PROBATION OF OFFENDERS ORDINANCE, 1960 & CHILDREN ACT,

2013

• Hon Justice M Imman Ali

• 14 March 2015

Background

• Criminal behaviour –Genetic/hereditary (rare)Poverty Bad company Revenge Jealousy

Other considerations

• Effects of incarceration on the offender• On the family, particularly the children• Effect on future employment prospect• Marginalisation• Stigmatisation of offender and family members• Loss of self-esteem • Lose battle to strive for decent survival and turn

to reoffending•

ORDINANCE - PURPOSE & MEANING

• Probation period – পরী�া কাল । • Under probation - নজরদািরেত থাকা/রাখা

• To provide for the release on probation of offenders in certain cases

• Probation order means an order made under section 5 – under supervision of Probation Officer

Three operative sections: 4,5 and 6

• Section 4 – [NOT PROBATION]• a) DISCHARGE after warning• b) DISCHARGE subject to condition of bond of

good behaviour

• Order only possible if FIRST TIME OFFENDER and offence punishable with LESS THAN TWO YEARS’ IMPRISONMENT

SECTION 5 = PROBATION

• [NOT RESTRICTED TO FIRST TIME OFFENDER NOR MAXIMUM SENTENCE]

• NOT APPLICABLE IN CASE OF EXCEPTIONS –S.5(1)(a),(b)

• IN CASE OF FEMALE CONVICTS CAN APPLY S.5EVEN IN CASES OF OFFENCE CARRYING LIFE IMPRISONMENT, e.g. s326

• N.B. PROBATION INSTEAD OF SENTENCING

Section 6

• Order payment of COMPENSATION or DAMAGES and COSTS of proceedings

• in addition to either order under s.4 or 5

AIM OF COURT

• 1. PREVENTING REPETITION OF SAME OFFENCE

• 2. PREVENT COMMISSION OF OTHER OFFENCE BY THE SAME OFFENDER

• 3. TO REHABILITATE HIM AS HONEST, INDUSTRIOUS and LAW-ABIDING CITIZEN

RULES

• R.3 WHO CAN BE APPOINTED PROBATION OFFICER

• R.4 DUTIES• R.11 COURT SHALL ENTRUST OFFENDER TO

PONO FEMALE TO BE PLACED UNDER SUPERVISION OF MALE PO

• R.12 PO TO REPORT TO COURT

SPECIAL LAW

• MUST BE CONSIDERED IF THE CONDITIONS ARE PRESENT

• COURT HAS DISCRETION TO EXERCISE OR NOT TO EXERCISE

WHAT DOES IT ACHIEVE?

• 1. REHABILITATION – FEWER CRIMINALS • 2. RESTORATION (S.6)• 3. PREVENTS OVER-CROWDING IN PRISONS• 4. LESS COST TO PUBLIC• 5. PRISON NOT GOOD – ENGENDERS CRIMINOGENIC

BEHAVIOUR (BEST UNIVERSITY FOR CRIMINALS)• 6. LESS LIKELIHOOD OF FAMILY BREAK-UP/

DETERIORATION/IMPOVERISHMENT• 7. NO EFFECT ON EMPLOYMENT • 8. STANDING IN THE COMMUNITY STATUS QUO

CHILDREN ACT 2013

• Probation under the Children Act• Probation Officers

• Characteristics of probation when offender is child

• For the estimated 75 million children of Bangladesh

BACKGROUND

• The State v Roushan Mondal @ Hashem, 59 DLR 72

• Judgement delivered on 09-07-2006• Seven years gestation and we have new law

Purpose:• The preamble to the Act (officially known as “Shishu Ain, 2013”), states

that it has been enacted for the purpose of implementing the United Nations Convention on the Rights of the Child

• Received assent of the President and was published in the official Gazette on 20 June 2013. By a subsequent Gazette notification dated 18 August 2013 the Act was made effective from 21 August 2013

• Some provisions of CRC incorporated• In addition some directions of the Supreme Court as well as some

requirements of other international instruments such as the Beijing Rules are now law

• Anomalies in the old law mentioned in the Roushan Mondal case have been cleared: definition of child, relevant date for calculating age, custody pending trial etc

What’s new?• 1. National, District and Upazila Child Welfare Boards• 2. Child Affairs Desk at the Police Stations• 3. Child Affairs Police Officer• 4. Probation Officers• 5. Establishment of Children’s Courts• 6. Diversion• 7. Family Conference• 8. Alternative Dispute Resolution• 9. Establishment of Child Development Centres and Certified Institutes• 10. Alternative Care• 11. Institutional care for disadvantaged children• 12. Victim Witness Protection• 13. Legal Representation• 14. Penalty for offences in respect of children

National, District and Upazila Child Welfare Boards – section 7

• The National Board monitors, coordinates, reviews and evaluates activities of the Child Development Centres and of Certified Institutes

• Functions: to provide guidelines regarding rehabilitation and reintegration into family and social life of disadvantaged children and those children in contact or in conflict with the law

• to process data - advise the government; determine the mode of necessary diversion or alternative care

• District Boards visit the CDCs or CIs within the district- supervise, coordinate, review and evaluate the activities; determine method of alternative care for disadvantaged children and those in contact with law

• Upazila Board supervise, coordinate, review and evaluate activities of CIs situated in the concerned upazila; determine method of alternative care for disadvantaged children and children in contact with the law

• If Boards considers removal of child from carer – refer to Children’s Court

Child Affairs Desk at the Police Stations – section 13

• Headed by a “Child Affairs Police Officer” – not below Sub-Inspector

• Preference given to female officers• Duties: maintain separate files and registers for the

cases involving children; to inform the PO, the child’s parents or carer; meet the basic needs of the child; determine age- birth certificate or school records; to take diversionary measures and assess the possibility of bail; separate charge sheet for child offender;

• Age determination s.14(ga) & s.44(4)

Probation Officers - section 6• Probation Officers one or more in every district, upazila or metropolitan area• Act gives details of the duties and responsibilities of a Probation Officer: what

they must do when any child, either in contact or in conflict with the law is brought or otherwise comes to the police station-– a. to ascertain the reason for which the child is brought to the police station– b. to meet the child and assure him that he will be provided with all assistance– c. to communicate and co-ordinate with the police about the concerned case or

complaint– d. to trace the parents of the child concerned and to assist the police in

communicating with them– e. to assess the possibility of bail; to undertake diversion process– f. where diversion is not possible or the child is not released on bail- to arrange

placement of the child in a safe home before he is produced in court.– g. to deal with children in contact or in conflict with the law who are brought

before the Children’s Court– h. to remain present in the court during the trial, and to give company to the child

Probation Officer – cont.– i. to hold field inquiry and to prepare social inquiry report within 21 days of his production in the court– j. to ensure legal representation - legal aid through the District Legal Aid Committee– k. to communicate with non-government legal aid organizations for legal representation– l. preserve separate file for each child in conflict sent to Child Development Centre or any certified

institute– m. to follow the procedure for alternative care - section 84– n. to meet the child at regular intervals– o. to monitor or observe that the parents, extended family members, or legal guardian properly comply

with the conditions of supervision– p. to monitor whether or not the child is receiving formal and vocational education– q. to inform the court of the child’s behaviour, effectiveness/efficacy of the measures taken – r. to provide advice to the child with a view to making him or her sociable and to render overall support

for that purpose– s. to observe the conditions relating to diversion or alternative care

– The definition of ‘member of the extended family’ provided in section 2(11) includes grandparents and uncles and aunts on both sides of the family, brother and his spouse, sister and her spouse and any family of such blood-related kin. This provision opens the door to the use of ‘kinship care’ where a member of the extended family or even distant relative is given the responsibility of caring for the child

Establishment of Children’s Courts –section 16

• At least one court in every district headquarter and in every metropolitan area

• By Gazette notification dated 15.04.20014 the Court of Additional Sessions Judge, First Court has been designated as Children’s Court

• Any case where a child in conflict or in contact with the law is involved under any law whatsoever, the Children’s Court shall have the exclusive jurisdiction -Section 17

• Adult and child trial on same day but different times• Court arrangement, decoration and seating plan of the court

room to be prescribed by Rules• Punishment which may or may not be awarded –Ss.33, 34.• Provision to review decision at specific intervals and to release

– S.35

Participation of Child in Court – S.22• to participate in person at all stages of the trial

shall be considered as a right of the child• duty of the lawyer engaged on behalf of the

child and the Probation Officer to explain to the child in easy language any decision or order of the court and also the nature and consequence of the proceedings

Arrest, Investigation, Diversion and Bail

• no child below the age of 9 years may be arrested under any circumstances- S.44(1)• no time set for investigation – S.167(5) CrPC will apply – release on bail after 120 days

– if offence not punishable with +10 years• Diversion S.48 - instead of formal trial - after arrest and during any stage of trial• Rules not yet formulated• Social Welfare Department is mandated to adopt programmes for the implementation

of diversionary measures• Family Conference S.49• Alternative Dispute Resolution –S.37• the provision for settlement of dispute where any child has committed any offence of

lesser gravity – S.37• PO with the participation of appropriate persons from society to take steps to settle

the dispute between the victim and the child who has committed the offence. • terms and conditions specified by the Children’s Court• If no diversion then consider bail S.52

Safe Custody During Trial• Innocent till proven guilty• a last resort and for the shortest possible period of time, in a

place within a reasonable distance – Dependent on establishment of suitable and accessible places for such detention

• separate from children who have been found guilty• separate from older children already there• not many safe homes available

Time frame for concluding trial

• Within 360 days from the date of first appearance + 60 days extension with reasons

• Paucity of available courts with adequate working time may defeat the real purpose of the law

• Expeditious disposal requires speedy handling by all agencies

• Agencies require adequate logistic support

Establishment of Child Development Centres and Certified Institutes

• government to establish and maintain necessary number of CDCs based on gender disaggregation for accommodation, reformation and development of children

• Government may authorise private institutes • Most important to create congenial atmosphere for

the proper development of the children• Experienced, trained and dedicated personnel

needed to turn the children around• Necessity to provide contact with family and

community

Alternative Care for Disadvantaged Children

• Definition: where either or both parents are dead, without any legal guardian, without any home or means of livelihood, engaged in begging or activity against the interest of the child, dependent on parents who are in prison or who is living in a prison with the mother undergoing imprisonment, victim of sexual assault or harassment, staying with a prostitute or engaged in anti-social or anti-State activities, disabled, has behavioural disorder caused by drugs or any other reason, fallen into bad company or may face moral degradation, under the risk of entering into the criminal world, living in a slum, homeless and living in the street, effeminate (hijra), gipsy or Harijan(low caste Hindu), infected or affected with HIV AIDS, considered by the Children’s Court or the Board to be in need of special protection, care and development

• Emphasis primarily on care within the family or the community

Institutional care for disadvantaged children

• When parental or non-institutional care not possible -

• government children home, Chotomoni Nibash, Centre for Training and Rehabilitation of Disadvantaged Children, government shelter home and/or any other institute

Victim Witness Protection• Ss. 54 and 58 • Prior recorded video evidence admissible• Evidence from behind screen or by video link when available• Exclusion of accused if necessary during deposition by child• If at any stage of the trial it appears that the child in contact or

in conflict with the law is susceptible to harm or injury then the supervising authority may take steps to prevent direct contact of the concerned child with the accused persons; to provide security for the child through the police or other agency and to keep the child’s whereabouts secret; to apply to the court or to the police for provision of adequate security for the concerned child and, if necessary, for the members of the child’s family at all stages

• IS THE SYSTEM READY?

Legal Representation – S.56• No court shall proceed with the trial of any case

without legal representation on behalf of a child in conflict or in contact with the law – S.55(1)

• Can take action against lawyer for persistent absence without cause

Negligence and failure of CAPO or PO • Court to take action with relevant authority –

section 22• Presupposes adequate infrastructural setup

Penalty for offences in respect of children

• Cruelty, engaging in begging, being drunk while in charge of child, using child for carrying firearms or banned articles, exploitation etc.

What’s missing?• Boards have no function in adjudicating allegations against children in

conflict• There is no independent non-judicial forum as contemplated by the

CRC to deal with children in conflict with the law.• Use of children for house-breaking, pick-pocketing not crime• Use of children for political demonstration or reception of VIPs• http://www.prothom-alo.com/bangladesh/article/284866/িপতৃে�র-

দািবদার-দজুন-িশশ-কারাগাের• তার িপতৃ� দািবদার দইু বযিি। িববষয় টদালেত গিগেষেয়। । ই লগাই

।শব না হওষা পযর্ িনরপরাা ই িশশর জাষগা া চা� ।কেীষ কারাগার।

http://www.samakal.net/2014/08/07/77388• Mother and 10 year old with 970 pcs of Yaba

http://www.prothom-alo.com/bangladesh/article/284866/পিতৃত্বের-দাবিদার-দুজন-শিশু-কারাগারে�http://www.prothom-alo.com/bangladesh/article/284866/পিতৃত্বের-দাবিদার-দুজন-শিশু-কারাগারে�http://www.prothom-alo.com/bangladesh/article/284866/পিতৃত্বের-দাবিদার-দুজন-শিশু-কারাগারে�http://www.prothom-alo.com/bangladesh/article/284866/পিতৃত্বের-দাবিদার-দুজন-শিশু-কারাগারে�http://www.samakal.net/2014/08/07/77388�

Opportunity missed• Could have included rights of other vulnerable children: • Children sold into servitude, trafficked children, working

children, child domestic workers, children subjected to child marriage, school drop-outs (forced to leave school)

• Children involved in matrimonial cases, having interest in civil cases

• Setting up exclusive courts to deal primarily with children’s cases on priority basis

• Setting up of Child Commissioner/Ombudsman to oversee all aspects of justice for children

Conclusion• Framing Rules essential for proper working of provisions• Rule to allow accused to be virtually present via video link to avoid travel

impediments and missed hearings• Child Affairs Desks and the appointment of Child Affairs Police Officers in the

police stations• Establishing sufficient numbers of safe homes and certified institutes• Training programmes at convenient location in each division• The children justice system and the actors within that system would be failing

in their duty towards children if proper implementation of the law is not ensured in order to guarantee their rights

• Must remember: Children are not born criminals; they are victims of our failure.

• Queen Elizabeth II - “Everything we do, we do for the young”

PROBATION OF OFFENDERS ORDINANCE, 1960 & CHILDREN ACT, 2013Background Other considerations ORDINANCE - PURPOSE & MEANINGThree operative sections: 4,5 and 6 SECTION 5 = PROBATIONSection 6 AIM OF COURTRULESSPECIAL LAW�WHAT DOES IT ACHIEVE?�CHILDREN ACT 2013��BACKGROUNDPurpose:What’s new?National, District and Upazila Child Welfare Boards – section 7Child Affairs Desk at the Police Stations – section 13Probation Officers - section 6Probation Officer – cont.Establishment of Children’s Courts – section 16Participation of Child in Court – S.22Arrest, Investigation, Diversion and Bail�Safe Custody During TrialTime frame for concluding trial�Establishment of Child Development Centres and Certified InstitutesAlternative Care for Disadvantaged ChildrenInstitutional care for disadvantaged childrenVictim Witness ProtectionLegal Representation – S.56Negligence and failure of CAPO or PO Penalty for offences in respect of childrenWhat’s missing?Opportunity missedConclusion