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Papua New Guinea Law Reform Commission |
LAW REFORM COMMISSION
OF
PAPUA NEW GUINEA
YOUNG PERSONS IN CONFLICT WITH THE LAW
REPORT NO. 9
JULY 1980
The Law Reform Commission of Papua New Guinea was established by the Law Reform Commission Act 1975 and began functioning in May 1975.
The Commissioners are -
William Kaputin, Chairman
Francis Iramu, Deputy Chairman
Tamo Diro
Joseph Nombri
Samuel Nuakona
Alexis Sarei
Samson Kaipu is the Secretary to the Commission.
The Commission's Office is on the second floor of the Development Bank Building Waigani. The postal address of the Commission is -
Law Reform Commission,
P.O. Wards Strip,
Papua New Guinea.
Telephone: 25-8755125-8941
November, 1979.
The Right Honourable Michael Somare,
Minister for Justice,
Sir,
In the reference on the Review of the Criminal Justice System we were asked to enquire and report to you among other things on the overcoming of problems associated with juvenile offenders.
As part of a continuing enquiry into the Criminal Justice System we recommend in this report that a system of Youth Courts and procedures suitable for youthful offenders be adopted.
Yours faithfully,
William Kaputin, Chairman
Francis Iramu, Deputy Chairman
Tamo Diro,
Joseph Nombri
Samuel Nuakona
Alexis Sarei.
-------------------------------
On 21st August 1975, the then Minister for Justice, N. Ebia Olewale forwarded to the Law Reform Commission a reference requesting the Commission to review the Criminal Justice system. Among the matters specifically referred to in the reference was a request for legislation to help overcome the problems associated with juvenile offenders having regard to the fact that juvenile crime was growing, particularly in the urban area, and also that the Corrective Institution Service was under pressure due to an increasing number of detainees and limited funds and because judges and magistrates have few acceptable alternatives to imprisonment of young persons convicted of offences.
A considerable amount of work had been done regarding young offenders but this work had been fragmented and did not cover the wide range of persons whose skill and experience would be necessary to cover the problems of youthful offenders generally. On 5th June 1978 the Minister for Home Affairs called a meeting of a Joint Committee of interested persons from various welfare and social agencies, government departments, the university, the police, Correctional Services and the Law Reform Commission.
A draft working paper was produced which was discussed at a further meeting held in September 1978 and Joint Working Paper No. 14 entitled Young Persons in Conflict with The Law was issued in November 1978. Response to the Joint Working Paper was gratifying and as a result of a further meeting of the Joint Committee held in June 1979, the final draft of the proposed legislation as contained in this report was prepared.
Because the Law Reform Commission Act requires the Commission to report to the Minister for Justice, this report has been published which contains the Commission's views on the matter.
A separate report is being made to the Minister of Home Affairs resulting from the Committee's deliberations.
The Law Reform Commission wishes to record its thanks to the various people and organisations who have participated in the meetings and production of the draft legislation. In particular, the Dept. of Home Affairs, Magisterial Services Commission, Justice Department, Police Department, Correctional Institutions Service, the Probation and Parole Service, Fr. William Liebert of Boys Town, Brother William of St. John of God Brothers, the Salvation Army, Dr. Maev O'Collins UPNG and those people who wrote critically and constructively on various aspects raised in the Joint Working Paper.
Clearly this Report covers only one aspect of the problems of youth. The welfare provisions of the Child Welfare Act are clearly in need of reform, as was pointed out by the Minister for Home Affairs when he spoke to the Joint Committee at its initial meeting in June 1978. He requested the Committee to consider these welfare provisions as part of an ongoing study, but these further investigations and reports are outside the scope of the reference on Criminal Law from the Minister of Justice.
The present law for dealing with young people who come into conflict with the law is contained in a number of enactments, and that providing for court procedures and appearances is Part V1 of the Child Welfare Act 1961. Under this Part, Children's Courts are established as courts of summary jurisdiction with power to hear and determine a prosecution taken against a child. Child is defined in the Act as a boy or girl under the age of sixteen years. In respect of any offence, other than homicide, the court has power to inflict as punishment:-
(1) a fine not exceeding K100, or
(2) a sentence of imprisonment not exceeding 6 months.
Alternative punishments such as chastisement by parents, guardians or other person may satisfy the requirements of the Act, or good behaviour bonds can be entered into or the matter can be adjourned to allow the child to remedy damage, loss or injury caused by the child. The Court may also deal with a child under the welfare provision of the Act and many children are in fact dealt with under these provisions for what in effect are criminal transgressions.
It is clear that the present provisions relating to children are inappropriate to the present day needs of Papua New Guinea. The Children's Courts, while attempting to function as efficiently as they can within the constraints of the legislation are severely limited in the actions that they can take with a view to the rehabilitation of children.
It is not only the court functions which are ill-adapted for the handling of children. The whole system of criminal investigation, arrest and bail procedures, sentencing and custodial measures almost seem to be devised and administered so that the interest of a child cannot be taken into account. There are frequent reports of arrested children being held in police cells for days at a time, of courts sentencing children to substantial periods of imprisonment for minor criminal offences, of children being held in prisons along with adult offenders, of the almost total lack of probationary services, of the lack of custodial services adapted for children, of the lack of alternative remedies for dealing with children, and the lack of any rehabilitative program. Two recent instances of how the system can break-down to the detriment of young people. A girl aged 10 sentenced to 10 days imprisonment for playing cards for money. A boy of 14 sentenced to 6 months hard labour for stealing K2.00 worth of coffee beans.
We believe that there must be a comprehensive overhaul of all the child welfare provisions and in particular those relating to the criminal jurisdiction, so that the efforts of all concerned are directed towards rehabilitation rather than punishment. In this belief we believe that we are acting in accord with the view of the majority of people who are dealing with the young. There is general agreement that the present system does not achieve its intended results.
Clearly prevention is better than cure. The committee called together by the Minister for Home Affairs has been asked to investigate the broader aspects of child welfare and a great amount of work has to be done in this field. If the neglected, or uncontrolled child or the child who is in danger of coming in conflict with the law can be detected, cared for and dealt with from a welfare view point before he becomes a subject of criminal proceedings, then society and the child benefit enormously. Obviously action is necessary as being a part of a whole scheme affecting children. But we are very conscious of the immediate problems of children being apprehended, appearing in court and in far too many cases being imprisoned. We believe that immediate steps must be taken to provide facilities and procedures so that wherever possible, the young person who has broken the law may be rehabilitated and returned to society as good citizen rather that as an "apprentical criminal".
The present proposals are put forward in the full realisation that legislation alone is insufficient to overcome or even alleviate the problem. The good will and cooperation of many people will be required if the basic proposals outlined in this paper are to be introduced and operated effectively. Old attitudes will have to be put aside and a fresh approach taken on how best to deal with young people.
Too often an adult approach is taken towards the young offender which is completely inappropriate to the age of the person and the gravity of the offence. Youthful offending is prevalent, particularly in the urban areas, and the reasons expressed as being the causes are many. They range from lack of educational opportunities, unemployment, family breakdown, urbanisation, to a breakdown of melanesian traditions. Whatever the reasons for the youth crime rate, the problem is a community one, and the community is responsible to a great degree for the present situation.
In dealing with young offenders, all too often very harsh measures are used which are completely out of proportion to the age of the offender and the seriousness of the crime. It almost seems as if society is saying that it has a problem with a young person, that if the young person is removed or locked up, the problem will go away. However, the young person returns to the community as an outcast and has no apparent alternative but to return to crime, most probably with some success until he is caught as a result of some crime and returned to jail.
The pressures on the Correctional Institutions Service is so great that it can barely cope with the number, let alone provide any form of rehabilitation.
There is also a tendency to impose on young people sentences which are proportionately more severe than an adult would be given in similar circumstances particularly where cases of petty theft are concerned. A young person may be deprived of his liberty for a considerable period while an adult may be dealt with by a fine.
This situation is most probably a result of the lack of alternatives available to the court when sentencing. The punishments available under the Child Welfare Act are very limited, giving very little alternative to fine or imprisonment.
If the problem of youthful offenders is regarded as a concern of society, then it is up to society to bear some responsibility in dealing with the youthful offender. Although sentence following conviction for a criminal offence may contain some element of punishment, and society demands this, ideally any form of sentence should also have as its aim the rehabilitation of the offender, so that he can become a useful member of the community. This is, in our opinion, particularly important where young people are concerned.
While in the past the main emphasis has been on the various individuals and organisations who deal with crime prevention and detection, the administration of justice and the penal institutions, we believe that the time has come for a change of emphasis and that the needs of the young person, particularly rehabilitation and also his treatment according to his age should be emphasised.
To this end the draft Youth Court Services Bill has been included in this paper to show in detail the proposals of the Home Affairs Committee and the Law Reform Commission.
It is quite apparent from discussions held by the Joint Committee and the response to Joint Working Paper No. 14 that the proposals for dealing with young persons generally represent the thoughts and opinions of people who are deeply concerned in the welfare of youth.
Time and again it has been emphasised that where a young person has become involved with the law he is in need of protection and advice. Under the present administration of the criminal law system the young person is completely disadvantaged. He is merely an object caught up in a bureaucratic machine which has very little regard for youth, and its needs. Although there are a number of individuals and organisations who are very concerned with the problems of youth and who, in spite of their lack of numbers, finances and facilities, are very effective in their efforts to secure guidance, justice and rehabilitation, they are so thinly spread throughout the community that it is surprising that they are so effective. But they cover only a small number of young people and the vast majority are at the mercy of the system.
It goes without saying that the youth of the country are one of its greatest assets. If the country is to continue to develop and grow that proportion of youth who infringe against the 1 law should be dealt with on a basis which is constructive to the community. Although there are many judges, magistrates, police, welfare workers, religious groups and individuals who are concerned with problems of youth and their involvement with the law, the laws and the systems are such that many of these efforts and intentions are stifled. Therefore we propose some radical changes to the law all of which should be for the benefit of the young person and the community as a whole.
The most basic proposals are –
(1) To preserve and enforce the legal and constitutional rights of the young person during criminal investigation, arrest and court appearance. We believe that in most cases, the young person is completely confused and bewildered by the police investigation and court process and that advantage is frequently taken of his age and immaturity. We propose that youth service workers should be available to advise and assist the young person, and also to assist the police and the courts.
(2) A child under the age of ten years, we believe is too young to be held criminally responsible for actions which might otherwise constitute an offence. In such circumstances the remedies for antisocial behaviour are better handled by the family or the welfare authorities. We propose that a child under 10 years of age be exempt from criminal proceedings. At present under Section 29 of the Criminal Code, a child under the age of 7 years is not criminally responsible, while from 7-14 years he is presumed not to be criminally responsible, - a rebuttable presumption.
(3) We believe that the Court, as the body which dispenses justice should be more orientated to rehabilitation rather than punishment or the removal of the offender from society. But we also acknowledge that in some circumstances there may be no alternative to imprisonment or deprivation of liberty. We propose that the range of sentences or dispositions available be greatly increased so that the young person found guilty of an offence can be dealt with according to the circumstances of the case. We also believe that the courts should maintain a continuing interest in the rehabilitation of the young offender and for this purpose we propose that there be introduced a system of review for dispositions by which, at regular intervals, the progress of the young person may be considered and if appropriate beneficially altered as an encouragement and a reward and to enable the young person to resume his place in society.
The Commission believes that this review is properly the function of the court, although there was a strong feeling by some members of the joint committee that it would be more appropriate for the Director of Youth Court Services to make the variations of disposition. The Commission maintains its belief for the following reasons:
(a) It is desirable and necessary for the court to maintain a continuing oversight of young persons it has dealt with.
(b) Sentencing is a judicial function and any variation of sentence or severity should be dealt with by the body handing down the original order.
(c) Despite the best intentions of the Director or his staff, there could be some partiality in favour of the system or the institution. The Court, by its very nature must be independent and can take an impartial viewpoint between the young person and the system. Although of course it would be advised by the Director as to the progress of the young person, and no doubt would take into account any recommendations.
(d) The proposal also envisages the setting up of a group of persons to be known as "youth service worker" whose function will be to provide advice and assistance to the young person and to the courts. Also it is proposed that a probation service be set up so that a supervisory service will be available as an alternative to custody, and also as a rehabilitative measure.
(e) Facilities which are specifically conducted for the youthful offender must be established and maintained. In these apart from the custodial or punitive aspect, programmes of education, training and rehabilitation must be instituted.
Below the age of 10 years, a child should not be subject to criminal proceedings. If a child is in trouble with the law, he should preferably be dealt with under the welfare provisions of the Child Welfare Act 1961. Part I1 of the Bill places a total prohibition on the bringing of criminal proceedings against a child and also provides for action to be taken on the arrest of a child.
In the definition section a “young person” means a person between 10 and 16 years of age inclusive. Above the age of 16 years a person is recognised as an adult for many purposes. Although there are some 15 and 16 year olds who are very experienced and wise in their ways, many more who by reason of immaturity and inability to cope with modern day living are in need of protection and help when they are involved with the police and the courts.
Determination of age is difficult in Papua New Guinea, but it is very important when determining whether or not a Youth Court has jurisdiction. Too often the police estimate of age is taken as being the age for the purposes of the court, whether a Children's Court, Local or District Court. In order that the young person be dealt with by the appropriate court, the court will be required to make a determination of age if this is at all in doubt.
Where a child is arrested it is most important that information as to the whereabouts of the child and the reason for his restraint be notified to a parent, relative or adult friend of the child and to a youth service worker. The child should be immediately released to the care of some person. The notification and release must take place within 12 hours. Some consider this too long a period.
It is envisaged that the present Children's Courts would continue to function as Youth Courts but new courts could be established as and where required. The Youth Courts would have the same jurisdiction as the present Children's Courts for dealing with criminal offences committed by young people. It is proposed that some jurisdiction remain in the National Court, but that the National Court be conducted as a Youth Court when hearing these more serious matters.
This is a most important provision. It is essential that only magistrates who are suitable for dealing with young people be appointed to Youth Courts. Also participation by the community is beneficial where suitable lay members are available for appointment to assist the court. In the part, the system of appointment of lay people has been cumbersome and otherwise well qualified people have not be able to act as lay members because of financial hardship. We consider that this should be rectified by some payment.
In many cases, justice can be served without the requirement of the formality of a court room setting. There does not seem to be any valid reason why the court should not sit at another place when appropriate.
There are a number of reasons for closing court proceedings to the public and for maintaining strict confidentiality of records and matters arising out of investigations. Firstly, educational opportunities, employment and the future prospects of a young person can be severely affected if it becomes public knowledge that he has a conviction as a result of some indiscretion which he may have committed when young. Also in the more criminally hardened youth, there is a tendency to relish any publicity. Families, schools and employers can suffer embarrassment and shame where someone with whom they are involved has to appear before court. If reasonable efforts are to be made towards rehabilitation, the young person should be protected as far as is practicable from unnecessary publicity which could hinder his return as a useful member of society.
Although the provisions of the Arrest and Bail Acts apply to young persons there is an unfortunate tendency for them to be held or remanded in custody where this is either not necessary or is, in fact, against the best interests of the young person. The Bill proposes that wherever possible a young person under arrest or on remand be released to the care of some person, or released on bail and only as a last alternative be remanded in custody.
Strict requirements are set down as to notification of arrest and any form of detention so that families and the youth service worker are aware of what is going on and may take what action is necessary for the welfare of the young person.
Where a young person appears before a court, by reason of lack of understanding or age or language difficulties, he may not understand what is going on. The court has a very heavy responsibility to determine on asking the young person whether he pleads guilty or not guilty. A simple yes o r no may not be sufficient. The Bill will require the magistrate to follow a strict procedure in determining whether a young person is in fact pleading guilty or not guilty.
If a difficult matter of law is to be decided before the court, it should not be deprived of legal argument or advice merely because the person before it is young, or he cannot obtain legal representation. It is proposed that where appropriate, the court shall have a discretion to call for legal assistance.
In conducting the court hearings, it is hoped that undue formality and over strict legal procedures will be dispensed with, and proceedings may be held in a relaxed and informal manner.
Although subject to the criminal law, a person under 15 years should not have to suffer in later life for a conviction entered against him while very young. He may be found guilty by a court and be subjected to a disposition but the administrative action of the court of recording a conviction will be avoided.
A young person under the age of 15 years should not be sentenced to a term of imprisonment in a Correctional Institution. Between the ages of 16 and 17 he should not be imprisoned unless that Institution has separate youth facilities. Apart from the Constitutional requirements as to the segregation of the young from the adult prisoners, an adult prison as such is not a proper place in which a youth of 17 or under should be confined. There would be additional places of secure custody apart from corrective institutions and these should be utilized where possible.
The range of dispositions available to the court is much wider than that allowed for in either the Criminal Code or the Child Welfare Act. From discharge without conviction, it ranges through compensation, community work, restitution, probation, fine, open or relaxed custody, secure custody to imprisonment.
If the court is to commit a young person to any form of custody, it must give written reasons for its decision. This is expected to lessen the tendency of some magistrates to sentence young people to imprisonment for what in reality are minor offences.
For a system to work where rehabilitation is one of the major factors to be considered, it is necessary for the court to be informed as fully as is possible of the young person's background so that it may give consideration to the type of disposition that is most appropriate in the circumstances. Before the court comes to a decision as to the disposition to be ordered, it must consider a predisposition report, prepared by the youth services worker in the case.
If a young person is to be rehabilitated and return to the community, it is essential that some form of continuing interest should be taken in his progress. Although there was some support for the proposition that the Director of Youth Court Services should have the power to vary dispositions depending upon the progress of the young person, it was the opinion of the majority of the committee that the court, which after all is responsible for the type of disposition ordered, should be given this power.
A provision has been included in the Bill which would allow the court at no less than six monthly intervals to review the disposition if it has not expired already. If the young person is responding favourably to the terms of the disposition, the court would be able to vary the disposition in favour of the young person, or it may on the other hand confirm the disposition. In this way the court will be required to maintain a continuing interest in the young person and will be able to take some positive action towards his ultimate rehabilitation.
Although an informal type of probation exists at present in a very limited manner, it is essential that a probation service for young people be established so that, if necessary, young persons whom the court releases back into the community can remain under supervision and be made to comply with the terms of the probation order which would be made by the court.
Where a young person wilfully fails to comply with a disposition, or fails to comply with a probation order, or escapes or attempts to escape from custody, he should be brought back before the youth court to be dealt with according to the circumstances. We do not think that imprisonment on default for failing to comply with a disposition or failing to pay a fine is helpful or appropriate where young people are concerned.
As with the proceedings before a Youth Court, the records of the court, the police and any other person having anything to do with the criminal proceedings concerning young people should be confidential and available only for the purposes of investigation, the court and any subsequent disposition and rehabilitation or training. The police should not retain fingerprints and photographs of persons under 17 years, and that the right to fingerprint and photograph be under the supervision of the court.
There is a need for an organisation to be set up to organise and co-ordinate the services needed if the proposals suggested in this Report are eventually implemented. Present efforts are very fragmented and unco-ordinated although much useful work is being done by government departments, private organisations and individuals.
There is a need for the establishment of a probation service, and also for a special category of social workers or youth service workers, who play a far more active role than the present welfare workers.
Voluntary and charitable organisations and individuals should be given a place within the system in order to continue the very necessary work which is being carried on at present by them.
The Correctional Institutions Service, would play only a minor role in the implementation and administration of the proposals in the Bill, being only concerned with those young people, who as a last resort are sentenced to imprisonment. Where the young person is committed to custody other than imprisonment we believe that he should be placed in a special institution, outside the prison system but under the general control of the Director of Youth Court Service. In such a institution, the young person, while undergoing a period of custody, would be able to participate in the training programs and schooling which it is proposed will be available at these places.
As mentioned under "Present Problems", legislation alone is insufficient to rectify any problems. If as we suggest, the problem of the young offender is of great concern in this country, then clearly expenditure of money will be required to provide the services and facilities needed. The Correctional Institutions Service is extended to the stage of having difficulty in coping with the numbers of adult prisoners, let alone providing the separate facilities for youth prisoners as required by the Constitution. Welfare officers are spread so thinly, and their powers are so limited that apart from the truly dedicated individuals, their efforts are lost in the size of the problems.
Papua New Guinea is a young country, not only in terms of political independence but also in the average age of the population. Although we have no reliable source that we can quote, we understand that more than fifty percent of the population is aged under 20 years. The youth of the country is one of its major assets and if some or a large majority of those who offend against the law can be successfully rehabilitated instead of continuing a criminal career, then the benefit will be enormous.
The provision of facilities and assistance for young people who have come into conflict with the law is only partial relief. There must be an associated program aimed at prevention and welfare where the interests of the young person are catered for, but that is outside the scope of this paper.
We are concerned with the continual reports of young people being maltreated, having their rights infringed and in general being dealt with and considered as if they were somewhat less than members of the Papua New Guinea society. If a young person is accused of committing an offence, he is innocent until proven guilty, is entitled to the protection of the law, is entitled to be dealt with according to his age and abilities and, above all, should be entitled to make a comeback and become a useful member of society. If recidivism is to be contained and the number of re-offenders limited, society must bear the cost of providing the facilities and manpower required. Clearly the present problem is serious and if there is to be any improvement, money will have to be spent in providing the facilities and providing the manpower and training needed to carry out the scheme envisaged.
If the Youth Court Services Bill is to become law an energetic program of recruitment, training, finance and the provision of facilities will need to be undertaken.
The major burden of the work will fall on the Department of Home Affairs. This will require the recruitment and training of Youth Service Workers and Youth Probation Officers. The Magisterial Services Commission would need to undertake a program of selection and training, both of Youth Court Magistrates and of lay members.
Although some facilities exist for the custody and training of young people, these are obviously inadequate for the requirements for custody, rehabilitation and training. Remand and assessment centres are needed in most centres and clearly the Departments concerned and the Government will need to consider a substantial allocation of manpower and funds if constructive steps are to be taken in coming to terms with the problems of youth.
It is not sufficient to merely pass an Act of Parliament. The passage of legislation must be accompanied by a commitment of support both financial and administrative.
----------------------------------------
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
No. of 1979
Youth Court Services Bill, 1979
ARRANGEMENTS OF CLAUSES
PART I - PRELIMINARY AND OBJECTS.
Interpretation.
Interests of young person paramount.
PART I1 - CHILDREN.
Criminal proceedings against a child.
Action to be taken on arrest of child.
PART 111 - ESTABLISHMENT OF YOUTH COURTS.
Youth Courts may be established.
Jurisdiction of Youth Courts.
Determination of age.
National Court to exercise jurisdiction as a Youth Court.
Appointment of Magistrates and lay members.
Determination of Youth Courts.
Sittings of Youth Courts.
Proceedings not open to the public.
Information not to be communicated.
Proceedings not to be published.
PART IV - DETENTION ON ARREST OR REMAND.
Special provisions on detention of young persons.
Notification of Youth Service Worker and parent or relative.
Procedure of court in taking plea of young person.
Legal assistance.
Medical examinations.
Issue of insanity.
Adjournments.
Conduct of hearing.
PART V - DISPOSITIONS.
Limitation on convictions and imprisonment.
Dispositions.
Factors to be taken into account in Committal to Custody.
Pre-disposition Report.
Review and variation of dispositions.
Grounds for variation.
Variation or termination of disposition.
Probation Orders.
Offences.
Travelling while in custody.
Transfer of disposition and records.
PART V1 - APPEALS.
Appeals.
PART V11 - RECORDS.
Limitations upon finger printing and photographing.
Confidentiality of court records.
PART V111 – ADMINISTRATION
Appointment of director.
Delegation.
Director to be guardian.
Appointment of Youth Service Workers and Youth Probation officers.
Employment of Youth Service Workers and probation officers.
PART IX - POWERS AND FUNCTIONS.
Director to be Guardian.
Powers and functions of Director.
Young person remaining in care over the age of eighteen years.
Powers and duties of youth service workers.
Powers and duties of youth probation officers.
Indemnity and compensation.
PART X - INSTITUTIONS.
Establishment of Institutions.
Institutions to provide facilities.
Director responsible for welfare of young persons in custody.
Operation of Institutions.
Reports to be made.
Management of institutions.
Restriction on entry to institution.
Time limits in institutions.
PART XI - REGULATIONS.
Regulations.
----------------------------------------
Law Reform Commission Draft
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
A BILL
for
AN ACT
Entitled
YOUTH COURT SERVICES ACT 1979
Being an Act -
(a) To provide for the establishment of Youth Courts for dealing with young persons who may be in conflict with the law;
(b) To make provision for the procedures to be adopted and followed in respect of the arrest and charging of young persons;
(c) To provide for the sentencing or disposition of young persons who have been found guilty of or who have pleaded guilty to an offence;
(d) To provide for the establishment of the position of Director of Youth Court Services;
(e) To provide for the establishment of suitable advisory, rehabilitative services, and rehabilitation of young persons;
(f) For other purposes.
MADE by the National Parliament to come into operation in accordance with a notice published in the National Gazette by the Head of State, acting with and in accordance with, the advice of the Minister.
PART I - PRELIMINARY AND OBJECTS
INTERPRETATION
In this Act, unless the context otherwise requires, or some meaning is clearly intended -
"assessment centre" means a place or institution approved under Section 47 for the
investigation and assessment of young persons, appearing before the Court.
"care" means in the care and control or custody of the Director or of any other person
under the authority of this Act;
"child means a person who is under the age of 10 years;
"the court" means a Youth Court established under Section 6 of this Act;
"Director" means the Director of Youth Court Services appointed under Section 38 of this Act;
"disposition" means an order of the court made under Part V;
"guardian" means a person having the legal right to be in charge of or have control over
a young person to the exclusion of all others;
"place of open custody" means a place or institution approved under Section 47 as a place where a young person may be detained in conditions which will allow him to attend employment or school or other activities outside the confines of the institution;
"place of secure custody" means a place or institution approved under Section 47 as a place where a young person is detained in conditions of strict security;
"remand centre" means a place or institution approved under Section 47 as a place where young persons may be held on remand while awaiting trial or disposition;
"responsible person" means a parent, adult relative or adult friend of a young person who has a legal or moral duty to support or care for the young person but does not include a youth service worker or a probation officer;
"superintendent" means the person in charge of a remand centre, a place of open custody and or a secure custody;
"young person" means a person who has reached the age of 10 years and is under the age of 17 years;
"youth probation officer" means a person appointed as a youth probation officer under Section 39;
"youth service worker" means a person appointed under Section 39 of this Act.
Note: This section defines terms used in the Act.
2. INTERESTS OF YOUNG PERSON PARAMOUNT
(1) Any person who exercises in respect of any young person any power, responsibility or authority shall regard the interests of the young person as the first and paramount consideration.
(2) To the extent that it is consistent with Subsection (I) that person shall do all things necessary to-
(a) secure for the young person such care, guidance, treatment, correction, rehabilitation or punishment as is necessary for the welfare of the public interest; and
(b) conserve or promote as far as it may be possible a satisfactory relationship between the young person and others (whether within his family, his domestic, educational or work environment, or the community at large.)
PART II - CHILDREN
3. CRIMINAL PROCEEDINGS AGAINST A CHILD
Notwithstanding the provisions of any law or of any other Act no criminal proceedings shall be brought against any child in any court.
Note: This section places a complete prohibition on the bringing of any criminal proceedings against a child that is a person under 10 years old. However, in the case of a neglected or uncontrolled child, the welfare provisions of the Child Welfare Act 1961 will still apply.
4. ACTION TO BE TAKEN ON ARREST OF CHILD
(1) Where a member of the police force, or any other person, upon arresting a child restrains his liberty, he shall as soon as is possible, and no later than 12 hours after the time of the arrest, notify a responsible person and a youth service worker the whereabouts of the child and the reason for his restraint.
(2) Any child who is arrested shall immediately be released into the care of a responsible person or a youth service worker, or if that is not practicable be place in a remand centre until he can be released or brought before a magistrate.
(3) If a child is arrested and is not released into the care of a responsible person or a youth service worker within 12 hours of his arrest, he shall be brought immediately before a magistrate together with reasons why he has not been released.
(4) A magistrate may order the release of the child to any person he thinks fit or, if he considers it appropriate, may deal with the child under the provisions of the Child Welfare Act, 1961.
Note: In some cases, children have been arrested and kept in a lock up for considerable periods of time. Under this section, where a child is arrested a responsible adult must be notified and also a youth service worker within 12 hours of the arrest. The child must be released to some person, or if this is not practicable, is to be placed in a remand centre. If the child cannot be released the court may deal with him under the provisions of the Child Welfare Act, 1961.
PART Ill - ESTABLISHMENT OF YOUTH COURTS
5. YOUTH COURTS MAY BE ESTABLISHED
(1) The Head of State may, from time to time, by notice published in the National Gazette; establish such number of Youth Courts as may be required for the purposes of this Act.
(2) Any notice under Subsection (1) may in like manner be altered or revoked at any time.
(3) A Children's Court established under the Child Welfare Act, 1961 shall, from the date of coming into force of this Act, function as a Youth Court as if it had been established under this Act.
(4) Youth Courts established under this section may be established to exercise jurisdiction in respect of any areas or places specified in the notice.
Note: This section allows the setting up of Youth Courts where necessary throughout the country and continues the operation to the present Children's Court as Youth Courts. The courts would exercise jurisdiction in areas and places specified and a could, if required, move on circuit.
6. JURISDICTION OF YOUTH COURTS
(1) Subject to this Act, and the Village Courts Act 1973, the court -
(a) shall in respect of young persons hear and determine summarily all offence which would otherwise be triable summarily in a District Court or a Local Court; and
(b) shall in respect of young persons hear and determine summarily all offences which would normally be tried upon indictment in the National Court with the exception of the crimes specified in Chapters XXVIII and XXXII of the Criminal Code 1974 which subject to Section 8 shall be heard on indictment in the National Court.
(c) shall, notwithstanding any provisions to the contrary, hear and determine all complaints and applications under the Child Welfare Act 1961 and under this Act.
(2) Subject to any period of limitation on the bringing of proceedings where a person who is under the age of twenty one years is charged with having committed an offence while a young person, proceedings shall be taken against him in the court.
(3) Proceedings commenced in the court against a person while under the age of twenty one years may be continued in the court after he reaches the age of twenty one years.
(4) Where in respect of an act or omission on the part of a person alleged to have been committed while he was a young person no information has been laid before he reaches the age of twenty one years, the person may not be proceeded against in the court.
(5) Where in respect of any act or omission on the part of a person the court determines under Section 7 that at the time of committing the alleged offence, the person was a child shall be discharged.
(6) Where in any proceedings against a person, the court makes a determination under Section 7 and that at the time of committing the alleged offence the person had reached the age of seventeen years, the court shall transfer the proceedings to the District Court or the Local Court as the case may require.
Note: This section provides the Youth Court with jurisdiction to hear and determine offences which would be triable summarily in a District or Local Court. The jurisdiction
of Village Courts is not affected. The degree of criminal responsibility and the sentences available should be related to the time of commission of the offence. The National Court would retain jurisdiction in some cases, e.g. murder, manslaughter and rape.
7. DETERMINATION OF AGE
(1) Where in any proceedings under this Act, there is doubt as to the age of a person, the court shall, on such information as is available to it and having regard to the development, maturity and conduct of the person, determine the age which shall be the age for the purposes of the proceedings before the court.
(2) Where on the apprehension, arrest or detention of a child or young person, there is doubt or dispute as to the age of a child or young person, subject to Subsection (1) and in the absence of evidence to the contrary, the age shall be determined by a youth service worker.
Note: This section allows the Youth Court to determine the age of a person so that the court can decide whether or not it has jurisdiction. Any determination of age made by the court shall be final for the purposes of the proceeding. On occasions where age is in dispute for the purposes of arrest or charging, the matter should be determined by a youth service worker.
8. NATIONAL COURT TO EXERCISE JURISDICTION AS A YOUTH COURT
(1) Where a young person is charged with an indictable offence which is not within the jurisdiction of the court to hear, the National Court shall hear the charge upon indictment.
(2) Where a preliminary examination is held under Part V1 of the District Courts Act 1963 in respect of a young person charged with an indictable offence, the examination shall be held in a Youth Court before a magistrate appointed under this Part but lay members shall not be present on the Youth Court while the examination is held.
(3) The provisions of Section 14 relating to the publishing of proceedings shall apply in respect of any preliminary examination or the hearing of an indictable offence in the National Court.
(4) The National Court shall, where practicable, apply the practice and procedural provisions of this Act as if it were sitting as a Youth Court, and the provisions of Section 11 relating to lay members sitting on the court shall apply, with any necessary modifications.
(5) The National Court may, where appropriate and as an alternative to the punishments provided under the Criminal Code, apply the provisions of Section 24 in respect of a young person found guilty of or pleading guilty to an indictable offence, and the provisions of Part V shall apply in respect of any disposition made by the National Court.
Note: This section allows the National Court to retain jurisdiction in respect of the more serious indictable offences which, apart from murder, are heard in Children's Courts. The National Court is required to apply the practice and procedure of a Youth Court allowing some flexibility having regard to the age of the young person and the circumstance of the trial. Lay persons sitting with the National Court could be of benefit in the hearing just as much as they are expected to be in the Youth Court.
9. APPOINTMENT OF MAGISTRATES AND LAY MEMBERS
(1) Except where this Act otherwise provides, the jurisdiction of the court shall be exercised by a magistrate appointed under this Section together with one but no more than two lay members similarly appointed.
(2) The Chief Magistrate may appoint a magistrate to exercise jurisdiction in the court, and in making such appointment, he shall consider for appointment only magistrates who by reason of experience, training and qualification, are most suitable for dealing with young people.
(3) In the absence from duty at any court of a magistrate appointed to exercise jurisdiction under this Act, or in any case where there is for the time being no magistrate appointed to exercise jurisdiction in the court, any magistrate, apart from a magistrate Grade I, may exercise jurisdiction to hear and determine the matter unless it appears to the court that it would be in the best interests of the young person that the matter be heard before a magistrate appointed under this Section, in which case the matter shall be adjourned until such magistrate is available, but in no case shall the adjournment exceed 14 days.
(4) At least one and not more than two lay persons shall sit with a magistrate when any matter is heard and determined in a court. Where for the time being there are no lay members appointed for a court, or no lay member is present for a sitting of the court, a magistrate appointed under this section may sit alone to hear and determine any matter if it is in the interests of the young person not to have the matter adjourned to enable a lay member or members to be present on the court.
(5) The Chief Magistrate