The Child Justice Bill- 2008M.A.J. Ngelanga

Aims

• Criminal justice for children in conflict with the law• Provide minimum age for criminal capacity• Assessment – on suspicion• Preliminary inquiry- pretrial & inquisitorial• Diversion• Child Justice Court to hear matters not diverted• Extend alternative sentencing options- to also include the

restorative justice option • Pro-active approach to offending- rehabilitation and re-

integration• Balance interest of children with that of society, with

regards to victims

5.Manner of dealing with children

who are alleged to have committed offences( Part 1)

• - 10 Years- Probation officer – Section 9• + 10- Assessment-preliminary enquiry• Decision on trial or diversion

Part 2: Criminal Capacity• Minimum age of Criminal Capacity • 7(1)-10 years- no capacity ( s.90• (2) 10-14- Presumed to lack capacity• State to prove presence of capacity

Dealing with children – 10( S.9)

• 1.Child Suspect-police not to arrest but to hand over to:• Parent or appropriate adult• If above not available or best interest does not allow,

child or youth care centre• Must notify probation officer• 2.Probation Officer to assess – 7 days• 3.After assessment, Prob Off to take appropriate action

including:• Children’s court referral, therapy, counselling, support

services, meeting with parents or no action.• Aim is appropriate action by Prob Off- write a report• Non compliance by child- children’s court referral

Decision to Prosecute:10-14(s.10)

• PP to make a decision whether to prosecute or not • To take into consideration a number of factors:• Educational level of the child including cognitive ability, and

environment where child grows up,• Nature and seriousness of offence ( schedules)• Victim and community interest• probation officer’s assessment• Appropriateness of diversion, etc

• Proof of criminal capacity gives the PP various options as provide in

the act,eg Ch 6 diversion or ch 7 preliminary enquiry• Failure to prove capacity results in Section 9 application

Proof of Criminal capacity ( s.11)

• Proof is by state beyond reasonable doubt• Right and wrong appreciation and act accordingly• Inquiry before a magistrate who is aided in it by the

following:1. Assessment report by probation officer2. Other evidence led prior to diversion or conviction3. Evidence requested on own accord from a suitably

qualified person who assessed the child’s cognitive, moral, emotional, psychological and social dev. Written report within 30days by such a person.

4. Failure to prove, may result in a s.9 action

Part 3: Age estimation, determination, and error regarding age

• 12. Responsibility on police official where there is uncertainty regarding age• Under 10- ch 9 provisions- Probation Officer report etc• + 10 but below 18- treat as a child- (i) arrest (ii) release / detention ( ch 3,4,s.27)• View of medical doctor to be taken into account

13. Estimation by Probation Officer • Done during assessment, before preliminary enquiry or 1st appearance• Probation Officer must make an estimation + complete a prescribed form and attach any other

relevant documentFactors to look at:• Previous determination by a magistrate• Statement of age by a parent/ appropriate adult, religious or community leader who knows the

child• Child’s statement• School report/ registration form, baptismal certificate etc• A report of estimation by medical doctor• On production of contrary evidence, alteration effected to reflect correct age.

14. Age determination by enquiry magistrate or child justice court

• Issue of age may come up during Preliminary Enquiry• Inquiry magistrate must then determine child’s age• For age determination magistrate assisted by:

- documents from Prob Off

- Information or document from any person

- may subpoena any person and request for documents that may help

• Must enter such determination into the record• On emergence of contrary evidence, magistrate to alter previous

determination and enter the correct one

15. Any other court may must determine child’s age using method provided for above ( in s.140

Error regarding age of or adult who allegedly committed an offence ( s.16)

• 1(a) Error in respect of child - S. 14 applies

(b) ‘’ “ adult - CPA ( unless s.4(2) applicable( DPP directive)

• If error may have caused prejudice to a person, presiding officer must transmit the record of the proceedings to High Court

( S.303 ( 304) CPA Review) • If no prejudice, proceed in terms of this act• View of the Presiding Officer- as to presence of prejudice• Such error can be picked up at any stage of the proceedings

Chapter 3Methods of securing attendance of a child at

Preliminary Enquiry• S.17- Notice, summons and arrest• DPP or delegate may given guidance to police

18. Written Notice to appear at a preliminary enquiry ( PE)• (1) Schedule 1 offences- CPA S.56 read with this Act allows a police official

to issue a notice to a child who is alleged to have committed an offence Such a child is required to attend a PE• (2) S.56 (1) © CPA – admission of guild payment of fine is excluded here(3) (a) Such a notice must be handed in writing to the child in the presence of parent or appropriate adult and must specify time, place and date of PE. A signature / mark must acknowledge receipt. (b) Exception- where child and parent/ appr adult not together, child to be given and parent later on. Both to acknowledge receipt by signature or mark .

Notice continued

• (4) A police official must in the prescribed manner- (a) when handing the notice to child or appropriate adult- (i) inform them of nature of allegations against the child (ii) inform of the child’s rights (iii) explain immediate Act procedures applicable ( iv) Warn child to appear at the PE at relevant date, time and place and remain in attendance (v) Warn parent/ appr adult, of need to bring child or cause child to be brought to the PE + remain in attendance. ( b) Immediately but not later than 24 hours after handing the notice to the child, notify probation office concerned 19. Summons Same procedure as notice applied when serving summons. S. 54 CPA applies however. Act does not specify schedule. Likely as in notice.

Arrest ( s.20)

• (1) A child may not be arrested for Schedule 1 offence unless the following

compelling reasons exist:

(a) Where police official has reason to believe that child does not have a

fixed residential arrest. Provision subject to abuse due to Social

context issues that may arise in a SA situation

(b) where police has reason to believe that child may commit offences if

not arrested.

(c) where police official has reason to believe that child poses a danger

to any person

(d) where an offence is in the process of being committed

(e) Offence committed in terms of the National Instructions referred to

in Section 95(5)(a)(ii) ?• (2) Any warrant issued for child’s arrest in terms of S.43 of CPA must

direct that child is brought to PE ( this may curtail wide police powers given by

above section warranting arrest)

Arrest continued

• (3) A police official arresting a child must follow same procedure as that provided in summons and notice ie. 18(4) & 19(3)

• (4) (a) Report to Prob Officer after arrest. Same as in summons & notice (b) Failure to report to Prob Officer, police official to write a report to PE magistrate as to why no report to Prob Off was not made. Reasons for non compliance to be given.• (5) Child arrested and is in custody to be taken to magistrate even assessment is not done. To be dealt with in terms of s.5(2-4) and also there must be compliance with the 48 hours period in terms of the provisions of the CPA 50 (1)(d), taking into consideration, (i) ordinary court hours (ii) physical illness or any other condition

(iii) arrest outside the court’s jurisdiction

Chapter 4: Release or detention & placement of child prior sentence and related matters

Part 1: Release or DetentionApproach to be followed when considering release or detention of

child after arrest ( s.21)

21 (1) Preference to be given to release than detention of arrested child

(2) Prior to PE

(a) Schedule 1 Offence- on notice, police official, where appropriate,

to release child on bail- s.25 read with 59 CPA ( Sched 7= Sch 2)

(3) A Presiding Officer may at PE or thereafter at Child Justice Court-

(a) In respect of any offence release the child into care of parent or

appropriate adult- s. 24(2)(a) or

(b) Schedule 1 or 2 Offence ,release child on own recognisances (b)

© If not released on a & b above, release child on bail- s.25

Release of child on written notice into care of parent/ appr adult before PE

22.(1) Police Official to release child on written notice in.t.s.18 into parental care/ appr adult if child is in police custody for Sched 1 offence ASP even before PE unless-

(a) parent/adult is not available or cannot be located even after reasonable

means to do so, or

(b) there is substantial risk that child may be in danger to any person /

him/herself

(2) If child not released, IO to provide PE magistrate with a report in a prescribed manner giving reasons for not releasing child ; look at factors 1(a)+ (b) above.

23.Duty of Police Official when releasing child into care of parent/ appr adult

in.t.s.22 to at time of release, give notice to child and parent,s 18

Release of child into care of parent/ appr adult or own recog at PE/ Child Justice Court

S.24 (1)child in detention for any offence appear- (a) At PE, finalised or postponed or Child Justice Court set down (b) Child Justice Court postponement ,The PO must , subject to 2(b), consider chid’s release in terms of this

section. (2) PO may release child referred to in ss (1) (a) into care of parent / appr adult (b) own recognisances- sch 1 &2,If it is in the interest of justice to release the child (3) PO deciding best interest looks at the recommendations of the Prob Off’s assessment report and a lot of other factors mentioned here(a-e)

Section 24 release continued

(4) PO to warn such a released child as to date, time & place of next appearance. Conditions may be imposed ( a-f). A must.

(5) PO to direct parent/ appr adult of time, date & place+ conditions to be complied with.

(6) PO to warn child on own recognisances of time, date & place + conditions

(7)(a) Failure of child to comply with 4 & 6 above, warrant or summons

(b) enquiry into failure to comply

(c-d ) Action by PO depending on enquiry result

(e) Criminal sanction on parent/ appr adult on failure to comply with

(5) above

Release of child on bail ( s.25)

• (1) Ch 9 CPA- S 59 & 59A-Bail release . Read with s 21(2)(b)• (2) Release of child under 21(3)(c) on bail must be considered in 3 ff

stages:

(a) whether interest of justice permits release of child on bail; and

(b) if so, separate inquiry of affordability of child, parent/appr adult

to pay bail, and

( c) After inquiry findings-

(i) unable to pay, PO to set non-monetary conditions of release

( ii ) If able to pay, conditions for release + appropriate bail

amount to be set,

Part 2: Placement

Approach to be followed when considering placement of child26.(1) If after consideration of all options in Part 1,a decision is made to

incarcerate a child, PO and IO to opt for least restrictive option in the circumstances.

(2) Prior to 1st appearance at PE, within 48 hour arrest- (a) Police Official, depending on child’s age + offence, must t consider placing child in suitable youth & care centre ( s.27(a) or (b) If above (a) not appropriate/applicable, child can be locked up in a police cell ( 27(b) (3) A PO may at 1st PE appearance or subsequent thereto, order detention of child in- Child Youth care centre or Prison

Placement of child who has not been released before 1st app at PE

27. Not released before 1ST appearance and at PE-

(a) (i)10—14 years charged with any offence

(ii) +14 years charged with Schedule 1 &2,

Detention in an appropriate youth care centre, if not available or no vacancy, in a police cell or lock- up ( ?)

(b)+14 years, schedule 3– police cell or lock-up

28.Protection of children detained police custody

This section emphasizes humane treatment of children and

manner of dealing with complaints against ill- treatment

29. Section deals with placement of child in a child youth care

centre and what PO must consider before doing so

Placement continued

30. Placement in Prison

(1) deals with when PO can do this,eg child +14

(2) DPP certificate of strong evidence for shed 3 offences

(3) PO evidence to be looked before placement

(4) 14 days reconsideration period by PO

(5) Schedule 1&2 children may also be placed in prison on

compelling circumstances- to be recorded

s.31. Error regarding placement

Person receiving child wrongly placed to receive child but to

send child back to court next court day for correction of

placement order.

P.O ASSESSMENT OF CONDITIONS OF DETENTION OR PLACEMENT( Part 3)

32. A Presiding Officer must at a PE or Child justice court at every subsequent appearance of a child detained or placed, look into a number of issues about the child’s continued placement or detention, eg proper treatment, need for bail reduction etc( a-f)

33.Conditions of detention at PE or Child Justice Court (1) No appearance of leg irons or handcuffs unless exceptional circumstances exist (2) In holding cells in court -Children to be kept separate from adults – Gcuwa case - no boys & girls together - no adults & children in same truck to court- reasons to be furnished to PO for non-compliance

Ch.5 Assessment of child

34.Duty of Probation Officer to assess children• Every child alleged to have committed an to be assessed unless

assessment dispensed with in.ts.41(30• Prob Off to assess child on notice, summons, arrest on notification

by police official- before PE & within stipulated time frames• ChiId-10 years to be treated in.t. s.9 (7 days)

35. Purpose of assessment ( a-i) give guidance to PE & resolve incidental matters eg age36. (1)Confidentiality of information obtained at assessment• may only be used for purposes of this act including PE• Is inadmissible as evidence in bail, plea, trial & sentence• (2) Contravention of this section a criminal offence

Assessment continued

37.Place where assessment to be conducted - Identified by Prob Off as suitable- may include, police station, magistrate’s court, DSD offices, 1 stop Child Justice Centre - must be conducive to privacy38. Persons to attend assessment 1. Child 2. Parent or appropriate adult unless excluded or exempted by Prob Off ( disruptive or child best interest/ admin of justice ) 3. Prob Off may permit other people in assessment - diversion service provider, researcher, any other desirable person 4. Police official – if Prob Off may be in danger 5. Private consultation if appropriate. 6. Parent location

Assessment continued

39. Powers & duties of Prob Off at assessment• Must- explain assessment to child& allow participation (a-d)• Consultation with other stakeholders for views eg PP, IO etc• Consultation in private with any other person present• Consult any other person not present in the assessment• May consult with co-accused children if in their best interest40. Assessment Report• Must have recommendations on certain issues( a-h)• If youth care centre placement is recommended (d), information

about the centre must be obtained, eg availability, security etc. • Criminal conduct of child + security issues to be addressed• Indication of acknowledgement of responsibility. • Report to be give to PP before PE starts

Chapter 7: Preliminary Enquiry ( PE)

S.43 Nature and Objectives of PE

1. Nature• Informal, inquisitorial procedure• May be held in court or any other suitable place

2.Objectives• To consider Pro Off Assessment Report and take a decision on a

number of subsequent issues relating to the trial, diversion or incarceration of the child ( a-h)

3.To be held in respect of every accused child ( exceptions)• to be held within 48hrs of child’s arrest & detention ( s.20(50)• Within time limits in notice or summons (s.18&19)• PE appearance = 1st lower court appearance ( s.50. CPA)

Preliminary Enquiry continued

S.44.Persons to attend Preliminary Enquiry • Magistrate and Prosecutor• The child or appropriate adult• Probation Officer• Diversion Service Provider ( if div is a likely option)• Any other person may be allowed if contribution to PE is expected

from such a person• PO may subpoena any other necessary person • Exclusion from PE

- Parent or appropriate adult may be excluded from the PE if the best interest of the child so dictate, eg inquisitorial nature of PE is defeated.

PE continued

S.45. Confidentiality of Information furnished at PE• S.154 CPA r.w. this Act states that there should be no publication of

information that reveals identity of child/ witness,-18 years• Information obtained at PE may not be used in a subsequent bail

application, plea, trial and sentence proceedingss.46Failure to appear at PE A child, parent/ appr adult is obliged to appear at PE when directed as

such in terms notice, summons, warning etc. Warrant should be issued on default ( s.24(7)

Procedure Relating to holding of PE• Informal, inquisitorial, interviewing, eliciting of information and

keeping of record of proceeding by Presiding Officer• At start of trial PO, explanation of rights to child

PE Procedure continued

• Diversion option – must an acknowledgement of responsibility by child- if not no further questions by PO on offence. no acknowledgement , proceed.

• Information to kept on the assessment form and other documents These to be part of PE record• Further documents and information may be required by PO• Where assessment not done prior to PE, PO may dispense with

such but should enter reasons for such• If Prob Off not available at PE, assessment report should be

available unless dispensed with as above.• Those attending encouraged to participate• There can be a joint PE for co-accused children if best interest

dictates so.• Refusal to divert by PP, such info put on record by PO• PE, PO, no presiding on subsequent proceedings on same facts

PE continued

s.48. Postponement of Preliminary Enquiry• May be postponed for not longer that 48hours• In a case where diversion is possible and assessment not done• More information is still to be obtained• Further investigations are still to be done• Another 48hrs if : diversion possible + no conclusion of PE• If postponement is done for FI ( id parade, pointing out etc,) PO to

advise child of legal rights eg legal rep• Further postponement for 14 days if : - detailed assessment needed + DPP directives on diversion • Postponement determined by PO: medical + s.77-78 referrals• CPA 50(1)(d)- 48hours applies to this section

s.49. Orders at PE

• Diversion ( s.52(5) (10-14 years with proven criminal capacity)• Referral to Child Justice Court ( s.47(9)(c )

In this case PE PO to explain to child all legal rights that are incidental to appearing in that court, eg legal rep, time, date etc

• s.50. Referral of children in need of care to a Children’s Court

It may appear PO at PE that child is in need of care and protection,

eg, does not stay with family, committed an offence indicative of need for food& warmth (a-c) etc.

• PO to stop proceedings and refer child to Children’s Court

( Sections, 42, 155 & 156 of Children’s Act)