Implementation of the Child Justice Act Lorenzo Wakefield Child Justice Alliance

Introduction Information based on findings from desktop-based research Will cover following selected topics for discussion: – Criminal Capacity provisions – The impact of the sexual offences act on the child justice system – What do the numbers tell us? – Accountability and Oversight – where are we headed? – Conclusion and Recommendations

Criminal Capacity Previous position – Common Law Previous position – Common Law – Child below 7 years is irrebuttably presumed to be doli incapax – Child between 7-14 years is rebuttably presumed to be doli incapax – Child above 14 years is regarded as having full criminal capacity International law International law – No specified age for criminal capacity – BUT, the Committee on the Rights of the Child recommend minimum age of criminal capacity: 12 years – Developing medical science also points to later development of children’s mental capacity Child Justice Act Child Justice Act – Child below 10 years is irrebuttably presumed to be doli incapax – Child between ages of 10 – 14 years is rebuttably presumed to be doli incapax – Child above 14 years is regarded as having full criminal capacity – However, Act provides that the Minister of Justice MUST review the minimum age of criminal capacity after 5 years

Criminal Capacity DoJCD hosted a workshop on the amendments to the CJA in relation to criminal capacity Multiple stakeholders agreed to 12 years as minimum age of criminal capacity Impact? – Fewer children enter the justice system – Pool of children benefiting from social services might increase Bill with amendments is yet to be tabled in Parliament – despite 1 April 2015 deadline

Impact of the Sexual Offences Act Criminalisation of consensual sexual behaviour by children between the ages of 12 and 16 years – Sections 15 & 16 criminalisation – Teddy Bear Clinic & RAPCAN v Minister of Justice and Constitutional Development (CC) – Introduction of Criminal Law Matters (Sexual Offences and Related Matters) Amendment Act Amendment Bill of 2015

Impact of Sexual Offences Act Children’s names on the sex offenders register – Upon conviction of any sexual offence a child’s name get placed on the register and in certain instances for life – J v National Director of Public Prosecutions – Individualised approach to screening the possibility of a child’s name on the register

Statistics Collection of statistics have been problematic since implementation of Act Statistics are important to measure the impact of the Act Statistics are important to identify and address challenges in implementation Numbers of charges vs numbers of children

Statistics

The fourth (2013/2014) annual report – No statistics on number of charges brought against children – No statistics on number of children assessed – No statistics on number of children diverted – Comparative to other previous financial year reporting, but not within the current financial year – Valuable information such as number of sexual offences committed and number of children used by adults to commit offences

Accountability and Oversight Section 96(3) of the Act Current nature of oversight? Annual Report Date TabledDate Considered Committee 2010/2011April June 2011PC: Justice PC: CS 2011/2012April Sept 2012PC: Police 2012/2013May Oct. 2013SC: Security and CD 2013/2014June 2014Not yetN/A

Accountability and Oversight Judicial Matters Amendment Bill 2 of 2015 – Combine Child Justice Act annual report with that of Departmental Annual Report – Problematic for a number of reasons: Purpose of these report are different Weakens Parliamentary oversight Removes political accountability towards children – Table shows that DOJ complied with duty to table reports – Parliament must strengthen its oversight on the implementation

Conclusion and Recommendations No doubt that the CJA takes the best interest of children into account and Provides a child appropriate justice system for children Recommendations: – The Executive must reflect more accurately and consistently on the statistics of children in the justice system – Vital information, such as the number of charges brought against children and the number of children diverted cannot be omitted

Conclusion and Recommendations Recommendations cont… – Parliament needs to strengthen its oversight on the implementation of the Act Consistency with meetings is a first step – Section 19(3)(a) of the Judicial Matters Amendment Bill 2of 2015 should be rejected

Thank you! Questions?