LEGAL AID BOARD

February 2008

SUBMISSIONS MADE BY THE LEGAL AID BOARD TO THE PARLIAMENTARY PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT CONCERNING THE CHILD JUSTICE BILL 49 OF 2002

Introduction

The attempts made by this Bill to create a new criminal justice system for children are to be welcomed. The introduction of separate court rooms to be set aside for the hearing of matters involving children in conflict with the law is especially to be welcomed as this has been a problem for some time. The Legal Aid Board (LAB) is currently considering the impact which the proposed changes will have on it as an organisation. To this end, a detailed costing is to be carried out in the near future and whereafter we will motivate to the relevant authorities for increased funding in order to implement the provisions of the Bill.

The submissions which follow below concentrate not on the principle of whether or not such legislation is required (as it clearly is) but deal rather with certain sections which it is felt could be improved upon. It must also be understood that this could have been done far more comprehensively had more time been available. It is felt, however, that the more important aspects have been covered. Below certain sections will be listed and submissions made thereon.

These submissions are made by a leading provider of legal services with the intention of assisting the committee in the proper wording of the Bill. Defects in the wording will be pointed out. Again a shortage of time did, unfortunately, not allow for as exhaustive an examination as we would otherwise have been able to undertake.

Particular emphasis will also be placed on those clauses in chapter 10 of the Bill which directly impact on the LAB as an organisation.

Definitions

The following amendments are suggested:

It must in the first instance be borne in mind that all definitions are "unless the context otherwise indicates". Hence where the context in the relevant clause does indeed otherwise indicate, it is not necessary to exclude it. With that in mind, it is suggested that the following definitions be amended so as to make them simpler to understand.

"Adult"

It is not understood here what the relevance of section 4 (2) (b) is.

"An appropriate adult"

It is suggested that this read "an adult who is a member of the child's family..."

"Child"

Means "any person above the age of 10 years but below the age of 18 years"

References to the Child Care Act 74 of 1983

This Act was repealed by the Children's Act 38 of 2005. The relevant section of that Act is already in operation. All references to the Child Care Act 74 of 1983 should, therefore, be replaced and substituted by references to the Children's Act 38 of 2005.

Abolition of common law rule relating to incapacity of children under the age of seven years to commit a criminal offence

Such a clause does not exist in the Bill in its current form and should be inserted for the sake of clarity.

No consequences if not an offence

If an act amounting to a criminal offence does not in fact technically constitute an offence, then that is the end of the matter. It follows therefore that any action taken in terms of clause 7 in respect of such a child can not be taken as a "punishment".

More fundamentally, no action can be taken against such a child which would prejudice such child in any ways without there being some form of "trial" in which guilt or innocence would be determined. One can not take action on the basis of an unsubstantiated allegation that a child committed such an act. Why should a child be sent for counselling or therapy if they did not in fact commit the act in the question and this is not somehow proven?

Wording of clause 6 (1)

The correct wording of this clause is:

"A child who is below the age of 10 years and who is alleged to have committed an act which would otherwise constitute a criminal offence in law..."

Wording of clause 9(1)

The correct wording of this clause is:

"A child who is 10 years of age or older and who is alleged to have committed an act which constitutes a criminal offence in law.. .,,

Clause 10 (1)

It should be made clear that the relevant date for determining tIle age of the child is the date on which the alleged offence was allegedly committed.

Clause 10 ( 5)

The same comments can be made here as are made under the heading of "no consequence if not an offence" above.

Clause 13 (3)

It is important that the probation officer should fully motivate the age estimation.

Clause 13(4)

After the words "be recorded" the clause should end with the Words "should evidence to the contrary emerge at any stage before sentence"

Clause 39

Practical difficulties may be experienced in getting all the roleplayers together within the prescribed time limits.

Some remarks on diversion generally

Diversion in principle is an excellent idea. What is disturbing is that the child must acknowledge responsibility before diversion can occur. This may have the effect of making a child acknowledge responsibility purely for the sake of getting diversion, even though he/she is in fact not guilty. It is suggested that the primary responsibility in this connection should be on the legal representative who during consultation with his/her client must ascertain if the client is willing to agree to diversion. The legal representative would then convey this (informally) to the prosecutor who will then ask the magistrate to divert the matter. There will be no formal record of acknowledgement of responsibility. The requirement that a child must acknowledge responsibility may also well offend against the presumption of innocence as the child may be pressurised.

Preliminary inquiry

If the above procedure is indeed adopted, a preliminary inquiry will not really be necessary. However, if one is to be held, the legal representative should be included amongst the list of persons entitled to attend It is also important, in our view, that any evidence led or admissions made during a preliminary inquiry should not be admissible in evidence at the main trial and that a provision to this effect be inserted. It is also important that a properly formulated charge sheet be presented at such a preliminary inquiry so that the child knows what he/she is supposed to acknowledge responsibility for.

Clause 66 (1) (b) (ii)

The principle of not postponing a case for longer than 30 days at a time in the absence of exceptional circumstances is supported. However, this may not prove practicable if the court roll is very large.

Clause 67 (2) (b) (ii)

Once again the legal representative is to blame. There can be many valid reasons why a legal representative may postpone a matter. An obvious one is that he/she can only conduct one case at a time and this may lead on a given day to postponement being sought in order that another case (in which the child has been in custody for longer) may proceed. There are many practical issues to be considered here. In our experience matters are postponed for numerous reasons. These would include the fact that witnesses were not timeously subpoenaed, the docket is not at court and the appropriate adult is not at court. In addition, the court may have a preferent matter on its roll on that day.

Legal representation

The LAB welcomes the provisions relating to the provision of legal representation and in particular the provisions of Clause 84 (1) in terms whereof certain classes of children may not waive the right to legal representation.

One stop child justice centres

In principle these are to be welcomed, provided that a sufficient number are established throughout the country to ensure that every child in conflict with the law has access to such a centre. The thirteen already proposed are to be established mainly in urban areas. This has the effect of discriminating against children in rural areas. In those cases where one stop child justice centres are not to be established serious consideration should be given to the establishment of court rooms dedicated to children in conflict with the law so that dedicated resources can be placed in such court rooms.

Conclusion

It is hoped that the committee will find the few short comments contained in this document of value and assistance. As already stated, if more time were available, a

more comprehensive evaluation of the proposed-legislation could have been undertaken. Possibly, some of these comments may be added to at the hearing or new ones raised.

LEGAL AID BOARD