Youth Justice Custody pathway guidelines
The Youth Justice Custody pathway describes the phases of the youth justice process that involve the Youth Court and custody aspects of the legislation.
Grounds for arrest
The police should only arrest a young person when they are satisfied doing so is necessary to:
- ensure the young person appears before the court
- prevent the child or young person from committing further offences
- prevent the loss or destruction of evidence relating to offences committed by the child or young person (or of which the child or young person is suspected of committing)
- prevent interference with a witness;
- and they believe that proceeding by summons would not achieve these purposes.
Police options following arrest
Following the arrest of a child/young person the police may:
- release the child/young person
- release the child/young person on bail: this means imposing certain conditions on the young person's activities. These may include an agreed residential address, a curfew and non-aassociation with certain persons. These conditions are generally removed or reviewed at court hearings. Failure to adhere to these conditions could result in the young person being held in custody.
- deliver the child or young person into the custody of-
(i)any parent or guardian or other person having the care of the child or young person; or
(ii) with the agreement of the child or young person, any Iwi Social Service or Cultural Social Service; or
(iii) with the agreement of the child or young person, any other person or organisation approved by the chief executive or a member of the police for the purpose
- deliver the child or young person into the custody the CE or retain them in police custody, subject to the grounds outlined below.
Police or Oranga Tamariki Custody
Following arrest, a police officer may place a child or young person into the custody of the chief executive when they have reasonable grounds for believing that:
- the child/young person is not likely to appear before Court
- the child/young person may commit further offences
- it is necessary to prevent: loss or destruction of evidence or interference with any witness(es) (s235(1)).
If, following an arrest, a senior social worker and a senior sergeant or a commissioned officer are satisfied on reasonable grounds that a young person who has been arrested is likely to:
- abscond; or
- be violent and
- suitable facilities for the detention in safe custody of the young person are not available to the CE,
The young person may, on the issuing of a joint certificate, be detained in police custody for a period exceeding 24 hours and until appearance before the Court (s236(1)).
If following an arrest a young person is placed in the custody of the chief executive or held in police custody, they must be brought before the Youth Court as soon as possible. At that time a youth advocate will be appointed to represent the young person throughout the youth justice process. If the charge is not denied an FGC will be directed. The judge may also at this time make an order relating to the custody of the young person while they are on remand (CE custody (s238(1)(d)), police custody (s238(1)(e))).
Remand in the custody of the Oranga Tamariki or Police
The Youth Court shall not make an order under section 238(1)(d) for the detention of a young person in Oranga Tamariki custody unless it appears to the Court that, before the charge is determined:
- the young person is likely to abscond; or
- the young person may commit further offences; or
- it is necessary to prevent the loss or destruction of evidence or interference with witnesses.
This means that young people who are alleged to have offended should be detained in a secure environment. In doing so public safety and/or the safety of the young person themselves is preserved, ensuring that the young person can continue, or begin any educational and training opportunities.
The Youth Court shall not make an order under section 238(1)(e) for the detention of a young person in police custody unless it appears to the Court that, before the charge is determined:
- the child or young person is likely to abscond or be violent; and
- suitable facilities for the detention in safe custody of that child or young person are not available to the chief executive.
While Oranga Tamariki has no legal role with young people in police custody, a social worker is allocated to undertake CKS screens and to ensure the young person is generally well and has access to basic amenities.
During the remand period the young person will have an FGC. It is also possible (and likely if in police custody) for their custody arrangements to be adjusted or ended by the Youth Court.
Exit from the youth justice Custody Pathway
After sentencing the young person may also serve a custodial order of Supervision with Residence, prior to returning to the community on a supervision order. However, it is also possible that they will receive community based orders after being remanded in custody, or that they will be sentenced in the District or High Court for serious offending and transferred to an adult prison.
Overview of Youth Court
What is different about the Youth Court?
- It takes the age of the child or young person into account.
- It tries to keep the child or young person in the community as far as possible
- judges are chosen for their understanding of and experience with young offenders.
- youth advocates are appointed to represent young persons.
- Hearings are private and identifying details cannot be reported in the media.
- Parents and whānau or family are able to attend
- The FGC process takes place to involve families and victims formally in the decision-making about young people.
Who can attend the Youth Court?
The following people are entitled to attend any Youth Court proceedings:
- officers of the court
- the child/young person
- the informant and any person conducting the proceedings against a child/young person
- the parents, guardians or other person having care of the child/young person
- a representative appointed by the FGC
- any barrister, solicitor or youth advocate representing the child/young person
- any youth justice co-ordinator
- any social worker
- any lay advocate who appears to support the child/young person, or parent, guardian or person having care of the child/young person
- accredited news media reporters
- any other person permitted attendance by the judge (s329(1)).
Judges in the Youth Court
A designated youth court judge generally exercises jurisdiction in a Youth Court. However in some circumstances a district court judge may exercise jurisdiction.
Justice of the Peace in the Youth Court
Sometime a child/young person's first appearance in the Youth Court may be before a Justice of the Peace. This will usually occur when a judge is unavailable - it may be on weekends or days when the Court is not usually in session.
Attendance at Youth Court
It is expected that the young person will attend the Court whenever they are summoned to do so. If the young person does not attend, the youth advocate may seek to have his/her attendance excused. The judge can order that issue of a Warrant to Arrest if it is considered that the young person did not attend without reasonable excuse.
If the young person is in the custody of the chief executive, it is the responsibility of their social worker to ensure that they attend.
Admitting or denying offences in the Youth Court
When a young person appears in the Youth Court the judge will ascertain whether the young person denies the offence with which they have been charged.
If the offence is not denied, the Court will order an FGC to address the offending.
If the offence is denied, the Court will order a defended hearing.
At the conclusion of the defended hearing the offence will either be proven and a FGC will be directed for the young person or not be proven and matters will be concluded.
Orders in the Youth Court
The Youth Court utilises a number of orders.
- discharging the young person from proceedings without further order or penalty (s283(a))
- admonishing the young person (s283(b))
- ordering the young person to come before the Court if called upon within 12 months (s283(c))
- fining the young person (s283(d))
- ordering the young person, or if the young person is under 16 years, any parent or guardian of the young person to pay a sum towards the cost of the prosecution (s283(e))
- ordering reparation by the young person or, if the young person is under 16 years, any parent or guardian of the young person where there is evidence of any person suffering emotional harm or loss of or damage to property as a result of the offence (s283(f))
- ordering restitution by the young person or, if the young person is under 16 years, any parent or guardian of the young person (s283(g))
- ordering forfeiture of property to the Crown (s283(h))
- ordering the disqualification of a young person from driving (s283(i))
- ordering confiscation of a young person’s motor vehicle (s283(j))
- ordering the supervision of the young person by the chief executive or some other person or organisation (s283(k))
- ordering the young person to undertake specific work in the community under the supervision of a social worker, or any other person or organisation approved by the chief executive (s283(l))
- ordering supervision with activity s283(m))
- ordering supervision with residence (s283(n))
- convicting the young person and transfering jurisdiction from Youth Court to District Court, if the young person is 15 years or over and the offending is beyond the scope of orders available in Youth Court (s283(o)).
The Court must request and consider a written report from a social worker prior to making a supervision order, community work order, supervision with activity order or a supervision with residence order. A social work report is also required prior to transfer to District Court.