Paperweight or powertool: A critical appraisal of the potential of the proposed preliminary inquiry procedure

Julia Sloth Nielsen

History
The preliminary inquiry (PI) was developed by the Project Committee of the South African Law Commission that drafted the Child justice Bill. It followed the ad hoc development of diversion in the 1990s that was heavily dependant on prosecutorial goodwill, corridor negotiations by legal representatives and the marketing of diversion by Nicro.

In addition, Article 40(3)(b) of the Convention on the Rights of the Child requires “laws, procedures ... and measures aimed at dealing with children without resorting to judicial proceedings". This has been interpreted as meaning that diversion cannot rest solely on the whims of individual prosecutors.

Thus the Project Committee was faced with two questions: who decides on diversion, and how?

The difficulty with the “who" was that prosecutors rotate from court to court move on from the Department of justice, and often see juvenile courts as a mere starting point career-wise. In addition, it was thought that prosecutors also “let too many cases through", in other words they allow a case to remain on the roll for a long time despite insufficient evidence to prosecute.

So, in deciding on the “who", the Project Committee drew on four main factors:

Influences from models of interventionist judiciaries, e.g. New Zealand.
The existing South African format for inquests in which judicial officers play (generally) a more activist role.
The linkage between diversion and immediate release from pm-trial custody, as positive diversion decisions (at present) aIways entail immediate release from custody, i.e. a judicial determination as opposed to a prosecutorial one
The need to determine the age of the accused at the outset in order to establish whether the Criminal Procedure Act or the Child justice Act will govern proceedings and the fact that this is a judicial function.

The conclusion drawn was that the “gatekeeper" to diversion should ideally be the judicial officer.

As far as the “how" was concerned, decisions were influenced by the following:
Informality of proceedings to make them more child-friendly.
The rapid appraisal of the situation to avoid cases that are eventually diverted from clogging up court rolls.
"Joint" decision-making by stakeholders (including probation officers), rather than depending on the lone voice of one prosecutor.
Maximisation of available information on which decisions can be based.
Realisation of the necessity to create incentives and benefits for the criminal justice system, for example case management and the finalisations of cases as soon as possible.

The result was the proposal of a mandatory pre-trial inquisitorial investigation, assessment and discussion of the child, the case and the circumstances to see whether diversion was possible and, if so, which specific diversion option the child should undertake; whether release was possible and whether the accused was under 18 years of age.

How the provisions In the Bill stand at present
Subsequent to the parliamentary debate on the Child justice Bill there have been some changes to the original proposal. These changes have in fact strengthened the procedure in a number of ways. The PI remains the procedural centrepiece of the new child justice system. Its purpose now is specifically stated as being “to divert matters away from formal court procedures". In addition, the P1 and diversion are now provided for in the same chapter in order to emphasise this. The informality of proceedings and their inquisitorial nature are specifically provided for in clause 42 of the Bill.

"” the Project Committee was faced with two questions: who decides on diversion and how?"

In terms of the present draft of the Bill before Parliament, children charged with specified serious offences will proceed to court without a PI as they are excluded from the possibility of diversion. Children charged with petty offences who have already been diverted by a prosecutor are also exempt from attending a PI. All other child-accused will experience a PI, as the procedure will be mandatory in their cases.

The role-players have been confirmed as the inquiry magistrate, prosecutor, child, legal representative, parents (or an appropriate adult) and probation officer (but the latter two parties may be exempted from attending). If the probation officer does not attend, the assessment report must be available for the inquiry.

At the PI, after the explanation of the allegation, rights and purpose of the inquiry, the first duty of the presiding officer is to establish whether the child accepts responsibility for the offence. If not, no questions regarding the offence may be put, no information on previous diversions or convictions are allowed and the matter proceeds to trial. If so, all information must be placed before the PI, the child's age must be determined, the views of all present considered and the voice of the child and his or her parents heard. The magistrate must be satisfied that there is a prima facie case against the child. Finally, it must be ascertained by the prosecutor whether the matter may be diverted.

If the prosecutor agrees to a diversion, the magistrate must order diversion according to the range of available options that are appropriate for the child. Strict control has been built in regarding the execution of diversion as the magistrate must identify a probation officer or other person to monitor compliance. Upon notification of a failure to comply with the diversion order, the child must reappear before the inquiry magistrate for an investigation into the reasons for non-compliance.

Where the inquiry magistrate has heard information during the PI prejudicial to the determination of the case, he or she may not preside at any potential subsequent trial. In addition, no information furnished at the PI may be used against the trail in subsequent criminal proceedings. The Bill confirms that the effect of a diversion order is that the child may not be prosecuted on the same set of facts unless he or she fails to comply with the diversion order and is then remanded for trial.

Paperweight or powertool?
The outcome of this process will depend on the balance struck between factors listed as possible benefits and risks to avoid the PI remaining mere words on paper. It is also expected that there will be uneven results in the implementation of the PI depending on the effort and willingness to see the procedure work in practice.

Benefits of the preliminary inquiry procedure

Increases access to diversion.
Saves court time (as evidenced by the Afrec study and Mangaung One Stop Child Justice Centre experience).
Cost savings resulting from diminished demand for detention.
Provides an opportunity to oversee the work of the probation officer at the assessment.
Promotes innovation in finding diversion options.
Promotes a teamwork approach.

Risks of the preliminary inquiry procedure

Whether the necessary information is available.
The intended rapid appraisal turns into a mini-trial where case conferences take too long and become embroiled in detail.
The rapid appraisal could be too rapid “it becomes just another hoop to jump through to get to the trial.
Access to diversion could be hampered by prosecutorial zeal as the decision to divert still rests with the prosecutor.
Difficulties could arise in small towns with only one magistrate.
Liasion with service providers (e.g. Nicro) might lead to delays.

This feature: Sloth-Nielsen, J. (2004) Paperweight or powertool: a critical appraisal of the potential of the proposed preliminary inquiry procedure. Article 40. Vol.6 No. 2, p. 3-5