Section 25(3) - Rights of Children in Criminal Proceedings

A child charged with a criminal offence has the right to a procedure that takes account of his or her age and the desirability of promoting the child’s rehabilitation.

Sub-section (3) of s. 25 recognises the need for special procedures for children charged with criminal offences. It provides that a child has the right to a procedure that takes account of the child’s age and the desirability of promoting the child’s rehabilitation. This protection is a widely recognised civil and political right. Sub-section (3) of s. 25 reflects article 14(4) of the ICCPR.


When does s. 25(3) apply?

Sub-section (3) of s. 25 applies where a child has been charged with a criminal offence. It applies to children charged with either an indictable offence or a summary offence. This right applies at all stages of the proceedings, from the time of the charge, to the trial, to the determination of a final appeal.

A ‘child’ is defined in s. 3 as being a person under the age of 18. Under Victorian law, children under the age of 10 are presumed to be incapable of any criminal offence.266 Children between 10 and 14 years old are presumed to lack the necessary level of mental culpability and the prosecution must prove that the accused child knew that his or her conduct was wrong before the child can be found to be capable of committing the offence.267
International human rights law does not recognise any particular age as the optimal minimum age for the imposition of criminal responsibility but the chosen age should take account of the emotional, mental and intellectual immaturity of children.268


What does it mean?

Children charged with a criminal offence are entitled to the same guarantees and protections as are accorded to adults under s. 25. However, under this sub-section, children are entitled to additional special protection. The additional protection is directed at ensuring that age-appropriate procedures are in place and that an emphasis is placed on the rehabilitation of the child. Children charged with a criminal offence must be dealt with in special and appropriate ways that take account of age, maturity, and intellectual and emotional capacities.269


Where possible, courts should be established specifically to try offences committed by children, and the relevant laws and court processes should take account of the special needs and capacities of children. Where children are involved in the criminal justice system, steps should be taken and adult trial procedures modified to promote a child’s ability to understand the nature of the charge and the proceeding and to participate in the proceedings. In Victoria, this role is performed by the Children’s Court of Victoria.


The right to additional protection means that special procedures should be applicable to child defendants at the investigation stage. For example, special measures may need to be adopted to ensure that an age-appropriate explanation about the nature of the charge is given to a child accused so that he or she understands what is being alleged. Interviews should be conducted in the presence of a parent or guardian or other support person in a manner that is sensitive to the child’s age, level of maturity and emotional state. In Victoria, special procedures are incorporated into the Victoria Police Manual and s. 464E of the Crimes Act 1958.


Similarly, special procedures should be put in place to provide age-appropriate support during hearings. For example, a policy or program should seek to ensure that processes are put in place so that:

  • children are supported by a parent or guardian or other support person at all stages of the criminal process;
  • children have the court procedures explained to them, in a manner that they understand;
  • adjournments can be obtained if it is in the child’s best interests.


Procedures should be developed to ensure that a child’s privacy is fully respected at all stages of the proceedings to avoid psychological harm due to publicity or the process of labelling or stigmatising.270 This may mean that the trial is conducted in a closed court. In Victoria, such procedures are outlined in s.19 of the Children and Young Persons Act 1989. 271

Procedures that promote a child’s rehabilitation may include those that:

  • minimise harmful publicity;
  • ensure that a restriction on the personal liberty of a child is imposed only after careful consideration;
  • ensure that detention or imprisonment is used as a measure of last resort and for the shortest appropriate period of time;
  • provide treatment, education or other assistance either in conjunction with detention or imprisonment or as part of a non-custodial order.


There are a number of international human rights instruments that relate to the rights of children, some of which give general guidance on the sort of protection children may require in the criminal process. See in particular the UN Convention on the Rights of the Child 1989 272 and UN Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules).273

 

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266 See section 344 of the Children, Youth and Families Act 2005 (Vic).


267 See R (A Child) v. Whitty (1993) 66 A Crim R 462; section 7.2 of the Criminal Code (Cwlth).


268 United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘The Beijing Rules’) G.A. Res. 40/33, annex, 40 UN GAOR Supp. (No. 53), UN Doc. A/40/53 (1985) rule 4.


269 See T v. United Kingdom (1999) 7 BHRC 659.

270 See T v. United Kingdom (16/12/99) ECHRR; 7 BHRC 659.


271 Note that the Children and Young Persons Act will be repealed upon the commencement of the Children, Youth and Families Act.

272 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3, (entered into force 2 September 1990. See particularly articles 3, 37 and 40.


273 United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘The Beijing Rules’) G.A. Res. 40/33, annex, 40 UN GAOR Supp. (No. 53), UN Doc. A/40/53 (1985). See articles 8 and 17.