Transcript Slide 1

Presentation to Child Justice Bill
Seminar of JOASA, Gauteng:
Provisions of Child Justice Bill; and
Implementation Strategy for Child
Justice Bill, No B49B of 2008
November 2008
Introduction:
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Thank you for inviting the Department of Justice and Constitutional
Development to address you on issues relating to the Child Justice Bill and
Children in Conflict with the Law.
The DoJCD is the convenor and Secretariat of the Inter-sectoral Child
Justice Steering Committee (ISCCJ), which meets on a monthly basis to
monitor and intervene on issues relating to children in conflict with the law.
This Committee is Chaired by Adv S Said, the Chief Director: Promotion of
the Rights of Vulnerable Persons at present.
The Child Justice Bill now makes provision for this Committee to be chaired
by the DG: DoJCD.
The Lower Court Management Committee (LCMC) of the Judiciary is
represented by Mr M Djaje, Regional Court President of Gauteng; and Mr G
Jonker, Chief Magistrate, Johannesburg.
Mr J Ngelanga, Magistrate of Justice College, also participates in the
ISCCJ-meetings.
As we regard Magistrates as most important to protect and promote
children’s rights in the Criminal Justice System, we would therefore also
wish to extend our invitation to members of JOASA to attend the monthly
ISCCJ-meetings nationally and the meetings of the Provincial Child Justice
Fora in each province.
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Child Justice Bill, No B49B of 2008:
• The Child Justice Bill No B49B of 2008, was passed by the National
Assembly on the 25th June 2008; and by the National Council of
Provinces on the 25th September 2008.
• The minor amendments made by the NCOP, will be deliberated
upon in the NA during November 2008, where-after it will be passed
and submitted to the President for signature.
• The approach followed by Parliament when deliberating upon and
passing the Bill, was as follows:
– The need to balance the rights of the child with the rights of
victims of crime; the need to fight crime and to ensure the safety
and security of the community.
– The need to ensure that the State has the necessary capacity to
effectively implement the new criminal justice system for children
decided upon.
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Overview: The Child Justice Bill,
2008
• The purpose of the Child Justice Bill is to establish a criminal justice
system for children, who are in conflict with the law and are accused
of committing offences, in accordance with the values underpinning
the Constitution and the international obligations of the Republic;
• As well as amongst others, to provide a mechanism for dealing with
children who lack criminal capacity outside the criminal justice
system;
• To make special provision for securing attendance at court and the
release or detention and placement of children;
• To make provision for diversion of children outside the Criminal
Justice System where appropriate; and
• To make provision for new sentencing options for children found
guilty of having committed an offence.
• Implementation date: 1st April 2010.
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Overview of provisions of the Child
Justice Bill:
Children under the age of 10 years, will be handled in terms of a whole new
procedure: they will be referred to DSD’s Probation Officers to draw up a
plan for them and their families and to monitor why the children came into
trouble. This may also include the following:
– Referring the child to a children’s court;
– Refer the child for counselling or therapy;
– Refer the child to an accredited program designed specifically to suit the needs
of children under the age of 10 years;
– Arrange support services for the child;
– Arrange a meeting with the child, parents, caregiver and/or family to discuss the
plan for the child; or
– The Probation Officer can decide to take no action.
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Assessment of all children who commit crimes;
Preliminary inquiry: Every child who is alleged to have committed an
offence, must go to a preliminary inquiry, which is deemed to be the first
court appearance, unless the child is under 10 years of age or the matter is
diverted by the Prosecutor.
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Overview of provisions of Child Justice
Bill, continued:
• Diversion: all children who commit crimes,
no matter how serious, qualify to be
considered for diversion;
• Range of non-custodial sentencing and
Restorative Justice sentencing options for
children;
• Automatic appeal and review in cases
where children have been sentenced to
custodial sanctions;
• Expungement of criminal records.
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Preliminary Inquiry:
• First appearance of child at court;
• Within 48 hours after arrest; or time period as specified
in warning or summons to appear in court;
• Informal pre-trial procedure which is inquisitorial in
nature;
• May be held in court or any other suitable place;
• Being piloted in Bloemfontein One Stop Child Justice
Centre, since May 2007;
• Objectives of preliminary inquiry:
– Consider assessment report of Probation Officer;
– Establish whether matter can be diverted before plea;
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Objectives of Preliminary Inquiry,
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• Identify suitable diversion option, where applicable;
• Establish whether matter should be referred to Children’s Court;
• Ensure that all available information relevant to the child, his or her
circumstances and the offence are considered in order to make a
decision on diversion and placement of the child;
• Ensure that the views of all persons present are considered before a
decision is taken;
• Encourage the participation of the child and his or her parent or an
appropriate adult in decisions concerning the child; and
• Determine the release or placement of a child, pending– The conclusion of the preliminary inquiry;
– The appearance of the child in a child justice court; or
– The referral of the matter to a children’s court, where applicable.
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Diversion:
• A key aspect of the Bill is diversion of children who come into
conflict with the law, away from the formal court procedures.
• Diversion began to be applied as from 1992 without a proper
legislative framework and the practice has increasingly developed.
Some case law on restorative justice has developed, but the
legislative framework provided for in the Bill, will contribute towards
uncertainties being removed and to ensure a clear, transparent
procedure, and will serve to hold decision-makers to account.
• Diversion allows for the child to be referred to program/s outside the
formal criminal justice system, while the child is held accountable for
his/ her actions. The child is therefore handled as an individual to
help prevent re-offending, which will also promote public safety.
• The Bill therefore provides for 2 levels of diversion, dependent upon
the seriousness of the crime and the child’s circumstances; and
provides for extensive checks and balances.
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Diversion, continued:
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The Bill only allows for diversion to be considered as a possibility if the child
acknowledges responsibility for the offence, and if he or she has not been
unduly influenced, to make an acknowledgment to this effect.
The presiding officer, probation officer, prosecutor and legal representative
have crucial roles to play in this regard.
It is important to stress that diversion is not meant to widen the door to
adults more readily using children to commit crime, and therefore section 92
of the Child Justice Bill was included, for action against adults in this regard.
The Portfolio Committee was clear that the provisions of the Bill on
diversion, is sound; but had concerns about the capacity of the diversion
service providers, which need to be significantly developed. Therefore, the
Bill makes provision for the requirement that the DSD should “ensure
availability of resources to implement diversion programs, as prescribed.”
Monitoring of the programs and the diversion service providers, is also
extensively provided for, as well as the outcomes of the diversion programs
for children.
Overview of Provisions of Bill, continued:
• The minimum age of criminal capacity has been raised
from 7 to 10 years; and will be reviewed after 5 years.
• Placement of children in prison, should be used as a
measure of last resort, whether for children awaiting trial
or sentenced children;
• Legal representation for children by the Legal Aid Board
if children cannot afford private legal representation;
• Expungement of criminal records of sentenced children
and children diverted from the Criminal Justice System,
on application to the DG: DoJCD or Minister: DoJCD.
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Victim impact statements and Child and Youth
Care Facilities
• Key principle of Restorative Justice, is that of reconciliation; and the
Bill therefore provides that the views of the victim, their families and
others connected to the victim, must be taken into account during
diversion and formal trial-procedures, including victim impact
statements for purposes of sentencing.
• The implementation of the above provisions requires sensitivity to
the plight of victims.
• The Department of Social Development will be responsible for
Secure Care Facilities (Child and Youth Care Facilities) for both
awaiting trial and sentenced children an plan to increase these
Centres countrywide. One Stop Child Justice Centres, will be
aligned with such Centres.
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Detention options for children:
• The current ban on children under 14 awaiting trial in prison, has
been included in the Bill.
• The new sentencing option of children under 14 serving a sentence
in a child and youth care facility for sentenced children; and thereafter at age 18, to be considered for transfer to a prison for the
serving of the rest of the sentence, has been included.
• The Committee felt that the issue of whether exclusion of
imprisonment for under-14 year old’s should apply to a child at time
of sentencing, as at present, or at time of commission of offence,
may require further consideration in future.
• The Constitution requires children in conflict with the law, to be kept
separately from adults. The Bill provides that this must also apply
when children are being transported to and from their place of
detention and court.
• The Committee has reluctantly allowed for exceptions where it is
simply not possible otherwise, but required that this section be
closely monitored and reported upon.
Sentencing
• Objectives:
– To encourage the child to understand the implications
of and be accountable for the harm caused;
– Promote an individualised response which strikes a
balance between the circumstances of the child, the
nature of the offence and the interests of society;
– Promote the re-integration of the child into the family
and community;
– Ensure that any necessary supervision, guidance,
treatment or services which form part of the sentence
assist the child in the process of re-integration; and
– Use imprisonment only as a measure of last resort
and only for the shortest appropriate period of time.
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Sentencing, continued:
• Impact of offence on victim;
• Pre-sentence reports: compulsory where compulsory residence or
imprisonment is recommended;
• Sentencing options:
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Community-based sentences;
Restorative justice sentences;
Fines or alternatives to fine;
Sentences involving correctional supervision;
Sentence of compulsory residence in child and youth care centre;
Sentence of imprisonment;
Postponement or suspension of passing of sentence;
Failure to comply with certain sentences.
• Non-custodial Sanctions’ pilot projects during 2008/09, in:
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Odi, North-West;
Randburg, Gauteng;
Kimberley, Northern Cape;
East London, Eastern Cape; and
Bellville, Western Cape.
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Schedules:
• Schedule 1: less serious offences, which can be diverted by a
prosecutor and where the child can be released on own
recognisances or into parents’ or caregivers’ care, from detention;
• Schedule 2: more serious offences, which can be diverted by a
preliminary inquiry; and where the child, if not released into parents’
or caregivers’ care, should be detained in a Child and Youth Care
Facility;
• Schedule 3: most serious offences, which can only be diverted by a
child justice court, in terms of very limited guidelines to be drafted by
the National Director of Public Prosecutions; and where the child
should be detained in prison whilst awaiting trial, if 14 years or older,
except if certain prescribed circumstances exist.
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National Policy Framework and establishment of
Intersectoral Committee on Child Justice
• The drafting and submission of a National Policy Framework for the
Child Justice Bill, before the implementation of the Act on the 1st
April 2010, has been provided for; as well as
• The establishment of a Committee chaired by the DG: DoJ&CD, to
monitor and report upon the implementation of the Child Justice Bill.
• This will necessitate the approval of a strategy for implementation,
which is further discussed below.
• National Policy Framework responsibilities:
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Joint policies and individual Departmental policies;
National directives and instructions;
Training;
Monitoring and evaluation of implementation of Bill;
Regulations.
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Child Justice Information
Management System:
• Establishment of an integrated information management system to
enable effective monitoring, analysis of trends and interventions, to
map the flow of children through the child justice system and to
provide quantitative and qualitative data relating, among others, to–
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Arrest or methods of securing attendance at criminal proceedings;
Assessment;
Preliminary inquiries;
Diversion;
Children awaiting trial;
Bail and placement;
Trials;
Sentencing;
Appeals and reviews;
Sexual offences committed by children;
Children who lack criminal capacity as provided for in section 7(1); and
Any other relevant factor.
Conclusion and recommendations:
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The ad hoc-work done by the National ISCCJ; Provincial Child Justice Fora;
and inter-sectoral Departments during the past few years, supported by the
NGO service providers, have led to the prioritisation of children’s matters in
criminal cases and the reduction of the numbers and length of time children
await trial in prisons.
The Child Justice Bill now gives legislative background to the practical work
being done; and continued efforts to improve co-ordinated services to
children in conflict with the law, will lead to the effective and proper
implementation of the Child Justice Bill.
We also need to ensure the development of the regulations, National Policy
Framework and applicable policies and guidelines during 2009.
As we regard the Magistracy as a key role-player in this regard, we look
forward to a good working relationship between JOASA, the DoJCD and the
ISCCJ.
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Any questions?
THANK YOU FOR YOUR
ATTENTION
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Annexure: Implementation strategy for
Child Justice Bill
• Strategy for implementation and costing of the adopted Child Justice
Bill, is being revised and consulted upon.
• Dates of strategic importance:
Action
Date
Implementation of Child
Justice Bill
1 April 2010
Development of National
Policy Framework and
submission to Parliament
1 June 2010
Establishment of DG’s
Intersectoral Committee
1 April 2010
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Important dates for implementation strategy and
National Policy Framework:
Action
Date
Tabling of initial regulations
in Parliament
1 December 2009
Determination of persons to
conduct evaluation of
criminal capacity of children
1 April 2010
Submission of reports to
Parliament by each
Department on
implementation of Act
By 1 April 2011; and
annually there-after
Submission of report to
Cabinet and Parliament on
Review of age of criminal
capacity
By 1 April 2015
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Important dates for implementation strategy
and National Policy Framework, continued:
Action
Date
Submission of directives and national
instructions to Parliament, specifically
NDPP and SAPS
By 31st March 2010
DG: DSD must supply DG: DoJCD
and SAPS with info on child and youth
care facilities
Ongoing
Development of training courses for all DSD; DCS; Health; NPA and SAPS
officials in Departments and
institutions
As well as Justice College
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Registers
Register
Responsible Department
Register for children younger than 10
years of age
DSD
Register of children who have been
diverted
DSD
Register of children detained in police
cells, separately from adults
SAPS
Register of reports of injuries and
trauma to children in police cells
SAPS
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Policies
Policies
Responsible Departments
Diversion policy framework, including
accreditation of diversion service
providers
DSD – to be submitted to Parliament
by 31st March 2010
Policy on children in conflict with the
DoJCD
law, including preliminary inquiries and
aligning with policy on children and
referral to children’s courts where
children are in need of care and
protection
Policy on sentencing for children
DoJCD/ DCS
Policy on victims in children’s matters DoJCD
and parental rights and responsibilities
in children’s matters
Guidelines on Management of One
Stop Child Justice Centres
DoJCD