Age of criminal responsibility and doli incapax

May 28, 2023 News

Court Journal…

By Renay Sambach

Kaieteur News – In Guyana, there is the Juvenile Justice Act, which outlines how juvenile offenders and other issues related to juveniles must be handled.

A juvenile is considered a child under the age of 18. The act consolidates the law in relation to criminal justice for juveniles. The act not only makes provisions for proceedings against juvenile offenders, but also the establishment of facilities for the custody, educational training and rehabilitation for juvenile offenders in order for them to be re-integrated into society.

Notably, when handling criminal matters that involve children below the age of 18, there are rules that must be observed.

According to the Juvenile Justice Act on Criminal capacity, states, “It shall be presumed that no child under the age of fourteen shall be capable of or guilty of committing an offence.”

Subsection 2 states that where a child is charged the Director of Public Prosecutions, the Prosecutor or the attorney-at-law representing the child shall request of the court that an evaluation of the child be done and the court shall order that the evaluation be conducted by a suitably qualified person at the expense of the State.

Also, where an order has been made by the court under subsection 2, the person identified to conduct an evaluation of the child shall furnish the court with a written report of the evaluation within thirty days of the date of the order. The evaluation shall include an assessment of the cognitive, emotional, psychological and social development of the child. The person who conducts the evaluation may be called to attend the court proceedings and to give evidence and, if called, shall be remunerated by the State.

“If the presumption is rebutted the child shall be treated as a juvenile and dealt with in accordance with the provisions of this Act,” the law outlines, adding if the presumption is not rebutted the court shall refer the child to the Director of the Childcare and Protection Agency to be dealt with under the Protection of Children Act and the Director of Public Prosecutions shall withdraw the charge.

Moreover, Doli incapax describes the inability of children under the minimum age of criminal responsibility to form criminal intent.

OUR CHILDREN, OUR MEDIA: A Guide for Caribbean Practitioners outlines, that the concept of criminal responsibility originates in the common law rule of doli incapax – a form of defense that renders a child incapable of criminal intent on the basis of their age – if they had not reached an age of criminal responsibility at the time of the offence. Increasing levels of responsibility are thereafter set down by age and the type of offence committed.

It states too that there is no uniformity in the age of criminal responsibility in the Caribbean. Some jurisdictions have set no statutory age of criminal responsibility, such as Trinidad and Tobago, Grenada and the Bahamas; it remains at the common law age of 8 years, a position England abandoned as far back as 1933.

CHILDREN’S COURT

In a previous edition of ‘The Court Journal,’ it was reported that, after the Juvenile Justice Act was passed, Guyana opened the doors of the first Children’s Court on October 31, 2018, in the Georgetown Magistrates’ Courts compound.

The establishment of the Children’s Court is essential to ensuring that the objectives of the Juvenile Justice Act are achieved and to ensure that a more rehabilitative and restorative system was implemented for juvenile justice.

It should be noted that the law provides children below the age of 18 with free legal advice. It also provides a humane alternative to the tense formal court setting, remands and incarceration for young lawbreakers.

The Children’s Court was designed to assist in helping youths and to prevent them from falling deeper into the life of crime. One of the aims of the court is to divert juveniles from the formal court procedure, which will be an asset when it comes to dealing with delinquents.

The two Magistrates who underwent extensive training to hear matters in the Children’s Courts are Dylon Bess and Annette Singh.

The Children’s Court was in the pipeline since 2004, after the then People’s Progressive Party/Civic (PPP/C) Government tabled its first report to the Committee on the Rights of the Child. The committee then made a number of recommendations urging that they be implemented as early as possible.

Some of those implementations, include raising the age of criminal responsibility from 10 years; and ensuring that those below the age of majority not be tried as adults, but be given adequate special protection.

DETENTION FACILITIES

When a child is brought before the court, if he/she is remanded, that child will not be remanded to prison, but to the Juvenile Holding Centre.

The $37.6M Juvenile Holding Centre which is located at Lot 2 Dennis Street, Sophia, Greater Georgetown, officially opened its doors on April 8, 2011, by the then Home Affairs Minister, Clement Rohee.

It was decided that juveniles from age 10 and over, but under the age of 17, who have committed any crime, should not be detained in the same manner like adult offenders.

The Juvenile Holding Centre provides custody for children and young persons; awaiting their court appearance, who have been committed by the courts but not escorted to the New Opportunity Corps (NOC) and who have completed the period of their sentence and awaiting rehabilitation and reintegration into their families or the community.
There is also the NOC, which was established as a correctional facility for the young. NOC is located at Onderneeming, Essequibo Coast, Region Two, and houses juveniles who were sanctioned by the court system.

SENTENCING

Some procedures that were put in place to restore and deal with juveniles, who commit offences, can range from apology to compulsory attendance to some vocabulary educational centre; or compensation to the victim in an amount to which the juveniles’ family can afford.

Instead of sentencing a juvenile to imprisonment, it is advised to ensure rehabilitation, eradication and reintegration into society.

Before ordering a custodial sentence, the court must review pre-sentencing reports that must be prepared by the Chief Probation Officer.

REHABILITATION

Under the Juvenile Justice Act, there are laws that provide for juveniles to be rehabilitated so that they could be re-integrated in the society.

Juveniles who are being kept at the Holding Centre or NOC are not only being educated but are also involved in curriculum activities to build and develop their characters.