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17.07.2013 Feature Article

Re-Thinking The Juvenile Justice Legislation (Act-653 )2003: An Agenda For Action

Re-Thinking The Juvenile Justice Legislation (Act-653 )2003:  An Agenda For Action
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The date 28th October this year, will mark a decade in the annals of our juvenile justice legislation2003 which for the first time responded to the then criminological needs of children and young people who come into conflict with the laws of this country. It may have represented a watershed in the dichotomy of the increasing debate between welfare and punishment as it was pertaining in those jurisdictions whose penal policies and practices have to date informed our approach to juvenile justice administration and service delivery.

Research evidence reflects the development of the history of juvenile justice in those matured democratic jurisdictions as having seen lurches between welfare and justice approaches to practice.

The clear distinction between these paradigms is that of welfarism being derived from the notion that a child should be treated differently to an adult where offending is concerned, with an emphasis placed on meeting the child's needs, whilst the justice approach has focus on matching the levels of formal intervention to the gravity of the offence rather than to putative needs. Indeed, penal policy relating to juvenile justice the world over is simply a careful balancing act between the twin approaches and it is this understanding, acknowledgement and philosophy that did inform and shape our juvenile justice act 653, 2003.

Clearly, the introduction of a distinct system by the legislation to deal with children and young people who commit offences represents in essence, a 'modification' of adult justice- a seeming 'compromise' resulting into a somewhat cross-fertilization of the principles of adult responsibility with the notions of welfarism and protectionism, the justice approach being based upon the classicist concept of culpability and responsibility with its features of proportionality, offence seriousness and sanctions befitting the offence, rather than the offender.

Conversely, a welfare-based concept or approach encompasses a less formal and adaptable procedure, one which accommodates and thus contextualises the offending or anti-social conduct, allow for mitigation and gives some recognition to the possibility of limited responsibility (neo- classicism).

It is this approach which invariably makes space for non-legal experts and practitioners to be part of the decision making process , devise and agree such disposals that would fit the offender rather than the offence, thus meeting the criminogenic needs of the offender in addressing any underlying features of their criminal behaviour.

In both theory and practice , the principal aim of any juvenile justice system is to prevent offending by children and young people and for the youth or juvenile court to 'have due regard' to the welfare of the child or young person, albeit not offering any significant definition of this welfare principle.

In Ghana, the observation is that the starting point for the consideration of court disposals in the youth/juvenile court to date, has been the seriousness of the criminal behaviour or anti-social behaviour of the child or young offender rather than that of the apparent welfare of the offender. No doubt, this phenomenon has resulted into the increased number of children and young people in our custodial estates.

There are significant lapses and or negligence as pertaining to a variety of sections of the act and undermines the core principle of 'the welfare of the child being paramount at all times, 'for example section 2 which addresses 'information of arrest' with regards to the notification of a responsible adult be it a parent, guardian or a close relative, of the arrest of a child or young person. The practice evidence indicates that this provision is not strictly applied or adhered to.

The extent to which the probation officer ( as dictated by sec 2 (3) is to be involved would require a degree of practice guidance ,guidelines and policy on a multidisciplinary approach to service delivery , and should involve joint active professional participation and collaborative roles of the probation officer ( as appropriate adult - AA) and the police officer in giving practical meaning to section 1 of the act.

Section 12 which typifies caution by police would require a further clarification andbe guidedby practice guidance, guidelines and policy arrangements. Section 12 (2) in particular can provide the framework for a police reprimand as in other democratic jurisdictions which value diversion from prosecution of first time offenders for minor offences- a police reprimand -a verbal warning which may be undertaken by a police officer, perhaps not below the rank of a sergeant as to be directed by practice guidance, guidelines, policy and protocol.

Section12 (3) that provides for a senior police officer to give a formal caution to a juvenile with or without conditions on the recommendation of a probation officer, public prosecutor or a magistrate will best be served if the rank of the said senior officer is indicated and identified by the act. Additionally, given the ethos of diversion, this level of caution which is referred to in other jurisdictions as caution plus and in others as police final warning should and must be accompanied by conditions of participation in offence-focused intervention initiatives and or programmes by the young offender, devised and supervised by a probation officer.

In this way subsections (4- 10) are rolled together and gives credence to supporting and assisting the offender in staying out of further trouble, thereby responding much more positively to the welfare element of the act. Interview of juvenile ( section 13 ) : The act would need to clarify and emphasise the importance and relevance of this section given its much implications for the fundamental human rights of children and young people who offend.

The practice guidelines, guidance and protocols should and must be devised in a manner as to offer protection to the young offender from discrimination, oppression and abuse of professional authority and or power, acknowledge and value the offender's preferred language of communication than that determined by the interviewing officer or an interpreting service made available if this promotes the offending child's welfare best. The position and role of the probation officer needs be clearly indicated by the act so as to demonstrate best practice. Recognizance (section 13 ) 2.

This is a section that appears to encourage the unnecessary remand of the young offender in a remand home or any place of safety designated by the social welfare department of a district assembly. Child- cantered and practice would require that the act endeavours to encourage and make such provisions for exploring bail support schemes.

Any form of remand or the prospects of remand particularly in a custodial regime should and must be seen to be a last resort, based on the full and professional assessment of the risks the offender may pose to him/herself of self harm, risk of reoffending whilst on bail,risk to public safety and indeed to the victim by a probation officer.

The options for remand foster placement, curfew, door-step supervision and routine reporting to the police and a probation officer need be explored by the act rather than a blanket remand in statutory institution (s). Detention of juvenile at police station: the practice evidence suggests very clear and realistic breach of the provisions of this section which seeks to offer some protection to young offenders in police stations and uphold the welfare principle of the act. More often than not young offenders are held in police cells in the midst of sophisticated, dangerous and recalcitrant adult offenders thus risking their safety and general welfare.

Policy guidance and guidelines would need to be indicated by the act in ensuring compliance with the spirit of the legislation if indeed the welfare of the child is to be seen to be paramount at all times. Sections 16-38, that deal specifically with juvenile court and matters associated with functions of the juvenile justice system will require an extensive specific professional overview. The presumption and determination of age vide section 19 of the act is a dicey and contentious challenge to best practice and demands a multidisciplinary approach to service delivery.

The act should make provisions for relevant agencies (police, health, education, district assemblies and probation officers) to develop a working together practice guidance, guidelines and protocols that ensure effective and efficient collaboration in responding to the welfare needs of the young offender.

It is significant for the act to indicate a commitment by the court and other players within the juvenile justice administration system , to promote section 22, by way of making room for relevant and appropriate guidance, guidelines and policy that can ensure anti-oppressive, anti discriminatory and equal opportunity practices by the court.

The relevant role of pre -sentence reports, as it is known and called globally - a report that captures the attitude of the young offender towards both the offence and the victim, assessment of risks of reoffending, explores the background of the offender, circumstances of offending behaviour, level of remorse expressed or otherwise and the willingness at compliance to a community sentence order of the court- given it is a report before sentencing and different in all aspects for those reports required in family welfare courts requires emphasis.

It may be best practice for the act to make some descriptions of the structure of pre-sentence reports, and clarify the significant purpose of diversion from the juvenile justice system, and indicate those elements of diversion strategies appropriate and relevant. An outstanding criticism of the act is the failure at not making absolute mandatory requirements for a probation order to entail credible and prudent programmes of intervention that has the professional capacity to target offence focused initiatives in addressing criminal behaviour in emphasising the 3R's concept- Rehabilitation , Reintegration and Resettlement of the young offender back into community life.

The current practice of practitioners is a professional negligence , inefficiency and a breach of the act given it sets up the young offender to fail, as his/her criminogenic needs are ignored and compromised as they are not addressed in anyway.

Clearly the act should indicate the basic differences between a conditional discharge and a probation order-the latter which should and must encompass programmes of intervention. Evidence-based practice is suggestive that children and young offenders have multifaceted needs which would have to be adequately addressed in supporting and assisting them stay clear of chaotic and offending behaviour lifestyles.

Providing relevant and quality child-centered offence focused intervention strategies would require a holistic approach to statutory service delivery by a multi-agency juvenile justice team.

The act should situate this team within the organizational structure of the newly aligned ministry for gender, children and social protection, to be probation -led and include the police, health professionals such as -psychologists , psychotherapists ,community psychiatrist nurses , drugs and alcohol misuse practitioners, educational social workers, community reparation coordinator and district assembly officers with their specific statutory duties and responsibilities distinctly identified in the act .

Early intervention initiatives -crime and victim awareness education and counseling programmes in schools and the community that can promote crime prevention should be among others, a core responsibility of the juvenile justice team. With respect to sentencing options or disposals for the courts, it would be a child-centric practice and a promotion of the welfare element of the child and young person for the act to explore other credible and evidence-based community options for disposals such as community reparation or community pay-back, restorative justice, mediation and victim-offender conferencing, whilst exploring the framework for supporting parents to cope with the many challenges of parenting, through a statutory parenting order which can be a much more prudent and positive contribution to sections 28-30 of the act requiring for parental involvement and participation in addressing the perceived needs of their children and young people.

A national standard that has the capacity as a statutory guidance framework to set out the minimum requirements for a juvenile justice team and other relevant stakeholder agencies providing services for young offenders should be addressed by the act,given it's prospect of promoting accountability, efficiency and best practice in as much as evidencing anti oppressive , anti-discriminatory practices and promoting equal opportunity service delivery.

Aftercare and resettlement services would be crucial in ensuring that young offenders on release from custodial institutions are adequately provided for if their welfare is indeed paramount in reducing or preventing any risks of re-offending and indeed recidivism.

Hence this should be of significant interest to the act. After almost ten years existence and application, the juvenile justice act 2003 in its current state lacks the capacity to respond appropriately to the anti-social and criminal behaviour of its service users in a manner as toefficiently and effectively uphold the welfare ethos of the legislation and promote the 3R's identified earlier.

No doubt, the time has come to respond to the challenges facing the legislation through an amendment and devising appropriate practice guidance and policies that can occasion bridging the gap between welfare approaches and justice approaches to crime and punishment of juvenile offenders in ensuring quality practice, efficient and effective service delivery.

One that can provide a modern criminological framework for promoting and ensuring that the long-term needs of our children and young people who offend are adequately met without having to expose them to any form of injustice, abuse, oppression, discrimination and or ignoring their sense of personal responsibility for their deviant, anti-social and criminal behaviour, and reshape our juvenile justice delivery landscape in meeting international standards for evidence based, child-centric, effective and best practice.

Indeed this should be the professional direction our penal policy on juvenile justice delivery system should and must be moving towards in a 21st century Ghana. But who really cares for the welfare needs of children and young people who fall foul of our laws?

Marcus-Chris Lawson
Marcus-Chris Lawson, © 2013

The author has 63 publications published on Modern Ghana. Column Page: MarcusChrisLawson

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