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CONTENTS
Acknowledgement
Forward
Introduction
Rights Of The Juvenile
During
Trial
The Juvenile Court
Composition Of The Juvenile Court
Jurisdiction Of The Juvenile Court
The Trial Process
Expeditious Hearing
Determination Of The Age Of A Juvenile
Juvenile Court Sitting
Participation At Sitting
Taking The Plea Of The Juvenile
Bails And Remands
Period Of Remand
Interview Of Juvenile Offenders In The Courtroom
Decision Making In The Juvenile Court
The Social Enquiry Report
Diversion
Other Orders
Methods Of Dealing With Juvenile Offenders After Trial
Punishment Of The Juvenile Offender
Appeals
Contents Of The Detention Order
Duration Of Detention
Place Of Detention
Expunction Of Record
References
ACKNOWLEDGEMENT
Many
people and partners assisted in
diverse ways to the realization
of this project for the
provision of bench books for the
District Courts and hand books
for the support staff of the
courts.
The
judiciary and the judicial
Service of Ghana singles out the
Royal Danish Embassy and in
particular DANIDA, for appreciation, for their invaluable partnership and support
without which these publications
would not have been completed.
Their commitment to the
advancement and improvement in
justice delivery in Ghana is
highly appreciated.
Special thanks and appreciation also go to Her Ladyship, the
Chief justice of Ghana, the
Chairman and Board of judicial
Training Institute UTI), for their support and encouragement for the project.
A
word of acknowledgment and
appreciation for the able
assistance provided by His
Lordship, justice S.
A.
Brobbey of the Supreme Court of
Ghana, who moderated the
validation workshop made up of
sixteen (16) judges and
Magistrates with the requisite
experience of the Magisterial
bench, drawn from all the
Regions of Ghana for their
significant inputs into the
manual.
We
are also indebted to Her
Ladyship Gertrude Torkornoo and
Ms.
Sandra Thompson, (Director,
judicial Reforms and Projects)
who did the proof reading;
jacob Soung, Mabel Ahele, Fati
Abukari, f.tannah
Edzii and Sophia Okine, all staff of jTI for their various contributions to make this a
reality.
The
judicial Training
Institute UTI) Ghana, deserves our highest commendation and appreciation for
their professional role in ably
coordinating
the drafting of all the manuals
for the Civil Procedure,
Criminal
Procedure, juvenile Court and Family Tribunal bench books.
Special thanks to the Ag. Director of judicial Training Institute UTI), justice of the Court of Appeal,
justice
j.
B. Akamba, for the leadership role he played in the development of the manual and for his
tireless effort to see this
project to
a successful end.
FOREWORD
As part of the efforts to make justice delivery
more efficient, the judicial Training Institute (JTI) on behalf of the judiciary
of Ghana
has
developed
this handbook as a guide to the
juvenile
Court
panel members in the performance of their judicial
duties.
The
effort to produce a guide of
this kind underscores the fact that the
juvenile
Court's
work comprises an
important part of the work
of
the courts,
particularly in juvenile justice delivery.
We
are mindful of the fact
that the handbook may not embody all the essential
guidelines covering
all
areas
critical
to the functions of the juvenile Court.
We are
convinced
however,
that
it
will
serve
as a beneficial starting point
and a basis
for standardizing
practice
in
the operations of the juvenile
Court.
We hope that all juvenile Court
members
and key
staff
will diligently study and apply
the guidelines
contained
therein
together
with
the juvenile justice Act, the
Children's Act,
the Criminal Procedure Act,
other
relevant legislation on children
and the Code of Ethics for judges
and Magistrates.
We trust that this handbook will
serve
our juvenile Courts well.
Ag. Director,
judicial Training Institute
(JTI)
May,
2011
Accra
4
INTRODUCTION
This
part
must
be used in conjunction with the relevant laws
and regulations on juvenile
justice in Ghana,
notable
among which are the
juvenile
justice
Act, (2003) Act 653;
The Children's
Act,
(1998)
Act 560;
The Courts Act, (1993) Act 459;
Domestic
Violence
Act
and any Practice Directives
currently
in force.
The
main
object of the Act 653
is to provide for an alternative criminal justice system to protect the rights of children in conflict
with the law and also to provide
for young offenders in
accordance with international
standards based on the United
Nations Convention on the
rights
of the child
and the United Nations
(UN) Standard Minimum Rules for
the administration of juvenile justice.
The underlying principle of the
Act 653
is that a juvenile offender must be dealt with
in a manner which is different
rom an adult, except under exceptional circumstances (see 17 (3) and (4) of Act 653).
A
juvenile
offender for purposes of the Act
653 is defined as a person under
eighteen (18) years who is in
conflict with the law.
[see section 1 (1) of Act 653]
,
RIGHTS OF THE JUVENILE DURING TRIAL
The
rights and privileges of the
juvenile during a trial before
the juvenile court are set out
in Act 653 as follows:
a.
The juvenile has a right to privacy at the trial and at any stage
of the cause or matter (see
section 3(7) of Act
653); and
b.
No person shall in the course of the trial of an offence
connected with a juvenile, or at any stage of the matter release
any
information that may lead to the identification of the juvenile in
the course of arrest, investigation or trial.
[See
section 3 (2) of Act 653)]. Any breach of the aforementioned rights of the juvenile is
punishable on summary conviction
by a fine not exceeding two
hundred penalty
units or a term of imprisonment
not exceeding
twelve months or to both. [See section 3 (3) of
Act 653}
There
are other rights which must be
brought to the attention of the
accused juvenile during the
trial and these are set out in
section 22 of Act 653 as follows:
a.
The right to remain silent;
b.
The right to have a parent,
guardian, close relative or probation
officer present at the proceedings;
c.
The right to legal representation;
and
d.
The right to legal aid
5
THE JUVENILE COURT
The
Courts
Act,
(1993)
Act 459 as amended by Act 620,
in section
39
(c)
creates
the Juvenile
Court. It is important to note therefore that
a
District
Court does not have an automatic
inherent
jurisdiction
to
sit
as
a juvenile
court.
The Chief
Justice must first designate
that District Court to
sit
as a
Juvenile Court (see section 49 (1) of the Courts Act,
(1993)
Act
459
as amended by Act 2002). It is important to ensure that
your court
has been designated by the Chief
Justice
as a Juvenile Court before hearing any cause
or matter affecting
a juvenile. Where therefore a District Court has not been
so designated, the Magistrate may deal with the juvenile in respect of bail applications
only and refer
the juvenile
to the appropriate
juvenile court.
COMPOSITION OF THE JUVENILE
COURT
The
Juvenile
Court sits as a panel of
three made up of the
magistrate,
who presides over the court and
two others, one of
whom shall be a social
welfare officer.
I
JURISDICTION OF THE JUVENILE
COURT
a.
The juvenile court has jurisdiction to try and sentence only
juveniles who are in conflict
with the law.
(See section 17 of Act 653).
b.
It
also has
power to sentence juveniles who
have been tried by other courts
with summary jurisdiction (see
section 18 of Act 653) and
remitted to the Juvenile Court
for sentencing.
The
Juvenile Court has no power to
hear a charge against a juvenile
for an offence which if
committed by an adult is
punishable by death.
Examples
of such offences
include murder,
genocide and
high treason (See article 3 (3)
(a) and (b) of the 1992
Constitution and Act 29).
Offences tried at the Juvenile
Court are classified into two broad categories:
minor and serious offences.
"Minor
offences" is defined in section 60 of Act 653 as matters such as petty
theft,
petty assault and threatening
offences.
"Serious
offences" is defined in section
46 (8) of Act 653 as murder,
rape, defilement, indecent
assault involving
unlawful harm, robbery with
aggravated circumstances,
drug offences and offences
related to firearms.
Act
459
by section 49 (3) confers jurisdiction on the Juvenile
Court
in civil matters involving juveniles.
See section
47 (1) (h) of the Court's Act which also confers civil jurisdiction on
the District Court to determine matters affecting juveniles.
THE TRIAL PROCESS
Expeditious Hearing
It is
a
statutory
requirement that trials are conducted
expeditiously
(see
section
33 of Act 653). Trial of offences involving juveniles
must be completed within six months from the date
of
first appearance. The juvenile must be discharged
without
any further proceeding if the trial is not completed within six months. The discharge under this section
refers
to an absolute discharge and no further
proceeding
can be brought against the juvenile in respect of the same
offence previously charged.
DETERMINATION OF THE AGE OF A
JUVENILE
Where
it appears to the court that a
person before it is a juvenile,
it is mandatory for the court to
conduct an inquiry to
determine the age of that person
in accordance with section 19
(1) of Act 653.
In
determining
the
age of a person, the court may rely on a birth
certificate
or a baptismal certificate. In
the absence of these, the court
may consider
a certificate
signed by a medical officer
indicating
the age of the child (see
section 19 (2) of Act 653).
This provision
in the Juvenile Justice Act is similar
to that
contained in section 122 of the Children's
Act,
(1998) Act 560, except that
under Act 560, a statutory
declaration issued and certified
by the High Court of Justice or a person authorised by law to authenticate
the age of a child upon an
application by a parent or
guardian of the child
will also constitute evidence of the age of that child.
(See section
122 (3) of Act 560).
Under
no circumstances
shall a Juvenile Court try offences
committed by a person who
has attained the age of eighteen. These persons are not
juveniles and can only
be tried
under
the Criminal and Other Offences (Procedure)
Act,
(1960) Act 30. Where it appears to the Juvenile Court that a person brought
before it has attained the age
of eighteen,
the court must decline to hear
the matter and discharge
accordingly.
JUVENILE COURT SITTING
A juvenile
has
a right
to
privacy
in
the course of his trial. This in effect means that all hearing
must be
conducted in camera.
Thus the
Juvenile
Court must conduct its business either in a different building or room from that in which regular sitting of the court takes place or sit on different days from those of the ordinary
sittings
of the District
Court
(see
section 16 (1) of Act 653).
a.
The proceeding during the hearing must be
informal.
b.
Police officers attending the
court
must
not
wear uniform
(See
s.16
(3)
of
Act 653).
c.
No restraint must be used on the juvenile, unless exceptional circumstances so warrant (See section 16 (4)
of Act
653).
d.
Both the hearing and the dress code must be informal, in order to put the juvenile at ease.
PARTICIPATION AT SITTING
Juvenile
court
sittings
are not held in public. Therefore section 16 (2) of the Act 653 excludes
all persons from attending the sitting
except
the
following:
a.
Members and officers of
the
court;
b.
Parties to the case before the court, their lawyers
and witnesses, and any other persons directly concerned
with
the case; and
c.
Any other persons that the court
may specially authorise to be
present.
TAKING THE PLEA OF THE JUVENILE
Before taking the plea of the
juvenile, the allegations in the charge
sheet shall be translated in a
language that the juvenile can
understand after which he shall
be called upon to plead. (See section 20 (7)
and (2) of Act 653).
Whenever the police deem it
necessary at any
stage of the proceedings to
withdraw the charges against the
juvenile, the juvenile may be
discharged
or acquitted (see section 20 (4)
of Act 653). This
section
must be read in conjunction with Section 59 (2) (b) of Act 30 which
further highlights when it is
appropriate to acquit or
discharge when the police
withdraw
charges against an accused:
a.
Before the close of the
prosecution case, the accused shall be discharged in respect of the offence (s);
b.
After the close of the prosecution case the
accused
shall
be
acquitted and discharged in respect of the offences.
BAilS AND REMANDS
Notwithstanding
the strict provisions of section
96 (7) (a) of Act 30, a Juvenile
Court may only refuse bail if it
is satisfied
that the juvenile when
granted bail may:
a.
Not appear to stand trial; or
b.
Interfere with a witness, the evidence or hamper
police investigations; or commit
a further offence when on bail.
(See section
27 (5) of Act 653)
Bail
may be granted on the juvenile's own undertaking or with sureties
from the parents, guardian, close relative of the juvenile or a responsible person.
(Section 27 (3) of Act 653).
The
amount of bail must be fixed with due regard to the circumstances of the case and should not
be excessive
or harsh. (Section 27 (4) of Act 653).
If
however bail is
not granted, the Juvenile Court must record the reasons for the refusal and
inform
the
applicant
by
way
of
education
that
he or
she
has a right
to repeat
the application for bail in the High
Court.
(See section 21 (6) of Act
653).
Where
a juvenile
is
not released on bail, the Juvenile Court may make any of the following orders:
a.
Commit the juvenile to the care of the juvenile's parents, guardian, close relative or any fit person who is
willing
to take
care
of the
juvenile,
or
b.
Remand the Juvenile
to a remand
home situated within a reasonable
distance
from
the
Court.
(See
section
23 (1)
of
Act
653).
In
making the order
to
remand
the
juvenile,
absolute
care
must
be taken not to place the juvenile in an adult
prison
(section
23 (6) of Act 653).
Secondly any
order
for
the
detention
of
the
juvenile
offender must be made within forty-eight hours of the arrest of the juvenile. (See section 74
(3) of Act
653).
PERIOD
OF
REMAND
The maximum period of a remand warrant shall be seven days. The warrant shall not
be extended
in
the
absence
of
the juvenile at the hearing (see section 23 (4) of Act
653).
The cumulative period of remand of the juvenile shall not exceed
three
months
except
in
the
case of an offence which is punishable by death where the period of remand
shall
not exceed
six
months.
(see
section
23
(4)
and (5)
of Act 653).
INTERVIEW OF JUVENILE OFFENDERS IN THE COURTROOM
It is absolutely important that juvenile
offenders must not be disturbed
or harmed by the experience
of being
interviewed in court.
DECISION MAKING IN THE JUVENILE
COURT
Under
the Juvenile Justice Act, the
court must consider the juvenile's
best interest as an essential element
in its decision making. The welfare principle is
defined in section 2 of the Act
as follows:
"The
best
interest
of a juvenile is
a.
Paramount in a matter concerned with the juvenile; and
b.
The primary consideration by a juvenile court,
institution or any other body in
a matter concerned with a
juvenile.
This definition is a repeat of what appears in section 2 of the
Children's Act, 1998 (Act 560),
except
for the word
"Child" which was substituted with "Juvenile".
The considerations for assessing what is in the best interest of
the juvenile are not reflected
in any legislation.
It
is however important to note
that the objective of the
juvenile justice system is to
fashion out specific provisions
which are appropriate to the
needs of juveniles. The measures
which are in the best interest
of the juvenile offender must be
guided by the principles of
reformation, education and the
proper growth of the
juvenile into adulthood and not
punishment or deterrence.
Additionally all interventions
resorted to must be proportional
to the seriousness of the
offence committed by the
juvenile.
THE SOCIAL ENQUIRY REPORT
Where a juvenile is charged with an offence, the court is
enjoined to order a Social
Enquiry Report (SER) on the
juvenile to be prepared by a
Probation Officer for the due
consideration of the court
in
making any order or orders (see
section 24 (1) and (2) of Act
653). NOTE that as per section
24 (1) & (2) the SER
must be ordered and considered
before any order or orders are
made in respect of the juvenile
and not just before sentencing.
The SER provides information about juvenile offenders and their
circumstances which are relevant
for consideration by the
Juvenile Court.
The contents of a SER should include
particulars of the background of
the juvenile, the conditions
under which the offence was
committed
and recommendations for a sentence (see section 24 (3) of Act
653).
Where however a recommendation is made suggesting that the matter be referred to a Child
Panel,
such suggestions for referrals
can only be
in
respect
of minor offences (see section 24 (4) of Act 653).
Child
Panels
are dealt with under section 29
(1) of Act 560, to mediate
in criminal and civil matters that concern a child
(see section 28, 31 and 32 of Act 560,
see
also
Bench Book on Family Tribunals).
Once
the SER is prepared,
the
juvenile
court
must ensure
that the contents of the SER are
made known to the juvenile and a
copy of it also made available to the juvenile or
his legal representative (see section 24 (5) of Act 653).
The court may also in addition to the SER cause the probation officer to make an oral
report to the court (see section
24
(6) of Act 653).
The
court may
reject
the
recommendations
stated in the SER,
but in doing
so
it shall
record its reasons for so departing from the SER (see section 24 (7) of Act 653).
DIVERSION
Diversion is the referral of cases of children
alleged
to have
committed
offences away from the juvenile justice
system.
It
is intended to play a key role in reducing the effect of the criminal
justice
system on the juvenile whiles promoting the rehabilitation of juvenile
offenders. The concept of diversion
is
based on the theory that taking certain youth through the juvenile justice system may do more harm than good.
However
the juvenile justice law prohibits
diversion
in the
case of serious offences. (see section
25 and
26 of
Act 653)
The Juvenile
Court,
shall
upon
receipt and consideration of the SER
determine
whether or not a juvenile offender should be
diverted
from
the
normal
juvenile
justice
system.
If it
so
decides,
then
it shall state whether the
said
diversion
should be with conditions or not.
OTHER
ORDERS
The
Juvenile
Court
may
where
appropriate order the parents, guardian or close relative of the juvenile offender to give security for the good behaviour of the juvenile where he is charged with an offence. (see section 28 of Act 653)
In ordinary
criminal trials, the court convicts the accused once the charge has
been
proved.
However,
in case the juvenile court, the court has the option to
order the
parents
to give security for good behavior as follows:
CONTENTS OF THE DETENTION ORDER
The juvenile Court in making an order for detention must state
the reasons for the imposition
of a detention order on the
juvenile or young offender. [see section 44 (7) of
Act 653}
The detention order shall disclose the following information.
[see section 44 (2), (3) and (4) of Act 653}:
a) The age of the
juvenile or young offender.
a.
The religious persuasion of the juvenile or young offender.
b.
The correctional centre to which the juvenile or young offender
is to be sent.
c.
The person responsible for conveying the juvenile or young
offender to the correctional
centre.
DURATION OF DETENTION
The
duration of every detention
order shall be as follows:
a.
Three months for a juvenile offender under the age of sixteen
years;
b.
Six months for a juvenile offender of or above sixteen (16) years
but less than eighteen (18)
years of age.
c.
Twenty-four months for young offenders of or above the age of
eighteen years; or
d.
Three years for a serious offence.
Before making the order for
detention the court must ta ke
into consideration the period
spent by the juvenile or young
offender on remand prior to the
time the detention order is
made. [see section 46 (6)
of Act 653}
PLACE OF DETENTION
The
juvenile justice Act provides
for the detention of juveniles
and young offenders according to
age groups and/or nature of
offence committed (See section
46 (2),
(3) and (4) of Act 653). Before
the court makes the order for
detention it must satisfy itself
that a suitable place is
available for the juvenile or
young offender at the
correctional centre (see section
46 (5) of Act 653).
The various classifications are:
a.
A juvenile under the age of eighteen shall be detained
in a junior correctional center.
b.
A young offender above the age of eighteen
shall be detained in a senior
correctional center.
c.
A juvenile under the age of fifteen years who has been convicted
of a serious offence shall be
detained at a senior
correctional center.
\
EXPUNGING OF RECORD
A
juvenile offender,
probation officer or close
relative of the juvenile may
apply to the court to expunge
the record of conviction order
imposed on the juvenile.
The application shall be made to
the Juvenile Court which imposed
the sentence or order (see
section 37 (1) and (2) of Act
653).
The juvenile court shall however
not be permitted to expunge
the records for which conviction
was made in respect of a serious
offence such as murder, rape,
defilement, indecent assault
involving unlawful harm, robbery
with aggravated circumstances,
drug offences and offences
relating to firearms (see
section 37 (3) of Act 653).
The
courts may order records to be
expunged under the various
circumstances set out in section
37 (3) of Act 653.
REFERENCES
Treatment of Juvenile Offender: Paper presented by Justice Osafo
Sampong JA, at a Judicial
Education Workshop in Ghana.
International Handbook of Juvenile Justice, published by
Springer, edited by Josine
Junger and Scott H.
Deckor.
ISBN: 978-1-4020-4970-5 ebook.
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