Section 23 - Children in the criminal process

(1) An accused child who is detained or a child detained without charge must be segregated from all detained adults.

(2) An accused child must be brought to trial as quickly as possible.

(3) A child who has been convicted of an offence must be treated in a way that is appropriate for his or her age.

As previously noted, s. 22 of the Charter requires persons deprived of liberty (irrespective of the purpose of that deprivation) to be treated with humanity and respect for the inherent dignity of the human person. Section 22 also makes requirements with respect to segregation and appropriate treatment for accused persons and persons detained without charge.


As human beings, children are entitled to all of the rights in the Charter (unless the right includes an eligibility condition which they do not meet, for example, the right to vote under s. 18(2) of the Charter), including the right outlined in s. 22.


Section 23 specifies additional requirements for the humane treatment of children who are detained in the criminal process. These rights apply to children who are detained in the criminal process, unlike s. 22, which applies to a person detained regardless of the purpose of the detention.

The additional requirements imposed by s. 23 are:

  • Non-convicted children must be segregated from adults in detention, whether or not the adults have been charged.
  • Children accused of an offence must be brought to trial ‘as quickly as possible’.
  • Children found guilty of an offence must be treated in an age-appropriate manner.


The purpose of these forms of protection is to recognise and address the particular vulnerability of children in the criminal process.


Section 23(1): Segregation


The Charter imposes requirements in respect of segregation (in relation to both adults and children) during the criminal process.


In summary, with respect to the segregation of children, any accused child (who is not convicted) or any child detained without charge must:

  • be segregated from adults in detention: s. 23(1);
  • be segregated in detention from other children who have been convicted of offences, ‘except where reasonably necessary’: s. 22(2). You should refer to s. 22 of these Charter Guidelines for the meaning of this phrase.


In relation to a child who is accused, note also s. 21(6) of the Charter, which provides a right to be released pending trial. Children ought not usually be detained before trial unless there is a good reason for doing so. The right to release pending trial is discussed further under s. 21(6) of these Charter Guidelines.


The Charter does not expressly require convicted children to be segregated from convicted adults. The equivalent ICCPR provision (in Article 10(3)) was omitted so that a practice by which convicted young adults (aged 18–21) are detained in correctional facilities with convicted children rather than with adults will not contravene the Charter. This omission was recommended by the Human Rights Consultation Committee:


‘on the basis that the current system for the punishment of young offenders in Victoria represents the best practice. The Committee was concerned that the inclusion of the provision [that juvenile offenders shall be segregated from adults] may have the unintended consequence of requiring the automatic removal of offenders, who were under 18 when the crimes were committed, to adult prisons when they turn 18.’210


Section 23(2): Right of an accused child to be brought to trial ‘as quickly as possible’


The purpose of s. 23(2) is to recognise that a child should be detained for only the shortest appropriate time.211


There is no prescribed time limit for what will amount to being brought to trial ‘as quickly as possible’. However, it is likely to be a period of time that is shorter than the time permitted under s. 21(5), which requires a person to be brought to trial ‘without unreasonable delay’.


In the case of Philis v Greece the following test was used to consider the period of delayod of delay:

‘the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and ... in particular the complexity of the case and the conduct of the applicant and of the relevant authorities.’213

 

Section 23(3): Right of a convicted child to be treated in a way that is appropriate for his or her age

The Charter requires a convicted child to be treated in a way that is appropriate for the child’s age.


In addition to the standards on detention that are referred to under s. 22 (which apply to both adults and children) the United Nations has developed special standards on the detention of children. To comply with this section, it is recommended that you examine these standards and seek to ensure that they are complied with.


The UN standards are contained in the following documents:

  • UN Rules for the Protection of Juveniles Deprived of their Liberty;
  • UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules);
  • UN Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines).


These documents can be accessed on the internet.215


These standards are founded on the premise that ‘the juvenile justice system should uphold the rights and safety and promote the physical and mental well-being of juveniles.’216 The standards relate to a range of subject matters. Some of these that may be relevant under s. 23(3) are:

  • children should be provided with opportunities to continue education while in detention;
  • children should be provided with access to vocational training in occupations likely to prepare the child for future employment;
  • children should have access to leisure activities;
  • children should be able to use their own clothing in detention, to the extent possible;
  • as far as possible, children should be detained in ‘open facilities’ with minimal security measures and the facilities should be small so as to facilitate access and contact between detainees and their families.217


The standards establish conditions in respect of each of these matters. For example, in relation to education they impose requirements in respect of the type, location and content of education.

These include the requirement that where possible, education of children of compulsory school age should take place outside the place of detention in community schools by qualified teachers. Children with learning disabilities should be provided with access to special education programs.


As discussed on page 145, the segregation of children who are convicted offenders from adult prisoners is another way in which children may be treated in an age-appropriate manner.

 

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210 Human Rights Consultation Committee (Victoria), Rights, Responsibilities and Respect (2005) 43.


211 See for example Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990, article 37(b).


213 Philis v. Greece (No 2) (1997) IV Eur Court HR 1074; (1998) 25 EHRR 417.

215 These documents are all available at <http://www.unhchr.ch/>, which is the website of the United Nations Office of the High Commissioner for Human Rights. Go to ‘International Law’ near the top of the page and then scroll down to the heading ‘Human Rights in the Administration of Justice: Protection of Persons Subjected to Detention or Imprisonment’.


216 UN Rules for the Protection of Juveniles Deprived of their Liberty, G.A. res. 45/113, annex, 45 UN GAOR Supp. (No. 49A) at 205, UN Doc. A/45/49 (1990) s. 1.


217 These are just some of the matters covered by the standards. If you are examining legislation or developing
a new policy relating to the imprisonment of children, you should obtain copies of the UN standards and review them in full.