Update on the Child Justice Act Jacqui Gallinetti

1. Update on the Child Justice ActJacqui Gallinetti

2. The Child Justice Act • It seeks to ensure that the roles and responsibilities of all those involved in the process are clearly defined, in order to facilitate inter-departmental co-operation • The Act recognises the fact that children do commit serious offences and that they must be held accountable for their actions and take responsibility for the human rights and fundamental freedoms of others. • Generally the legislation is procedural: • police powers and duties • regulates the detention and release of children, providing definite guidelines for the exercise of judicial discretion in detaining children in prison while awaiting trial. • Introduces new procedures in law – diversion, assessment, PI, raises age of criminal responsibility

3. Age • Specific procedures apply to children in conflict with law, depending on their age • 3 categories of persons Act applies to • Three main issues around age: • Minimum age for prosecution/ criminal capacity; • Age until which criminal incapacity presumed, but may be rebutted; and • Determining age of the child

4. Pre-trial Assessment • Assessment = process of evaluation of child, his/her home circumstances and circumstances surrounding commission of offence • Assessment to be administered by a probation officer • The CJA for first time legislates assessment as part of criminal justice system • Varying purposes • Outcome is assessment report to prosecutor for PI

5. Preliminary Inquiry • The CJA creates a new procedure to facilitate the management of children in conflict with the law • A preliminary inquiry is a new step in this procedure to facilitate children in SA • Takes place at district magistrates court level; therefore an ‘inquiry magistrate’ presides over a preliminary inquiry • The inquiry provides a systematic approach to procedure in child justice cases to ensure: • sifting of minor cases from serious matters; and • divertable matters from ones which must proceed to trial • Varying purposes of PI

6. Securing child’s attendance at court • When a child is suspected of committing an offence and apprehended there are three ways in which a child’s presence in court at the preliminary inquiry can be secured: • Written notice • Summons • Arrest (not schedule 1 offence) • The manner in which these three methods are listed in the Act indicate that a written notice is the first choice or most preferable and arrest the last choice or least preferable.

7. Release and detention • Detention = measure of last resort and for the shortest possible period of time – Constitution and CRC • The Child Justice Bill deals with 2 situations regarding pre-trial detention: • Detention and release before first appearance at the preliminary inquiry, and • Detention and release after first appearance at the preliminary inquiry (and at any subsequent appearance in court) • The approach in the Act to release is that it is the preferable approach and should be used if possible instead of detaining the child. However, if detention is to be used, the approach is that the following options regarding placement of the child must be considered: • placement in a placement facility; • placement in a police cell (only prior to 1st appearance); or • placement in a prison, • with due regard to the principle that the least restrictive option possible in the circumstances should be used.

8. Diversion • Diversion is achieved in three ways in CJA • First, for minor offences by way of prosecutorial diversion • Second, at the preliminary inquiry through an order of the preliminary inquiry magistrate • Third at trial in the child justice court • Also provisions on accreditation and diversion register • We now have a regulatory framework to ensure consistency of practice, legal certainty but some concerns re over- regulation

9. Sentencing • The objectives of sentencing are to: • Encourage the child to understand the implications of his/ her actions and be accountable for the harm caused • Promote an individualised response striking a balance between the circumstances of the child, nature of offence and interest of society • Promote reintegration of child into family and community • Use imprisonment only as a measure of last resort • Types of sentences in Act is divided into 2 categories: • Custodial and • Non-custodial sentences • Chapter also makes provision for pre-sentence reports and victim impact statements

10. Legal representation • Section 80(1) states it is the responsibility of legal rep to: • promote diversion, where appropriate, but may not unduly influence the child to acknowledge responsibility; • ensure that the assessment, preliminary inquiry, trial or any other proceedings in which the child is involved, are concluded without delay and deal with the matter in a manner to ensure that the best interests of the child are at all times of paramount importance; and • uphold the highest standards of ethical behaviour and professional conduct. • Instead of accreditation, there is a provision that a court can order remedial actions or sanction if a legal representatives fails to act in accordance with section 80(1) • This order must also be sent to relevant controlling body – Law Society; Bar or LAB if attorney works for LAB

11. Legal rep • Act provides in section 82 (1) that where a child appears before a child justice court and is not represented by a legal representative of his or her own choice, at his or her own expense the presiding officer must refer the child to the Legal Aid Board for the matter to be evaluated by the Board. • In addition in terms of s 82(2) no plea may be taken until a child has been granted a reasonable opportunity to obtain a legal representative or a legal representative has been appointed

12. Implementation • National Policy framework been drafted, not yet adopted • SAPS National Instruction finalised • NPA diversion directives finalised • Probation practice guidelines and accreditation process for diversion service providers completed • 1st report to parliament due in April 2011