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EASTERN CARIBBEAN EASTERN CARIBBEAN SUPREME COURT /UNICEFSUPREME COURT /UNICEF

SEMINAR ON SEMINAR ON JUSTICE FOR CHILDRENJUSTICE FOR CHILDREN

for Judiciary, Magistracy, Police and for Judiciary, Magistracy, Police and Social Workers in the Eastern CaribbeanSocial Workers in the Eastern Caribbean

Sandals Grande HotelSaint Lucia

July 25-28, 2007.

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JUVENILE JUSTICE BILLJUVENILE JUSTICE BILL

• Main articles of CRC-juvenile justice-

• Article 37- child’s right to be free from torture, cruel, inhuman or degrading punishment, right to essential safeguards to due process and special rights;

• Article 40-principles and practices for a juvenile justice system;

• Article 39-right to rehabilitative care.

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UMBRELLA PRINCIPLES UMBRELLA PRINCIPLES OF THE CRC RELEVANT TO OF THE CRC RELEVANT TO

JUVENILE JUSTICEJUVENILE JUSTICE

Article 2: non-discrimination

Article 3: best interests of the child

Article 6: child’s right to life, survival and development

Article 12: right to be heard respect for the child’s views

INTERNATIONAL STANDARDS AND INTERNATIONAL STANDARDS AND NORMS IN JUVENILE JUSTICENORMS IN JUVENILE JUSTICE

U. N. Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules)

U.N Guidelines for Prevention of Juvenile Delinquency (Riyadh Guidelines);

U.N Rules for the Protection of Juveniles Deprived of their Liberty( JDL Rules).

See also: (1) Guidelines for Action on Children in Juvenile Justice System.

(2) General Comment of Child Rights Committee.

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JUVENILE JUSTICE PRINCIPLESJUVENILE JUSTICE PRINCIPLES

• Juvenile justice laws should be extended to all children below age 18;(3)

• Juveniles are entitled to special protection; privacy of juveniles to be respected at all stages of proceedings;(55)

• Criminal proceedings should not be instituted if alternative means exist for dealing with matter;

• Detention should be a matter of last resort and for shortest appropriate time;(34, 35)

• Response to juvenile should be proportionate to offence and circumstances of offender;

• Age of criminal responsibility should be established, but not below 12 years of age.(5)

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JUVENILE JUSTICE BILLJUVENILE JUSTICE BILL

• “Appropriate adult” – consider inclusion of parents in definition, not separate group;(2)

• Rebuttable doli incapax- (5);(51)• juvenile “does not have capacity to

appreciate difference between right and wrong.” ???or “Does not know the act committed was seriously wrong.”

• C.(A Minor) v D.P.P [1995]

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JUVENILE JUSTICE BILLJUVENILE JUSTICE BILL• Should Magistrate be part of Juvenile Justice

Board? (6)• Should the temporary place for juveniles be termed

an Observation Home? (9)• Should effort be made to ascertain views of person

who is excused by probation officer from attending assessment ?

• Person fails to attend assessment, should an opportunity be given to provide reasonable excuse before sanction imposed?1000/1month(27(3)

• Similarly, failure to attend preliminary enquiry $5000, or 3 months (33)

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JUVENILE JUSTICE BILL-JUVENILE JUSTICE BILL-DIVERSIONDIVERSION

• Measures for dealing with juvenile without resorting to judicial proceedings.– police, – prosecution – other agencies;

• Committee on Rights of Child – General Comment – two kinds of intervention-– Measures without resorting to judicial proceedings;– Measures in context of judicial proceedings.

• Bill does not address diversion pre-arrest, limits diversion pre-trial.

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JUVENILE JUSTICE BILL-JUVENILE JUSTICE BILL-DIVERSIONDIVERSION

• Restorative justice - family group conference- should be offered pre-arrest stage, not only in context of diversion in judicial disposition: “Where court makes determination of guilt of juvenile, court may refer matter to family group conference”(60)

• Restorative justice models, in particular, New Zealand model include, in conference not only offender support, but also victim support.

JUVENILE JUSTICE BILLJUVENILE JUSTICE BILL

RECOMMENDATIONS FOR LEGISLATION• Court Proceedings

Legislation should include rights of juvenile and procedure to be followed, so that persons need not consult other legislation;

• Prohibition -certain types- punishment– No imposition of death penalty when crime

committed when offender below age 18, – No life imprisonment without parole;– No corporal punishment as sentence or as

disciplinary option.

JUVENILE JUSTICE BILLJUVENILE JUSTICE BILL

• Pre-sentence reports should be called for save in very minor offences.(57)

• Rule 16- Beijing Rules; CRC- article 40

• Delay in proceedings should not be a ground for dispensing with a pre-sentence report.

• Court needs to know background of a juvenile before appropriate sentencing.

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JUVENILE JUSTICE BILLJUVENILE JUSTICE BILL

Every effort should be made to provide juveniles with legal representation.

Consider conditions for provision legal representation. Are they adequate? ( 69)Where this cannot be done, some other type of assistance should be provided.

Consider social worker, para-legal.Consider requirement: attorney “ to ensure

that trial is conducted without delay.”(68)

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MONITORING OF JUVENILE JUSTICE

Who should monitor and assess the proper application of and compliance with the legislation?

The Attorney – General???? (70)

RECORD OF CONVICTION AND SENTENCE.

Consider whether there should be no expungement (expunction) for very serious offences. (71)

How does this fit with principle of rehabilitation and reintegration?

JUVENILE JUSTICE BILLJUVENILE JUSTICE BILL

JUVENILE JUSTICE BILLJUVENILE JUSTICE BILL

VICTIMS AND WITNESSES- missing in action from Bill

• Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power in Guidelines for Action on Children in Criminal Justice Process- ensure child victims and witnesses provided with appropriate access to justice and fair treatment, restitution, compensation and social assistance.

• Consider evidence by video –link and television.