Globalisation is something most people associate with industry and commerce. Few people think of the legal community in this context but globalisation is impacting on decisions taken in courtrooms around the world. Judges in almost every country increasingly look to foreign law in interpreting their national law and in solving new problems.

In the Villagran Morales (Street Children) Case the Inter-American Court of Human Rights openly embraced the usefulness of the detailed provisions of the Convention on the Rights of the Child as an interpretive guide to a State’s obligations under Article 19 of the American Convention.

In the Baker case the Supreme Court of Canada decided that Canada’s international legal obligations, even though not incorporated by Act of Parliament into domestic law, were relevant to determining the legality of the exercise of the statutory discretion.

The Australian High Court based its decision in the Teoh case on the legitimate expectations of citizens when a State signs a Convention.

In reaching its decision in Brandt v S, the South African Supreme Court turned to the four key international instruments dealing with children in conflict with the law, as well as the African Charter on the Rights and Welfare of the Child.

At a conference in Beijing in September 2005, Judge Clifford Wallace of the United States Court of Appeals mentioned a recent Namibian case in which the court relied on decisions from India, the United States, Canada, England, Malaysia, South Africa, and the European Court of Human Rights to interpret its constitutional guarantee of equality; a South African death penalty decision considered the law of the United States, Canada, Germany, India, Hungary, and Tanzania, as well as California and Massachusetts; a New Zealand case gave considerable attention to Canadian law.

Until last year the United States stood out as perhaps the most notable exception to the globalisation of the legal community. But the wind of change is blowing there also, as demonstrated by the decision of the Supreme Court in the case of Roper v Simmons. In ruling that the death penalty for minors under the age of 18 was unconstitutional the Court pointed to the growing national and international consensus against the execution of adolescents, noted the existing experiences in other countries, and acknowledged that the principles of International Law for Human Rights are universally accepted.

Globalisation in legal matters is not a new concept. The International Association of Youth and Family Judges and Magistrates has been a pioneer in this field since its inception. Its efforts to promote the best interests of the child on a global basis predates by some considerable time even the earliest international conventions. The Association has its roots in the first international congress of the Tribunaux des Enfants in Paris in 1911. That congress was attended by more than three hundred delegates from across Europe. Those early pioneers agreed that, in practising their vocation, the exercise of jurisdiction over minors, juvenile court magistrates sometimes feel the need to establish that, in other parts of the world, there are others who are fighting the same battle, armed with the same ideals.

Delegates saw the need to strengthen the bond between themselves so that, by the exchange of ideas and experience, they could together attempt to find solutions to common problems. The First World War disrupted progress and the Association was not founded until 1928. Amongst the aims listed in the first Statutes were: to serve as a link between juvenile court magistrates in different countries; to foster international communication of experience in this field; to consider all questions or problems in this field which are affected by international relations; to study collectively the nature of such systems of jurisdiction with the aim of improving them in individual countries; to facilitate, by means of international co-operation between its members, the just treatment of persons concerned in law-suits connected with family or social matters in foreign countries through the interchange of documentation relating to procedures and other difficult points; to encourage research on juvenile crime and its causes in all countries in order both to combat its effects and, particularly, to work towards its prevention; to aim for the moral and material betterment of youth and, in particular, morally abandoned or otherwise unhappy children.

The Association’s current Corporate Plan (2002-2006) lists the following amongst its strategic objectives: Through its Research and Development Committee the IAYFJM will support research which seeks to identify interventions that will stop the violence, abuse and neglect, exploitation and discrimination of children and that will mitigate the impact of those violations. The IAYFJM will identify best practice and garner, collate and disseminate information to members and others as appropriate; support innovative approaches and provide an international view of what works well in the area of child offending and child welfare. The IAYFJM will set up a communications network in order to facilitate the sharing of information, ideas and expertise, further the diffusion of knowledge of laws and practices as they affect children and their families within the various countries of the world, put all information on-line, in its three official languages, giving members access to studies, statistics, research papers, best practices and other relevant information on issues related to children, youth and family, as well as model legislation and advice on drafting or redrafting legislation. The Association assists in the development of curricula and the drafting of judicial training programmes in, and recommends instructors for, developing nations and in newly emerging democracies.

And yet, despite these initiatives by this Association and others, globalisation has not impacted greatly on the majority of judges. Many would argue that few judges get involved in cases which have an international dimension. The most pressing problems facing the majority of judges in the great majority of countries are on a more mundane level - decreasing the court backlog, developing the ability to process cases promptly, instituting alternative dispute resolution processes, and maintaining or establishing the independence of the judiciary.

It has also been argued that judicial education programs necessarily differ depending on whether the legal system is based on civil law or common law. The civil law systems place faith in the traditional law school educational model, while the common law systems prefer the peer group educational model of continuing legal education. American approaches don’t fit neatly into either category but resemble the continuing education of the common law countries more than the law school approach of civil law countries. Several American judicial education systems have focused on educating the judge as a person, improving the judge’s physical and emotional health to prevent burnout. This was a key theme at the NCJFCJ Annual Congress in Pittsburgh in July 2005.

For these reasons, judicial education (and training) has largely been considered to be, necessarily, local. The assumption has been that each country's judicial system is unique and therefore requires a unique type of judicial education. However, much of the individuality among various countries' judicial education results not from necessity, but from not being sufficiently exposed to other methods. With little or no cross-fertilization of ideas, individuality may well occur, but may be based upon a lack of knowledge rather than a perception of specific needs and an understanding of judicial training options.

Despite their differences, all of these approaches are simply different means to the same end: to assist judges in acquiring the knowledge, skills, and attitudes necessary to perform their judicial responsibilities fairly, correctly, and efficiently.

The distinctions between civil law and common law jurisdictions are decreasing or disappearing altogether as countries adopt effective principles of judicial education, regardless of their underlying legal system. These principles do not depend on a particular type of underlying legal system to be effective. Rather, judicial administration principles, and hence judicial education, largely function independently of the type of legal system.

Many principles of judicial education are generic in nature. Judge Wallace argues that the more one sets aside teaching local substantive law to judges and focuses on processes, procedures, and administrative matters, the more generic judicial education becomes.

Although existing education systems have been indispensable in educating judges, these localized efforts should be supplemented by increased dialogue with courts from other states, countries, and continents to enhance and continually enrich what and how judges learn.

This is not to suggest that there is a “right way” to train judges. The aim is to supplement, not replace, existing local education efforts. Despite country differences, judicial education principles are generic, and sharing judicial education ideas based on those universal principles will improve and enhance court systems, irrespective of the country’s legal system, size, wealth, or age.

Further, sharing judicial education ideas is a necessary response to the increasing globalization of the legal community. But why is globalization now having such a major impact on legal systems? There are a number of reasons:

The instant communication of political and legal debates renders the law of different nations increasingly accessible to those on the other side of the globe. Fledgling democracies strive to emulate their established neighbours. Law students around the world seek to enrol for at least part of their studies in a law faculty in a country other than their own.

Similar issues confront courts around the world. These issues may be as diverse as organised crime, international adoption and abduction or phenomena like “Happy Slapping”. I recently sat in on a trial of six young people in Amsterdam charged with assault occasioning actual bodily harm where the defendants said they had learned about “Happy Slapping” by observing, on their mobile phones, young people in England doing it. When Interpol or Europol successfully break up Internet paedophile networks the perpetrators will face similar charges in a range of different countries. Many countries have introduced legislation to allow nationals of one country to be tried for offences committed in another – particularly in cases dealing with the sexual exploitation of children.

The globalization of the legal landscape requires a complementary cross-fertilization of judicial education. Participation in international conferences can help and the IAYFJM has, since its inception, encouraged members to come together to share ideas and seek solutions to common problems. Our Quadrennial Congress turns this aim into reality. Over the years the Congress has been held in many different countries stretching over four continents.

At the same time, judicial education must become broader to address and stay abreast of international changes. Increased international interaction and cross-fertilization of ideas allows judges to have greater understanding of international contexts in an increasingly globalised world.

Judge Wallace has visited and worked with judiciaries in over fifty countries over the last thirty years. He says that the cross-fertilisation of judicial education offers three distinct benefits. First, it enables courts to share and improve on the most effective methodology for judicial education and training. Second, it enables courts to share judicial skills, and perhaps even some substantive law. Third, it provides an invaluable resource for judicial education programs that are beginning or attempting to improve.

Sharing can develop and improve judicial education methodologies. It can be a catalyst for developing regional and local organisations devoted to judicial education. One of the aims of the IAYFJM is to encourage the development of national and regional organisations. The appointment of Regional Commissioners in 2002 was intended to facilitate this process.

Sharing ideas can also improve the substantive output that judicial education is intended to improve. Judges gain new perspectives on old problems and learn techniques for tackling new problems without having to reinvent the wheel. Modern communication techniques encourage dialogue in a worldwide context and allow the exciting possibility of learning from other judiciaries around the globe. In 2002, judges in Singapore set up an “eCorridor” to facilitate discussion on a range of topics by judges from around the world. This was a secure network in which only judges were allowed to participate so that everyone could feel confident in discussing problems and issues of mutual concern. The experiment ran for about one year and, in my view was highly successful – I was honoured to be invited to act as moderator for one of the topics under discussion. Unfortunately it was discontinued due to lack of resources but not before it demonstrated the effectiveness of such an approach.

We are all aware of the need for added resources for judicial education. Sharing ideas helps secure the financial resources necessary to develop or improve existing judicial education systems. Some judicial systems, especially smaller judicial systems, can achieve far more together than what they could achieve alone. Regional training has provided the opportunity for training in areas where countries could not have afforded to have separate institutions.

In 1992 the Court in Rio de Janeiro, Brazil, set up a “A School for Magistrates” (EMERJ – Escola da Magistratura do Rio de Janeiro) with two goals: to prepare candidates for the difficult public examination to become judges, and to improve the collation and dissemination of information on all the matters concerning the rule of law. New judges have to attend regular courses and lectures for two years. This year, 2006, there are about 700 students, including aspiring judges, new judges and lawyers. Conferences, seminars, courses and lectures are ongoing and attendance is essential for anyone wishing to advance his/her career. Lectures cover items of both national and international interest. I have had the honour to be invited to lecture there on a number of occasions. The School (EMERJ) frequently grants scholarships to judges to enable them to attend courses in foreign countries, mainly in Portugal, France and United States. Legislation concerning children in Brazil, as in other South American countries, takes due note of international law.

In 1998, Brazilian judges were instrumental in the setting up of the South American Association of Judges, mainly covering the countries of Mercosur. The aims of this Association follow closely those of the IAYFJM which I might summarise as encouraging international interaction and the cross-fertilization of ideas amongst youth and family judges in South America. I attended the most recent meeting of the Mercosur Association held in La Rioja, Argentina, last November. This very vibrant gathering was attended by about 350 judges from all over South America.

The Pacific Judicial Education Program is a regional training program housed in Suva, Fiji, which services 14 Pacific island jurisdictions. Its training capability allows basic overarching principles common to many of the island jurisdictions to be taught. Peter Boshier, who is currently Chief Family Court Judge in New Zealand, was seconded by his Government to work in Fiji for a year as part of the Pacific Judicial Education programme.

In the North Pacific, a cooperative judicial education program has been developed by the Pacific Judicial Council, under the leadership of its Executive Committee, made up of the Chief Justices and presiding judges of the U.S. Territories of Guam and American Samoa, the Commonwealth of the Northern Marianas, the Republic of Palau, the Federated States of Micronesia, and the Republic of the Marshall Islands. By working together, they have established a biennial judicial conference, the Pacific Judicial Institute for non-law trained judges, a five-year leadership training program for Chief Justices and presiding judges, plus other needed programs for judges, judicial administrators and so forth.

In 2000 in Bordeaux the European Judicial Training Network was founded by the schools of judges and other institutions specifically responsible for the training of the professional judiciary of all EU Member States in order to develop between them a genuine co-operation. It has now a permanent base in Brussels and there are some 23 members including the three UK judicial training bodies. Members share training events and there are opportunities for judges to sit with judges in other jurisdictions.

The above are just examples of what is going on around the world and not an exaustive list. At the same time I am aware that there is no organized judicial education program in some countries. Those countries could use assistance in developing judicial education programs. Of those countries that have started, many are struggling. Providing a variety of models for individual consideration would assist judiciaries in focusing on the particular model that seems most relevant and adapting that model to meet the needs of that particular country. Still other countries are interested in improving their judicial education. These countries would also benefit from access to a variety of successful educational techniques and ideas. With increased technology and communication, cross-fertilization can widen educational possibilities so that countries can choose and adapt methods and models of judicial education that have been successful elsewhere.

Judicial Education in the 21st Century

Technological advances have resulted in previously undreamed of methods for communication that can provide an unmatched ability to advance the rule of law. It is possible to discuss almost all legal topics in worldwide terms. We have already noted the successful experiment carried out by the judges in Singapore. Advances in computerisation and travel have not only made this approach practical, but, in many instances, indispensable. It will continue at an ever-increasing speed in this century.

Judge Wallace believes that, once the generic nature of judicial education is accepted, awareness of the need for some method of cross-fertilisation of ideas and mutual assistance will emerge. Primarily the need would focus on two areas: what is taught and the best ways to teach, namely curriculum and methodology. The curriculum typically focuses on procedural training or substantive international law - topics that transcend geographic boundaries. Curriculum development in these areas can be shared.

Even the best curriculum and most committed administrative leadership will not guarantee an effective judicial education program. It is worth noting that judges generally prefer to be taught by other judges. The material must be presented to participants in a way that helps them retain what is taught and motivates them to apply it in their judicial capacity. “Active learning” holds out the best prospect of success. The educator is merely a facilitator and not the font of all wisdom. Learning is driven by the active participation of those within the group who draw on what is invariably the vast experience and knowledge of the participants themselves. The educator’s skill is to tap and release the resources of the group and to facilitate the cross-fertilisation of ideas. Knowing where and when to draw on resources from outside can enhance the educator’s ability to be effective.

Conclusion

We have progressed from the practice of each country developing judicial education without outside resources to regional interaction and resource-sharing. The next step must be global interaction.

Readers have an opportunity to interact with colleagues from around the world by coming to our next Quadrennial Congress which will be held in Belfast, Northern Ireland, from August 27 to September 01, 2006. The Congress will provide a unique forum for members to exchange on how the Convention on the Rights of the Child and other international human rights instruments are relevant to their practice. Discussions will stimulate individual reflection and provide an interesting impetus for the application of these instruments. The Congress is an opportunity for the IAYFJM to make a major contribution to the globalisation of perspectives on children’s rights.

Globalisation in the legal context is an idea whose time has come. It is time to share ideas and assistance in a broader context. The rule of law and the concept of justice are worldwide and fundamental principles. We have had enough experience now to conclude that worldwide mutual assistance in judicial education can and should be developed. These goals - improving judicial education worldwide, thereby improving court systems and the global establishment of the rule of law are goals worthy of our best efforts. When valuable ideals like justice and the rule of law are at stake, is it not worth considering whether cross-fertilisation is worth pursuing?

Introductory remarks

1. Thank you Dame Elizabeth for your kind words of introduction. It is a privilege for me to be here today and a proud honour for me to be patron of this worthy organisation.

2. Reviewing the programme for today’s conference I am immediately struck by the immense expertise of those present, a fact that makes addressing this audience a daunting prospect. Not wishing to expose my own shortcomings or indeed to take away from the main thrust of the day, in the brief time allotted to me I thought I might make some brief comment on the place of children’s rights in the justice system, both in relation to family and care proceedings and in the criminal context.

3. Children are, of course, one of the most vulnerable groups in society and as such it is essential that those of us working in the justice system do all in our power to ensure that their rights are observed and that they have access to justice. The same responsibilities arise whether the child is the subject of public law proceedings, a private law dispute or appearing in front of a criminal court whether as a victim, witness or accused. However, in our enthusiasm to protect and enhance the rights of children we must not lose sight of competing rights. In short, I wish to emphasise the continued imperative for balance lest in our championing of children we impugn the rights of others (particularly parents) or, indeed, the integrity of the justice system as a whole.

Public Law

4. Turning to public law and family proceedings the need for balance has recently been brought to the fore in this jurisdiction in 2 public law cases in which the Court of Appeal has examined the issue of paramountcy in light of the European Convention on Human Rights.

5. As you will all know, Article 3(1) of the Children (Northern Ireland) Order 1995 states that where a court determines any question with respect to the upbringing of a child, the child's welfare shall be the court's paramount consideration. The so-called “welfare” principle is not new but has its statutory roots at the start of the last century.^[1] Indeed it has sometimes been argued (albeit unsuccessfully) that the modern formulation represents a retreat from the position whereby the child’s welfare was the “first and paramount” consideration. It is certainly a diminution of the Law Commission’s draft Bill which proposed that “when determining any question under the Act the welfare of any child likely to be affected shall be the court’s only concern.”

6. While prior to commencement of the Human Rights Act 1998 in October 2000 it may have been possible to argue that case and statute law combined to confirm that the child’s welfare was the sole concern of the Court, with other factors only relevant in so much as they assisted in finding the best solution for the child, that can no longer be a credible contention. It is imperative that those of us working with children in the justice system remember that the rights of others are almost inevitably engaged. Where there is a clear conflict between the rights of the child and the rights of others then the Children (NI) Order 1995 and the European Court of Human Rights support the conclusion that the rights of the child should prevail. However, the debate is seldom that simple and account must be taken of co-existing rights.

7. The above contentions are illustrated by the recent case of A R v Homefirst Community Trust, a judgment of the Northern Ireland Court of Appeal dated 16 February 2005. The brief facts of the case are that J was born to the appellant, Mrs R, in December 2003. Mrs R had problems with alcohol and her other children had either been taken into care or adopted. Within a few days of J’s birth he was removed from his mother’s care on foot of an emergency protection order. An interim care order was made and the matter progressed to the High Court for a full hearing, the Trust applying for a care order, which was contested, and the mother for a residential assessment and contact. The judge granted the care order without ordering a residential assessment and the mother appealed that decision. Throughout this entire episode the child was removed from the mother who had latterly abstained from alcohol, displayed greater insight into her difficulties and separated from her husband who had been identified as a trigger for her drink problem.

8. The fundamental issue arising on appeal was the propriety of the Trust’s action in seeking to remove the child and the Court’s role in the application. On examination of the written and oral evidence adduced by the Trust the Court of Appeal concluded that the possibility of the mother’s Article 8 rights prevailing “did not enter…the Trust’s thinking.” The Trust’s officers had failed to be alive to the requirements of the European Convention. Similarly the Court concluded that the guardian ad litem had failed to appreciate that a decision to separate a child from its mother involved an interference with the mother’s Article 8 rights. It was, in the Court’s opinion, virtually impossible to ensure protection of the mother’s Article 8 rights without recognition that they were engaged. The Court reiterated that the removal of a child from his or her parents is a draconian measure to be undertaken only in the most compelling of circumstances and after exploration of less drastic alternatives. The Trust had decided at an early stage that the only feasible option for the child was adoption. It had acted to restrict contact with the mother at a far remove from the minimum necessary to satisfy the imperative demands of the European Convention.

9. The Court identified less invasive alternatives to removal saying: “Quite apart from the residential assessment suggestion, J could have been returned to his mother’s care on a supervision order with strong conditions as to monitoring and support. Or the judge could have made no order or another interim order so as to allow the appellant longer to prove that she had forsaken alcohol and acquired the insight necessary to care for the emotional well being of her child. The rejection of these options could only have been justified on the basis that the risks of them not succeeding were so high that no alternative to the care order could be contemplated. But this was not the situation here.”

10. The Court went on to offer advice on the steps to take when faced with an application to remove a new born baby:

“Firstly, the radical nature of such a course must be recognised. It is a step only to be contemplated in the most exceptional of circumstances. Secondly, it should not be considered unless convincing evidence is produced that every feasible alternative had been examined and rejected for sound reasons. Where substantial professional testimony opposes the removal of the child from his parent, the court should be very slow to accede to a care plan that involves the separation of the child from his parents.”

11. The judgment concludes with recognition of the paramountcy principle and European jurisprudence confirming that where the rights of parents and children are a stake the children’s rights must be paramount and, when balanced, prevail. The Court confirmed that the obligation to treat the child’s welfare as paramount does not mean that consideration of the Article 8 rights of the parents may be excluded. While such Article 8 rights cannot prevail over the welfare of the child they must still be taken into account.

12. The problem of ignored competing rights was further evidenced in Homefirst Community Health and Social Services Trust v SN, a judgment of the Court of Appeal delivered on 15 March 2005. The case was an appeal from the High Court which had held that the appellant, SN, was unreasonably withholding her consent to the adoption of her son, JN, and that JN should be freed for adoption pursuant to Article 18(1) of the Adoption (Northern Ireland) Order 1987.

13. JN was born in April 2001 and had been removed from his mother, SN, after 4 months. The Trust had decided in September 2002 to make an application to free JN for adoption. The appellant complained that the Trust had settled on the decision in September 2002 without giving the mother another opportunity to prove herself capable of looking after JN. It was argued that therapeutic work recommended by a clinical psychologist did not commence as the Trust had decided upon adoption. By the time the case came before the High Court in October 2003 a strong bond had developed between mother and child. Moreover SN had moved into private accommodation, gained steady employment and entered a relationship with a stable cohabitee.

14. The tragic consequences of the Trust’s failure to recognise the mother’s Article 8 rights may be seen from the Court of Appeal’s conclusion:

“If the Trust in the present case had been fully cognizant of SN’s rights under Article 8 of the European Convention, this court considers that it should have given her a further opportunity to prove herself by undergoing the further suggested therapeutic work in early 2003. That regrettably was not done thereby depriving her of the opportunity to prove that JN could be returned safely to her care. Having regard to the real progress which she had made in her life, despite not having the benefit of the further suggested therapeutic work, there was some real prospect that she might succeed in so doing, although that would take some time to establish. Time has now inevitably moved on and this court has to look at this application in the light of matters as they now stand, bearing in mind that JN has now been happily settled with Mr and Mrs K for nearly three years and was only in the care of his mother SN for the short period of four months immediately following his birth on 3 April 2001. This court considers that it is now in the best interests of JN that he should be freed for adoption and that SN, his mother, is withholding her consent unreasonably.

In considering any further steps which may be taken in relation to the future of JN, it is incumbent upon the Trust and all others involved therein to comply with the obligations imposed on them by Article 8 of the European Convention.”

15. Both AR and SN illustrate the dangers inherent in the assumption that when a child’s rights are engaged all others are rendered irrelevant.

Criminal Law

16. The same issues are increasingly apparent in the criminal courts where children routinely appear as complainants, witnesses and defendants. At the outset I would submit that it is undoubtedly right that allowances should be made for children involved in a legal process that was designed by and for adults. Again, though, in our efforts to protect the rights of the young person we must have cognizance of the rights of other parties and, indeed, the integrity of the justice system as a whole.

17. Young complainants perhaps most often appear in criminal courts in the context of harrowing cases of sexual abuse. In recent years every effort has been made to ensure that already vulnerable children are not subjected to further abuse from the justice system itself. The legislature has now codified a range of “special measures” in the Criminal Evidence (Northern Ireland) Order 1999. Perhaps most significant among these is the opportunity for the child will give evidence in chief through a video recording and be cross-examined by live television link. Few would regard these innovations as damaging to either the defence or the legal process.

18. I have concerns, however, that in our understandable efforts to accommodate a child complainant we do not undermine the opportunity for the accused to mount a full and robust defence. This matter was recently drawn to my attention by adverse comment that attached to a cross examination of a very young girl who had accused her father of indecency. Cross-examination is, unfortunately, a stressful experience for anyone but perhaps particularly for a young child. It is, however, an indispensable part of our adversarial culture and we should think long and hard before placing obstacles in the way of defence counsel who must be vigilant as to his or her client’s Article 6 rights. I am not sure that there is any easy solution but it occurs to me that this is one area in which the judge must be particularly proactive in ensuring that all rights are protected. I am pleased to say that the Judicial Studies Board for Northern Ireland has recently embarked on a series of events focusing on children in court and that this is one area under particular scrutiny.

19. Conditions for young defendants in both the Crown Court and the Youth Courts radically improved following the decision of the European Court of Human Rights in V v UK (2000) 30 EHRR 121. Thompson and Venables, who had been convicted of murdering Jamie Bulger, successfully appealed to the European Court of Human Rights on the ground that their trial at Preston Crown Court in November 2003 had violated Article 6(1). The case had an immense impact and provoked a root and branch re-examination of courtroom infrastructure. In a practice direction issued by my predecessor on 15 June 2000 the Lord Chief Justice stated: “The purpose of such trial is to determine guilt (if that is in issue) and decide the appropriate sentence if the young defendant pleads guilty or is convicted. The trial process should not itself expose the young defendant to avoidable intimidation, humiliation or distress. All possible steps should be taken to assist the young defendant to understand and participate in the proceedings. The ordinary trial process should so-far as necessary be adapted to meet those ends.” The direction goes on to make a number of observations as to court layout, facilities and trial management. Similar instructions with regard to Youth Courts are to be found in the Youth Court Guidelines which are currently being redrafted.

20. I wonder, however, whether the future will bring a more intense re-examination of the rights of young defendants. The special measures contained in the Criminal Evidence (NI) Order 1999 do not apply to young defendants who, even after T&V, will be examined and cross-examined in open court. It occurs to me that if child witnesses are automatically categorised as “eligible for assistance” on the simple basis of age then on an extension of the equality of arms principle we ought to at least begin to examine whether child defendants ought to have some of the same concessions.

Concluding remarks

21. It is to my great regret that I will not be able to stay to hear all the papers today as I have court commitments. I have no doubt that you will enjoy a most stimulating conference and I am grateful to all those involved, particularly Dame Elizabeth, for continuing to actively include Northern Ireland in Children Law UK’s programme.

As someone who has been a Family Judge in the High Court for the last five years, I approach this topic with a sense of cultural prejudice. I am versed in a system with the emphasis on the protection of children and a key issue is the drift from children welfare focus to a newer emphasis on child rights in which the child is increasingly regarded as an independent legal subject with autonomous rights and entitlements. I work in a milieu where each day the courts make statements about the nature of childhood, the vulnerability of children and lost innocence. I deal in protective measures. Accordingly if a child is involved in public law proceedings such as an application for care or supervision, orders sought by a Trust under the Children Order (Northern Ireland) 1995 I have, inter alia, a positive duty to consider appointing a guardian ad litem unless satisfied that it is not necessary to do so in order to safeguard the child’s interests. The Children Order itself provides that the welfare of the child shall be the courts “paramount consideration”, and that “the wishes and feelings” of the child shall be ascertained, making specific reference to the child’s age and understanding.

It has always seemed to me however that the protective genre of the Family Court was at times potentially in conflict with the concept of responsibility inherent in the criminal justice system. For many years that conflict, if that is what it is, had been blurred by the special status of childhood in criminal law as symbolised to some degree by the presumption of doli incapax for children between 10 and 14. That special status seemed to be in rhythm with a stout centuries old history to fortify the notion. I read recently a very interesting article outlining the history of doli incapax and it contained the following assertions:

“After the 12^th century with the growing insistence on moral blameworthiness as a foundation for criminal responsibility, there developed aspects of mens rea, that is, requirements that the harm was caused with a proscribed state of the mind. Here, the origins of ‘special treatment’ for children can be discerned: children might be prosecuted and convicted but would generally be pardoned. Forfeiture of goods followed pardons and as children had none, it became a pointless exercise. By 15^th century judges invariably dismissed cases against young children. Whilst some children were simply too young to be punished others, at the sub-adolescent period were liable to punishment only if malice could be proved, identified as an ability to discern between good and evil.

At a time when a defendant accused of a felony was not allowed to give evidence at their trial, determination of capacity and discretion were sought in legal presumptions. Towards the end of the 17^th century when Hale wrote ‘Pleas of the Crown (1682)’ these presumptions were well established: children under seven were irrefutably presumed to be doli incapax, those between seven and fourteen were presumed doli incapax and could only be convicted if it appeared to the court that they were able to discern between good and evil at the time they committed the offence.”^[1]

So for hundreds of years, probably dating back to before the time of Edward I, there existed a special measure which applied to children over the age of criminal responsibility but under fourteen years. They benefited from the presumption of doli incapax used to protect them from the detrimental effects of the enforcement of the criminal law.

Until very recent times therefore the presumption existed that unless and until the prosecution adduced evidence which proved beyond reasonable doubt not only that the child defendant committed the offence with the mental element required by criminal law, but also that when so doing, they knew what they were doing was seriously wrong, as distinct from naughty or mischievous (C v DPP 1996 AC1). The presumption had been reinstated by the House of Lords in 1995 after a twelve month abolition by the Divisional Court. Lord Lowry, former LCJ in Northern Ireland, who delivered the main judgment of the House of Lords in C v DPP carefully considered the authorities and the history of the presumption before declaring that it was still part of the law of England. He examined the reasons given in the Divisional Court by Mr Justice Laws for his decision to abolish it and produced reasoned arguments for taking a less definitive and more protective stance towards offending children. Lord Lowry said at page 40:

“There is a need to study other systems, including that which holds sway in Scotland … whatever change is made, it should be issued only after collating and considering the evidence and after taking account of the effect which change would have on the whole law relating to anti-social behaviour.”

In the same case Lord Jauncy expressed the hope that Parliament would look at the presumption perhaps as part of a larger review of the appropriate methods in a modern society of dealing with youthful offenders and referred to the system of children hearings in Scotland, where he observed that although the age of criminal responsibility was lower at eight years, many children were effectively dealt with outside the formal criminal courts.

The 1990s witnessed to some degree a fundamental change in this centuries old approach to the responsibility of children in the criminal courts. Priorities in relation to children and the crime have to a material degree become focused on responsibility and response in the philosophy of criminal law. Concern was increasingly expressed about the practical difficulties of rebutting the presumption which was allegedly preventing the prosecution of some children who needed to be prosecuted and punished. It was now felt that ultimately the welfare needs of the individual young offender could not outweigh the needs of the community to be protected from the adverse consequences of his or her offending behaviour.

The view gained credibility that most young people aged ten to thirteen were capable of differentiating between right and wrong, especially where the issue was one of theft or criminal damage. That this was a misstatement of the presumption as being able to tell the difference between right and wrong rather than naughty and seriously wrong was neither here nor there.

So, reflecting the position in England and Wales, Article 3 of the Criminal Justice (Northern Ireland) Order 1998, removed the safeguard of “doli incapax” from children aged ten to thirteen. No longer was there to be a duty on the prosecution to rebut the presumption that children between ten and thirteen were incapable of criminal intent by proving beyond reasonable doubt that a child understood that what they had done was seriously wrong rather than merely naughty. Arguably a ten year old child in primary school is now to be presumed as criminally responsible as a fully mature adult. Moreover the right to silence was also removed by the Criminal Justice (NI) Order 1998, and so children as young as ten now risk adverse inferences being drawn if they do not give evidence in court or answer questions during cross-examination.

International Human Rights Standards

The trawl of international standards on this topic repays careful consideration in this context.

(1) The United Nations Convention on the Rights of the Child (CRC) provides a set of minimum standards against which to test law, policy and practice as it affects children. Arguably practices in the UK should be equal to the standards set by the Convention. The preamble of the CRC recalls that the Universal Declaration of Human Rights 1948 proclaim “Childhood is entitled to Special Care and Assistance”. In accordance with this ideal the CRC emphasises the need for a child centred youth justice system, as distinct from a punitive one, in which the child’s interests are paramount. However the position as to a minimum age of responsibility is not absolutely clear. Article 40.3 of the CRC requires States to promote “the establishment of a minimum age below which children shall be presumed not to have the capacity to infringe penal law” and the guidelines for periodic reports indicate that the reports should in particular indicate the measures adopted to ensure a child orientated justice system by inter alia establishing such an age.

However Article 4.1 requires that the age of criminal responsibility be not set at too low an age level bearing in mind the emotional, mental and intellectual maturity of the child. The CRC does not indicate a desirable minimum age for criminal responsibility.

The problem is that whilst the Convention on the Rights of the Child may have gone a long way to advancing the protection, promotion and fulfilment of children’s rights, it is not clear to whom it applied at what age. Some commentators have indicated that this lack of a legal definition of childhood may yet be the greatest risk to effective implementation of the noble aims of the Convention ^[2].

The principles and provisions of the UNCRC are informed by, and to some extent based on, a number of more detailed standards and guidelines, for example the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 (the Beijing Rules) and the United Nations Guidelines for the Prevention of Juvenile Delinquency 1990 (the Riyadh Guidelines).

Although these instruments are purely recommendatory and are non-binding, in that they have no direct legal impact upon either international or national legislative bodies they do serve to identify current international thinking on human rights for young people and they represent the minimum recommended standards on youth justice issues. The UK has committed itself to aspire towards fulfilling all the obligations outlined in these instruments.

Thus Article 1.2 of the Beijing Rules stresses the idea that the state should ensure a productive life for young people within the community so as to encourage in them a process of personal development and education “during that period in life when she or he is most susceptible to deviant behaviour”. The need for an all embracing social policy and the promotion of juvenile welfare in order to deflect intervention by the criminal justice system is pivotal to the Beijing Rules. The emphasis is on intervention before criminal behaviour occurs and to comply with these rules such a youth justice setting is crucial.

Similarly the Riyadh guidelines prioritise the requirement of society in general to participate in the development of adolescents with respect for, and promotion of, their personality from early childhood. The theme of these guidelines is that policies must be created which preclude criminalising and penalising children for behaviour that does not cause serious damage to the development of the child or to others. Hence Article 33 states:

“Communities should provide … a wide range of community based support measures for young persons, including community development centres, recreational facilities and services designed in view of the special problems of children in a situation of social risk.”

The right of a child to special protection is seared through a number of other human rights documents which are not in themselves specifically geared for children. These include the United Nations Standard Minimum Rules for Non Custodial Measures 1990 (the Tokyo Rules), promoting greater community involvement in the management of criminal justice specifically in the treatment of offenders as well as promoting a sense of responsibility among offenders towards society. Minimum intervention is the key to these Rules. The United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985 extols the promotion of community efforts and public participation in crime prevention.

The theme coursing through the veins of these international instruments is the protection of the personality of those under 18 years of age and the need to assemble and utilise community based responses to their needs. These are instruments of international law and they advocate the requirement of youth crime policies and interventions “to avoid a narrow focus on the crime and to take into account the social and contextual factors that are frequently associated with youth offending”.

Decriminalisation and diversion are twin themes that emerge time and time again. Imprisonment of young people should be a measure of last resort. If we are to comply with these instruments, then the UK should aspire to a system for diverting young people from imprisonment and the youth courts and promote the fulfilment of each young person’s potential.

It seems however that the youth justice system in England and Wales has attracted much international and domestic criticism for its failure to fulfil its obligations under international law. The United Nations Committee on the Rights of the Child has repeatedly recommended that the UK establish a system of youth justice that fully integrates into its legislation, policies and practices the provisions and principles of the Convention, the Beijing Rules, the Riyadh Guidelines and the Tokyo Rules. In its 2002 Report, the Committee on the Rights of the Child recommended that the UK adopt the best interests of the child as a paramount consideration in all legislation and policy affecting children throughout its territory, most notably within the youth justice system.

Article 3 of the UNCRC states that:

‘in all actions concerning children whether undertaken by public or private social welfare institutions, courts of law, administrative bodies or legislative bodies, the best interests of the child shall be the paramount consideration.’

Arguably that is the opposite of the emphasis that we adopt in our approach to children in our criminal justice system. Section 37 of the Crime and Disorder Act 1998 places all those carrying out functions in relation to the youth justice system under a statutory duty to have regard to the principle aim of preventing offending by children and young people.

The government has even suggested that this principle aim of prevent offending should be elevated to the single main consideration when sentencing young offenders (Home Office, Youth Justice: The Next Steps (Home Office, 2003), at para 6).

It was proposed that this aim be supported by requirements for sentencers to also take into account factors such as the extent to which punishment is needed; whether, and if so how, there needs to be public protection because of the seriousness or persistence of the offending; the individuals age and vulnerability; the costs of interventions; evidence of their effectiveness; whether there should be a restorative or reparative approach and/or obligations on the young person’s parents; and what particular interventions have been tried if the person has been sentenced before and what would be appropriate now. Remarkably, taking account of the best interests or the welfare of the child has been omitted from the list of considerations. Thus according to some commentators the “best interests” of the child has been discarded as a consideration and displaced by the central aim of “preventing offending”.

The United Nations Committee on the Rights of the Child expressed increasing concern that in England and Wales the treatment of children in conflict with the law is deteriorating. In particular, the UN Committee was concerned that the age at which children enter the criminal justice system is low; that the principle of doli incapax was abolished; that an increasing number of children are being detained in custody at earlier ages for lesser offences and for longer sentences; that children between 12 and 14 years of age are being deprived of their liberty; and that deprivation of liberty is not being used only as a measure of last resort and for the shortest appropriate period of time.

We in Northern Ireland, England and Wales have not only one of the lowest ages of criminal responsibility, but also we lock up more young people than most other countries in Western Europe. The institutions of incarceration – Young Offenders Institutions – are sometimes characterised by appalling conditions, over-crowding, brutality, suicide and self-harm. In summary the danger is that the youth justice system in England and Wales has become a formal and rigid system which draws younger children into contact with the youth justice system and escalates them up the sentencing ladder and into custody. This tough approach to youth justice clashes with the preventive approach promoted in the UNCRC and the associated Rules, Guidelines, Resolutions and Declarations.

Nonetheless it must be observed that the European Court of Human Rights has not criticised the United Kingdom for its minimum age legislation. In the cases of T and V v UK (2000) involving Venables and Thompson, the two boys convicted of murdering the toddler James Bulger, the European Court held that the minimum age of criminal responsibility did not in itself deviate so far from European practices as to violate human rights standards. The partly dissenting joint opinion of four judges provided a different perspective. With only four contracting States having an age of responsibility as low as, or lower than, England and Wales, the dissenting judges submitted:

“We have no doubt that there is a general standard among the member States of the Council of Europe under which there is a system of relatively criminal responsibility beginning at the age of 13 or 14 – with special core procedures for juveniles – and providing for full criminal responsibility at the age of 18 or above.”

These judges were particularly struck by the paradox that children who were deemed to have sufficient discrimination to engage their criminal responsibility had a play area made available to them during adjournments.

I should not leave this case without of course also drawing attention to the fact that the court did hold that it was essential in the case of a child that he be dealt with in a manner which took account of his age, level of maturity and intellectual and emotional capacities, and that steps were taken to promote his ability to understand and participate in the proceedings including conducting the hearing in such a way as to reduce as far as possible his feeling of intimidation and inhibition.

Nonetheless in a more recent case of S C v The United Kingdom (App. No. 60958/00 (15 June 2004)) the court continued to adopt that the proposition set out in T v UK that the attribution of criminal responsibility to, or the trial and criminal charges of, an eleven year old child does not in itself give rise to a breach of the Convention as long as he or she is able to participate effectively in the trial.

Critical analysis

The time has arrived when we have to stand back and look at the philosophy that underpins our approach to criminal responsibility with children. I believe a number of factors are relevant in considering this issue:

(1) Arguably, at ten years of age, the age of criminal responsibility is seriously out of line with the other responsibilities and rights in society. The age of marriage is sixteen (with parental consent, eighteen without parental consent), the age of sexual consent in Northern Ireland is seventeen, the age of majority voting rights is eighteen, the age for a driving licence is seventeen, the age for leaving school is sixteen, the age for living unsupported is sixteen, the age for buying cigarettes is sixteen and jury service is eighteen.

The law therefore bestows varying degrees of responsibility on to a young person between sixteen and eighteen. Commentators have drawn attention to the fact that there is no other legal or social arena where we give children complete responsibility at ten ^[3]. Goldson and Peters note that in England the Pets Animals Act (1951) provides that it is not until a child has reached the age of twelve that they are legally entitled to buy a pet. As Goldson and Peters comment “This seems perfectly sensible. It is curiously anomalous and legally inconsistent therefore, to regard the same child, albeit two years younger, to be sufficiently responsible to face the full rigour of the criminal law.”^[4]

(2) The United Kingdom has amongst the lowest ages of criminal responsibility of any of the European States. Scotland has an even lower age of criminal responsibility, at eight years of age, than the rest of the UK. In all Scandinavian countries the age of criminal responsibility is fifteen and adolescence under eighteen go through a system of justice geared mostly towards social services with incarceration as the last resort. Other European examples are Greece and Netherlands (12), France (13), Austria, Germany, Italy (14), Portugal, Spain (16) Belgium and Luxembourg (18).

(3) Moreover the maintenance of ten as the age of criminal responsibility causes enormous practical difficulties. The review of the criminal justice system in Northern Ireland at paragraph 10.69 recommended that children aged ten to thirteen inclusive who were found guilty of criminal offences should not be held in juvenile justice centres and that their accommodation needs should be provided by the care system.

The truth of the matter is that there is a shortage of care provision for challenging and vulnerable children, and there is the potential to have two different regimes in a single care institution with the potential for the stigmatisation of children in care for reasons other than criminal justice.

Furthermore there is the potential for children as young as fifteen to end up in prison custody in the Young Offenders’ Centre including Maghaberry Prison.^[5]

Children in trouble are also children in need. There is no shortage of research linking criminal behaviour of young people with poverty, fractured families, problems in schooling and learning and behavioural difficulties.

Children in care are also over-represented in the figures of children in custody in Northern Ireland. The danger therefore to be considered is whether or not a low age of criminal responsibility further disadvantages these children by taking them on the path of criminality rather than addressing their needs.

The real fear is that criminalisation of children tends to lead towards a criminal career. Does it stigmatise the child and alienate them from society, creating problems of self-esteem, encouraging the child to mix with other young people who have offended and creating barriers in the way of return to education or future employment?

What we have to ask ourselves as a society is whether or not, despite the importance of anti-social behaviour being dealt with, it is equally important that children should not be criminalised.

Are not many of the children convicted of crimes also victims themselves and failure to recognise this dual aspect of their criminality can end up denying them their right to childhood?

Do we as a society treat children as offenders first and as children second?

There is no doubt that the Criminal Justice (Children) (NI) Order 1998 has much to recommend it. This legislation (which renames training schools as juvenile justice centres) aims to reduce the number of children in custody and to restrict its use only to those involved in serious or persistent offending. It is expected that shortened custodial sentences will be matched with intensive community supervision which will focus upon helping the individual to confront their offending behaviour. Youth justice legislation in Northern Ireland does have an emphasis on diversion. The concept of diversion is of course fully consistent with the thinking behind the Beijing Rules. The official commentary on that document notes:

“Diversion, involving removal from criminal justice processing and, frequently, redirection to community support services, is commonly practised on a formal and informal basis in many legal systems. This practice serves to hinder the negative effects of subsequent proceedings in juvenile justice administration (for example the stigma of conviction and sentence). In many cases non-intervention would be the best response. Thus diversion at the outset and without referral to alternative social services may be the optimal response. This is especially the case where the offence is of a non-serious nature and where the family, the school, or other informal social control institutions have already reacted, or are likely to react, in an appropriate and constructive manner. As stated in Rules 11(2), diversion may be used at any point of decision-making by the police, the prosecution or other agencies such as the court, tribunals, boards or councils. It may be exercised by one authority or several or all authorities, according to the rules and policies of the respective systems and in line with the present rules. It may not necessarily be limited to petty cases, thus rendering diversion an important instrument.”

We ignore at our peril the genuine public concerns however that exist about child and youth violence. We must recognise that there can be a core of dangerous, disruptive and manipulative children hostile to authority and ready to exploit for their own advantages any concession gifted to them. Whilst often these are confused young people at odds with society’s expectations often hopelessly addicted to a lifestyle that threatens to destroy them, nonetheless if these children are not dealt with appropriately, then there is a smouldering sense of public injustice. If we overlook this profound social truth we practise the language of self-deception.

What we must strive to do is to ensure that reason not emotion colours the thread of the criminal approach to children. What does trouble me is whether or not the drive for perfection of means may carry with it a confusion of goals. A key issue in determining the appropriate age of criminal responsibility is to concentrate not just on it as a means of preventing offending but on what is the goal of the process. Is the goal of child and youth justice to be based on condign punishment satisfying the need for retribution and deterrence or is it to be the best interest of the child, encouraging rehabilitation and the reintegration of the child into playing a constructive role in society? There is no doubt that basing the age of criminal responsibility on the concept of children’s understanding does create difficulties as children develop at different rates and in different ways. Setting the firm age of criminal responsibility may not suit all children of that age but the rule of law is a complex concept and riven with challenging aspects.

The criminal law is an arm of public law and as such is concerned with regulating the relationship between the State and its citizens. In the majority of offences, the State’s position is to redress harm caused to an individual or the wider community by another individual. Herein lies the problem of applying this philosophy to children. A child’s experiences from birth are controlled by others who have responsibilities towards them. Social factors such as poverty, bad housing, high crime environment, low educational provision and poor parenting are all contributors to offending behaviour for which the child is not directly responsible and from which the child needs protection.

My concern is not only that the age of criminal responsibility appears questionably low, but more importantly there appears to be no overarching system which brings together all the problems and services necessary for children who require protection and who may be in conflict with the law.

A family-criminal interface is a concept whose time has come!

Already in England the Solicitor General and the President of the Family Division with the support of the Deputy Chief Justice have established the Family Criminal Interface Steering Committee.

In Northern Ireland the Children’s Order Advisory Committee have set up a sub-committee looking into the wider possibility of an overarching family justice system interlocking family and youth justice in a family context. We are looking at models throughout the world including New Zealand, Australia and Europe.

In particular we are grappling with the reality that at present issues concerning children and families arise in several different court venues. Issues concerning domestic violence arise in an adult court. Applications for non-molestation orders are dealt with by Domestic Proceedings Courts or under the Allocation Rules in the Family Proceedings Courts. Domestic Proceedings Courts may deal with financial arrangements but not the distribution of capital assets which will involve ancillary relief proceedings in the High Court. The Family Proceedings Court where the case may be introduced at effectively Magistrates’ Court level potentially can be moved in complex cases to Family Care Centres or the High Court. Finally if the first manifestation of problems in the family occurs because a young person gets into trouble and is brought before the Youth Court, then this matter is dealt with by and large in abstract.

There is no means currently of an holistic approach introducing any kind of overall family enquiry in one joined-up court system. Accordingly often young persons appear without parental support or interest in a context where their home circumstances may be responsible for the trouble they are now in before the court.

The abolition of the concept of doli incapax and the fixing of our age of criminal responsibility at ten is firmly lodged in this disparate and somewhat unconnected criminal justice system dealing with children.

The reality is that children are often both perpetrators and victims of crime as demonstrated most acutely by looked after children who are more likely to be involved with the criminal justice system than any other child.

Every child should be able to have needs and risks addressed in a system which allows for the management of prevention, family support and diversion as part of a continuum. It is only when the family justice system has created this linked up approach in a firmly established interface between criminal and family justice, resting on the principle that the interest of the child is a primary matter, that the time may come again to look at the changes that have been made in the age of criminal responsibility.

We must consider whether our present children and youth justice policy is insufficiently child centred or is it focusing too much on a retaliatory response to crime, thus failing to treat offending children as wayward and in need of a guiding hand. In the meantime, we are where we are, but as Oliver Wendell Holmes once said “The important thing is not where we stand, but the direction in which we are going”. I hope we are going in a new direction.

^[1] Children, Responsibility and New Youth Justice – Sue Bandalli, New Youth Justice, Chapter 5 p. 81.

^[2] At what age? Information from “At What Age” website p. 8.

3 Ann Hagell of the Policy Research Bureau (Guardian 1/17/02).

4 R Arthur, “Punishing Parents for the Crimes of their Children” (2005) 44(3) Howard Journal of Criminal Justice 233 and International Family Law 2005 p158, Raymond Arthur, Lecturer in Law, Centre for Law Open University UK.

5 Barry Goldson and Eleanor Peters 2000, Tough Justice, Responding to Children in Trouble – Children’s Society p. 4.

6 Age of Criminal Responsibility (include youth) – February 2002.

The Criminal Code of Tajikistan 1998 (as amended by the Law of the Republic of Tajikistan “On Amending and Changing the Criminal code of the Republic of Tajikistan”) is the main legislation governing the criminal justice system in Tajikistan.

In addition to the Criminal Code, the Code of Criminal Procedure sets out due process guarantees for persons accused of committing a crime.

The age of criminal responsibility in Tajikistan is set at 16 by the Criminal Code. However, the age of criminal responsibility is reduced to 14 where a child commits one of the serious offence contained within Art 23(2) Criminal Code. Children aged between 14 and 16 who commit minor offences, and are therefore released from criminal responsibility, are dealt with by the Commission of Minors, who can place them in the most appropriate children’s institution.

In reality, the age of criminal responsibility is Tajikistan is much lower, as children who commit offences under the age of 14 can be sanctioned for commission of criminal acts by the Commission of Minors. Children as young as 7 can be removed from their family and sent to a special school.

Status offences, that is offences that may only be committed by children, such as failure to attend school and disobedience at home and at school, do not appear to exist in the criminal law. However, such behaviours may result in the child being sent to a children’s institution (open or closed) following a hearing before the Commission of Minors.

The Criminal Process for children over the age of criminal responsibility

Arrest (to secure appearance at the militia station)

When a child is arrested for a criminal offence he or she may be taken to the militia (police) station. In the police station there is no special subdivision to investigate cases involving minors, although a small number of policemen have had training on how to deal with juvenile offenders. There are no child protection specialists within the militia, neither are there specially designated juvenile officers nor a specialist juvenile department. While some of the police have received some training in dealing with juvenile offenders, this only constitutes a minority.

While some juveniles may be released back to parental care after interview, juveniles aged 14 or over can be held for 24 hours but may, with the consent of the prosecutor, be held for up to 3 days if he has committed a crime. If a juvenile has parents and has been arrested or charged, the parents must be contacted within 8 hours.It is possible for children over the age of 14 whose parents cannot be found, or who do not live locally, to find themselves held for 3 days in a police cell.

According to Art. 412 of the Criminal Procedure Code, a person can only be detained in custody if they are suspected of committing a crime that carries with it a possible sentence of deprivation of liberty AND when

1) the person is caught committing the crime or directly after the crime is committed,

2) the eyewitnesses directly identifies the suspect, or

3) when evidence of the crime is found on the suspect or in his home.

Further, a person can be detained if he or she tries to escape, has no fixed place of residence, or is unable to produce identification. These provisions are applicable to juveniles and adults alike.

Because of the lack of specific juvenile facilities at police stations in Dushanbe, and the lack of a specialist juvenile division or functioning social services, the police often do not know what to do with arrested children (both under and over the age of criminal responsibility) whose parents cannot be contacted (sometimes due to the remoteness of the regions in the country). It would appear that some children who have committed criminal acts are transferred to the Temporary Isolation Centre, a secure, closed centre, run by the Ministry of Interior, which holds 3-18 year olds. These minors may be held in an isolation cell for up to three days at the centre. At the end of three days a decision is made whether to charge the child and undertake a preliminary investigation. At that stage, the child will either be released or a decision will be made to hold the child in pre-trial detention.

Pre trial detention of juveniles following charge

If juveniles are charged with an offence that would attract a possible sentence of less than one year of detention, pre-trial detention is illegal (although Part 1,2,5 Article 90 CPC provides that in exceptional cases confinement can be used where the period of deprivation of liberty is less than one year). Juveniles charged with more serious offences (i.e. attracting more than one year’s deprivation of liberty) can be held in pre-trial detention. However, as with minors under investigation, this measure should only be used in exceptional circumstances, where investigations need to be carried out or the offence is very serious or when the juvenile is obstructing justice (Art 91 Criminal Code). Juveniles should not be detained for more that two months in order to investigate a crime. However the juvenile can be detained for up to three months, if the city or regional prosecutor determines that an investigation cannot be carried out in two months. In exceptional circumstances and only for grave crimes, juveniles can be detained up to 1yr 3 months (Article 92 CPC).

Under the Criminal Procedural Code Arts 412 and 420, juveniles should be detained separately from adults. However, in exceptional cases, with the prosecutor’s agreement, juveniles can be placed in the same cell as an adult.

The detention of a juvenile under the Criminal Procedure Code is monitored, to the extent that contact between the child and his/her parents or guardians is permitted, and a psychologist or teacher is able to monitor the child’s well-being. It is not clear, however, to what extent, if at all, such visits are made in practice.

Pre-trial detention can be challenged in court under Art. 221 CPC. The person will be kept in detention until the court makes its decision on the legality of the confinement, which must be no later than 3 days after receipt of the materials. Although the ability to challenge their detention is in conformity with Art 37(d) UNCRC, it is extremely rare in the case of a juvenile for such a challenge to be made, especially where access to legal assistance is not common.

The law does provide for alternatives to pre-trial detention. Under Art 89 Part 1,2 CPC, it seems that a juvenile can be placed under the supervision of parents, guardians, trustees of the administration of the closed establishment, who guarantee the appearance of the juvenile in court or appear before the investigator. According to the Society and Children’s Rights Organisation, it would appear that pre-trial diversion following charge is also possible under Art 235 CPC, and that a child may repent, reconcile with the victim etc and be released.

If a person tries to escape or is violent, the use of handcuffs and straight jackets are permitted. However, guns may not be used in dealing with juveniles (Arts 429 CPC).

Legal representation

Under Art 48 Criminal Procedure Code, where a person has been charged with an offence he shall be informed as to the details of the offence and be presented with the evidence.

All persons have the right to legal assistance during investigation (part 3 of Article 48 CPC and Part 2 Art 19 Constitution). Part 1,2,3,4,6 Art 49 CPC provides that a defence lawyer is allowed to take part in the criminal process as soon as the individual is arrested or charged. Access to a lawyer shall be within 24 hours from the moment of arrest or detention. If the individual’s chosen legal representative is not available the prosecutor (inspector or person effecting the investigation) should offer another legal representative.

Where no legal representative is chosen for trial, one must be appointed. Provision shall be free at the discretion of the court, prosecutor or legal consultant/lawyers counsel. (Art. 49 CPC)

Juveniles must be provided with a defence counsel during their trial and during the investigation of their case, from the moment the juvenile is arrested or charged. (Part 1 and 2 Article 51 CPC) Under Part 2 Article 52 CPC the rejection of legal representation by the juvenile need not be accepted by the Court.

The system of courts and adjudication

The Tajikistan criminal justice system does not have juvenile courts, specialist juvenile judges or a separate form of criminal procedure for children. There are no professionals within the criminal justice system dedicated to dealing specifically with children, whether as offenders, victims or witnesses. Judicial hearings for juveniles do not differ from those for adults, except to the extent that there are additional safeguards accorded to them due to their age. In addition, there is no system of specialized teaching and training for professionals working in the law enforcement agencies and bodies administering justice. This does not conform with Beijing Rules, Rule 22.1 which requires all those personnel dealing with juvenile cases to receive specialized training.

The protection offered to children over the age of 14 within that Criminal Code, does not fulfil the obligation on the State under Art 40(3) UNCRC, to establish “…laws, procedures, authorities and institutions specifically applicable to children alleged as, accused or recognised as having infringed the penal law”.

Although the Criminal Code does provide additional safeguards for juveniles, such as reduced sentences and an obligation on the Court to consider all the circumstances and living conditions of the juvenile before sentencing, children proceed through the adult criminal justice system and are tried in an adult court. The current system is therefore not sufficient to comply with the UNCRC or the Beijing Rules.

Proceedings in court

Once a minor is charged and the investigation completed, a decision on whether to proceed to a trial is taken by the court in the presence of the child’s lawyer and prosecutor at the Regulating Session. If a decision is taken to proceed to trial, the date of the hearing is fixed and the defendant notified.

The Criminal Procedural Code sets out the rights of the accused during the trial. Among other due process guarantees, it is provided that:

· the accused must be informed of their rights and have them implemented (Article 59);

· the accused can only be found guilty and be subject to punishment by a court in accordance with the law (Article 8);

· that if the accused is unable to speak the language of the court, he is able to present his case in his native language through an interpreter (Part 1 Article 12 CPC)

· Juveniles must be provided with a defence counsel (see above)

During both the preliminary investigation and trial involving a juvenile, his age, his living conditions, the causes of his criminality and the influence of adults or other participants in the crime must be taken into consideration (Art 61 Criminal Procedure Code).

Parents have the right to participate in examining all evidence at the court sitting, produce evidence and make rejections and solicitations of evidence. This provision of the Criminal Procedure Code is in conformity with the Beijing Rule 15.2.

Dispositions

In the determination of the sentence for a minor, the court takes into consideration the “conditions of his life and upbringing, degree of the minor’s mental development, health and other circumstances” (Art. 88(1) Criminal Code).

The following sanctions can be imposed on children under 18 before the adult court (Art. 87 Criminal Code):

· Fines. A fine is applied only to minors who have independent incomes or property. An amount up to one hundred times the minimum wage can be imposed.

· Deprivation of the right to be engaged in a specific activity for period of one to two years.

· Correctional labour for a period of two months to one year. 5-15 % can be deducted from wages of minor offenders to the state revenue. However, correctional labour cannot be imposed on persons under 16 years.

· Confinement for one to four months. (Adults can be placed in confinement for up to 6 months.) Confinement is only imposed on minors who have reached the age of 16 years at the time a sentence is passed. Confinement is defined in Article 55 and Article 87 Criminal Code as keeping an individual in conditions of strict isolation. It must be noted that this punishment has been suspended under the criminal law until 1^st January 2008. Further, the draft law of the Republic of Tajikistan “On Amending and Changing the Criminal Code” suggests excluding this kind of punishment under the Criminal Code.

· Deprivation of liberty for periods of up to two years for a petty misdemeanour; 3 years for a misdemeanour; 7 years for a felony or an especially grievous crime at the age under 16 years old; and 10 years for a felony or an especially grievous crime at the age of 16 to 18 years old.

· Cumulative sentences can be passed for crimes where at least one crime is grave or especially grave if the minor is aged 14-16 years but these must not exceed 10 years deprivation of liberty; must not exceed 12 years in the same circumstance if the minor is aged 16-18 years; and the final sentence for cumulative crimes in total must not exceed 15 years imprisonment. It is not clear whether the age thresholds specified refer to when the crime was committed or refers to the point at which the sentence is passed.

Under Art 59(2) Criminal Code persons under the age of 18 years are not subject to the death penalty.

Under Art 58(1) Criminal Code imprisonment is defined as isolation of a convicted person by keeping him in a correctional colony under general, amplified, strict, especially strict regimes or in prison. Art 88 Criminal Code provides that boys under 18 may only be subjected to a general regime in a facility for minors or in an intensive regime (in a facility for under-18s) if they have previously been sentenced to imprisonment. These facilities are generally known as ‘colonies’. Girls under the age of 18 may only be sentenced to a general regime. There is only one girl’s colony in the country, currently holding eleven girls. It is believed that a number of convicted girls are held together with women in the adult prison. While detained, although efforts are made to guarantee the child’s right to education, resource constraints have resulted in children’s needs not being met.

Article 91 provides that parole may be granted to a person who committed a crime before the age of 18 years after a specified period of imprisonment or correctional labour has been served: not less than a 1/3 of the term assigned for petty misdemeanours, ½ for a felony, 2/3 for an especially grievous crime.

Further, for minors who have committed less serious crimes (petty misdemeanour or misdemeanour) and where it is their first offence, the Court may decide to impose one or more of the following sanctions if it is believed that his rehabilitation would be possible by imposing educational measures:

· warning;

· placing minors under the supervision of a responsible adult or a juvenile body;

· obligation to pay the damages;

· limitation of leisure and imposition of special demands on the minor’s conduct.

Where a minor is convicted of committing a crime of minor or medium gravity, instead of serving a term of imprisonment, a forcible measure of educational effect can be imposed. (The levels of gravity of crimes are not defined by the code). Where a minor is convicted of a medium crime, he can be placed in a special educational or medical institution for minors, if it is deemed that the purposes of punishment can only be achieved in this way. The term imposed shall not exceed three years or when the minor reaches majority.

Under Article 90(3) such minors can be released early from these institutions if the minor has been rehabilitated. However, this stay can also be extended if it is deemed necessary in order for the minor to finish his education or training.

Criminal Record

Persons who committed a crime before the age of 18 years will have their records expunged one year after serving imprisonment for committing a petty misdemeanour or misdemeanour; three years after serving imprisonment for committing a felony; and five years after serving imprisonment for an especially grievous crime.

Editorial: The Globalisation Of The Legal Community And Its Impact On Judicial Training

Children’s Rights – A Question Of Balance

THE GLOBALISATION OF THE LEGAL COMMUNITY AND

THE RT HONOURABLE SIR BRIAN KERR

Introductory remarks

The system of courts and adjudication