| O. |
Categories of offences |
| 1. |
Schedule 1 (least serious) offences: |
| (a) |
Prosecutors may release the child on bail. |
| (b) |
Section 59A of the Criminal Procedure Act as it relates to children must be read as follows: |
“Prosecutors may in respect of the offences referred to in Schedule 1 of the Child Justice Act and in consultation with the police official charged with the investigation authorise the release of the child on bail.”
| (c) |
A prosecutor may agree at the preliminary inquiry or at the trial proceedings to a diversion or may divert the child at an earlier stage without assessment (para. C supra) and/or without referral to a preliminary inquiry (section 41). In the latter instance the child must still be present when the diversion is made an order of court (section 42) and an assessment by the probation officer should ordinarily still be required. |
| (d) |
If asked for guidance by a police officer in terms of section 17 with regards to the need for a preliminary inquiry, prosecutors should ordinarily indicate that the child will have to attend a preliminary inquiry for purposes of ensuring that the child is brought to court. The exception will be where a police docket is submitted to the prosecutor for decision and the prosecutor may probably decline to prosecute. In this instance, the prosecutors must always keep the number of cases where they have declined to prosecute and the reasons thereof. |
| (e) |
Prosecutors may decide not to refer a matter to a preliminary inquiry but to divert the matter in the following circumstances (provided that all requirements for diversion are met): |
| (i) |
Where the crime is a minor Schedule 1 offence; |
| (ii) |
Where the child is not in need of care and protection; and |
| (iii) |
Where the child does not have a record of previous criminality. |
| (f) |
In these circumstances only Level 1 diversion options may be utilized (section 53(2)(a)). |
| 2. |
Schedule 2 (more serious) offences: |
| (b) |
Section 59A of the Criminal Procedure Act as it relates to children must be read as follows: |
“Prosecutors may in respect of the offences referred to in Schedule 2 of the Child Justice Act and in consultation with the police official charged with the investigation authorise the release of the child on bail.”
| (c) |
The prosecutor may, subject to para F(2)(d), agree to a diversion at the preliminary inquiry or trial only after having considered the views of the victim or person with a direct interest and after having consulted the investigating officer. |
| (d) |
Diversion may only be agreed to with the authorisation of the Senior Public Prosecutor. If in doubt, the office of the DPP should be contacted for guidance. |
| (e) |
Level 1 and 2 diversion options apply (section 53(2)(b)). |
| 3. |
Schedule 3 (most serious) offences: |
| (a) |
A certificate authorizing the detention of a child 14 years and older but under 16 must be issued (Para L(3) above). |
| (b) |
Diversion may only occur in exceptional circumstances (see paragraph J) with the written indication of the relevant DPP after having considered the views of the victim or of a person with a direct interest as well as the investigating officer (section 52 (3)). |
| (c) |
Prosecutors should bring deserving cases to the attention of their respective DPP’s as soon as it seems that a diversion needs to be considered. |
The following information must then be submitted—
| (b) |
the assessment report; |
| (c) |
a report by the prosecutor providing— |
a summary of the evidence;
| • |
the preliminary views of the victim or person affected and the investigating officer, in writing and signed by them with their contact numbers |
| • |
confirmation that the requirements for diversion have been met; and |
| • |
motivated recommendations. |
Genetically Modified Organisms Act, 1997
