Section 28(g) of the Constitution provides that a child has the right not to be detained, except as a measure of last resort, and then has the right to be kept separately from adults, and treated in a manner and conditions that take account of his age. This right is consonant with international instruments.
The Criminal Procedure Amendment Bill ("the Bill") introduces provisions which allow for the detention of unconvicted children in certain circumstances. The Bill replaces section 29 of the Correctional Services Act, which was introduced in 1996, because of a shortage of sufficiently secure accommodation for awaiting trial children which was resulting in large numbers of alleged offenders absconding from facilities with insufficient security.
The Bill is welcomed by the Commission, particularly because:
• Clarification is urgently required on the question of imprisonment of minors, given the confusion regarding the currency of section 29 of the Correctional Services Bill;
• The issue is more appropriately addressed in the Criminal Procedure Act than the Correctional Services Act, and its inclusion in the former legislation will strengthen the clarity of the processes envisaged in the section;
• The Bill introduces stricter conditions for ordering the imprisonment of a minor.
The Bill is necessary because of the shortage of facilities for awaiting trail children. However, the Commission urges the government to demonstrate its commitment to the Constitutional rights of children, by creating the necessary facilities as a matter of urgency. The Commission will establish from the Department of Welfare the progress in this regard.
2. Directives to Magistrates
In August of 1997, and again in July of 1998, magistrates were provided with directions regarding the imprisonment of minors under the current legislation. Various problems were identified by the Department of Justice in the practical application of section 29. Amongst these were the following:
• Cases against minors were remanded to dates well beyond 14 days; this often has the effect of preventing the compulsory 14-day review of a minor’s detention from taking place, as the next appearance is on the remanded date.
• Magistrate’s have misinterpreted "place of safety", and have referred to children’s sections of general prisons as "places of safety.
• Many magistrates failed to hear the necessary oral evidence regarding the detention and on going detention of minors.
• In some jurisdictions magistrates often ordered minors to be held in police cells pending trial.
For these reasons, and as a result of litigation by the Legal Resources Centre on behalf of minors in detention, the Department issued various directives to Magistrates and prosecutors. The directives suggested various solutions to the problems which were identified.
• It was suggested that cases involving minors be remanded to a date within the 14-day period, so as to comply with the provision in section 29 requiring regular review of the detention.
• The role of probation officers in assisting a court in making the most appropriate order regarding custody of a child pending trial was highlighted. Probation officers should prepare a preliminary assessment in this regard, and Magistrate’s were advised that a matter should be postponed until such a report is available.
• A monitoring system is established in terms of which State Prosecutors are to report on all children held in detention to the Senior State Prosecutor, who would then report to the Gender Director at the National Office.
3. Limitations on Detention on Minors
Many of the directives reiterated or clarified the provision of section 29; however, some of them, such as those listed above, contained useful and important suggestions which go beyond the provisions of the legislation, some of which may bear repetition in the bill. The wording of the new section 71A contains the same formulations as the existing section, but its provisions are made clearer. In addition further requirements for ordering detention of minors are included:
• The age limit for detention in a prison is raised from 14 – 18 years to 16 – 18 years;
• Children may only be imprisoned for offences set out in the schedule, and the general discretion to place offenders in prison in certain circumstances is removed.
• There is a four step cumulative test to justify an imprisonment order, including a requirement that the detention be a "measure of last resort", as is provided for in the Constitution, and concentrating on what the final sentence of the court may be on conviction.
• One of the four tests is the requirement that this be in the interests of the administration of justice, and the process of establishing this is clearly set out in a list of factors, which take into account a broad range of issues.
The time limits within which minors must be brought before court following their arrest is set up as a standardly applicable 48 hours. Although the shorter period of 24 hours for younger children, as is the case in the current section 29, is preferable, The Commission leaves this question in the hand of the Committee for consideration.
The Commission welcomes the new provisions which limit the detention of minors to only the most appropriate cases are welcomed, and requests that they be retained, particularly the increased age limit for detention.
4.1 Oral evidence
The current section obliges the state to present oral evidence on the factors giving rise to the detention of a minor. In this Bill, reference is made to the presentation of evidence to the court, in order to enable the court to determine whether the interests of justice will be served.
This evidence is critical, not only in enabling a court to make an appropriate order, but in ensuring that the provisions are used in only the most serious cases. The formulation in the bill links the evidence to the court’s discretion, rather than an obligation of the state, which is preferable. However, given the problems that have been identified in this area by the Department, it may be advisable to include an express provision for the court to request such evidence from the state of its own accord, thereby ensuring that Magistrate’s do not make orders without applicable evidence being presented.
4.2 Probation officer
The suggestion provided by the Department in their directions to magistrates, in the form of the probation officer is a practical and effective solution. A probation officer, who must in any event be advised of an arrest of a minor in terms of section 50(5) of the Criminal Procedure Act, is in a better position than a prosecutor to accumulate the necessary evidence, and make a preliminary assessment for recommendation to the court. The Department’s suggestion included the possible postponement of a matter for a limited period in order to obtain the assessment
The Commission believes that this suggestion should be made part of the Bill, and the role of the probation officer is built into the operation of the section, with respect to the determination of the court of the various requirements.
4.3 14-day review
The 14-day review provision is important and commendable; however, the implementation of the provision appears to be the problem, rather than the provision itself. The Department suggested that remands of cases be made only within the 14-day period.
The Commission supports this suggestion. Minors will automatically be brought before court if postponements of trials are limited to the same period. In addition, such a limit on a postponement will be a proactive measure towards compliance with section 71A(8), which provides for the highest priority to be given to the most expeditious processing of a trial.
That consideration be given to the introduction of provisions:
• expressly empowering a court to call for the evidence envisaged by the section;
• the inclusion of an obligation on a probation officer to prepare a preliminary assessment for presentation to court;
• the introduction of provisions preventing the postponement of trails involving minors beyond 14 days.
5. Monitoring and Oversight
The provisions relating to the recording of proceedings in terms of the section are welcomed. It provides, as does any requirement relating to written reasons, in the possibility that the quality of the decisions and decision-making will improve.
The guidelines provided by the Department introduced a review mechanism, and established the gender Director as the central point of monitoring all cases falling under the section. This is an important function, and attention should be given to enacting provisions in the Bill to establish and formalise a monitoring system, with a designated officer having a formal responsibility for oversight of the various cases.
That consideration is given to the enactment of provisions introducing a formal monitoring mechanism.
6. Transitional arrangements
The Commission supports the transitional arrangements, and hopes that they will be retained in their current form. The time limits involved are short, but the Department could be given sufficient time to gear up to be able to process the necessary cases in time.
The Commission welcomes the Bill. Its provisions are necessary to prevent minor accused being placed in inappropriate facilities, and causing security risks. However, attention must be given to the development of sufficient facilities to accommodate minors, thereby making section 71A unnecessary. In this regard, the Commission requests the Committee to review this provision in the context of available alternative to imprisonment at some future date with a view to its ultimate repeal.
The Commission requests that consideration is given to the inclusion in the section of the need for Parliament to review the section, with a view to its ultimate repeal.