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Policing Juveniles consistently with the UN Convention on the Rights of the Child

Policing

Juveniles consistently with the UN Convention on the Rights of the Child

The National Inquiry

into Children and the Legal Process

In 1997 the report

of a joint inquiry into children and the legal process undertaken at the

request of the then federal Attorney-General by the Human Rights and Equal

Opportunity Commission (now known as the Australian Human Rights Commission) and the Australian Law Reform Commission

(ALRC) was published. Titled Seen

and heard: priority for children in the legal process, the report

considers, among many other topics, how Australian policing practice could

become more consistent with the requirements of the UN Convention on

the Rights of the Child. This article briefly outlines the main findings

and conclusions.

The policing context

A child's first contact

with the juvenile justice system is usually a police officer. This contact

often occurs when the child is arrested or summonsed as a person suspected

or accused of a crime. Although children's involvement with the police

is not limited to this, many children's first contact results in a caution

and no further involvement in the juvenile justice system. The first contact

between young people and police is crucial to the development of child's

attitude to authority and the state.

Evidence to the inquiry

demonstrated that some children face particular difficulties in their

contact with the juvenile justice system. Indigenous juveniles aged 10

to 17 years, for example, are 21 times more likely to be in a juvenile

detention centre than the rest of the population of that age.

Education about children

and the legal process needs to work both ways. Educating young people

about the legal system and their rights and responsibilities can assist

them to participate effectively in society and should have a positive

effect on their relationships with authority figures such as the police.

Similarly, those working in roles dealing with children must be educated

and aware of children's rights if they are to respect them.

The Convention

on the Rights of the Child

The recommendations

in Seen and heard were based on the Convention on the Rights

of the Child, ratified by Australia in December 1990. The Convention

contains internationally accepted standards for the treatment of children.

It provides a common standard for federal, state and territory governments

in fulfilling their obligations to all children while giving particular

support to disadvantaged or marginalised children. The Convention makes

it clear that children coming into conflict with the law are entitled

to certain basic standards of treatment. All rights set out in the Convention

apply to all children without exception. It is the obligation of every

government to protect children from any form of discrimination.

In ratifying the

Convention on the Rights of the Child, Australia has committed

itself to create laws, policies and take positive action to give effect

to and promote the Convention's provisions. The Convention is an important

reference point for federal, state and territory bodies working with children,

including police officers.

Relevant provisions

of the Convention

Article 37 requires

that children shall only be detained, arrested or imprisoned in accordance

with the law, for the shortest appropriate period of time and only as

a last resort. Detention which is arbitrary in the sense of being

discriminatory, not overseen by clear guidelines or contrary to accepted

notions of justice is to be prohibited.

Article 37(d) deals

with the child's right to confer with a legal practitioner prior to police

interview and to have the person present during the interview.

Article 40 specifies

that the aim of juvenile justice shall be to reintegrate the child into

society. It further dictates that the treatment of the child shall promote

his or her sense of dignity and worth.

Article 3 provides

that in all actions and decisions concerning children the best

interests of the child must be a primary consideration. This includes

the arrest decision, the bail decision and other juvenile justice actions.

Other articles in

the Convention also have relevance to juvenile justice. The Convention

covers everyone under 18.

Public space

The relationship

between police and young people is particularly difficult when interacting

in public spaces. The inquiry was told young people are often stopped

and questioned by police without a proper reason. There is a need to develop

good practices for negotiating young people's use of public spaces with

special reference to the particular needs of children from Indigenous

and non-English speaking backgrounds.

Preventive apprehension

In a number of jurisdictions

police can remove children from public places if they are considered 'at

risk of offending' even though they are not suspected of illegal activity.

This seriously compromises some fundamental rights for children, notably

their freedom of peaceful assembly and their freedom of association.

The inquiry opposed

arbitrary restrictions on the movement and assembly of young people who

have not committed an offence.

Youth curfews have

recently been proposed in a number of jurisdictions. Curfews compromise

fundamental rights of the child and are discriminatory on the basis of

age. Youth curfews should be repealed and national standards for juvenile

justice should provide that no jurisdiction should introduce laws, such

as curfews, to restrict the movement of young people not suspected of

any crime.

Summons and arrest

Police in many jurisdictions

continue to rely heavily on arrest when dealing with young suspects. Despite

the Royal Commission into Aboriginal Deaths in Custody recommendation

that arrest be used only as a last resort for Indigenous young people,

the arrest rate for Indigenous children continues to be higher than for

non-Indigenous children.

Arrest can be a traumatic

and disturbing experience for a child and may be unnecessarily stigmatising.

In some cases arrest may perpetuate a cycle of crime. The Convention requires

that arrest be used as a last resort. Preferable options include a caution,

summons or court attendance notice when an officer decides to act on an

alleged offence.

Arrest should not

be used purely as an investigative tool and children are not to be arrested

for their own 'welfare and safety'. It should be used as the last resort

option. It is more appropriate for 'at risk' children to be dealt with

by health and welfare services. To ensure that officers understand their

obligation to arrest only as a last resort, the inquiry recommended that

each police service provide officers with practical training on the circumstances

that justify arresting juvenile suspects. Further, officers should be

provided with the suitable cross-cultural training in an effort to reduce

arrest rates of young Indigenous suspects.

Ultimately, of course,

the arresting officer must be accountable for his or her actions and always

consider whether arrest is really necessary in the individual case.

The decision on arresting a juvenile suspect should, if found inappropriate

by a senior officer, be taken into account in the arresting police officer's

performance assessment.

Notification of

arrest

International rules

require police to notify a child's parents or guardians as soon as possible

of his or her apprehension. This obligation is reflected in legislation

in some but not all states. The inquiry recommended that all jurisdictions

that have not already done so should pass legislation providing that a

juvenile suspect's carers must be notified of his or her apprehension

as soon as possible.

Notifying the young

person's carers can, of course, in some cases, compromise the young person's

safety. Therefore, before notifying carers, police should consult the

young person to determine whether he or she has any objections to this

course of action.

Investigative

procedures and admissibility of evidence

Before conducting

an interview it is the officer's duty to caution the suspect against self-incrimination.

The right to silence is guaranteed under federal, state and territory

legislation and also in international law. The inquiry was told this information

is often not made sufficiently clear to young suspects. The problem seems

to be that the technical language used in the caution is difficult for

young people to understand. The language of the caution must be appropriate

to the age and understanding of the child. Where possible the information

should be available though a specially prepared video.

The inquiry also

recommended that, for children, only electronically recorded admissions

and confessions should be admissible in evidence.

Interview friend

The presence of an

'interview friend' is an important means to compensate for the serious

disadvantage experienced by young people being interviewed by police.

The role of the interview friend is to support to the young person and

to ensure that any statements made are voluntary.

An interview friend

might be a parent, guardian or a lawyer. If none of these people are available,

or if the young person is uncomfortable in the presence of a parent, the

role could be filled by a friend. If someone known to the suspect cannot

be located, then the interview friend must be a volunteer independent

third person selected from the community. It is very important that the

role of the interview friend be performed by an independent person and

not by a police officer.

The inquiry recommended

that, in order to implement national standards for interview friends,

their functions, responsibilities and powers should be defined by a statute.

An interview friend should have an opportunity to confer privately with

the child prior to the interview. Statements made in the absence of an

interview friend should not be admissible in evidence against the child.

The young suspect,

should have the right to choose his or her own interview friend. Where

the chosen interview friend has not received training in the role, he

or she should have the opportunity to watch a short video outlining the

responsibilities. A register of community volunteers willing to act as

interview friends for children should be maintained in all major cities.

Police interrogation

There is no common

law right to lave a lawyer present during a police interview although

it is particularly important for a young person to have legal representation

early in the process to ensure that he or she does not plea guilty simply

because of the environmental pressure.

International human

rights law adopted by Australia stipulates that young suspects are to

be informed of their right to confer with a legal practitioner prior to

police interview and to have the lawyer present during the interview.

The inquiry recommended

that a child suspected of an offence should have the statutory right to

access legal advice prior to police interview and that police must inform

the child of this right at the time of apprehension.

Time limits on

police interviews

For young suspects

the police investigation period is an exhausting and uncertain time. To

ensure the least possible harm to the young person this period should

not extended beyond the absolute minimum required.

Children under suspicion

of a federal offence cannot be detained longer than 2 hours before being

bailed or brought before a magistrate. This time period can be extended,

however. Time taken travelling from the place of arrest to the police

station, or time during which the young person is too intoxicated to be

interviewed, does not count towards the two hours investigation period.

In most states and

territories the specified investigation period is 24 hours. The inquiry

recommended that state and territory law should mirror the federal provisions.

Questioning Indigenous

children and children from a non-English speaking background

Young Indigenous

children and children from non-English speaking backgrounds have different

ways of communicating which can have a significant effect on the results

of a police interview. The most profound variation from Anglo-Celtic mores

is found in traditional Indigenous cultures.

The inquiry recommended

that national standards for juvenile justice should require that Indigenous

young people be assisted to understand their rights during police questioning.

All young suspects should have the right to an interpreter if they are

not reasonably fluent in English.

Questioning children

with disabilities

When questioning

young people with intellectual disabilities it may be necessary to modify

interrogation techniques considerably. The inquiry recommended that all

police officers who are required to interrogate young suspects should

receive special training in identifying and communicating effectively

with those who have disabilities.

Taking identification

material from children

Provisions for taking

identification material from children vary considerably among the states

and territories.

The federal government

has introduced legislation to reform the procedures for taking forensic

samples from young people suspected of a federal offence. The bill provides

that only a magistrate can authorise taking forensic samples from juvenile

suspects aged 10 to 17.

The inquiry recommended

that these provisions should be incorporated into the national standards

for juvenile justice.

Searching a child

For a child, already

intimidated by the physical environment, a strip search is an invasive

procedure that is potentially traumatic. A strip search should only be

conducted when absolutely necessary for evidence purposes.

The inquiry recommended

that national standards should provide that a child may be strip searched

only pursuant to a court order. The child should be legally represented

and have the right to oppose the application for the order.

Detaining intoxicated

child suspects

In some states and

territories police have the power to detain intoxicated juveniles, even

if they are not charged with any crime.

Children should not

be detained on the basis of intoxication alone. Children with alcohol

and drug problems should not be dealt with as a police matter, but rather

be as 'at risk' and monitored medically to ensure that they do not harm

themselves.

The inquiry recommended

that national standards for juvenile justice should require police to

avoid detaining intoxicated children. Instead police should liaise with

the relevant health authorities to find suitable medical alternatives.

Specialist training

A young person's

contact with the juvenile justice system can be stressful and traumatic.

The experience could put the young person at risk of inhumane treatment

or treatment inconsistent with the overall aims of reintegration into

society and increasing respect for the human rights of others.

Therefore there is

a need for systematic training for professional groups working with children.

Police specially trained in youth issues will encourage a better informed

approach to policing young people and improved cooperation between the

police service and young people.

Police training in

youth issues should deal with the context of children's lives with emphasis

on the variety of social, cultural and economic factors that contribute

to juvenile offending. Training would ideally include information on

  • rights of young

    people

  • young people's

    recreational use of public space

  • the skills needed

    to deal effectively and fairly with young people

  • desired outcomes

    in the policing of young people

  • the role of the

    other government agencies in the juvenile justice system

  • community support

    services to which young people can be referred.

The inquiry recommended

that national standards for juvenile justice should provide that at least

one officer on duty, at least at every major police station, is to be

a specially trained youth officer. That officer would deal with all issues

affecting young people.

Police accountability

Limitations on police

conduct when dealing with young people generally and young suspects in

particular are only effective if police officers are accountable for their

actions. However, many young people in focus groups conducted by the inquiry

stated that they had little trust or expectation that a potential complaint

about a police officer's actions would result in appropriate outcomes.

The inquiry recommended

that national standards for juvenile justice should require specific guidelines

for the handling of children=s complaints against police. These guidelines

should, in particular, include standards regarding timeframes for hearing

complaints and the desirability of dealing personally with the child filing

the complaint.

Further information

This article is intended

only as a brief guide to the policing aspects of Seen

and heard: priority for children in the legal process. For more

detailed information, refer to the full report.

Last

updated 2 December 2001.