| |
At the Court at Buckingham Palace, the 24th day of June 1998
Present,
The Queen's Most Excellent Majesty in Council
Whereas a draft of this Order has been approved by a resolution of each House of Parliament:
Now, therefore, Her Majesty, in exercise of the powers conferred by paragraph 1 of Schedule 1 to the Northern Ireland Act 1974 and of all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows: -
PART I
INTRODUCTORY
Title and commencement
1.
- (1) This Order may be cited as the Criminal Justice (Children) (Northern Ireland) Order 1998.
(2) This Order shall come into operation on such day or days as the Secretary of State may by order appoint.
Interpretation
2.
- (1) The Interpretation Act (Northern Ireland) 1954 shall apply to Article 1 and the following provisions of this Order as it applies to a Measure of the Northern Ireland Assembly.
(2) In this Order -
"adult" means a person who has attained the age of 17;
"appropriate authority" means, in relation to a child, the authority within whose area the child is ordinarily resident or, if that is not known, the authority within whose area the child is, and "authority" and "area" have the same meaning as in the Children (Northern Ireland) Order 1995;
"arrestable offence" has the same meaning as in the Police and Criminal Evidence (Northern Ireland) Order 1989 and "serious arrestable offence" has the meaning assigned to it by Article 87 of that Order;
"attendance centre" has the meaning given by Article 50(1);
"attendance centre order" means an order under Article 37(1);
"child" means a person who is under the age of 17;
"community order", "community sentence" and "custodial sentence" have the same meanings as in Article 2(2) of the Criminal Justice (Northern Ireland) Order 1996;
"custody officer" has the meaning assigned to it by Article 6(4);
"doctor" means a fully registered medical practitioner;
"guardian" includes any person (including an authority) who has for the time being the care of a child;
"health" means physical or mental health;
"juvenile justice centre" has the meaning given by Article 51(1);
"juvenile justice centre order" means an order under Article 39(1);
"managers", in relation to a juvenile justice centre, means the persons for the time being having the management or control of it;
"notice" means notice in writing;
"parental responsibility" has the meaning assigned to it by Article 6 of the Children (Northern Ireland) Order 1995;
"relative", in relation to a child, means a grandparent, brother, sister, uncle or aunt (whether of the full blood or half blood or by affinity), or step-parent;
"sexual offence" has the meaning assigned to it by Schedule 1;
"statutory provision" has the meaning assigned to it by section 1(f) of the Interpretation Act (Northern Ireland) 1954;
"violent offence" has the meaning assigned to it by Schedule 1.
(3) References in this Order to findings of guilt and findings that an offence has been committed shall be construed as including references to pleas of guilty and admissions that an offence has been committed.
PART II
GENERAL
Age of responsibility
3.
It shall be conclusively presumed that no child under the age of 10 can be guilty of an offence.
Child's welfare
4.
In any proceedings for an offence, the court shall have regard to -
(a) the welfare of any child brought before it; and
(b) the general principle that any delay in dealing with a child is likely to prejudice his welfare.
Words not to be used in relation to children dealt with summarily
5.
- (1) The words "conviction" and "sentence" shall not be used in relation to children dealt with summarily.
(2) Any reference in any statutory provision (whenever passed or made) to a person convicted, a conviction or a sentence shall in the case of a child be construed as including a reference to a child found guilty of an offence, a finding of guilt or an order made upon such finding, as the case may be.
PART III
ARREST AND DETENTION
Child arrested in pursuance of warrant to be released
6.
- (1) A child arrested in pursuance of a warrant shall be released if the child or his parent or guardian (with or without sureties) enters into a recognizance for such amount as the custody officer considers will secure the attendance of the child at the hearing of the charge.
(2) A recognizance entered into in pursuance of paragraph (1) may be -
(a) taken before the officer;
(b) conditioned for the attendance of the parent or guardian at the hearing in addition to the child;
(c) enforced in the same manner as a recognizance to appear before a court may be enforced under Article 138 of the Magistrates' Courts (Northern Ireland) Order 1981.
(3) Paragraph (1) shall not apply if the custody officer considers that -
(a) the child was arrested for a serious arrestable offence; or
(b) for the protection of the public the child should not be released.
(4) In this Order "custody officer" means a member of the Royal Ulster Constabulary performing the functions of custody officer (within the meaning of the Police and Criminal Evidence (Northern Ireland) Order 1989) at the police station to which the child is brought.
Child apparently under 14 arrested without warrant for offence other thanhomicide tobe released
7.
- (1) This Article applies where a child apparently under the age of 14 is arrested without warrant for an offence other than homicide.
(2) If the child cannot forthwith be brought before a magistrates' court, the custody officer shall inquire into the case.
(3) Subject to paragraph (5), the child shall be released if the child or his parent or guardian (with or without sureties) enters into a recognizance for such amount as the custody officer considers will secure the attendance of the child at the hearing of the charge.
(4) A recognizance entered into in pursuance of paragraph (3) may be -
(a) taken before the officer;
(b) conditioned for the attendance of the parent or guardian at the hearing in addition to the child;
(c) enforced in the same manner as a recognizance to appear before a court may be enforced under Article 138 of the Magistrates' Courts (Northern Ireland) Order 1981.
(5) Paragraph (3) shall not apply if the custody officer considers that -
(a) the child was arrested for a serious arrestable offence; or
(b) for the protection of the public the child should not be released.
Child not released under Article 7
8.
- (1) Where a child apparently under the age of 14 -
(a) is arrested without warrant for an offence other than homicide; and
(b) is not released under Article 7,
the child shall be brought before a magistrates' court as soon as is practicable and in any case within a period of 36 hours from the time of his arrest.
(2) Paragraph (1) shall not apply if a member of the Royal Ulster Constabulary of a rank not below that of superintendent certifies to a magistrates' court within the period of 36 hours from the time of the child's arrest that by reason of illness or accident the child cannot be brought before the court.
(3) The custody officer shall ensure that the child is moved to a juvenile justice centre until the child can be brought before a magistrates' court.
(4) Paragraph (3) shall not apply if the custody officer certifies -
(a) that it is impracticable to move the child to a juvenile justice centre; or
(b) that by reason of his character or his state of health it is inadvisable to do so.
(5) A certificate made under paragraph (4) in respect of a child shall be produced to the court before which he is first brought.
(6) Where under this Article -
(a) a child is brought before a magistrates' court; or
(b) a certificate made under paragraph (2) in respect of a child is produced in a magistrates' court,
the court may remand him.
Separation of child in police detention from adults charged with offences
9.
- (1) Arrangements shall be made for preventing a child while he is detained in a police station from associating with a person who is charged with any offence other than an offence with which the child is jointly charged.
(2) Paragraph (1) shall not apply where the person is -
(a) a parent or guardian of the child;
(b) a relative of the child; or
(c) a child.
(3) Arrangements shall be made for ensuring that so far as practicable while a child who is a girl is detained in a police station she shall be under the care of a woman.
Duty to inform person responsible for welfare of child in police detention
10.
- (1) Where a child is in police detention, such steps as are practicable shall be taken to ascertain the identity of a person responsible for his welfare and inform him -
(a) that the child has been arrested;
(b) why he has been arrested; and
(c) where he is being detained.
(2) Where information falls to be given under paragraph (1), it shall be given as soon as it is practicable to do so.
(3) For the purposes of this Article the persons who may be responsible for the welfare of a child are -
(a) his parent or guardian; or
(b) any other person who has for the time being assumed responsibility for his welfare.
(4) If it appears that at the time of the child's arrest a supervision order under Part V of the Children (Northern Ireland) Order 1995 or a probation order is in force in respect of him, his supervisor or probation officer shall also be informed as described in paragraph (1) as soon as it is reasonably practicable to do so.
(5) The reference to a parent or guardian in paragraph (3)(a) is, in the case of a child being looked after by an authority (within the meaning of Article 25 of the Children (Northern Ireland) Order 1995), a reference to that authority and the parent or guardian of the child.
(6) The provisions of this Article are in addition to those of Article 57 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (right to have someone informed when arrested).
(7) In paragraph (1) the reference to a child who is in police detention includes a reference to a child who has been detained under the terrorism provisions; and the references to arrest include references to such detention.
(8) In paragraph (7) "the terrorism provisions" has the meaning assigned to it by Article 2(2) of the Police and Criminal Evidence (Northern Ireland) Order 1989.
PART IV
CRIMINAL PROCEEDINGS
Notice of charges against child
11.
- (1) Where a child is to be brought before a court in respect of an offence alleged to have been committed by him, the complainant shall as soon as reasonably practicable notify the date and the time when, and the nature of the charge on which, the child is to be brought before the court -
(a) to a probation officer assigned to the petty sessions district in which the court will sit; and
(b) to the appropriate authority.
(2) Where the probation officer receives a notification under paragraph (1), he may require the appropriate authority to make such investigations and make available to him such information as appears to him to be likely to assist the court.
Release on bail
12.
- (1) Where a court remands or commits for trial a child charged with an offence, it shall release him on bail unless -
(a) the court considers that to protect the public it is necessary to remand him in custody; and
(b) paragraph (2) or (3) applies.
(2) This paragraph applies where the offence charged -
(a) is a violent or sexual offence; or
(b) is one where in the case of an adult similarly charged he would be liable on conviction on indictment to imprisonment for 14 years or more.
(3) This paragraph applies -
(a) where the offence charged is an arrestable offence; and
(b) the child either -
(i) was on bail on any date on which he is alleged to have committed the offence; or
(ii) has been found guilty of an arrestable offence within the period of two years ending on the date on which he is charged with the offence mentioned in sub-paragraph (a).
(4) This Article is subject to section 3 of the Northern Ireland (Emergency Provisions) Act 1996.
Remand in custody
13.
- (1) Where the court decides not to release a child as mentioned in Article 12(1), it shall give reasons for doing so in open court and shall make an order committing the child -
(a) to a juvenile justice centre; or
(b) if he is aged 15 or over and the court considers that he is likely to injure himself or other persons, to a young offenders centre,
for the period for which he is remanded or until he is brought back before the court.
(2) Where a court remands a child for a further period such that the total period for which he is remanded in custody will exceed three months, the court shall give reasons for doing so in open court.
Power to enforce attendance of child
14.
- (1) Without prejudice to any other powers conferred by or under any statutory provision (including this Order), any justice of the peace may require by summons any parent or guardian of a child in relation to whom any proceedings are pending to produce the child before a court of summary jurisdiction.
(2) Any person who fails without reasonable excuse to comply with a summons under paragraph (1) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 2 on the standard scale.
(3) Where failure to comply with a summons under paragraph (1) is repeated or continued after conviction, that person shall be guilty of an offence and shall be liable to a further fine not exceeding one-fifth of level 2 on the standard scale for every day subsequent to the day on which he is first convicted of an offence under this Article during which the failure is so repeated or continued.
Attendance of parent or guardian
15.
Where a child is brought before a court in any proceedings against him or for any other reason -
(a) his parent or guardian may be required to attend the court before which the case is heard or determined during all the stages of the proceedings; and
(b) his parent or guardian shall be so required at any stage where the court thinks it desirable, unless the court is satisfied that it would be unreasonable to require his attendance.
Separation of child from adults charged with offences
16.
- (1) Arrangements shall be made for preventing a child while he is waiting before or after attendance in any criminal court or while being taken to or from any criminal court, from associating with a person who is charged with any offence other than an offence with which the child is jointly charged.
(2) Paragraph (1) shall not apply where the person is -
(a) a parent or guardian of the child;
(b) a relative of the child; or
(c) a child.
(3) Arrangements shall be made for ensuring that so far as practicable while a child who is a girl is waiting before or after attendance in any criminal court or while she is being taken to or from any criminal court, she shall be under the care of a woman.
Summary trial of indictable offences
17.
- (1) Where a child is charged with any indictable offence other than homicide and -
(a) a court of summary jurisdiction before which he is so charged thinks it expedient to deal with the case summarily;
(b) the parent or guardian of a child under the age of 14 or in any other case, the child so charged, is informed by the court of his right to have the case tried by a jury and consents to the case being dealt with summarily; and
(c) the prosecution consents,
the court may deal summarily with the offence.
(2) The court may on a finding of guilt -
(a) make any order which might have been made if the case had been tried on indictment; or
(b) impose a fine of such amount as the court may, subject to Article 34, think fit.
(3) Where the court is satisfied that it is expedient to deal with the case summarily, it shall cause the charge to be read -
(a) in the case of a child under the age of 14, to the parent or guardian (unless paragraph (5) applies); or
(b) in the case of any other child, to the child, and
shall then address to him a question to the following effect: "Do you wish the case to be tried by a jury or do you consent to the case being dealt with summarily?".
(4) The court shall explain in ordinary language to the person to whom the question is addressed the meaning of the case being dealt with summarily and the explanation shall include a statement as to the Crown Court at which the case may be tried.
(5) Where the parent or guardian of a child under the age of 14 is not present when the child is charged with an indictable offence before a court of summary jurisdiction, the court may -
(a) if it thinks it just to do so, remand the child for the purpose of causing notice to be served on the parent or guardian, with a view, so far as is practicable, of securing his attendance at the hearing of the charge; or
(b) if it thinks it expedient to do so, deal with the case summarily without the consent of the parent or guardian.
(6) Every finding of guilt or dismissal under this Article -
(a) of a child under the age of 14 shall contain a statement as to the consent or otherwise of his parent or guardian;
(b) of any other child shall contain a statement of his consent,
to his being tried summarily.
(7) The provisions of Article 19(1)(b), paragraphs (1), (2), (3) and (5) of Article 46 of, and paragraph 4 of Schedule 5 to, the Magistrates' Courts (Northern Ireland) Order 1981 and so much of the procedure for dealing summarily with an indictable offence under Article 45 of that Order as magistrates' courts rules make applicable, shall apply in relation to offences authorised to be dealt with or dealt with under this Article in like manner as they apply to offences authorised to be dealt with or dealt with under Article 45 of that Order.
(8) Any reference in this Article to a court of summary jurisdiction shall include a reference to a resident magistrate sitting out of petty sessions under Article 18(2) of the Magistrates' Courts (Northern Ireland) Order 1981.
Exclusion of child from court during the trial of other persons
18.
- (1) A court shall not permit -
(a) a child under the age of 14 (other than a baby); and
(b) a child who has attained that age in any proceedings in relation to any conduct of an indecent or immoral nature, where the court so directs,
to be present in court during the trial of any other person charged with an offence, or during any preliminary proceedings, except during such time as his presence is required as a witness or otherwise for the purposes of justice.
(2) Any child under the age of 14 present in court when under this Article he is not permitted to be so, and any child who has attained thatageandwho is so presentwhileany such direction is in force, shall be ordered to be removed from the court.
Form of oath for use in youth court and by children in other courts
19.
- (1) Subject to paragraphs (2) and (3), in relation to any oath administered to and taken by any person before a youth court or administered to and taken by any child before any other court, section 1 of the Oaths Act 1978 shall have effect as if the words "I promise before Almighty God" were set out in it instead of the words "I swear by Almighty God that".
(2) Where, in any oath otherwise duly administered and taken, either of the forms mentioned in this Article is used instead of the other, the oath shall nevertheless be deemed to have been duly administered and taken.
(3) This Article shall not apply in proceedings to which Article 169 of the Children (Northern Ireland) Order 1995 applies (civil proceedings).
Evidence given unsworn by child
20.
- (1) Evidence given by a child in criminal proceedings shall be given unsworn.
(2) A deposition of a child's unsworn evidence may be taken for the purposes of criminal proceedings as if that evidence had been given on oath.
(3) A child's evidence shall be received unless it appears to the court that the child is incapable of giving intelligible testimony.
(4) If any child whose evidence is received unsworn in any proceedings for an offence intentionally gives false evidence in such circumstances that he would, if the evidence had been given on oath, have been guilty of perjury, he shall be guilty of an offence.
(5) A child guilty of an offence under paragraph (4) shall be liable on summary conviction to be dealt with as if he had been summarily convicted of an indictable offence punishable in the case of an adult with imprisonment.
(6) In this Article "child" means a person under the age of 14.
Power to clear court while child is giving evidence in certain cases
21.
- (1) Where, in any criminal proceedings the court considers that the evidence of a child is likely to involve matter of an indecent or immoral nature, the court shall direct that during the taking of the evidence of that child all persons, not being members or officers of the court or parties to the case, their counsel or solicitors, or persons otherwise directly concerned in the case, be excluded from the court.
(2) Paragraph (1) is without prejudice to any power of the court to hear proceedings in private or to exclude a witness until his evidence is required.
| |
