The gap in Charter rights for children

A County Court judge has raised a concern about a gap in the Charter, according to The Age:

A JUDGE fears that protections for young offenders under Victoria’s charter of human rights face possible “destruction” because of frequent delays in the court system. County Court Judge John Barnett said yesterday that delays meant it was common for people to be sentenced as adults for offences committed as youths. He said it was strongly arguable that such situations breached the Charter of Human Rights and Responsibilities.

Judge Barnett yesterday sentenced Brent Carl Ryan, 21, to a community-based order after he pleaded guilty to a charge of affray over an incident in July 2004, when he was 17. Judge Barnett said that Ryan’s case, although promptly investigated, took nearly four years to get to court. As a result, Ryan “lost the opportunity of being sentenced to a youth training centre”. The judge said he was greatly concerned about youth binge drinking, but was more concerned about the “delay of proceedings we are experiencing in this state”.

Although the charter did not exist at the time of Ryan’s offence, and he was then not a “child in the eyes of the law”, the “same cannot be said if a similar case were to arise in the near future”. “When a child loses the right to be sentenced under those procedures that take account of the child’s age and the desirability of promoting the child’s rehabilitation — namely the youth training centre — their rights (under the charter) have been destroyed.”

The judge’s comments appear to raise these provisions of the Charter:

3(1) child means a person under 18 years of age

23(3) A child who has been convicted of an offence must be treated in a way that
is appropriate for his or her age.

25(3) 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.

A tricky problem in juvenile children’s justice is that being a child is a transient phenomenon. Children age and become adults. When that happens while the criminal justice system is still proceeding, do you treat them according to who they were or who they are? Victoria’s juvenile justice law – the Children, Youth and Families Act 2005 – strikes a half-way house:

3 child means- (a) in the case of a person who is alleged to have committed an offence, a person who at the time of the alleged commission of the offence was under the age of 18 years but of or above the age of 10 years but does not include any person who is of or above the age of 19 years when a proceeding for the offence is commenced in the Court; and

412(1) If-

(a) the Court finds a child guilty of an offence, whether indictable or summary; and

(b) on the day of sentencing, the child is aged 15 years or more but under 21 years…

the Court may convict the child and order that the child be detained in a youth justice centre.

So, if you commit an offence while you’re under 18 (which is also the Charter’s definition of ‘child’), then you can get a child sentencing option, but there are two exceptions: (a) you miss out on juvenile justice processes if you were not charged until you were 19; (b) you also miss out on the youth justice centre option if you were not sentenced until you were 21. These exceptions, especially the latter one, make a lot of sense from a policy perspective, as you may otherwise end up with 50 year olds being tried and sentenced alongside 15 year olds. But, especially at the margins, the cut-offs can be harsh, particularly if the delay wasn’t the accused’s fault.

What isn’t clear is why it took four years from Ryan’s offence (aged 17) to Ryan’s conviction (aged 21). Here’s what the Attorney-General said in response to Justice Barnett’s concerns:

Attorney-General Rob Hulls said that amendments to the charter in 2004 increased the age at which a child could be dealt with in the Children’s Court from 17 to 18. “Provided they are charged when still a child, or before they turn 19, the charter rights in relation to children continue, even if there is a delay in hearing the matter. “The charter rights in relation to children are not relevant to this matter and never have been relevant because the charges were laid when the accused was an adult,” Mr Hulls said.

So, it seems that Ryan was not charged until he was 19, meaning that he fell within the first exception to the CYF Act listed above. But the Attorney-General’s two claims about the Charter are less clear:

First, he makes the claim that ‘the charter rights in relation to children continue’ so long as someone is charged before they are 19. This claim doesn’t seem to fit with Charter s25(3) – on process rights – which only seems to apply to people charged when they are under 18, not 19. And it isn’t clear that it fits with Charter s23(3) – on punishment rights – which is ambiguous on whether it captures people based on their age at the time of the offence or their age at the time of their conviction.

Second, he claims that ‘the charter rights in relation to children’ don’t apply because the charges were laid when Ryan was an adult. That’s true for Charter s25(3) and probably for Charter s23(3), but what about this right?:

21(2) An accused child must be brought to trial as quickly as possible.

The terminology here seems to be broader than the concept of a ‘charge’ (although the ACT HRA equivalent is still broader, omitting the word ‘accused’ completely! See this case.) and seems broader than the equivalent (if less urgently expressed) speedy trial rights for adult detainees and defendants,So, when was Ryan first accused? The purpose of the ICCPR equivalent to Charter s21(2), which is bundled together with rights for child detainees and refers to ‘adjudication’ rather than ‘trial’, is to ensure that children spend as little time in pre-trial custody as possible. However, Charter s21(2) – which seems to apply to non-detainees too and doesn’t allow for non-trial alternatives – has a broader function: of avoiding the difficult policy problems raised by children growing up between offence and trial. So, what went wrong in Ryan’s case? Unfortunately, the article doesn’t say.

Alas, there’s a different reason why Ryan has no Charter rights, which the Attorney-General doesn’t mention. I refer, of course, to Charter s49(2), the Charter’s overbroad transitional provision. If Ryan was charged before 1/1/7, then the Charter doesn’t affect his proceedings, no matter how long they are delayed. Indeed, given that the word ‘commenced’ in Charter s49(2) is tied by the EM the the trial process rights in Charter 25(2), you could even argue that, in the case of children, whose right to a speedy trial kicks in when they are ‘accused’, s49(2) cuts off their rights if they were accused before 1/1/7. (I’d be surprised if this particularly draconian bit of reasoning is ever adopted!)

Justice Barnett wasn’t mincing words and apparently referred to this peculiar Charter provision:

7 (3) Nothing in this Charter gives a person, entity or public authority a right to limit (to a greater extent than is provided for in this Charter) or destroy the human rights of any person.

This looks to me like a savings provision, rather than a substantive right, although why it’s needed in addition to Charter s5 isn’t clear to me.

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