Back to Index

Pre-trial diversion guiding principles
Justice for Children Trust
April 13, 2012

When children are alleged to have infringed the law, the importance of diversion is clearly highlighted in the international guidelines which have been incorporated in the domestic guidelines for stakeholders working with young offenders. The stakeholders are guided by the following principles which ensure the protection of young offenders who are eligible for diversion.

One of the key principles to be used in dealing with young offenders is the best interests of the young person. The United Nations Convention of the Rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of the Child (ACRWC) provide that in all actions concerning children, the best interests of the child shall be the paramount consideration. The protection of the best interests of the young person means that the traditional objectives of the criminal justice system such as retribution and punishment must give way to rehabilitative and restorative justice which seeks to restore the balance of the situation disturbed by the crime and make good the harm caused to the victim of the crime.

Detention is to be used as a last resort and for the shortest period of time. Every young person who is alleged to have committed a minor offence must not be detained. Detention should be reserved for cases which are not suitable for diversion. Instead, the diversion programme requires the support of well trained social services officers to promote measures such as guidance and supervision. In addition, no young person should be punished for capacity constraints that exist in the system and which are beyond the young offender's control. It therefore means that a young person should not be detained because the relevant stakeholders are not available and young offenders must not be made to pay bail because the probation officer or the police do not have resources to conduct adequate supervision.

To the greatest extent possible, a young person's contact with the formal justice system should be minimised. This means that children and young persons who are eligible for diversion should not spend time in police stations, should not go to Court and should spend as little time as possible in the offices of social workers or prosecutors and support services should be provided at their home or in their communities.

The young person's right to protection from abuse, exploitation and violence is to be respected at all times, including protection from unlawful corporal punishment as a response to alleged criminal behaviour. The intention of diversion is to help the child to take responsibility for their behaviour instead of dealing with the case in a punitive manner. It therefore means that police should not use force on a young offender and no young offender is to experience violence whilst in custody. Corporal punishment is only permissible if ordered by the Court and is based on a conviction by the Court.

All children are to be separated from alleged and convicted adult offenders throughout their contact with the justice system. Detaining young offenders in the same place as adults has many repercussions as the young offender is more likely to experience violence or abuse at the hands of the adult offenders and may learn new criminal behaviours from adult offenders.

A young person's right to due process is to be respected at all times. The right to a fair trial as enshrined in the Constitution includes the right of a person on trial to lead evidence and to challenge the evidence against him, the right to a legal practitioner and the right to appeal. Young persons who want to have their matter heard in Court are entitled to do so and must be given legal assistance and understand their legal rights.

Female and male young offenders must be treated differently to ensure maximum benefit from their participation in the diversion process. Alleged female offenders should be addressed by female officers and other professionals and must only be placed in detention if their separation from male offenders is secured.

Visit the Justice for Children Trust fact sheet

Please credit www.kubatana.net if you make use of material from this website. This work is licensed under a Creative Commons License unless stated otherwise.

TOP