ID-100331967
This paper will discuss and evaluate the rights of children in conflict with
law under the International Convention and domestic laws of Bangladesh
and UK. It will also provide descriptions in which extend these rights are
protecting children from the Criminal Justice system. Then it will also
provide a comparison between the laws of Bangladesh and UK and argue
whether they are properly following the International Convention laws or
not. It will also include whether any new ground is required to protect the
rights of child in conflict with law in both of this countries.
Children are the most vulnerable component of the earth and covered
almost 50% of the population1. Because of their nature they can be easily
manipulated and are particularly vulnerable to all kind of influence both
physical and mental. And because of their nature they can be easily come
into contract and conflict with law. When a Child comes into conflict with
law under a particular age, its called juvenile delinquency2. According to
dictionary meaning Juveniles means a person who has not reached the
age to consider as an adult by the criminal justice system 3. The juvenile
delinquency poses a number of difficulties on the criminal justice system
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as it operated on the basis of equality before the law. 4 This equality law
should not be confused with the human right equality concept. Equality in
criminal justice system means each and every person is entitled to same
punishment for the same offence 5. Criminal justice system deals with the
guilt of the offender on the offence he commit and its aim to provide the
punishment and prevent the offender rather than rehabilitate the
offender6. But the object of the juvenile justice system is to rehabilitate
the offender rather than punished.
For many centuries the consequence leads that the children who come
into conflict with law were to be treated in the court by general legal
criminal system and gave punishment as the adults 7. However, at the end
of the nineteenth century many reformer points out that by prosecuting
and keeping children in jail with adults, states were producing expert
criminals.8 By acknowledging the result, the English common law
established that those between the age of seven and fourteen regarded
as being incapable of forming criminal intent and consider as child 9 as it
require Actus reus (the criminal act), Mens rea (Intention to commit the
4 Canor Hanly, Dublin University Law Journal, Child offenders: the changing
response of Irish law (1997)
5 ibid
6 S Malik, The Children Act 1974: A critical commentary (1st end, Save the UK,
2004), P-vi
7 Dr. N Ferdousi, Juvenile Justice System In Bangladesh,(1st end, Academic Press
and Publishers Library,2012)
8 S Malik, The Children Act 1974: A critical commentary (1st end, Save the UK,
2004), P-30
9 M Bulbul Ahmed and M Raisul Islam, Bangladesh Research Publication Jurnal,
Treatment of Juvenile Offenders: Bangladesh Perspective, Volume4[2010]
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criminal act) and the chain of causation (inter relation between the act
and intention to commit the act)10 to construct a crime. At the age of
fourteen, they were treated as adult and can be imprisoned alongside the
adult.11
For proper application of this theory the first juvenile court is found in
Chicago, USA 1899, which separately deals with the children who come
into conflict with the law.12 The Juvenile Justice system was founded on the
believe of parens patriae roughly translated in to state as parents13.The
state played a role as a parents by the juvenile court when parents are
deem incapable or unwilling to controlled their children 14. After that many
country has establishes juvenile justice system in their jurisdiction to
properly deal with the children who come into conflict with law.
For the protection of children, a limited number of standards were
recognised in the Universal Declaration of the Human Rights 1948 towards
the treatment of children15 by the United Nation16. However, with the aim
of better protection towards the children, the Convention on the Rights of
10 J M. Pollock, Criminal Law, (10th end, Anderson Publishing, 2012)
11 See n-8
12 Dr. B Uddin Khan & M. Mahabubur Rahman, Protection of Children In Conflict
with the Law in Bangladesh (1st end,2008) P-4
13 M Bulbul Ahmed and M Raisul Islam, Bangladesh Research Publication Jurnal,
Treatment of Juvenile Offenders: Bangladesh Perspective, Volume4[2010]
14 R.W. Taylor, E.J.Fritsch, T.J.Caeti, Juvenile Justice (policies, programs aan
practices), ( Mc Graw Hill, 2002),P-270
15 See n-1
16 Hence forth known as UN
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with the CRC and that ensure the rights of the convention vests in children
are fully enforceable under national law25.
The
United
Nations
Standard
Minimum
Rules
for
the
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United
Nation
Delinquency
Guideline
(Riyadh
for
Guideline):
the
The
Prevention
of
Riyadh Guideline
Juvenile
outlines
In Bangladesh the Children Act 1974 and the Children Rule 1976 are the
major legislation which deals with the juvenile justice system. In favour of
28 Rule 3
29 UNICEF, Juvenile Justice in South Asia: Improving protection for Children in
Conflict with the law, (2006, UNICEF),P-39
30 https://www.gov.uk/government/policies/creating-a-fairer-and-more-equalsociety/supporting-pages/the-united-nations-convention-on-the-rights-of-thechild-uncrc, Access-5/3/14
31 http://www.crae.org.uk/childrens-rights-the-law/laws-protecting-childrensrights/un-convention-on-the-rights-of-the-child/, Access-5/3/14
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the Children Act 1974, Mr. Justice A.K.M Fazlur Rahman stated that the Act
was proclaimed as a direct manifestation of Article
28 (4) of the
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Definition of child:
The rights of the child are only provided to a person who can ascertain
his/her status as a child38. Article 1 (1) of the CRC state that a child
means every human being below the age of eighteen, unless under the
law applicable to the child majority attained earlier. Thus for the purpose
of whole convention a person is considered as child if he is under the age
of 18. Moreover, the Convention leaves scope for the national laws to set
a different age limit. But the United Nation commission put emphasis to
adopt the same definition for providing the better protection to the
children.39
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In United Kingdom a child means a person under the age of 14; and the
young person means a person who has attained age 14 and is under the
age of 1844. From the definition it can say that a person aged 14 is
consider as child and they will get the protection from the adult criminal
justice system. But the person aged more than 14 and below 18 who has
40 Dr. B Uddin Khan & M. Mahabubur Rahman, Protection of Children In Conflict
with the Law in Bangladesh (1st end,2008),P-67
41 S.51 & 52 of the Children Act 1974
42Dr. N Ferdousi, Juvenile Justice System In Bangladesh,(1st end, Academic Press
and Publishers Library,2012) ,P-10
43 Dr. B Uddin Khan & M. Mahabubur Rahman, Protection of Children In Conflict
with the Law in Bangladesh (1st end,2008),P-68
44 S.177 of the CDA 1998
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From the above discussion, it can be said that both of the countries does
not follow the CRC requirement properly. Moreover, as a result person
aged above 12 years and below 18 years become subject to dealt by the
adult criminal justice system in Bangladesh and UK jurisdiction.
CRC does not provide any provision relating to the minimum age of
criminal responsibility. But it put emphasis that member state should set a
minimum age of criminal responsibility under which a person will be
regarded as not having the capacity to infringe the Penal laws of the
country47 and stated that the minimum age set by the national law should
not be in too low48.
45 Article 1 of the CRC
46 See n-33
47 Article 3 of the CRC
48 Rule-4.1 of the Beijing Rule
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In Bangladesh the Children Act does not provide any provision relating to
the minimum age of criminal responsibility 49 . However, S.82 & 83 of the
Penal Code of Bangladesh deals with the minimum age of criminal
responsibility. S.82 provides that nothing can be regarded as an offence
which is done by a child below the age of 9years. Accordingly, S.83
provide a test to decide the age of criminal responsibility of a child
between the age 9 to 12, if he/she have the sufficient maturity of
understanding to judge the nature of the consequence of the conduct on
the particular occasion. Thus, it can say that a child has no criminal
responsibility at the age of 9, and 9 to 12 the criminal responsibility will
depend on the state of mind of the child and 12-16 children will be treated
under the juvenile justice system50. As the CRC does not contain any
provision relating to minimum age but CRC committee recommend that
Bangladesh should rise the age of minimum responsibility from 9 to 1251.
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From the above discussion it can be said that minimum age of criminal
responsibility is lower than the CRC requirement of both this countries.
Moreover, both of the countries have not taken any proper step to
enhance the minimum age.
54 R Arthur, Young offenders and The Law: How the Law respond to Youth
offending, (1stend, Rutledge 2010)
55 R v Gorrie (1918) 83 JP 189
56 Canor Hanly, Dublin University Law Journal, Child offenders: the changing
response of Irish law (1997)
57 Rona Epstein, Criminal Law & Justice Weekly, Punishing Children Criminal
(2009) 173 JPN 712
58 Catherine Elliott, Journal of Criminal Law, Criminal Responsibility and
Children: A New Defense Required to Acknowledge the Absence of
Capacity and Choice, (2011) JCL 75 (289)
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to
test
the
child
maturity
before
imposing
criminal
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65 Tuku Miah v The State (1983) 3BLD 193, Shiplu and another v The State 49
DLR (1997) 53
66Dr. B Uddin Khan & M. Mahabubur Rahman, Protection of Children In Conflict
with the Law in Bangladesh (1st end,2008), ,P-69
67 Dr. N Ferdousi, Juvenile Justice System In Bangladesh,(1st end, Academic Press
and Publishers Library,2012), P-135
68Dr. B Uddin Khan & M. Mahabubur Rahman, Protection of Children In Conflict
with the Law in Bangladesh (1st end,2008), ,P-71
69 J Fortin, Childrens Rights and the Developing law, (3rd, Cambridge University
Press,2009)
70 S.48(1) of the CDA 1933
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From the above argument, it can assume that both of the countries gave
some discretionary power to determine the age of the juvenile. But under
the UK jurisdiction, judges can take any decision without making any
inquiry about the juvenile age. Whereas there is a legislative obligation
upon the courts of Bangladesh it ascertain the age of the juvenile.
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get notification by the police of such situation as soon as possible 75. The
police should inform the probation officer as he obliged to collect the
information about the child to assist the court in making decision and
court shall consider the information presented by the probation officer 76.
In reality police mostly does not follow the procedures. In many time the
child does not inform the charges against him/her and the contact to the
probation officer is not made77. Moreover, the Act does not provide any
procedure to restrict the use of handcuffs to the child. On the other side
many Acts gives power to the police to arrest a child in arbitrary manner
which is inconsistent with the International requirement.
In UK children arrest for crimes must be situated separately from the adult
criminal. Their guardians must be informed as soon as reasonably possible
about the charges against the childs and childs detention 78. Under Code
C of the Police and Criminal Evidence Act (PACE) 1984, the police also
have to inform the local authority about the arrest for the welfare of the
juvenile. After getting arrest a police constable can give the reprimand
(simple warning) or final warning to a person under the age of 17
depending on the nature and seriousness of the offence79. If the offence is
so serious in nature and it is the first offence then police can give the final
warning rather than reprimand. But if offence is committed after the two
years passing of the previous warning and the police consider that the
offence is not so serious in nature, and then the person may give second
75 S.13(2) of the Children Act 1974
76 S. 50 & S.15 of the Children Act 1974
77Justice M. Iman Ali, Towards a Justice Delivery system for Children in
Bangladesh (1st end, UNICEF, 2010) ,P-78
78 S.23 and 24 of the CYPA 1933
79 S.65 of the CDA 1998
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final warning as an exception 80. After giving the final warning the juvenile
can send to the youth offending team of local area to participate in a
rehabilitation program unless the police officer consider to do so81.
From the above section it can say that in Bangladesh police can arrest a
child on the basis of suspicious which is totally contrary to the CRC
provision. Whereas UK the police have given ample power to deal with the
juvenile before involve him/her to the criminal justice system. But there is
no legislative provision relating to use of handcuff in both of this
jurisdiction. But many other countries like Nepal 82 and Afghanistan83 have
the law which prohibit police using handcuff while arresting a child. Both
UK and Bangladesh should pass the law regarding this area.
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of the liberty should have the legal assistance and the privacy and
confidentiality of the communication between the child and legal advisor
should be ensured86.
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the child without considering the whole issue 92 and most of the times
children are keep in the jail from time to arrest till the time of bail93.
In UK, if a young person is arrest but the police dont have the sufficient
evidence of the charge then he may be realising with or without bail or be
detained under the Police and Criminal Evidence (PACE) Order 1989. The
detention can only cause where the police officer believes that it is
necessary to secure evidence or to obtain the evidence by questioning the
child. The police can also detain the juvenile if he reasonably believes that
it is for child interest94. When children come before the court, they must
be realised on bail unless it is necessary to remand the child to protect the
public and child should be detained in the Juvenile Justice Centre under
the local authority95.
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Juvenile Court:
The purpose of the court is to provide the judgement on the particular
conflicted issue relating to the law. The CRC or other International
instrument does not provide any definition of juvenile court but provide
the function of the court which will be discuss accordingly.
offence that can held 14 years imprisonment for an adult and there is
possibility that the juvenile can held for custodial imprisonment in excess
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of two years99, then the case will be dealt by the magistrate court. The
court is generally run on less formal manner then the adults court100.
From the discussion it can say that both of the countries providing
separate Courts to deal with the juvenile. But in Bangladesh there is no
limitation upon the Juvenile Court to deal with different type of offences
whether they are minor or serious. Whereas in UK, cases relate to serious
offence is only deal by the Crown Court.
Trial Procedure:
The purpose of the trial is to protect the accused from unjust
prejudice101.Under the International standard the procedure of the trial of
the children should determined without delay and the trial should held
separate from the adults102. The trial should consider the age of child and
desirability of promoting his/her rehabilitation. Until the proven of guilty
the child should consider as innocent 103 and should protected against
forced confession104. The presence and participation of the parents and
guardians in the trial is reared as a right of the child 105. However, these
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rights can be denied for the best interest of the child 106. Moreover to
protect the confidentiality of the children, the records of juveniles is
restricted to the third parties and limited only to the person directly linked
with the case107. The Beijing Rule provided that the right to privacy of the
child shall be respected to protect him/her from undue publicity 108. From
the above mentioned requirements it become clear that for the best
protection of children, proper guideline have been made by the
International instruments for the signatory states.
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should institute home-like atmosphere for the child 112. Additionally, the
child should be seated with relative or probation officer rather than police
officer113. The philosophy of the provision is to ensure a child sensitive
environment in the court114. But in reality there is only two permanent
court room for the children which most like the adult court 115. The
protection for forced confession is considered as a fundamental right in
Bangladesh. So, in this matter there is no separate law provide to the
children. For the confidentiality of the Childs alleged involvement in the
crime, the presence of the person in the trial has been limited by the S.9
of the Children Act 1974. Moreover, court can revoke the permission of the
presence of any person for the protection of the child 116. Furthermore, it is
also permitted that a child presence is not necessary for the court
preceding then the hearing of the case can be done in the absence of the
child. But in reality, in the absence of the accused, court usually do not
run the proceeding117.
but
in
most
cases
children
do
not
receive
the
legal
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In UK, like Bangladesh Juvenile related cases are trial by the Youth Court.
The reason of establishing youth court is to prevent children and young
people to entering into contract with the adult criminals at the time of
period of a trial123. The work of youth court usually done in the ordinary
magistrate court but the court is obliged to make separate arrangement
for the youth offender as they dont get involve with the adult offender 124.
Youth Court hears the cases related to the person aged ten to eighteen
years old125. At the time of the trial the court members, legal advisor of
the both party and other which may authorise by the court can only be
present126. Moreover, S.39 of the CYPA 1933 put restriction on the
publication on the name and identity of the juvenile or any children who is
119 See n-87(DR)
120 S. 17 of the Children Act 1974
121 Article 35(3) of the Constitution of The Peoples Republic of Bangladesh
122 Rule-5 of the Children Rules 1976
123 http://www.loc.gov/law/help/child-rights/uk.php#f104, Access-4/22/14
124 S. 31 of the CYPA 1933
125 Powers of Criminal Courts (Sentencing) Act 2000
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Therefore, from the above discussion, both of the countries have more or
less same provision for the trial of the juvenile to protect their best
interest. But government of Bangladesh has established separate Courts
in three Kishor Unnon Kendro for the juvenile which is missing in UK. In UK
the juvenile court proceedings usually done in the ordinary court.
Although both of the countries have proper legislation to deal with the
juvenile, but most of the time they are failing to implement the
procedures properly. To ensure the best interest of child Pakistan has
made a provision which is more comprehensive to deal with juvenile.
Under Juvenile Justice System Ordinance 2003 of Pakistan, every child who
comes into conflict with law has the right of legal assistance at the
expense of the state131.
126 S.47 & 34A of the CYPA 1933
127 V v UK (2000) 30 EHRR 121
128 R Mcpeake, Criminal litigation and sentencing (25th end, OXFORD University
Press, 2013)
129 (2000) 30 EHRR 121
130 Article 40 (1) of CRC; Rule 14 (2) of the Beijing Rules
131 (XXXII of 2000
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Punishment:
In International standards non-custodial punishment is referred as
punishment approach rather than strict approach for the juvenile
offenders. The CRC provides variety of sentencing option such as care,
guidance and supervision order, probation, foster care, education and
other institutional based care to the juvenile with a manner consistent
with the circumstances both the offender and to the offence 132.
Additionally it requires that the deprivation of liberty should be the last
resort and impose for shortest possible time 133. The Beijing Rule require
that the living condition of the juvenile and the circumstance of the
offence should be consider before imposing any punishment 134. The
punishment imposes must be proportionate to the gravity of the offence
but also circumstances and needs of the juveniles if a juvenile commit a
serious offence against another person or continuously committee other
serious offences, the Act has allowed to impose the deprivation of the if
there is no appropriate measure135. The life punishment is prohibited to
impose upon a juvenile without the possibility of release136.
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community
contact
through
leave
of
absence,
outside
schooling and liberal family visit154. The Juvenile should be separated from
the adults in all places during the period of detention. The appropriate
authority should grant the condition release from the institution at the
earliest possible time155.
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the rehabilitation measure and the court must also bear in mind that the
custody is the last resort and should take account of the circumstances,
age and maturity of the young offender164. Under the UK law in custody
the young offender is allowed to get proper education and other facilities.
But the statistics shows that the juvenile in custody is continuously
deprived of proper health, education and neglected by the welfare.
Moreover, the conditions of treatment towards the juvenile routinely
violate their emotional, psychological and physical integrity 165. The
Committee of the Rights of the child has twice censured the conditions in
youth offender institute of UK including the high levels of bullying, self
harm and suicide and the inadequate rehabilitative opportunities.
Furthermore, the Committee criticised the UK for high increasing number
of children being held in custody at earlier ages for lesser offences and for
longer custodial sentences166.
Both of the countries have appropriate legislative measure for the custody
of the juvenile. But it has seen in practice detention is not regarded as last
resort. Rather than states are shown more interest to send the children in
detention at their early ages. Moreover, the situation of the custody is not
good as here juveniles are depriving of their basis rights regularly. And it
can assume that when a child deprive of his/her basic needs, any kind of
162 R Mcpeake, Criminal Litigation and Sentencing (25th end, OXFORD University
Press, 2013)
163 R v Charlton (2000) 164 JP 685
164 Y Jewkes and J Bennett, Dictionary of Prisons and Punishment (1st end,
Willian Publishing, 2008)
165 A Corle, A Campbell and R Newfeld, Capitalist Punishment: Prison
Privatization and Human Rights (Zed Book Ltd, 2003)
166 Catherin Elliott, Journal of Criminal Law, Criminal Responsibility and
Children: A New Defence Required to Acknowledge the Absence of
Capacity and Choice, (2011, Volume 75/Issue-4)
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reformatory education will not affect his/her mind. In this way, the
intention to make juveniles correct by hold then in custody will fail.
Diversion:
Researches show that children, who enter the criminal justice system and
receive institutional care or custody, are become unlikely to emerge
reformed character167. For this reason, Article 40 (3) of the CRC require
the state parties to promote the establishment of measure without
resorting to judicial proceedings, providing the human rights and legal
safeguards for dealing with juvenile in conflict with law. The same
pronouncement exist in the Beijing Rules where it was stated that the
police, prosecution or other agencies dealing with juveniles areas shall be
empowered to dispose of such cases, at their discretion without recourse
to formal hearing. The consent of juveniles or his/her guardian and
component authority is needed before involving any diversion referred to
appropriate community168.
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Recommendation:
The foregoing discussions quite convincingly establish that the existing
juvenile justice system is providing proper procedure to protect children
from the general criminal justice system. But in Bangladesh and UK, the
procedure of juvenile justice system is far from the International standard.
Both of these countries most in most of the steps do not follow the
International requirements properly. Though, the legislations of these two
countries include some important procedural protection, but it does not
provide a child right oriented justice system.
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force and identify particular area for action but there is no clear action
oriented plan.
Likewise Bangladesh, UK also has not take any action to increase the
minimum age for criminal responsibility. For this reason the United Nation
Committee have criticised UK in many time.
Moreover, considering a
person as a child below the age of 14, increase the number of juvenile in
the custody. Like Bangladesh, UK legislation also does not provide any
legislation relating to use of handcuff and taking the statement from the
children. Furthermore, the deprivation of liberty is not considering as a
last resort by the legislation.
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education.
Both of the Countries should adopt a training program for the police
and judges of the courts, who will deal with the juvenile related
issues. Moreover, states can form special agency to secretly look
over the agencies that will deal with the juveniles and continuously
to
correct
themselves
at
their
minor
offences.
Conclusion:
Children are the most weakest and valuable segment of the society.
Because of the surrounding and environment they come into conflict
with law. Under International Convention, it becomes clear that the
children should not be judge or treat under the general criminal justice
system. These existing International procedures provide guidelines for
their signatory states to deal with the children who come into conflict
with law. As signatory Bangladesh and UK have to follow those
international procedures which they actually do not properly follow.
However, both of the countries have appropriate legislation to deal
with the juveniles. But because of procedural loophole and lacking,
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