combination of these

Diversion options in the fourth instance (section 34(5)) may include:

Referral to a programme with a residential element for a period of up to six months

Victim-offender mediation, family conference or other restorative dispute resolution process

Supervised community service without remuneration for a maximum period of 250 hours to be completed within a maximum period of 12 months

Compulsory attendance at a school or specified centre or place for a specific vocational or educational purpose (for a maximum of 35 hours a week for up to 6 months)

A combination of these or certain options under the third instance

Note: These options may be applied in respect of children over the age of 16 (or 14) years only by an inquiry magistrate, child justice magistrate or other presiding officer where, if the child were convicted, the sentence would be likely to exceed six months’ imprisonment or a reform school sentence.

A probation officer has sole discretion in respect of diversion of children who have committed petty offences (see Schedule 1), subject to review by the proposed child justice committee.

CHILD JUSTICE COMMITTEE (SECTION 91)

A child justice committee will be established in each magisterial district, consisting of the chief child justice magistrate, the inquiry magistrate, the prosecutor, the probation officer, representatives of the police and, where available, representatives from the legal aid clinic, service providers, community, church and welfare organisations.

The committee will play a developmental role in relation to the implementation of the legislation; review the diversion decisions of the probation officer and provide periodic guidance. It will also monitor conditions in detention, residential care and ensure the protection of children’s rights.

A probation officer may recommend diversion in all other cases. This recommendation goes forward to the prosecutor who may agree or disagree.

However, even if the probation officer does not recommend diversion, the prosecutor may decide that this is an appropriate route.

Failure to Comply

Where there is a failure to comply, the child must again be arrested and appear at a preliminary inquiry. If the failure is due to misunderstanding or circumstances beyond the control of the child or family, the child should be given an opportunity to complete the diversion, with the necessary support. If the failure is due to lack of co-operation or negligence, this will be taken into account when deciding whether to press a criminal charge or select diversion.

Examples relating to Diversion

Vusi is in conflict with the law for having allegedly stolen a bicycle, valued at R300 which he found parked outside a corner shop. He lives with his grandmother and aunt.

He is placed under a compulsory school attendance order for a period of one month (Level 1).

Johnny is in conflict with the law for having allegedly stabbed a child after a fight at a soccer match. The injuries required hospitalisation. Johnny is a member of a street gang, and this is the fourth time he has been accused of an offence.

Due to recidivism, he may be considered an unsuitable candidate for diversion. If, however, diversion is decided upon, he may be diverted to supervised community service without remuneration for a period of ten months and will attend a family conference at which practical or symbolic restitution will be discussed.

Sakkie is in conflict with the law for allegedly raping a girl. He is one of several youngsters accused of this offence.

His case is referred to the prosecutor who will bring the case before the inquiry magistrate.

PRELIMINARY INQUIRY

The Bill proposes that, if a matter has not been diverted by a probation officer or diverted or withdrawn by a prosecutor, the magistrate should hold a preliminary inquiry before the noting of the plea and before the charge.

The child justice magistrate will have the primary duty of ensuring that diversion is promoted wherever possible and that pre-trial detention is used as a measure of last resort.

Nature and purpose of the Preliminary Inquiry (section 37)and purpose of the Preliminary Inquiry (section 37)

A designated district court magistrate must preside over the preliminary inquiry.

The purpose of the preliminary inquiry is to give the magistrate the opportunity to:

• ascertain whether an assessment has been made and order one if it has not yet been done

• establish whether the matter can be diverted before charges are instituted

• refer the matter to the prosecutor if charges are to be instituted - either because the child does not admit responsibility or diversion is not possible

• transfer the matter to the children’s court

• assess whether there is sufficient evidence to sustain a prosecution

• determine release or placement of the child pending finalisation of the preliminary inquiry, referral to a child justice court or transfer to the children’s court.

Procedure

A preliminary inquiry must be held before the child appears in the child justice court - within 48 hours of an arrest or within 72 hours of an alternative to arrest.

The inquiry magistrate must be in possession of the age assessment (Form D) and the assessment report (Form H) and any other supporting documentation.

The inquiry magistrate must inform the child of his or her rights.

Only the following people may attend the inquiry: the child and his or her parents, the prosecutor, an appropriate adult, the probation officer, the arresting officer, the child’s legal representative, any other person served with a subpoena, requested or permitted to attend.

The child must be present.

The inquiry may be held in a room, office or chamber but not a court.

The inquiry magistrate is responsible for conducting proceedings, asking questions, interviewing persons and eliciting the information required.

Evidence of a previous diversion or conviction may be requested and provided.

The inquiry magistrate must keep a record of proceedings.

The decision of the inquiry magistrate is not subject to appeal, except where it relates to a decision to remand a child in custody.

Separation and joinder of proceedingsand joinder of proceedings

Where a child is co-accused with an adult, the adult’s case should be separated for the purposes of the preliminary inquiry.

Where the child is co-accused with another child or children, the court may hold a joint inquiry. However, the proceedings may be separated at any time where this is in the best interests of the child.

Example:

Sakkie is in conflict with the law for allegedly raping a girl. He is one of several youngsters accused of this offence.

The inquiry magistrate decides to hold a joint inquiry. However, when he discovers that one of Sakkie’s co-accused has lied about his age and is over 18 years of age according to the assessment handed in to the court, he refers the other youngster’s case to the public prosecutor.

General powers of inquiry magistrate (sections 40 and 41)powers of inquiry magistrate (sections 40 and 41)

Amongst other things, the inquiry magistrate may -

make a determination of age

order or dispense with an assessment

divert the matter - if formal programmes for diversion are not available, he or she must develop an appropriate diversion strategy

stop the proceedings in order to transfer the matter to the Children’s Court

refer the matter to the prosecutor for charges to be instituted in the Child Justice Court

examine and consider the reports regarding the arrest of the child and detention in police custody.

General Obligations of the Inquiry MagistrateObligations of the Inquiry Magistrate

The inquiry magistrate, amongst other things, must -

inform him or herself of diversion programmes in the district, including their aims and content

satisfy him or herself that diversion is not possible, before referring the matter to the prosecutor

take account of the principle that the child has the right to participate in all decisions affecting him or her

satisfy him or herself whether there is sufficient evidence to sustain a prosecution or, failing this, close the inquiry and order the release of the child.

Pre-trial detention (section 44)detention (section 44)

If the child is in detention at the time of the inquiry, the inquiry magistrate must establish whether the child may be released.

1 Where possible, the child should be released into the care of a parent or appropriate adult. This must be considered a measure of first resort.

2 A child may be released on his or her own recognisance, with or without conditions.

Example

Johnny is in conflict with the law for having allegedly stabbed a child after a fight at a soccer match. The injuries required hospitalisation. Johnny is a member of a street gang, and this is the fourth time he has been accused of an offence.

The inquiry magistrate considers a level 4 diversion programme for Johnny.

Remanding the Inquiry (section 45)ExampleJohnny is in conflict with the law for having allegedly stabbed a child after a fight at a soccer match. The injuries required hospitalisation. Johnny is a member of a street gang, and this is the fourth time he has been accused of an offence.The inquiry magistrate considers a level 4 diversion programme for Johnny.Remanding the Inquiry (section 45)

The inquiry magistrate may remand the inquiry for a period of 48 hours for certain purposes, followed by a further 48 hours, after which it may be referred to the prosecutor in the child justice or other court.

A child who has not been referred to a child justice or other court must be released from custody. Where a child cannot be released into the care of a parent or an appropriate adult pending finalisation of the preliminary inquiry, he or she may be remanded to a place of safety or a secure care facility or, if this is not available, to a police cell.

Detention after the finalisation of a preliminary inquiry (section 46)after the finalisation of a preliminary inquiry (section 46)

A child who has been accused of committing an offence may, after the preliminary inquiry, be detained in a place of safety, secure care facility or prison, provided that bail is considered and the child is not detained in a police cell or lock-up.

Strict conditions should be set for pre-trial detention in a prison. Pre-trial detention should be limited to children above the age of 16 (or 14) years charged with serious offences and only where -

Ø there is no facility or no vacancy in a secure care facility within a reasonable distance of the court

Ø or where there is a substantial risk that the child will cause harm to other persons in an alternative secure care facility.

A detained child should be brought before the court every 14 days to inquire whether the detention remains necessary.

The Child Justice court must be satisfied that the child is being treated in a manner and kept in conditions that take account of his or her well-being and that the plea and trial in the child justice or other court must be finalised as speedily as possible.

Failure of Child above the minimum age of prosecution to attend Assessment or Preliminary Inquiry (section 47)Failure of Child above the minimum age of prosecution to attend Assessment or Preliminary Inquiry (section 47)

If the child fails to appear at an assessment or breaches any conditions of release from detention in police custody, the probation officer may ask the inquiry magistrate to issue a warrant of arrest. If the child fails to appear at a preliminary inquiry, the prosecutor may request the inquiry magistrate to issue a warrant of arrest.

If, after the execution of a warrant of arrest -

Ø the child appears at the assessment inquiry, the matter must be set down for the holding of a preliminary inquiry.

Ø the child appears at the preliminary inquiry, the matter must be proceeded with.

The magistrate must inquire into the reasons for the child’s failure to appear and, if it was due to the fault of the child, may take that into account in making a decision.

Failure of Child below the minimum age of prosecution to attend Assessment or to comply with section 29 obligations (section 48)Failure of Child below the minimum age of prosecution to attend Assessment or to comply with section 29 obligations (section 48)

The probation officer may request that the children’s court open an inquiry in respect of the child.

Failure of Child to comply with Diversion Conditions (section 49)of Child to comply with Diversion Conditions (section 49)

If the child fails to comply with diversion conditions or any other order by the probation officer or prosecutor, the inquiry magistrate may issue a warrant of arrest or written notice to appear.

If the child fails to comply with diversion conditions or any other order by the inquiry magistrate, the inquiry magistrate may issue a warrant of arrest or written notice to appear.

If the child then appears, the inquiry magistrate must inquire into the circumstances surrounding the failure to comply and may then decide to: divert the matter; divert the matter to the same programme with altered conditions; apply another diversion option; refer the matter to the prosecutor for charges in the child justice or other court; make an appropriate order to assist the child and his or her family to comply with the original diversion option. Alternatively, the inquiry magistrate may suspend the warrant of arrest and require the arresting officer to employ an alternative to arrest (see section 12).

Referring the Matter to the Child Justice Court (section Referring the Matter to the Child Justice Court (section 50)

If diversion has not taken place and if the inquiry magistrate has found sufficient evidence to sustain a prosecution, he or she must -

• refer the matter to the prosecutor for charges to be instituted in the child justice court

• warn any parent or appropriate adult to attend the proceedings

• ensure that the child is provided with legal representation.

The inquiry magistrate may not preside in a child justice court if he or she has heard any information that may prejudice an impartial determination of the matter.

Transfer and Conversion to A Children’s Court Inquiry (section 51)and Conversion to A Children’s Court Inquiry (section 51)

If it seems appropriate, the court may stop the proceedings and order that the child be brought before the children’s court (section 14 of the Child Care Act, 1983).

Such a transfer or conversion must be considered if it becomes clear that the child -

• has more than once been assessed in regard to minor offences aimed at meeting his/her basic need for food and warmth and has again committed such an offence

• is the subject of a current order of the children’s court

• is abusing dependence-producing substances

• does not live at home or in appropriate substitute care and has committed a minor offence in order to meet the basic need for food and warmth.

Other measures may be considered where it appears that the transfer or conversion is not in the best interests of the child or in the interests of the administration of justice.

If a child has been convicted before a case is converted, any finding of guilt must be considered not to have been made.

THE CHILD JUSTICE COURTTHE CHILD JUSTICE COURT

The recommended child justice court will be a designated district court with a particular identity. It will be less formal and less adversarial than a standard criminal court and will encourage the active participation of all persons involved in the proceedings. Personnel will be specially selected and trained. The child will be addressed and permitted to speak in his or her own language.

Jurisdiction (section 53)

The child justice court has jurisdiction to adjudicate in all matters in which a child is accused of committing a criminal offence, except where that offence is treason, murder and rape.

The child justice court will have a sentencing jurisdiction of five years (an increase from the two-year jurisdiction of an ordinary district court).

The increased jurisdiction will enhance its role as a specialised child justice court and will minimise the referral of children to higher courts.

If the child justice court has convicted the child and is of the view that the appropriate sentence may exceed its sentencing jurisdiction, the court may refer the matter to the regional or high court. The child must, however, be sentenced in terms of the Child Justice Act.

Child Justice courtJustice court

A child justice court is a court at district (magistrate’s court) level. It must adjudicate all matters referred to it in terms of the provisions of the proposed child justice legislation. Insofar as is possible, the child justice court must be staffed by specially selected and trained personnel and the court room should be located and designed in a way that promotes the dignity and well-being of children, the informality of proceedings and the active participation of all persons involved.

A regional court has jurisdiction to try the child if -

• he or she is charged with murder or rape

• if the sentence will exceed the jurisdiction of the child justice court

• if the regional court has jurisdiction in respect of one or more charges in a case of multiple charges

• if the child is co-accused with an adult and it is decided that there will be joinder of trials.

Where a court other than a child justice court hears a matter, such court must conduct the case in accordance with the Child Justice Bill, and with due regard to the principles set out in sections 2 and 3. Children who are tried in other courts should not be tried as adults.

Obligations of the CourtWhere a court other than a child justice court hears a matter, such court must conduct the case in accordance with the Child Justice Bill, and with due regard to the principles set out in sections 2 and 3. Children who are tried in other courts should not be tried as adults.Obligations of the Court

The child must be informed of his or her rights.

The child must be assisted by his or her parent or an appropriate adult who must attend the proceedings, unless excused or exempted by the presiding officer. A person who fails to attend is guilty of an offence.

The allegations must be in language that the accused child can understand and must be open to inspection by the child, his or her legal representative, parent or appropriate adult at any stage of the criminal proceedings.

Conduct of the proceedingsof the proceedings

The presiding officer may elicit evidence from any person involved in the proceedings.

The proceedings must be held behind closed doors and the privacy of the child must be protected at all times.

The proceedings must be conducted in an informal way and encourage maximum participation by the child, his or her parent or appropriate adult.

The child must be permitted to speak and be addressed in his or her own language.

The proceedings must be conducive to the well-being of the child.

No handcuffs, leg-irons or other restraints may be used, except where the safety of any person may be endangered.

A child held in a lock-up or cell in or at the court or who is being transported to the court must be kept in conditions which take account of his or her age.

A female child must be kept separately from a male child and must be in the care of an adult woman.

The proceedings may be held in a place other than a court.

The presiding officer must protect the child from hostile cross-examination where this is prejudicial to the well-being of the child or the fairness of the proceedings.

Evidence of admissions, confessions and pointings without the assistance of a parent, legal representative or appropriate adult are inadmissible. Nor may an admission or confession made during an assessment or during the preliminary inquiry be admissible at the proceedings of the child justice court.

Separation and Joinder of Trials (section 61)Separation and Joinder of Trials (section 61)

Where a child is co-accused with an adult, the general rule is that the case of the adult must be separated from that of the child. However, any person involved may apply for the trials to be joined. If an application for a joinder of the trials is successful, the court to which the matter is referred must act in accordance with the provisions of the Child Justice Act in relation to proceedings involving the child.

Where a child is accused with another child or children, the prosecutor may join the trial at any time before evidence is led. Alternatively, at any time during the trial, the court may order a separation of trials.

The child justice court must finalise all trials of accused children as speedily as possible and ensure that the number of remands and the periods between them are limited.

Where the trial of a child is held in a court other than the child justice court, the matter must receive priority on the court roll.

Where the child is remanded to a place of safety, secure care facility or prison, the plea and trial must be finalised within six months, after which the child must be released.

If, before or after conviction -

• a child accepts responsibility for the offence, the court may divert the matter, provided that any finding of guilt must be considered not to have been made, or

• the court believes that an alternative dispute resolution mechanism may be appropriate,

the court may stop proceedings and order that the matter be referred to a victim-offender mediation, a family group conference or other restorative dispute resolution process.

Following this, a report must be submitted to the court within 14 days if the child is not in custody or within 5 days if the child is in custody. The court may then confirm the recommendations by making them an order of the court; substitute or amend the recommendations and make an appropriate order or reject the recommendations and proceed with the trial.

Failure to Attendto Attend

If the child fails to appear in court, the prosecutor may ask the officer presiding to issue a warrant of arrest.

If, after the arrest of the child, the court finds that his or her failure to attend is due to a fault on the part of the child, this may be taken into account when making a decision about how the matter should proceed.

SENTENCING

Pre-sentence reports

Pre-sentence reports should be compulsory for all sentences, except for petty (Schedule 1) offences, or where it would cause undue delay prejudicial to the interests of the child.

The court may not impose a sentence with a residential element, unless a pre-sentence report has been placed before the court. Admission of a child under 18 years of age to any residential facility without certification to the effect that a pre-sentence report has been placed before the court is an offence.

Non-residential sentencing optionssentencing options

The draft Bill sets out a list of non-residential sentences including -

Ø compensation, restitution, donation and symbolic restitution

Ø a written or verbal apology to the victim

Ø a correctional reprimand (Form K8)

Ø a number of orders the court may make for a specified maximum period of 6 months: good behaviour order (Form K6), family time order (Form K2), compulsory school attendance order (Form K4), positive peer association order (form K5)

Ø attendance by the child and members of his or her family at guidance counselling for up to 12 months

Ø placement under the care and control of an appropriate adult specified by the court

Ø placement under a supervision and guidance order (Form K1) for up to 12 months

Ø compulsory attendance order at a specified place for a specified vocational or educational purpose for up to 20 hours a week for up to 6 months. If the child is over the age of compulsory school attendance, for a maximum of 35 hours to be completed within 12 months

Ø supervised community service, for a maximum period of 250 hours to be completed within 12 months with provisos.

Sentences with a Restorative Justice Elementwith a Restorative Justice Element

Such sentences include referral to victim-offender mediation, a family group conference or other restorative dispute resolution process. Decisions arising must be referred back to the court within 14 days if the child is in detention and 21 days if the child is not in detention and taken into consideration when considering a sentence.

Sentences involving Correctional Supervision (section 76)involving Correctional Supervision (section 76)

Correctional supervision may be imposed on a child above the age of 14 years for up to 3 years. The whole or part of such a sentence may be postponed or suspended with or without conditions if the child performs a service for the benefit of the community or is he or she attends a specified centre for a specified purpose (see above).

Sentences involving residential options (section 77)

A residential sentence may be imposed on a child only if it is justified by the seriousness of the offence, the protection of the community, the severity of the impact on the victim, or if the child has failed to respond to non-residential alternatives.

Such a sentence includes:

• a programme with a periodic residence requirement for a stipulated period or referral to a residential facility

• sentence to a reform school

• sentence to imprisonment.

A child may not be sentenced to prison unless he or she is fourteen (or sixteen) years of age or above.

A sentence of imprisonment may not be imposed for an offence listed under Schedule 1.

A sentence of imprisonment may not exceed 15 years on any charge or charges. Any period of time the child has spent in prison awaiting trial must be deducted from the period of imprisonment imposed as a sentence.

A sentence of life imprisonment may not be imposed on a child under the age of 18 years.

A child who is sentenced to a reform school may not be detained in prison while waiting for a place.

Monetary penalties

No monetary penalty payable to the state may be imposed as a sentence on a child. An exception may be made concerning restitution or payment of compensation to victims or donations to charity organisations.

Community serviceservice

Community service offers an important alternative to imprisonment of the child. It means compulsory work for a community organisation or work of value to the community. This work may be performed by the child, with his or her consent, and without payment.

LEGAL REPRESENTATION

Principles to guide effective and appropriate legal representation are embodied in the draft Bill (section 81).

Children should be advised of their right to legal representation in the language they understand at the time of the arrest or alternative to arrest. The people responsible for advising them should be the probation officer at the time of the assessment, the inquiry magistrate or the child justice court magistrate.

A legal representative of own choice may be selected if the child and his or her parent, guardian, family member of other appropriate adult are willing and able to pay for such services. Alternately, if a legal representative at state expense is to be appointed, the Legal Aid Board must be informed.

After the finalisation of the preliminary inquiry and the child does not have legal representation, the child must be provided with Legal Aid Board representation if he or she is to be remanded in detention, or if charges are to be instituted in the child justice court.

A child should not be able to refuse legal representation, except in the case of a minor (Schedule 1) offence. In other cases, where the child refuses legal representation and chooses to represent him or herself, a lawyer should be appointed to attend the trial, address the court on the merits of the case and note an appeal if necessary.

The Bill (section 81) provides a set of principles to which lawyers representing children should adhere. These include -

• allowing the child to give independent instructions

• encouraging informed decision-making

• promoting diversion, whilst preventing undue influence to acknowledge guilt

• ensuring minimal delays.

The Bill also introduces accreditation of lawyers on a specialised Legal Aid roster to promote specialised and effective representation.

REVIEW, APPEAL AND MONITORINGAPPEAL AND MONITORING

Review and appeal (sections 85 - 90)

The conventional channels of appeal should apply to convictions and sentencing by the child justice court. All sentences involving a residential component should be subjected to an automatic review procedure.

A review may be conducted by a judge of the local or provincial division of the high court.

District Child justice committees (section 91)

A child justice committee will be created in each magisterial district. The committee will consist of (at least) the child justice magistrate, the inquiry magistrate, the prosecutor, the probation officer, representatives from the police and, where available, representatives from the legal aid clinic, service providers, community, church and welfare organisations.

The committee will have specific duties and functions. It will contribute to the development of diversion options, identify suitable adults and fulfil a developmental role in relation to the implementation of the legislation. The committee would also be tasked with the collection of certain information relevant to the development of diversion options. It would also be responsible for reviewing the diversion decisions of the probation officer in non-serious cases and providing periodic guidance. It would also play a crucial role in monitoring conditions in detention, residential care and ensuring the protection of children’s rights (sections 92-3).

The Bill also provides for a National Committee of Child Justice (sections 99 and 100) which will -

• receive reports and investigate complaints

• provide advice and information.

Office for Child Justice (section 96)for Child Justice (section 96)

It is proposed that an office for child justice be established.

The Minister of Justice should appoint two and the Minister of Welfare one member of staff to this office.

The tasks to be performed by this office include:

• monitoring policy and practice

• reviewing the operation of legislation

• promoting public awareness

• providing an annual report on child justice

CONFIDENTIALITY AND EXPUNGING OF RECORDSCONFIDENTIALITY AND EXPUNGING OF RECORDS

Confidentiality

The current provisions in the Criminal Procedure Act in respect of the protection of the identity of accused persons under the age of 18 years and the privacy of criminal proceedings involving children are incorporated in the proposed Bill.

An exception is made in respect of access to and publication of information for bona fide research purposes.

Expunging of records

It is proposed as a general provision that previous convictions may not be expunged in respect of murder, rape, indecent assault involving the infliction of grievous bodily harm, robbery with aggravating circumstances, any offence under the relevant section of the Drugs and Drug Trafficking Act where the value of the substance is more than R50 000, any offence relating to the dealing in or smuggling of ammunition, firearms, explosives or armaments.

In respect of all other convictions, the Project Committee would like to invite you to consider the following options:

Either

A record of conviction and sentence imposed upon a child should be automatically expunged five years after the completion of the sentence.

Or

Where a sentence not involving a residential element has been imposed, the record could be expunged five years after the completion of the sentence.

Where a residential sentence has been imposed, the record could be expunged ten years after the completion of the sentence, upon written applications.

In either case, it is proposed that such expungements will only occur if the person is not again convicted during the same period.

Applicability of Provisions of the Criminal Procedure Act

Provisions of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) are applicable to the provisions relating to the role of the police, evidentiary matters, criminal procedure and other matters except where changes have been indicated. Where there are inconsistencies, the provisions of the Child Justice Bill prevail.

Appendix 2: South African Law Commission Questionnaire

THE SOUTH AFRICAN LAW COMMISSION

QUESTIONNAIRE

TO BE COMPLETED BY PARTICIPANTS AT THE WORKSHOPS ON THE DRAFT CHILD JUSTICE BILL

1. Are there aspects of the Draft Bill that you support/ agree with? Please specify.

2. Are there aspects of the system or scope proposed by the Draft Bill that you disagree with or would want to see framed differently?

Please specify and give reasons.

3. Are there issues related to content or wording that you support/ do not support? Specify, and when in disagreement, propose alternative wording. (See chapter in Bill relevant to each workshop).

4. There are three options in respect of the minimum age of criminal capacity proposed in Chapter 2. Which option do you support and why?

5. There are two options in respect of expungement of records presented in Chapter 12. Which option do you support and why?

6. Are there issues that have been omitted that should be included in a further draft? Specify, and detail where this should be included.

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