Subject 3 Flashcards
What is a child according to sec 1 of the CJA?
Any person under 18 but in certain circumstances any person who is over 18 but under 21
What are the objectives of the CJA as held in sec 2?
(a) protect the rights of children as provided for in the Constitution;
(b) promote the spirit of ubuntu in the child justice system
(c) provide for the special treatment of children in a child justice system designed to break the cycle of crime
(d) prevent children from being exposed to the adverse effects of the formal criminal justice system by using, where appropriate, processes, procedures
(e) promote co-operation between government departments, and between government departments and the non-governmental sector
What are the guiding principles of the CJA as held in sec 3?
(a) All consequences arising from the commission of an offence by a child should be proportionate to the circumstances of the child
(b) A child must not be treated more severely than an adult would have been treated in the same circumstances.
(c) Every child should, be given an opportunity to participate in any proceedings
(d) Every child should be addressed in a manner appropriate to his or her age and intellectual development
(e) Every child should be treated in a manner which takes into account his or her cultural values and beliefs
Which category of children does the CJA apply to as held in sec 4?
(a) Child under the age of 12 years at the time of the commission of the alleged offence
(b) Child 12 years or older but under the age of 18 years when he or she was -handed a written notice,summons, arrested
(c) where DPP directs that the Act applies to a person who is older than 18 and under 21 when recieving written notice, summons, arrested
Preliminary Enquiry
What is the preliminary enquiry in respect of the child?
An informal pre-trial procedure which is inquisitorial in nature and may be held in court before the child appears at the CJC
Preliminary Enquiry
What are the objects of the preliminary enquiry?
1.Determine whether the matter can be diverted
2.Consider the probabtion officers assessment report
3.identify suitable diversion options
4.Referral to the children’s court
5.Encourage the childs’ participation in decsions
6.Determine the release/placement of a child
7.Consider views of all persons involved in the process
Assessment of the child
What is the assessment fo the chid according to sec 34 of he CJA?
-Every child who is alleged to have committed an offence must be assessed by a probation officer
-Probation officer must asses the child after the child has been handed a summons,written notice or they were arrested before they appear at the preliminary enquiry
-A child under 12 must be assessed within 7 days of notif. by polcie officer
Assessment of Child
What is the purpose of the child’s assessment ito sec 35?
(a) establish whether a child may be in need of care and protection
(b) estimate the age of the child if the age is uncertain;
(c) gather information relating to any previous conviction, previous diversion or pending charge in respect of the child;
(d) formulate recommendations regarding the release or detention +placement of the child;
(e) establish the prospects for diversion of the matter;
(f)determine whether the child has been used by an adult to commit the crime in question
Assessment of Child
How is information obtained at the assessment treated ito sec 36 of the CJA?
Any information obtained at an assessment is confidential and-
(a) may only be used for any purpose authorised by this Act, including at a preliminary inquiry; and
(b) is inadmissible as evidence during any bail application, plea, trial or sentencing proceedings in which the child appears.
Assessment of the Child
What are the places where the assesment should be conducted as held in sec 37 of the CJA?
(1) The assessment of a child may take place in any suitable place identified by the probation officer:
- include a room at a police station, a magistrate’s court,
- offices of the Department of Social Development
- One-Stop Child Justice Centre.
Assesment of the child
Which persons must attend the assessment ito sec 38 of the CJA?
-The child, the child’s parent/guardian unelss excluded by probabtion officer
-(a) A diversion service provider;
(b) a researcher;
(c) any other person whose presence is necessary or desirable for assessment
-Probation officer must as far as possible locate the parent of the child to conclude the assessment
Assessment of the child
What duties does the probation officer have during the assement according to sec 39 of the CJA?
(a) explain the purpose of the assessment to the child;
(b) inform the child of his or her rights in the prescribed manner;
(c) explain to the child the immediate procedures to be followed
(d) inquire from the child whether or not he or she intends acknowledgingresponsibility for the offence in question.
Preliminary Enquiry
Which presiding officer presides over a preliminay enquiry?
Sec 43-A magistrate of a DC where child committed the offence regardess of whether the offence is one the DC cannot hear
What is the national instruction to police regarding the treatment of child offenders?
A child in conflict with the law must be assistsed by a parent/guardian+consult with his legal rep when making an admission,confession,i pointing out / being a suspect in an identity parade
Capacity
What are the various ages to determine criminal capacity of children ito sec 7 of the CJA?
(1) A child who commits an offence while under the age of 12 years does not have criminal capacity and cannot be prosecuted for that offence
(2) A child who is 12 years or older but under the age of 14 years and who commits an offence is presumed to lack criminal capacity, unless the State proves that he has criminal capacity
(3) A child who is over 14 has criminal capacity
How is a child below 12 years treated ito sec 9 of the CJA?
-A police official has reason to believe that a child suspected of having committed an offence is under the age of 12 years,they may not arrest the child,+ must hand the child over-
(a) parents/appropriate adult/guardian
(b) if no parent/ guardian is available or if it is not in the best interests of the child to be handed over> child handed to a suitable child and youth care centre, and must notify a probation officer.
What must the probation officer do after the child’s assessment for children who are 12 years and under?
Assess the child within 7 days of being notified of child’s arrest
-Refer child to children’s court
-counselling
-refer to accredited program for children under 12
-arrange support services for the child
-take no action
How is a child who is above 12 but below 18 treated?
> Right to not be detained+if detained it is for a short period
cannot be arrested for a schedule 1 offence unless there are compelling reasons
if child is arrested for a schedule 1 offence the child must be released ASAP before appearing at the PE
Detention
How may children be detained?
Children who are 12+ but under 14 and a child who is older than 14 charged with a schedule 1 or 2 offence be detained in an approp. child care centre + if centre is not availabe detain child in a police cell
-If a child is not yet released the police must give presiding officer written reasons that warrant further detention
Diversion
When can a prosecutor divert a matter involving a child?
2 Requirements:
1.Must be a schedule 1 offence
2.Child must meet requirements as set out in sec 52 of CJA:
(a) the child acknowledges responsibility for the offence;
(b) the child has not been unduly influenced to acknowledge responsibility;
(c) there is a prima facie case against the child;
(d) the child and, if available, his or her parent, consent to diversion
(e) the prosecutor indicates that the matter may be diverted
When does a preliminary enquiry not have to take place?
1.schedule 1 offence that has been diverted
2.child is under 12
3. Child is between 12 and 14 and criminal capacity cannot be proved
4.Matter is withdrawn
What happens if a child and adult are charged together in the same trial?
-Child must be dealth with ito CJA+ adult dealt with ito CPA
Preliminary enquiry
What orders can the prosecutor make after the PE?
-Refer matter to the childrens court
-divert the matter
-refer to Child Justice Court
Preliminary Enquiry
How is the child directed to appear at the PE?
- Summons
- Written Notice
- Warning by presiding officer
-Failure of child to appear the PO must enquire into reasons for failure to appear+determine if it is the childs fault
If it was the childs fault>postpone the case+if not the child’s fault provide same conditions to appear on another day
