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Juvenile Justice-A Comparative Study with U.K

Written by: Ayushi Mittal - A student of IInd Year BA.LLB (Hons) - NALSAR University of Law, Hyderabad
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  • Juvenile Justice in India
    It was stated that as long as children are allowed to suffer there is no true love in the world. The minors were exempted from the punishments and the fines because there had to be a difference in the level of understanding of a 8 year old and an 18 year old. The immunity to children is based on the principles of Juvenile Justice Act. The constitutional basis for juvenile justice can be derived from Articles 15(3), 39(e) and (f) of the Constitution. Article 15(3) provides that Nothing in this article shall prevent the state from making any laws regarding women and children'. Article 39 forms a part if the directive principles of the state policy. Clause (e) of Article 39 provides inter alia, that the tender age of children is not abused. Clause (f) stipulates that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that youth are protected against exploitation and against moral and material abandonment.

    1.2 According to the Indian Penal Code:

    According to Section 82 up to 7 years of age there is an absolute irrefutable presumption that the child is doli incapax. This immunity is granted to the children below seven years on the pragmatic approach of the state that children below seven years are not capable hence they do not have the capacity to have the requisite mensrea. In a case where a boy f seven years of age discovered a hidden disc of gold weighing28 tolas and he did not report this to the collector as required under the Treasure Trove Act. The Patna High Court held that the boy was protected under the Section 82 of IPC from being convicted under the Treasure Trove Act. According to Section 83.if the child does not attain maturity of mind the burden of proof lies with the child. To make them liable they must attain maturity of mind and this is called mischievous discretion under English Law. The children of this age will have to prove that there was no maturity of mind when the act committed and therefore no mensrea. In the case of R.v.Krishna where a child of 9 years stole a silver chain and sold it in 5 annas the lower courts convicted the buyer and acquitted the child. The High Court held that in this case the child is wrongfully acquitted. In the case of Harilal Mallick v. State of Bihar it was held that not only a proof of a child being under 12 but also it has to be proved that the child did not have enough understanding at that point of time and was immature. If no sufficient proof is laid down in front of the court to prove the immaturity of the child then it will be presumed that the child- accused intended to do what he really did. Thus in this case where a child of 12 or so used a sharp sword in killing a person along with his two brothers and no evidence either of age or immaturity or understanding was led on his behalf, thus held liable.

    1.3 According to the Juvenile Justice Act

    Section 2(a) of the Juvenile Justice Act 1986 defines the term juvenile as a 'boy who has not attained the age of 16 years and a girl who has not attained the age of 18 years. This definition is wider than the definition provided under Section 82 and 83 of the Indian Penal Code. The Act provides that no juvenile can be sentenced to death or imprisonment or committed to prison in default of payment or in default of furnishing security. The Act stipulates that the Juvenile should be sent home after advice or admonition, released on probation of good conduct and placed under the care of parent or guardian or sent to a special home. The Act of 2000 rises the age of the juvenile's up to 18 years as seen in the case of Vijay Singh v. State of U.P. When presumption of juvenile innocence is sought to be displaced by the prosecution on the basis of circumstantial evidence the circumstance must unmistakably prove the guilt beyond doubt this has also been seen in the case of Sakha Ram v. State of M.P

    The age of the accused at the time of commission of the offence is relevant and the age at that relevant point in time is what has to be determined. In the case of Bhoop Ram v. State of UP there was a conflict between the age of the accused as according to the medical reports he had attained the age of 16 and as off the school certificate he was still below 16. As a possibility of an error creeping into the estimation of the age cannot be ruled out and as there was no proof of there being a misrepresentation of age in the school certificates the age was considered as below 16. The accused faced a charge of murder had been sentenced to life imprisonment. The Supreme Court in view of the fact that the accused had been wrongly sentenced to imprisonment instead of being treated as a child, quashed the sentence awarded to him and directed his release. In the case of Gopinath Ghosh v. State of West Bengal the defense of being a minor was raised for the first time. In the case of Bhola Bhagat v. State of Bihar it was stated that when an accused pleads defense under infancy it is compulsory for the court to look into the age factor of the accused as on when the act been committed.

    Section 82 exempts a child from any kind of criminal liability. As per Section 18 of the Juvenile Justice Act 1986, any juvenile accused of bailable or non-bailable offence shall be released on bail with or without surety. He cannot be put in a police station or jail. If in the interest of the juvenile, the officers are of the opinion that the juvenile should not be released on bail, he should then be kept in an observation home or a place of safety, and the parents should be informed immediately. The date for observing the age of the child is the date on which the offence is committed as seen in the case of Mahendra Singh v. State of Rajasthan.

    All Juveniles committing an offence shall be produced before the juvenile court as per Section 20 of the Juvenile Justice Act. They should not be produced in front of any other court. If a case in front of the sessions judge then he is supposed to look into the age of the accused and if on inquiry if found to be a juvenile he may be forwarded to the Juvenile Court for trial as seen in the case of Arjun Ram v. State of Rajasthan. In the case of Daljit Singh v. State of Punjab a juvenile who was not sent to the Juvenile justice court after ascertaining the accused to be a minor it was said to be an error jurisdiction. In a murder case when accused was aged 14-15 years at time of commission of offence and was not treated as juvenile under the Act and convicted under Section 304 of the Indian Penal Code, his conviction was maintained but the sentence imposed on him quash under Section 20 and 21 (i) (d) of the 1986 Act. His bail bond stood discharged and the order imposing fine was set aside.

    They should not be tried with or charged with any other offender who is not a juvenile. Section 22 provides that no juvenile shall be sentenced to death or imprisonment or committed to a prison in default of payment or fine. If a juvenile arrested and not produced in front of the magistrate within 24 hours then the confession recorded in that period would be presumed to be involuntary and irrelevant as seen in the case of Bhagan v. State of Pepsu.

    Section 28 of the Juvenile Justice (Care and Protection of Children) Act, 2000 speaks about alternative punishment and states that if a juvenile commits an act punishable under this act or any other state act the accused shall be punished only under such act which provides for punishment which is greater in degree. This Section is similar to the Section 45. of the replaced act of 1986.

    Section 9 of Juvenile Justice Act, 1986 when a Juvenile girl produced before court is not claimed by any person and she is not a delinquent juvenile, court must ensure that she is kept in place of safety until she attains majority as seen in the case of R. Rathinam v. Kamala Vaiduriam.

    1.4 Conclusion:
    The Juvenile Justice (Care and Protection of Children) Act, 2000 is far from being a perfect legislation to protect and promote the rights of children. The mistakes in the earlier law have been replicated in the present enactment. It is still left to the discretion of the respective State governments to set up the mechanism mentioned under the Act, despite a demand that the full implementation of the Act be made mandatory. The juvenile justice system is presently in limbo. Let us hope that respective State governments fill the lacunae by preparing comprehensive rules in consultation with child rights experts and non-governmental organizations. The Central government is empowered under Section 70 to remove, within two years of the Act having come into force, any difficulty that hampers its effective implementation. Let us put the Juvenile Justice (Care and Protection of Children) Act to test, and make most of this provision to streamline its efficiency, keeping children centre-stage. The Juvenile Justice (Care and Protection of Children) Act, 2000 lays down the primary law for not only the care and protection of the children but also for the adjudication and disposition of matters relating to children in conflict with law. The Juvenile Justice System is limited in its application to the children committing offences and others in need of care and protection.

    2. Juvenile Justice in U.K

    We should not be surprised if 'the penalties are tougher when we have been given the opportunities but don't take them.'-Prime Minister Tony Blair
    The UN Convention on the Rights if the Child stipulates that children should be protected from custody whenever possible and when deprived of liberty should be treated with humanity and respect. In Article 37 of the convention it is stated that imprisonment of a child shall be used only as a measure of last resort and for the shortest appropriate period of time.

    Juvenile crime and punishments can be different from the types of punishments that are ordered in adult criminal cases. The first court established expressly for juveniles was built in Chicago in 1899 to address the issue of juvenile crime and punishments. Juvenile crime and punishments peaked in 1994. The 1990s saw a swell of public scrutiny over the perceived juvenile crime epidemic. In an effort to crack down on juvenile crime and punishments, many state legislatures have adopted harsher laws regarding juvenile crimes. In 2002, 2.3 million juveniles were arrested for committing crimes. The 1908 Children Act created a separate and distinct system of justice board on the juvenile court; the 1993 Children and Young Persons Act formally required the court to take account of welfare consideration in all cases involving child offenders, And the 1969 Children and Young Persons Act advocated the phasing out of criminal in favour of civil proceedings. England and Wales' adherence to principles of children's rights clearly does not clearly preclude the pursuit of policies with exacerbate structural inequalities and punitive institutional regimes.

    2.2 Reasons for Juvenile committing crime:
    Over the years, criminologists have put forth a wide variety of motives for what causes crime. People who deal with young people cite the following root conditions: poverty, family factors, the environment, media influence, and declining social morality. These will be taken up in order:
    1. Poverty.
    2. Family Factors
    3. Media Influence
    Juvenile Arrests for Violent Crimes 1983-1992
    Year Number of Arrests Rate per 100,000
    1983 12,321 397.7
    1984 11,853 384.3
    1985 12,421 401.4
    1986 12,541 403.7
    1987 12,336 397.3
    1988 13,998 453.8
    1989 17,469 568.5
    1990 20,658 655.5
    1991 21,158 655.4
    1992 21,549 650.1
    Source: California Department of Justice

    2.3 Age factor of the Juveniles:
    A child under the age of 10 should not be arrested according to the Section 16 of the Children and Young Persons Act, and if a juvenile arrested and later he turns out to be below the age of 10 years he should be released immediately according to Section 34(2) of Police and Criminal Evidence Act . A child may be only kept in police custody for 72 hours and as soon as possible the constable concerned should make arrangements for the investigations to take place. After a juvenile has been charged and if he is detained he must be brought in front of the magistrates' court in accordance with the provisions of Section 46(1), as soon as is practicable and in any event, in all circumstances not later than the day of the following charge. A juvenile who has been arrested under a warrant should not be released according to Schedule 6, para 19(b) of the Police and Criminal Evidence Act. A juvenile must not be detained in a police cell unless no other accommodation is available and the custody officer does not think it is practical to supervise him if he is not placed in a cell.

    Section 50 of the Children and Young Persons Act 1933 it has been stated that it shall be conclusively presumed that no child under the age of 10 can be guilty of an offence. Between the ages of 10- 14 years a child is presumed not to know the difference between right and wrong and therefore incapable of committing a crime because lack of mens rea. Wrong means gravely wrong, seriously wrong, evil wrong or morally wrong. This is a reputable presumption and the burden of rebutting it is upon the prosecution as was also held in the case of JM v. Runeckles. From the cases of C v. DPP, CH v. DPP there were five relevant principles laid down which are not contentious:
    1. The presumption of doli incapax can only be rebutted by clear positive evidence that a child knew that his act was seriously wrong.
    2. Evidence of the omission of the acts amounting to the offence itself is not sufficient to rebut the presumption.
    3. Interviews with the child are capable of proving th necessary insight into the mental functions of the child from which inferences may be drawn to rebut the presumption.
    4. The conduct of the child before or after the act may go to prove his guilty mind.
    5. The older the child is and the more obviously wrong the act, the easier it will generally to prove guilty knowledge.

    In the case of L v. DPP the youth court was correct to find that there was sufficient evidence of the presumption that the appellant was doli incapx to be rebutted. In IPH v. Chief Constable of South Wales a 11 year old boy was said to have enough knowledge that his act was causing a damage to the motor vehicle and also in the case of JM v. Runeckles where a 13 year old who attacked under kid with a milk bottle, must have known that it was seriously wrong to engage in such a behaviour. In the case of Director of Public Prosecutions v. K & B children below 14 years of age or of 14 years of age were convicted for rape and indecent assault as the children were found with guilty mind leading to mens rea. In Powell's where a 16 year old with a previous conviction for indecent assault received six years Section 53(2) detention of rape of a 15 year old girl, illustrates the courts attempt to balance the various considerations posed by the very serious youthful offenders.

    Criticisms of the present system come from all sides. Much of the discussion about reforming the system centers on lowering the age to 14 or even 12 so that younger murderers may be sent to adult court. Attempts by several legislators in the 1993-94 session to adjust age provisions resulted in some changes, although not the sweeping across-the-board reforms many had argued for. Taking effect on January 1 is a law that lowers the applicable age of 707a provisions to 14 (from the present 16) and allows the use of the 707b-c process for 14- and 15-year-olds who are accused of committing murder (although not for the other serious crimes listed in 707b).

    Other states use a variety of remand ages, as indicated by the table.

    Sample of State Remand Restrictions
    State Age of Majority Possible Transfer to Criminal Court Restrictions
    Colorado 18 14 and older Felony crime
    Florida 18 14 and older
    No specific age None
    If previously adjudicated for a violent crime against a person and currently charged with a subsequent violent crime; if offense is punishable by death or life imprisonment; if demanded by child or guardian
    Georgia 17 No specific age
    13 and older
    15 and older
    Concurrent jurisdiction if child alleged to have committed offense punishable by death or life imprisonment
    Offense punishable by death or life imprisonment
    None; mandatory waiver if child charged with burglary on three or more occasions in the past
    Illinois 17 13 and older None
    Massachusetts 17 14 and older Previous commitment to state juvenile facility and child accused of crime punishable by state prison if adult committed; if crime involves threat or infliction of serious bodily harm
    Pennsylvania 18 14 and older Permitted if felony, mandatory if murder; child may request
    Texas 17 15 and older Class A felony or attempted Class A felony
    Utah 18 14 and older Felony
    Washington 18 15 and older Felony
    Source: California Youth Authority's "Juvenile Corrections in Ten States: An Overview and Update;" data current as of 1991
    On June 2, 2004 an 11 year old girl at Okubo Elementary School in Sasebo led a fellow sixth grader to an empty classroom during their school lunch hour and stabbed her to death with a box cutter. Even in Japan a 12 year old Nagasaki boy was accused of kidnapping and molesting a 4 year old boy and killing him by shoving him off the roof.

    2.4 Warnings and Punishments:

    A single police reprimand for non-serious offences, this is to be followed by a final warning according to Section 65(1) of the Crime and Disorder Act, if another offence was committed. Any subsequent offences would automatically lead to prosecution, unless two years had elapsed since the earlier, final warning, and the offence was a minor one neither the reprimand nor the final warning would be required should the police decide that the offence was sufficiently serious for immediate prosecution. In the Reynolds it was seen that when two co-offenders were convicted of domestic burglary were differentiated on the basis that one had previous convictions for that kind of offence receiving a custodial sentence where as the other one not having any previous conviction received a community service order. If an eight year old girl found shoplifting with a group of older girls in the local shopping center might be referred by the police to social services. The local authority could apply to the court for a child safety order. The orthodoxy of the 1991 Act said that id the offence is too serious to be properly punished by financial penalties alone; the punishment should be partial restriction on liberty and freedom of movements.

    Section 91 speaks about detention on grievous If a grievous crime has been committed by a child of 14 or under like murder, Section 14 of Sexual offence Act 1956, Section 15 of the Act related to indecent assault on the man, Section 1 of the Road Traffic Act 1988 causing the death of a person due to rash driving, or under Section 3A causing a death by rash driving while drunk or drugged the court is of the opinion that if there is no other method in which the case may legally be dealt with suitable, the court may sentence the offender to be detained for such period, not exceeding the maximum term of imprisonment with which the offence is punishable in the case of a person aged 21 or over, as may be specified in the sentence.

    There are instances where sentence of detention or study for life has been upheld. In the case of Bell the offender aged 16 was convicted of assault for an intend to rob and indecent assault, having approached the women while she was pushing her two year old child in a pram, pointing a knife at her stomach and demanding for money. She had submitted and had been forced to take his penis in her mouth. The offender has previous convictions for indecent assaults. In Attorney Genearl's Reference a 20 year old man was given life imprisonment has he an untreatable Psychopathic disorder with a propensity to commit sexual assaults. In Carr a girl aged 15 has committed grievous bodily injury under Section 18 by stabbing another girl in the back. She was also held for two other of attempting to strangle other girls to be taken into consideration. A 42 months sentence was awarded keeping in mind the psychiatric advice. In Sheldon where the boy aged 13 attempted to a murder a girl aged 10 by tripping her and then applying pressure on her neck which made her unconscious. He then committed sexual abuse by inserting an object into her vagina. He was sentenced to four years of punishment keeping in mind the ray of hope of redemption.

    2.5 Recommendations and Conclusion:

    1. The Governor and the Legislature should consolidate juvenile anti-crime efforts in a single agency to provide strong leadership and accountability for results.
    2. The Governor and the Legislature should adopt legislation directing the Board of Education in conjunction with the Department of Education to evaluate and promote the use of effective and conflict resolution curricula in public schools.
    3. Law enforcement officials at all levels of government should increase their emphasis on enforcing existing laws regarding firearms and alcohol.
    4. The Governor and the legislature should direct the new juvenile crime prevention agency to draft a clear statement of philosophy, purpose and function that focuses on deterrence as the cornerstone for the juvenile criminal justice system.
    5. The Governor and the Legislature should direct all state agencies involved in anti-crime efforts to make early intervention and prevention programs a top priority.
    6. The Governor and the Legislature should adopt legislation that eliminates barriers to inter- and intra-agency sharing of information that is necessary for early identification of and intervention with at-risk children.
    7. Working together, the State and the counties should ensure that a continuum of options exist so that a range of consequences addresses misconduct by juveniles at all levels of severity.
    8. The Governor and the Legislature should adopt legislation that allows victims or affected family members to present testimony during the juvenile adjudication process.
    9. The Governor and the Legislature should adopt legislation that restricts the remand process to maximize judicial flexibility to make appropriate dispositions of juvenile cases.
    10. The Governor and the Legislature should adopt legislation that returns a juvenile to juvenile court jurisdiction if an adult criminal court trial results in a conviction of a crime that is not listed in the Welfare and Institutions Code Section 707b.
    11. The Governor and the Legislature should adopt legislation that creates a system that allows judicial scrutiny and new dispotition of cases where juveniles reach the maximum age in state custody and are still considered to be a threat to society based on their commitment offense, their conduct while incarcerated and the nature and circumstances of their crime.
    12. The Governor and the Legislature should adopt legislation to eliminate confidentiality for all juvenile adjudication and disposition processes involving serious crimes for those 14 and older.
    13. The Governor and the Legislature should adopt legislation to reform and restrict the present sealed record laws when those who are 14 and older have committed serious crimes.

    3. Criminology of a Juvenile

    There are many different reasons why children kill. Contributory factors which produce the types of disturbance which can lead children to kill include serious physical abuse; sexual abuse; exposure to repetitive or extreme violence (including witnessing such violence).; parental mental illness; parental rejection; neurological abnormalities; conduct disorder; substance abuse; and in a few cases mental illness. The combination of factors is different in each individual case. Although homicides by children are relatively rare, these conditions, unhappily, are not- which suggest that a substantial number of other children may potentially be capable of killing. The combination of factors of the type listed above with other circumstances, such as the meeting and friendship of two young people with complementary disturbed personalities and in adolescence the escalation of behaviour through gang participation, can lead to killings by such children which would not otherwise have taken place.

    In the case of Mary Bell, Gitta Sereny analyses one of the case in which Mary Bell a child of 11 years in 1968 was held guilty of killing two young boys at the age of 10. The boys killed aged 3 and 4 respectively. It was found on enquiry that the child was emotionally abused by a seriously disturbed mother' a mother who immediately after the birth cried Take the thing away from me and jerked the body of the kid away when the child put in her arm. Though the trial court judge wanting to make a hospital order but as no suitable place was available and therefore she was sentenced to detention for life.

    Childhood trauma leads to violent behaviour not only in childhood and adolescence, but also in adult life. In a report prepared for the Reed committee, Robert Johnson, described the 'buried terror syndrome' included by child abuse in the context of his work with serious violent adult prisoners.

    Family is one of the most influential institutions in socializing a child. One reason juveniles become delinquent is the misfortune of being a child of a single parent, whether because of divorce/separation, death, and/or incarceration. The outcome of the child's life is considerably different compared to a child who has a stable life with both parents. With only one parent a child may receive only half the guidance given by two parents. This usually results in the child making wrong decisions like getting involved with other risk factors such as school problems or dropping out. The way we are socialized by our surroundings has a dramatic impact on whether we become delinquents. The earlier the start of delinquency, the worse the offender becomes. This may be due the more development time the child is supposed to have, but otherwise the juvenile is developing a want and need for more delinquent activity.

    For the past few years, broken homes, a child's family position, and family size have been the subjects of considerable study in the crime and delinquency field. In 1950, there were 40.5 million children living in homes containing both a father and a mother, and 4.1 million children living in broken homes. Today's middle class increasingly resembles the low-income family of the early 1960's. With the increase in such patterns as divorces (in 1996, one in every three marriages ended in divorce), separations and working mothers, children are increasingly being entrusted to daycare centers, neighbors, home alone and the television. Child-rearing patterns have, thus, undergone drastic changes. In an article on this issue, Sandra Pesmen notes that there are more and more young children with working mothers than ever before.3 Many welfare-supported women with too many children in too many rooms have taken in neighbors' children to supplement their income. At times these nannies have abused the children under their care. In 1999, a Chicago woman was recorded on a video camera beating a child under her care. Sometimes the result is more overcrowding, less supervision, and less effective socialization with children. There are instances when children who return home to empty houses have to await the return of their parents. Tendency is that the children are probably home alone, and as a result, creates an emotional vacuum, where children grow up without any values or goals.

    4. Conclusion
    Prior to the enactment of the Juvenile Justice Act 1986, the courts have taken the view that the young age of the accused may be taken into consideration to award a lenient sentence. Now Section 22 of the Juvenile Justice Act, provides that no delinquent juvenile shall be sentenced to death or imprisonment or committed to a prison in default of payment or fine. Where a juvenile has attained the age of 14, and has committed a serious offence, the conduct and behaviour of the child is such that it would not be in the interest of the accused or other juveniles kept in the homes, the juvenile court may order the delinquent juvenile to be kept in safe custody in such a place and manner it deems fit. In a case where a 15 year old on the date of offence raped a girl of 7 years of age, was convicted and the Andhra Pradesh court held that he could not be sentenced to rigorous imprisonment for 10 years. They are not tried and punished in the same manner though there is no immunity and if they are 12- 18 in India they are regarded as juvenile delinquent. The children according to this act are reformed and rehabilitated.

    The term youth justice encompasses all aspects of the complex system involving the treatment of children and young people who commit offences. The parallel strands of the law relating to police investigation, diversion from prosecution, the pre-trial; process, bail, remands and the use of secure accommodation, the youth court, the youth offending teams, trials, sentences and post- sentence supervision all come under the youth justice umbrella.

    The author can be reached at: [email protected]

    Juvenile Justice Care and Protection of Children Act, 2015:
    Children are greatest national asset and resource. Children should be allowed and provided opportunity to grow up to become robust citizens, physically fit, mentally alert and morally healthy, endowed with skills and activations needed by the society.

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