SUBMISSION ON THE CHILD JUSTICE BILL ( BILL 49/2002)
BY: NICRO (National
Institute for Crime Prevention and the reintegration of offenders)
Background to NICRO as an
organisation involved in Child justice service delivery and policy
NICRO, the South African National
Institute for Crime Prevention and the Reintegration of Offenders, is the
premier diversion service provider in the Republic of South Africa. It remains
the only national non-government organisation providing comprehensive crime
prevention services in South Africa.
NICRO is committed to the
prevention and reduction of crime and creating safer communities. The success
of the organisation’s programmes is based on the promotion of a culture of
accountability, responsibility and restorative justice.
Services are built on a community
development method with programmes training and involving local community
members to share the responsibility of addressing crime prevention and crime
reduction, and empowering communities with the skills to drive the process of
sustaining their own self-help projects.
NICRO has ongoing and significant
influence on local, provincial and national structures and plays an essential
role by contributing substantially towards policy and legislation in South
Africa. All projects are in line with government policy and geared towards the
changing needs of its beneficiaries and South African communities.
As a general proposition, NICRO staff fully support the enactment
of legislation establishing a separate child justice system, laying a legal
framework for diversion and the expansion of restorative justice, and giving
effect in domestic law to the principles contained in international instruments
(such as the Convention on the Rights of the Child) and the 1996 Constitution
of South Africa.
2. Comments on the Definitions contained in section 1.
As a general comment,
it is noted that many of the concepts contained in the definitions are
specialized (eg the term assessment, family group conference and residential
facility). NICRO submits that some of
the definitions are of a very general nature and should be more descriptive of
the process contemplated. For example, defining assessment as “assessment by a
probation officer as contemplated in Chapter 4” adds nothing and is somewhat tautologous.
The description should indicate that assessment is a process of evaluation of
the child’s background circumstances and the circumstances surrounding the
commission of the offence.
Similarly, a “family group conference” is defined in
the Bill as “a conference contemplated in section 48” . In the SA Law Commission’s Report a family
group conference is described as “a gathering convened by a probation officer
as a diversion or sentencing option to devise a restorative justice response to
the child’s offending”. NICRO submits
that the definition in the Law Commission’s Report is more explanatory as to
what the conference entails.
An “appropriate adult” is defined in the
Bill as “ any member of the child’s family or a custodian or guardian of a child
but excludes a parents or primary care-giver as defined in section 1 of the
Social Assistance Act, 1992 (Act no 59 of 1992)”. NICRO submits that the appropriate adult can be (and often is)
the primary care-giver. Examples in
point are grandparents and other relatives, who would be included as ‘members
of a child’s family” but then excluded on the grounds that they are primary
caregivers! It is unclear and does not make sense that the primary care-giver
should be specifically excluded in this definition. A primary care-giver should therefore be included under the
definition of an “appropriate adult”.
Further, provision
should be made that a person who cannot prove that he/she is an appropriate
adult – in the sense of the word appropriate - be excluded from assisting the
child (for example a gang leader).
Hence section 21 (4), which provides for a person to be excluded from
assessment when that person is obstructive should rather mirror the
wording of section 27( 2), allowing for disqualification where the parent or
appropriate adult’s presence is not in the child’s best interests. The wording
of the definition of an appropriate adult could support this by including a
proviso that an appropriate adult should be ‘any adult who knows the child and
can supply the assessment team with relevant information concerning the
child’.
NICRO submits that
the definition of a “residential
facility” will confuse magistrates
and prosecutors as it stands, and they will be unable to use the relevant
sentencing provisions which permit referrals to such places. The definition
should ideally include a direct reference to reformatories and/or industrial
schools, which are familiar to magistrates in most provinces. As it stands this definition could be
misleading and it should be more
clearly formulated. It must be clear
from the definition that a ‘residential facility’ does not include prison,
which is not the case at the moment.
The definition of a “residential requirement” only refers
internally to residential facilities.
This would mean facilities established by the Department of Welfare or
education, according to the Bill, and would therefore exclude residence at
wilderness camps, outdoor adventure therapy settings and the like. These sorts
of diversion options (see level three diversions set out in clause 47(5)) are
mostly run by NGO’s, and not state departments. Also, despite the residential
component of such referrals, it might be to a tented camp rather than a
designated facility, and then on a fairly limited basis (eg for two weeks). In
short, the definition is too narrow, bearing in mind the diversion provisions
cited above, and the sentencing provisions referred to in section 67. Section
67 clearly contemplates programmes with a residential requirement to be
distinct from sentences to a residential facility (section 68), which would
include reform school sentences and similar referrals to State institutions.
3.1
Upper age
NICRO supports the upper age as 18, but
submits that the “exceptional circumstances” listed in clause 4(4) (a) and (b)
should be extended to permit persons over 18 but under 21 to be considered for
diversion in a slightly broader range of circumstances. This is based on ground
level experience throughout the country relating to persons who are presently
frequently referred to NICRO programmes.
The following are
suggestions regarding additional exceptional circumstances:
Either:
Ø
all persons below 21
who have committed schedule 1 offences, either individually or in a group
Ø
person above 18 but
under 21 years who is still attending school and charged with the commission
of a minor offence
Ø
persons above 18 but
under 21 years charged with shoplifting or possession of dagga where value is less
than R300
At the workshops held
with provincial representatives, there was consensus around the second option
listed above, and much support for either of the other two proposals.
NICRO wishes to point
out that the inclusion of non-national children in the provisions of this Act
may cause practical problems, as such non nationals are often deported without
appearing in a criminal court at all. Further practical considerations that
should be taken into account if immigrant offenders are included are communication
difficulties and language barriers experienced in trying to render diversion
services to these children. In the past, efforts have been made to place such
children in community service programmes, but they did not understand the
concept of diversion or reason for their being given community service due to
language difficulties..
3.2 Minimum age of criminal capacity
There is unanimous
support within NICRO as an organisation for the minimum age for criminal
capacity of 10 years provided for in clause 5(1). This accords with NICRO’s experiences as practitioners in child
development, and with the practical realities relating to the commission of
offences at grass roots level. Some provinces proposed that this was the lowest
feasible age to set, and would have preferred a higher age. NICRO notes that 10
is at the lowest end the minimum age accepted by international bodies such as
the Committee on the Rights of the Child, although as recently as this
year countries have been criticised for
establishing 10 years as the minimum age. South Africa would be failing to
honour commitments incurred at international law if the minimum age was not to
be raised.
In Section 5(2) provision is made for a rebuttable presumption that a child who
commits an offence whilst over the age of 10 years, but under the age of 14
will be presumed not to have had the capacity to appreciate the difference
between right and wrong and to act in accordance with that appreciation. This
presumption may be rebutted, with a variety of mechanisms spelt out in the
proposed legislation. NICRO supports this presumption fully, believing that the
criminal capacity of children of this young age should be properly proven.
However, NICRO also wishes to point out that children aged below 14 years can
be accommodated in existing diversion programmes, and indeed have been diverted
before. Diversion for these children is
also a more economical option than prosecution in court, especially since the
few children in this age category who offend generally commit petty offences.
3.3 Children below the age of 10 years.
NICRO submits that
the Bill provides no indication as to what must be done where a child below the
age of 10 commits an offence. Service
providers (eg Children’s Homes, staff in places of safety) need to be told how
to address the problem should it ever arise.
NICRO recommends that the provisions in the Law Commission’s Report on
Juvenile Justice be incorporated in the proposed child justice Bill, as these
provide sensible options for taking matters further, without infringing any
constitutional protections for children.
As matters now stand,
the provisions do not make sense (see clause 7(7)). What would the point be a
police official sending the probation officer a notification of a child’s
details where the child is aged below 10 years and cannot be arrested? What
would be done thereafter with these details?
The SA Law Commission proposed that the
probation officer would have certain powers, namely to open a children’s court
inquiry, to refer the child or family of the child for counselling or therapy,
to arrange state or private support services for the child, or to arrange a
conference with the child, his or her parent or appropriate adult, the police
official and possibly the victim, to devise a written plan appropriate to the
child and relevant to the circumstances (a “welfare” family group
conference). [See, for these proposals
, pages 251 – 253 of the Report on Juvenile Justice]. Also, the police would
have been granted the power to take a child to a probation officer where the
child was aged below 10 yeas, in a manner equivalent to the present Form 4
procedure used in the Child Care Act by the police to remove children pending
an inquiry into the circumstances (see p229 of the Report on Juvenile Justice).
This too is not included in Bill 49 of 2002, leaving the impression that
nothing can be done where young children are involved in offending (even at the
instigation of their parents or care-givers).
NICRO submits that the omission of
these provisions weakens the Bill considerably, and requests that the
Parliament give attention to re-incorporating non-punitive provisions (those
contained in the SA Law Commission’s Report on Juvenile Justice could be
re-inserted).
3.4 A ‘suitably
qualified person’
Clause 56 requires
that an evaluation of a child aged between 10 and 14 years may be requested
from a “suitably qualified person”. A concern of NICRO workers is about who a
‘suitably qualified person’ for the purposes of evaluation of the child’s
cognitive and other capacities would be?
The credentials and status of this person is not clearly stipulated in
the Bill, and this might cause considerable confusion in practice. It is
suggested that it should be someone with a social science background, with
additional training, and that more clarity should be provided in the
Regulations as to what level of qualifications are acceptable.
The question arises
whether these persons should be state employees or not, with NICRO feeling that
independent evaluations would be preferable..
3.5 The requirement of the certificate of the Director of
Public Prosecutions
Section 5(3) of the
Bill provides that if the Director of Public Prosecutions intends charging a
child with an offence, the Director or his or her delegate must issue a
certificate confirming this intention.
This certificate must be issued within 14 days. NICRO submits that for a schedule 3 offence a
30 day period should be allowed.
However, beyond this expception, there should also be no delays in this
certification procedure that might cause children to remain in prison. It is regarded as a welcome suggestion that
the DPP will be regarded as having declined to prosecute if the required
certificate is not issued within the maximum periods specified as this will
ensure that children do not languish in prisons awaiting a decision.
NICRO is, however,
concerned are that persons issuing this certificates should have a special
sensitivity towards children’s needs.
The earlier draft proposed certain criteria that the DPP or his delegate
would have to take into account (such as whether diversion would not be
appropriate, the age and maturity of the child, the recommendations of an
assessment report and so forth: See Report on Juvenile Justice p 224.). Many of
these required individualised decisions based on the best interest of the child
as well as the interests of justice. These guidelines do not appear in the
tabled draft, however, and NICRO is of the view that in the absence of guidelines
to assist decision making about taking young children through criminal court
processes, regulations could spell out either the kind of factors that should
be taken into account, or could require some expertise or specialisation in
child development on the part of the DPP or his or her delegate. However, many
delegated decision-makers will not know what the factors are without some
indication in the primary legislation as to what is expected.
3.6 Age determination
Regarding age
estimation and determination, it is proposed that a “medical practitioner”
should be included in the list of persons to whom the probation officer may
have regard (see clause 24(10 and 31 in general). At least 5 provinces still maintain the institution of a District
Surgeon in place, and use their reports frequently as a basis from which to
establish the age of children in the child justice system.
NICRO welcomes, as a general point, the
inclusion of provisions on age determination in the Child Justice Bill.
4.1 Schedules:
NICRO questions the high value set for
schedule one offences, the most minor level, as far as possession of drugs is
concerned. Possession of drugs is specified to R 500 in value. It is proposed that the quantity and weight
should also be specified because a certain quantity or weight can indicate
dealing. (R500’s worth of dagga ‘stoppe’ can amount to 500 stoppe, which tends
to indicate dealing).
It is also submitted that R 500 is too
high a value to set for shoplifting, in NICRO’s experience. It is therefore
proposed that for both offences a ceiling of R300 be set.
NICRO proposes that the following
common petty offences should also be included in Schedule 1:
·
loitering with the intention of committing prostitution
·
possession of suspected stolen goods to the value of R 500
(a statutory offence)
·
possession of housebreaking implements (a statutory offence)
·
possession of car-breaking implements (a statutory offence)
4.2 Confessions
NICRO is firmly of
the view that any child making a confession should be supported by an
adult. Evidence acquired from children
during pre-trial procedures should also be acquired in camera. Therefore, NICRO
welcomes the concept of an independent observer to witness identity parades,
confessions and so forth, where the child’s parent or an appropriate adult is
not available. However, it should be made clear to the police, in this
particular chapter, that evidence taken without such a person’s presence will
be inadmissible. The placing of the prohibition on admitting such evidence
later in the Bill is going to confuse police officials, and they should be
alerted to the need to obtain the services of a parent, appropriate adult, or
independent observer much earlier in the Bill (see clause 54, contained in
chapter 7).
The question must be
raised who an accredited independent observer would be?
Clearly what is
envisaged is someone objective who has the best interests of the child at
heart. However, NICRO is concerned that ‘a community representative’ per se may
not be objective, especially in polarised communities, and that police
officials may be able to pick and choose off a list to suit their needs, rather
than those of the child. Although the Bill refers to such observers being
accredited in terms of the Act, it is not spelt out who would maintain lists of
accredited persons (the National Department of SAPS? The National Department of
Social Development? Provincial Departments) nor at what level of governance
these lists would be maintained – in practice it is the local police station
that needs prompt access to the list to secure the attendance of an independent
observer before the case goes to court.
NICRO therefore
proposes that a set of criteria needs to be established for limiting the police
discretion in appointing independent observers, especially where they are
broadly conceived of as community members. It is further suggested that a list
of accredited persons should be available at each police station (and that
Regulations provide expressly for this) and, last, that only these persons may
be utilised. These persons should be specially trained to work with children
or, in the alternative, they may be designated persons who are relevant or
close to the child, eg a child and youth care work from the local street
shelter.
NICRO would like to
see ‘family finders’, as presently
used in some provinces, should be expressly referred to in regard to the
positive role they play with notification. Although there are resource
constraints involved in requiring appointments of such persons (community
worker who can be paid a stipend), mentioning the role of the family finder in
legislation creates a framework for the recruitment and further development of
this role player. Family finders can be especially useful in rural areas, where
the police struggle to find family members, and the inserted section need not
be couched in peremptory language. It would assist, however, in ensuring more
equal access to services in rural areas. This does not mean, however, that
NICRO does not support the basic proposition that the first duty to notify
parents, family members or other appropriate adults should rest on the Police.
Section 7(4)
regarding notification of probation officer within 24 hours of the arrest of a
child could be difficult to implement in rural areas. NICRO strongly advocates for an after hours probation service
wherever possible.
NICRO proposes that
daily monitoring of police cells be conducted, either by the Department of
Social Development, or by other authorised persons, such as NGO’s like NICRO,
or persons from the list of accredited independent observers. This is seen as
critical to avoid children languishing for periods longer than is permitted by
law in police custody, as often occurs at present. Enabling provisions to allow
this to happen should be included in either the legislation, or the Regulations
to the Bill.
In general, NICRO
supports the provisions relating to detention in police custody, but is of the
view that providing children with the rights referred to in clause 3(3) does
not go far enough in ensuring their access to medical treatment, food and
water, and the other services mentioned there. This formulation begs the
question who should ensure fulfillment of these rights. The agency responsible
for fulfillment should be explicitly identified.
The organisation,
which has over the years had much experience of monitoring of children in custody
in police cells, stresses the need for a separate register detailing the names
of detained children (clause 18). Street names, nicknames and aliases should
also be entered on the register, to enable effective ‘tracking’ of children. It
is further proposed that the register be accessible for monitoring, and that it
be checked a regular intervals by an independent person to prevent children
from being held longer than required in police custody. NICRO hopes that the
legislation or regulations will reflect this.
4.5 Arrest
With respect to the provisions on
arrest, NICRO is concerned that there do not appear to be provisions concerning
citizen’s arrests (eg by a security guard at a shopping centre). Is it clear
how such role players are supposed to deal with a child before the police
arrive? Should legislation not detail those standards expected of private
citizens in relation to children, as there have been notable instances of abuse
of children at the hands of people using the citizens arrest provisions?
4.6 Availability of alternatives to detention in police
custody
Although this point
is not a new one, and has been made many times before, NICRO remains concerned
that there are insufficient places of safety within a reasonable distance from
courts, to enable children to be removed from detention in police custody.
Where there are places of safety, there are often no vacancies.
5.1 General comments
NICRO supports the
provisions relating to assessment, bearing in mind that sufficient probation
officers must be made available to conduct assessments within the required 48
hour period. Ideally, assessment should involve input by a variety of different
role players (including prosecutors, probation officer, diversion providers,
etc.), which can be facilitated by the establishment of one top youth justice
centres.
The purposes of
assessment, as contained in the Report on Juvenile Justice (p 246) did enhance
the chapter by spelling out for the benefit of social workers exactly what the
aims and goals of this procedure were. This provision does not appear in the
tabled Bill 49/2002. As is evident from the remarks of Van Heerden J in S v
J 2000 (2) SACR 310 (C), social workers do need guidance in regard to their
role. The accused had been assessed by a probation officer before appearing in
court, and the assessment report had been handed in to court, in lieu of a
pre-sentence report. Overturning the sentence because of the absence of a
proper pre-sentence report, the review judge commented also on the inadequacy
of the completed assessment form, because
the format and language used were unnecessarily complex and that the
forms used had not been understood by the
probation officer. The judge stated that this 'highlighted the importance of
legislation clarifying the approach to assessment of young people in conflict
with the law'. The relevant part of the judgement reads as follows: 'From the abovementioned recommendations of both the IMC and the South
African Law Commission Project Committee on Juvenile Justice, it appears that
the purpose of an assessment report in respect of a juvenile offender is, inter
alia, to establish the prospects of the child in question being diverted away
from and dealt with outside the criminal justice system (thereby avoiding a criminal conviction), and to
assist the prosecutor and other relevant officials in determining whether or
not to continue with the prosecution of the child… To my mind, this highlights
the importance of legislation clarifying the approach to the assessment of
young people in conflict with the law…”
NICRO consequently
recommends that the portfolio committee consider elaborating the purposes of
assessment in the legislation.
5.2 Centralisation of arrests
Assessment is greatly
facilitated in practice where all children arrested within a magisterial
district are brought to one central police station, in urban areas served by
more than one police station per magisterial district. Centralisation of
detained children means that probation officers do not have to run all over the
place looking for arrested children in order to perform assessments. While such
centralisation has been successfully achieved in certain large metropoles,
there is scope for improvement. While one stop centres are still in the process
of being set up, NICRO recommends that the legislation should provide that
arrests should be centralised within magisterial districts to facilitate
probation officers accessing children for assessment. This is, however, possibly a matter for the Regulations, rather
than the legislation itself.
5.3 Persons attending assessment
The Bill contains two
different sections which distinguish between persons who must attend the
assessment and persons who may attend the assessment, which NICRO supports,
with the proviso that the phrase ‘ any person whose presence is necessary or
desirable for the assessment’ includes a diversion programme presenter such as
NICRO staff, as they are far better able to assess whether a child would be
suitable for admission to one of their programmes than probation officers.
However, NICRO workers should only play
a role at assessment when needed and should not be compelled to attend
assessment in every instance.
5.4 Assessment forms
NICRO is of the view that a standardized developmental assessment form should be used
by probation officers throughout the country. The form concerned should not be
12 pages long (as is currently the case in some places) because probation
officers do not have the time for to complete such a long questionnaire
adequately. Frequently, the detail
required in proper assessment reports is presently not being provided due to
the time constraints of the Probation officers. Currently NICRO’s internal
assessments which are done before a child is admitted to a NIRO programme are
far more comprehensive and illuminating (see below for further comments in this
regard when the referral mechanism from the preliminary inquiry is discussed).
In reality, probation officers do only the initial assessment/screeing, and use
NICRO as a referral centre to effect more detailed assessments. Because of this, it would be helpful to
NICRO if the legislation provided that the probation officer’s assessment form
should be provided to the diversion service deliverer when the child is
referred for assessment for admission to a NICRO programme. Again, such
provision might more properly resort in the regulations.
NICRO questions
whether police officials should be permitted to attend assessment in all
instances, as their presence can be intimidating to children, and can obstruct
the assessment interview. However, the attendance of a policeman can secure the
safety of the probation officer. Therefore it is suggested by NICRO that the
Bill reflect that the presence of the police official should only be permitted
where it is necessary to further the personal safety of the probation officer
or to prevent the child absconding.
5.5 Remanding the preliminary inquiry for ‘Detailed
assessment’ (Section 38 (1))
Section 38(1)
of the Bill makes provision that any person may request the inquiry magistrate
to postpone the proceedings of a preliminary inquiry for the purposes of
obtaining a detailed assessment of the child.
NICRO seeks clarity on who would be included under the wording “any
one”? Does it include the mother or the child?
Or the child himself or herself? Or is it limited to one of the state
actors, ie the probation officer, prosecutor or inquiry magistrate?
In general, however,
the proposed extended remand for ‘detailed assessment’ is supported, but it’s
use should be limited as far as possible, as it seems that children may be in
detention for the 14 day period allowed. It is not clear from the wording in
section 38(3) if the child should be released until the assessment is
finished.
It is also submitted
that clause 66 (4) of the Report on Juvenile Justice (p 270) should be included
in the legislation, as this provision clarifies that after detailed assessment,
diversion is still possible. This is not necessarily evident from the Bill as
it now stands.
6.1
General comments
The concept of the
Preliminary inquiry is unequivocally welcomed by NICRO for the following
reasons:
v
it will formalise
diversion, and create equal opportunities for children to be diverted. At
present, children with attorneys have a far better chance of getting diverted
than unrepresented children, and the fact that proceedings will take place in
front of an inquiry magistrate will decrease the present discrimination.
v
It is regarded as in the best interests of children and a
child friendly procedure.
v
NICRO is of the view
that access to diversion will improve.
v
The notion that
diversion will bear a ‘judicial sanction’ is also welcomed, because it will
improve attendance and ensure greater participation in diversion programmes.
v
With the preliminary
inquiry in place, a team approach can be promoted, and children are less likely
to ‘fall through’ the system.
6.2 Who should be present at the
preliminary inquiry, an who should chair the meeting
NICRO agrees that the
preliminary inquiry should be convened by a magistrate. It is also agreed that both the prosecutor
and magistrate must be present in the preliminary inquiry, on the basis that
the two role players can interact to discuss the case and whether diversion is
possible. However, magistrates tend to be more stable as regards transfers and
promotions within the Department of Justice, and utilising magistrates as the
convenors of the preliminary inquiry will enhance the development of expertise
in the child justice system.
6.3 Place where preliminary inquiry to be held
Clause 25(4)
reads that the inquiry may take place in a court. NICRO is firmly of the
opinion that the Inquiry should NOT take place in court, although it may take
place in another venue (eg an office) in the court building. NICRO proposes
that the wording of this clause be altered to reflect that a court room should
only be used where no other alternative is available (not even a corridor!).
6.4 Process during the preliminary inquiry
NICRO is of the view
that proper regulations should be issued to indicate how a child should be
informed of his or her rights to plead not guilty, so that children are not
unduly influenced to admit guilt. In NICRO’s experience, there is in practice
frequently pressure upon a child to acknowledge guilt so as to qualify for
diversion, and this is problematic when the child than arrives for assessment
at the diversion service provider, and then says he or she did not commit the
offence. The diversion service provider (NICRO) then sits with a dilemma –
should they proceed to accept the child onto the programme, to which the child
has after all been referred by the Justice system, or must they refer the child
back to the court? This problem would be diminished if more attention was given
to ensuring that children are not unduly influenced to say they admit
responsibility.
NICRO is of the view
that role players should have access to a full history of the child during the
preliminary inquiry, including any previous convictions and diversions. NICRO prefers that children should not be
referred to the same diversion option more than once, and suggests that this could be mentioned in regulations, as
there is no point in a child repeating (for instance) the YES programme more
than once.
It is agreed that the
inquiry magistrate who hears about previous convictions should not be able to
preside in a later trial, should the child plead not guilty in a child justice
court (clause 42(4)).
NICRO only supports
clause 39(2) enabling the magistrate to decide on the ‘diversion order’ if it
is provided that s/he has had training on the content of the various diversion
options (this should be specified in the regulations). Alternatively the choice
should be a team one with the prosecutor and probation officer playing a role
too, as probation officers are more familiar with programme content. Ideally,
the diversion service providers should be allowed to participate in the
preliminary inquiry process, especially where referral to (for example) the
more intensive JOURNEY programme is contemplated. NICRO therefore recommends
that the diversion service provider should be included amongst the list of
persons entitled to be present at the preliminary inquiry (clause 27 cn be
adapted to clarify this).
However, NICRO’s main contention is
that the magistrate would have to be flexible regarding referrals to NICRO
programmes, as the recommendation of NICRO staff must be taken into account.
NICRO has the right and the responsibility not to accept an unsuitable
candidate in its programmes, and there should be a procedure for referral back
to the preliminary inquiry when an inappropriate option has been selected.
Diversion service providers should then be given the role of making an
alternative recommendation for the child, where a referral has been deemed
unsuitable.
6.5 Remanding of the Preliminary inquiry:
There is no objection
against the provisions permitting remanding of the preliminary inquiry, but
NICRO’s concern relates to the time the child may spend in custody pending the
remand. It is proposed that a second remand may only be contemplated if such
remand it would promote the possibility of diversion, and there should be no more than two remands
(consequently, NICRO supports the phrasing of clause 37(3)). Remands should be a last resort, and it
should be a principle that detention should not be in police custody unless
there is nothing else.
7.1 General comments
NICRO welcomes the
detailed attention paid to the diversion provisions in Bill 49/2002. Much work
has gone into expanding diversion over the last 12 years, and NICRO’s view is
that the provisions are both feasible to implement, and that they provide a
helpful framework to support the expansion of diversion. NICRO’s research
indicates that diversion has a very high success rate in preventing
re-offending, and in reintegrating children into their families and
communities.
In particular, NICRO
supports the different levels of diversion.
NICRO is of the view that there should be structure in the way which
children are referred to the diversion programmes. Because different levels of offences are committed, it will make
it easier to understand which offences will justify a certain diversion
level. Clauses 47(1), (2), and (3) are
therefore justified.
NICRO agrees fully
with the concept of registration of programmes, and suggest that the
registration process should include not just registration of the content of
programmes, but also the skills level of facilitators. The process of
registration or accreditation should be supported by an investigation conducted
by a team of experts, of which NICRO is one. This should be explained in the
regulations.
NICRO’s support for
the concept of registration is based on the need to keep diversion credible and
to avoid people ‘jumping on board’ simply to secure funding. However, NICRO is
of the opinion that there should be no fee charged for registration.
NICRO would like to
raise the question as to who would keep the register, and whether this would be
effected at the National or at the Provincial level? Presently diversion
subsidies are the domain of provincial Departments of Social development, and
there is considerable variance in the programmes that are available in
different provinces. NICRO, as the national organisation which has taken the
lead in programme development, should be part of developing a registration
framework, and wishes to extend it’s services in this regard.
Generally, NICRO also
would like to support the diversion orders contained in clause 47 (1) (b) –(g),
as this will assist in promoting access to diversion for children in rural
areas. The isolated concerns that NICRO has about the orders are spelt out below.
7.2 Specific concerns
7.2.1 Transport costs
Clause 45 (4) (d)
provides that a child who cannot afford transport in order to attend a selected
diversion programme should be provided with the means to do so. This does not indicate who the provider of the
means should be. It must be clearly stated that the State must pay these costs,
as NGO’s (NICRO included) do not have the resources for these expenses.
Alternatively, transport costs should be specifically subsidised by the State,
as there will always be children who require assistance to get to programmes
even where they are presented in places that are reasonably accessible to
children. NICRO also questions whether
families who can afford to pay for diversion services should they be obliged to
do so, in the same way as families can pay for private lawyers?
Any provisions or
subsidies concerning transport should, however, take cognisance of the fact
that the child is being held accountable for the commission of an offence, and
is responsible for attending the diversion programme for that reason. For that
reason, some NICRO staff felt that full subsidisation of the transport costs
should be avoided, and that the child should bear some responsibility for
finding his or her way to the programme, in the same way they would have had to
find their way to court for any trial.
7.2.2 Diversion Orders contained in
clause 47(1)(b) – (g)
NICRO is somewhat
concerned that the positive peer association order (clause 47(1)(e) may
infringe on the child’s rights to chose whatever friends he or she may like.
NICRO service providers suggest that this concern might be eliminated if the
child was at the same time assigned a mentor, who could fulfill the role of
contributing to the child’s positive behaviour. Possibly the Portfolio
Committee could consider rewording this section to clarify that a mentor may be
appointed for the child for a certain period.
NICRO staff have also
voiced a concern about who would monitor family time, good behaviour and
positive peer association orders, as this is not clear from the legislation as
it stands. If the probation officer has to monitor these orders, the monitoring
would not be effective in areas where the probation officer is less readily
available.
There is some concern
within NICRO regarding the compensation orders referred to in clause 46(4)(e)
and (f), and who bears the responsibility to compensate the victim. There is
also a query about whether there might not be an overlap with section 300 of
the Criminal Procedure Act, which provides for a form of compensation. Isolated
instances have occurred in the past where the ‘victim’ seems to have used the
system to acquire compensation twice, and care must be taken not to allow fraud
or dishonesty. In any event, NICRO submits that as a general rule compensation
or restitution in monetary terms should be excluded as children do not have the
means to pay victims, and further, parents should not be held accountable for
their children’s offending by being punished with financial sanctions. Rather,
community service could be rendered to the victim as a form of symbolic
compensation.
7.2.3 Level 3 diversion options
Clause 46(5) (a)
refer to diversion with has a residential element. It should be clarified here
that the residential element does not mean prison. Many residential facilities
– such as reform schools – have been closed and there little else in place to
support this level of diversion. Proper
resources are needed to put these diversion programmes in place, especially the
vocational programmes and necessary therapy referred to in clause 46(5)(c) and
(d). The Department of Labour must be
encouraged to assist with vocational these programmes, and other relevant
partnerships should be instituted.
7.2.4 Family Group
Conferences:
NICRO is fully in
favour of the inclusion of provisions concerning family group conferences but
the provisions seem to imply that only probation officers will be able to
convene such conferences. The wording should be altered to reflect that while
probation officers may be responsible for contacting service providers and
reporting back to the inquiry magistrate or the court, the conferences
themselves may well (and in practice most often are) convened (in the sense of
facilitated and co-ordinated) by non-state actors. As the wording of clause
48(1) appears to make provision only
for a probation officer to convene these Family Group Conferences, whilst in
practice the greatest amount of experience in holding family group conferences
rests with NGO’s rather than the State.
Further, it should be
clarified that, as with the preliminary inquiry, a court room is an
inappropriate venue for the holding of a family group conference. The Bill, or
regulations accompanying this section, should therefore provide that the conference
must take place in a neutral venue. In
NICRO’s view, the regulations should detail that only trained people should be
permitted to convene or facilitate family group conferences, be they state
employees or non-state actors, as specialised skills are required for effective
preparation and chairing of family group conferences, and only experienced
people in this field should be used.
7.2.6 Failure to comply with diversion as ordered
NICRO strongly
supports notifying the magistrate if the child does not complete diversion, so
as to hold the child accountable. This notification need not occur immediately,
as NICRO staff first investigate non-attendance themselves in an attempt to
find strategies for engaging the child in the programme. Children should not be
informed that their cases are finalised until such time as they have completed
their diversion – at present, in some jurisdictions, children are told that
‘the case is over’, and they then do not properly understand that they are
still required to complete the agreed diversion plan. This difficulty could be
addressed through the setting of return dates, and by ensuring that children
are aware that if they fail to complete the diversion option agreed, charges
may be reinstated on the return date.
A further comment of NICRO is that
reports which are given back to courts at present to indicate successful
completion of a diversion programme should be standardised. They should indicate not only whether the
child completed the programme, but also specify how the child benefited. The
uniform framework for these reports should be detailed in regulations to the
Bill.
8. Child Justice Courts
8.1 Proceedings to be held in camera
NICRO
proposes that it is important to establish in this legislation the principle
that proceedings should be in camera. It is not sufficient for provisions
concerning this to appear in the Criminal Procedure Act, as this principle is
particularly applicable to accused persons under the age of 18 years.
8.2 Joinder and separation of
trials
NICRO
remains concerned about children who will be tried with adults in normal courts
due to the provisions of clause 57(3), and suggests that the Department of
Justice set out very strict directives to ensure that those children are afforded the benefits of the
Child Justice Bill.
Section
57 of the Bill provides that where a child and an adult committed the same
offence they are to be tried separately unless it is in the interest of justice
to joint the trials. NICRO avers that
the “in the interest of justice” standard does not give enough protection to
children, and can be too easily used to effect joinder of trials because it is
expedient for prosecutors and magistrates. Separation of children from the
adult criminal justice system should be the priority, over and above
operational expediency. Therefore, NICRO proposes that section 57(1) should
permit joinder only where if there are substantial and compelling reasons why
the trials should be joined.
8.3 One stop child justice
centres
NICRO supports the establishment of One-Stop Child Justice Centres, as they clearly promote the accessibility of service providers to children. Consequently, NICRO also support the legislative provisions which enable and facilitate the establishment of further centres.
8.4 Diversion after
proceedings have commenced
NICRO
supports the provisions of clause 59
which permit diversion after commencement of the trial, on the basis
that information previously not available might emerge during the trial which
could afford the child the opportunity to be diverted. However, there is some
concern about the implications of the Court being required to acquit the child,
where there might indeed already have been overwhelming evidence proving the
child’s guilt. An acquittal in the face of overwhelming evidence could render
the Magistrate liable to being criticised (eg by a review judge, or civil
court). The deeming provision contained in section 254 of the present Criminal
Procedure Act appears to be more useful as a device, and it is proposed that
the Portfolio Committee investigate a similar wording. It must be pointed out,
though, that NICRO fully supports the concept that diversion after plea has
commenced is intended to avoid the child getting a criminal record, and that
this is what the wording of section 59 must achieve.
NICRO
staff felt that there was a gap in that no reference is made either in the
chapter on diversion nor in the chapter on the child justice court to the
possibility of transfer of the matter to a court constituted in terms of the
relevant Drugs legislation where the child is in need of rehabilitation from
drug addiction. Whilst not common, these cases do come up from time to
time.
8.5 Speedy trials where children are in custody
9.1 Pre-sentence reports
NICRO supports the
requirement of pre-sentence reports as provided for in clause 62, but, again,
would wish for the assurance that sufficient probation officers will be
available to undertake the investigation and compilation of these reports.
Clause 71 of the Bill concerns
penalties in lieu of a fine. However, NICRO contends that this clause is not
clear and does not properly prohibit fines altogether: it refers only to
offences for which the prescribed penalty is a fine or imprisonment. It
therefore omits (for example) a fine that may be not prescribed, but may be
imposed mero motu for a common law
offence. NICRO is of the view that the payment of any monetary value as a
sentence should be scrapped, because children lack independent financial
resources.
NICRO
fully supports the proposal that life imprisonment as a sentence for children
should be excluded. NICRO would have preferred, as general point, that a
maximum sentence of imprisonment that may be imposed on a child who has
committed an offence whilst under the age of 18 years be established by law.
NICRO proposes that the Portfolio Committee give attention to the possibility
of setting such a maximum sentence in this legislation.
NICRO’s
main concern, however, relates to the sentence option provided for in clause
68, as few reform schools and similar facilities are available at present,
which poses a problem when residential sentences other than imprisonment should
be imposed. There is an urgent need for the Department of Education to
establish such facilities in each province.
10. Expungement of records:
Whilst generally in
full agreement with the provisions concerning expungement of criminal records,
NICRO feels that Schedule 3 offences should not be totally excluded from
consideration for expungement, especially as some schedule three offences can
be of varied seriousness in reality (eg possession of firearms and kidnapping).
There have, for example, been cases of children charged with possession of
firearms being diverted without conviction over the past few years. NICRO
suggests that the possibility should exist for schedule 3 offences to be
expunged after 10 years, if the magistrate makes an order to this effect at the
time of sentence taking into consideration the seriousness of the offence.
As for the period of
5 years provided for generally in regard to expungement in clause 81(4), it
would be preferable to indicate clearly to sentencing officers that a lesser
period than 5 years may be set. This is important, as the period concerned is
one during which the child is often seeking employment or admission to
educational or vocational programmes, and having a criminal record at that time
is most prejudicial in the young persons life. Many NICRO staff would have
preferred that the period not exceed 3 years, but will support the provision as
it stands on the basis that in petty cases especially, a far shorter period
should ordinarily be imposed.
From a practical
point of view, NICRO suggests that there should be a record after each case is
finalised to indicate if an order was made, and who will ‘hold’ the
information, so as to ensure that the expungement system does in fact become
operational. The legislation should make provision for some entity to maintain
a data base of expungement orders.
NICRO firmly supports the notion that
attorneys or advocates who represent children should be specifically trained
around the Child justice Act and the Child Care Act 74 of 1983, about diversion
and diversion programmes and about children’s development/special needs. They
need to be registered separately as specialists in child law.
NICRO therefore
agrees with the accreditation concept contained in clause 77, but remains
concerned about privately appointed lawyers, as there is then no check and
balance to ensure that the best interests of the child are served. In practice, it is NICRO’s experience that
lawyers try to take over the case, influence how the children plead, delay
matters or attempt to take them to trial in the attempt to earn a higher fee,
and give wrong information on diversion to children and their parents. It is
conceded that the provisions of clause 73 setting standards for all legal
representatives do go a little way towards addressing some of these issues, but
the Portfolio Committee is urged to give further consideration to the standards
and principles that should bind child legal representatives.
The Report on Juvenile Justice
contained detailed provisions on monitoring of the new child justice system,
and NICRO is of the view that the body of provisions on monitoring should be in
the main legislation itself, otherwise there is a risk that the Bill may be
implemented without adequate monitoring structures being in place.
If, however,
monitoring provisions are to be fleshed out only in the regulations, NICRO’s view is that NGO’s should be given an
opportunity to make an input in the process of drafting of regulations. NGO’s
should also be permitted to participate in monitoring structures – as they do
at present, and have dome for many years - to ensure that the Bill is properly
implemented, and to have a forum in which to raise implementation problems,
especially in view of NICRO’s expertise as a national diversion service provider.
As the Bill stands at
present, it does not appear as if NGO’s will be included in monitoring
structures, as the relevant provision (clause 80(2)(a)) refers specifically to
regulations governing monitoring by the Director General of the Department of
Justice and Constitutional development ‘in conjunction with any government
department’. which on the face of it excludes non state actors.
13. Adults who use children to commit offences
NICRO is somewhat
perturbed about the phrasing of clause 84(2), apparently intended to address
the increasingly prevalent situation of children being used as the instruments
of crime by adults. The wording does not reflect the need to charge an adult
who uses children to commit a crime with a separate offence. The legal
provisions concerning incitement, conspiracy and being an accomplice have been
on the statute book for decades, yet no one consulted by NICRO (even
prosecutors) can recall an instance where an adult using youngsters as criminal
agents has even been charged or convicted of these offences alone. There is no
reason to believe that any charges would materialise in future, which manes
that the aggravated sentence concept embodied in clause 84(3) might as well not
be written.
NICRO proposes that
there should be a clearly defined, independent
offence provided to deter adults from using children as their
instruments of crime.
31/10/2002