operation of youth courts in selected overseas places · civil "care proceedings"1,...

RP07/02-03

Operation of Youth Courts in Selected Overseas Places

20 May 2003

Prepared by

Michael YU

Research and Library Services Division Legislative Council Secretariat

5th Floor, Citibank Tower, 3 Garden Road, Central, Hong Kong Telephone : (852) 2869 9695 Facsimile : (852) 2509 9268 Website : http://www.legco.gov.hk E-mail : [email protected]

C O N T E N T S PageExecutive Summary Part 1 – Introduction 1Background 1Scope of the research 1Selection of overseas places for the study 1Methodology 2

Part 2 - The United Kingdom 3 Overview of the juvenile justice system 3 Legislation 3 Structure of the criminal courts 4 Youth Court 4Procedures after arrest of a young offender 7 Interview 7

Extrajudicial measures 7 Legal representation 9

Bail/detention 9Prosecution 10

Court procedures 10Plea 10Hearing 11Legal representation 11Parents/guardians' involvement 12Protection of privacy 12

Sentencing 13Pre-sentence report 14Sentencing principles 14Sentencing options 14Appeals 18

Court environment 18 Separation of the juvenile from adult defendants 20

Part 3 – Canada 21Overview of the juvenile justice system 21

Legislation 21Structure of the criminal courts 21Youth Justice Court 22

Procedures after arrest of a young offender 24Interview 24Extrajudicial measures 26

Legal representation 27 Bail/detention 27 Prosecution 28Court procedures 28

Plea 28 Hearing 29 Legal representation 29 Parents/guardians' involvement 30 Protection of privacy 30Sentencing 31

Conference 31 Pre-sentence report 31 Sentencing principles 32 Sentencing options 33 Appeals 36Court environment 37

Separation of the juvenile from adult defendants 37

Part 4 - New Zealand 38Overview of the juvenile justice system 38

Legislation 38 Structure of the criminal courts 38 Youth Court 39Informal responses to juvenile offences 40

Family group conference 42Procedures after arrest of a young offender 42

Interview 42 Bail/detention 43 Legal representation 43Court procedures 43

Admitting/denying the charge 43 Hearing 44 Legal representation 44 Parents/guardians' involvement 44 Protection of privacy 44Sentencing 46

Court-referred family group conference 46 Pre-sentence report 46 Sentencing principles 47 Sentencing options 47 Appeals 50Court environment 50

Separation of the juvenile from adult defendants 50 Part 5 – Analysis 52 Constitution of the youth court 52 Procedures after arrest of a young offender 53 Court procedures 54 Sentencing 54 Court environment 57 Issues to be considered 57 Appendices 66

References 77

----------------------------------------------------------------------------------------------------------------------------------------- Research reports are compiled for Members and Committees of the Legislative Council. They are not legal or other professional advice and shall not be relied on as such. Research reports are subject to copyright owned by the Legislative Council Commission (the Commission). The Commission permits accurate reproduction of the research reports for non-commercial use in a manner not adversely affecting the Legislative Council, provided that acknowledgement is made stating the Research and Library Services Division of the Legislative Council Secretariat as the source and one copy of the reproduction is sent to the Legislative Council Library.

Executive Summary

1. This research studies the operation of youth courts in the United Kingdom (UK), Canada and New Zealand, in terms of jurisdiction and constitution of a youth court, procedures after arrest of a young offender, court procedures, sentencing and court environment. The operation of youth courts in Hong Kong is also briefly described for reference.

Jurisdiction and constitution of a youth court 2. The UK, Canada, New Zealand and Hong Kong have all established separate

courts with the jurisdiction to adjudicate alleged criminal offences committed by young offenders. The court is known as the Youth Court in both the UK and New Zealand, where it is known as the Youth Justice Court in Canada. In Hong Kong, it is known as the Juvenile Court.

3. The youth courts in the UK and New Zealand are presided by

magistrates/judges, who are required by law to be especially suitable for hearing juvenile cases. While there is no such requirement in Canada and Hong Kong, youth court judges are encouraged to undergo training in related topics.

Procedures after arrest of a young offender 4. The procedures governing the interview, detention and bail of juveniles are

similar for the youth courts studied. At the police station, a juvenile should only be interviewed and make statements with the presence of a parent, a guardian or other appropriate adult. After the interview, the police may take no further action and release the juvenile. Alternatively, the police may handle the case informally with diversionary measure (e.g. caution/warning) or charge the juvenile. The juvenile charged will normally be granted bail pending trial, unless under circumstances such as the charge being one of homicide or other grave crimes.

5. The police in the places studied has the discretion to handle minor offences

informally by issuing cautions/warnings. In the UK, Canada and New Zealand, the police can go further by referring a young offender to participate in a rehabilitation programme. If the youth completes the programme successfully, the case against him/her will be dismissed. Otherwise, his/her case will be referred back to the police/prosecutor for court proceedings.

Court procedures 6. In New Zealand and Hong Kong, the hearing begins with a juvenile being called

upon to admit or deny the charge after the court explains to him/her the substance of the alleged offence in simple language. After that, the prosecutor calls on the witnesses in support of the charge, each of whom may be cross-examined by the counsel on behalf of the juvenile. The defence lawyer then calls his/her witnesses to assist the defence, and they may, in turn, be cross-examined by the prosecutor. After all witnesses have testified, the magistrate/judge will render the verdict. If the court makes a finding of guilt, the case will proceed to sentencing. Otherwise, the court must find the juvenile not guilty and acquit him/her accordingly. The youth courts in the UK and Canada follow similar hearing process, except that the juveniles brought before the courts enter a plea to the charges instead of admitting or denying the charges.

7. In Hong Kong and the overseas places studied, the privacy of juveniles involved

in the justice system is safeguarded by legislation intended to avoid undue publicity. For example, there are restrictions on the reporting of court proceedings. Further, the youth courts in all places except Canada have restrictions on the access to court hearing.

8. The juvenile justice systems of Hong Kong and the overseas places studied all

feature parents/guardians' involvement, with the requirement of their attendance at all stages of proceedings unless the court directs otherwise.

Sentencing 9. Before sentencing, the youth courts in Hong Kong and the overseas places

studied will order a pre-sentence report which contains background information on the young offender concerned. In addition, the youth courts in Canada and New Zealand allow a family group conference to be convened to advise on the most appropriate sentence. Similar arrangement is also put in place in the UK. In Hong Kong, the youth courts seek advice from the Young Offenders Assessment Panel on the sentencing of young offenders.

10. Compared with Hong Kong, the UK, Canada and New Zealand have made

available a wider range of community-based sentencing options for handling juvenile cases. For example, community-based sentences in these overseas places do not confine to probation and community service orders. Further, custodial sentences in the UK and Canada comprise a portion served in custody and a portion served under supervision in the community.

Court environment 11. The setting of youth courts in Hong Kong and the overseas places studied tends

to be less formal than that of adult courts. The youth court judge sits on the same level as the young offender, or on a very slightly raised bench. The juvenile is accompanied by his/her parents or guardians sitting behind or alongside him/her. Furthermore, the juvenile charged does not sit or stand in the dock and the place for him/her to sit or stand depends on the courtroom layout.

Operation of Youth Courts in Selected Overseas Places

Part 1 - Introduction 1. Background 1.1 The Panel on Administration of Justice and Legal Services (the Panel), at its meeting on 27 January 2003, requested the Research and Library Services Division (RLSD) to conduct a research on the operation of youth courts in overseas places, and the research outline was endorsed on 24 February 2003. 2. Scope of the research 2.1 The scope of the research, as agreed by the Panel, covers:

(a) an overview of the juvenile justice systems in selected overseas places;

(b) the operation of youth courts in selected overseas places; and (c) a comparison of the operation of the overseas youth courts studied,

and its reference for Hong Kong. 3. Selection of overseas places for the study 3.1 RLSD selected the following places and their respective juvenile justice systems for the study:

(a) the United Kingdom (UK); (b) Canada; and (c) New Zealand.

3.2 The UK, Canada and New Zealand are selected because their court systems are similar to that of Hong Kong.

Legislative Council Secretariat Operation of Youth Courts in Selected Overseas Places

Research and Library Services Division page 2

3.3 The UK embarked on measures to reform its juvenile justice system in the late 1990s. An innovative pilot project was implemented during 1998-2000 aiming at, among other things, changing the physical layout of the courtroom to create a more open and approachable atmosphere. 3.4 In Canada, the enactment of new legislation — Youth Criminal Justice Act — provides for the use of family group conferences to assist the court in making decisions regarding young persons who are involved in the juvenile justice system. Family conferencing also features prominently in New Zealand's juvenile justice system. It is required by law to convene a family group conference before a youth court judge makes any sentence. The study of the Canada and New Zealand experience should serve as references for Hong Kong in the integration of family conferencing in the juvenile justice system. 4. Methodology 4.1 This research adopts a desk research method which involves Internet search, and literature review and analysis. The research also makes use of the information collected from the relevant authorities in the UK, Canada and New Zealand.



Part 2 - The United Kingdom 5. Overview of the juvenile justice system Legislation 5.1 The UK's juvenile justice system is not governed by a single statute. Instead, relevant statutory provisions are scattered among a number of statutes. 5.2 The Children and Young Persons Act (CYPA), which was enacted in 1933, first introduced the concept of welfare provision in the handling of young offenders. In particular, CYPA requires the juvenile court magistrates to have due regard for the welfare of young offenders in making an appropriate sentence. Notwithstanding the subsequent amendments of CYPA in 1963 and 1969, many tenets of this legislation still underpin the welfare-oriented principle embodied in the current juvenile justice system of the UK. 5.3 The passage of the Children Act in 1989 saw a re-organization of the UK's juvenile justice system. The Act ended the jurisdiction of the juvenile court over civil "care proceedings"1, thereby confining the court to deal exclusively with criminal proceedings. In 1991, the enactment of the Criminal Justice Act not only changed the name of the juvenile court to the Youth Court2, but also introduced a range of substantive and procedural changes related to the sentencing of young offenders. 5.4 More recently, the enactment of the Crime and Disorder Act 1998 (CDA) has introduced yet other significant changes to the UK's juvenile justice system. CDA has established for the first time a principal aim in legislation for the juvenile justice system, i.e. prevention of offending and re-offending by children and young people. As such, the Act contains a number of provisions aiming at providing effective early intervention in respect of young offenders, placing a new emphasis on reparation and restorative justice3, and reducing delays in the system.

1 Care proceedings were transferred from the juvenile court to the Family Proceedings Court as a

result. 2 The court for hearing juvenile cases had been known as "juvenile court", dating back to 1908 when

the first juvenile court was set up in the UK. 3 Restorative justice principle is a penal philosophy that seeks to restore the offender, the victim, and

the community to a position of balance that has been upset by the offender's action. Restoring that balance may require reparation, apology to the victim, or other remedial measures, and the appropriateness of a particular measure is largely determined by the consensus of the offender, the victim and the community.



5.5 The Youth Justice and Criminal Evidence Act, which was enacted in 1999, has provided for the implementation of the initiatives set out in CDA. As to the principle of restorative justice, the Act introduces a new sentencing disposal - referral order - for juveniles pleading guilty and convicted for the first time. (See paragraphs 8.13-8.15 below for the discussion of referral order.) Structure of the criminal courts 5.6 In the UK, all criminal cases first appear in the magistrates' courts. A magistrates' court decides whether the nature of the offence is within its jurisdiction and whether the parties consent to try the offence in the magistrates' court. Alternatively, the magistrates' court may decide to commit the accused for trial in the Crown Court. 5.7 The Crown Court tries more serious criminal cases and hears appeals from the magistrates' courts. The Crown Court sits at about 90 venues, where the cases are tried by a jury of 12 persons selected at random from the electoral register. 5.8 A person convicted by a magistrates' court may appeal to the High Court on points of law, and to the Crown Court for his/her trial to be re-heard. Appeals from the Crown Court go to the Court of Appeal (Criminal Division) and can ultimately reach the House of Lords. As the highest court in the UK, the House of Lords is the court of final appeal hearing appeals on points of law of public importance. Youth Court 5.9 Some magistrates' courts are designated as Youth Courts, which are composed of specially trained magistrates and deal only with charges against and applications relating to young offenders. The Youth Court is a court of summary jurisdiction specially constituted for the purpose of hearing all but the most serious charges against a child (aged 10-13) or a young person (aged 14-17). In the UK, the minimum age of criminal responsibility is 10 and any person below the age of 10 cannot be guilty of an offence in law. The Youth Court also deals with certain other specified matters, such as applications in respect of bail and secure accommodation4.

4 A Youth Court has the jurisdiction to hear an application by a local authority to use secure

accommodation to restrict the liberty of a child whom it is looking after. Secure accommodation means accommodation provided in a community home, a voluntary home or a registered children's home for the purpose of restricting liberty.



5.10 The Youth Court also has jurisdiction over other offences, such as contempt of court and the offence of juveniles failing to comply with the community-based sentences imposed by the court5. The Youth Court is given the power to impose sanction for a breach of the community-based sentence and to re-sentence the offender for the original offence. Furthermore, the Youth Court has jurisdiction over any violation of the legal provisions governing the police, the press and other relevant parties involved in the juvenile justice system. For example, it can impose penalty on any unauthorized disclosure or publication of information about the juveniles involved in court proceedings. 5.11 In addition, the Youth Court has the power to issue ancillary orders against the parents or guardians to require them to take more responsibility for criminal offence committed by their child. For example, the parenting order requires the parents/guardians to attend counselling or guidance session, and to comply with certain specified conditions conducive to preventing their child from committing further offences. These conditions may include the requirement of keeping their child at home during specified hours or not to visit specified areas unsupervised. Transfer to other courts 5.12 Although it is a general rule that a young offender, in the event of being charged, should appear before the Youth Court, there are occasions in which the youth may be transferred to an adult magistrates' court or the Crown Court for trial. These exceptions include the youth being:

(a) charged with homicide, which includes the offences of murder, manslaughter and probably infanticide;

(b) charged with grave crimes6; (c) jointly charged with an adult; (d) charged for an offence with which an adult is charged at the same

time as an aider and abettor to that offence; (e) charged as an aider and abettor to the offence with which an adult is

charged with that offence at the same time; and

5 The community-based approach refers to the use of non-custodial sentencing options to

rehabilitate young offenders in their communities through non-secure residence, counselling services, victim restitution programmes and/or other community services.

6 A grave crime is defined as (i) an offence punishable in the case of an adult with 14 years of imprisonment or more, (ii) indecent assault, (iii) offences of causing death by dangerous driving, or (iv) other serious offences such as arson, residential burglary, aggravated burglary, rape, attempted rape or wounding with intent.



(f) charged with an offence arising out of the same circumstances as those giving rise to proceedings against an adult7.

Constitution of the Youth Court 5.13 A Youth Court must consist of members from the Youth Court panel, which comprises a number of magistrates who have received extra training for dealing with juvenile cases. Where the Youth Court comprises a bench of lay magistrates, there should be no more than three justices, including at least one man and one woman. Lay magistrates do not have formal legal qualifications and receive no payment for their services. They sit with a Justices' Clerk who advises them on law and procedure. Alternatively, the Youth Court may be presided over by a district judge, who is a salaried justice with the background of being a barrister or solicitor of not less than seven years' standing. 5.14 Magistrates selected to sit in the Youth Court are required by law that they must be "especially qualified" for dealing with juvenile cases. While there is no guidance issued for the selection process, the Lord Chancellor's Department8 requires the Youth Court magistrates to possess key qualities such as good character, social awareness, maturity, sound judgement, commitment, understanding and communication. 5.15 A lay magistrate, before becoming a member of the Youth Court panel, is required to undergo a training programme which is typically consisted of courtroom observation, lectures, visits to other courts and juvenile institutions, as well as discussions with juvenile probation and parole workers. 5.16 Meanwhile, the Magistrates New Training Initiative (MNTI) has been put in place to assess the performance of a lay magistrate. MNTI sets out the competencies required of a Youth Court judge and the standards of performance against which those competencies can be measured. In the third year after the appointment as a Youth Court judge, a lay magistrate will be appraised against MNTI competencies by an experienced magistrate in order to identify if there are any further training and development needs.

7 For example, if an adult is accused of theft and the juvenile is accused of handling of the property

allegedly stolen, the charge against the juvenile, at the court's discretion, can be heard by an adult court.

8 The Department's essential function is to promote the fair, efficient and effective administration of justice in England and Wales, which includes (i) appointing, or advising on the appointment of, judges, (ii) the administration of the court system and a number of tribunals, (iii) the provision of legal aid and legal services, and (iv) the promotion of reform and revision of English civil law.



6. Procedures after arrest of a young offender Interview 6.1 If a juvenile is arrested for allegedly committing an offence, he/she has the right to have a person informed9 of his/her arrest and detention at the police station. The juvenile can only be interviewed by the police when at least one of his/her parents or guardians is present. If it is not possible for such a person to be present, then the police must arrange for "an appropriate adult" (e.g. a social worker) to accompany the juvenile throughout the interview. 6.2 Following the interview, the police may take no further action if there is insufficient evidence warranting a prosecution or there are other public interest factors suggesting that formal action is inappropriate. Alternatively, the police may proceed to issue a reprimand/final warning or charge the juvenile. A reprimand/final warning will be issued by a senior police officer only after an admission of guilt and informed consent by the juvenile10. Figure 1 contains a flowchart which outlines the process of handling a young offender under the UK's juvenile justice system. Extrajudicial measures (a) Reprimand

6.3 The police has the discretion to give a reprimand to a first-time young offender, provided that the offence is minor and the juvenile is assessed to have a low risk of further offending. Only a single reprimand may be delivered in respect of a particular offender, which means that any further offence should be followed by either a final warning or a prosecution. (b) Final warning 6.4 Final warning is issued to offenders who have been reprimanded before. The police officer may also warn rather than reprimand a young offender if the offence is considered to be serious enough to justify a final warning. When the young offender is given a final warning, he/she will be referred to a youth offending team as soon as practicable.

9 The person can be a friend, a relative, or any other person who is known to the juvenile or who is

likely to take an interest in the juvenile's welfare. 10 A juvenile aged 17 may give consent to the reprimand/final warning to be administered to him/her.

In the case of a juvenile aged below 17, the consent can only be given by the parent or guardian.



Figure 1 - Operation of the juvenile justice system in the United Kingdom

Charge dismissed

Referral back to court for a

fresh sentence

Police investigation

No further action due to insufficient evidence or

public interest consideration

Action required

Police discretion

Diversionary measures

Reprimand

Final warning Referral to

youth offending

team

Charge laid

Crown Prosecution

Service

Proceedings discontinued Discharge

Plea

Not guilty Guilty

Judicial appearance/

hearing

First conviction Referral

order

Contract forged with the juvenile

Hearing in Youth Court

Verdict

Guilty

Acquittal

Sentencing

Contract completed

successfully

Contract not completed

Discharge Fines,

compensation, reparation,

restitution, etc.

Community-based

sentences

Custody & supervision



6.5 According to CDA, every local authority with responsibility for education and social services has a duty to establish for its area one or more youth offending teams. A youth offending team must include at least:

(a) a probation officer; (b) a social worker; (c) a police officer; (d) a person nominated by a health authority; and (e) a person nominated by the chief education officer appointed by the

local authority.

6.6 A youth offending team must carry out an assessment of the offender and arrange for him/her to participate in a rehabilitation programme. The purpose of the programme is to rehabilitate the offender and prevent him/her from re-offending. As such, the programme involves the offender and his/her family to address the cause of the offending. It also contains some reparation work and individual work with the offender such as counselling. 6.7 If a young person fails to complete the rehabilitation programme, he/she cannot be prosecuted, but a report on his/her failure to complete the programme may be placed before the court in any future proceedings. Legal representation 6.8 All people, including juveniles, arrested and detained at the police station must be informed that they may consult and communicate privately with their lawyers at any time. A detained person may nominate a lawyer of his/her choice. If the detained person does not have his/her own lawyer, he/she should be told of the availability of the local duty solicitor scheme and be provided with a list of such solicitors willing to provide free legal advice. Bail/detention 6.9 When a reprimand/final warning is not appropriate for a juvenile, the juvenile may be charged by the police. After laying the charge, the police will either allow the juvenile to be released on bail pending trial or remand him/her in custody. If the police decides to grant the juvenile bail, conditions may be imposed where necessary to prevent him/her from absconding, committing an offence, or interfering with witnesses or otherwise obstructing the course of justice.



6.10 If the police decides that a young offender be detained, the juvenile is normally brought before the Youth Court as soon as practicable, and in any event not later than the next available court sitting. After the bail hearing, the court may permit the release of the juvenile to the parents' care. Alternatively, it can remand the juvenile to local authority accommodation or, in very limited circumstances, in custody. For a juvenile aged 15-16, he/she may be treated like an adult and remanded in custody to be held in a remand centre or prison. Prosecution 6.11 Once a juvenile has been charged by the police, his/her case will be passed to the Crown Prosecution Service (CPS) for consideration. Each case is reviewed by a CPS lawyer who will consider whether there is sufficient evidence to provide a realistic prospect of conviction, and if affirmative, whether it is in the public interest to proceed. If it is determined to be improper to continue with the prosecution, a notice of discontinuance may be served by CPS upon the court and the defendant. 7. Court procedures Plea 7.1 The trial proceedings begin with the court, usually through its clerk, identifying the juvenile, and ascertaining his/her age and whether or not a parent accompanies him/her. The charge and the nature of the proceedings are explained to the juvenile in simple language suitable to his/her age and understanding. 7.2 If the court is satisfied that the juvenile understands the charge, it will ask the juvenile whether he/she pleads guilty or not guilty to the charge. If the juvenile pleads not guilty, the court will normally adjourn so that the prosecution will have an opportunity to arrange for its witnesses to attend court. If the juvenile enters a guilty plea, it is the duty of the prosecution to give the court a summary of the offence which reveals not only any aggravating features (i.e. features making the offence more serious than others of its kind) but also any mitigating ones (i.e. features making it less so).



Hearing 7.3 The hearing begins with CPS or a police officer setting forth the circumstances of the case. The court then proceeds to hear the evidence of witnesses in support of the charge, each of whom may be cross-examined by the counsel on behalf of the juvenile. If a juvenile is unrepresented, the court shall allow his/her parent to assist the juvenile in cross-examination. At the conclusion of the prosecution case, the magistrates must decide whether or not the prosecution has made out a prima facie case. If affirmative, the juvenile and witnesses are called on to give evidence. 7.4 Whether the juvenile gives evidence or not, he/she may call on witnesses to assist his/her in defence. If the juvenile is not represented and has difficulty framing questions, the court should assist him/her by putting relevant questions to the witnesses. After all the evidence has been submitted, the magistrates retire to discuss the case. 7.5 If the magistrates are satisfied beyond reasonable doubt that all elements of the offence charged have been proven, they will make a finding of guilt and the case proceeds to sentencing. Otherwise, the court will made a verdict of "not guilty" and release the young offender. Legal representation 7.6 There are three types of representation available to young offenders: privately retained lawyers, legal aid lawyers or duty solicitors. The juvenile or his/her parents may make an application for legal aid before a criminal court. The application is submitted to the relevant magistrates' court and the approval of which depends on whether it is in the interest of justice for the defendant to be legally represented11. 7.7 Nevertheless, legal aid must be granted to ensure that a juvenile is legally represented under circumstances such as:

(a) the juvenile is remanded in custody or to local authority accommodation;

(b) the court is considering the imposition of a supervision order; or (c) the court is considering the imposition of a custodial sentence upon

the juvenile.

11 In the UK, the implementation of the Access to Justice Act 1999 has abolished the requirement for

the applicants of legal aid to undergo any means-test.



Parents/guardians' involvement 7.8 For juveniles aged under 16, the Youth Court requires the attendance of at least one of their parents or guardians during all stages of proceedings, unless the court considers unreasonable to require attendance in all circumstances. For juveniles aged 16-17, the court may require the parent or guardian to attend. The court has the power to ensure the attendance by issuing a warrant or a written warning to the parent/guardian who fails to attend the court. Protection of privacy 7.9 The privacy of the youths who appear before the Youth Court is safeguarded by a number of statutes intended to avoid harm associated with undue publicity or labelling. For example, both the Youth Justice and Criminal Evidence Act 1999 and CYPA have laid down restrictions on the reporting of and access to the court proceedings in the Youth Court. Reporting restrictions 7.10 There are automatic restrictions on the reporting of proceedings in the Youth Court, which include:

(a) no report can be published, revealing the name, address or school of any child or young person concerned in the proceedings or including any particulars likely to lead to the identification of any such child or young person; and

(b) no picture of a child or a young person concerned in the proceedings

can be published. 7.11 The restrictions on reporting apply to newspaper reports and broadcast programmes. A breach of the reporting restrictions is punishable on summary conviction by a fine of not exceeding £5,000. 7.12 The Youth Court has power to waive these restrictions where necessary in order to avoid injustice to the juvenile, for example, where the interests of justice would be served in publishing details to encourage witnesses to come forward. The Youth Court may also dispense with restrictions in order to secure the apprehension of a juvenile who has been charged or convicted with a violent offence, a sexual offence, or an offence punishable in the case of a person aged 21 or over with an imprisonment of 14 years or more.



7.13 Additionally, the Youth Court may dispense with all or some of the reporting restrictions on a young offender if the court is satisfied that it is in the public interest to do so. The parties to the proceedings are given an opportunity to make representations before such order is made. However, if a young offender appears in the adult magistrates' court or the Crown Court, there are no reporting restrictions unless they are ordered by the court. Access to Youth Court hearing 7.14 The principle of "open court" does not apply to the Youth Court. Only the following persons may be present:

(a) members and officers of the court; (b) parties to the case, the solicitors and counsel representing the parties,

witnesses, and other people directly concerned (e.g. parents or guardians);

(c) bona fide representative of newspapers or news agencies; and (d) such other persons as the Youth Court may specially authorize to be

present on a given occasion12.

8. Sentencing 8.1 The procedures before sentencing are the same whether the young offender pleads guilty or is found guilty after hearing the evidence. The juvenile and his/her parents are given the opportunity to address the court before the magistrates make their disposition order. As a matter of practice, any previous findings of guilt and related orders related to the juvenile are cited to the court by the prosecutor. 8.2 If the court is to impose community-based or custodial sentence, it will take into consideration of such information as to the general conduct, home surroundings and school record of the juvenile to ensure that the sentence can serve his/her best interests. The information is provided by means of a pre-sentence report prepared by a social worker or a probation officer after conducting an interview with the juvenile.

12 For example, students who are pursuing youth-related courses fit into this category.



Pre-sentence report 8.3 A pre-sentence report refers to a written report containing information which may assist the court in determining the most suitable method of handling an offender. The report should include (i) assessment of the offending behaviour, (ii) relevant information about the offender, (iii) risk of re-offending, and (iv) conclusion. In the case of a young offender aged 16-17, the conclusion should include a proposal of the most suitable sentence available to the Youth Court for the youth. Sentencing principles 8.4 The Criminal Justice Act 1991 prescribes the principle of "proportionality" for the sentencing of young offenders, under which the severity of sentence should be commensurate with the seriousness of the offence. This principle provides a clear and graduated approach to sentencing, with discharges and fines at the lower end of the seriousness scale, through other non-custodial options and up to custodial measures. 8.5 Nevertheless, within the limit of "proportionality", there are legal provisions providing for the Youth Court to look beyond the offences and consider the welfare of young offenders when sentencing. For example, when making community-based sentence, the court is required to select the most suitable order or orders for the offender. 8.6 Another principle of sentencing is to prevent re-offending by juveniles through a wide range of community-based sentencing options, which have prevention components embodied in relevant programmes and schemes. However, when the offence is serious or there is a need to protect the public from the young offender, a tough approach is warranted to see the prevention of re-offending in terms of custodial measures. Sentencing options Non-custodial sentences (a) Discharge of the offender 8.7 A young offender may be granted an absolute or conditional discharge. When a discharge is conditional, the sole condition is that the offender should commit no further offence during the period of conditional discharge fixed by the court, up to a maximum of three years. However, the Youth Court cannot grant conditional discharge if a juvenile has received a warning within two years of prosecution.



(b) Fine 8.8 A youth convicted of an offence may be fined. The maximum fine for offenders under the age of 14 is £250 and that for those aged 14-17 is £1,000. (c) Compensation orders 8.9 Following a conviction, a court is empowered to order the offender to pay compensation to the victim of the offence. Such an order is referred to as a compensation order and may be made along with another sentence or on its own. (d) Restitution orders 8.10 The Youth Court may issue a restitution order either to restore goods stolen or unlawfully removed to the person entitled to them, or if the goods are not found, to restore to that person the cash or goods equivalent out of money found in the offender's possession on apprehension or goods representing the proceeds of the misappropriated goods. (e) Reparation orders 8.11 A reparation order is a disposal requiring a young offender to make reparation to the victim of the offence or to the community at large in a non-financial way. The reparation may cover a variety of activities, ranging from simply writing a letter of apology to carrying out work to assist the local community. (f) Anti-social behaviour orders 8.12 The local authority or the police may apply to the Youth Court to impose an anti-social behaviour order on a person aged 10 or above. The order is akin to an injunction designed to prohibit the person from doing anything described in the order, such as going into a specific area. A breach of the order by a juvenile amounts to a criminal offence triable in the Youth Court.



(g) Referral orders 8.13 The Youth Justice and Criminal Evidence Act 1999 provides for a Youth Court judge to pass a referral order on a young offender, who is convicted for the first time and pleads guilty to his/her offence. Where a referral order has been made, it is the duty of the youth offending team (as described in paragraph 6.5) to establish a youth offender panel for the juvenile and to arrange meetings of the panel13. 8.14 The meetings aim at providing a forum away from the formality of the court for the offender, his/her family and where appropriate, the victim of the offence, to consider the circumstances leading to the offending behaviour, and the effect of the crime on the victim. The youth offender panel and the juvenile will agree on a contract which includes reparation to the victim or to the wider community, and a programme of activities designed primarily to prevent further offending. In this connection, the referral order serves the intention of containing the elements of restorative justice principle14 as embodied in family conferencing. 8.15 If the offender's compliance with the contract has been satisfactory, the referral order will be discharged at the end of the contract period. If the offender fails to comply with the contract, the panel will refer the offender to the appropriate court. The court may revoke the referral order and re-sentence the offender, with the full range of sentencing options (other than a referral order) that would have been available to the court which originally sentenced him/her. (h) Action plan orders 8.16 An action plan order places an offender aged 10-17 under a short intensive community-based programme, which may include reparation and attendance centre orders aiming to alter his/her offending behaviour. (i) Supervision orders 8.17 A supervision order entails a young offender being placed under the supervision of a social worker, a probation officer, or a member of the youth offending team. A range of conditions may be attached to a supervision order for serious offences. These conditions include residence requirements, curfews, and activities specified by the youth offending team.

13 According to the Youth Justice and Criminal Evidence Act 1999, the youth offending team (YOT)

is also responsible for the recruitment and training of youth offender panel members. A youth offender panel shall consist of at least two members recruited by YOT from the local community and a YOT advisor.

14 See footnote 3 for an explanation of the restorative justice principle.



8.18 A supervision order may last for a maximum of three years. There is no minimum period for the order. In practice, it is unlikely that a court would impose a supervision order of fewer than six months. (j) Probation orders 8.19 A probation order is an order requiring a juvenile aged 16-17 to be put under the supervision of a probation officer for a period of six months to three years. (k) Attendance centre orders 8.20 The Youth Court has the power to pass an attendance centre order on any offender under 21. Attendance centres are mostly run by the police and open on Saturdays, providing activities such as physical education and group work. The minimum number of hours of attendance must not be fewer than 12 unless the offender is under 14 and, having regard to the offender's age or any other circumstances, the court considers that 12 hours would be excessive. When the court considers 12 hours being inadequate for offenders aged 14 and above, it may order a sentence of up to a maximum of 24 hours for offenders aged 14-15, and 36 hours for those aged 16-20. (l) Community service orders 8.21 A community service order is available for juveniles aged 16-17. Under the order, the juvenile is required to work a specified number of hours for the community. The minimum number of hours is 40 and the maximum is 240, and the work must be performed within 12 months of the order being made. (m) Combination orders 8.22 A court can impose a combination order on juveniles aged 16-17. The combination order is a mixture of probation order and community service order. The probation part of the order must not be fewer than 12 months and the community service part of the order must be between 40 and 100 hours. (n) Child curfew orders 8.23 A court can subject a juvenile aged 15 or below to night time curfew (from 9 pm to 6 am) for a maximum period of 90 days. For juveniles aged 16-17, the curfew order may be up to a maximum of 12 hours (minimum two hours) per day for up to six months. The purpose of the curfew order is to prevent young people from gathering late at night and incurring the risk of committing criminal behaviour resulting from the encouragement of older peers or adults.



Custodial sentences (a) Detention and training orders 8.24 The court may impose a detention and training order on a juvenile aged 12-17 who has committed an offence which would be punishable with imprisonment for a person aged 21 or above. It may last from a minimum of four months to a maximum of two years. The custodial sentence is a two-part sentence which combines a period of custody with a period under supervision in the community by a youth worker. (b) Other custodial sentences 8.25 Offenders under 18 convicted of certain serious offences (e.g. indecent assault) may be detained for a period of not exceeding the maximum term of imprisonment which would be available for that offence in the case of an adult. Those juveniles convicted of murder are detained "during Her Majesty's pleasure" — the equivalent of a life sentence in the case of an adult. Appeals 8.26 A juvenile found guilty in either the Youth Court or the magistrates' court may appeal his/her conviction and/or sentence to the Crown Court. Alternatively, he/she may appeal to the High Court on points of law or apply from that court for a judicial review of the Youth Court's decision. 9. Court environment 9.1 In the UK, there is less formality in the Youth Court than in adult magistrates' court. For example, young offenders and any juvenile witnesses are addressed by their first names, and the oaths taken by witnesses are to promise (instead of swear) to tell the truth. The juvenile charged does not go into a dock15, but sits on a chair facing the magistrates, with his/her parents sitting alongside or behind him/her. See Appendix I for photographs featuring the general setting of a Youth Court in the UK.

15 However, for security reasons, including the protection of the magistrates, there are occasions

where it is necessary for the defendant to be in the dock.



9.2 In order to explore ways of conducting the Youth Court proceedings more openly, a pilot scheme known as the Youth Court Demonstration Project (the Project) was run for a period of 18 months between 1998 and 2000 in six courts. The Project initiated, among other things, alternations to the layout of the Youth Court in order to create a more open and approachable atmosphere. 9.3 Built on the initiatives set out in the Project, a Practice Direction was issued by the Lord Chief Justice 16 on 17 February 2000, setting out the procedures/arrangements required to be followed by the Youth Courts nationwide as far as their resources allow. The Practice Direction emphasizes that the process of trial should not expose a young defendant to avoidable intimidation, humiliation or distress. It also stresses that all possible steps should be taken to help the young defendant understand the proceedings and participate in them. 9.4 The main part of the Practice Direction refers to the trial itself, and includes the following key proposals:

(a) the seating of all participants is on the same or almost the same level; (b) young defendant is free to sit with his/her family or others in a like

relationship; (c) the seating of the young defendant permits easy informal

communication with legal representatives, and others with whom he/she wants or needs to communicate;

(d) the trial is conducted according to a timetable which takes full

account of a young defendant's inability to concentrate for long periods. Frequent and regular breaks will often be appropriate;

(e) robes and wigs should not be worn unless the young defendant asks

that they should or the court for good reasons orders that they should; (f) police and security officers are not in uniform; and (g) the court explains the course of proceedings to a young defendant in

terms which he/she can understand.

16 The Lord Chief Justice presides over the Criminal Division of the Court of Appeal and the Queen's

Bench Division of the High Court, and ranks second only to the Lord Chancellor in the judicial hierarchy of the UK.



Separation of the juvenile from adult defendants 9.5 CYPA stipulates that arrangements must be made to prevent a juvenile defendant from associating with an adult defendant (unless a relative or jointly charged) while being conveyed to court or while waiting before or after attendance at court. 9.6 In the UK, many courts have designated courtrooms and separate entrances which are only used for Youth Court purposes. There are some settings where the Youth Court is physically separated from the adult magistrates' court17. However, there may not be separate Youth Court buildings or courtrooms in small rural towns. Under those situations, adult and juvenile cases are generally scheduled for hearings at different times or days.

17 For example, in Birmingham, the Youth Court is located at a separate building.



Part 3 - Canada 10. Overview of the juvenile justice system Legislation 10.1 The Youth Criminal Justice Act (YCJA) prescribes the policy and procedures for the handling of youths involved in the juvenile justice system. YCJA has come into force since 1 April 2003, replacing the Young Offenders Act (YOA) which governed Canada's juvenile justice system since its implementation in 1984. 10.2 The enactment of YCJA is in response to the public concern over perceived inadequacies of YOA in handling violent offenders and to the criticism of over-reliance on the use of courts and custody to handle less serious offences. Many juvenile cases, as argued by academics and youth justice professionals, are minor in nature and should be diverted from the formal justice system. 10.3 While preserving many elements of YOA, YCJA has prescribed for more diversionary measures and increased use of community-based sentences to reduce the reliance on incarceration for non-violent offenders. Nevertheless, YCJA has also set out new provisions which facilitate the imposition of adult sentences on young offenders convicted of violent or repeated offences. Structure of the criminal courts 10.4 There are basically four levels of criminal court in Canada. At the bottom are Provincial Courts which deal with most of the criminal offences. A number of Provincial Courts are dedicated exclusively to particular types of offences or groups of offenders. For example, some Provincial Courts have been designated as Youth Justice Courts to hear juvenile cases. Above Provincial Courts are Provincial/Territorial Superior Courts, which can hear cases in any area except those specifically limited to a lower court. These Superior Courts also act as courts of first appeal for the underlying court system that provinces and territories maintain. 10.5 The level above Superior Courts are Provincial Courts of Appeal. Each province and territory has a court of appeal or appellate division that hears appeals from decisions of Superior Courts and Provincial Courts. The highest level of the court hierarchy is the Supreme Court of Canada, which is the court of final appeal from all other Canadian courts.



Youth Justice Court 10.6 YCJA stipulates the Youth Justice Court to adjudicate alleged criminal offences committed by youths aged 12-17. In Canada, the minimum age of criminal responsibility is 12, and any person below the age of 12 cannot be guilty of an offence in law. 10.7 The Youth Justice Court also hears cases related to contempt of court and juveniles failing to comply with community-based sentences imposed by the court. In addition, it has jurisdiction over the offences which may be committed by parties (other than the young offenders) involved in the juvenile justice system. Indeed, YCJA has defined offences which may be committed by parents or other adults who are responsible for taking care of juveniles. Furthermore, YCJA has provisions governing the conduct of the press in respect of unauthorized disclosure or publication of information about the juveniles concerned in the court proceedings. Transfer to other courts 10.8 Previously, YOA allowed the transfer of youths (aged over 14 at the time of their offences) to the adult court for trial if they were charged with serious indictable offences18. Transfer was not automatic and the applications for transfer were made by the Crown prosecutors or the offenders themselves. YCJA has made a substantial change from YOA by abolishing the transfer mechanism and requiring all juveniles to be tried in the Youth Justice Court19. This in turn allows the imposition of adult sentences within the juvenile justice system. YCJA also prescribes for the lowering of the age for presumption of adult sentences from 16 to 14. Nevertheless, YCJA allows provinces the discretion to set the age limit at 14, 15 or 16 in their respective jurisdictions. 10.9 YCJA specifies the circumstances under which a young person may be at the risk of receiving an adult sentence if he/she has been found guilty in the Youth Justice Court. The offence convicted must be the one that will attract an imprisonment of more than two years if committed by an adult and the young person must be aged 14 or above at the time of committing the offence. Furthermore, the offence must fall into one of the following categories:

18 Defendants charged with indictable offences have the right to a preliminary inquiry and a jury trial.

Since indictable offences include serious offences such as homicide and robbery, the defendants may face more punitive sentences if convicted of these offences.

19 According to the Provincial Court of Newfoundland and Labrador in Canada, it is a general rule for youths who commit offences jointly with adults to be tried separately in Youth Justice Court. However, there may be exigent circumstances wherein a particular case may be ordered by the court to be tried jointly in the adult court.



(a) Presumptive offences 10.10 Presumptive offences are those offences which carry a presumption that an adult sentence would apply on conviction unless the juveniles concerned can persuade the court that it is not necessary. Presumptive offences refer to murder, attempted murder, manslaughter, and aggravated sexual assault. A presumptive offence also includes any serious violent offence of which the juvenile has been found guilty for a third time. (b) Non-presumptive offences 10.11 In addition to offences that may qualify as presumptive offences, there are other offences for which no presumption arises but which the Crown prosecutor may apply to the court to consider an adult sentence. These are offences committed by a youth aged 14 or above which would be punishable with an imprisonment of more than two years if committed by an adult. Constitution of the Youth Justice Court 10.12 Under YCJA, there is no statutory requirement for judges appointed to hear juvenile cases to possess any particular background or training. Nevertheless, once appointed, they are encouraged to attend various judicial education programmes organized by judges' organizations or the National Judicial Institute. The National Judicial Institute, funded by the federal and provincial governments, is responsible for co-ordinating and delivering educational programmes for all federal, provincial, and territorial judges. 10.13 As mentioned above, YCJA requires all juveniles to be tried in the Youth Justice Court. There are some offences which allow juveniles the options of having a preliminary inquiry and a jury trial. These offences include murder or those of which a juvenile will face the possibility of an adult sentence if convicted. The Youth Justice Court per se does not have the jurisdiction to try criminal cases which require a preliminary inquiry and a jury trial. As such, YCJA provides for a Superior Court, which already has the jurisdiction to try these cases, to be deemed as a Youth Justice Court20. For such cases, juveniles are also allowed the election to be tried by:

(a) a Youth Justice Court judge without the procedures of preliminary inquiry and jury trial; or

(b) a preliminary inquiry before a Youth Justice Court judge and then a

trial before a Superior Court Judge sitting with or without a jury.

20 The federally appointed Superior Court judges will sit as Youth Justice Court judges as a corollary.



10.14 Simply put, the Youth Justice Court judges and the Superior Court judges have concurrent jurisdiction over serious offences subject to the election of the juvenile concerned. For non-serious offences, they all fall within the jurisdiction of the Youth Justice Court judges. 11. Procedures after arrest of a young offender Interview 11.1 Once a police officer arrests a juvenile believed to have committed a criminal offence, he/she has the initial responsibility for investigating the case and informing the juvenile's parent of the arrest. A juvenile is entitled to consult a lawyer and his/her parent21 before making a statement and has these persons present when the statement is made. 11.2 Following the interview, the police may take no further action if there is insufficient evidence to warrant prosecution. Otherwise, the police proceeds to decide whether to commence judicial proceedings or to handle the case informally with police extrajudicial measures. Figure 2 contains a flowchart which outlines the process of handling a young juvenile under Canada's juvenile justice system. 11.3 According to YCJA, police officers are required to consider extrajudicial measures before starting any judicial proceedings against a juvenile alleged to have committed an offence. Furthermore, YCJA creates a presumption that the police and prosecutors should not lay charges on youths who have no prior record of offending and are only involved in non-violent offences. YCJA also stipulates that extrajudicial measures may be appropriate for some youths with prior records of offending, depending on the nature of the offences, the previous records and the circumstances of the youths committing the offences.

21 An adult relative, or any other appropriate adult, is acceptable in the absence of the parents of the

juvenile.




No further action due to insufficient evidence

Action required

Police discretionExtrajudicial

measures

Police warning/caution

Referral to community-based

programmes

Pre-charge sanctions programmes

Cases not appropriate for Youth

Justice Court

Caution or referral to post-charge

extrajudicial sanctions programmes

Charge dismissed

Figure 2 - Operation of the juvenile justice system in Canada

Failing to complete the programmes

Completing the programmes successfully

Plea

Sentencing

Guilty

Prosecution

Judicial appearance/hearing

Guilty Not guilty

Trial in Youth Justice Court

Verdict Acquittal

Conference to provide advice on sentencing

Charge laid

Crown prosecutor

Completing the programmes successfully

Failing to complete the programmes

Charge dismissed

Discharge Fine,

compensation restitution, etc.

Community-based

sentences




Extrajudicial measures 11.4 The concept of "extrajudicial measures" is defined in section 2 of YCJA as "measures other than judicial proceedings … used to deal with a young person alleged to have committed an offence". Extrajudicial measures range from police warning/caution to referral to community-based programmes (e.g. counselling) for minor offences. For more serious offences, the police may refer the juveniles involved to formal extrajudicial sanctions programmes. The programme22 involves an agreement signed between a young offender and the programme administrator (e.g. a social worker or a probation officer) wherein the juvenile consents to accept responsibility for his/her criminal offence and to undertake measures to make up for the offence. 11.5 The remedial measures specified in the agreement may include written or verbal apology to the victim, restitution, compensation, charitable donation, educational programmes, and/or community service work. The agreement is closely monitored by the programme administrator. If the agreement is completed successfully, the case is closed and the charge against the juvenile will be dismissed. Should the juvenile fail to complete the agreement, there will be another meeting between him/her and the programme administrator to discuss the reasons for non-completion of the agreement. If the non-completion is substantial and wilful, the programme administrator may refer the juvenile to the prosecutor, who may bring the case to court. Legal rights of youths in extrajudicial sanctions programmes 11.6 An extrajudicial sanctions programme spares a juvenile and his/her parents from going through the more formal, adversarial court procedure. The parents may also encourage their child to choose an extrajudicial sanctions programme, since they will save the expense of having a lawyer and the time to attend the court. As a result, there may be considerable pressure on a youth to participate in an extrajudicial sanctions programme, even though he/she is not guilty of any offence. 11.7 As such, YCJA has provisions that are intended to minimize the risk of extrajudicial sanctions programmes being abused. It is stipulated that the juvenile involved must be advised of the right to legal representation and given a reasonable opportunity to consult a counsel before participating in an extrajudicial sanctions programme. Furthermore, the juvenile must agree to the specific extrajudicial sanction that is developed for him/her. If the juvenile objects that the plan is too onerous and the appropriateness of the sanction is not resolved by discussion, then the case must be referred to the Youth Justice Court.

22 Extrajudicial sanctions programmes correspond to the "alternative measures" under YOA.



Legal representation 11.8 Section 10 of the Canadian Charter of Rights and Freedoms guarantees to every person who is arrested or detained the right "to retain and instruct counsel without delay and to be informed of that right." YCJA expands upon this basic guarantee by specifying a juvenile's right to retain and instruct counsel, and to do so personally at any stage of the proceedings against him/her. 11.9 Against such a background, a juvenile should be advised of his/her right to be represented by counsel upon arrest or detention by the police. The police is also required to take steps to facilitate contact between the juvenile and counsel. For example, the police should offer the juvenile access to a telephone and a list of lawyers paid by legal aid to provide advice to those detained or arrested by the police. Bail/detention 11.10 A youth who is arrested and charged for relatively minor offence is normally released by the police pending hearing. The police may release the youth with a document requiring him/her to appear in the Youth Justice Court on a specified date. For the less serious cases, a youth may be given an appearance notice which simply requires him/her to appear in court on the specified date. If the police releases the youth on a recognizance or a promise to appear, there may be conditions attached, such as posting of a surety or abstaining from communicating with potential witnesses or the complainant. 11.11 For those youths charged with more serious offences, with long records of convictions or very likely not appearing for trial, they may be detained in a custody facility. If the police decide that a youth should be detained, he/she should be brought to court within 24 hours or, if a judge is not available within that time, as soon as possible thereafter. 11.12 At the bail hearing, the court may decide to release the juvenile if it is satisfied that a responsible person is willing to assume responsibility and control of the juvenile. The juvenile may also be released if a responsible person agrees to forfeit money or some security if the juvenile violates the conditions of release. If the judge decides that the juvenile should be detained prior to trial, YCJA requires that he/she should be detained separately from adults, unless no youth facility is available or it would be unsafe to do so.



Prosecution 11.13 Once an accused person is charged by the police, responsibility for prosecution is passed to the Crown prosecutor. YCJA allows provincial governments to establish pre-charge screening programmes to have prosecutors screen juvenile cases before charges are made. In appropriate cases 23 , the prosecutors may drop the charges and follow up by referring the young offenders to extrajudicial sanctions programmes. If they successfully complete the programmes, the charges against them will be dismissed. 11.14 Alternatively, the prosecutors may decide to personally caution the young offenders or to send them caution letters. Section 8 of YCJA provides for provincial governments to implement programmes with prosecutors administering the cautions to the young offenders instead of starting or continuing the judicial proceedings. 11.15 Before the implementation of pre-charge screening programmes under YCJA, prosecutors had the authority to discontinue the cases if necessary. These pre-charge screening programmes provide prosecutors with a formal screening role of considering diversionary measures where appropriate when dealing with juvenile cases. 12. Court procedures Plea 12.1 The trial proceedings begin with the accused being called upon to plead guilty or not guilty after reading his/her charge. If a juvenile enters a guilty plea, the Crown prosecutor will read a summary of evidence against the juvenile. The defence lawyer or the juvenile himself/herself, if unrepresented, will be asked if he/she agrees with the facts alleged by the prosecutor. If there is substantial disagreement about a significant fact that is material to the offence, it may be necessary to have a trial; typically, minor disagreements are resolved by the prosecutor amending the statement of the facts.

23 The Crown prosecutor may request a report prepared by a probation officer to assist him/her in

deciding whether a youth is suitable for an extrajudicial sanctions programme.



12.2 YCJA imposes an obligation on the Youth Justice Court judge, before accepting a plea from an unrepresented youth, to explain to the young person that he/she can plead guilty or not guilty and has the right to legal presentation. The court must also be satisfied that an unrepresented youth understands the charge. If the charge is very serious and the unrepresented youth faces the possibility of an adult sentence, the court must ensure that the youth understands the consequences of the proceedings and his/her choice of mode of trial. If the judge is not satisfied that an unrepresented youth understands the charge or the consequences of an adult sentence, the judge is obliged to enter a plea of not guilty for the youth and direct that he/she be represented by counsel. Hearing 12.3 If a plea of not guilty is entered, there will be an adjournment and a date set for trial. At the hearing, the Crown prosecutor calls witnesses to establish the case, and each witness is subject to cross-examination by the defence lawyer. At the conclusion of the evidence for the prosecution, the defence calls any witnesses it wishes to adduce evidence and those witnesses are in turn cross-examined by the Crown prosecutor. After all the witnesses have testified, the Crown prosecutor and the defence lawyer address the court with respect to the evidence and the suggested outcome. The judge then renders the verdict. 12.4 If the verdict is "not guilty", the court will release the youth. While an acquittal ends the case, the Youth Justice Court judge still has the jurisdiction at this point to make a referral under YCJA to a child welfare agency for assessment whether the youth is in need of the agency's services. 12.5 If, after hearing all the evidence and submissions, the judge is satisfied beyond reasonable doubt that all elements of the offence charged have been proven, the judge will make a finding of guilt and the case proceeds to sentencing under YCJA. Legal representation 12.6 There are four types of representation available to young offenders: privately retained lawyers, legal aid lawyers, duty counsels or court-appointed lawyers. 12.7 The Youth Justice Court judge will advise the juvenile of his/her right to counsel, unless he/she has already been represented. YCJA provides that, if a youth is unable to obtain counsel at any stage of the proceedings, the court shall direct that counsel is to be provided. As such, the court will provide the juvenile with a lawyer if he/she is unable to retain the services of a private lawyer or a legal aid lawyer. Furthermore, the court is also responsible for ensuring that a juvenile is represented by counsel independent of his/her parents, where it appears that there is a conflict of interests between the parents and the juvenile or that this would be in the best interests of the juvenile.



`Parents/guardians' involvement 12.8 YCJA requires the involvement of parents, guardians or other persons taking care of the juvenile in the court proceedings. If the presence of parents/guardians in the Youth Justice Court is considered necessary or in the young person's best interests, the court may order such attendance at any stage of the proceedings. A parent/guardian who fails to attend as required by the Youth Justice Court, without lawful excuse, is liable to be summarily convicted and punished for contempt. Protection of privacy 12.9 YCJA contains a number of provisions intended to protect the privacy of young persons involved in the juvenile justice system. These provisions aim to reduce the stigmatization of young offenders and the ensuing risk of offending. Reporting restriction 12.10 YCJA prohibits the publication of any report in which the name or identity of the young persons involved in the justice system is disclosed. A breach of the reporting restrictions may be punishable by a fine of up to C$2,000. However, it allows the publication of identifying information under some circumstances, such as:

(a) the young person is dangerous and the publication of the name, photo or other identifying information will assist in apprehension;

(b) an adult sentence is imposed; (c) the young person is convicted of a presumptive offence; or (d) the publication of identifying information will not be contrary to the

young person's best interests or the public interest. Access to Youth Justice Court hearing 12.11 Youth court hearings are open to the public to ensure public scrutiny and monitoring of the court system. However, a judge has the authority to exclude any or all members of the public, other than the accused youth and his/her parent, from all or part of the proceedings if it is in the interest of public moral, the maintenance of order, the proper administration of justice, or when any evidence/information presented to the court would be seriously injurious or prejudicial to any young person or child present.



13. Sentencing 13.1 Before imposing a sentence on a young person pleading guilty or found guilty after hearing the evidence, the Youth Justice Court judge is required to consider (i) any representations made by the prosecution or defence lawyer, (ii) any representations made by the parents of the young person, (iii) any other relevant information laid before the court, (iv) conference recommendations, and (v) pre-sentence report. Conference 13.2 Section 41 of YCJA provides that after the finding of guilt, a Youth Justice Court judge may directly convene a family group conference to advise the court on an appropriate sentence. Alternatively, the judge may refer the case to another person so that a conference can be convened to make recommendations about an appropriate sentence that will be communicated to the court. 13.3 The judge may specify the persons to attend the conference or delegate this responsibility to a police officer, a probation officer or a community member. Although not explicitly stated in YCJA, it is expected that a conference will typically include the young offender, his/her parents, members of the community, and where appropriate, the victim. The community members may be professionals such as teachers or social workers who are familiar with the youth matters. 13.4 Section 41 of YCJA also makes clear that the recommendations of a conference are not binding on the Youth Justice Court. In practice, judges are likely to follow the recommendations of a conference since they represent the consensus of those parties involved in the offence. Pre-sentence report 13.5 Before a youth is sentenced, a Youth Justice Court judge is obliged to order a pre-sentence report. Pre-sentence reports are usually prepared by professionals employed by the government, such as probation officers or youth workers. 13.6 A pre-sentence report provides a summary of the youth's family background, school record, history of offending and involvement in the justice system, attitude to the offence as well as any plans that the youth has for changing his/her conduct. The report also includes the youth's record of prior participation in an extrajudicial sanctions programme. A pre-sentence report may also include any recommendations considered appropriate for the youth, including the sentence or a range of sentences to be imposed for the offence.



13.7 In more serious cases, or cases where there is a particular concern about a young person, the court may order a psychiatric, medical or psychological assessment to assist it in arriving at an appropriate sentence. Sentencing principles 13.8 YCJA sets out a more explicit set of sentencing principles and guidelines than those specified in YOA. In particular, YCJA stipulates that a fundamental principle of sentencing is to hold a young person accountable and to impose meaningful consequences for the offence. The consequences must be proportional to the seriousness of the offence, and not greater than those imposed on an adult who has been convicted of the same offence committed in similar circumstances. In determining a sentencing option, the court is also required to look beyond the offence and consider the youth's intention, the degree of involvement in the offence and the degree of harm caused by the offence. 13.9 Within the limits of accountability and proportionality, the measures taken against young persons who have committed offences should:

(a) reinforce respect for social values; (b) encourage the repair of harm done to the victims and the community; (c) be meaningful for individual young persons, given their needs and

levels of development; (d) where appropriate, involve the parents, the community and social or

other agencies in the young persons' rehabilitation and reintegration; (e) respect gender, ethnic, cultural and linguistic differences; and (f) respond to the needs of those young persons with special

requirements. These considerations are reflected in the statutory requirement for a Youth Justice Court judge to consider convening a family group conference to decide on the most appropriate sentence for a young offender. 13.10 As to the sentencing options, YCJA clearly reflects a strong preference for non-custodial sentences wherever possible. The preamble to YCJA states that the juvenile justice system should restrict custody primarily to violent offenders or serious repeat offenders, and reduce the over-reliance on incarceration for non-violent offenders. If the court decides to impose custody, it must justify its decision by including an explanation of why a non-custodial sentence is not adequate to hold the young person accountable.



13.11 Furthermore, any sentence must be the least restrictive sentence which is capable of achieving the objectives of accountability and rehabilitation. Concerns about the rehabilitation of young offenders are addressed through restricted use of custody and the imposition of more community-based sentences. Sentencing options 13.12 Compared with YOA, YCJA has introduced five new sentencing options, namely reprimand, intensive support and supervision programme order, attendance order, deferred custody and supervision order, and intensive rehabilitative custody and supervision order. The introduction of these new sentences is to reflect the principles of increased use of diversionary measures and community-based sanctions in the sentencing of young offenders. 13.13 Unless the Youth Justice Court orders a young offender to be subject to an adult sentence, YCJA allows the court to impose one, or a combination, of the following sentences: Non-custodial sentences (a) Absolute discharge 13.14 The court may issue an absolute discharge that sets a young offender free with no penalty even though he/she has pleaded or been found guilty. However, the decision is kept in record. An absolute discharge is usually reserved for minor offences committed by a first-time young offender. (b) Conditional discharge 13.15 A youth found guilty of an offence can be discharged under orders from the judge to obey certain conditions for a specific time period. These conditions may include supervision by a social worker, doing community service work or undergoing counselling. If the offender complies with the conditions, he/she will not have any criminal conviction. Although the offender avoids the imposition of a criminal conviction, a record is still kept of the conditional discharge. (c) Reprimand 13.16 A reprimand is a formal rebuke by the judge in court. It is essentially a stern scolding or lecture from the judge and may be most appropriate in minor cases where the experience of being apprehended, taken through the court process and reprimanded appears to be sufficient to hold a young person accountable for the offence.



(d) Fine 13.17 A youth may be imposed a fine of not exceeding C$1,000 to be paid at such time and on such terms as the court may think fit. (e) Compensation orders 13.18 The court may order a young person to compensate another person for loss, damage or injury, by paying an amount of money determined by the court. The court must consider the youth's ability to pay and has discretion in fixing the time and terms for payment. (f) Restitution orders 13.19 The court may order restitution of property to the person owning it at the time of the offence. (g) Reimbursement of innocent purchaser 13.20 If the court has ordered restitution of property to its owner, it may also order the reimbursement of an innocent purchaser of that property. (h) Personal service orders 13.21 The court may order the young person to compensate a person by way of personal service to the victim for loss, damage or injury suffered. (i) Prohibition orders 13.22 The court may impose on the young person an order of prohibition, seizure or forfeiture that is authorized under federal legislation. (j) Community service orders 13.23 The court may order a youth to work a specified number of hours for the community. The work must not exceed 240 hours and must be completed within 12 months.



(k) Probation orders 13.24 A young person may be placed on probation with conditions for a period of up to two years. The potential range of conditions is very broad. The conditions range from requiring the young person to attend school or reside with parents to "any other conditions" that the court considers appropriate. (l) Intensive support and supervision programme orders 13.25 The court may order the young person to participate in a community-based programme of intensive community supervision and support, aiming at providing closer monitoring and more support than probation. (m) Attendance orders 13.26 The court may order a young person to attend a particular facility that offers some forms of rehabilitative or counselling programme at specified times (e.g. after school) for a maximum of 240 hours over a six-month period. This community-based non-residential programme aims at providing an alternative to a custodial sentence. Custodial sentences (a) Custody and supervision orders 13.27 The maximum sentence of the custody and supervision order for most offences is two or three years, depending on the offence. The two-year maximum applies to all offences except offences for which an adult would be liable to life imprisonment. These latter offences, other than murder, can result in a maximum sentence of three years. Under the custody and supervision order, the young person is ordered to spend two-thirds of the period in custody, and one-third in the community under conditions. 13.28 The maximum sentence of the custody and supervision order for the offences of attempted murder, manslaughter, and aggravated sexual assault is three years. However, the period of conditional supervision for these offences is set by the court and, therefore, is not necessarily one half the length of the custody period as described in the previous paragraph. This provision gives the court added flexibility to tailor sentences imposed for particularly serious offences.



13.29 For a youth convicted of first degree murder, the maximum sentence is 10 years of custody and conditional supervision in the community, with the initial sentence not more than six years in custody and the balance under supervision in the community. For second degree murders, youths are liable for sentences of custody and supervision of up to seven years, with the initial sentence of up to four years in custody, followed by conditional supervision in the community. (b) Deferred custody and supervision orders 13.30 If a young person is found guilty of an offence which is not a seriously violent one, the court may impose the deferred custody and supervision order for a specified period of not exceeding six months. During the period, the young person continues to reside in the community subject to conditions, and any breach of a condition can result in serving the balance of the sentence in custody. (c) Intensive rehabilitative custody and supervision orders 13.31 Under the intensive rehabilitative custody and supervision order, an offender who has mental health problem may be detained for treatment in a psychiatric hospital or other treatment facility. The order may be made if a youth is convicted of murder, attempted murder, manslaughter, aggravated sexual assault or a third "serious violent offence"24. The maximum length of the order is the same as that for the ordinary custody and supervision orders. (d) Any other reasonable and ancillary conditions 13.32 The court can impose any other reasonable and ancillary conditions on a young person that the court considers advisable and in the best interests of the young person and the public. Appeals 13.33 YCJA grants youths the same rights of appeal as those applicable to adults. If an offence is summary25, or a hybrid one26 for which the Crown prosecutor has made no election, there is a right of appeal from a final adjudication or sentence of a Youth Justice Court to a judge of the Superior Court, and then to the Provincial Court of Appeal.

24 A young person is convicted of a third serious violent offence if he/she is found guilty of a serious

violent offence for which an adult is liable to imprisonment for a term of more than two years, and has previously been convicted twice of a serious violent offence.

25 A defendant charged with summary offences must be tried by a summary process without a jury. 26 Many offences, such as sexual assault, are hybrid and can be tried either as summary offences or

indictable offences.



13.34 If the offence is indictable, or hybrid where the Crown prosecutor has elected to treat it as indictable, the appeal is directly to the Provincial Court of Appeal. There is the possibility of appeal to the Supreme Court of Canada from the decision of Provincial Court of Appeal in regard to Youth Justice Court proceedings but only with permission of the Supreme Court. 13.35 In addition, the decision on whether to impose an adult sentence may be subject to an appeal, which could be made to the Provincial Court of Appeal, with the possibility of a further appeal to the Supreme Court of Canada. 14. Court environment 14.1 At the provincial court, there is no "dock" for the defendant. The defendant usually sits in front of the short standing rail of the court. The parents of the defendants normally sit in the seating area available to the general public and sometimes they may be able to sit close to the defendant. In some cases, the judge will allow the defendant to sit in the seating area with the parents. 14.2 The Youth Justice Court judge sits on a raised bench as in adult court. See Appendix II for a photograph featuring the general setting of a Youth Court in Canada. Separation of the juvenile from adult defendants 14.3 There is no legal requirement that there should be separate courtrooms for Youth Court purposes. In practice, there are separate courtrooms in urban areas, albeit without separate entrances and waiting areas to separate juvenile defendants from adult defendants in their attendance at courts. Nevertheless, where juvenile defendants are held in confinement awaiting trial or after court, they are confined separately from adult defendants. 14.4 In rural areas where there are a smaller number of juvenile cases, the same courtroom is used for both juvenile and adult cases. Nevertheless, adult and juvenile cases will generally be scheduled for hearings at different times or days to reduce the possibilities for juvenile defendants to be mingled with adult defendants in such places as court waiting rooms.



Part 4 - New Zealand 15. Overview of the juvenile justice system Legislation 15.1 New Zealand enacted the Children, Young Persons and Their Families Act (CYPFA) in 1989, which has introduced new principles and procedures for handling young people who offend against the law. In particular, CYPFA provides for a jurisdiction separation between juveniles in need of care and protection and those who offend against the law. This arrangement intends to address the blurring of processes and principles between care and protection and youth justice which characterised the previous legislation - the Children and Young Persons Act 1974. 15.2 In addition, CYPFA emphasizes diversion from courts and custody as well as responses aiming at providing for the rehabilitation and reintegration of young offenders, supporting for their families, and taking into account the needs of victims. For diversionary responses, the legislation has created a new statutory measure, the family group conference, which involves the offender, his/her family, the victim, a social worker and other relevant persons to determine the most suitable way to deal with the offence. Structure of the criminal courts 15.3 The criminal courts in New Zealand comprise a pyramid, at the wide base of which lie District Courts. District Courts are not only the court of summary jurisdiction, but also handle the majority of cases which proceed to jury trial. Youth Courts, a division of District Courts, have jurisdiction over children or young people who commit crimes. 15.4 High Courts, at the centre of the pyramid, decide the more serious and complex criminal cases, which lie beyond the power of District Courts. In High Courts, the judges also hear appeals from District Courts. Above High Courts is the Court of Appeal which hears appeals against convictions and sentences made by District Courts or High Courts. 15.5 At the apex of the pyramid is the Judicial Committee of the Privy Council, the ultimate court of final appeal which sits in London of the UK. The Privy Council rarely exercises its discretionary power to grant an appeal against a decision of the Court of Appeal in criminal cases. Hence, the Court of Appeal is effectively the court of final appeal in New Zealand.



Youth Court 15.6 The minimum age of criminal responsibility in New Zealand is 10. However, young offenders under the age of 14 cannot be prosecuted except for offences of murder and manslaughter, and they will instead be handled under care and protection legislation. Hence, the Youth Court adjudicates alleged criminal offences, except murder and manslaughter, committed by youths aged 14-16 only. It also deals with specific matters such as determining whether the young persons should be held in secure care or custody, or be released into the community after being arrested by the police. 15.7 The Youth Court also hears cases related to contempt of court and juveniles failing to comply with community-based sentences imposed by the court. In addition, the Court has jurisdiction over the offences which may be committed by parties (other than young offenders) involved in the juvenile justice system. Indeed, CYPFA has set out legal provisions governing the conduct of the police, the press, parents/guardians and other parties related to young offenders. For example, it is an offence for unauthorized disclosure or publication of information about the juveniles concerned in the court proceedings. Transfer to other courts 15.8 Any juveniles aged 10 or above who have allegedly committed the offence of murder or manslaughter will be automatically transferred from the Youth Court to the High Court for trial. For other serious offences (indictable offences27), if the Youth Court judge decides at the preliminary hearing a juvenile has a case to answer, he/she may give the juvenile the opportunity to forego the trial by jury and to have the case heard and determined in the Youth Court. If the judge does not offer the juvenile that option, or if the juvenile decides not to stay in the Youth Court, the case will move to the District Court or the High Court. 15.9 The Youth Court may decline to make any order, and, having entered a conviction against the young person, direct that the young person appears before the District Court "for sentence or decision". Such a provision applies to a young person aged 15-16 who has committed a serious crime or continued to offend against the law. 15.10 Where a charge is laid against a juvenile for an offence committed jointly with an adult, the case will first be heard in the Youth Court. The Youth Court will decide whether the trial should be conducted in the Youth Court or the adult court.

27 Indictable offences have to be heard before a judge and a jury either in the District Court or the

High Court. Indictable offences include rape, murder, arson, and supply of Class "A" drugs, and the conviction of these offences will result in severe punishment.



Constitution of the Youth Court 15.11 As a division of the District Court, the Youth Court is presided over by a District Court judge. The Governor-General28 is responsible for the appointment of the Principal Youth Court Judge among the existing District Court judges. The Chief District Court Judge, on the recommendation of the Principal Youth Court Judge, will designate a sufficient number of District Court judges as Youth Court judges. According to CYPFA, a Youth Court judge must have the suitable training, experience and personality, as well as an understanding of and sympathy for the perspectives of different cultures. 15.12 In New Zealand, new judges are provided with a general orientation programme which touches on their specialist jurisdictions. There is also a mentorship programme under which Youth Court judges have mentors in the early stages of their judicial career. Additionally, the New Zealand Institute of Judicial Studies runs special courses for Youth Court judges each year. 16. Informal responses to juvenile offences 16.1 The intention underlying New Zealand's juvenile justice system is to encourage the police to adopt informal responses to young offenders whenever possible. Minor and first-time offenders are normally diverted from prosecution by means of a street warning. Where further action is required, the police refers the juvenile to its internal Youth Aid Section for follow-up which involves, for example, a warning in the presence of the parents. The Youth Aid Section may also require the juvenile to make an apology to the victim, or impose other sanctions. When the offence is considered too serious or persistent to be dealt with by warning or other informal police sanctions, the Youth Aid Section may refer the juvenile to a Youth Justice Co-ordinator for a family group conference. Figure 3 contains a flowchart which outlines the process of handling a youth under New Zealand's juvenile justice system.

28 In New Zealand, the formal head of state is Queen Elizabeth II, who is represented by a New

Zealander as the Governor-General.



Figure 3 - Operation of the juvenile justice system in New Zealand


Arrest No arrest

Warning or other informal sanctions

Release

Referral to Youth Justice Co-ordinator

Family group conference to make recommendations and/or prepare plan

No agreement on recommendations/plan or prosecution required

Recommendations/ plan made

Prosecution Non-completion of recommendations/

plan

Charge laid

Judicial appearance/hearing

Guilt denied

Guilt admitted

Hearing in Youth Court

Verdict Acquittal

Sentencing

Guilty

Evidence found No evidence found

Referral to Youth Aid Section Release

Family group conference to

provide advice on sentencing

Completion of recommendations/

plan

Charge dismissed

Discharge Fines, admonishment compensation, etc.

Community-based sentences




Family group conference 16.2 The function of family group conferencing is to arrive at an outcome related to a young person's offence that is satisfactory to all the parties present at the conference. The participants normally include the young offender in respect of whom the conference is held, his/her family, the Youth Justice Co-ordinator, a member of the police (usually from the Youth Aid Section), the victim, a lawyer and a social worker. Youth Justice Co-ordinators act as facilitators of family group conferences, and they are recruited by the Department of Child, Youth and Family Services from people of various backgrounds, including social workers and probation officers. 16.3 If the family group conference cannot agree on what should be done, or if it believes that the juvenile should be handled formally, the case will be reverted to the Youth Aid Section for court proceedings. Otherwise, the family group conference will make recommendations and/or formulate a plan related to the juvenile, including the appropriate penalty to be imposed for his/her offence. The possible penalties include a written or verbal apology, community work, work undertaken for the victim and the community, and/or donation to charity. If the juvenile fulfils what has been agreed upon at the family group conference, the charge against him/her will be dismissed. Should the juvenile act to the contrary, there will be another conference to consider reverting his/her case to the prosecutor for court proceedings. 17. Procedures after arrest of a young offender Interview 17.1 Instead of handling juvenile cases informally, the police may choose arresting the young offender as the first step. Nevertheless, CYPFA stipulates strict conditions under which the police can arrest a youth and lay charges against him/her. The most important condition is that the arrest should be the last resort, when there is reasonable cause to believe that a purely indictable offence has been committed or when the "public interest" requires the arrest. Officers who make the arrest are required to furnish a written report within three days of the arrest, which serves as a safeguard against any abuse of the power to arrest. 17.2 After the arrest, a juvenile is under no obligation to make any statement at the police station. Should the juvenile decide to do so, he/she is entitled to consult a lawyer and to have a parent or other nominated adult present.



Bail/detention 17.3 CYPFA stipulates that a juvenile who is arrested by the police be released outright, released on bail or remanded into the custody of a parent, a guardian or an approved organization. Alternatively, the juvenile may be detained in the custody of the police or the Chief Executive of the Department of Child, Youth and Family Services, and he/she must be brought before a Youth Court as soon as practicable. 17.4 At the bail hearing, the Youth Court may release the juvenile on bail with conditions imposed or order him/her to be delivered into the custody of a parent, a guardian or any person approved by a social worker. Alternatively, the court may order the juvenile to remain in the custody of the Chief Executive of the Department of Child, Young and Family Services if he/she is likely to abscond or commit further offence. In exceptional circumstances where the juvenile is likely to be violent or to abscond, and where there is no suitable social welfare facility, he/she may be kept in police custody. Legal representation 17.5 CYPFA prescribes for a juvenile to be advised of the right to consult and communicate privately with a lawyer upon his/her arrest or detention by the police. At the police station, the juvenile will be given a list of the names and telephone numbers of the lawyers who provide free legal advice to persons detained or arrested by the police. 18. Court procedures Admitting/denying the charge 18.1 The court proceeding starts with the court reading out the charges to the young offender without requiring him/her to enter a plea. Instead, the juvenile will be asked whether he/she admits or denies each charge. Statutes require that the charges and nature of the proceedings be explained in a manner and in a language that can be understood by the juvenile. 18.2 If the charge is not denied, the judge will direct a Youth Justice Co-ordinator to convene a family group conference before sentencing. The family group conference has the responsibility for formulating a plan for the juvenile and/or making such recommendations as it sees fit. The court must have regard to the plan and/or recommendations when sentencing.



Hearing 18.3 If the charge is denied by the young offender, the judge will set a date for hearing in the Youth Court. At the hearing, the prosecutor introduces the case for the prosecution with a summary of the evidence and a brief introduction of the relevant legal matters. The prosecution then proceeds to call the prosecution witnesses, and each witness will be subject to cross-examination by the defence lawyer. The defence lawyer then calls his/her witnesses to assist the defence, and the witnesses will be cross-examined by the prosecutor. 18.4 After all witnesses have testified, there may be submissions or arguments by the prosecutor and the defence lawyer to summarize their respective positions and address any legal issues. The judge then renders the verdict. If the judge is satisfied beyond reasonable doubt that all elements of the offence charged have been proven, the judge will make a finding of guilt and the case proceeds to sentencing. Otherwise, the court will make a verdict of "not guilty" and release the juvenile. Legal representation 18.5 There are three types of representation available to young offenders: privately retained lawyers, duty solicitors or court-appointed lawyers. Legal aid is not available for Youth Court criminal proceedings, but the Court appoints a Youth Advocate, where necessary, to represent the juvenile free of charge. The Youth Advocate is a lawyer who advises the juvenile on legal issues and represents his/her interests in the court. Parents/guardians' involvement 18.6 CYPFA provides for a Youth Court judge to order the attendance of the parent, guardian or other person taking care of the juvenile at any stage of the proceedings. A parent who fails to attend as required by the Youth Court, without lawful excuse, is liable on summary conviction to a fine of not exceeding NZ$1,000. Protection of privacy 18.7 The privacy of the youths involved in the juvenile justice system is safeguarded by CYPFA, which contains provisions setting out the restrictions on the reporting of and access to the Youth Court hearing.



Reporting restrictions 18.8 No report which reveals the name or school of any juvenile concerned in the proceedings can be published; nor can a report contain any particulars likely to lead to the identification of any such juvenile. A breach of the reporting restrictions is punishable, on summary conviction, by a fine of not exceeding NZ$2,000 for an individual and NZ$10,000 for a corporate. Access to Youth Court hearing 18.9 The Youth Court is closed to the public to preserve the confidentiality of its proceedings. Only the following persons are entitled to be present at the Youth Court proceedings:

(a) officers of the court; (b) the young offender; (c) the informants and any person, including any barrister or solicitor,

conducting the proceedings against the youth; (d) the parents, guardians or other persons taking care of the youth; (e) a representative appointed by family group conferencing; (f) a lawyer or Youth Advocate representing the youth; (g) a Youth Justice Co-ordinator; (h) a social worker; (i) a lay advocate29; (j) witnesses; (k) accredited news media reporters; and (l) any other persons whom the judge permits to be present.

29 A lay advocate is a person (not a lawyer) appointed by the court to support a young person. The

lay advocate makes sure that the judge knows about the young person's culture and background, and looks after his/her interests and those of his/her family.



19. Sentencing 19.1 The procedures before sentencing are the same whether the young offender admits guilty or is found guilty after hearing the evidence. Court-referred family group conference 19.2 CYPFA stipulates that the court must order a family group conference and consider the outcome of that conference prior to sentencing. The court-referred family group conference is composed of the offender, his/her family, police officials, the Youth Justice Co-ordinator, the victim (or the victim's representative) and other relevant persons. The family group conference has the responsibility for making a plan and/or formulating recommendations in relation to the most appropriate sanction on the young offender. Pre-sentence report 19.3 CYPFA also requires the Youth Court to request and consider a written report from a social worker prior to making community-based orders, custodial measures or transfer to the adult court. The report should include the following information:

(a) the nature and circumstances of the offence committed by the juvenile;

(b) the juvenile's involvement in the offence; (c) details of the personal history, characteristics and social

circumstances of the juvenile relevant to the offence; (d) the attitude of the juvenile to the offence; (e) the response of the juvenile's family towards the offence and to the

juvenile as a result of the offence; (f) any previous offence by the juvenile which had been the subject of

court proceedings, and any penalty imposed or order made in relation to that offence, and the effect of that penalty or order on the juvenile; and



(g) any decision, recommendation or plan of the family group conference.

19.4 In more serious cases, or cases where there is a particular concern about a young person, the Youth Court judge may make an order for a psychiatric, medical or psychological report to assist the court in arriving at an appropriate sentence. Sentencing principles 19.5 The New Zealand juvenile justice system prescribes "accountability" as a fundamental principle of sentencing, under which young offenders should pay an appropriate penalty for their offences and make good the wrong they have done to others. The principle of accountability is achieved through family group conferencing, which is required by law to be convened to decide on the appropriate penalties for young offenders. 19.6 The statutory status of family group conferencing also enables the restorative justice principle to be incorporated into the New Zealand juvenile justice system. In particular, the conference aims at recognizing and seeking the participation of all parties involved in the offence to determine an appropriate response, reintegrating the offender, and restoring the balance within the community that has been affected by the offence. 19.7 Within the principle of accountability, CYPFA stipulates that criminal proceedings should not be used if there is an alternative means of dealing with the matter. As such, diversionary measures should be considered to handle offences which are minor in nature. If formal measures are required, sanctions should be the least restrictive and community-based sentences should be used where possible. Sentencing options 19.8 After considering the recommendations and/or plan of the family group conference, the Youth Court judge can impose one or more of the following measures: Non-custodial sentences (a) Absolute discharge 19.9 The court can order the discharge of a juvenile without further order or penalty.



(b) Admonishment 19.10 Admonishment is a severe reprimand from the judge against the juvenile. (c) Order to come before court if called upon 19.11 This order is sometimes referred to as a conditional discharge, which lasts for a maximum period of 12 months. A social worker or a member of the police may, while the order is in force, apply to the court for issuing a summons to a released juvenile to appear before the court. When the juvenile appears, the court may issue further orders if necessary after taking into account relevant factors since the release of the juvenile. (d) Fine 19.12 A fine can be imposed on a young person as if he/she were an adult appearing before a District Court30. However, the Youth Court cannot impose a fine unless it is satisfied that the young person has the capacity to pay the fine within a 12-month period. (e) Payment towards the cost of prosecution 19.13 The juvenile, or the parents or guardians for juveniles aged under 16, may be ordered to pay a sum towards the cost of prosecution. (f) Reparation orders 19.14 The juvenile, or the parents or guardians for juveniles aged under 16, may be ordered to pay reparation when the Youth Court is satisfied that any person (other than the juvenile) has suffered emotional harm, loss of or damage to property through/by means of the offence. 19.15 Where the reparation order is made in respect of loss of or damage to property, the payment is limited to the cost of replacement or repair. It does not include loss of a consequential nature. (g) Restitution orders 19.16 The juvenile, or the parents or guardians for juveniles aged under 16, may be ordered to pay restitution.

30 For summary offence, a District Court judge can impose a fine of up to NZ$10,000.



(h) Forfeiture of property orders 19.17 The court can order the forfeiture of property where forfeiture would be obligatory or could be ordered under any other Act as if the juvenile were an adult. (i) Supervision orders 19.18 The Youth Court may order the supervision of a juvenile by the Chief Executive of the Department of Child, Youth and Family Services or some other person or organization for a period not exceeding six months. The order also requires a social worker's report together with a plan outlining arrangements for the juvenile while under supervision. (j) Community work order 19.19 The court may, with the consent of the juvenile, order between 20 and 200 hours of supervised work in the interests of the community within a 12-month period. (k) Supervision-with-activity order 19.20 The court may, with the consent of the juvenile, require that he/she completes a three-month specified programme or activity. The judge may subsequently make a supervision order that lasts up to three months, beginning after the juvenile has finished the programme or activity of supervision with activity. 19.21 A supervision with activity order provides the court with an alternative to a custody sanction, and is designed to keep the young offender in the community to complete a specified programme or activity instead of supervision with residence. Custodial sentences (a) Supervision with residence order 19.22 Under a supervision with residence order, a juvenile has to live in a Department of Child, Youth and Family Services home for three months. If the juvenile behaves well during the custodial period, he/she may be released after two months. The court will make a supervision order and the period of supervision (up to six months) will follow immediately after the juvenile is released or the supervision with residence order expires.



Appeals 19.23 A juvenile can appeal to the High Court against a finding in the Youth Court or other related matters. A parent or other custodian can appeal against any order affecting the juvenile, such as an order placing the juvenile under supervision or requiring him/her to pay reparation or the cost of prosecution. In addition, a parent or other custodian has a right to apply to the High Court to review decisions relating to the continued detention of a juvenile in a secure care. 20. Court environment 20.1 In New Zealand, the setting of the Youth Court tends to be less formal than that of the adult court. The juvenile appears before the court is called by first name. The juvenile does not sit/stand in the "dock", and the place for him/her to stand or sit depends on the layout of different courtrooms. In Christchurch, the juvenile sits inside a witness box close to the judge. In Wellington, the juvenile sits or stands at the back of the courtroom and he/she is not too far away from the judge and other relevant people (such as his/her lawyer). See Appendix III for photographs featuring the general setting of a Youth Court in New Zealand. 20.2 A Youth Court judge sits on a slightly elevated bench. In addition, the Youth Court judge tries to ensure that family members sit close to the defendant where possible. In the Wellington Youth Court, the juvenile's family sits along the side of the courtroom behind the Youth Advocate. Separation of the juvenile from adult defendants 20.3 Section 331 of the CYPFA requires that, as far as practicable, the sittings of a Youth Court shall be so arranged that:

(a) persons attending are not brought into contact with persons in attendance at any other courts; and

(b) both the extent to which children and young persons are able to

associate within the court premises while awaiting hearing, and the extent to which parents are obliged to congregate in common waiting facilities pending the hearing of proceedings in which they are involved, are reduced to a minimum.



20.4 Against this background, large District Court buildings have separate courtrooms for hearing juvenile cases. These Youth Courts may have separate entrances and waiting areas. In small District Court buildings, the same courtroom may be used for hearing juvenile and adult cases. As such, an appointment system has been put in place in an attempt to prevent young people from associating with adult defendants at court.



Part 5 - Analysis 21.1 The operation of the overseas youth courts studied, together with that of Hong Kong's Juvenile Court31, are summarized in Tables 1-6 on pages 59-65. (See Appendix IV for a brief description of Hong Kong's juvenile justice system.) Based on the findings in this study, the following issues are highlighted for discussion:

(a) constitution of the youth court; (b) procedures after arrest of a young offender; (c) court procedures; (d) sentencing; and (e) court environment.

Constitution of the youth court 21.2 In the UK and New Zealand, there are legal provisions governing the assignment of magistrates/judges to sit in the youth courts. In the UK, Youth Courts (Constitution) Rule 1954 stipulates that the magistrates selected to sit in the youth court must be "especially qualified" for dealing with juvenile cases. In New Zealand, the Children, Young Persons and Their Families Act 1989 provides for the designation of District Court judges as youth court judges by virtue of their training, experience, personality, and understanding of and sympathy for the perspectives of different cultures. 21.3 The youth courts in Hong Kong are presided over by magistrates who are not required by legislation to have any particular background or experience in dealing with juvenile cases. The same applies to youth court judges in Canada.

31 In Hong Kong, the court for handling juvenile cases is known as the Juvenile Court, whereas it is

known as the Youth Justice Court in Canada. In both the UK and New Zealand, it is the Youth Court that hears juvenile cases. For simplicity of presentation, these courts are all referred to as youth courts throughout this section.



Procedures after arrest of a young offender 21.4 In Hong Kong, the procedures governing the interview, detention and bail of juveniles are similar to those in the overseas places studied. For example, a juvenile should only be interviewed in the presence of a parent, a guardian or other appropriate adult, and no statement should be made in the absence of such a person. After the interview, the police may take no further action and release the juvenile outright. Alternatively, the police may resort to diversionary measures (e.g. warning/caution) or laying charges against the juvenile. The juvenile charged will normally be granted bail unless under circumstances such as the charge being one of homicide or other grave crimes, or detention required to prevent absconding. Diversionary measures 21.5 In Hong Kong, a juvenile aged under 18 who commits an offence can be dealt with either by prosecution or by police caution under the Police Superintendent's Discretion Scheme. Under the Scheme, the young offender is interviewed by a police officer of at least the rank of superintendent and given a severe warning about the offence and the consequences of such conduct in future. The juvenile is subject to visits by police officers of the Juvenile Protection Section so as to reinforce the warning with continued police contact. 21.6 The police in the overseas places studied are also entrusted with the responsibility for deciding whether to handle juvenile cases informally or to initiate formal judicial proceedings. Apart from warning/caution, the police in the UK, Canada and New Zealand are provided with additional extrajudicial measures to keep young offenders out of the formal justice system. 21.7 In the UK, the police can refer a juvenile to participate in a rehabilitation programme after issuing a final warning. In Canada, a juvenile can be referred by the police to a formal extrajudicial sanctions programme. In New Zealand, a young offender can be referred to a family group conference. If the juvenile successfully completes the extrajudicial sanctions programme or the tasks agreed upon at the family group conference, the case will not proceed to court. Otherwise, his/her case will be referred back to the police/prosecutor for court proceedings. 21.8 In Canada, the Youth Criminal Justice Act provides for provincial governments to establish pre-charge screening programmes, under which the prosecutors are given a formal screening role to sift through juvenile cases before charges are made. In appropriate cases, the prosecutors may drop the charges and follow up by referring the young offenders to extrajudicial sanctions programmes. As such, the pre-charge screening programme allows for the considerations of diversionary measures when prosecutors deal with juvenile cases.



Court procedures Hearing 21.9 The procedures governing the hearing in Hong Kong's youth courts are similar to those in the overseas places studied. The major difference is that the juveniles brought before the youth courts in the UK and Canada enter a plea to the charges, while in Hong Kong and New Zealand, they are called upon to admit or deny the charges. Protection of privacy 21.10 In Hong Kong and the overseas places studied, the privacy of juveniles involved in the justice system is safeguarded by legislation intended to avoid harms being caused by undue publicity. For example, there are restrictions on the reporting of proceedings in the youth court, including the name, address, school and other identifying information of the juveniles concerned in the proceedings. Furthermore, the youth courts in all places except Canada have restrictions on the access to court hearings. Parents/guardians' involvement 21.11 The juvenile justice systems of Hong Kong and the overseas places studied all feature parents/guardians' involvement. The juveniles are accompanied by their parents or guardians during all stages of the proceedings, unless the court finds it necessary in the interests of the defendants to direct otherwise. Sentencing 21.12 Before sentencing a juvenile who has admitted the offence or the court is satisfied of his/her guilt, the youth courts in Hong Kong and the overseas places studied will first obtain background information on the juvenile. The information is usually provided by means of a pre-sentence report which aims at helping the court deal with the case in the best interests of the juvenile concerned. 21.13 Apart from the pre-sentence report, Canada and New Zealand allow the family group conference to play a central role in the sentencing of young offenders. In New Zealand, the youth court must order a family group conference if there has not been a denial of guilt or there has been a finding of guilt after trial. In Canada, after the finding of guilt, a youth court judge may direct a conference to be convened to advise the court about an appropriate sentence. The conference convened in either New Zealand or Canada typically includes the young offender, his/her parents, members of the community, and where appropriate, the victim.



21.14 In the UK, there is no statutory provision per se for family conferencing32. Nevertheless, the Youth Justice and Criminal Evidence Act 1999 provides for a youth court judge to pass a referral order on a young offender, which requires a conference to be convened in order to forge an agreement with the offender on a programme to prevent re-offending. The conference includes the offender, his/her family, youth offender panel members, and the victim of the offence. 21.15 In Hong Kong, the youth court magistrates may seek advice from the Young Offenders Assessment Panel (YOAP) to assist them in sentencing young offenders. YOAP consists of people of various disciplines from the Correctional Services Department and the Social Welfare Department, including correctional services officers, social workers, clinical psychologists and education officers. In general, YOAP perform its function similar to a family group conference in terms of making recommendations on the most appropriate method of handling the juvenile concerned. However, it does not involve the participation of the young offender, his/her family and/or other relevant parties in arriving at a consensus on the course of action recommended to the court. Sentencing options 21.16 In Hong Kong, there is a wide range of sentencing options available to the youth court. In general, young offenders who have been found guilty of more serious offences are handled with custodial sentences, such as reformatory schools, detention centres, or training centres. Those juveniles who have committed less serious offences are handled with non-custodial measures, such as unconditional/conditional discharges, probation orders, community service orders, fines or suspended sentences. 21.17 Hong Kong also adopts the community-based approach in its juvenile justice system, as evidenced by the use of probation and community service orders. The community-based approach refers to the use of non-custodial sentencing options to rehabilitate young offenders in their communities through non-secure residence, counselling services and/or other community services.

32 A national voluntary organization, the Family Rights Group, has taken up the role of organizing

and promoting family conferencing in the UK.



21.18 Hong Kong's youth courts have fewer community-based sentencing options, compared with those available to the youth courts in the UK, Canada and New Zealand. These overseas youth courts do not confine their community-based sentences to probation and community service orders. For instance, all custodial sentences in Canada comprise a portion served in custody and a portion served under supervision in the community. The UK has put in place a similar arrangement under which a young offender receiving custodial sentence must serve part of his/her sentence in the community under the supervision of a social worker. In New Zealand, a young offender may be ordered by the court to be placed under supervision in the community after serving his/her custodial sentence. Sentencing principles 21.19 In Hong Kong, section 11 of the Juvenile Offenders Ordinance restricts the imprisonment of juveniles as the last resort to be used only where the nature and seriousness of the offence make imprisonment necessary in the public interest, or where the offence merits imprisonment and all other methods of disposal have been excluded. 21.20 Compared with Hong Kong, the UK, Canada and New Zealand have a more comprehensive set of sentencing principles. Similar to Hong Kong, these overseas places stipulate custody for only serious offences. However, the UK also prescribes "proportionality" as a fundamental sentencing principle, while New Zealand emphasizes "accountability" in holding juveniles accountable for their offences. Canada prescribes both proportionality and accountability for the sentencing of young offenders. Within the limits of proportionality/accountability, the sentencing principles in the UK, Canada and New Zealand also give more consideration to the rehabilitation of young offenders, as exemplified by the wide availability of community-based sentences with potential effect of rehabilitation and reintegration of young offenders. 21.21 Furthermore, Canada, New Zealand and to a lesser extent, the UK, have all featured the principle of restorative justice in their sentencing options. In Canada and New Zealand, the principle of proportionality is achieved through family group conferencing in which the offender, his/her family and the victim are involved to decide on the most appropriate sentencing option for the offence. In the UK, the referral order serves to incorporate the elements of the restorative justice principle in the sentencing of young offenders.



Court environment 21.22 The setting of youth courts in Hong Kong and the overseas places studied tends to be less formal than that of adult courts. The youth court judge sits on the same level as the young offender, or on a very slightly raised bench. The juvenile is accompanied by his/her parents or guardians, who sit behind or alongside him/her during all stages of the proceedings. Furthermore, the juvenile charged does not sit or stand in the dock and the place for him/her to sit or stand depends on the courtroom layout. For example, in the UK, the juvenile sits in the well of the court and is positioned to allow eye contact with the magistrates sitting on the bench, without being so close as to allow intimidation in either direction. 21.23 The UK has moved ahead of Hong Kong, Canada and New Zealand to create a more relaxed court environment for young offenders, owing to measures introduced in the late 1990s to reform its juvenile justice system. The UK's youth courts nationwide are required to alter the physical layout of the courtroom as their resources allow, and the noteworthy changes are:

(a) the young defendant should sit in a place which permits easy informal

communication with legal representatives and others with whom he/she wants or needs to communicate;

(b) trial proceedings should be conducted according to a timetable which

takes full account of a young defendant's inability to concentrate for long periods. Frequent and regular breaks are often appropriate;

(c) robes and wigs should not be worn unless the young defendant asks

that they should or the court for good reasons orders that they should; (d) police and security officers should not wear uniforms where possible.

Issues to be considered 21.24 The study of the operation of youth courts in the UK, Canada and New Zealand provides useful references for Hong Kong. The issues listed below are some of the aspects which Members may wish to consider:

(a) Is there any need for youth court judges to be especially suitable for hearing juvenile cases?

(b) Should the police and/or prosecutor be provided with more

diversionary measures when handling young offenders?



(c) Should family group conferencing play a central role in the juvenile justice system, particularly in the sentencing of young offenders?

(d) Should the youth court be provided with a wider range of sentencing

options, including more community-based sentences with the potential effect of rehabilitation and reintegration of young offenders?

(e) Is there any need to have a more comprehensive set of sentencing

principles to facilitate the consideration of youth court judges in making an appropriate sentence?

(f) Should the courtroom environment be changed to provide a more

open and approachable atmosphere?



Table 1 - Operation of youth courts: overview of the juvenile justice system

The United Kingdom Canada New Zealand Hong Kong

Separate court to handle juvenile cases

! Yes, the Youth Court ! Yes, the Youth Justice Court

! Yes, the Youth Court ! Yes, the Juvenile Court

Jurisdiction of youth court ! Hearing of charges against juveniles aged 10-17

! Hearing of charges against juveniles aged 12-17

! Hearing of charges against juveniles aged 14-16

! Hearing of charges against juveniles aged 10-15#

Transfer of juveniles to adult court for trial

! Yes, for offences such as homicide, grave crimes, and those crimes jointly charged with an adult

! No, juveniles are required to be tried in youth court*

! Yes, for offences such as murder, manslaughter and those crimes jointly charged with an adult

! Yes, for offences such as homicide and those crimes jointly charged with an adult

Constitution of youth court ! Presided over by a bench of three lay magistrates or a district judge

! Presided over by a Provincial Court judge or a Superior Court judge if necessary

! Presided over by a District Court judge

! Presided over by a permanent magistrate appointed by the Chief Justice

Statutory requirement governing appointment of youth court judges

! Yes ! Judges must be especially

qualified for handling juvenile cases

! Nil ! Yes ! Judges must have the

suitable training, experience and personality, as well as an understanding of different cultures

! Nil

Note: (#) After the Juvenile Offenders (Amendment) Bill 2003 comes into force, the minimum age of criminal responsibility will be raised from 7 to 10. (*) According to the Provincial Court of Newfoundland and Labrador in Canada, it is a general rule for youths who commit offences jointly with adults to be tried

separately in Youth Justice Court. There may be exigent circumstances wherein a particular case may be ordered by the court to be tried jointly in the adult court.



Table 2 - Operation of youth courts: procedures after arrest of a juvenile offender


Interview of juvenile with the presence of counsel, parent, and/or appropriate adult

! Yes ! Yes ! Yes ! Yes

Right to be granted bail unless court directs otherwise


Availability of diversionary measures from police

! Reprimand ! Final warning and the

ensuing referral to participate in a rehabilitation programme

! Caution ! Warning ! Referral to a

community-based programme

! Referral to an extrajudicial sanctions programme. Prosecution will ensue if the juvenile fails the programme

! Caution ! Warning ! Referral to a family

group conference. Prosecution will ensue if the juvenile fails to complete the tasks agreed upon at the conference

! Caution

Availability of diversionary measures from prosecutor

! Nil ! Yes ! Pre-charge screening

programmes: prosecutors screen out juveniles from prosecution where appropriate and refer them to participate in extrajudicial sanctions programmes

! Nil ! Nil



Table 3 - Operation of youth courts: court procedures


Following conventional hearing process


Legal representation ! Availability of legal aid lawyer. Some court orders cannot be imposed on a legally unrepresented juvenile, and legal aid must be granted in those cases

! Availability of legal assistance from duty solicitor

! Availability of legal aid lawyer

! Availability of legal assistance from duty counsel

! The court will, where necessary, provide a lawyer to the juvenile if he/she is unable to obtain the services of a private lawyer or a legal aid lawyer

! Legal aid lawyer is not available. However, the court will, where necessary, appoint a Youth Advocate to represent the juvenile free of charge

! Availability of legal assistance from duty solicitor

! Availability of legal aid lawyer

! Availability of legal assistance from the Duty Lawyer Service

Parent/guardian required to attend court proceeding


Statutory allowance for the presence of social worker at court proceedings

! Nil ! Nil ! Yes ! Nil

Protection of defendant's privacy

! Restriction on reporting ! Restriction on public

access to court proceedings

! Restriction on reporting ! Court proceedings are

open to public







Table 4 - Operation of youth courts: sentencing


Court obtaining pre-sentence report before sentencing


Other procedure before sentencing

! Nil ! Family group conference may be convened to decide on the most appropriate sentence

! Family group conference must be convened to decide on the most appropriate sentence

! Seeking advice from Youth Offenders Assessment Panel

Statutory sentencing principles

! Proportionality ! Taking the welfare of

juveniles into consideration when sentencing

! Preventing re-offending of juveniles through community-based sentences

! Proportionality and accountability

! Custody reserved for serious offences

! Preference for non-custodial sentences

! Sentence should be the least restrictive

! Emphasis on rehabilitation and reintegration of young offenders

! Accountability ! Emphasis on restorative

justice principle ! Sanctions should be the

least restrictive and community-based sentences should be used where possible

! Custody should be used only when no appropriate alternative is available



Table 5 - Operation of youth courts: sentencing options available


Non-custodial sentences

Discharge ! Yes ! Yes ! Yes ! Yes

Fine ! Yes ! Yes ! Yes ! Yes

Compensation, restitution or reparation order


Probation/supervision order ! For a period of between 6 months and 3 years

! For a period of up to 2 years

! For a period of not exceeding 6 months

! For a period between 1 and 3 years

Community service order ! Up to 240 hours. Orders are imposed only on juveniles aged 16-17

! Up to 240 hours ! Up to 200 hours ! Up to 240 hours

Others ! Anti-social behaviour order

! Referral order ! Action plan order ! Attendance centre order ! Combination order ! Child curfew order

! Reprimand ! Prohibition order ! Intensive support and

supervision programme order

! Attendance order ! Adult sentences if

applicable

! Admonishment ! Forfeiture of property order! Supervision-with-activity

order

! Care and protection order ! Order parents/guardians (i)

to take responsibility for good behaviour and/or education of the juvenile, or (ii) to give security for good behaviour of the juvenile



Table 5 - Operation of youth courts: sentencing options (cont'd) The United Kingdom Canada New Zealand Hong Kong

Custodial sentences

Custody ! 4 months to 2 years ! A maximum of 2 or 3 years*

! 10 years for first-degree murder, 7 years for second-degree murder

! Adult sentences if applicable

! 3 months. After the custody, the court can subject the juvenile to a period of supervision (up to 6 months)

! Reformatory school for 1 to 3 years

! Detained in a training centre for 6 months to 3 years

! Detained in a rehabilitation centre for 3 to 9 months

! Detained in a detention centre for 1 to 6 months

Note: (*) Other custodial sentences include deferred custody and supervision order and intensive rehabilitative custody and supervision order.



Table 6 - Operation of youth courts: court environment The United Kingdom Canada New Zealand Hong Kong Participants sitting on same level

! Yes ! No, judge sits on an elevated bench

! No, judge sits on an elevated bench

! Depending on the layout of different courtrooms

Sitting arrangements ! Parents sitting behind or next to the juvenile

! Juveniles sitting in a place which permits easy communication with legal representatives and other relevant people

! Parents sitting behind or next to the juvenile



Special arrangement for the duration of court proceedings

! Timetable allows frequent and regular breaks to take care of a young offender's inability to concentrate for long period

! Nil ! Nil ! Nil

Separate courtroom for juvenile cases


Dress of judges ! Robes should not be worn unless the young defendant asks that they should or the court for good reasons orders that they should

! Robes ! Robes ! Robes

Separation between juvenile and adult defendants

! Yes, while juveniles being conveyed to court or awaiting before or after attendance at court

! Yes, while juvenile defendants are held in confinement awaiting trial or after court

! Yes, while juveniles awaiting trial

! Yes, while juveniles being conveyed to or from the court, or awaiting before or after court

Legislative Council Secretariat Operation of Youth Courts in Selected Countries Places


Appendix I

Inside a Courtroom - Youth Court in the United Kingdom

Defendant

Defence lawyer

Parent-responsible adult

Usher

Prosecutor

Justices' Clerk Youth offending team Magistrates

Magistrates

Defence lawyer Prosecutor

Parent-responsible adult

Defendant

Just

ices

' Cle

rk

Yout

h of

fend

ing

team

Usher



Appendix II Inside a Courtroom - Youth Justice Court in Canada

Bench Clerk

Counsel Table

General seating

General seating

General seating General seating General seating

General seating

General seating

witness



Social Workers

Youth Advocate

Judge

Prosecution (Police)

Young person

Youth Justice Co-ordinator

Inside a Courtroom - Youth Court in New Zealand

Appendix III



Appendix IV

Brief description of Hong Kong's juvenile justice system 1. Legislation A.1 The policy and procedures for the handling of youths involved in Hong Kong's juvenile justice system is primarily governed by the Juvenile Offenders Ordinance (JOO) (Cap 226). Other relevant legislation includes the Protection of Children and Juveniles Ordinance (Cap 213), the Probation of Offenders Ordinance (Cap 298), the Detention Centres Ordinance (Cap 239), the Training Centres Ordinance (Cap 280), the Community Service Order Ordinance (Cap 378), the Rehabilitation Centres Ordinance (Cap 567) and the Reformatory Schools Ordinance (Cap 225). 2. Juvenile Court A2.1 The minimum age of criminal responsibility in Hong Kong will be raised from currently seven to 10, after the Juvenile Offenders (Amendment) Ordinance 2003 (the Ordinance) comes into force33. Any persons below the age of 10 cannot be guilty of an offence in law, but they may be subject to care and protection proceedings under the Protection of Children and Juveniles Ordinance. A2.2 The Juvenile Court is presided over by a permanent magistrate, who has the jurisdiction to adjudicate alleged criminal offences, other than homicide, committed by a juvenile aged 10-15 (after the Ordinance coming into force). Nevertheless, there are occasions on which juveniles may be transferred to adult courts for trial. These exceptions include a juvenile being:

(a) charged jointly with a person who has attained 16 years of age; (b) charged with aiding, abetting, counselling, procuring, allowing or

permitting an offence which a person who has attained the age of 16 years is charged with that offence at the same time; or

(c) charged with an offence arising out of circumstances which are the

same as or connected with those giving rise to an offence with which a person who has attained the age of 16 years is charged at the same time.

33 The Secretary for Security has set 1 July 2003 as the commencement date of the Juvenile

Offenders (Amendment) Ordinance 2003. The commencement notice has been published in the Gazette on 25 April 2003 and tabled at the Legislative Council on 30 April 2003 for negative vetting.



A2.3 There is no statutory requirement for magistrates appointed to hear juvenile cases to possess any particular background or training. Nevertheless, before sitting in the Juvenile Court, a Juvenile Court magistrate will be briefed by his/her predecessor on the court practice and procedures. From time to time, Juvenile Court magistrates are encouraged to attend seminars and conferences in related topics. 3. Procedures after arrest of a young offender Interview A3.1 A juvenile arrested by the police will only be interviewed in the presence of a parent, a guardian, or a person (e.g. an older brother or sister) who is of the same sex of the juvenile being interviewed. The absence of such person when a statement is obtained from a juvenile may be considered oppressive and can be sufficient reason for the court to exclude the statement from evidence. A3.2 After the interview, the police has the discretion to handle minor offenders informally by cautioning. Should the offence warrant formal measures, the police may deal with the case with prosecution. Figure 4 contains a flowchart which outlines the process of handling a young offender under Hong Kong's juvenile justice system. Bail/detention A3.3 Section 4 of JOO stipulates the conditions for the release of a juvenile on bail pending trial. It provides that a juvenile aged under 16, apprehended with or without warrant, must be brought forthwith before a Juvenile Court. Where that cannot be done, an inspector of police or other officer of equal or of superior rank, or the officer in charge of the police station where such a person is brought, must enquire into the case and grant bail unless:

(a) the charge is one of homicide or other grave crimes; (b) it is in the juvenile's interest to remove him/her from association with

an undesirable person; or (c) the officer has reason to believe that the release of the juvenile would

defeat the ends of justice. If a juvenile is not allowed bail, JOO requires the juvenile be detained in the police station, but must be kept separate and apart from adult detainees.



Figure 4 - Operation of the juvenile justice system in Hong Kong


Police discretion

Release due to insufficient evidence or other

considerations

Action required

Minor offence, admission to involvement, offender

aged under 18

Prosecution

Supervision under the Juvenile Protection Section

Police Superintendent's Discretion Scheme

Judicial appearing/hearing

Guilt admitted

Guilt denied

Court hearing

Sentencing

Verdict Acquittal

Custody

Community-based sentence

Order to pay fines, bond of good

behaviour, care and protection order, etc.

Discharge



Police cautioning A3.4 In Hong Kong, a juvenile aged under 18 who commits minor offence may receive police cautioning under the Police Superintendent's Discretion Scheme. Under the Scheme, the young offender is interviewed by a police officer of at least the rank of superintendent and given a severe warning about the offence and the consequences of such conduct in future. The juvenile is subject to visits by police officers of the Juvenile Protection Section so as to reinforce the warning with continued police contact. 4. Court procedure Admitting/denying the charge A4.1 When a juvenile is brought before a Juvenile Court for any offence, it is the duty of the court to explain to the juvenile in simple language the substance of the alleged offence. If the court is satisfied that the juvenile understands the nature of the alleged offence, the court will ask the juvenile if he/she admits or denies the charge rather than to plead guilty or not guilty. A4.2 If the juvenile admits the offence, the usual procedure is for the court to receive a statement of facts from the prosecutor. If the court is satisfied that the offence is made out, the facts will be explained in simple language to the juvenile. The juvenile will then be asked whether or not those facts are admitted. If the facts are accepted and the court finds the offence is proved, the court will proceed to sentence. Hearing A4.3 If the offence is not admitted, or if the court is not satisfied that the juvenile understands the nature of the alleged offence, the court will proceed to hear evidence. At the conclusion of the provision of evidence by the prosecution witness, the court will ask the juvenile, or, if it sees fit, his/her parent or guardian, whether he/she wishes to question the witness. The defendant is allowed to make a statement instead of asking a question if he/she so wishes. A4.4 If it appears to the court that a prima facie case is made out, the juvenile is allowed to give evidence and call defence witnesses, but is not obligated to do so. After hearing all the evidence, the magistrate will render the verdict. If the verdict is not guilty, the court will release the youth. Otherwise, the magistrate will make a finding of guilt and the case proceeds to sentencing.



Legal representation A4.5 A juvenile is entitled to instruct a private lawyer, apply for legal aid, or seek legal assistance from the Duty Lawyer Service (in Magistrates Courts and Juvenile Courts) to represent him/her in court proceedings. Parents/guardians' involvement A4.6 The parent or guardian of the juvenile must attend all stages of the proceedings unless the court orders otherwise. Protection of privacy A4.7 JOO safeguards the privacy of the youths who appear before the Juvenile Court for trial. It has laid down restrictions on the reporting of and access to the court proceedings in the Juvenile Court. Reporting restrictions A4.8 It is an offence for any person to publish written reports or broadcast any proceedings in the Juvenile Court or on appeal from the Juvenile Court, revealing the name, address, school or any particulars calculated to lead to the identification of the juvenile or any witness concerned in the proceedings. The court may dispense with these restrictions if it is in the interests of justice to do so. Access to Juvenile Court hearing A4.9 Juvenile courts are not open to members of the public. Only the following persons can be present:

(a) the magistrate and officers of the court; (b) parties to the case before the court, their solicitors and counsel, and

witnesses and other persons directly concerned in that case; (c) bona fide representatives of newspapers or news agencies; and (d) such other persons as the court may specifically authorize to be

present.



5. Sentencing A5.1 In determining the method of dealing with a juvenile who has admitted an offence or been found guilty after the trial, the Juvenile Court will obtain such information, maybe by way of calling a pre-sentence report, as to the juvenile's general conduct, home surroundings, school record and medical history. A5.2 In addition, the Juvenile Court magistrates may seek advice from Young Offenders Assessment Panel (YOAP) to assist them in sentencing young offenders. YOAP was formed on 1 April 1987 by the Correctional Services Department (CSD) and the Social Welfare Department (SWD). It currently consists of seven members of different disciplines from CSD and SWD, such as correctional services officers, social workers, clinical psychologists and education officers. YOAP provides a co-ordinated view of the most appropriate sentencing option for offenders aged 14-25, and the panel will interview the offenders and consider all relevant factors before rendering its advice to the magistrates for consideration. Sentencing principles A5.3 Section 11 of JOO restricts the imprisonment of juveniles by specifying that no juveniles shall be sentenced to detention if he/she can suitably be dealt with in any other way. As such, imprisonment should be the last resort to be used where the nature and seriousness of the offence make imprisonment necessary in the public interest, or where the offence merits imprisonment and all other methods of disposal have been excluded. Sentencing options A5.4 If the court is satisfied that the juvenile is guilty of an offence, it may deal with the case in one or more of the following manners:

(a) by dismissing the charge; (b) by a discharge upon entering into a recognizance; (c) by a probation order under the provisions of the Probation of

Offenders Ordinance. The court may make a probation order requiring the offender to be under the supervision of a probation officer for a period of between one and three years;



(d) on a bond of good behaviour under section 96(b) of the Magistrates Ordinance (Cap 227)34;

(e) by an order under the Protection of Children and Juveniles Ordinance,

if in need of care and protection; (f) by sending the offender to a reformatory school under the

Reformatory Schools Ordinance for a period of between one and three years, and in any case not longer than until the offender attains the age of 18 years;

(g) by ordering the juvenile to pay a fine, damages or costs; (h) by ordering the parent or guardian of the offender to pay a fine,

damages or costs; (i) by ordering the parent or guardian to give security for good behaviour

of the offender; (j) by committing the offender to custody in a place of detention for up

to six months; (k) where the offender is a young person aged 14-15, by sentencing

him/her to imprisonment or to detention in a training centre established under the Training Centres Ordinances or to detention in a rehabilitation centre within the meaning of the Rehabilitation Centres Ordinances. The period of detention in a training centre is from six months to three years, and that in a rehabilitation centre is from three to nine months;

(l) where the offender is a male person, by dealing with him under the

provisions of the Detention Centres Ordinance. For those aged over 14 and under 25, the period of detention is from one to six months;

(m) where the offenders aged 14-15, by ordering him/her to perform

community services not exceeding 240 hours within a 12-month period under the Community Service Orders Ordinance; or

(n) by dealing with the case in other manner in which it may be legally

dealt with.

34 This provision prescribes for delivering the offender "to his parent, guardian or nearest adult

relative or, if the offender is an apprentice or servant, to his master or mistress or, if the offender is a pupil, to the person in charge of the school at which the offender is attending, on such parent, guardian, relative, master, mistress or person in charge of a school executing a bond, with or without sureties, that he will be responsible for the good behaviour and also, if the magistrate thinks it necessary, for the proper education of the offender for any period not exceeding 12 month".



6. Court environment A6.1 Procedures in the Juvenile Court tend to be less formal than that in a Magistrate's Court. For example, the defendant does not sit in the dock and is accompanied by his/her parents or guardians sitting alongside or behind him/her. Further, the magistrate sits on a slightly raised bench or on the same level as the defendant. A6.2 Section 6 of JOO requires that no juvenile shall be permitted to associate with an adult (not being a relative) who is charged with any offence other than an offence with which the juvenile is charged, while being conveyed to or from any criminal court or waiting before or after attending any criminal court. A6.3 Further, in order to ensure a complete separation between adult and juvenile defendants, the courtroom used for juvenile proceedings should be completely separate from the one used for proceedings involving adult offenders. Where the same courtroom is used for both adult and juvenile defendants, JOO requires a clear one hour break between the sittings of a juvenile court and the sittings of an adult court.



References United Kingdom 1. Ashford, Mark and Alex Chard, Defending Young People in the Criminal Justice

System, 2nd ed., Legal Action Group, 1997. 2. Brewer, David ed., Magistrates' Courts Criminal Practice 2000, Jordan

Publishing Limited, 2000. 3. Caroline, Ball, Kevin McCormac, and Nigel Stone, Young Offenders: Law, Policy

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<http://www.criminal-justice-system.gov.uk/citizen/defendants/prosecution.html> 5. Dignan, James, "Alternatives to the Prosecution of Unruly Children and Young

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6. Gelsthrope, Loraine and Mark Fenwick, "Comparative Juvenile Justice: England

and Wales" in John A. Winterdyk ed., Juvenile Justice Systems: International Perspectives, Canadian Scholars' Press, 1997.

7. Gelsthrope, Loraine and Vicky Kemp, "Comparative Juvenile Justice: England

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8. Gordon, Winston, Michael Watkins and Philip Cuddy, Introduction to Youth

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Incorporating an Introduction to the Youth Court, 2nd ed., Waterside Press, 1999. 10. Graham, John, "Juvenile Crime and Justice in England and Wales" in Bala,

Nicholas, Joseph P. Hornick, Howard N. Snyder and Joanne J. Paetsch eds., Juvenile Justice Systems: an International Comparison of Problems and Solutions, Thompson Educational Publishing, 2002.

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Guidance for Lay Magistrates", 1998. 16. Judicial Studies Board, "Magistrate: Youth Court Bench Book", 2001. 17. Moore, Tony and Tony Wilkinson, Youth Court Guide, Butterworworths, 2001. 18. O'Malley, Julie, "Magistrates' Court", 2nd ed., Cavendish Publishing Limited,

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Limited, 2001. 25. World Factbook of Criminal Justice Systems. Available at <http://www.ojp.usdoj.gov/bjs/pub/ascii/wfbcjeng.txt>. Websites 1. Court Service, www.courtservice.gov.uk. 2. Criminal Justice System, www.cjsonline.org.



3. Home Office, www.homeoffice.gov.uk. 4. Judicial Studies Board, www.jsboard.co.uk. 5. Law Library Resource, www.llrx.com. 6. Lord Chancellor's Department, www.lcd.gov.uk. 7. Magistrates' Association, www.magistrates-association.org.uk. 8. Nottinghamshire Magistrates' Court Service, www.nottsmcc.org.uk. Canada 1. Bala, Nicholas, "Dealing with Child and Adolescent Offenders Outside of Youth

Court" in T. Wing Lo and Dennis S.W. Wong eds., Child Protection and Measures Alternative to Prosecution: Experiences of Six Overseas Countries, Youth Studies Net, the City University of Hong Kong, 2003.

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2nd ed., Thomson Nelson, 2002. 4. Community Legal Information Association, Youth Justice Information Kit, 2002. 5. Corrada, Raymond R. and Markwart Alan, "Canada" in Donald J. Shoemaker ed.,

International Handbook on Juvenile Justice, Greeenwood Press, 1996. 6. Department of Justice, "YCJA Explained", 2002. Available at

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5th ed., Butterworths Canada Limited, 2000. 8. Gall, L. Gerald, The Canadian Legal System, 4th ed., Thomson Canada Limited,

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the Administration of Justice, Canadian Scholars' Press, 1995.



11. Lorne D. Bertrand, Joanne J. Paetsch and Nicholas Bala, "Juvenile Crime and Justice in Canada" in Bala, Nicholas, Joseph P. Hornick, Howard N. Snyder and Joanne J. Paetsch eds., Juvenile Justice Systems: An International Comparison of Problems and Solutions, Thompson Educational Publishing, 2002.

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www.publiclegalinfo.com. 7. Youth Criminal Justice Act Reference Page, www.lawyers.ca.



New Zealand 1. Brown, B. J. and F. W. M. McElrea eds., The Youth Court in New Zealand: a New

Model of Justice, Legal Research Foundation, 1993. 2. Brown, J.A. Michael, "Juvenile Justice in New Zealand", 1992. Available at <http://www.aic.gov.au/publications/proceedings/22/brown.pdf>.

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their Families Act (1989)", British Journal of Social Work 24:87-100, 1999. 5. Department of Child, Youth and Family Services, Child, Youth and Family: Youth

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Processes and Legal Theory , 3rd ed., Wellington: LexisNexis Butterworths, 2002. 10. Ministry of Justice, "The New Zealand Criminal Justice System and Restoration",

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for Young Offenders in Hong Kong", Young Study Series No.15, 1998. 11. To, Yuen-wah Dorothy, "Restorative Justice: its Applicability to Young Offenders

in Hong Kong", M.Soc.Sc. Thesis, the University of Hong Kong, 2000. 12. Traver, Harold and Jon Vagg eds., Crime and Justice in Hong Kong, Oxford

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14. Traver, Harold, "Juvenile Delinquency in Hong Kong" in John A. Winterdyk ed., Juvenile Justice Systems: International Perspectives, 2nd ed., Canadian Scholars' Press, 2002.

15. 李宗鍔主編，香港日用法律大全，商務印書館， 1995 年。 16. 車煒堅著，香港青少年犯罪問題，中華書局， 1992 年。 Others 1. Martin, Elizabeth A. ed., A Dictionary of Law, 5th ed., Oxford University Press,

2002. 2. Philip L. Reichel, Comparative Criminal Justice Systems: A Topical Approach,

3rd ed., Prentice Hall, 2002. 3. Siegel, J. Larry, Brandon C. Welsh and Joseph J. Senna, Juvenile Delinquency:

Theory, Practice, and Law, 8th ed., Thomson Learning Inc., 2003. 4. Terrill, Richard J., World Criminal Justice Systems: A Survey, 4th ed., Anderson

Publishing Co., 1999.

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