SUBMISSION ON THE CHILD JUSTICE BILL ( BILL 49/2002)
TO: THE PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT
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.
For a brief overview and background to NICRO please refer to Appendix A
Substantive Comments on The Child Justice Bill 49/2002
1.Introduction to the Child Justice Bill 49/ 2002
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. Application of the Act and Criminal Capacity
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:
-all persons below 21 who have committed schedule 1 offences, either individually or in a group
-person above 18 but under 21 years who is still attending school and charged with the commission of a minor offence
-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. Methods of securing attendance of a child at preliminary enquiry and
the schedules of offences appendixed to the Bill
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:
Some concerns regarding the list of offences set out in schedule 3 are raised later in this submission in relation to expungement of records.
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.
4.3 Notification of parents or appropriate adults
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.
4.4 Monitoring of police cells and detention in police custody
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.
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. Assessment of child
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. The preliminary Inquiry
6.1 General comments
The concept of the Preliminary inquiry is unequivocally welcomed by NICRO for the following reasons:
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.
The legislation would benefit with some clarification as to the point at which the victim is to be contacted in the process – is this to be at assessment stage, before the magistrate has made a decision to recommend a family group conference, or is contact only to be made after s/he makes the diversion decision?
Further guidelines may be needed on the efforts that should be made to encourage victims to participate in an FGC (frequently much work goes into ensuring the informed presence of the victim at an FGC), and the level of support that should be provided to victims. It is the view of NICRO that without proper planning and preparation of all concerned, the FGC process cannot work.
In view of this experience, NICRO proposes that 21 days granted in the Bill for the convening of the FGC is too short, and that 30 days is more realistic. If the preparation time is glossed over, the restorative justice process is doomed to fail. Cognisance must also be taken of situations where there may be multiple accused and/or victims, when considerable time must be expended on the preparatory phase. [One FGC presently being facilitated by NICRO involves 8 accused, their families, and several victims, the process have taken more than two months to set up properly].
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
Provision is made in section 58 (3) of the Bill that if the child’s trial is not concluded within a period of six months from the date the child has pleaded, the child must be released from detention unless the child was charged with an offence listed under item 1,2 or 3 of Schedule 3. NICRO supports this section, and believes that it will contribute towards shortening the periods of time that children spend in detention while awaiting trial.
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.
9.2 Sentencing framework
NICRO support the sentencing framework as set out in clauses 64- 70, and more particularly, fully agrees with the restrictions on the use of prison as a sentence. Sentencing to prison should be used as a last resort, in line with constitutional imperatives. NICRO is further of the view that sentencers should require that a programme component included in any such prison sentence. Such additional clause would place a duty upon the Department of Correctional Services to ensure that children in prison receive proper educational services, vocational training and reintegration services whilst serving any sentence of imprisonment.
NICRO cautions that despite the reference in section 69(1)(b) to ‘substantial and compelling reasons’ which must exist for imposing a sentence of imprisonment, courts faced with the imposition of minimum sentences have not found this phrase easy to interpret. As said before, however, NICRO supports clear limitations on the use of imprisonment, and any chosen alternative wording must reflect this.
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.
11. Legal Representation
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.
12. Monitoring of Child Justice
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.