3. State Party Reports

Jamaica

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II. DEFINITION OF THE CHILD

13. In addition to giving information on the various points raised in this section, an outline of the relevant legislation is provided. (Reference is made to para. 7 of the "Guidelines".) As the laws are too numerous and bulky to supply them as annexures, the actual wording of the legislation is quoted where necessary to provide for the greatest degree of clarity.

14. The Age of Attainment of Majority in Jamaica is 18 years. It was 21 until 30 April 1979, when the Law Reform (Age of Majority) Act came into effect. Section 3 (1) of this Act provides that:

"As from the appointed day (30 April 1979) a person shall attain the age of majority and be of full age and capacity on attaining the age of 18 years instead of on attaining the age of 21 years."

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18. At this point it is necessary to mention, in a general way, the Juveniles Act, because its provisions include some of the information required in this section and, in some cases, impinge on the provisions of other legislation for the protection of children and young persons.

19. The Juveniles Act defines as a "juvenile" a person under the age of 17 years and subdivides this group into "child", meaning a person under the age of 14 years, and "young person", meaning a person who has attained the age of 14 years and is under the age of 17 years. This Act provides for the minimum age at which a person has criminal liability, matters relating to the employment of children, giving testimony in court, and the consumption of alcohol by children.

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26. The law does not state precisely the age at which a child may voluntarily give testimony in court, but rather seeks to provide safeguards to ensure that a child who gives testimony understands the duty of speaking the truth and that his privacy is protected. On the former point, Section 54 (1) of the Juveniles Act provides that:

"Where in any proceedings against any person for any offence, any child of tender years called as a witness does not, in the opinion of the court, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court, he is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth ..."

27. On the latter point, Section 53 of the Juveniles Act provides that:

"Where, in any proceedings in relation to an offence against, or any conduct contrary to, decency or morality, a person who, in the opinion of the court is a juvenile is called as a witness, the court may direct that all or any persons not being members or officers of the court or parties to the case, their counsel or solicitors, or persons otherwise directly concerned in the case, be excluded from the court during the taking of the evidence of that witness."

Also, section 56 states that:

"No newspaper report of the proceedings shall reveal the name, address, or school, or include any particulars calculated to lead to the identification, of any juvenile concerned in the proceedings, either as being the person against or in respect of whom the proceedings are taken or as being a witness therein."

28. The age of criminal liability is 12 years. In the words of section 3 of the Juveniles Act, "It shall be conclusively presumed that no child under the age of 12 years can be guilty of any offence."

29. The right to liberty is enshrined in section 15 (1) of the Jamaican Constitution which states that:

"No person shall be deprived of his personal liberty save as may in the following cases be authorized by law ..."

This is followed by a number of alternative examples of the circumstances under which the deprivation of liberty may be authorized by law; one such example is:

"In the case of a person who has not attained the age of 21 years, for the purpose of his education or welfare."

30. This provision is contradictory to that in the Legal Reform (Age of Majority) Act which has already been mentioned in this section of the report and which gives 18 years as the age at which a person shall be "of full age and capacity". However, the Age Of Majority Act came into effect in 1979 and the Constitution was written in 1962, which may account for this apparent anomaly. It is anticipated that the relevant age in this section of the Constitution will eventually be reduced from 21 years to 18 years.

31. The minimum legal age at which a person can be imprisoned is 17 years.

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III. GENERAL PRINCIPLES

34. In an enlightening paper written by D. O'Donnell of Defence for Children International and published in Volume 63 of the Bulletin of the Inter-American Children's Institute, he articulates the notion that "Article 2 (of the Convention on the Rights of the Child) broadens the protection laid down in other instruments ... prohibiting not only discrimination based on individual characters, but also discrimination against a child, based on the characteristics of the child's parents or guardians". To develop this concept, a child could be discriminated against because of his personal characteristics such as, say, a handicap, but more likely the discrimination arises from characteristics which he derives from his parents and guardians such as his race, colour or sex.

35. In this context, the Jamaican Constitution offers protection to every person, including a child. A chapter entitled "Fundamental Rights and Freedoms" begins with the statement,

"Whereas every person in Jamaica is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely:

1. life, liberty, security of the person, the enjoyment of property and the protection of the law;
2. freedom of conscience, of expression and of peaceful assembly and association; and
3. respect for his private and family life,

the subsequent provisions of this Chapter shall have effect for the purpose of affording protection to the aforesaid rights and freedoms, subject to such limitations of that protection as are contained in those provisions being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest."

36. The remaining sections of the Constitution afford protection to the rights outlined in the all-embracing provisions quoted above which are parallel to those outlined in the Convention.

IV. CIVIL RIGHTS AND FREEDOMS

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42. The right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment is also enshrined in the Jamaican Constitution.

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VIII. SPECIAL PROTECTION MEASURES

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78. Children in conflict with the law. The administration of juvenile justice in Jamaica conforms with all the standards set out in article 40 of the Convention with particular reference to the safeguards in paragraph 2 (b) (i-vii) which stipulates that the child is presumed innocent until proven guilty (a safeguard which is also applicable to adult offenders), that the child should be informed directly or through his legal guardians of the charges against him or her, that the matter should be determined without delay by a judicial body and to have his or her privacy fully respected at all stages of the proceedings. This last safeguard is emphasized by the provision in section 57 of the Juveniles Act which was quoted in section 2 of this report and which forbids the publication of any "newspaper report of any proceedings in a Juvenile Court (which) shall reveal the name, address or school or include any particulars calculated to lead to the identification of any juvenile concerned in these proceedings".

79. In the system which now operates in Jamaica, the legislation which applies directly to children deprived of their liberty includes: the Juveniles Act, the Correctional Act and the Family Court (Judicature) Act. The agencies within which this legislation is enforced are the Children's Services, the Juvenile Unit within the police force, the Family Court and the Juveniles Court.

80. The Juveniles Act, in a section on Juvenile Courts and the Trial of Juvenile Offenders, provides, inter alia, for the separation of the juvenile in police stations or while being conveyed to or from any criminal court, or while waiting before or after attendance in any criminal court from adult offenders; for the bail of the juvenile or his remand in a place of safety if his trial cannot be completed on his first appearance in court; for the compulsory attendance of his parent or guardian at his court hearing; and the methods which the Court can apply in making an order for the treatment of the Juvenile. These options include:

1. Dismissing the case;
2. Bringing a probation order under the Probation of Offenders Act;
3. Placing the offender either in addition to or without making any other order under this section for a specified period not exceeding three years under the supervision of a Probation and After Care Officer or some other person to be selected for the purpose by the Minister;
4. Committing the offender to the care of any fit person, whether a relative or not, who is willing to undertake the care of him;
5. Where the offender is a young person, ordering the offender to pay a fine, damages, or costs;
6. Sending the offender to a juvenile correctional centre;
7. Ordering the parent or guardian of the offender to pay a fine, damages or costs;
8. Ordering the parent or guardian of the offender to enter into a recognizance for the good behaviour of such offender.

81. The Corrections Act, which in different sections deals with both adults and children, was passed in 1984 to satisfy, inter alia, the need to make newer and better provisions for the rehabilitation of offenders and, in keeping with modern thinking on the use of terminology in legislation of this kind, to introduce some new expressions to replace traditional terms. For example, the archaic term "approved school" has been replaced by "juvenile correctional centre".

82. These laws are administered within the Family Court, which was established under the Family Court (Judicature) Act in 1975 to deal with family matters and matters affecting juvenile offenders. It includes both social and legal services and the social service arm is manned by trained counsellors and social workers.

83. Before a child who is in conflict with the law is taken before the legal section of the Court, he (or she) and his parents are seen by a counsellor, and every effort is made to resolve his problems before he is taken before the judge. If this happens, the Court takes into account all the principles outlined in articles 37 (b) and (c).

84. Two factors in the operation of the Family Court system fall within the difficulties encountered, i.e.

1. That the system which was established in 1975 as a pilot project to cover geographic areas inhabited by about 40 per cent of the country's population has not yet been expanded to include the whole island; and
2. That, although the child is represented in court by the Children's Officer and in some cases by private lawyers, the effectiveness of the court system would be improved by the inclusion of a Children's Advocate to represent exclusively the interests of the child. There are active plans by Government to extend the Family Court system islandwide. It does not seem likely that the provision of a Children's Advocate will be affordable in the foreseeable future.

85. In 1991 a Juvenile Unit was established within the police force to deal exclusively with matters affecting juveniles who are in breach of the law. The police officers in this unit have received special training and their activities have proved very useful in the sensitive handling of children in conflict with the law.

86. Chapter III of the Constitution of Jamaica lists among its Fundamental Rights and Freedoms that "No person shall be subjected to torture or to inhuman or degrading punishment or other treatment". This right is fully observed in the official treatment of children in conflict with the law and neither capital punishment nor life imprisonment without possibility of release is imposed for offences committee by persons below 18 years of age (art. 37 (b)).

87. With regard to the physical and psychological reintegration of children who have been in conflict with the law, the public and Government of Jamaica have been increasingly aware of the need for such rehabilitation in recent years. One example of this is contained in the Corrections Act of 1985 which authorizes the Minister, under whose portfolio the subject falls, to classify juvenile correctional centres according to the ages of the persons for whom they are intended and the character of the education and training given in such centres. In addition, there are various training schemes, both within the institutions and as an aftercare measure, and the legal option of placing an offender under the supervision of a probation and after-care officer for a period not exceeding three years is designed to facilitate the physical and psychological recovery described in article 39.

Source: Initial reports of States parties due in 1993: Jamaica, UN Doc. CRC/C/8/Add.12, paras. 13-14, 18-19, 26-31, 34-36, 42, 78-87 (17 March 1994)