No imprisonment for juveniles under landmark justice bill

Once enacted, the recently tabled Juvenile Justice Bill will see significant reforms, including ensuring that juvenile offenders are not imprisoned, that convictions are not recorded and that no juvenile is held in custody for more than 48 hours without charge.

Public Security Minister Khemraj Ramjattan tabled the long promised bill in the National Assembly last Thursday.

It is intended to amend and consolidate the law in relation to criminal justice for juveniles; to make provision for proceedings with respect to juvenile offenders; to provide for the establishment of facilities for the custody, education and rehabilitation of juvenile offenders; and to repeal the Juvenile Offenders Act and the Training Schools Act.

According to the definition given in the bill, a juvenile is a person who appears to be 14 years and older but less than 18 years. It notes that it is presumed that no child under the age of fourteen shall be capable of or guilty of committing an offence but if the presumption is rebutted, the child shall be treated and dealt with in accordance with the provisions set out in the bill.

In addressing the purpose and principles to be applied in sentencing a juvenile, the bill stipulates at Section 41 that “a child or juvenile shall not be sentenced to imprisonment.” Section 45 adds that “a conviction must not be recorded where there is a finding of guilt,” while noting that recommended sanctions in such instances include probation and supervisory orders. This section of the bill also requires a court to ensure that the juvenile understands the order and for the court to record its reasons for a sentence and provide these reasons to the juvenile or his or her parents. Further, it makes provision for the transfer of juveniles to an adult facility upon reaching the age of 18.

As an alternative to imprisonment, the bill contains several provisions for juveniles to be placed in custody at open or secure residential facilities for a period of time not exceeding five years.

In addressing the detention of juveniles prior to sentencing, the bill sets a period of 48 hours for a juvenile to be taken to court after arrest, while stipulating that a court shall not use detention as a “substitute for any appropriate child protection, mental health or other social measure that a juvenile may require.” The circumstances which may influence the need for presentence detention and the establishment of temporary holding facilities are also catered for.

In Part 4 of the bill, provision is made for the Director of Public Prosecutions (DPP) to conduct pre-charge screenings and restricts private prosecution unless written consent is given by the DPP’s chambers. It also provides for the juvenile to be able to retain counsel at any stage of the proceedings and for the juvenile to be informed of this right. This part also provides for parents of the juvenile to be notified of the arrest and for the court, by order in writing, to require the parent of the juvenile to attend court. Further, this section provides that the court at any stage of the proceedings may refer the juvenile to the Director of the Childcare and Protection Agency for assessment to determine whether the juvenile is in need of child welfare services.

Diversion measures

The provisions of the bill are oriented towards “diversion of the juvenile away from the formal court procedures to informal procedures” that will be established by the legislation, including restorative measures.

Part 2 of the bill sets out the principles and objectives of diversion, which it considers the most appropriate and effective way of addressing juvenile crime. It notes

that diversion allows for effective and timely interventions focused on correcting the offending behaviour and that such an approach is presumed to hold the juvenile accountable for the respective offence.

Among the diversion measures listed are “an oral or written apology to a specified person or institution,” “placement by the court under the supervision and guidance of the Chief Probation Officer,” “referral by the court to counseling or therapy for a specified period,” and compulsory attendance at specific place for educational or vocational training for a specified period of time. Additionally, the bill notes that diversion measures or judicial proceedings shall continue after the juvenile attains the age of eighteen years.

Such diversion measures are to be used only where it is determined that warnings or referrals by the police and the Director of Public Prosecutions as opposed to judicial proceedings are not adequate enough to deal with the particular case.

Part 8 of the bill deals with custody, supervision and rehabilitation of a juvenile by setting out the purpose of and principles to be applied in the juvenile custody and supervision system. This part also stipulates that juveniles must be held separately from adults and provides for the Minister to establish facilities for custody and detention. It provides that the Minister appoint a Director of Juvenile Justice and sets out the functions and duties of the office. Provisions are also made for the appointment of a Principal and Deputy Principal of facilities for juveniles, their responsibilities and functions and for the appointment of members of staff of juvenile facilities. Additionally, this Part provides for the appointment, term and composition of the Juvenile Justice Committee and sets out the duties and powers of the committee. It also stipulates the support that the juvenile must have access to and conditions for supervision after release of a juvenile.

The bill also sets guidelines and procedures that govern any publication, record and information relating to a juvenile. It provides that the privacy of a juvenile must be protected and provides exceptions and conditions under which the records and publication of those records may be allowed. This section places restrictions on the access period for information disclosure and restricts disclosure of information other than to an authorised person.