Arrest of children
The To seize a person suspected of breaking the law and hold them in custody. Police have powers to arrest and charge suspected offenders and bring them before a court. provisions stated above apply to children and to adults. Once arrested, children (under 18) are treated differently by the criminal justice system.
Where the A person who has been charged with a crime. Also known as a defendant. is a child, there is a presumption the case A document that sets out what a person wants to happen to their money and other property after they die. proceed by A formal document issued by a court which says someone must appear in court on the date stated in the document. See also service; writ. (see s 345 Children, Youth and Families A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 2005 (Vic)). It should be very rare for a child to be remanded in Lawful control over a person which prevents them leaving. A person under arrest is in police custody and is not free to go. A person in prison is serving a custodial sentence that keeps them confined to the prison grounds. and, if it does occur, it ought to be vigorously contested. In deciding whether to remand a child, the Children’s An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. will consider the nature and circumstances of the Claimed but not proved. For example, the police can allege in court that a car was stolen, but they then have to prove it with evidence. If you say a person did something illegal you are making an allegation. Unless you can back it up, you will not be able to win a court case about it. A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious). and the child’s background, including any prior convictions, and must not remand a child only because the child does not have satisfactory accommodation. (On children’s matters, see Chapter 1.4: The Children’s Court.)
The Victoria Police Manual states that children are to be kept in custody only as a last alternative. The use of The procedure that allows a person who has been charged with an offence to be released from police control or prison until the hearing of the case. Courts can add conditions to bail. For example, they can require that people released on bail promise to come to the court on a set date, or put up an amount of money that they cannot get back if they do not appear as they promised. See also undertaking. with conditions is preferable to remand (Victoria Police Manual, operations 113–16: bail and remand). The Victoria Police Manual also sets out where children can be kept until going before a court if they are to be held on remand.
Interrogation of children
If the suspect is under 18, police must not question or carry out an investigation unless the suspect’s parent or Someone who is legally responsible for taking care of another person or their property. is present. If they are not available, an independent person (see ‘Role of the independent person’, below) must be present. The suspect must also be given the chance to talk to the parent, guardian or independent person in a place where they won’t be overheard (s 464E Crimes Act (Vic)).
The police do not have to wait until the parent, guardian or independent person is present when:
- it is felt that communication would result in the escape of an accomplice or the destruction of Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects.; or
- the safety of other people means that questioning should not be delayed.
The requirement that interviews relating to indictable offences must be audio or audiovisually recorded also applies to young people.
Role of the independent person
The role of the parent, guardian or independent person is an important one. According to Victoria Police Manual (operations 112.03: suspects and offenders – interviews and statements), the role is to:
- ensure the child’s evidence is accurately recorded;
- provide emotional support to the child; and
- be able to present an independent account of the interview at any court proceedings.
Without doubt it is also the role of the independent person to ensure that the child understands the caution and their rights and is able to make an informed decision as to how to exercise them. It is not the role of the independent person to determine how the child will respond to the caution or whether they will exercise their rights.
The independent person should not:
- ask the child questions about the offence or about whether they are guilty or innocent;
- act as an authority figure, such as a parent or teacher; or
- place conditions on assistance (e.g. to tell the truth).
Arguably, the police have a responsibility to ensure that the independent person understands their role – including the need to ensure they are satisfied the child understands the caution and their rights – prior to the commencement of any interview. If the independent person does not understand their role, or the meaning of the caution and rights, they are not in a position to act in the role.
The independent person’s role relates only to children. The independent third person’s (A person, other than a friend or family member, who provides support to a person with an intellectual disability, brain injury or mental illness when they are being questioned by the police.) role relates to children and adults with ‘mental impairment’, defined as including intellectual disability, mental illness, acquired brain injury or dementia. For more information about the ITP, see Chapter 8.3: Disability and criminal justice.