IR-01-23-23045
14 August 2023
VelChan
[email address]
Dear Vel
Request for information
Thank you for your Official Information Act 1982 (OIA) request dated 24 July 2023. You requested
the following:
I, under the provisions of the Official Information Act 1982, and request the 'Youth Justice'
chapter from the Police Manual.
Please find attached the three Police manual chapters relevant to your request. Chapters one and
three are released in full, however portions of chapter two are withheld pursuant to section 9(2)(a)
of the OIA to protect the privacy of natural persons.
Police considers the interests requiring protection by withholding the information are not
outweighed by any public interest in release of the information.
Please note that as part of its commitment to openness and transparency, Police proactively
releases some information and documents that may be of interest to the public. Therefore, an
anonymised version of this response may be publicly released on the New Zealand Police website.
I trust the information released addresses your area of interest. You have the right to ask the
Ombudsman to review the handling of your request if you are not satisfied with Police's response.
Information about how to make a complaint is available at www.ombudsman.parliament.nz.
Yours sincerely
�
Superintendent Phil Taikato
Director
Maori and Community Prevention Partnerships
New Zealand Police
Part 1 - Introduction to youth justice
Table of Contents
Table of Contents
2
Policy statement and principles
3
What
3
Why
3
How
3
Overview
4
Background
4
Inter‐agency collaboration
4
Outline and purpose of the Youth justice chapter
4
Child protection needs
5
References to the ‘Act’
5
Related information
5
Definitions and abbreviations
6
Abuse
6
Child
6
Near relative
6
Non‐Schedule 1A
6
Parent
6
Related charge
6
Residence
7
Schedule 1A
7
Victim
7
Young person
7
Youth
7
Purposes and principles applying to youth justice
7
Police must follow purposes and principles of the Act
7
General purposes
7
General principles of the Act
8
Youth justice principles
8
Section 11: Child’s or young person’s participation and views
9
Criminal responsibility of children and young persons
10
Age of criminal responsibility
10
When is a child a previous offender?
10
The effect of age on proceedings
12
Which court and rights caution applies?
12
Delay in proceedings
14
When child, youth or adult offenders are jointly charged
14
Process maps and related youth justice documents
15
Part 1 - Introduction to youth justice
Policy statement and principles
What
n relation to youth justice, the object of the Oranga Tamariki Act 1989 is to promote the well‐being of children, young persons and
their families by holding children and young persons accountable for any offences they commit, and dealing with them in a way that
acknowledges their needs and enables them to develop in responsible, beneficial and socially acceptable ways.
he Oranga Tamariki Act also details a range of general principles and additional youth justice principles that must guide any court or
person exercising powers under the Act.
ey amongst these is involving the child’s or young person’s family group in decisions affecting the child or young person, finding
alternatives to criminal proceedings unless the public interest requires otherwise, and dealing with children and young persons using
measures designed to strengthen the family group and foster its ability to develop its own means of dealing with the offending.
he three part Youth Justice chapter outlines the relevant law and provides guidance on the Police response to youth justice matters.
Why
The reasons children and young persons offend are complex and varied. Research has shown that approaches conducted outside the
formal Youth Court system appear most effective in reducing crime and making a positive difference for children and young people
who offend. Many young offenders grow out of it as part of the natural maturing process and unnecessary prosecution may do lasting
damage to them, actually setting them on a road to criminal offending.
The vulnerability of children and young persons means they require special protection during any investigation.
How
Police will
‑ take the purposes and principles of the Act into account when responding to offending by children and young persons
‑ work collaboratively with other agencies to address factors which contribute to their offending behaviour
‑ provide special protection for children and young persons during any investigation
‑ consider and implement effective and meaningful alternative actions with children and young persons
‑ ensure fingerprints and photographs from children and young persons are obtained and retained in line with policy.
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Overview
Background
he youth justice provisions of the Oranga Tamariki Act 1989 stress that young offenders should be held accountable for their actions
and encourage families to participate in dealing with their children’s offending. Families should work with victims, Police and the
ustice system to decide outcomes.
Local experience and many overseas studies show that a lot of youth offending is opportune and offenders will grow out of it as part of
the natural maturing process. ‘Labelling’ children and young persons as offenders through unnecessary prosecution may do lasting
damage and actually set them on a road to criminal offending.
he Act allows for and specifies the ability to carry out alternative methods of holding children and young people accountable for their
offending without involving the formal intervention of the prosecution system.
esearch has shown that approaches that are conducted outside the formal Youth Court system appear most effective in reducing
crime and making a positive difference for children and young persons who offend.
herefore, Police are encouraged to warn children or young persons or refer them to a Youth Aid Officer for appropriate alternative
action. This does not mean that Police should not take firm action when necessary.
Dealing with children and young persons in trouble is difficult, but Police must be patient, understanding and objective. Remember
that your actions and the image you project will have exaggerated importance and could have a lifelong effect on the child’s or young
person’s attitude towards Police.
Inter‐agency collaboration
Children and young persons who offend, and in particular those who are persistent youth offenders, almost always have a number of
needs which contribute to their offending behaviour. These can include factors such as:
‑ conduct and/or behaviour and/or learning disorders
‑ abuse and neglect (physical, sexual or psychological)
‑ poor health issues
‑ lack of attachment to primary caregivers
‑ lack of engagement in education
‑ poor social skills
‑ lack of cultural pride/identity
‑ mixing with anti‐social peers.
To deal holistically with the causes of youth offending, it is imperative that Police work with other government and non‐government
agencies which have the skills and resources to address specific needs children and young persons may have. Police have a
responsibility where possible to identify factors contributing to the offending behaviour so that appropriate referrals can be made to
relevant agencies. Failing to do this increases the chance of further offending and even escalated offending.
Strategic and beneficial working relationships are essential to achieving positive outcomes in reducing youth crime and victimisation.
Outline and purpose of the Youth justice chapter
The
Youth justice ‘chapter’ is comprised of 3 parts:
‑ Part 1 ‐ Introduction to youth justice
‑ Part 2 ‐ Responding to youth offending and related issues
‑ Part 3 ‐ Criminal procedure in the Youth Court
This ‘Part 1 ‐ Introduction to youth justice’ outlines:
‑ the purposes and principles of the Oranga Tamariki Act (OT Act) 1989 applying to youth justice
‑ when children and young persons can be held criminally responsible for an offence, and the effect of age on whether
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Part 1 - Introduction to youth justice
proceedings can be brought and if so, the court in which their case will be dealt with.
It also includes definitions and terms used across all three parts of the Youth justice chapter.
Part 2 ‐ Responding to youth offending and related issues outlines the processes for dealing with child and youth offenders and
details procedures for:
‑ questioning and interviewing them, including explaining and providing guidance on how to rebut the ‘doli incapax
presumption’ applying to children aged 10‐13 years
‑ arresting and explaining rights
‑ considering and giving warnings
‑ referrals to Youth Aid
‑ alternative actions
‑ charging and holding children and young persons in custody
‑ responding to breaches of bail
‑ prosecutions and Family Group Conferences
‑ taking fingerprints from children and young persons
‑ taking DNA samples from children and young persons
‑ responding to truancy and other care, protection and well‐being issues, e.g. intoxication.
Part 3 details the
Criminal procedure in the Youth Court
Child protection needs
See the Child protection investigation policy and procedures for information about the Police response to cases of alleged child abuse
(applies to all cases where the victim is under the age of 18 years).
References to the ‘Act’
In the ‘Youth justice’ chapter, unless specifically stated otherwise, all references to an Act, and all section references are to the Oranga
amariki Act 1989.
The Children, Young Persons and Their Families Act 1989 was re‐named the Oranga Tamariki Act 1989, or the Children’s and Young
People’s Well‐being Act in July 2017.
Related information
See also: Oranga Tamariki Ministry for Children, (www.orangatamariki.govt.nz) for information about dealing with young offenders.
Information and a database of Youth Court decisions are also available at www.justice.govt.nz/youth.
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Definitions and abbreviations
elevant definitions are set out in section 2 of the Act. This table includes key definitions and terms used in this chapter.
Term
Meaning
Abuse
The harming (whether physically, emotionally or sexually), ill‐treatment, abuse, neglect or deprivation of any child or
young person.
Refer to the Child protection investigation policy and procedures for more detailed definitions of various types of abuse
(e.g. serious child abuse, serious wilful neglect, psychological abuse).
Act
Oranga Tamariki Act 1989
Chief
Chief Executive of Oranga Tamariki‐Ministry for Children.
Executive
Child
A boy or girl under the age of 14 years.
CPT
Child Protection Team.
Custody The right to possession and care of a child or young person.
Family
In relation to a child or young person, means a family group, including an extended family:
Group
‑ in which there is at least one adult member:
‑ with whom the child or young person has a biological or legal relationship, or
‑ to whom the child or young person has a significant psychological attachment, or
‑ that is the child's or young person's whanau or other culturally recognised family group.
FGC
Family group conference.
Near
A step‐parent, grandparent, aunt, uncle, brother, or sister. Includes a brother or sister of the half‐blood as well as of the
relative full‐blood.
Non‐
An offence that is
not specified in Schedule 1A and that is within the jurisdiction of the Youth Court
Schedule
1A
OT
Oranga Tamariki, Ministry for Children
OTA
Oranga Tamariki Act 1989 (Up until July 2017 known as the Children, Young Persons and Their Families Act 1989)
Parent
In relation to a child, includes a step‐parent of the child, but only if the step‐parent shares responsibility for the day‐to‐day
care of the child with a parent of the child.
Related A charge for a non‐Schedule 1A offence that the Youth Court has determined to be related to a charge for a Schedule 1A
charge
offence that arises from the same incident or series of incidents
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Residence Any residential centre, family home, group home, foster home, family resource centre, or other premises or place,
approved or recognised for the time being by the chief executive as a place of care or treatment for the purposes of the Act,
and:
‑
includes:
‑ any place of care or treatment, so approved, whether administered by the Crown or not
‑
does not include:
‑ a prison
‑ a psychiatric hospital or a facility within the meaning of the Intellectual Disability (Compulsory Care and
Rehabilitation) Act 2003
‑ a children's health camp (operated by Children's Health Camps‐The New Zealand Foundation for Child and
Family Health and Development).
Schedule An offence specified in Schedule 1A of the Oranga Tamariki Act
1A
Victim
A victim is:
‑ a person against whom an offence is committed by a child or young person
‑ a person who, through, or by means of, an offence committed by a child or young person, suffers physical injury or
loss of, or damage to, property
‑ a parent or guardian of a child or young person who is a victim above, unless that parent or guardian is the child or
young person charged with the offence or against whom a charge has been proved
‑ a member of the immediate family of a person who, as a result of an offence committed by a child or young person,
dies or is incapable unless that family member is charged with the offence or against whom a charge has been
proved.
A victim does not include any other person against whom the offence, or an offence relating to the same incident, is
proved, or a person who is charged with or convicted of the offence or an offence relating to the same incident. This applies
whether the person was a principal, party or accessory after the fact or otherwise.
Young
A person of or over the age of 14 years but under 18 years.
person
Youth
A generic term used in this chapter to cover children and young persons.
YJC
Youth Justice Coordinator
YORST
Youth Offending Risk Screening Tool
YOT
Youth Offending Team
Purposes and principles applying to youth justice
Police must follow purposes and principles of the Act
When dealing with any child or young person alleged to have committed an offence, Police must be guided by the purposes and
general principles of the Act (detailed in sections 4, 4A and 5) and the Act's principles relating to youth justice (s208)). These purposes
and principles apply to all people, agencies, organisations and groups working with children and young persons who offend.
General purposes
In relation to youth justice, the purpose of the Act is to promote the well‐being of children, young persons and their families, whānau,
hapū, iwi and family groups by‐
Supporting and protecting children and young persons to‐
‑ prevent them from suffering harm (including harm to their development and well‐being), abuse, neglect, ill treatment, or
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deprivation; or
‑ prevent offending or reoffending or respond to offending or reoffending.
Responding to alleged offending and offending by children and young persons in a way that ‐
‑ promotes their rights and best interests and acknowledges their needs; and
‑ prevents or reduces offending or future offending; and
‑ recognises the rights and interests of victims; and
‑ holds the children and young persons accountable and encourages them to accept responsibility for their behaviour.
Establishing and promoting services that are designed to affirm mana tamaiti (tamariki), that are centred on their rights, promotes
their best interests and provides for their participation in decision making that affects them.
Providing a practical commitment to the principles of the Treaty of Waitangi (te Tiriti o Waitangi) in the way described in the OT Act (s
4(f)). (Read s4 for a full list of the purposes of the Act).
General principles of the Act
Any court or person exercising any power conferred by the Act must be guided by the principles in section 5, some of which include:
‑ encouraging and assisting the child’s or young person’s participation in expressing their views in any proceedings and taking
these into account
‑ ensuring the child’s or young person’s well‐being is at the centre of any decision made that affects the child or young person
‑ recognising the child’s or young person’s place within their family, whānau, hapū, iwi or family group
‑ recognising the child’s or young person’s place within their community
‑ respecting and upholding the rights of the child or young person (including the rights set out in the United Nations Convention
of the Rights of the Child (UNCROC) and the United Nations Convention on the Rights of Persons with Disabilities). Note
particularly, Article 37 of UNCROC which says that detention must be a measure of last resort.
‑ Decisions should be made and implemented promptly and in a time frame appropriate to the age and development of the child
or young person.
(Read s5 for a full list of these principles)
Youth justice principles
A Court or person, when exercising powers under the youth justice provisions in the OT Act, must take into account the four primary
considerations described in s4A(2). These are:
‑ the well‐being and best interests of the child or young person; and
‑ the public interest (which includes public safety); and
‑ the interests of any victim; and
‑ the accountability of the child or young person for their behaviour.
When weighing those four primary considerations, the Court or person must be guided by, in addition to the principles in s5, the
following principles found in s208 which include:
‑ finding alternatives to criminal proceedings, unless the public interest requires otherwise
‑ not instituting criminal proceedings in order to provide assistance or services needed to advance the well‐being of the child or
young person, or of their family, whānau, hapü and family group
‑ dealing with children and young persons using measures designed to strengthen the whānau, hapū and family group and foster
its ability to develop its own means of dealing with the offending
‑ keeping children and young persons in the community, unless they are a danger to the public
‑ using a child’s or young person's age as a mitigating factor in determining whether a penalty should be imposed, and the nature
of that penalty
‑ any measures for dealing with offending by a child or young person should so far as practicable to do so address the underlying
causes of their offending
‑ imposing penalties that will promote the child’s or young person's development within the whānau, hapū and family group and
take the least restrictive form that is appropriate in the circumstances
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‑ when determining measures for dealing with offending by children or young persons, considering the victim's interests and
views and that any measures should have proper regard for the victim's interests and the impact of the offending on them
‑ taking into account the vulnerability of children and young persons by providing special protection during any investigation.
Section 11: Child’s or young person’s participation and views
The child’s or young person’s participation must be encouraged and enabled and their views heard and taken into account in:
‑ Court proceedings
‑ the convening and proceedings of FGCs
‑ the preparation or review of a plan for a child or young person under the Oranga Tamariki Act 1989, and
‑ the taking of any other action or making of any other decision (any other process) under the OT Act that significantly affects a
child or young person who is the subject of that process.
The child or young person must be able to freely express their views and those views must be taken into account.
Any written
decision must set out the child’s or young person’s views and, if those views were not followed, include the reasons for not doing
so. The decision, and the reasons for it, must be explained to the child or young person.
(s11)
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Criminal responsibility of children and young persons
Age of criminal responsibility
his table outlines the criminal responsibility of children and young persons by age.
Age
Criminal responsibility
Section
Under A child under the age of 10 years is not criminally responsible for any offence.
Crimes
10
Act 1961
years While not criminally responsible, serious offending by a child under 10 years of age can be dealt with under the care s21(1)
and protection provisions (Part 2) of the Oranga Tamariki Act 1989.
10 ‐ 13 These are the
only 3 situations in which proceedings can be lawfully commenced against a child aged 10 ‐ 13 years:
years of
age
‑ the child is of or over the age of 10 years, and the offence is murder or manslaughter
‑ the child is aged 12 or 13 years and the offence is punishable by 14 years to life imprisonment (other than
murder or manslaughter)
‑ the child is 12 or 13 years, is a previous offender, and the offence is punishable by 10 to 14 years
imprisonment. OT Act s272(1)
If a decision is made to commence proceedings against a child aged 10 ‐ 13 years, the prosecution must satisfy the OT Act
Youth Court that the child knew either:
s198 &
s272A(d)
‑ that the act or omission constituting the offence charged was wrong, or
‑
Crimes
that it was contrary to law.
Act 1961
This is known as the
doli incapax presumption. (See more detailed guidance on the doli incapax presumption s22 (1)
and how to establish during investigations whether the child had the requisite knowledge in ‘Part 2‐ Responding
to youth offending and related issues’).
Other offences by children in this age group may be dealt with under the care or protection provisions of the OT Act
(s14(1)(e)).
14
A person who is 14 years of age or over can be charged with any crime or offence.
years or
over
When is a child a previous offender?
A child is a previous offender if:
‑ an application is made to the Family Court for a care or protection order on s14(1)(e) grounds, and
‑ on that application, the Family Court having found one or more of the offences alleged in the application proved in accordance
with s198(1)(a) and (b), makes a care or protection order or indicates that, but for s73, it would have made a care or protection
order on that ground, and
‑ one or more of the earlier offences had a maximum penalty of 10 years to life imprisonment.
A child is a previous offender if:
‑ an application is made to the Family Court for a care or protection order on s14(1)(e) grounds, and
‑ on that application, the Family Court having found one or more of the earlier offences proved, makes a care or protection order
or, but for s73, would have made a care or protection order that the child was in need of care or protection, and
‑ one or more of the earlier offences had a maximum penalty of 10 years to life imprisonment.
s272(1A)
A child is also a previous offender if:
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‑ they have been convicted by the High Court of murder or manslaughter; or
‑ as a result of an election of jury trial, they have been convicted by a District Court or High Court of one or more offences where
the maximum penalty is 14 years to life imprisonment (other than murder or manslaughter); or
‑ proven in the Youth Court against them one or more offences where the maximum penalty is 14 years to life imprisonment
(other than murder or manslaughter).
s272(1B)
Contact your local Youth Aid Section if you require clarification if the child meets the 'previous offender' criteria.
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The effect of age on proceedings
Whether proceedings can be brought against a child or young person and if so, the court which will deal with the matter, varies
depending on their age at the time of their offending and at the time proceedings are commenced (e.g. a child may have become a
young person since the offending and a young person, an adult). The age of the child or young person at various times during
proceedings also determines whether they receive the standard adult rights caution or rights under the OT Act.
Which court and rights caution applies?
his table details the caution to be provided and the court in which a case is dealt with, having regard to the child's or young person's
age.
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Age at time Age at time charging document is Rights Court in which case is to be heard or actions to be taken
of offence
filed
required
0‐9 years
No charging document can be filed N/A
Can be dealt with by Family Court for care or protection issues but note
as the child is not criminally liable
that s14(1)(e) grounds do not apply to this age group.
10‐11 years No charging document can be filed OT Act Dealt with in Family Court under s14(1)(e) if criteria is met.
for child offenders of this age, except rights
murder or manslaughter ‐see below.
Note: If a child or young person comes to attention for child offending
after turning 18, they cannot be dealt with under s14(1)(e).
10‐13 years 10‐17 years
OT Act Filed in the District Court for first appearance in the Youth Court.
*
for murder or
rights
Transferred to the High Court after first appearance.
manslaughter18 years
Bill of
Filed in the District Court for first appearance in the Youth Court.
*
Rights
Transferred to the High Court after first appearance.
19 years and over
Bill of
Filed in the District Court. Transferred to the High Court after first
Rights
appearance.
12 ‐ 13 years 12‐17 years
OT Act Dealt with in Youth Court if a charging document is filed and s272 criteria
(if child meets
rights
met. Note however, that the Youth Court may refer the matter back to
s272 criteria) Note that there are specific
Police under s280A to consider care and protection proceedings or to
protections in s272A for 12‐13 year
deal with the matter in some other way.
olds charged with an offence
specified in s272(1)(b) or (c)).
Alternatively, if the child is 12 ‐13 years, they can be dealt with in the
Family Court under s14(1)(e) if that criteria is met.
Note: If a child or young person comes to attention for child offending
after turning 18, they cannot be dealt with under s14(1)(e).
14‐17 years 14‐17 years
OT Act Filed in the District Court,
* and dealt with in the Youth Court
rights
18 years
Bill of
Filed in the District Court,
* and dealt with in the Youth Court.
Rights
19 years and over
Bill of
District Court
Rights
17 yrs
17 years
OT Act Filed in the District Court,
* first appearance in the Youth Court and then
Schedule 1A
Rights
transferred to the District Court
Offences only
17 yrs
18 years
Bill of
Filed in the District Court,
* first appearance in the Youth Court and then
Schedule 1A
Rights
transferred to the District Court
Offences only
Note: * The above table outlines charges that are to be laid in the District Court even though they will be heard in the Youth Court.
These may appear to be incorrect however they are not. The following explains the reason for this:
The effect of Schedule 1, cl (2)(a) of the Oranga Tamariki Act 1989 is that charging documents must be filed in the District Court (as per
section 14 of the Criminal Procedure Act 2011). Once filed, charges within the jurisdiction of the Youth Court must be heard or
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determined in the Youth Court (see Schedule 1, cl(2)(b)).
Delay in proceedings
f the young person is 17 years old, do not be tempted to wait until they turn 18 before filing a charging document. Any undue delay
between the offence and filing a charging document may result in the Judge dismissing the case outright (s322). Lack of Police staff or
resourcing has been rejected by the Courts as a valid reason for delay. Lines of enquiry must be actively pursued.
Case Law: Police v B (6 October 1999) YC, Hamilton, CRN 9219024334/24318‐9, Twaddle DCJ
When child, youth or adult offenders are jointly charged
See Procedure where child or young person jointly charged in ‘Part 3 ‐ Criminal procedure in the Youth Court’ for information about
how jointly charged children, young persons and adults are proceeded with in the Youth Court.
s277 OT Act 1989
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Process maps and related youth justice documents
hese Process Maps and other documents are related to the ‘Youth justice’ chapter:
‑ Manage Youth Aged 14 to Under 18 process (July 2019)
‑ Manage Custody of youth aged 14 ‐ under 18
‑ Manage Bail Remand for Youth aged 14 to Under 18 process (July 2019)
‑ Intention to Charge youth 14 to under 18
‑ Decision tree ‐ Take a DNA sample or not
‑ Manage Court Process Youth (July 2019)
‑ Manage Schedule 1A Offence Process ‐ Offenders aged 17 years
‑ YORST policy
‑ YORST Information sharing guidelines
‑ Alternative Actions Guidelines
‑ POL 388 ‐ Youth Justice checklist ‐ Steps for investigation
‑ POL 128Y ‐ Opposition to bail (Youth)
‑ POL 235 ‐ Notice of Placement in Custody
‑ POL 236 ‐ Detention in Police Custody of a Young Person
‑ POL 3040 ‐ Family Group Conference referral form
(POL forms located in WORD> Police Forms> (A‐H)> Children and Young Persons)
Printed on : 24/07/2023
Printed from : https://tenone.police.govt.nz/pi/part‐1‐introduction‐youth‐justice
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Table of Contents
Table of Contents
2
Introduction
5
Process for dealing with offenders aged 10 to 13
6
Children who commit murder or manslaughter
6
Options for dealing with offences other than murder or manslaughter
6
Referral to a family group conference for care and protection
6
Family Court options when a care or protection order is made:
6
Referral to FGC when considering charges in the Youth Court
7
Process for dealing with offenders aged 14 to 17
8
Introduction
8
Murder or manslaughter
8
Offences other than murder, manslaughter, Schedule 1A offences or traffic offences that are infringement offences
8
Risk factors for youth offenders
9
Risk factors
9
Stat c r sk factors
9
Dynam c r sk factors
9
Youth offending risk screening tool (YORST)
9
Questioning or interviewing a child or young person
10
Entitlement to special protection during investigations
10
Questioning children and young people as suspects
10
Spontaneous statements
10
L nks to deta ed nformat on about nterv ew ng ch dren and young persons
10
Youth just ce check st
10
Covering important topics in children's interviews
10
Questioning children and young persons as witnesses
11
Contacting Youth Aid in serious cases
11
Rebutting the Doli incapax presumption (children aged 10 ‐13 years)
12
What is doli incapax?
12
Who is responsible for rebutting the presumption?
12
What happens if Police fail to prove the requisite knowledge?
12
Establishing the requisite knowledge
12
Interviewing child suspects to determine knowledge
13
Arresting a child or young person and explaining rights
14
When can you arrest without a warrant
14
Except ons
14
Advising a child or young person of their rights on arrest
14
How shou d r ghts be exp a ned?
15
Except ons
15
Reporting the arrest
15
Options following arrest of a child or young person
15
When drunk or intoxicated children and young persons are in custody
16
Releasing without charge
16
Actions when releasing without charge
16
Warnings
17
When are warnings appropriate?
17
Factors to consider
17
Giving a warning
17
Do not
17
Informing parents and Youth Aid of warnings
17
f you dec de not to g ve a warn ng
18
Considering victims before initiating a warning or alternative action
18
Information about warnings is inadmissible
18
Referral to Youth Aid
19
Always refer child offenders under 10 years to Youth Aid
19
Refer young persons to Youth Aid when a warning is not sufficient
19
Youth Aid to consider further referral to Youth Justice Coordinator
19
Youth Aid action
19
Factors to be considered when deciding action
19
Alternative action
21
What is alternative action?
21
Legislation requiring alternative action to be considered
21
The alternative action process
21
Aims and elements of alternative action plans
21
Elements of a plan
21
Risk and needs screening
22
National Guidelines for Police Alternative Action
22
Checklist
22
Charging and holding children and young persons in custody
23
If you decide to charge
23
Releasing the child or young person on bail
23
Selecting suitable bail conditions
23
Opposition to bail
23
Preparing opposition to bail
24
Bail and Schedule 1A offending
24
Victim's views on release of child or young person
24
Placing a child or young person in OT custody
24
Po ce ob gat ons when p ac ng a ch d or young person n O custody
25
Holding in Police custody
25
Youth justice residences
25
Breaches of bail (children and young persons)
27
Introduction
27
When can you arrest without warrant for a breach of bail
27
Key factors to consider before arresting under section 214A
27
Procedures for responding to bail breaches
27
Responding to breaches of electronically monitored (EM) bail
28
Arrest for two or more previous bail breaches under section 214A
28
Approva requ red to arrest under sect on 214A
29
Using warnings for breaches of bail conditions
29
Exerc s ng d scret on n ba enforcement
29
Ba cond t ons
29
Approva for ssu ng warn ngs for breaches of cond t ons
29
Reporting arrests for bail breaches to the Commissioner
29
Prosecution and family group conferences
30
Arranging an FGC
30
Referral to the Youth Justice Coordinator
30
Consultation
30
Time frames for convening FGCs
30
Purpose of a youth justice FGC
31
FGC for ch d offenders care and protect on
31
FGC for a ch d s ser ous offend ng Youth Cou t
32
Formulating recommendations and plans ‐ child and young person
32
Who can attend a FGC?
32
Related information
32
Procedures for family group conferences and afterwards
33
Preparing for the FGC
33
At the FGC
33
Poss b e outcomes from a FGC
34
After the FGC
35
Administering a formal caution
35
Who g ves the caut on?
35
Decision to charge
35
Fingerprinting and photographing children and young persons
37
Identifying particulars
37
When can fingerprints and or photographs be obtained?
37
Factors to consider when collecting fingerprints and photographs
37
When f ngerpr nts and/or photographs are a ready he d
37
Retention of fingerprints and photographs
37
Ensur ng comp ance w th destruct on requ rements
38
Youth DNA sampling
39
Obtaining DNA samples from children and young persons
39
Overview of sampling rules‐ persons of or over 14 years and under 18
39
Part 2B intention to charge DNA sampling
39
Overview of sampling rules‐ person of or over 10 years and under 14
40
Qualifying offences ‐ Suspect (Part 2) and DNA Databank (Part 3)
40
Retention of youth DNA
40
Truancy
41
Background
41
Legal requirement to attend school
41
Responsibility for ensuring attendance and dealing with truancy
41
Police action relating to truancy
41
Powers when dealing with truants
41
Care and protection and other well‐being issues
43
Care and protection issues
43
Dealing with drunk or intoxicated children and young persons
43
Opt ons under Oranga amar k Act 1989
43
Suicide
43
Part 2 - Responding to youth offending and related issues
Introduction
The ‘Youth justice’ chapter is comprised of 3 parts:
‑ Part 1 ‐ Introduction to Youth justice
‑ Part 2 ‐ Responding to youth offending and related issues
‑ Part 3 ‐ Criminal procedure in the Youth Court
Before considering the detailed options for responding to youth offending outlined in this Part 2 of the Youth justice chapter,
ensure that you are familiar with:
‑ the purposes and principles of the Oranga Tamariki Act (OT Act) 1989 applying to youth justice
‑ the limitations on when children and young persons can be held criminally responsible for any offence, and the effect of age on
the proceedings that can be brought against them.
These matters are covered in detail in
Part 1 ‘Introduction to youth justice’.
This Part 2 of the ‘Youth justice’ chapter outlines the
general processes for dealing with children (aged 10‐13) and young persons
(aged 14 ‐ 17) who offend, and details the various options that may be considered in response to their offending and related issues.
This Part 2 provides guidance and details procedures and legal responsibilities for:
‑ questioning or interviewing children and young persons
‑ rebutting the Doli incapax presumption (children aged 10 ‐13 years)
‑ arresting and explaining rights
‑ giving warnings
‑ making referrals to Youth Aid
‑ alternative actions
‑ charging and holding children and young persons in custody
‑ responding to breaches of bail
‑ prosecutions and Family Group Conferences
‑ taking fingerprints and photographs of children and young persons
‑ taking DNA samples from children and young persons.
It also includes guidance on responding to truancy and other care, protection and well‐being issues, e.g. intoxication, that may be
impacting on a child’s or young person’s offending.
Part 3 of the ‘Youth justice’ chapter details the
criminal procedure applying in the Youth Court and for dealing with Schedule 1A
(OT Act) offending.
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Process for dealing with offenders aged 10 to 13
Children who commit murder or manslaughter
Children aged 10 to 13 can be prosecuted for the offences of murder and manslaughter.
Where a child is alleged to have committed murder or manslaughter, charges are filed in the District Court, the first appearance takes
place before the Youth Court, and the case then automatically transferred to the High Court for trial and sentencing under section 36
(2) of the Criminal Procedure Act 2011.
Children can be sentenced to imprisonment for murder or manslaughter and be detained in an Oranga Tamariki Youth Justice
Residence under the custody of the Chief Executive of Oranga Tamariki, Ministry for Children. Child offenders who are declared in need
of care and protection can be detained in a Care and Protection Residence under the custody of the Chief Executive of Oranga
Tamariki, Ministry for Children.
Options for dealing with offences other than murder or manslaughter
For offences other than murder or manslaughter, children aged 10 to 13, whether or not they have been arrested can:
‑ have no action taken
‑ be issued a warning or formal caution by Police
‑ be referred to Police Youth Aid, who may arrange an alternative action (diversion) after consultation with victims, the child and
their family/whänau
‑ be referred to an Oranga Tamariki Youth Justice Coordinator (YJC) for a family group conference (FGC) if the number, nature or
magnitude of their offence(s) give serious concern for their well‐being (s14(1)(e))
‑ be referred to the Family Court either without notice or subsequent to a FGC, where a care or protection order may be made,
provided the court is satisfied the child knew that the offence was wrong or contrary to law
‑ an interim custody order may be made by the Family Court where it is in the best interests of the child that it be made as a
matter of urgency or it is in the public interest that an interim custody order be made in respect of a child and the grounds on
which the order is sought relate to offending or alleged offending by the child (s78(1A) & (1B)).
‑ subject to s272 (1)(b) or (c) criteria being met, be referred to Oranga Tamariki YJC for a FGC to consider filing a charging
document in the Youth Court, or
‑ subject to s272 (1)(b) or (c) criteria being met and the child
has been arrested, file a charging document in the Youth Court.
Between initial contact and the decision to arrest, Police have significant discretion in deciding how to proceed. Considering the risk
factors for a young offender will provide guidance as to what level and degree of intervention is required.
See 'Options following the arrest of a child or young person' in the arresting section of this chapter for further information.
Referral to a family group conference for care and protection
Children can be referred to family group conferences convened by the OT Youth Justice Coordinator for care and protection purposes
on account of their offending (s14(1)(e)). Youth Aid officers represent Police at these FGCs.
Where a child is referred to a FGC for care and protection purposes, it may recommend that:
‑ proceedings be discontinued
‑ a formal Police caution be issued
‑ the child make reparation to the victim(s), and/or
‑ agree to some form of assistance (e.g. request a psychological assessment, referral to a rehabilitative programme).
The FGC can also agree that a recommendation should be made to the Family Court that particular care or protection order(s) be made
where the number, nature or magnitude of the offending is such as to give serious concern for the well‐being of the child. (Care or
protection orders is defined in section 2 of the OT Act and includes interim custody orders (s78) and custody orders (s101)).
Family Court options when a care or protection order is made:
When the Family Court is satisfied that a child is in need of care or protection (s14 and 14AA) it can under s83 do one or more of the
following:
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‑ discharge the child or young person, their parent or guardian or any person having their care
‑ make an order that the child or parent comes before the Court if called upon within two years
‑ make an order requiring counselling
‑ make a services order (s86), restraining order (s 87), support order (s91) or custody order (s101)
‑ order the appointment of a guardian.
When the Family Court is satisfied that a child is in need of care or protection on the grounds of a child’s offending, the court can under
s84, in addition to or instead of the orders listed above:
‑ admonish the child
‑ direct reparation or restitution
‑ order forfeiture of property.
(s84)
Further, if an order requiring a person or organisation to support the child is made, the Court can also impose:
‑ where satisfied that the child is in need of care or protection on section 14(1)(d) or (e) grounds, conditions requiring non‐
association, the child to attend/remain at a Centre or any other conditions it thinks fit to reduce offending
‑ conditions requiring examination/treatment/counselling/therapy
‑ where satisfied on s14(1)(e) grounds, any other condition it sees fit to reduce the likelihood of further offending by the child.
(s96)
Referral to FGC when considering charges in the Youth Court
Children can also be referred to family group conferences convened by the OT Youth Justice Coordinator for offending if the child has
committed an offence(s) that meets the criteria as set out in s272(1)(b) or (c). Youth Aid officers also represent Police at these FGCs.
Where a child is referred to an FGC for serious offending, it may recommend that:
‑ a plan is developed to address the child's causes of offending, address their needs and hold them accountable
‑ an information is to be laid in the Youth Court.
Note: You must always consider the s208 Youth Justice principles when deciding upon the most appropriate courses of action for child
offenders. Further, if an information is laid in the Youth Court, that Court may decide to refer the case back to be dealt with as a care or
protection proceeding under s280A.
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Process for dealing with offenders aged 14 to 17
Introduction
Young persons aged 14 to 17 can be charged and prosecuted for any offence. However, youth justice principles (s208) require offences
to be dealt with at the lowest level possible taking into account the type of offence(s) and the age of the young person. Not all young
persons who come to notice for offending behaviour are going to require intensive intervention from Police. Statistically, the majority
will commit one offence and never come to Police notice again.
Murder or manslaughter
Where a young person is alleged to have committed murder or manslaughter, charges must be filed in the District Court but the
preliminary hearing of the charge takes place in the Youth Court before being automatically transferred to the High Court for trial and
sentencing. Young persons can be imprisoned for murder, manslaughter, category 4 offences and category 3 offences for which the
maximum penalty available is or includes imprisonment for life or for at least 14 years. They can also be detained in an Oranga
Tamariki Youth Justice residence under the custody of the Chief Executive of Oranga Tamariki, Ministry for Children.
Offences other than murder, manslaughter, Schedule 1A offences or traffic offences that are
infringement offences
Options for dealing with young persons aged 14 to 17 for offences other than murder manslaughter, Schedule 1A offences or traffic
offences that are infringement offences, whether or not they have been arrested, include:
‑ no further action
‑ being issued with a warning or formal caution by Police
‑ being referred to Police Youth Aid, who may arrange an alternative action (diversion) after consultation with victims, the young
person and their family/whänau
‑ being referred to Oranga Tamariki for a family group conference to consider filing a charging document in the Youth Court or
dealing with the matter outside of the court system
‑ being arrested and having charges filed against them in the Youth Court.
Between initial contact and the decision to arrest, the Police have significant discretion in deciding how to proceed. The OT Act limits
the use of arrest but this does not minimise the accountability of the young person.
Considering the risk factors for a young offender will provide guidance as to what level and degree of intervention is required.
Note: While traffic offences that are infringement offences will not usually be heard in the Youth Court, there can be an exception if the
infringement offence arises out of the same event or series of events as any other offence in respect of which the young person is
required to be brought before the Youth Court and the court considers it desirable to hear the charges together, e.g. an 'Excess Breath
Alcohol' and a 'Careless Use of a Motor Vehicle' charge.
(s272(5))
For more information see the 'Manage Youth Aged 14 to Under 18 process' below
‑
Manage You h Aged 4 o Under 8 process (Ju y 20 9)
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Risk factors for youth offenders
Risk factors
There are key factors that contribute to a child or young person being at risk of offending and/or becoming a victim of crime. Some of
these factors are
static (meaning they cannot be changed by any intervention or Police work). Other factors are
dynamic (meaning
they can be positively influenced by intervention).
Static risk factors
Some examples of static factors that put children or young people in a category of high risk for offending include:
‑ being male
‑ age at which offending was first reported to Police (the younger the age, the more at risk)
‑ previous offending history of family members.
Dynamic risk factors
Some examples of dynamic factors that put children or young people in a category of high risk for offending include:
‑ lack of involvement in regular education/employment
‑ negatively influenced by peer group
‑ dependency on drugs/alcohol
‑ lack of connection with community.
‑ family harm
Youth offending risk screening tool (YORST)
YORST is a systematic evaluation of the likelihood of a child or young person offending. It is a cross‐agency tool (between Police and
OT) and involves 14 questions which enquire about risk factors in key areas of the child's or young person's life. It explores:
‑ offending and care and protection history
‑ family factors
‑ drugs and alcohol
‑ education/employment
‑ peers.
The YORST guides actions/interventions carried out by Police youth specialists dealing with young offenders.
See the YORST policy and YORST information sharing guidelines (agreed between OT and Police) below for further information.
‑
YORST Po icy (June 20 9)
850 KB
‑
YORST in orma ion sharing guide ines (June 20 9)
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Part 2 - Responding to youth offending and related issues
Questioning or interviewing a child or young person
Entitlement to special protection during investigations
The vulnerability of children and young persons entitles them to special protection during any investigation relating to the commission
or possible commission of an offence by that child or young person.
(s208(h) OT Act ‐ youth justice principles)
Questioning children and young people as suspects
There are strict legal requirements for questioning and interviewing children and young persons.
Children and young persons suspected of committing an offence must be dealt with fairly and courts adopt a strict approach to
confessions obtained outside the requirements of the Act.
In particular, and to ensure admissibility of evidence, you must:
‑ explain their rights to the child or young person as specified in s215 (using the Police rights caution for children and young
persons):
‑ if there are reasonable grounds to suspect they have committed an offence, or
‑ before asking questions intended to obtain an admission, or
‑ before continuing questioning, if at any time during the interview you form the view that there are reasonable grounds to
suspect they have committed an offence.
‑ ensure that the child's or young person's rights/caution have been given in a manner and language they understand. Ask them
to explain the caution/rights back to you to ensure understanding
‑ before the interview, inform their parents or guardians that they are at the station for questioning or interview
‑ conduct any interview in the presence of a nominated person of their choice and a lawyer or both (if requested).
Spontaneous statements
Statements made by the child or young person spontaneously to Police before the officer has had a reasonable opportunity to comply
with the requirements above, may still be admissible as evidence (s223).
Links to detailed information about interviewing children and young persons
For detailed information about the requirements above and to ensure evidence given by a child or young person is admissible, see
‘Children and young people as suspects’ in Investigative interviewing ‐ suspects requiring special consideration.
Youth justice checklist
Always use the "Youth Justice checklist ‐ Steps for investigation" (Pol 388) located in Police Forms> Children and Young Persons to
ensure that:
‑ you comply with the provisions of sections 215 to 232 of the Act and the requirements of the Chief Justice's practice note on
Police questioning
‑ others working on the case can see that procedures have been followed correctly.
Covering important topics in children's interviews
When planning and preparing for an interview with a child suspect, an important topic to cover is whether the child had knowledge
that the acts were wrong or contrary to law at the time of offending. This information is necessary to rebut the doli incapax
presumption. (See Rebutting the Doli incapax presumption (children aged 10 ‐13 years) below and the ‘Criminal responsibility of
children and young persons’ table in Part 1 ‐ Introduction to Youth justice) for more information).
The questions you ask will depend on the requirements of your investigation and the child's account of events, if given. When
attempting to establish whether the child has the requisite knowledge of wrongfulness during the interview, it may be helpful to check
the child's understanding at the time of offending of:
‑ the likely consequences of the criminal act, e.g. what they thought would happen to the victim/property, what would happen to
the child themselves if they got caught, how they would feel if someone did the same thing to them
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‑ what other family members or members of the community would think of the criminal act, e.g. a respected family member such
as an aunty or uncle, or their teacher
‑ why they did what they did, e.g. why throw away the knife they threatened Joe with
‑ any rules or laws about the criminal act.
Children are susceptible to suggestion, so use open TEDS type questions (tell me, explain, describe, show) to encourage them to do
most of the talking. Keep questions short and simple. For example, to find out what the child thought the likely consequences were for
the victim, you could ask a question like "You said you kicked Johnnie in the head, What did you think would happen to him when you
did that?"
See the Investigative interviewing ‐ suspects requiring special consideration chapter for further information.
Questioning children and young persons as witnesses
Follow the Investigative interviewing witness guide and additional procedures for children and young persons in Investigative
interviewing ‐ witnesses requiring special consideration when interviewing children and young persons as witnesses (i.e. not as
suspects/offenders) to ensure the evidence given is admissible. The Specialist child witness interview guide may also apply in some
cases.
Contacting Youth Aid in serious cases
Do not forget, your Youth Aid Section is available to provide specialist advice if you have any concerns or queries when investigating
matters involving children and young persons. For serious cases, it is advisable to speak with Youth Aid prior to commencing any
interviews to consider how the offending should be dealt with, e.g. release, or arrest and bring before the Family Court to seek a
custody order or whether to commence proceedings in the Youth Court.
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Rebutting the Doli incapax presumption (children aged 10 ‐13 years)
Use this information when investigating offences al eged to have been committed by children between the ages of 10 and 13 years
inclusive. It focuses on the necessity of ensuring that the ‘doli incapax’ presumption is rebutted.
What is doli incapax?
Doli incapax is an ancient common law presumption that children under a particular age are "incapable of evil" and therefore should
not be culpable for any criminal acts or omissions. In New Zealand there is:
‑ An irrebuttable presumption that a child under 10 years cannot be held legally responsible for their actions (s21 Crimes Act
1961).
‑ A rebuttable presumption that a child aged 10 ‐ 13 years inclusive cannot be criminally liable unless they knew their act or
omission was wrong or contrary to law. This is found in both section 22 of the Crimes Act 1961 and sections 198 and 272A(1)(d)
of the Oranga Tamariki Act 1989.
Who is responsible for rebutting the presumption?
The presumption that the child does not know what they did was wrong or contrary to law is rebuttable by the prosecution during
court proceedings.
What happens if Police fail to prove the requisite knowledge?
If the prosecution fails to prove the requisite knowledge, then the child is deemed to have committed
no offence.
For child offenders, there are three aspects of the offence that the prosecution must prove to ensure culpability:
‑ mens rea
plus
‑ actus reus
plus
‑ at the time of offending, knowledge of wrong or that the act/omission was contrary to law.
Establishing the requisite knowledge
There are a number of avenues of inquiry that can be followed during the investigation to establish whether the child knew at the time
of the offending that what they did was wrong or contrary to law.
Investigating officers should, whenever possible, investigate and then interview the suspect rather than interview and then
investigate.
This table outlines a number of options available to investigators:
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Evidence Description
Relevant case law
source
Actions of Whether the child ran away or hid evidence may demonstrate that they knew their act was wrong. V v United Kingdom
the child
Also, their demeanour in court may be useful.
(24888/94)(2000) 30
EHRR 121
Type and The more serious the offence and the older the child within the 10‐13 year age bracket, the more
C (a minor) v DPP
seriousness likely it is that the court will accept that the child knew their act was wrong. Further, certain
[1995] 2 All ER 43, 62
of the
offences are more likely to be understood to be wrong, e.g. assault. More complex offences such as (HL)
offence
bribery or concepts such as being a party to an offence may be more difficult for a child to
JBH and JH (minors) v
understand as wrong.
O'Connel [1981] Crim
LR 632
Statements Whether the child admits or denies the offence may be telling, as may statements made by the childF v Padwick [1959]
made by
in questioning as to their understanding (see Covering important topics during interviews in the
Crim LR 439 JM
the child
"Interviewing" section above for further information)
(A Minor) v Runeckles
(1984) 79 Cr App R 255
Previous
Evidence of previous offending may be useful in showing that a child has been told in the past, and R v B, R v A [1979] 3 All
misconduct has understood, that this conduct was wrong. The NZ Courts have held that previous offending mayER 460
be admitted if its probative value outweighs its prejudicial value.
R v Rapira [2003] 3
NZLR 794; (2003) 20
Note section 213 OT Act: previously given warnings and formal cautions are not admissible other
CRNZ 3
than on behalf of the defence and so cannot be used to show knowledge.
Lay personsPeople such as Youth Aid officers, teachers, school principals, sports coaches may offer useful
R v Rapira[2003] 3
information about the knowledge of children of that age generally and compare this to their view NZLR 794;(2003) 20
of the knowledge of that child offender in particular.
CRNZ 396
Medical
Evidence from medical specialists such as psychologists or psychiatrists. Section 333 OT Act
L v DPP, T v DPP, W, GH
specialists reports may be useful.
and CH v DPP (31 May
1996, The Times,
London, Lord Justice
Otton)
Following the recent case of R v J [2007] ACTSC 51 (Australian case) the New South Wales Director of Public Prosecutions
recommended the following guidelines:
‑ It is permissible to rely on the circumstances surrounding the commission of an offence as demonstrating that an accused knew
what he or she was doing was seriously wrong, e.g. clear indications of distress and resistance on the part of the victim, the
furtive nature of an offence or what the child said or did before and after the offence.
‑ The evidence of others may also be used to rebut the presumption, e.g. the giving of a false alibi, the child's educational
standard and intellectual ability at school, whether the child gives a coherent account to Police about the offence and any
admissions given in interview.
‑ A psychiatric assessment may be obtained.
‑ Evidence of flight is generally not sufficient to rebut the presumption. (Note that this conflicts with the first bullet point above
relating to the "actions of the child" and demonstrates differences in approach between UK and Australian case law).
‑ The closer the child is to the age of 14 years the easier it will be to rebut the presumption.
Interviewing child suspects to determine knowledge
Refer to Covering important topics during interviews above for information about how to cover off during interviews whether the child
had knowledge that the acts were wrong or contrary to law at the time of offending.
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Arresting a child or young person and explaining rights
When can you arrest without a warrant
You must have a power under an enactment to arrest any person without a warrant. Section 214 limits your powers to arrest children
and young persons.
You can only use your power to arrest children and young persons without a warrant‐
if …
and…
Section
you are satisfied on reasonable grounds that an arrest is necessary to:
that proceeding by way of summons
s214(1)
(where that is an option) would not
‑ ensure the appearance of the child or young person before the court, or
achieve that purpose.
‑ prevent the child or young person from committing further offences, or
‑ prevent the loss or destruction of evidence relating to an offence you
suspect the child or young person has committed, or
‑ prevent interference with any witness to the offence…
you have reasonable cause to suspect that the child or young person has
you believe on reasonable grounds that
s214(2)
committed a category 4 offence or category 3 offence for which the maximum
the arrest is required in the public interest.
penalty available is or includes imprisonment for life or for at least 14 years
the child or young person has been released on bail
you believe on reasonable grounds that
s214A
the child or young person:
s214(1)
‑ has breached a condition of that
bail,
and
‑ has on 2 or more previous
occasions breached a condition of
that bail (whether or not the same
condition),
or
‑ the breach satisfies the criteria for
arrest in s214(1)
(see Breaches of bail (children and
young persons in this chapter)
Exceptions
Nothing in the provisions of section 214 limits or affects the powers of an enforcement officer under:
Land Tran port A t 1998,
tion 68 72 (Br ath al ohol and blood al ohol provi ion ) ( 233 OT A t)
‑ Immigration Act 1987, other than sections 126(4) and 142 (s244 OT Act).
Advising a child or young person of their rights on arrest
You must advise a child or young person of their rights in these situations.
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Situation
Section
OT Act
Before questioning when you have reasonable grounds to suspect the child or young person has committed an offence or
215
before asking any question in which you intend to obtain an admission to an offence.
When the child or young person asks you about their rights. This applies when you are questioning a child or young person 215A
in relation to their involvement in the commission of any offence or suspected offence and the child or young person asks you
about their rights.
When you have decided to charge the child or young person after questioning them.
216
When you have arrested a child or young person.
217
Immediately after a spontaneous statement is made if there are reasonable grounds to suspect a child or young person has 223
committed an offence.
How should rights be explained?
Explain rights using the rights caution for children and young persons (detailed on an insert card for your notebook or in Checkpoint).
Any nominated person also needs to be advised of these rights.
Ensure the explanations provided to the child or young person are given in a manner and language that is appropriate to their age and
level of understanding.
You are not required to explain sections 215‐217 to a child or young person if you have done so within the last hour (s219). However, if
the child or young person requests their rights to be explained within the hour timeframe, do not hesitate informing them again as it
may avoid any subsequent legal arguments in court.
Exceptions
Nothing in the provisions of section 214‐232 limits or affects the powers of an enforcement officer under Land Transport Act 1998,
sections 68 ‐ 72 (Breath alcohol and blood alcohol provisions) (s233 OT Act).
Nothing in section 214 ‐ 243 limits or affects any provision of the Immigration Act 1987, other than sections 126(4) and 142 (s244 OT
Act).
Reporting the arrest
If you arrest a child or young person, you must provide a written report to the Commissioner of Police within three days of making the
arrest. Use the Arrest/Removal of Child/Young Person *YOUTH form located in the Bulletin Board's "Create Notification" feature.
Every report must state the reason why the child or young person was arrested without warrant (s214(3) & (4)).
Options following arrest of a child or young person
When a child or young person has been arrested (with or without warrant) the following options are available to you:
‑ release the child or young person
‑ bail the child or young person in accordance with section 21 Bail Act 2000 (see also Releasing the child or young person on bail
in the ‘Charging’ section of this chapter)
‑ deliver the child or young person to the custody of a parent, guardian or other person having care of that child or young person
‑ with the agreement of the child or young person, deliver them to:
‑ any iwi, social service or cultural social service, or
‑ any other person or organisation approved by the Chief Executive of OT, Ministry for Children, or a constable for that
purpose.
(s234 (a) ‐(c))
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See also Charging and holding children and young persons in custody in this chapter for further information.
When drunk or intoxicated children and young persons are in custody
Refer to ‘Dealing with drunk or intoxicated children and young persons’ in Care and protection and other well‐being issues in this
chapter.
Releasing without charge
If you have arrested a child or young person and you think the arrest has achieved its purpose, the O/C must decide whether to release
the child or young person without charge to the custody of:
‑ parents or guardians, or
‑ any iwi social service or cultural social service (with the agreement of the child/young person), or
‑ any other person or organisation approved by CE Oranga Tamariki or constable (with the agreement of the child/young person).
Consider this in the case of offences where the arrest was unavoidable, but the reason for the arrest no longer applies, e.g. where a
shop‐lifter refused to supply particulars but co‐operated on arrival at the station.
When dealing with children and young persons, the situation continually changes. It may be necessary and highly appropriate to arrest
an uncooperative youngster, but this action may in itself achieve the desired effect.
Releasing the child or young person does not mean that they will not be held accountable, as Youth Aid can still deal with the matter
by way of warning, alternative action or FGC.
Actions when releasing without charge
Take these steps if you release a child or young person without charge.
StepAction
1
Either give a warning or refer them to Youth Aid for further action. In both cases, forward a file to Youth Aid for their action.
(Warning letters must be sent by Youth Aid). In the case of children, releasing and reporting to Youth Aid is usually the best
option.
2
Complete a Custody/Charge Sheet, but note on it that the child or young person was released under section 234 of the Oranga
Tamariki Act 1989.
3
Complete Notification of Arrest to the Commissioner (*YOUTH).
4
Whatever your action, forward file to Youth Aid.
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Warnings
When are warnings appropriate?
As a first step it may be sufficient to give the child or young person a warning, unless a warning would be clearly inappropriate because
of the seriousness of the offence and the nature and number of previous offences by that child or young person. (s209)
Warnings may be considered in, but are not limited to, the following situations:
‑ victimless offences such as language and behaviour offences
‑ offences where the victim suffers only minor harm
‑ offences involving property damage that is minor or easily repaired, or for which reparation is made
‑ offences where property of low value is taken and recovered
‑ traffic offences that are not punishable by imprisonment, and do not involve injury to people or damage to property.
Factors to consider
When deciding whether to issue a warning, consider the:
‑ nature and circumstances of the offence
‑ nature and number of any previous offences
‑ the child’s or young person's attitude to the offence
‑ victim’s views on the matter.
Giving a warning
If you decide to give a warning, do so as soon as practicable after detecting the offence. Where possible, give it at a police station and
in the presence of a parent/guardian or nominated adult. (Refer to the ‘Children and young people as suspects’ section of Investigative
interviewing ‐ suspects requiring special consideration for information about who can be a nominated person).
Do not:
‑ use threats that cannot be enforced
‑ use words the offender does not understand
‑ talk down to the offender, or say so much that they ‘shut off’
‑ use wording that precludes a subsequent warning in the event of further offending.
You do not have to issue the warning yourself. It may be more effective if it comes from a respected member of the offender’s
community or an organisation (s210).
If you are in doubt about whether to warn, you can delay the warning in order to consult with your supervisor or Youth Aid, or to
consult further with the victim.
Informing parents and Youth Aid of warnings
If you give a warning, you must take these steps to inform the child's or young person's parents or guardians.
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StepAction
1
Inform the child’s or young person’s parents, guardians or caregiver in person or by telephone, in accordance with s8 of the Act
when a warning has been given.
Once this has been done, send the file to Youth Services. Include:
‑ brief details of the circumstances
‑ the particulars of the child or young person
‑ the particulars of the person who has care of the child or young person
‑ the name and address of any victim.
2
Youth Services check the child’s or young person’s name against NIA and decides whether to take follow‐up action.
3
Youth Services must give written notice of the offence and warning to the child or young person and the person having their care
(s212).
(If your district has a regular requirement for the notice in a language other than those supplied, obtain a translation through the
Youth Services Group at PNHQ).
4
Youth Services updates NIA and, if appropriate, initiates follow‐up action.
If you decide not to give a warning
If you decide not to give a warning all files are to be referred to Youth Aid following the completion of the investigation.
Considering victims before initiating a warning or alternative action
Before issuing a warning or initiating an alternative action plan, seek and consider the views of the victim. Ensure that the victim is fully
involved in the youth justice process by taking these steps. This is in keeping with youth justice principle s208(g) which requires the
interests of the victim to be taken into account and also the primary consideration relating to victims in s4A(2)(c).
StepAction
1
At the outset, record in the NIA Case Contact and Correspondence node. This should:
‑ accurately record the victim’s name, address and telephone number(s) and age in the file
‑ be updated whenever contact is made with the victim.2
2
If the victim is a child or young person, make contact and consult through a parent.
3
Give the victim accurate information on the Police’s options for dealing with the offender. If the offender is not to be prosecuted,
advise the victim and give the reasons.
4
If the offence requires more than a warning, complete a Victim Impact Statement.
For further information on dealing with victims, see the Victims (Police service to victims) chapter in the Police Manual.
Information about warnings is inadmissible
Where a child or young person has been warned or formally cautioned about any offence:
‑ no information about that warning or caution is admissible against the child or young person in any criminal proceedings
against them
‑ no evidence of the offence is admissible against the child or young person in any other criminal proceedings against them. (s213
)
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Referral to Youth Aid
Always refer child offenders under 10 years to Youth Aid
A child under 10 is not criminally liable but the offending must be reported to Youth Aid as the younger a child is at age of first offence
the higher the risk of them developing into a serious adult offender.
Youth Aid may consider whether there are grounds under section 14 for a child to be referred for a care and protection family group
conference (FGC). (While s14(1)(e) refers to children over 10 years and under 14 years, action under the other provisions of section 14,
e.g. s14(1)(d), may apply to everyone under 18 years of age).
Refer young persons to Youth Aid when a warning is not sufficient
If the offence is serious or the child or young person has a history of offending, a warning may not be sufficient. On the other hand, the
circumstances in which the child or young person is apprehended may not justify an arrest. In such cases, prepare a file to prosecution
standard, including victim’s details, contact numbers and reparation schedule, and forward it to Youth Aid. Do this promptly, as undue
delay can jeopardise the prosecution if the matter does ultimately go to the Youth Court (s322).
The Youth Aid Officer may consider alternative action and develop an alternative action plan that holds the child or young person
accountable but at the same time acknowledges their needs and addresses the causes of their offending.
Youth Aid to consider further referral to Youth Justice Coordinator
If a warning or alternative action is clearly inappropriate having regard to the seriousness of the offence and the nature and number of
previous offences committed by the child or young person, Youth Aid will then consult with a Youth Justice Co‐ordinator at OT with the
intention of having a family group conference convened.
(Under section 245 of the Act, unless a young person has been arrested, Youth Court proceedings cannot be instituted against a young
person unless a Youth Justice Co‐ordinator has been consulted and a FGC held).
Youth Aid action
Youth Aid officers will consider the circumstances of the referral and take these steps as appropriate.
Step Action
1
Find out the child’s or young person’s background by:
‑ checking NIA records
‑ making a home visit
‑ conducting enquiries, using your networks with schools and well‐being and community agencies.2
2
Use this information to help determine whether the child or young person should be dealt with by:
‑ warning, or
‑ alternative action, or
‑ referral for FGC, or
‑ prosecution following FGC.
See Factors to be considered when deciding action below.
3
The decision must be made promptly so that any charge subsequently filed cannot be dismissed under s322.
4
Youth Aid take the appropriate action as per the outcome of Step 2.
Factors to be considered when deciding action
When deciding whether a child or young person should be dealt with by way of warning, alternative action, referral for FGC or
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prosecution following FGC, consider:
‑ youth justice principles (see s4A(2), s5 and s208)
‑ nature and circumstances of the offence
‑ degree of involvement of the child or young person
‑ attitude of the child or young person to the offence (Remember that to be eligible for alternative action, the child or young
person must admit the offence. Do not, however, obtain a confession on the promise of such action)
‑ response of the child’s or young person’s whanau/family
‑ attitude of the family to the child or young person
‑ proposal to make reparation or apologise to the victim
‑ effect of the offence on the victim
‑ victim’s views on the proposed course of action
‑ the child’s or young person’s previous offending
‑ effect of previous sanctions imposed on the child or young person
‑ public interest ‐ does it require criminal proceedings?
‑ are custody or bail conditions required?
When deciding on an appropriate course of action, remember:
‑ the principles of the Act (s4A(2), s5 and s208)
‑ keep the plan clear and concise
‑ the course of action should:
‑ reflect the offence
‑ consider the victim’s interests
‑ address the causes underlying the offending
‑ assist the child or young person to develop within their whanau/family group
‑ be fair and achievable
‑ have a set time‐frame
Do not take further action if a warning alone will suffice.
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Alternative action
What is alternative action?
Alternative action involves Police choosing to address a child's or young person's offending without recourse to criminal proceedings.
It is a form of diversion completed under Police monitoring and supervision and is commonly called ‘youth diversion’ by those outside
of the Youth Justice sector.
Note: Any action other than warning the child or young person or referring for an FGC should be regarded and recorded as an
alternative action.
Note: Although no Family Group Conference can be held for Schedule 1A offences, Police is still required to consider alternative means
for Schedule 1A offences (under section 208(a)), as we are for all alleged offending by young persons. This enables Police to decide
whether an alternative action plan is appropriate for some 17 year olds alleged to have committed Schedule 1A offences. This is likely
to be a small minority of this group of 17 year olds and must be balanced with other considerations, particularly the primary
considerations of the public interest (including public safety) and accountability of the young person, and the victim’s interests
(section 4A(2)). If we decide to put in place an alternative action plan and the 17 year old does not complete the plan, we can charge
the 17 year old with the Schedule 1A offence.
Legislation requiring alternative action to be considered
Under section 208 of the Oranga Tamariki Act 1989, criminal proceedings should not be instituted against a child or young person if
there is an alternative means of dealing with the matter. This means alternative action is a valid option to address offending without
resorting to criminal proceedings. It is a practical response for children and young persons who come to Police notice for offending.
The alternative action process
The decision to give a child or young person an ‘alternative action’ is made by a Youth Aid Officer when they consider that a warning is
inappropriate having regard to:
‑ the seriousness of the offence, and
‑ the nature and number of previous offences committed.
The alternative action process involves the Youth Aid Officer meeting with the child or young person and their parents or caregivers
when an offence is alleged to have been committed. Together they develop a plan which may include elements that:
‑ aim to redress the harm done, make amends to the victim, if appropriate, address the child or young person’s offending‐related
risk factors, and
‑ hold them accountable.
The plan is recorded in writing and has a clearly defined timeframe within which it is to be completed.
If a plan is not agreed or is not completed the matter may be referred by Police to Oranga Tamariki for a Family Group Conference.
Aims and elements of alternative action plans
The core aims of an alternative action plan are to:
‑ hold the young person accountable for their actions
‑ make amends to the victim
‑ address needs that the child or young person may have which contribute to the risk of future offending.
Elements of a plan
The elements of a plan must be reasonable and achievable and may include, but are not limited to:
‑ a letter of apology to the victim
‑ reparation or financial restitution to the victim
‑ a donation to a nominated charity
‑ community work
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‑ attending a programme or counselling related to the offending‐related needs of the child or young person
‑ participating in a pro‐social activity/club
‑ re‐enrolling in school or a training course
‑ curfew or commitments not to associate with certain peers seen to be a negative influence or other restrictions.
(A more comprehensive list is found in the ‘National Guidelines for Police Alternative Action’ below.
‑
A erna ive Ac ions Guide ines June 20 9
1.91 MB
Risk and needs screening
Alternative action plans should be designed to address the needs of the child or young person that contribute to the risk of further
offending. Tools such as the Youth Offending Risk Screening Tool (YORST) assist with highlighting these needs. (See Risk factors for
youth offenders in this chapter for further information).
National Guidelines for Police Alternative Action
The National Guidelines for Police Alternative Action aim to assist Youth Aid Officers and their supervisors implement effective and
meaningful alternative actions with children and young people.
‑
A erna ive Ac ions Guide ines June 20 9
1.91 MB
Checklist
A checklist to assist Youth Aid Officers and supervisors is available in Police Forms> Children and Young Persons > Alternative Actions
Checklist.
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to be kept in custody.
Bail opposition must comply with the strict requirements of sections 238 and 239 of the OT Act. If statutory requirements are met, the
Youth Court will remand the child or young person into either:
‑ OT custody (s238(1)(d)), or
‑ rarely, Police custody (s238(1)(e)), or
‑ Youth Unit of a Prison (s238(1)(f)) where the young person is 17 years old.
Note: You
should seek immediate guidance from a Youth Aid officer if you want to oppose bail of a defendant aged 12‐17 years.
Preparing opposition to bail
Complete a POL128Y in Police Forms when opposing bail for a child or young person in the
Youth Court. Follow the guidance on the
POL 128Y itself when preparing your bail opposition.
If the young person is appearing in the District Court having been transferred subject to section 283(o) after conviction in a Youth
Court, the provisions of sections 7, 8 and 15 of the Bail Act will apply and you must complete an opposition to bail using a POL 128. In
these cases, follow the guidance on preparing bail opposition forms in the Bail chapter.
Bail and Schedule 1A offending
If a 17 year old is charged with a Schedule 1A offence then they may initially be granted bail by the Youth Court but, following first
appearance in the Youth Court, the proceeding will be transferred to the District or High Court where the 17 year old may be granted
adult bail. (See ‘Dealing with Schedule 1A offending’ in
Part 3 ‐ Criminal procedure in the Youth Court).
For that reason, it is necessary to identify which Court has granted bail when considering arrest for bail breach. If the 17 year old is
subject to adult Court bail then the protections of section 214 and 214A related to arrest for bail breach will not apply (s214B).
Further, it will be necessary to complete a youth opposition to bail form for the 17 year old’s Youth Court appearance but the adult
form if bail is to be opposed in the adult Court.
Victim's views on release of child or young person
For victims of an offence specified under section 29 of the Victims' Rights Act, Police
must make all reasonable efforts to ascertain the
victim's views on types of orders the court may make and inform the court of those views.
Police
must inform each victim, whether or not the victim's views have been ascertained, of:
‑ the order made by the court
‑ if the child or young person is bailed, any conditions of bail that relate to the safety and security of the victim or their immediate
family or require the child or young person not to associate with or contact the victim or their immediate family (s238(2)).
See ‘Notification rights for victims of serious offences’ in the Victims (Police service to victims) chapter for more information on bail
applications when section 29 applies.
Placing a child or young person in OT custody
Following the arrest of a child or young person, or in the case of a child who has been arrested and who may be subject to proceedings
relating to child offending in the Family Court, the child or young person must be placed in the custody of the Chief Executive OT as
soon as practicable and no later than 24 hours after the arrest if you have reasonable grounds for believing:
‑ the child or young person:
‑ is not likely to appear before the court, or
‑ may commit further offences, or
‑ it is necessary to prevent:
‑ the loss or destruction of evidence relating to an offence committed by the child or young person or an offence you have
reasonable grounds to suspect them of having committed, or
‑ interference with any witness in respect of any such offence, or
‑ the child or young person has been arrested under section 214A and is likely to continue to breach any condition of bail.
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(s235(1) & (1A))
Police obligations when placing a child or young person in OT custody
When placing a child or young person in OT custody, you must:
‑ deliver the child or young person to a social worker, and
‑ give details to the social worker in writing (form POL 235) relating to:
‑ the child or young person’s identity
‑ the circumstances of the arrest
‑ the date and time of the intended appearance of the child or young person before the court having jurisdiction over the
matter(s).
(s235(2))
The 24 hour time limit does not:
‑ allow you to hold the child or young person solely for the purpose of making further enquiries,
‑ allow you to delay contacting OT solely to keep the child or young person in Police custody for the maximum period of time.
It is important to advise OT as soon as possible to allow the social worker sufficient time to arrange for a suitable placement. A lack of
resources, such as a bed, on the part of OT should not affect custody transfer timeframes.
Record in the custody module, in whose custody the child or young person is being placed.
Note: Once the child or young person is released into OT’s custody, they then become the social worker's responsibility. You can make
recommendations about the type of custody but the final decision is with the social worker.
Holding in Police custody
There is
no provision for keeping a
child in Police custody for more than 24 hours.
A
young person may be may be detained in Police custody for more than 24 hours and until their appearance in court only if a joint
certificate has been obtained and signed by a delegate of the Chief Executive of OT and senior sergeant (or above). These two people
must be satisfied on reasonable grounds that holding a young person for more than 24 hours is necessary where:
‑ the young person is likely to abscond or be violent, and
‑ suitable OT facilities for the detention in safe custody of the young person are not available.
A joint certificate on the POL 236 must be completed by Police and the OT delegate in these situations. You must provide a copy of this
certificate to the Commissioner within 5 days and a written report explaining:
‑ the circumstances in which the certificate was issued, and
‑ the duration for which the young person was detained or is likely to be detained in Police custody.
Do this by emailing the joint certificate to this
(s236 (1) & (2))
See the People in Police detention chapter for the procedures to be followed when children and young persons are held in Police
custody or court cell blocks.
See Manage Bail/Remand for Youth aged 14 to Under 18 process
‑
Manage Bai Remand or You h aged 4 o Under 8 process (Ju y 20 9)
339.31 KB
Note the requirement to keep children and young persons separate from adults.
Youth justice residences
See the Ministry for Children, Oranga Tamariki (Youth Justice) webpage (www.orangatamariki.govt.nz) for information about youth
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justice residences.
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Breaches of bail (children and young persons)
Introduction
When dealing with a child or young person, the provisions of the Bail Act 2000, including the power to arrest for breach of bail under
section 35 of that Act must be read subject to the provisions in the Oranga Tamariki Act 1989.
When can you arrest without warrant for a breach of bail
You may
only arrest a child or young person for a breach of bail, including a breach of electronically monitored (EM) bail:
if …
and…
you are satisfied on reasonable grounds that an arrest is necessary that proceeding by way of summons (where that is an option)
to:
would not achieve that purpose.
(s214(1) OT Act)
‑ ensure the appearance of the child or young person before
the court, or
‑ prevent the child or young person from committing further
offences, or
‑ prevent the loss or destruction of evidence relating to an
offence you suspect the child or young person has
committed, or
‑ prevent interference with any witness to the offence…
OR…
the child or young person has been released on bail
you believe on reasonable grounds that the child or young person:
‑ has breached a condition of that bail,
and
‑ has on 2 or more previous occasions breached a condition
of that bail (whether or not the same condition). (s214A OT
Act)
Arrests may be challenged requiring the Youth Court prosecutor to establish that the conditions of section 214 or 214A were met at the
time of the arrest.
Key factors to consider before arresting under section 214A
The first consideration when dealing with a child or young person who has breached a condition of their bail and has on two or more
previous occasions breached a condition of that bail is whether it is appropriate to return them to the custody of their parents or
caregiver. This response enables Police to deal appropriately with less serious breaches that do not require or justify the arrest of the
child or young person.
Police should only arrest a child or young person for bail breaches with the intention of providing the court with information and
recommendations to enable it to direct a more effective bail management plan or custody of the child or young person.
Procedures for responding to bail breaches
You must follow these steps when responding to bail breaches. (See also responding to breaches of electronically monitored (EM) bail
below if applicable).
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StepAction
1
Seek an explanation from the child or young person for the breach.
2
Consider if the child or young person can be returned home and placed into the care of their parent, caregiver or guardian.
(This
is always the primary consideration).
3
If the child or young person is returned home, forward the file to Youth Aid section.
4
Consider giving a warning for breach
5
Only arrest if the criteria in section 214(1) or 214A are met and in the case of section 214A, you have approval to do so. See Arrest
for two or more bail breaches under section 214A below for more information.
6
If you are placing the child or young person before the court:
‑ oppose bail, or
‑ seek amendment of bail conditions, or
‑ seek a warning from the judge.
7
If necessary, consider custodial options following arrest. (These are set out in sections 234, 235, and 236). Young persons
detained in police custody for more than 24 hours should only be those whose bail you wish to oppose.
8
Report all arrests under section 214 to the Commissioner, using the Child/Young Person Arrest/Removal notification in Microsoft
Outlook.
Responding to breaches of electronically monitored (EM) bail
The Department of Corrections has primary responsibility for EM bail including:
‑ writing EM bail assessment reports for the courts
‑ inducting defendants who have been granted EM bail
‑ overseeing, with the assistance of a monitoring company, the electronic monitoring of defendants subject to EM bail (EM
bailees), and
‑ managing EM bailees’ curfew schedules and approving their movements.
In the case of children and young persons, this is done in consultation with OT.
Police are responsible for:
‑ responding to alarm notifications and breaches, as directed by the Police Communications Centre, and
‑ taking all enforcement action in relation to EM bail, including attending breach of bail hearings.
See information in the Bail chapter on responding to:
‑ EM bail alarm activations involving children and young persons
‑ breaches of EM bail and situations when EM bail addresses become unsuitable.
Arrest for two or more previous bail breaches under section 214A
Before arresting under section 214A, you must be certain that the child or young person has:
‑ been released on bail conditions,
and
‑ breached a condition of that bail,
and
‑ on 2 or more previous occasions breached a condition of their bail.
Note: It is not appropriate to conduct multiple bail checks in a short period of time solely to generate repeated bail breaches so
that a subsequent arrest can be made.
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The power to arrest a child or young person for 2 or more breaches of their bail conditions must be used appropriately and only when
other options to deal with the child or young person are not appropriate (e.g. issuing a warning, or returning them to their caregivers).
Approval required to arrest under section 214A
Before making an arrest under section 214A, you must have approval from a Youth Aid Sergeant, or in their absence, from your own
supervising Sergeant (or above) or a qualified Youth Aid officer.
Using warnings for breaches of bail conditions
Exercising discretion in bail enforcement
Use discretion in bail enforcement to make the best decision in the circumstance for the child or young person and making more
effective use of Police and court resources. Achieving this requires:
‑ O/C cases and Police prosecutors to seek only appropriate bail conditions in the first instance
‑ police to consider referring matters to Youth Aid or warnings, rather than arrest, when policing bail conditions.
Bail conditions
Bail conditions must have a clear and reasonable link to the child’s or young person’s current charges and criminal and bail histories.
The Bail Act requires conditions that ensure a child or young person appears in court on the date set, does not interfere with evidence
or witnesses and does not commit offences while on bail.
Approval for issuing warnings for breaches of conditions
All bail breach warnings should be approved by your supervisor.
Reporting arrests for bail breaches to the Commissioner
See the earlier ‘Reporting the arrest’ topic. For bail breach arrests, your report must also specify:
‑ whether section 214 or 214A was used to invoke this power
‑ if arrest was on the grounds of repeated breaches of bail (s214A), the name of the supervisor who approved the arrest without
warrant.
For Schedule 1A offences, note also the Bail and Schedule 1A offending requirements in the earlier ‘Opposition to bail’ topic.
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Prosecution and family group conferences
Arranging an FGC
Where a young person or child is not arrested but prosecution may still be appropriate, an Intention to Charge Family Group
Conference (FGC) will be required. To do this refer the matter to Youth Aid who will:
‑ refer the matter to the OT Youth Justice Co‐ordinator
‑ consult with the OT Youth Justice Co‐ordinator.
(s245)
If a child or young person has been arrested and charged a FGC may be convened after an initial Youth Court hearing.
Referral to the Youth Justice Coordinator
Referral to the Youth Justice Coordinator must include the following information:
‑ POL 3040 Family Group Conference referral form (in Police Forms > Children and Young Persons)
‑ Caption summary
‑ victim details
‑ reparation schedule and supporting documentation
‑ alternatives to prosecution that have been considered
A youth advocate will be appointed by OT for an Intention to Charge FGC to represent the child or young person where the offence has
a sentence of 10 years or more imprisonment.
Consultation
The Youth Justice Co‐ordinator will want to be assured that all alternatives have been considered before referring for a FGC. In line
with the section 4 purposes, section 5 and section 208 principles of the Act, consultation will involve discussions between the Police
and the coordinator to look for alternatives to prosecution (e.g. does this really need to go to court) and to agree on the objectives for
the FGC and how best to achieve them. The discussion should also include who should attend the FGC).
(s245)
Consultation might conclude with:
‑ the matter going no further
‑ Police taking alternative action (considering care and protection factors, and Family Court orders), or
‑ proceeding to prosecution.
Time frames for convening FGCs
The timeframes for convening and completing a FGC are outlined in this table.
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offending) the functions of the conference are:
‑ to consider any matters relating to the care or protection of the child
‑ where the conference is agreed that care or protection is needed, make decisions, recommendations and plans consistent with
the principles set out in the Act
‑ to review these decisions and plans from time to time.
FGC for a child's serious offending ‐ Youth Court
Where the conference is convened pursuant to section 247 (b) when Police are considering prosecution under s272 (1)(b) or (c), the
functions of the conference are to consider whether:
‑ the public interest requires criminal proceedings to be commenced
‑ the child is in need of care or protection as specified in s14(1)(e) and if so whether public interest requires that the matter be
dealt with by commencing Family Court proceedings or in "some other way".
Refer to the Solicitor‐General's Prosecution Guidelines for guidance on 'public interest' considerations.
Formulating recommendations and plans ‐ child and young person
The FGC formulates a plan for the child or young person making recommendations (which may include prosecution). Common
elements of FGC plans include an apology, reparation, working for the victim or community, a donation to charity, curfews, counselling
or training programmes. The FGC may also recommend that proceedings be discontinued or that a formal Police caution be issued.
Anyone legally entitled to attend an FGC (including the victim of any offending) can assist in making the plan. They can agree or
disagree with any recommendation made by the family group, and if they disagree, the matter is likely to progress to the Family Court
or Youth Court. If the conference is able to reach agreement on part of the plan, these agreement areas are recorded. The judge should
be made aware of the points of agreement as well as disagreement.
The plan must be approved by the judge and if the young person completes the plan agreed at the FGC, the charge is usually
withdrawn or discharged.
Who can attend a FGC?
Section 251 of the Act lists who is entitled to attend the FGC.
Note the victim is entitled to attend the FGC with a reasonable number of support persons. Alternatively, the victim can nominate a
representative to attend on their behalf with a reasonable number of support persons.
Police are represented at the FGC by Youth Aid officers.
The O/C case is not an entitled person under section 251. However, in serious or complicated cases, the Youth Aid officer may consider
arranging for the O/C case to accompany them to the conference. This requires the permission of the child’s or young person’s family
group and if permission is granted, the O/C case cannot influence any plan or penalty unless invited to by the family group. However, if
the O/C case attends in place of a Youth Aid Officer, they are the Police representative, with all the associated rights.
No person, including the child or young person, can be compelled to attend a conference.
The family group conference must be convened in accordance with the Act.
Related information
See also 'Procedures for family group conferences and afterwards' below.
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Fingerprinting and photographing children and young persons
Identifying particulars
“Identifying particulars” is defined in section 32(5) of the Policing Act 2008 as any or all of the following:
‑ the person’s biographical details (e.g. the person’s name, address and date of birth)
‑ the person’s photograph or visual image
‑ impressions of the person’s fingerprints, palm‐prints, or footprints.
When can fingerprints and or photographs be obtained?
Police may only obtain fingerprints and/or photographs of a child or young person:
‑ under section 32 of the Policing Act 2008 if they are in the lawful custody of Police and are detained for committing an offence
(they must be at a Police station or another place being used for Police purposes); or
‑ under section 33 of the Policing Act 2008 when the child or young person is suspected of committing an offence and Police
intend to prosecute by way of summons.
In some situations, DNA samples may also be obtained from the child or young person. (See Youth DNA Sampling)
Given a large number of burglary and vehicle offences are committed by young offenders, the collection of their fingerprints and
photographs when in lawful custody or on summons is a crucial part of policing in the community. Collection of fingerprints and
photographs must be done in a lawful and ethical manner that protects the rights afforded to children and young persons under the
Oranga Tamariki Act 1989 (the Act) and the New Zealand Bill of Rights Act 1990.
The objects and principles of the Act (s4(1)(i)) include holding children and young persons who commit offences accountable for their
offending. Fingerprints and/or photographs obtained outside the law and these guidelines are inadmissible as evidence.
Factors to consider when collecting fingerprints and photographs
If there has been no arrest and section 33 does not yet apply because a FGC has not been completed, then fingerprints and
photographs cannot be collected from a child or young person.
When fingerprints and/or photographs are already held
The fact that Police may already hold fingerprints and/or a photograph for the child or young person does not preclude you from
collecting further fingerprints and photographs under section 32 or 33. These are collected as part of each particular arrest/charging
process. Between 70‐80% of youth fingerprints and photographs taken under section 32 or 33 end up being destroyed due to the case
outcome (see retention of fingerprints below). Therefore, Police should collect further fingerprints and photographs from youth when
they are in lawful custody or on summons, in accordance with s 32/33 of the Policing Act.
Do not:
‑ take fingerprints or photographs from any child
under ten years unless required for elimination purposes (these will be
destroyed once the elimination comparison has been carried out). The Crimes Act 1961 sets the minimum age of criminal
responsibility at ten years.
‑ collect the fingerprints or photographs of any child/young person who is with Police by reason of a place of safety warrant (s39
of the OT Act) or an unaccompanied child/young person (s48 of the OT Act). These are care and protection provisions only and
youth justice interventions cannot be applied.
Retention of fingerprints and photographs
Fingerprints and photographs of children and young persons can legally be retained when taken as part of the arrest or summons
process (s32 and 33 Policing Act).
Fingerprints and photographs taken by the arrest or summons process must be destroyed when:
‑ a decision is made not to charge the child/young person in respect of the offence for which the fingerprints were taken; or
‑ criminal prosecution proceedings that are commenced against the child/young person in respect of the offence for which the
particulars were taken do not end with:
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‑ a conviction for the offence for which the fingerprints were taken, or
‑ an order made by the Youth Court under section 283(a)‐(o) of the OT Act (s34 and 34A Policing Act 2008).
Up until the time at which sections 34 and 34A apply, fingerprints and photographs can be legally retained and searched against the
unsolved crime prints database (ABIS). Note that cases need to be closed promptly and Youth NIA updated as soon as it is clear that
criminal proceedings will not be commenced, i.e. there is no possibility of a Youth Court order being made. You cannot delay making
your decision on whether to commence proceedings in order to extend the period of retention of fingerprints and/or photographs.
Ensuring compliance with destruction requirements
To ensure compliance with the requirements for destruction, you
must regularly update the active youth case folder and related
fingerprints and photographs, with progress/outcomes. This is the only source of information the National Biometrics Information
Office can use to make a decision on whether to retain or destroy a set of youth fingerprints and / or photographs.
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Truancy
Background
Alienation from a young person’s education can result in significantly diminished opportunities and has been found to be a strong
indicator of violence later in life, as well as being anticipatory of delinquency, substance abuse, suicidal risk, unemployment and early
parenting. Because of these indicators there is considerable concern surrounding the links between truancy and crime.
This is not simply a matter of truancy or skipping school. Many absences, especially among younger students, are excused by parents
or caregivers, whether justified or not. Often absences are tied to health problems, such as asthma, diabetes, and oral and mental
health issues. Some are connected to a lack of parental control or apathy towards education due to a parent’s own negative
experiences.
Given the concerning link between truancy and crime there is an expectation that Police address truancy, at least on an acute level,
with truants who are located being returned to school or home.
Legal requirement to attend school
Under sections 35 to 46 of the Education and Training Act 2020, every person who has turned six and is not yet 16 must be enrolled at
and attend a school, unless:
‑ the parent has been issued with a certificate exempting the person from enrolment (in these cases, the person may be required
to enrol at a correspondence school)
‑ the person has been exempted from attendance by the principal (this exemption cannot exceed five days).
Responsibility for ensuring attendance and dealing with truancy
The responsibility for ensuring enrolment and attendance rests with parents or guardians. The responsibility for dealing with truancy,
including prosecution, rests with school Boards of Trustees. However, the harm caused by chronic absenteeism is well documented
and although it is a care and protection issue, it clearly impacts on the levels of crime and victimisation in New Zealand.
Police action relating to truancy
Police action in relation to truancy includes:
‑ checking truants encountered during routine patrols or localised crime prevention operations and, if required, returning them
to their school or home
‑ seeking out truants at suspected gathering places during truancy prevention patrols
‑ helping schools organise school‐based and community‐based truancy detection programmes
‑ providing Boards of Trustees with information, when it is available, to enable them to action care and protection proceedings
under the joint OT/Ministry of Education protocol on truancy
‑ at the discretion of the District Commander and under the authority of Boards of Trustees, assisting with the prosecution of the
par nt of p r i t nt truant (Advi on pro
ution i availabl from your lo al pro
ution offi or Youth S rvi
Co
ordinator).
Powers when dealing with truants
Section 49(1) of the Education and Training Act 2020 gives Police the power to
detain any person appearing to be aged 5 to 15 years
(not yet turned 16) and who is not then at school, and question the person as to:
‑ their name and address
‑ the school (if any) at which the person is enrolled and its address, and
‑ the reason for the person's absence from school.
(Obviously this must be when schools are open and operating).
If not satisfied by the person's answers that they have a good reason for not being at school, Police may take the person to:
‑ the person's home, or
‑ the school at which the officer thinks the person is enrolled.
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(s49(3))
While it is an offence to intentionally obstruct or interfere with an attendance (truancy) officer exercising their powers under section 49
of the Education and Training Act (s242), the Act does not provide any powers of arrest. As a last course of action, it may be necessary
to arrest the person under section 23 Summary Offences Act 1981 for resisting and obstructing Police. Remember that s214 OT Act
must apply if arresting a child or young person under these circumstances.
For further information about dealing with truants see the Ministry of Education website.
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Table of Contents
Table of Contents
2
Overview
3
Purpose of Part 3 ‐ Criminal procedure in the Youth Court
3
See also ‐
3
Adult criminal procedures
3
Summary
4
How do young persons get to court?
4
Initial actions following arrest
4
Three stages for criminal procedure in the Youth Court
5
Administration stage
6
Youth disclosure (minimum)
6
First appearance
6
Bail
6
Custody FGC
6
Section 9 Criminal Procedure (Mentally Impaired Persons) Act 2003 ‐ Disability Hearings
6
Entry of a plea
6
Involvement of the Crown Solicitor
7
Persons entitled to be present at Youth Court
8
Procedure where child or young person jointly charged
8
When a ch d s jo nt y charged w th others
8
When a young person s jo nt y charged w th others
9
Case review stage
10
Case management discussions
10
Case review event
10
Trial stage
11
Judge alone trial in the Youth Court
11
Jury trial in the District Court or High Court
11
Sentencing the child or young person
11
Further information
11
Dealing with Schedule 1A offending
12
Introduction
12
Dealing with family group conferences when there are related charges
12
Court process
13
Entry of a plea
13
Determining related charges
13
Transferring related charges
14
Mixed pleas for related charges
14
Joint trials
14
Transfer of proceedings back to the Youth Court
15
Transitioning 17 year olds with proceedings underway on 1 July
16
Part 3 - Criminal procedure in the Youth Court
Overview
The ‘Youth justice’ chapter is comprised of 3 parts:
‑ Part 1 ‐ Introduction to youth justice
‑ Part 2 ‐ Responding to youth offending and related issues
‑ Part 3 ‐ Criminal procedure in the Youth Court
Purpose of Part 3 ‐ Criminal procedure in the Youth Court
This Part 3 of the ‘Youth justice’ chapter details:
‑ processes applying in the three stages of criminal procedure in the Youth Court:
‑ Administration stage
‑ Case Review stage; and
‑ Trial stage
‑ the processes for dealing with Schedule 1A (OT Act) offences
‑ transitional provisions applying to proceedings involving 17 year olds already underway at 1 July 2019 when the age for youth
justice purposes was raised to 18.
See also ‐
Part 1‐ Introduction to youth justice for an overview of:
‑ the criminal responsibility of children and young persons by age
‑ the effect of age on proceedings, including whether proceedings can be brought against a child or young person and if so, the
court (Family, Youth or District) which will deal with the matter depending on age at time of offending and when proceedings are
brought.
Part 2 ‐ Responding to youth offending and related issues for details of the general processes for dealing with children and young
persons who offend, and the options that may be considered in response to their offending and related issues.
Adult criminal procedures
See the seven part Criminal procedure chapter for the procedures applying to adult offenders.
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Summary
How do young persons get to court?
There are only two ways that a young person can get to court ‐ if they:
‑ are arrested and placed before the court, or
‑ have been to a FGC (s247(b)), and summonsed to attend.
A charging document will have been filed. A prosecution file should be prepared that meets the standards of the national file order.
See Prosecution file and trial preparation
An exception is where the young person is 17 years old and is alleged to have committed a Schedule 1A offence.
Initial actions following arrest
If the young person is arrested, and a charging document is filed, the arresting officer is to contact OT to advise of the date of first
appearance, and whether bail is being opposed. Call your local OT office or phone 0508 FAMILY.
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Three stages for criminal procedure in the Youth Court
Like the adult jurisdiction, criminal procedure is divided into three stages in the Youth Court:
‑ Administration stage
‑ Case review
‑ Trial stage.
The diagram at the link below shows the route of proceedings through the Youth Court, District Court and High Court where the
offender is a youth at time of filing charges and the offence is
not a Schedule 1A offence.
‑
Manage Cour Process You h (Ju y 20 9)
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Administration stage
The administration stage covers the time from when the charging document is filed, to the entry of a plea.
Youth disclosure (minimum)
After a charging document has been filed, prepare disclosure following procedures in the Criminal Disclosure chapter.
All relevant
information on a file should be provided for initial disclosure no later than the first appearance, not just the minimum information
required by s12(1) Criminal Disclosure Act 2008. Ensure a copy of the FGC outcome document from the YJ Coordinator is disclosed.
If you know who the advocate is, provide initial disclosure to them before the first appearance.
First appearance
Ensure a Youth Aid Sergeant reviews the file to ensure it meets the prosecutorial standard.
Ensure the prosecution file is provided to the prosecutor before the first appearance. The prosecutor may be from Youth Aid or from
the Police Prosecution Service.
Bail
Proposed bail conditions would usually be discussed and agreed at a section 247(b) FGC. Note, a FGC cannot be convened for a
Schedule 1A offence.
The proposed conditions should be entered in NIA against the charge, and a copy provided to the prosecution to offer to the Judge at
first appearance. Where a young person has been arrested and brought to court immediately, discussions in relation to appropriate
conditions would be had with defence and OT service where possible before the child or young person appears in court.
See ‘Notification rights for victims of serious offences’ in the Victims (Police service to victims) chapter for more detail on ascertaining
victim's views and notifying victims of bail.
Custody FGC
If the young person is remanded in custody following first appearance, a custody FGC may be called (under s249(3)) to discuss the
possibility of getting the young person out of custody and on an alternative (i.e. bail). If a FGC is required, it should be convened within
7 days, and completed within 7 days after it is convened. Note, a FGC cannot be convened for a Schedule 1A offence.
Section 9 Criminal Procedure (Mentally Impaired Persons) Act 2003 ‐ Disability Hearings
If there are concerns that the defendant may be 'unfit to stand trial', the court may adjourn proceedings in order for a hearing to be
held under section 9 Criminal Procedure (Mentally Impaired Persons) Act 2003. It is likely that this process will be triggered at first
appearance or soon after, and it may have been identified at the pre‐charge FGC. If the section 9 procedure is commenced, it must be
completed in full before any of the 'standard' criminal procedure processes are recommenced.
If the offence is one that comes under section 29 of the Victims' Rights Act and the young person is found unfit to stand trial and is
detained in a hospital or facility, the victim must be informed of their right to register to receive notice about the young person. For
more detailed information see ‘Notification rights for victims of serious offences’ in the Victims (Police service to victims) chapter.
Entry of a plea
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If the young person…
then…
does not deny the charge/s
the matter is remanded for a FGC:
‑ s247(d) ‐ dispositon
‑ s261 ‐ care and protection
‑ s281B ‐ Court directed FGC (at any time)
(See Procedures for family group conferences and afterwards in ‘Part 2 ‐
Responding to youth offending and related issues’ for how the FGC works).
denies the charge and is charged with a category 3 or 4
the young person will also be asked whether they elect trial by jury. If jury
offence (other than murder/manslaughter)
trial is elected, the matter is adjourned for a case review hearing.
denies the charge and is charged with a category 2
the matter is adjourned directly to a judge‐alone trial. There are no case
offence, or the jury trial is not elected on a category 3 or 4 management discussions for these cases, unless directed by a Judge.
matter
For more detailed information refer to the Court Process maps below
‑
Manage Cour Process You h (Ju y 20 9)
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Denial of a charge / entry of a not guilty plea is the trigger for full disclosure. (See the Criminal disclosure chapter). Full disclosure
should be provided as soon as reasonably practicable after the child or young person denies the charge before the Court. For cases
that are proceeding to a case management meeting, full disclosure should be provided to the defence by a reasonable time before the
meeting.
All not guilty files should be transferred to the Police Prosecution Service. If there are any issues that arise from discussions with the
Youth Advocate relating to defences, these should be documented on the file before being provided to PPS or the Crown Solicitor.
Involvement of the Crown Solicitor
The Crown Solicitor assumes responsibility for prosecuting all charges against 12 and 13 year olds.
The Crown Prosecution Regulations 2013 set out the timings for when the Crown Solicitor assumes responsibility for
youth
prosecutions. Those timings are summarised in the table below:
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Offence
The Crown assumes responsibility from…
Murder and manslaughter
the time at which the proceeding is transferred to the High Court under s36(2). Murder
and manslaughter offences have their first appearance in the Youth Court, and then
are transferred to the High Court for second appearance onwards.
All category 4 offences other than murder or
the defendant’s second appearance in the Youth Court.
manslaughter
All specified offences in the list provided as
the time a plea is entered in the Youth Court.
Appendix A
All offences not included in the list where the the time at which the proceeding is adjourned for trial callover by the Youth Court,
defendant elects jury trial
whether under s57(3)(b) of the Act or otherwise.
Any other offence which the Solicitor‐General the time the Solicitor‐General gives the direction.
directs, because of its complexity or high
public profile, should be tried by the Crown
See also the Memorandum of Understanding between Police and Crown Law, Schedule D: Crown Appearances in the Youth Court, for
more details about when a Crown Solicitor will appear in the Youth Court and the timing of those appearances.
Persons entitled to be present at Youth Court
The victim, or their representative, and one or more support persons, are entitled to attend Youth Court hearings (s329).
Procedure where child or young person jointly charged
The prosecutor must ensure that notification is given to the Court for charges to be heard together under s138 CPA. Where a child or
young person is jointly charged with another child, young person or adult, the jurisdiction for the trial generally follows the election of
the younger party. If the Crown is to assume responsibility for one charge, they will assume responsibility for all other charges and all
co‐offenders.
When a child is jointly charged with others
This table summarises how cases proceed when a
child (Child A) is jointly charged with others:
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When child A is jointly
and if child A chooses Judge‐ alone trial, then …
or if child A elects trial by jury, then…
charged with ...
Child B who chooses
Judge‐alone trial in the Youth Court for both
Jury trial for child A and Youth Court trial for
Judge‐alone trial…
child B.
Child B who elects trial by Judge‐alone trial in the Youth Court for child A, and Jury Jury trial for both
jury…
trial for child B
Young person who
Judge‐alone trial in the Youth Court for both
Jury trial for both, unless the Youth Court orders
chooses Judge‐alone
Youth Court trial for the young person
trial…
Young person who elects Judge‐alone trial for child A, and Jury trial for the young Jury trial for both
trial by jury…
person
Adult who chooses Judge‐ Judge‐alone trial for both, unless Youth Court orders
Jury trial for both
alone trial…
Judge‐alone trial in the District Court for the adult
Adult who elects trial by Youth Court Trial for child A, and Jury trial for the adult
Jury trial for both
jury…
When a young person is jointly charged with others
This table summarises how cases proceed where a young person is jointly charged with others:
When young person A is
and young person A chooses Youth Court trial, then… or young person A elects trial by jury, then…
jointly charged with ...
Child who chooses Judge‐ Youth Court trial (both)
Jury trial (young person A) and Youth Court trial
alone trial
(child)
Child who elects trial by
Jury trial for both, unless the Youth Court orders a Youth Jury trial for both
jury
Court trial for the young person
Young person B who
Youth Court trial for both
Jury trial for both, unless the Youth Court orders
chooses Judge‐alone trial
Youth Court trial for young person B
Young person elects trial by Jury trial for both, unless the Youth Court orders Youth
Jury trial (both)
jury
Court trial for young person A
Adult chooses Judge‐alone Youth Court trial (both), unless Youth Court orders Judge‐ Jury trial for both
trial
alone trial in the District Court for the adult
Adult elects trial by jury
Jury trial for both unless Youth Court orders Youth Court Jury trial for both
trial for young person A
Note: See ‘Joint trials’ in the ‘Dealing with Schedule 1A offences’ topic for information about 17 year olds charged with a
Schedule 1A offence who are to be jointly charged.
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Case review stage
If the young person does not elect trial by jury, the case skips over the Case Review stage, and goes directly to the Trial stage.
Case management discussions
If the child or young person elects trial by jury for a category 3 or 4 offence (other than murder/manslaughter), then mandatory case
management discussions must occur between the prosecutor and defence counsel. Whether it is the Police Prosecutor or a Crown
Solicitor undertaking these discussions will be determined in accordance with the Crown Prosecution Regulations (see Involvement of
the Crown Solicitor above).
If at case management discussions there are new charges to be filed, the prosecutor must arrange for the charges to be electronically
filed before the case review event. If charges are to be amended, indicate this on the CMM for the Judge to action.
See the Criminal Procedure ‐Review stage chapter for detailed information about case management discussions, the requirements of
the case management memorandum, and the case review hearing.
Case review event
Children and young persons who have elected trial by jury are given the opportunity at the case review event to withdraw their
election. This should be signalled on the Case Management Memorandum that is filed by the defence five days prior to the case review
event.
If at case review:
the matter is…
the plea is changed to ‘not adjourned for a disposition FGC. The prosecutor should transfer the file back to Youth Aid who will appear
denied’
at the FGC.
charge/s are still denied
set down for trial and a trial callover date is set. If the Crown Solicitor has not yet assumed responsibility
for the file, they will do so now.
Parties may be required to prepare submissions for the case review hearing on whether it is in the interests of justice for trials to be
separated for jointly charged offenders, as per section 277 OT Act.
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Trial stage
Judge alone trial in the Youth Court
Refer to the Criminal Procedure‐ Trial Stage chapter for information on the Judge Alone trial procedure, including pre‐trial
applications for evidence admissibility. The procedure will be the same in the Youth Court as it is in the District Court.
Jury trial in the District Court or High Court
Refer to the Criminal Procedure‐ Trial Stage chapter for information on the jury trial procedure, including pre‐trial applications for
evidence admissibility, filing of formal statements, trial callover, and the jury trial itself.
Sentencing the child or young person
When considering making an order under section 283 of the Oranga Tamariki Act 1989, a Youth Court judge must take into account the
impact of the offending on the victim. The victim has the same rights as in the adult jurisdiction to attend the hearing and submit a
victim impact statement. For more detailed information on victim impact statements see the Victims (Police service to victims)
chapter.
For more information see Manage Court Youth aged 14 to under 18 process
‑
Manage Cour Process You h (Ju y 20 9)
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Further information
Refer to the Youth Court of New Zealand website (http://www.justice.govt.nz/courts/youth) for information about the processes
followed by Youth Courts.
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Dealing with Schedule 1A offending
Introduction
The Oranga Tamariki Act includes a list of serious offences in Schedule 1A such as aggravated robbery and sexual violation. Where a 17
year old is charged with one of these offences, they wil have their first appearance in the Youth Court and wil then be transferred to the
District Court (for a category 3 offence) or the High Court (for a category 4 offence)(s275(2)(aa) and (ab)). However, once a proceeding is
transferred to the adult courts under section 275 in some circumstances it can be transferred back to the Youth Court to be dealt with in
that court, unless the interests of justice require the proceeding to remain, and be dealt with, in the adult courts (s276A). This is subject to
the information about related charges and joint charging set out below.
Schedule 1A of the Oranga Tamariki Act comes into force on 1 July 2019. The Schedule outlines the serious offences applying to 17 year
olds from 1 July for proceedings that start on or after 1 July. This includes a 17 year old charged on 1 July for offending that is alleged
to have happened prior to that date.
Many of the processes for 17 year olds who are alleged to have committed a Schedule 1A offence are different to the processes for
other young people. The following section outlines the processes for 17 year olds who are alleged to have committed an offence in
Schedule 1A. This section provides exceptions to the standard process for young people and should be read in conjunction with the
rest of this chapter.
For an overview see the 'Manage Schedule 1A Offence Process ‐ Offenders aged 17 years' below.
‑
Manage Schedu e A O ence Process O enders aged 7 yrs (Ju y 20 9)
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In this section:
‑
Related charge ‐ means a charge for an offence not specified in Schedule 1A that the Youth Court has determined is related to a
charge for an offence specified in Schedule 1A
‑
Schedule 1A offence ‐ means an offence specified in Schedule 1A
‑
Non‐Schedule 1A offence ‐ means an offence that is not specified in Schedule 1A and that is within the jurisdiction of the Youth
Court
Dealing with family group conferences when there are related charges
There are no family group conferences for Schedule 1A offences. Where a 17 year old is alleged to have committed a Schedule 1A
offence, because a Schedule 1A offence is not in the jurisdiction of the Youth Court (s272(3)(baa)), it cannot be referred to a family
group conference at any stage.
In order to bring the non‐Schedule 1A charges to the Youth Court to determine whether they are related to a Schedule 1A charge, the
Act provides for family group conferences to not be required, suspended, or discontinued.
An intention to charge family group conference
is not required where a charge for a Schedule 1A offence has been filed, Police intends
to commence criminal proceedings against the 17 year old for a non‐Schedule 1A offence, and the prosecutor intends to seek a
determination that a non‐Schedule 1A offence is related to the Schedule 1A charge (s247A(1) refers).
In these circumstances, Police is able to file a charge for the non‐Schedule 1A offence and summons the 17 year old to appear in the
Youth Court. Because section 245 of the Act does not apply in these circumstances, sections 14 and 28 of the Criminal Procedure Act
apply without restriction
and with such modifications as are necessary (through section 321(1) and Schedule 1 of the OT Act).
A court referred family group conference
is not required for a non‐Schedule 1A charge that is brought before the court following
arrest, where the prosecutor seeks a determination from the Youth Court that the charge is related to a Schedule 1A charge.
The Schedule 1A charge must be filed previously or at the same time as the non‐Schedule 1A so that the Youth Court can consider
whether the charges are related. It does not matter that the Schedule 1A might have already been transferred up to the adult court.
A family group conference (whether convened under section 247(b), (c), or (d)
is suspended when a charge for a Schedule 1A offence is
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filed and the prosecutor intends to seek a determination that the charge or offending for the non‐Schedule 1A offence that is being
dealt with by the family group conference is related to the Schedule 1A charge (new section 247A(3) and (4) refer).
The family group conference is suspended until the Youth Court makes a determination. If the Youth Court determines the charges are
related, the family group conference
is discontinued. If the Youth Court determines that the charges are not related, the family group
conference can be reconvened.
Police has a discretion whether we seek a determination that charges are related. You should consider what stage the family group
conference is at before making this decision. It may not be in the interests of parties to suspend the family group conference process if
a plan has been agreed and the 17 year old has already started completing the plan.
The exclusion of the requirement to have a family group conference is triggered by Police intending to seek a determination of the
charges being related. Without that intention on our part the family group conference goes ahead.
Court process
The diagrams in the document below show the route of proceedings through the Youth Court, District Court and High Court depending
on the following circumstances:
The offender is a Youth at time of filing charges and:
‑ Schedule 1A offence with no plea entered on 1s appearance in the Youth Court
‑ Schedule 1A offence and plea entered on 1s appearance in the Youth Court
‑
Manage Cour Process You h (Ju y 20 9)
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Entry of a plea
If the young person…
then…
Is 17 years old and charged
The young person will have their
first appearance in the Youth Court and will then proceed to the
with a Schedule 1A offence District or High Court.
(denied or not denied)
If charged with a…
then…
Category 4 offence
the matter is adjourned and the young person proceeds to High Court
Not a Category 4 offence but is the matter is adjourned and the young person proceeds to District
a Crown schedule offence
Court and the case handed to the Crown Solicitor for prosecution
Is neither Category 4 nor
the matter is adjourned and the young person proceeds to District
Crown schedule offence
Court and the case handed to the Police Prosecution Service
Determining related charges
The prosecutor may seek a determination from the Youth Court that a charge for a non‐Schedule 1A offence is related to a charge for a
Schedule 1A offence. This must be sought as soon as practicable after the latter of the charges is filed. This would typically be sought at
the same time as filing the latter charge. The requirements are outlined in new section 276AA of the Act.
When the Youth Court determines whether the charges are related it may consider any agreement of the parties, and written or oral
submissions of the parties. Where both parties agree that the charges are related the Youth Court may make a determination without
requiring any further submissions from parties.
If the young person or their advocate disagree that the charges are related, the Youth Court may consider either oral or written
submissions from the parties. This may be either done ‘on the papers’, or through a further hearing.
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This process also includes where a 17 year old is on District or High Court bail and breaches their bail by committing an offence on bail.
This could be:
‑ failure to answer Police bail (section 24 of the Bail Act)
‑ refusing to allow an authorised person entry to an EM address (section 36A of the Bail Act)
‑ failure to answer court bail (section 38 of the Bail Act)
‑ where the person has committed an offence that is related to a bail condition (eg. they further assault the complainant or a
witness)
In these circumstances the prosecutor can seek a determination that the offence is related to the charge in the District or High Court
that the 17 year old was bailed for.
Transferring related charges
Where a non‐Schedule 1A charge is determined by the Youth Court to be a related charge it must be transferred to the District Court or
High Court to be dealt with together with the Schedule 1A charge. The related charge is then out of the jurisdiction of the Youth Court
(through an amendment to sections 272 and 273 of the Act).
Generally, the non‐Schedule 1A charge is transferred despite any plea entered for the Schedule 1A charge. If a guilty plea has been
entered for the Schedule 1A charge and a not guilty plea or no plea entered for the non‐Schedule 1A charge, the charge for the non‐
Schedule 1A offence must be dealt with in the District or High Court unless a court orders that it is in the interests of justice that the
related charge be dealt with in the Youth Court (section 276AC refers).
Mixed pleas for related charges
If the 17 yr old…
then…
Pleads
The proceedings will be heard in the District or High Court for the related charge(s) unless
it is not in the interests of justice where the non‐Schedule 1A charge will then be heard
‑
guilty to the Schedule 1A charge;
and
separately in the Youth Court
‑
not guilty to or denies the non‐
Schedule 1A offence
Pleads
The proceedings will be heard in the District or High Court for the related charge(s).
‑
not guilty to the Schedule 1A
charge; and
‑
guilty to or does not deny the non‐
Schedule 1A offence
Is found not guilty of the Schedule 1A
The District or High Court must transfer the non‐Schedule 1A charge back to the Youth
offence or the Schedule 1A offence is
Court to be dealt with unless it is in the interests of justice that proceedings remain in the
withdrawn or dismissed
District or High Court
Joint trials
Where a 17 year old is charged with a Schedule 1A offence and is jointly charged with a child or another young person (including a 17
year old not charged with a Schedule 1A offence), the Act outlines what court the trial will be held in. The process is similar to adult
being jointly charged with a child or young person (section 277 has been amended to provide that all references in that section to
‘adult’ also mean a 17 year old charged with a Schedule 1A offence).
If jointly charged with a young person, if one co‐defendant elects jury trial then all defendants will have a jury trial in the District or
High Court. If no co‐defendants elect a jury trial then the trial will be held in the Youth Court.
If a co‐defendant is a child, the child’s election determines where their trial is held. If the child elects jury trial, then all co‐defendants
will be transferred to the District or High Court for trial. If the child does not elect jury trial, the 17‐year‐old and any other co‐
defendants will have a separate trial in the District or High Court if they elect a jury trial, or they will have a joint trial in the Youth Court
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with the child if they do not elect a jury trial.
This table summarises how cases proceed where a young person charged with a Schedule 1A offence (young person A) is jointly
charged with others:
When young person A is jointly and young person A chooses Judge‐ or young person A elects trial by jury, then…
charged with ...
alone trial, then…
Child who chooses Judge‐alone Youth Court trial (both)
Jury trial (young person A) and Youth Court trial (child)
trial
Child who elects trial by jury
Jury trial for both
Jury trial for both
Young person B who chooses
Youth Court trial for both
Jury trial for both, unless the Youth Court orders Youth
Judge‐alone trial
Court trial for young person B
Young person B who elects trial
Jury trial for both
Jury trial for both
by jury
Adult who chooses Judge‐alone Judge‐alone trial in the District Court
Jury trial for both
trial
for both
Adult who elects trial by jury
Jury trial for both
Jury trial for both
An amendment to section 272 of the Act clarifies that the Schedule 1A charge is within jurisdiction of the Youth Court for the purposes
of the joint trial (they would otherwise not be within jurisdiction).
For the purposes of dealing with pre‐trial matters, where a 17 year old charged with a Schedule 1A offence is jointly charged with a
child or young person, the proceeding is not transferred to the District or High Court unless (section 275(2A) refers):
‑ one or more co‐defendants elect jury trial and are to be tried together
‑ the defendants are to be tried separately (i.e. a child does not elect a jury trial but the 17 year old does elect), in which case the
17 year old is transferred and the child remains in the Youth Court
‑ one of the defendants is charged with murder or manslaughter.
Transfer of proceedings back to the Youth Court
Proceedings must be transferred back to the Youth Court when the circumstances for which they were transferred up to the District or
High Court no longer applies, unless it is in the interests of justice that the proceedings remain in the adult jurisdiction.
Examples of where the circumstances no longer apply are where:
‑ the 17 year old is found not guilty of the Schedule 1A offence
‑ the charge for the Schedule 1A offence is to be heard separately (after being severed under section 138(4) of the Criminal
Procedure Act)
‑ the charge for the Schedule 1A offence is withdrawn or dismissed
‑ the District or High Court has ordered that the non‐Schedule 1A charge be dealt with in the Youth Court following a guilty plea to
the Schedule 1A charge (section 276AC(2) refers)
When the proceedings are transferred back to the Youth Court, the Youth Court may refer the proceedings to a family group conference
under section 281B of the Act. The Youth Court can make any order under sections 282 and 283 of the Act.
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Transitioning 17 year olds with proceedings underway on 1 July
The Act outlines which jurisdiction the proceedings are heard in and transitions proceedings already underway prior to 1 July so that
those proceedings continue under the law as it was before 1 July.
Use this matrix to determine which court has jurisdiction after 1 July 2019:
The process for related charges in sections 276AA, 276AB, and 276AC, apply to further charges filed against a 17 year old who has
proceedings underway on 1 July. This means that the prosecutor can seek a determination that the further non‐Schedule 1A charges
are related to a charge in the proceedings in the District or High Court.
For the purposes of applying the process to these transitioned proceedings:
‑ the charge in the District or High Court does not need to be a Schedule 1A (Schedule 1A is not in force prior to 1 July)
‑ the non‐Schedule 1A offence continues to exclude murder or manslaughter or any other offences outside the jurisdiction of the
Youth Court.
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Section 247 relating to family group conferences and section 276A relating to transferring proceedings back to the Youth Court also
apply to non‐Schedule 1A charges that are related to charges in proceedings underway prior to 1 July.
Printed on : 24/07/2023
Printed from : https://tenone.police.govt.nz/pi/part‐3‐criminal‐procedure‐youth‐court
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