SPR 410 Subject 3 notes. Regarding the process of Criminal Procedure PDF

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Summary

SUBJECT 3: The child justice Act 75 of 20081 and guiding principles of the CJA.Long title.  To establish a criminal justice system for childrenconflict of the law and accused of criminal offences,, who are in inaccordance with the values of the constitution and international obligations of the Repu...

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SUBJECT 3: The child justice Act 75 of 2008 1.Objects and guiding principles of the CJA. Long title.

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The Preamble

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To establish a criminal justice system for children, who are in conflict of the law and accused of criminal offences, in accordance with the values of the constitution and international obligations of the Republic. To provide for the minimum age of criminal capacity for children To provide a mechanism for dealing with children who lack criminal capacity outside the criminal justice system To make special provisions for securing attendance at court and the release or detention and placement of children To make provisions for assessment of children To provide for the holding of preliminary and to incorporate, as a central feature, the possibility of diverting matters away from the formal criminal justice system, in appropriate circumstances To make provisions for child justice courts to hear all trails of children whose matters are not diverted, To extend the sentencing options available in respect of children who have been convicted To entrench the notion of restorative justice in the criminal justice system in respect of children who are in conflict of the law Provide for matters incidental thereto The Constitution while envisaging the limitation of fundamental rights in certain circumstances, emphasize the interest of the child and single them out for special protection, affording children the who conflict with the law certain safeguards such as: 1. Not to be detained, except as measure of last resort (short period of time) 2. To be treated in manner and kept in conditions as indicated by age 3. To be kept separately from adults and separately from girls in detention 4. TO family, parental or appropriate alternative care. 5. To be protected from neglect or abuse

Guiding principles: SECTION 3  (a) All consequences arising from the commission of an offence by a child should be proportionate to the circumstances of the child, the nature of the  offence and the interests of society.  (b) A child must not be treated more severely than an adult would have been treated in the same circumstances.  (c) Every child should, as far as possible, be given an opportunity to participate in any proceedings, particularly

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the informal and inquisitorial proceedings in terms of this Act, where decisions affecting him or her might be taken. (d) Every child should be addressed in a manner appropriate to his or her age and intellectual development and should be spoken to and be allowed to speak in his or her language of choice, through an interpreter, if necessary. (e) Every child should be treated in a manner which considers his or her cultural values and beliefs. (f) All procedures in terms of this Act should be conducted and completed without unreasonable delay. (g) Parents, appropriate adults and guardians should be able to assist children in proceedings in terms of this Act and, wherever possible, participate in decisions affecting them. (h) A child lacking in family support or educational or employment opportunities must have equal access to available services and every effort should be made to ensure that children receive similar treatment when having committed similar offences. (i) The rights and obligations of children contained in international and regional instruments, with reference to the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child.

Objects of the Child Justice Act 75 of 2008 (Section 2 (a)-(e))   1. 2.

3. 4.

SECTION 2(a) To protect the rights of children as provided for in the Constitution Sec(2)(a) SECTION 2(b) promotes the spirit of ubuntu in the child justice system throughFostering children's sense of dignity and worth. Reinforcing children's respect for human rights and the fundamental freedoms of others by holding children accountable for their actions and safeguarding the interests of victims and the community. Supporting reconciliation by means of a restorative justice response; and involving parents, families, victims and, where appropriate, other

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members of the community affected by the crime in procedures in terms of this Act in order to encourage the reintegration of children

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SECTION 2(c) provides for the special treatment of children in a child justice system designed to break the cycle of crime, which will contribute to safer communities, and encourage these children to become law-abiding and productive adults.

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SECTION 2(d) prevents children from being exposed to the adverse effects of the formal criminal justice system by using, where appropriate, processes, procedures, mechanisms, services or options more suitable to the needs of children and in accordance with the Constitution, including the use of diversion

Definition of a child in terms of section 1 of the CJA.  'A child' means any person under the age of 18 years and, in certain circumstances, means a person who is 18 years or older but under the age of 21 years whose matter is dealt with in terms of section 4 (2).  Child justice court - means any court provided for in the Criminal Procedure Act, dealing with the bail application, plea, trial or sentencing of a child.  SECTION 63(2) - Where a child and adult are charge together in same trial in respect of the same facts in terms of sec 155,156,157 of the Criminal PA, a court must apply the provisions of the Child Justice Act in respect of the child and the Criminal Justice Act in respect of the adult.  The criminal procedure Act can apply to children, except in so far as the Child Justice Act provide for amended, additional or different procedures.  Once a child is through the pre- trial proceedings and the child did not fall out of the system or diverged out of the system the child once he or she get to court appear before a child justice court. (more in pre-trial phases)

NB! APPLICATION OF THE CHILD JUSTICE ACT (SECTION 4) Applies to:3 CATEGORIES a)Child under the age of 10 years at commission of the offence. b) Child who was 10 years and older but under 18 when handed (i) written notice, (ii) served with summons or (iii) arrest. c) The Director of Public Prosecutions having jurisdiction may, in accordance with directives issued by the National Director of Public Prosecutions in terms of section 97 (4) (a) (i) (aa), in the case of a person who(a) is alleged to have committed an offence when he or she was under the age of 18 years; and (b) is 18 years or older but under the age of 21 years, at the time referred to in subsection (1) (b)

Example question 1.Edith committed fraud when she was 18 years old. She was handed a written notice to appear in court when she It related to the application of the CJA (Section 4) The Act in terms of section 4 c does not apply because the Act was committed when she was 18 years. For the Act to apply Edith must have committed the act under the age of 18. The CJA does not apply

Minimum age of criminal capacity (s 7 & 11(1)). Under 10 years old.  Presumption In terms of a child who is under the age of 10 and not older than 14 years – The child does not have any criminal capacity and cannot be prosecuted for that offence (Section 7(1) of the CJA. Only prosecuted and send to preliminary enquiry when the prosecutor convinces the presiding officer that the person has criminal capacity. Appreciate the difference between right and wrong.  Section 9 applies to children under 10 years. Child must be referred to a prohibition officer to be dealt with in terms of section 9.

SECTION 9 (1) Where a police official has reason to believe that a child

suspected of having committed an offence is under the age of 10 years, he or she may not arrest the child, and must, in the prescribed manner, immediately hand the child over(a) to his or her parents or an appropriate adult or a guardian; or (b) if no parent, appropriate adult or a guardian is available or if it is not in the best interests of the child to be handed over to the parent, an appropriate adult or a guardian, to a suitable child and youth care center, and must notify a probation officer.  The probation officer who receives such notification from the police officer must assess the child as soon as possible but no later than 7days after notification.  After assessing the child, the prescribing officer may:  Refer the child to a children’s court (social problems not a criminal court).  Refer the child for counseling or therapy.  Refer the child to an accredited programmed designed specifically to suit the needs of the children under the age of 10  Arrange support services for the child  Hold a meeting where the child attends with parents or guardian and any person likely to provide information for the purposes of the meeting.  Decide to take no action.  If child fails to comply with any obligation imposed on him including compliance with the written plan the probation officer must refer the child to the Children Court.

ABOVE 10 YEARS BUT BELOW 18 YEARS  Must appear at a preliminary inquiry where the child is assessed by a probation officer unless the assessment is dispensed or diverted by the prosecution with ito S 41(3) or 47(5) in best interest of the child.

 General rule – children must 1st be assessed before the move to the preliminary inquiry.  The providing officer can also divert the case at the preliminary inquiry  If the prosecutor cannot prove criminal capacity the case will be dealt with in terms of the first category (refer the child to the Children’s court)  The matter must be referred to the child justice court if the prosecution does not withdraw or the case is diverted.  The child must appear at the preliminary inquiry within 48 hours. The child may be arrest on the Sat morning and appear at inquiry on Monday morning.  Summon issue to child or arrest then the assessment must take place before the inquiry (Certain time periods)  In terms of section 11(1) of the CJA the state must prove beyond reasonable doubt the capacity of a child who is over the age of 10 but under the age of 14 to appreciate the difference between right and wrong at the time of the commission of allege offence. ASSESMENT OF CHILD (general rule) Section 34 (Duty of probation officer to assess child) 

Section 34(1) Every child who is alleged to have committed an offence must be assessed by a probation officer unless it has been dispense in terms of section 41(1)

DISPENSION

 Section 42(1 - which state that a prosecutor may divert any matter involving a child who is alleged to have committed an offence if it is in the best interest of child or schedule one offence.  Section 47(5) = Dispense at the preliminary investigation and the PO dispense the assessment within the best interest of child if not assessed. ARREST

 Section 34(2) = A PO who has been notified by a police officer that a child has been arrested MUST assess the child before the child APPEARS at a PRILIMINATY INQUIRY within: 48 hours of arrest. The police officer must notify the PO within 24 hours of arrest.  If the child is not assessed the PO may dispense the matter.  A preliminary inquiry must be held within 48 hours of arrest as provided in subsection 20(5) if a child is arrested and remains in detention. SUMMONS AND WRITTEN NOTICES  Within the time periods specified in a written notice in terms of section 18 or summons in terms of section 19. Section 19(3)(v) – Police offer must warn the parent appropriate adult or guardian to bring child to preliminary enquiry on date and time in summons or written notices and immediately but no later than 24 hours after service of summons or written notice notify the PO. Child under the age of 10 who has been dealt with in terms of section 9 – must assess the child within 7 days of notification.

1. Section 35 (Purpose of the assessment)  Estimate the age of the child if age is uncertain. Example 16 years and has ID. Not going to be issue and assessment is unnecessary.  Gather information regarding previous convictions, previous diversions or pending charge in respect of the child. Example child under 10 and not relevant if previous conviction because cannot be pending confection because the child does not have criminal capacity.  Underage of 10 to establish what measures need to be taken in terms of section 9.  Over age of 10 but under 14 to express a view whether expert evidence would be required.  Whether child has been used by an adult to commit crime.

 Whether a child must need protection and care in order to refer the child to children’s court. (Social ill and child need of care and protection) Assessment is cat 2 or 3 = used by PO at the preliminary inquire to decide what to do with the child example send to children’s court or to divert the matter. Important document for decision making at preliminary inquiry. 2. SECTION 36 (CONFIDENTIALITY OF ASSESMENT)  Any information obtained at an assessment is confidential and may only be used for purpose of the preliminary inquiry or is inadmissible as evidence during bail, plea or sentencing proceedings in which the child appears 3. POWERS AND DUTIES OF THE PROBATION OFFICER (Section 39)  The probation officer must explain the purpose of the assessment to the child and inform the child of his or her rights in prescribed manner.  He must also explain to the child the immediate procedures to be followed in terms of the Act.  He must inquire from the child whether he or she intends acknowledging responsibility for the offence in question. (Matter only diverged by a prosecutor when a small offence i.t.o chapter 6 or by PO if person acknowledge guilt.)  The probation officer may during the assessment consult with any person who may provide info necessary for assessment including prosecutor.  PO may consult during assessment privately with any person.  When a child is accused with another child the PO may consult the children simultaneously if this will be in the best interest of the child.  The PO must encourage the participation of the child during the process. 4. ASSESMENT REPORT (SECTION 40)  The probation officer must complete an assessment report in prescribed manner (Sec 35).

 He must mention on the referral of the matter to a children court in terms of section 64 or section 50.  Comment on the appropriateness of diversion.  Must comment on the possible release of the child into care of parent, appropriate adult.  If likely that child should be detained after 1 st appearance at the preliminary inquiry the placement of child in youth center or detention.  If child is under 10 years explain what measures need to be taken in terms of section 9  Explain the possible criminal capacity of child if the child is 10 years or older but under 14 as provided in section 10 and what measures to be taken in order to prove criminal capacity.  Whether a furthermore detail assessment of the child is required in order to consider the circumstances in subsection 3 such as child harming himself or danger to other, the fact that the child has a history of repeating offences, where the social welfare of the child needs further assessment.  Regard to all the relevant aspects meant in section 5 a report must be given. Underage of 10 is referred to probation officer and must assets the child. The child will not progress to the prosecutor. ONLY APPLY TO CATEGORY 2 AND 3.

DIVERSION BY PROCECUTOR.  It must be scheduled one (least serious offences) offence for the procreator to divert. Section 55.  Must be before preliminary inquiry.  (Section 41): Requirements in section 52(1) must be complied with. Requirements: 1. The child acknowledges responsibility of the offence 2. The child has not been unduly influenced to acknowledge responsibility 3. There is a prima facie case against the child

4. The child and if available to parent, or guardian consent to the diversion 5. The prosecutor indicates that the matter may be diverted in accordance with sub section 2, or the Director of Public Prosecution indicates the matter may be diverted in accordance with subsection 3 (with offence referred in schedule 3 in writing that matter may be diverted if exceptional circumstances exit). 6. If child is 10 years or older but under the age of 14 the criminal capacity must be prove and diversion must take place in accordance with the issue of the director of prosecution and before the preliminary inquiry.  The decision must be made at the unreato divert the matter.

PRELIMINARY ENQUIRY (CHAPTER 7)  Nature and objectives Sec 43(1) + (2) = informal pretrial procedure inquisitorial in nature and may be held in a court  To consider the assessment report of the PO with reference to the age estimation and if age uncertain the view of PO regarding the criminal capacity of the child if the child is 10 years or older but under 14. Whether an evaluation of criminal capacity is necessary and whether a furthermore detail assessment is necessary.  To establish whether a matter can be diverted before a plea.  Identify a suitable diversion option.  Determine whether the matter should be referred to a children’s court.  Ensure all relevant information regarding the child are considered.  Determine the release of the child or placement of child pending the (i) the conclusion of preliminary enquiry (ii) Child under the age of 10 (iii) the matter has been withdrawn  A preliminary enquiry must be held in matter where a child is alleged to commit an offence except where the matter is (i) has been diverted by a prosecutor in

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terms of Chapter 6 (ii) the child is under the age of 10 years (iii) the matter is withdrawn. Preliminary inquiry must be held within: (i) 48 hours of arrest (ii) Within the time periods specified in a written notice or summons. A child appearance at a preliminary enquiry is regarded as one of 1st appearances before a lower court Procedure relating to holding a preliminary enquiry section 47: Inquiry magistrate must conduct a preliminary enquiry in an informal manner by asking questions, interviewing the persons and keep record of all information. Info may not be used against the child in bail proceeding. The child will be protected and tell all to discuss the situation without fear. Information must be given to child and explain the purpose of the preliminary enquiry and inform the child of his or her rights and what he is accused of. Now the PO decide whether acknowledge guilt. If the child does not admit guilt the process cut short and in terms of section 9 the proceedings will be followed and referred to child justice court. If prosecutor indicates the matter may not be diverted the magistrate must obtain conformation, there is reason to believe that further investigation needed. Section 46 provides that a child or his parent, appropriate adult or guardian who fails to appear, or stay in attendance, is to be dealt with in terms of section 24(7). Section 24(7) =If a child fails to appear on the date and time and place in terms of an assessment or preliminary enquiry the PO may on being notified of the failure in the prescribed manner issue a warrant for arrest of the child or cause a summons to be issued in accordance with sec 19 for the child to appear before the preliminary enquiry or child justice court. Orders at preliminary enquiry (s 49): Diverted if prosecutor and magistrate see it is suitable and child refer to children court. Prosecutor can withdraw the case. The matter will go to child justice court.

 Diversion = Schedule 1 and 2 the prosecutor may agree to diversion

 Schedule 3 the director of Public prosecution must give consent for the prosecutor to divert the matter. SUBJECT 2: SOUTH AFRICAN CRIMINAL COURTS Section 165 of the Co...