You and Your Rights: Children and the Criminal Justice System
- The Child Justice Act emphasizes rehabilitating children arrested while between the ages of 10 and 18.
- Children 14 and older are legally defined as having full criminal capacity and are therefore responsible for their actions.
- Police may not arrest children aged 10 and under.
- Diversion programs aim to shield children from the negative effects of the criminal justice system, but can only be entered into when a child acknowledges his or her crime.
- Low- to mid-level (schedule 1 and 2) offences may ultimately be removed from a child’s record.
What is the Child Justice Act?
The Child Justice Act creates a unique and separate criminal justice system for children. The Act places an increased emphasis on restorative justice as well as on the rehabilitation and re-integration of children.
Who is legally considered a “child”?
According to the Constitution, a child is any person under the age of 18. However, the Child Justice Act recognizes that in certain instances, it would be fair to apply its provisions to persons older than 18 years. Therefore, the Child Justice Act creates three distinct categories of children and persons:
- Children under 10 years old at the time of the offence – while children under 10 are not criminally liable, the Act sets out procedures that apply to children under 10 who commit a crime. These include referral to a children’s court or counselling if necessary.
- Children over 10 years old but younger than 18 years at the time of arrest or when the summons or written notice was served on them – these are the children who the Act specifically targets and aims to protect.
- Persons between the ages of 18 and 21 who committed the offence when they were under 18 years of age – this provision recognizes that 18 to 21 year olds are still young and can benefit from the procedures in the Act.
What is Criminal Capacity?
“Criminal Capacity” relates to the age at which a child has the mental ability to distinguish between right and wrong and can understand or appreciate the consequences of his or her actions. It is the age at which children have the capacity to commit crimes and to accept responsibility for their actions.
The Child Justice Act has raised the minimum age of criminal capacity in South Africa to 10 years of age. Therefore, a child who (at the time of the alleged offence) is under 10, cannot be prosecuted. However, the Act provides for interventions for children who commit criminal acts but are under the minimum age of criminal capacity. These are educational and non-punitive measures rather than criminal sanctions.
The Act says that a child who is 10 years or older but under the age of 14 at the time of the alleged offence, is presumed NOT to have criminal capacity unless it is subsequently proved beyond a reasonable doubt that the child had such capacity at the time he or she committed the offence.
According to the law, children who are 14 years and older have full criminal capacity.
What kind of crimes does the Act deal with?
The Child Justice Act applies to all criminal offences. However it divides them into three schedules depending on the seriousness of the offences. Schedule 1 contains the least serious offences and Schedule 3 the most serious offences. These schedules then have different implications for children who are charged in terms of one of them.
If a child is charged with more than one offence and these are all dealt with in the same criminal proceedings, the most serious offence must guide the manner in which the child must be dealt with in terms of the Act.
Children and Arrest
Police may not arrest children under the age of 10. Police must hand the child over to his or her parents or a guardian. Police must also notify a probation officer that a child under the age of 10 years is alleged to have committed a crime.
Children over the age of 10 may not be arrested for a Schedule 1 offence unless there are compelling reasons justifying the arrest.
If a warrant of arrest is issued against a child, the police official that arrests that child must:
- Inform the child of his or her rights;
- Inform the child of the nature of the allegation made against him or her;
- Explain to the child the immediate procedures to be followed;
- And notify the child’s parent, an appropriate adult or guardian of the arrest.
Any child who has been arrested and remains in custody must be taken to the magistrate’s court as soon as possible but not later than 48 hours after arrest. This is regardless of whether or not an assessment has been done on the child.
Children and Pre-Trial Detention
The Act states that a child of 14 years and older charged with a Schedule 1 or 2 offence may only be sent to prison to await trial if there are substantial and compelling reasons to do so.
In addition, the Act provides that where a child is 14 years or older but under 16 years, and charged with a Schedule 3 offence, he or she may only be detained in prison if there are compelling reasons to do so. The Director of Public Prosecutions or an authorised prosecutor must also issue a certificate that shows that there is sufficient evidence to institute a prosecution against the child.
If the decision is made to detain the child before his or her first appearance at a preliminary inquiry, the police official must, depending on the age of the child and the alleged offence, consider placing the child in an appropriate child and youth care centre. If there is no centre near the court or if there are no places available in the centre, the child can be held in a police cell or lock-up pending his or her first appearance.
A child who is held in police custody must be:
- Detained separately from adults, and boys must be held separately from girls;
- Detained in conditions that will reduce the risk of harm to that child, including the risk of harm caused by other children;
- Permitted visits by parents, appropriate adults, guardians, legal representatives, social workers, probation officers, health workers, religious counsellors, etc.
- Provided with immediate and appropriate healthcare in the event of any illness, injury or psychological trauma;
- Provided with adequate food, water, blankets and bedding.
Children and Sentencing
One of the aims of the Child Justice Act is to increase the sentencing options available to the courts with regards to children.
The Act provides for the following sentencing options:
- Referral to counselling or therapy, which may include a period of temporary residence;
- Restorative justice sentences such as family group conferences and/or victim offender mediation;
- Fines or alternative fines which may include symbolic restitution, payment of compensation or any other option that the court thinks appropriate;
- Correctional supervision;
- Compulsory attendance at a non-custodial sanctions programme;
- Compulsory residence in child and youth care centres;
- Placement under the supervision of a probation officer on conditions, which may include the restriction of the child’s movement without prior written approval.
The Act states that a sentence of imprisonment may only be imposed on a child who is 14 years and older when sentenced. Furthermore a court may only do so as a measure of last resort and for the shortest appropriate period of time.
The Act states that the child can only be sentenced to imprisonment if convicted of a Schedule 3 offence; or a Schedule 2 offence where there are substantial and compelling reasons for imposing such a sentence; and a Schedule 1 offence, if the child has a record of previous convictions and substantial and compelling reasons exist for imposing a sentence of imprisonment.
These children may NOT be sentenced to more than 25 years imprisonment.
Diversion programmes are separated from the mainstream Criminal Justice System to prevent children from being exposed to the adverse effects of the formal justice system.
Instead of the normal prosecutorial processes, children are ordered to attend programmes to address their criminal conduct. Examples of “diversions” include the child making an oral or written apology; the child being referred to counselling or therapy; doing community service or paying compensation to the victim. The purpose of a diversion program is rehabilitative and to address the underlying problem that led the child to commit a crime.
A child is only eligible for diversion if they acknowledge their offence. The child’s compliance with the diversion order is monitored and reported back to the court. These diversions only apply to Schedule 1 offences.
Where Schedule 2 and 3 offences are involved, the child may be ordered to do a diversion but it will be supplemented with referral to intensive therapy, and/or compulsory attendance of vocational, educational or therapeutic programmes or placement. These will be under the supervision of a probation officer and may also include restrictions on the child’s movement.
Removing Criminal Records
The Act also allows for the expungement or removal of criminal records. Only criminal records for Schedule 1 and 2 offences may be wiped out. For Schedule 1 offences, a child’s criminal record can be removed after 5 years from the date of conviction and for Schedule 2 offences, after 10 years.
For the record to be removed or expunged, an application must be made to the Director-General of Justice and Constitutional Development. If the Director-General is satisfied that the child meets the requirements, he or she will issue a ‘Certificate of Expungement’.