| L. |
Diversion of matters at a trial |
| 1. |
Children under 12 years: |
Such a child does not have criminal capacity (section 7(1)) and cannot be prosecuted but must be referred to the probation officer to be dealt with in terms of section 9(3).
| 2. |
Children 12 years or older but under 14 years: |
| (a) |
Such a child may only be detained in a police cell or lockup if a child and youth care centre is not available or, if available, does not have a vacancy (section 27). |
| (b) |
There is a rebuttable presumption that such a child does not have criminal capacity. If criminal capacity is unlikely to be proved beyond reasonable doubt, the prosecutor must refer the child back to the probation officer to be dealt with in terms of section 9(3) unless the latter has already indicated in the assessment report that, in accordance with section 9(3) (a) (vi), no action is contemplated. Where no action is contemplated the prosecutor should withdraw the charge. |
| (c) |
Unless specific reasons are recorded for exceeding the usual duration, diversion orders may not exceed 12 months in duration in respect of level 1 diversion or 24 months in respect of level 2 diversions. (section 53(5) and (6)). As prosecutors may be the sole deciders on the duration of diversion orders following a Schedule 1 offence, they should, for example, take into account the nature of the offence, the nature of the diversion option, the circumstances of the child and more particularly, the child's prospects of rehabilitation. |
| 3. |
Children 14 years and older but under 16 years (section 30(2)): |
| (a) |
If such a child is to be detained in prison, a certificate informing the court that sufficient evidence exists and that the child will be charged with a Schedule 3 offence is required. |
| (b) |
The DPP is required to authorise prosecutors to furnish such certificates. |
| (c) |
In all instances where it is imperative that the child be kept in prison pending the trial, the certificate should be obtained and submitted to the court during application for detention. |
| 4. |
Children 14 years and older but under 18 years (section 27 (a)/(b): |
| (a) |
Such children may only be detained in a police cell or lockup if a child and youth care centre is not available or, if available, does not have a vacancy. However, in respect of a Schedule 3 offence, if the child is to be detained following arrest, this must be in a police cell or lock-up (section 27), pending a decision by the inquiry magistrate. |
| (b) |
Unless specific reasons are recorded for exceeding the usual duration, diversion orders may not exceed 24 months in duration in respect of level 1 diversions or 48 months in respect of level 2 diversions (section 53(5) and (6)). |
| 5. |
Children 14 years or older (section 30(5)(a)): |
| (a) |
Such a child may also be detained in prison in respect of a Schedule 1 and 2 offence if substantial and compelling circumstances exist. |
| (b) |
Substantial and compelling circumstances might be present if the child has a history of violence or aggression or if the available child and youth care centres are not sufficiently secure. |
Genetically Modified Organisms Act, 1997
