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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.
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INTRODUCTION
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.
YOUNG OFFENDERS IN CONFLICT WITH THE LAW
INTRODUCTION
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".
PRESENT PROBLEMS
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.
THE PROPOSALS
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.
SUMMARY OF PROPOSALS
1. Age
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.
2. Children
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.
3. Youth Courts
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.
4. Appointment of Magistrates and Lay Members of Youth Courts
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.
5. Court Sittings
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.
6. Publicity and Confidentiality of Proceedings and Records.
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.
7. Detention and Arrest
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.
8. Court Appearances and Pleading
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.
9. Dispositions
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.
10. Pre-Disposition Reports
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.
11. Review of Dispositions
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.
12. Probation
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.
13. Offences
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.
14. Confidentiality of Records
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.
15. Administration
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.
FINANCE AND MANPOWER
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.
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THE INDEPENDENT STATE OF PAPUA NEW GUINEA
No. of 1979
Youth Court Services Bill, 1979
ARRANGEMENTS OF CLAUSES
PART I - PRELIMINARY AND OBJECTS.
PART I1 - CHILDREN.
PART 111 - ESTABLISHMENT OF YOUTH COURTS.
PART IV - DETENTION ON ARREST OR REMAND.
PART V - DISPOSITIONS.
PART V1 - APPEALS.
PART V11 - RECORDS.
PART V111 – ADMINISTRATION
PART IX - POWERS AND FUNCTIONS.
PART X - INSTITUTIONS.
PART XI - REGULATIONS.
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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
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 in consultation with the Director of Youth Court Services may appoint in writing and in respect of any court such suitably qualified persons from the local community to form a panel for lay members, any of whom may be selected to sit with a magistrate on the court.
(6) Any magistrate sitting alone may exercise jurisdiction for the purpose of doing all necessary acts preliminary to a hearing including the adjournment of a hearing, remanding any person charged with an offence, or releasing him on bail or otherwise, and in so acting, the magistrate shall be exercising the jurisdiction of the court, and the provisions of this Part, relating to publication and admission of the public to any proceedings, shall apply.
(7) (a) Regulations may be made authorising -
(i) the reimbursement of travelling and out of pocket expenses incurred by a lay member in connection with his attendance at the court for the purpose of sitting on the court; and
(ii) the payment of fees to a lay person for the purposes of attending and sitting on any court;
(b) A public servant or employee of a provincial government, local authority or statutory organisation may act as lay member of the court, and while so acting shall continue to receive salary from his employing authority but shall not be entitled to payment under sub-paragraph (a) (ii).
Note: This section allows the Chief Magistrate to appoint the better qualified and experienced magistrates for Youth Court. Also, the system of appointment of lay members is at present very cumbersome and slow. There is some debate as to the value of lay members, but we believe that community involvement and participation is of great importance in youth affairs. Many people who would otherwise be available are prevented by reason of financial hardship from participating as lay members. Subsection (7) is included to help in this regard and provision should be made for such payments.
10. DETERMINATION OF YOUTH COURTS
(1) Subject to Sections 8 and 9, a magistrate appointed under the provision of Section 9 shall preside at any sitting of the court.
(2) The persons sitting as the court shall decide any matter or question before the court by a consensus of opinion, but where this is not possible, and having regard to the proper administration of justice, the matter or question shall be decided according to the opinion of the presiding magistrate.
Note: This section provides for the full participation of the lay members, but reserves to the presiding magistrate the final authority for the making of any decisions which is very necessary where questions of law are to be decided.
11. SITTING OF YOUTH COURTS
(1) Sittings of the court may be held in any suitable place and not necessarily in a court house.
(2) In arranging the sitting of the court in any place, regard shall be had to the -
(a) holding of the proceedings with a minimum of publicity; and
(b) reducing to the least amount possible the extent to which persons attending the court are brought into contact with the general public or persons attending other courts.
Note: This section provides reasonable flexibility as to where the court hearing may be held.
12. PROCEEDINGS OF YOUTH COURT NOT OPEN TO THE PUBLIC
(1) No person shall be present at the hearing of any proceedings before a court except -
(a) any officer or member of the court;
(b) the persons immediately concerned with the proceedings and their lawyers or advisers;
(c) the parents or guardian or the person having the care of any young person concerned in the court proceedings, or any other person the court may admit as the personal representative of the young person;
(d) a youth service worker concerned with proceedings;
(e) a member of the Police Force concerned with the proceedings;
(f) any person who has supplied a report pursuant to section 26 or Section 27;
(g) any person called as a witness in the proceedings;
(h) any person specifically permitted or required by the court to be present.
(2) In the interests of public welfare and the welfare of the young person concerned no person may be present at any hearing of the court other than those specifically mentioned in Subsection (1).
(3) A witness called for any proceedings before the court may only appear for the purpose of giving evidence before the court and may not, except with the permission of the presiding magistrate, enter in or remain within the hearing of the court during any other part of the proceedings.
Note: Although there are provisions in Section 37 (12) of the Constitution requiring that court proceedings be held in public, we believe that it is in the interests of young people that their court appearances should not be open to the public particularly as some of the more criminally experienced youth thrive on the publicity of their criminal activities. Section 37 (13) of the Constitution allows the court to exclude certain persons if by law it is allowed to do so and it considers it to be necessary or expedient in the interests of public welfare, or the welfare of persons under the voting age.
13. INFORMATION NOT TO BE COMMUNICATED
(1) Except for the purposes of this Act, or in the course of official duties, or for the purposes of criminal investigation, it shall be unlawful for any police officer to communicate any information to another person concerning the criminal investigation, arrest, remand, court appearance, sentencing or disposition of a young person without the consent of the Director.
(2) Every person who communicates any information in contravention of this Section commits an offence, and is liable on summary conviction to imprisonment for a term not exceeding two months, or to a fine not exceeding K200 or to both.
Note: It is considered that it is most important that indiscretions and criminal activities of young people should not, where possible, become public knowledge to be held against them in later life or in seeking employment. In some cases, for statistical purposes or factors relating to the welfare of the young person, it is necessary for information to be communicated, in which case the Director of Youth Court Services can give his consent. Generally speaking, a total ban on communication of information should be maintained in the interests of young persons.
14. PROCEEDINGS NOT TO BE PUBLISHED
(1) No person shall publish any report of proceedings under this Act except by leave of the court which heard the proceedings. Provided that nothing in this Subsection shall prohibit the publishing of any such report in any publication of a technical nature intended in good faith for circulation among members of the legal, medical, teaching, psychological or social welfare professions or officers of the Public Service.
(2) In no case shall it be lawful to publish in any report of proceedings under this Act –
(a) the name of any young person or of a responsible adult having the care of the young person;
(b) the name of any school that the young person is or was attending or of his employer or of his village or place of residence; or
(c) any other particulars or names likely to lead to the identification of the young person or of his school or employer.
(3) Every person who published a report of any proceedings in contravention of this Section commits an offence, and is liable on conviction upon indictment –
(a) in the case of an individual, to imprisonment for a term not exceeding two months, or to a fine not exceeding K300, or to both;
(b) in the case of a body corporate, to a fine not exceeding K1,000 and
(c) in any case to pay compensation not exceeding K5,000, as the court may order, in respect of harm or loss brought about by such publication.
Note: This provision is in accordance with the laws of many countries where the need to protect young people from publicity is recognised. It is in accordance with the objects of the Act where rehabilitation of the young offender is one of the main aims.
PART IV - DETENTION ON ARREST OR REMAND
15. SPECIAL PROVISIONS ON DETENTION OF YOUNG PERSONS
(1) The provisions of this Section are in addition to the provisions of the Arrest Act, 1977 and the Bail Act, 1977 and in no way derogate from the provisions of those Acts which shall apply to young persons in the same manner as if they were adults.
(2) Upon arrest a young person may be released on bail under the provisions of the Bail Act 1977, or remanded to the care of a responsible person or remanded to an assessment or remand centre to appear at the next sitting of the court.
(3) If after being arrested a young person is refused bail, he shall be brought before the first available sitting of a court whether a Youth Court, Local Court or District Court whereupon the magistrate may either –
(a) release him into the care of another person under Subsection (7);
(b) release him on bail;
(c) remand him to an assessment or remand centre;
(4) Where a young person is granted bail after being arrested he may be required to appear at the next sitting of the Youth Court.
(5) Any proceedings held in a District Court or a Local Court under Subsection (3) shall be conducted as if they were held in a Youth Court.
(6) A young person remanded in custody to appear at a future sitting of the court may only be detained in a remand or assessment centre or, where no such centre is available, in a place approved by the court.
(7) As an alternative to remanding a young person or releasing him on bail, a magistrate may direct that the young person be remanded to the care of anyone who, in the opinion of the magistrate is a responsible person and who is willing to accept the young person.
(8) The factors to be considered in determining whether it is necessary for a young person to be placed in the care of another person pursuant to this Section or released on bail or on remand to an assessment centre are:-
(a) the interests of the young person;
(b) whether or not any restraint is necessary to prevent escape by the young person or injury to him or another; and
(c) whether the purposes of paragraph (a) can be served by placing the young person in the care of a responsible person who is willing to care for the young person and in whose care the young person is willing to be placed.
Note: Young persons after arrest, are frequently held in custody awaiting court appearances. In many cases this is neither desirable nor necessary. The emphasis in this section is wherever possible to release the young person back into the community, either on bail or into the care of family or friends. Failing this he could be placed in a remand or assessment centre where the needs of the young person can be catered for.
16. NOTIFICATION OF YOUTH SERVICE WORKER AND PARENT OR RELATIVE
(1) Any person, upon arresting a young person shall, as soon as practicable, notify a youth service worker as to the whereabouts of the young person and the reason for his restraint and shall allow the youth service worker access to the young person.
(2) Where a young person prior to the hearing of a charge against him, is remanded in a remand or assessment centre, or on bail, or placed in the care of another person the police officer in charge of the case shall, as soon as practicable, notify a youth service worker of the whereabouts of the young person and the reason for him being on remand or in the care of that person and shall allow the youth service worker access to the young person.
(3) Where the notices referred to in Subsections (1) and (2) cannot be given in writing, verbal notice shall be given but shall be followed by written notice as soon as possible.
(4) Upon receipt of a notice under Subsections (1) or (2) the youth service worker shall notify a responsible adult of the arrest of the young person and his whereabouts, and other relevant information.
(5) Where the responsible adult is not a parent of the young person, the youth service worker shall, where applicable, also notify the parent of the whereabouts of the young person and the circumstances of his arrest.
(6) Any person who receives a notice under this Section is entitled to attend any proceedings relating to the offence in respect of which the notice was given.
(7) Failure alone to give a notice pursuant to this section does not take away the jurisdiction of the court to deal with the case, nor is such failure alone a ground upon which a court may set aside a decision, finding or disposition ordering the release of a young person from custody.
Note: This section places strict requirements on the authorities as to notification of welfare services of the arrest and disposal of a young person. In many cases, young persons are held in custody with no one who is interested in their welfare being aware of the arrest, or whereabouts of the young person.
17. PROCEDURE OF COURT IN TAKING PLEA OF YOUNG PERSON
Where a young person appears before the court charged with an offence -
(a) The magistrate shall read the charge and where necessary question the prosecutor to obtain sufficient information to allow him to determine if an offence is disclosed and to explain the particulars of the charge to the accused;
(b) The magistrate shall put the charge to the defendant and shall read and explain the substances of the charge; if necessary by means of an interpreter, to the young person in a language that he understands and in such manner and in such terms as are in keeping with his age and understanding;
(c) the accused shall be asked to plead guilty or not guilty;
(d) if the accused pleads not guilty the matter may be adjourned to a date for trial, or it may proceed to hearing;
(e) if the accused pleads guilty, the prosecutor shall give the statement of facts to the magistrate, who shall put the individual allegations as questions to the accused person, requiring him to answer whether the allegations are true or not true;
(f) the magistrate shall record the answer of the accused person against each allegation;
(g) if the accused does not dispute any of the allegations and if an offence is disclosed a verdict of guilty shall be recorded;
(h) if the accused does not accept one or more of the allegations the magistrate shall decide whether or not the answers are sufficient to establish a plea of guilty on the facts remaining undisputed.
(i) if he so decides, the magistrate shall ask the prosecutor if he is prepared to accept the version of events offered by the accused as a plea of guilty or whether the prosecutor wishes to proceed to trial to prove all the particulars alleged in the statement of facts;
(j) if the prosecutor agrees to accept the version of the facts given by the accused then, provided that version discloses an offence, a verdict of guilty shall be entered and the accused shall be dealt with under the provisions of Part V;
(k) if the prosecution is not prepared to accept the version of the facts offered by the accused and, provided the difference in the version of the facts offered by the accused and the prosecution is substantial and material to the determination of guilt or innocence or the severity of sentence the magistrate shall change the plea to guilty and adjourn the matter to a date for trial;
(l) if on a plea of guilty and in response to the question put by the court to the accused prior to disposition as to what he has to say why the court should not pass judgement on him, (otherwise known as the allocutus) the accused alleges a defence or claims that he is not guilty, the plea of guilty shall be changed to not guilty and the matter adjourned to a date of trial.
Note: In dealing with young persons and in particular where there are difficulties of language it is necessary for the court to be sure that the accused knows the nature of the charge against him and understands it fully. This is vital in the determination of guilt or innocence. The procedure outlined in this section is followed in some courts, and we believe that this procedure should be followed in courts dealing with young persons.
18. LEGAL ASSISTANCE
(1) Where it appears to the court that having regard to -
(a) the nature of the offence with which a young person is charged;
(b) the difficulty in establishing the proof of any fact or matter;
(c) the difficulty or complexity of any questions of law; or
(d) any other reason which the court considers relevant;
it is in the interests of the young person or of the court that it should be assisted by a lawyer, the court may appoint a lawyer to assist it.
(2) Where a lawyer is appointed to assist the court, it shall be his duty to assist the court in its determination of matters of fact and of law, and for this purpose, he may
(a) call witnesses;
(b) adduce evidence;
(c) examine and cross examine witnesses; and
(d) present arguments and make submission on matters of fact and of law.
(3) If, after the commencement of a hearing the court is of the opinion that a lawyer should be appointed to assist the court, the hearing may be adjourned until the services of a lawyer can be obtained.
(4) Nothing in this section shall prevent a young person from being represented by a lawyer.
Note: This provision is a departure from the normal adversary procedure in the courts and allows the court, when faced with complex or difficult problems to seek legal assistance in order that it may more readily arrive at the truth of the matter or to resolve difficult questions of fact or law.
19. MEDICAL EXAMINATIONS
(1) Where the court in determining fitness to plead or the question of a suitable disposition order under Section 24 has reason to believe that the young person may be suffering from any physical or mental illness and that a medical, psychiatric or psychological report concerning the young person may be relevant to the making of any decision, it may order that the young person be examined by a qualified person and that such person report the results of the examination in writing to the court.
(2) For the purposes of examination pursuant to this section, the court may from time to time order that a young person be kept in such place and for such periods of time as it directs but no one such period or periods shall exceed, in total, thirty days.
(3) The report referred to in subsection (I) may be admitted in evidence by affidavit without the author of the report having to appear and give formal evidence on the matter contained in the report unless required to do so by the court.
Note: This allows the court to order medical or other examination where this is warranted in the interests of the young person.
20. ISSUE OF INSANITY
Where a court in the course of proceedings before it relating to an offence -
(a) finds that a young person was insane at the time the offence was committed;
or
(b) finds that a young person is unfit on account of insanity to stand his trial - the court shall refer the young person to the director for consideration under the Mental Disorders and Treatments Act 1960, and order that he be kept in such place as the court deems suitable, until the director, or other authority, assumes responsibility for the young person.
Note: This section allows the court to take appropriate action if the young person is found insane.
21. ADJOURNMENTS
A court may from time to time adjourn proceedings but, subject to section 19 no such adjournment shall be for more than fourteen days, except with the consent of the prosecutor and the young person or a responsible adult or service worker who may be advising the young person.
22. CONDUCT OF HEARING
(1) Where any hearing is held under this Act,
(a) subject to section 17 the strict rules of procedure need not be compiled with;
(b) the proceedings shall be conducted in such a manner as to allow the young person, any responsible adult or any other person involved in the proceedings as well as the prosecution and the youth service worker, to freely state fact, feelings and opinions, and the weight to be given to such matters shall be determined by the court having regard to the normal rules of evidence.
(2) The court may if it sees fit, and for the purpose of establishing any fact or determining any matter, adjourn the hearing and discuss any pertinent matter with the young person, or any other person involved in the matter.
(3) Where the court adjourns the hearing under subsection (2) and the inquiry affects matters of guilt or innocence the magistrate shall make notes of the matters discussed and read the same when the hearing resumes.
Note: This section allows the court to proceed without undue legal formality which in some cases can frighten or prevent a young person from being able to express himself. With a relaxation of formalities all persons should be better able to bring out matters which may be important. However the court will still be required to have regard to the rules when considering the evidence given.
PART V - DISPOSITIONS
23. LIMITATIONS ON CONVICTION AND IMPRISONMENT
(1) A court shall not enter a conviction in respect of a young person who at the time of committing an offence was under the age of 15 years.
(2) Where a young person pleads guilty to or is found guilty of an offence, subject to section 24, the court may record a conviction if the young person is aged 15 years or over at the time of committing the offence with which he is charged.
(3) Notwithstanding the provisions of any other law, a young person who is sentenced to a term of imprisonment shall only be held or placed in facilities of a correctional institution which are established and maintained solely for the detention of young persons.
(4) No young person under the age of 15 years may be sentenced to imprisonment.
Note: The purposes of this section are twofold.
Firstly it is felt that a young person under the age of 14 years should not have to suffer in later life a criminal record for criminal indiscretions which he may have as a child.
Secondly a young person who is sentenced to imprisonment should only be held in youth facilities which are available in some prisons and should not be imprisoned with adults, and only those over the age of 15 years should receive a prison sentence.
24. DISPOSITIONS
(1) Where the court finds a young person guilty, it shall consider the pre-disposition report made under section 26, and any other relevant and material information before it, and may then make any one or a number of the following dispositions, that are consistent with each other –
(a) it may, where it is of the opinion that there is a reasonable likelihood that the appearance of the young person before the court will itself serve the purposes of this Act, discharge the young person without conviction.
(b) subject to section 23 it may either enter a conviction, or, without entering a
conviction, -
(i) order the young person to perform an appropriate community service, the total value of such service not to exceed, in the estimation of the court, two hundred kina;
(ii) having regard to the ability of the young person to pa a fine, impose upon him a fine not exceeding two hundred kina to be paid in such manner as the court directs;
(iii) order the young person to pay another person an amount not exceeding two hundred kina by way of compensation;
(iv) order the young person to make restitution to another person in kind or in value for loss of or dam to property, loss of income or support or personal injury suffered that other person as a result of the commission of the offence by the young person, or to perform such services, or do anything as the court determines is appropriate restitution in the circumstances.
(v) place the young person on probation for a period not exceeding three years;
(vi) commit the young person to continuous or, periodic care and open custody for a period not exceeding three unbroken years from the date of committal;
(vii) commit the young person to continuous care and secure custody for a period not exceeding three unbroken years from the date of committal;
(c) subject to section 23, commit the young person to a term of imprisonment subject to the following conditions -
(A) the term of imprisonment shall not be for more than 3 years;
(B) the term of imprisonment shall not be in excess of that prescribed for the offence;
(C) the sentence of imprisonment shall not include hard labour;
(D) at the conclusion of the term of imprisonment the young person be released to such person or at such place as the court directs;
(d) in the case of a young person under the age of 16 years, declare the young person to be destitute, neglected, incorrigible or uncontrollable child under the provision of Part VII of the Child Welfare Act 1961 and the provisions of that Part shall apply as if an application has been made under section 43 of the Act.
(2) Where the court makes a declaration under subsection (1) (d), the proceedings against the young person shall cease and the child shall be dealt with under the provisions of Part V11 of the Child Welfare Act 1961.
(3) A combination of dispositions in respect of any one offence shall not exceed a period of three years from the date of the disposition.
(4) Where dispositions are made in respect of two or more criminal offences, and cumulative dispositions are ordered by the court the total period of the cumulative dispositions shall not exceed three years.
(5) The court shall not commit a young person to a particular institution without having obtained advice from the Director as to the ability of the institution to accommodate and care for the young person.
(6) Where the court commits a young person to care and custody under subsection (1) (b) (vi) or (vii) it may with the agreement of the Director, impose such reasonable conditions as the court deems advisable and in the best interests of the young person.
(7) Where a young person has been committed to an institution under this section he may, with the consent of the Director, be transferred to another similar institution.
(8) The court shall give written reasons for any disposition under which the young person is subject to custody or imprisonment.
(9) No committal to custody or imprisonment may be made unless the court is satisfied that such committal is necessary, having regard to the factors mentioned in section 25 or is necessary to prevent the young person from doing harm to himself or another.
(10) Where a court has made a finding that a young person has committed an offence involving or related to the operating of a motor vehicle, or the possession or use of weapon, the court may make an order prohibiting him from owning or operating a motor vehicle or from owning or using any weapon as the case may be, for any period but not beyond the time when the young person reaches the age of twenty years.
(11) Where a court has made a finding that a young person has committed an offence involving or related to the use or consumption of alcohol or the illegal use of drugs, the court may by order prohibit him from obtaining or consuming alcohol for any period of up to three years and may as a condition of probation order him to undergo treatment for the purpose of overcoming alcohol or drug related problems.
(12) A court in making any disposition may make such other reasonable order as in the interests of the young person and calculated to prevent a recurrence of any criminal activities.
(13) Where a young person is sentenced to imprisonment or to custody, the court shall specify in the disposition the person to whom or the place at which he is to be released at the termination of the disposition.
Note: This section is one of the most important in the Bill. It provides a range of dispositions which at present is not available in Children's Courts and which are adapted to rehabilitation and supervision rather than punishment. It is anticipated that only in the most serious cases will imprisonment be imposed.
The following points should be noted-
(a) the court may impose a combination of dispositions, but in no case may they exceed three years;
(b) if the circumstances warrant it, the young person may be discharged without conviction;
(c) community service, compensation and restitution are included as dispositions;
(d) where a fine is ordered, regard must be had to the ability of the young person to pay. In many cases, fines have been imposed where the young person has no possibility of payment. Invoking default provisions means that he suffers imprisonment, a much more serious punishment than the original offence warrants. It is not proposed to have default provisions for non payment of fines and other dispositions. Failure to comply with a disposition will result in a fresh prosecution being brought under the Act.
(e) one very important feature is the introduction of probation as a disposition. This is most important in dealing with youth and requires the provision of adequate services and personnel.
(f) two types of institution custody are proposed. Open custody, where the young person may undergo rehabilitation and training in circumstances where security and discipline are more relaxed than in secure custody. A young person could continue with schooling or employment which would otherwise be seriously interrupted. As an alternative the disposition could order periodic detention under which the young person would be required to attend at the institution in weekends or other periods of time such as school holidays but allowing him to remain in the community to a very great extent.
(g) In secure custody the young person would be subject to tight security and discipline, but would have available rehabilitation and training facilities thus ensuring that the time spent in custody would not be wasted. The court must have regard to the factors set out in section 25 if a young person is to be committed to custody or imprisonment and must give its reasons and the conditions governing sentence of imprisonment are to be prescribed in detail.
25. FACTORS TO BE TAKEN INTO ACCOUNT IN COMMITTAL TO CUSTODY
(1) The factors to be referred to in committing a young person to secure or open custody or imprisonment are -
(a) the degree of seriousness of the offence and the circumstances in which it was committed;
(b) the age, maturity, education, health, character and attitude of the young person, including his willingness to make amends if possible;
(c) the social and community environment from which the young person has come and to which he may return;
(d) the previous history of the young person in respect of offences and delinquencies, and the response of the young person since being so involved;
(e) the community facilities and services that are available for the help of the young person and the willingness of the young person to avail himself of such facilities and services;
(f) any plans that are put forward by the young person, his parents, family or community, or changes in his conduct or participation in activities or measures that are available for his improvement; and
(g) the views of the youth service worker, a probation officer or any person involved in the education, training or custody of the young person;
(h) any views expressed or representations made by or on behalf of the young person in respect of the factors mentioned in paragraphs (a) to (f) or any other aspect of the case;
(i) any other relevant factor.
(2) The court may require any person to explain or comment on any matter contained in the predisposition report or any other matter in may consider relevant.
Note: This provision requires the court to take a number of factors into account if it is taking the serious course of committing the young person to custody or imprisonment.
26. PRE-DISPOSITION REPORT
(1) It shall be the responsibility of the Director to prepare or have a predisposition report made available to the court for the purposes of Section 24.
(2) The pre-disposition report shall be in writing and shall contain as much information as is reasonably obtainable and relevant to an order or disposition that may be made in respect of the young person including -
(a) the result of an interview with the young person;
(b) if reasonably possible, the result of an interview with a parent or responsible adult with whom the young person is living;
(c) the results of any interviews with any other persons which may be relevant to the proceedings;
(d) such information relevant to the factors mentioned in Section 24 as is relevant to the proceedings;
(e) such other information as may be relevant in the circumstances.
(3) The pre-disposition report shall contain a recommendation by the person making it as to the type of disposition he considers most appropriate in the circumstances.
(4) Where for any reason a pre-disposition report cannot be committed to writing prior to the disposition, it may be made verbally in the first instance but shall be immediately thereafter committed to writing.
(5) The pre-disposition report shall become part of the record of the case in the court, and subject to Subsection (6) copies may only be made available, with the consent of the magistrate, to the young person, his lawyer, his parents and shall not be removed from the court but returned to the magistrate at the close of proceedings or at any adjournment.
(6) The Director shall make the report available to -
(a) the superintendent of any institution to which the young person is committed; or
(b) the probation officer if the young person is sentenced to probation; or
(C) the officer in charge of a corrective institution to which the young person is admitted; or
may at his discretion make it available to any person in whose custody a young person is placed or who is assisting in any way with the care, treatment or rehabilitation of the young person, but any information contained in such a report shall not be disclosed to any person or used in any way except for the purposes of the Act.
(7) No statement made in the course of an interview or investigation for the purposes of preparing a pre-disposition report and no pre-disposition report is admissible in evidence in any proceedings whether civil or criminal except for the purposes of Part V.
Note: This section provides for a report to be prepared, normally by the youth service worker, which will inform the court of the relevant information it should have before proceedings to make the disposition. As the report could contain matters which are prejudicial to the young person, confidentiality of the report is essential. However the report would be of value for rehabilitation and should be available when needed.
27. REVIEW AND VARIATION OF DISPOSITIONS
(1) Subject to subsection (2) a court may review a disposition to determine whether or not it should be varied at any time before its expiry upon its own application or the application of the Director, the young person, his parent or any other person having the responsibility for the care, custody or supervision of the young person.
(2) An application for review shall be accepted by the court within six months from the date on which the disposition was made, or within six months from the date of the latest review by the court pursuant to section 29 except by leave of the court.
(3) In any case, the disposition unless it has expired shall be reviewed annually by the court.
(4) Where the proceedings concerning the young person were first held in the National Court, the review under this section shall be held in the National Court, nearest to the place where the young person resides or is in custody.
(5) Where a review is conducted under this section, the Director shall arrange to supply the court with a report which shall contain comments on the progress of the young person as supplied by the youth service worker concerned with the case, the probation officer (if any), the superintendent of the appropriate institution if the young person is in custody and any other person concerned with the welfare, rehabilitation and custody of the young person.
Note: This section provides for the making of applications to the court for a review of the disposition and also for the provision to the court of reports on the young persons progress. It requires the court to take a continuing interest in the progress and welfare of the young person concerned.
28. GROUNDS FOR VARIATION
The grounds for variation of a disposition are -
(a) that he is being detained in a category of custody that was not directed in the disposition;
(b) that he has been subjected to unreasonable restrictions in respect of probation or custody;
(c) that he has made progress that justifies a change in the disposition;
(d) that alternative arrangements can be made to secure correction, rehabilitation, training or education which are in the better interests of the young person;
(e) that the circumstances that led to him being committed to probation or care and custody have changed materially;
(f) that services are available which were not available at the time when the disposition was made or last reviewed; and
(g) such other grounds as the court considers to be substantial and relevant.
Note: This section states the grounds upon which a variation of disposition may be made.
29. VARIATION OR TERMINATION OF DISPOSITION
Upon the appearance of a young person in court, pursuant of section 27, the court shall consider whether it is desirable, having regard to the interests of the young person and the public good to make a change in or terminate the disposition, and may then
(a) discharge the young person from any further obligation under the disposition;
(b) vary the requirements for the manner of payment of fines and compensation, making restitution or the carrying out of community work;
(c) shorten the term of probation or care custody or imprisonment;
(d) vary or cancel a condition of probation or a condition imposed pursuant to section 24 (1) (v);
(e) change the committal, if to imprisonment, to care and secure custody or to care and open custody of probation;
(f) change the committal, if to care and secure custody, to care and open custody or probation;
(g) change the committal, if to care and open custody, to probation; or
(h) confirm the disposition.
Note: Depending on the response of the young person the court will have power to vary the disposition. This will provide an incentive towards rehabilitation with the young person being aware that if he responds the term of the disposition may be shortened, or the conditions of the disposition made more acceptable. Individual circumstances and the attitude of the young person will be of importance, but also the type of training and rehabilitation program he is undergoing will also be of importance in determining whether or not the disposition should be varied. We would expect the courts to rely heavily on the advice and reports of the persons concerned in the supervision and custody of the young person. Most importantly, the Youth Court itself must concern itself with the continuing welfare and progress of the young person, rather than having all contact cease at the time of sentencing.
30. PROBATION ORDERS
(1) When the court orders that a young person be placed on probation, the following conditions are mandatory in the probation order;
(a) that the young person obey the law;
(b) that the young person appear before the court on a date or dates specified in the order or upon such date or dates as the court may later communicate to him;
(c) that the young person report to a probation officer as directed and thereafter report to the probation officer assigned to his case form time to time as required by him;
(d) that the young person notify his probation officer of any change in his address, employment, occupation or place of education;
(e) that the young person remain under the care or supervision of a responsible
adult during the period of probation;
(f) the young person comply with such other reasonable conditions, including conditions for securing his good conduct and preventing a repetition of the same offence or the commission of other offences, as may be prescribed in the probation order, during the duration thereof;
(2) A probation order may also contain such of the following conditions as, in the opinion of the court, are relevant to the circumstances of the young person and the purposes of this Act -
(a) except with the consent of his probation officer and for temporary absences only, the young person remain within an area specified in the probation order, during the duration thereof;
(b) the young person attend school or some other place of study, instruction or recreation during the duration thereof;
(c) the young person take up such employment approved by the probation officer as may be available to him during the duration thereof; and
(d) the young person comply with any other reasonable requirements as may be specified in the order.
Note: It is essential that an effective probation service be established and that adequate probation officers be recruited and trained. Although there are some volunteers throughout the country who conduct an informal type of probationary service, this cannot cope with the needs. If a young person is to remain in the community under supervision the court must be able to impose conditions as to behaviour. The mandatory and optional conditions for inclusion in probation orders are set out in this section.
31. OFFENCES
(1) Any young person who -
(a) wilfully fails to comply with a disposition; or
(b) wilfully fails to comply with the terms of his probation; or
(c) escapes or attempts to escape from custody - commits an offence and is liable on summary conviction in the court to any of the dispositions contained in section 24.
(2) A prosecution under this section may only be brought by the Director
Note: This section creates specific offences for failure to comply with a disposition or
committing breach of probation or escaping from custody. It will eliminate the present unfair procedure of default imprisonment for nonpayment of fines. The court will be able to take into consideration the factors surrounding the offence and also the circumstances of the earlier offence and subsequent behaviour which would be available in the predisposition report. Taking these factors into account, the court could order an appropriate disposition under section 24.
32. TRAVELLING WHILE IN CUSTODY
(1) Where a young person is in custody while on remand or subject to a disposition made under section 24 he shall remain in custody -
(a) while being transferred from one place to another;
(b) until he is released at the place appointed for his release;
(C) while being released to an assessment centre for the purposes of investigation
or assessment.
(2) While a young person in custody is being transferred from one place to another and during the course of the transfer it is necessary to break the journey, the young person may during the break in the journey be held in a police lock-up, corrective institution or other place of security in conditions appropriate to his age pending the continuation of the journey.
(3) The documents authorizing the transfer of the young person shall be sufficient authority for the officer in charge of any of the places mentioned in subsection (2) to receive the young person and maintain him in custody in circumstances appropriate to his age, while awaiting continuation of the journey.
(4) Where a young person is to be released at a particular place or into the care of a particular person, he shall remain in the custody of the Director until so released and may be escorted to such place or person.
Note: Frequently difficulty is experienced in escorting young people particularly where overnight stops are necessary. Provision is made for this and also for young people to be released into the care of a particular person or at a particular place, rather than being released at the gates of an institution or in a strange place.
33. TRANSFER OF DISPOSITION AND RECORDS
(1) Where a disposition has been made in respect of a young person and his parent or family moves, or intends to move to an area remote from the court in which the disposition was made, upon application by the young person, a parent of the young person, the Director or a Probation officer, the court may order that the case and the records therein and all subsequent proceedings therein, be transferred to another court named in the order.
(2) Where a young person is committed or transferred to an institution the court records relating to the person shall be transferred to the court nearest that institution.
Note: It seems good sense to transfer court records and court supervision to a court near where the young person is located.
PART VI. - APPEALS
34. APPEALS
(1) A Youth Court may, at its discretion, reserve for the consideration of the National Court any question of law arising on or out of the hearing or determination of any information, complaint or application, and may state a special case for the opinion of the National Court.
(2) There shall be an appeal to the National Court from any conviction, order, disposition or adjudication of a Youth Court, apart from a variation of disposition.
(3) The law relating to appeals from Courts of Summary Jurisdiction shall apply, so far as it is applicable, to an appeal from a Youth Court under this section, whether by way of special case or otherwise.
(4) Where a young person is in custody while awaiting the hearing or decision on appeal, the Director may apply to the Youth Court for an order to release the young person from custody to be held in such institution or place as the Director may determine.
Note: Under the Constitution a right of appeal to a superior court must be given, and this is as important to a young person as an adult offender. However it is not considered that variation of a disposition should be a subject of appeal. In some cases relatively young children have been held in corrective institutions sometimes illegally and appeals have been lodged on their behalves. It is believed that while awaiting the appeal or the decision, that the Director should be able to secure their release from the institution and have them held in more appropriate conditions.
PART VII - RECORDS
35. LIMITATIONS UPON FINGER PRINTING & PHOTOGRAPHING
(1) Notwithstanding any provision in any other Act relating to the identification of persons suspected, charged or convicted of offences, no person shall on the arrest of a young person, or in the course of any proceedings –
(a) take the fingerprints of a young person; or
(b) photograph a young person;
unless the offence concerned is an indictable offence.
(2) Except in the case of conviction for an indictable offence, any photographs or fingerprints taken of or from a young person shall be surrendered to the court and destroyed.
Note: There is a need to recognise young persons as a special group, who may react to the ordeal of finger printing and photographing and who should not be burdened with criminal records as if they were adults.
36. CONFIDENTIALITY OF COURT RECORDS
(1) The court shall maintain separate and adequate records in respect of a young person appearing before it.
(2) Subject to subsection (3), and (4) except for the purposes of -
(a) the administration of the court;
(b) appeals;
(c) other Youth Court proceedings against or in respect of the young person -
Youth Court records in respect of young persons shall not be made available to any person.
(3) Youth Court records shall be available to the Director who may disclose such record in whole or in part to any person in whose care or custody the young person is placed, or who is assisting in any way in the case or treatment of the young person.
(4) The Chief Magistrate may authorise Youth Court records being made available to any person for the purposes of research or study or statistical reasons on such terms and conditions as he may consider reasonable.
(5) Any person who publishes or discloses or makes available to any person any Youth Court records in contravention of this Section commits an offence and is liable on summary conviction to imprisonment for a term not exceeding two months, or to a fine not exceeding K200, or both.
Note: This section emphasises the need for confidentiality of court records relating to young people.
PART VIII - ADMINISTRATION
37. APPOINTMENT OF DIRECTOR
(1) The Minister, after consultation with the Public Service Commission, shall by notice in the National Gazette appoint a person to be the Director of Youth Court Services.
(2) The Director shall be responsible for the establishment and operation of Youth Court Services.
Note: This section provides for the appointment of a Director of Youth Court Services who would be primarily responsible for the establishment of welfare and probation services as well as the provision of suitable facilities and institutions for the care and custody of young persons.
38. DELEGATION
The Director may delegate in writing to any youth service worker or probation officer any of his powers and functions under this Act (except this present power of delegation).
Note: This allows the Director to delegate any of his powers and functions to youth service workers and probation officers specific powers given to the Director.
39. APPOINTMENT OF YOUTH SERVICE WORKERS AND YOUTH PROBATION
OFFICERS
(1) The Director may appoint such persons as he thinks fit to be youth service workers.
(2) The Director may appoint such persons as he thinks fit to be youth probation officers.
(3) A person may be appointed both as a youth service worker and a youth probation officer.
(4) The Director shall, by virtue of his appointment, be a youth service worker and a youth probation officer.
Note: This allows the Director to appoint Youth Service Workers and Probation Officers. For certain purposes it may be important that the Director have the powers and functions of a youth service worker and youth probation officer.
40. EMPLOYMENT OF YOUTH SERVICE WORKERS AND PROBATION OFFICERS
(1) A youth service worker or a youth probation officer may be either a salaried officer of the Public Service, an employee of a public, private or charitable organisation, a voluntary worker or a private individual.
(2) The Director may, with the consent of the Minister, enter into financial arrangements with organisations, voluntary workers or private individuals providing services or facilities for the purposes of this Act.
Note: Both youth service workers and youth probation officers may be employees of the Public Service or private organisations or may be private individuals, making available the services of a wide range of people. Obviously the provision of such services costs money, and the Director is empowered to enter into financial arrangements with persons and organisations providing the services.
PART IX - POWERS AND FUNCTIONS
41. DIRECTOR TO BE GUARDIAN
(1) Where, under the provisions of this Act or the Child Welfare Act 1961 any young person is placed in or committed to the care of the Director, or placed in custody other than the custody of parents, the Director shall be the guardian of that young person while he is under such care or custody to the exclusion of all other persons.
(2) The Director shall, while he is the guardian of any young person other than a person committed to periodic custody, have control of the personal property of that young person and shall deal with it in his best interests.
(3) Except so long as a person continues to be in care, custody or in prison after reaching the age of seventeen years, the guardianship of the Director shall cease when the young person reaches the age of seventeen years.
(4) The Director shall be responsible for the care and maintenance of a young person who is remanded to a remand centre while awaiting a court appearance or for any other reason.
Note: This section provides guardianship powers for the Director.
42. POWERS AND FUNCTIONS OF DIRECTOR
Where under the provision of Section 24 any young person is committed by the court to secure or open custody, the Director, may -
(a) direct or cause the young person to be referred for medical, para-medical, psychiatric or psychological treatment;
(b) direct or cause the young person to be placed in a hospital or any other institution for the purposes of receiving any of the treatments specified in paragraph (a);
(c) subject to the provisions of Part V and V1 generally deal with the young person or cause him to be dealt with in any reasonable way so as to provide for the best interest and welfare of the young person.
Note: Under this provision the Director is given certain powers of a welfare nature for dealing with a young person in custody.
43. YOUNG PERSON REMAINING IN CARE OVER THE AGE OF SEVENTEEN
YEARS
(1) The Director may upon the request of a young person who is in his care, or upon the request of the parents and with the consent of a young person, continue the care of the young person but not after he reaches the age of twenty one years.
(2) Any person who remains in the care and control of the Director, under the provisions of Subsection (1) may apply to the Director at any time to be discharged from care and control, and the Director shall discharge him as soon as practicable.
Note: In some circumstances, for example in the interest of continuing education, it may be desirable for a young person to remain in the care of the Director for a longer period than would be allowed under this Act. Any such extensions would be on a voluntary basis.
44. POWERS AND DUTIES OF YOUTH SERVICE WORKER
(1) A youth service worker may –
(a) enter any police station, lock up, or place of detention for the purpose of interviewing a young person or child;
(b) be present at the interrogation or questioning of a young person suspected of committing an offence;
(c) advise a young person of his legal rights and of his right to refuse to answer questions;
(d) question any arresting officer or police officer in respect of a young person who is arrested for or charged in connection with any offence;
(e) attend in any court and be heard in connection with any charge against a young person to whom he has been assigned.
(f) make submission in respect of the disposition to be passed on a young person;
(g) counsel and advise a young person;
(h) enter on premises for the purpose of carrying out his functions under this Act.
(2) A youth service worker shall –
(a) carry out such duties as are required under this Act and as the Director may reasonably require;
(b) maintain an adequate system of confidential records and prepare and submit such reports and records as may be required by the court or by the Director.
(3) It shall be a summary offence under this Act to obstruct or hinder a youth service worker in the discharge of his duties.
Penalty: Imprisonment not exceeding 3 months or fine up to K300 or both.
Note: This provides the youth service worker with responsibilities, powers and duties for carrying out his functions under this Act. It is most probable that a special provision is needed so that it complies with the requirements of Section 38 of the Constitution.
45. POWERS AND DUTIES OF YOUTH PROBATION OFFICERS
(1) A probation officer may in respect of a young person -
(a) counsel, advise and supervise the young person during the term of probation;
(b) visit and consult with parents, relatives, guardians or family groups of a young person;
(c) supervise and direct the handling of a young person's moneys particularly in respect of the payment of a fine, or the making of compensation or restitution;
(d) require the young person to comply with reasonable requirements of behaviour, conduct and routine of living;
for carrying out his functions under this Act. It is most probable that a special provision is needed so that it complies with the requirements of Section 380 of the Constitution.
(e) attend at any court and be heard in respect of an application for review of a disposition or the imposing of a disposition upon any young person who is on probation;
(f) enter on premises for the purpose of carrying out his function's under this Act.
(2) A youth probation officer shall -
(a) carry out such duties as are required under this Act and as the Director may reasonably require;
(b) maintain an adequate system of confidential records and prepare and submit such reports and records as may be required by the court or Director.
(3) It shall be an offence under this Act triable summarily to obstruct or hinder a youth probation officer in the discharge of his duties.
Penalty: Imprisonment not exceeding 3 months or a fine of up to K300, or both.
46. INDEMNITY AND COMPENSATION
(1) The Director, a youth service worker, a probation officer or any other person is not liable to be used on a personal bases for an act done or an order made by him in exercise of any powers, functions, jurisdiction or authority created or conferred by this Act, nor for an act done by him beyond the limits of that power, function, jurisdiction or authority if at the time when he so acted, he believed in good faith that he was acting within the limits of the Act and in the best interests of a young person.
(2) In any action referred to in this Section, the burden of proof of lack of good faith lies on the person alleging it.
(3) Where a young person suffers personal injury while an inmate of any institution, whether due to the negligence or fault of any person carrying out functions under this Act or through any other cause, the young person shall be indemnified and compensation shall, where appropriate, be paid in respect of the personal injury so suffered as if he was a worker under the Worker's Compensation Act 1978 or as if he were an employee of the Director.
Note: This section provides a measure of protection for people carrying out their duties under this Act in good faith. Also where a young person suffers personal injury while an inmate of an institution he would be able to claim compensation.
PART X - INSTITUTIONS
47. ESTABLISHMENT OF INSTITUTIONS
(1) The Minister may, subject to such conditions as are prescribed, and to such further conditions as he thinks fit, approve any place, building, establishment or institution as -
(a) a youth section of a Corrective Institution;
(b) a place of secure custody;
(c) a place of open custody;
(d) a remand centre;
(e) an assessment centre;
(f) a training centre;
(h) any combination of the places specified in paragraphs (b), (c), (d), (e) and (f) as may be appropriate in the circumstances.
(2) Subject to Subsections (3) and (5) for the purposes of any disposition made under or Part V, a young person committed to -
(a) secure custody shall be placed in a place of secure custody, or a training centre or other place or institution approved under Subsection (1) as a place of secure custody;
(b) open custody shall be placed in a place of open custody or a training centre or other place or institution approved under Subsection (1) as a place of open custody;
(c) imprisonment shall be placed in a Youth Section of a Corrective Institution named by the court.
(3) A young person shall not be placed in any institution specified in Subsection (1) (b), (c) or (f) until the superintendent of the institution has been advised of the placement and notifies the Director that he is able to accept the young person, and pending such placement, a young person may be held in a remand centre.
(4) When a young person is remanded in custody while awaiting appearance in the court for any reason, he shall be placed in a remand centre.
(5) A young person on remand may be released for transfer to an assessment centre but, for the purposes of this Act, he shall continue to be remanded in custody during the period of such release.
(6)
(a) Except for a Youth Section of a Corrective Institution, a Corrective Institution shall not be approved as any of the institutions referred to in Subsection (1);
(b) When a Youth Section is established as part of a Corrective Institution, the young persons placed there shall be kept separate from other inmates at all times and shall not be kept in or transferred to any other section of the Corrective Institution.
Note: This section provides for the Minister to approve various institutions for the purposes of the Act.
52. TIME LIMITS IN INSTITUTIONS
(1) When in the conduct of any institution, programs of training and rehabilitation are conducted, the superintendent of the institution shall advice the Director of minimum period any young person should be placed in the institution for the purpose of being trained or rehabilitated under the program.
(2) The Director shall, where consideration is being given by the court to the placement of a young person in an institution advise the court of any restrictions or suggested minimum periods of placement relating to that institution so that the court may have regard to the interests of the young person and the conduct and management of the institution in any order it makes.
Note: There already exist some institutions which conduct long term rehabilitation programs. Others are more adapted for short term detention. It would be inappropriate to commit a young person for a month to an institution which caters exclusively for long term rehabilitation and training.
53. MANAGEMENT OF INSTITUTION
(1) The superintendent of an institution may make rules for the management of an institution.
(2) (a) The relationship between the superintendent and young persons committed or held in an institution shall be that normally exercised by parents over their children.
(b) All letters, message, gifts and the like either sent to or from a young person in an institution shall be subject to rules and policies determined by the superintendent.
(3) Any young person in custody in any institution who becomes sick or is injured may,
on the authority of the Director -
(a) be given such medical or surgical treatment as may in the circumstances be warranted;
(b) may be transferred to a hospital for treatment during which time he shall be deemed to continue to be in custody.
Where consent for any medical or surgical treatment is required, the consent of the
Director shall be sufficient.
(4) Notwithstanding the provisions of Subsection (3) where the need for medical or surgical treatment is urgent, the authority or consent of the superintendent shall be sufficient.
(5) Approved institutions shall permit, subject to the approval of the superintendent, the nomination of chaplains who are ministers of religion and so nominated by their respective church authority, and,
(a) shall permit the young person in the institution to attend a weekly church service and at least one hour's religious instruction each week outside the confines of the institution; or
(b) if this is not practicable for the young persons to attend services and instructions mentioned in the paragraph (a), the superintendent to permit these functions within the confines of the institutions.
48. INSTITUTIONS TO PROVIDE FACILITIES
(1) Apart from remand and assessment centres, any institution established under this Part shall provide or have available for young persons, rehabilitative, educational and training programs as well as providing for their maintenance and care.
(2) The superintendent shall supervise and be responsible for the conduct of such programs.
(3) The Director shall be responsible for the introduction and continuation of such programs.
Note: It is essential that the portion of a young person's life which is spent in custody is not unproductive. Rehabilitation education and training are essential to the return of a young person as a useful member of the community.
49. DIRECTOR RESPONSIBLE FOR WELFARE OF YOUNG PERSONS IN CUSTODY
Although a young person may be held in custody in an institution which is not under the direct control of the Director, the Director shall be responsible for the welfare of any young person held in custody under this Act and for that purpose he may make such enquiries and take such actions as may, in the circumstances be necessary for the welfare of the young person.
Note: This provision will enable the Director to keep a close check on the treatment and progress of a young person.
50. OPERATION OF INSTITUTIONS
(1) Any institution approved under Section 47, shall be under the control of a Superintendent, who may, subject to any conditions as are prescribed by Regulation or are required by the Minister, formulate rules for the conduct and management of the institution and of young persons who may be placed in or committed to the institution.
(2) The Director shall arrange for contributions towards running costs and costs for staff or other financial assistance to be provided for the operating of institutions approved under Section 47 where the institution is operated by a private or charitable organisation.
Note: This section allows reasonable rules to be made for the conduct of an institution and, in the case of private institutions, the making of grants in aid toward the running of such institutions.
51. REPORTS TO BE MADE
(1) The superintendent of any institution in which a young person is placed or to which he is committed shall every six months report to the Director on the progress of the young person in such form and supply such information as the Director may require.
(2) The Superintendent shall provide such other reports as the Director may from time to time require.
Note: Reports will be made to the Director concerning the progress of inmates and other matters.
Note: These provisions give some of the necessary authority to the superintendent for the running of the institution and the health and welfare of the young persons.
54. RESTRICTION ON ENTRY TO INSTITUTION
(1) It shall be an offence, punishable on summary conviction for any person to enter in or remain in any institution approved under this Part, unless -
(a) he is the Minister;
(b) he is the Director, or person authorised by the Director;
(c) he is a young person or person committed to such an institution, or in the care of the Director;
(d) he is a lawfully appointed member of the staff of the institution;
(e) he is a youth service worker or a probation officer;
(f) he is an officer of the Health Department; or a registered medical practitioner in the course of his duties;
(g) he is a Minister of religion, recognised by the Superintendent as a Chaplin appointed for the institution and is present for the purposes of religious counselling, worship or instruction;
(h) he is a person whose presence is required for the protection of life or property;
(i) he is a person to whom permission is granted by the Superintendent or his delegate for the person to enter upon the premises and remain there; or
(j) he is a person authorised by any other Act.
Penalty: Up to 3 months imprisonment or a fine not exceeding K300 or both.
(2) Rules shall be made by the Superintendent for the receiving of visitors and due consideration shall be given to allow reasonable visiting by parents and close relatives of any young person.
Note: It is obvious that access to an institution must be restricted but that reasonable access must be given to some people, particularly visiting relatives.
PART XI - REGULATIONS
55. REGULATIONS
The Head of State may make regulations for the better carrying out of the purposes of this Act, and, without restricting the generality of the foregoing, may make regulations –
(a) prescribing forms to be used in the administration of this Act, and any form so prescribed is sufficient for the purpose thereof;
(b) governing the practice and procedure to be followed by a court;
(c) prescribing the conditions of secure custody; and
(d) generally to make provision for the proper administration of the Act.
(e) providing for the payment of fees and allowances for persons acting as lay members of the court.
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