4. Minimum guarantees and rights during the pre-trial stage
4.2. Right to be informed of the reason for arrest and charges
International standards contain the fundamental right that those who are arrested and/or charged must be informed of the reason for that arrest or charge. Specifically, Article 9(2) of the ICCPR provides that anyone who is arrested shall be informed, at the time of arrest, of the reasons for his or her arrest.103 This right applies equally to children and adults.
The CRC does not specifically address the right to be informed of the reasons for arrest. However, Article 40 of the CRC does require that every child shall be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians.104
Box 17: Explaining the charges and reasons for arrest so that they are understood
Belize: Juvenile Offenders Act 8(1): “Where a child or young person is brought before a juvenile court for any offence, it shall be the duty of the court as soon as possible to explain to him in simple language the substance of the alleged offence.”
Philippines: Juvenile Justice and Welfare Act 2006 Sec. 21: Procedure for Taking the Child into Custody: “From the moment a child is taken into custody, the law enforcement officer shall: (a) Explain to the child in simple language and in a dialect that he/she can understand why he/she is being placed under custody and the offence that he/she allegedly committed; (b) Inform the child of the reason for such custody and advise the child of his/her
constitutional rights in a language or dialect understood by him/her.”
Sources: Juvenile Offenders Act, Chapter 119, Revised Edition 2000; Juvenile Justice and Welfare Act 2006, Republic Act No. 9344.
The Committee on the Rights of the Child, in General Comment No. 10,105 defines “promptly and directly” as meaning as soon as possible. The moment at which the child or his parents should be informed of the charges is when the police, the prosecutor or the judge initially takes procedural steps against the child. However, the need to inform “promptly and directly” also applies where the authorities decide to deal with the case without resorting to judicial proceedings.
101
Ibid.
102
R. v. Oakes, [1986] 1 S.C.R. 103, Supreme Court of Canada, 28 February 1986, p. 22.
103
See also Article 5(2) of the ECHR; Article 17(2)(c)(ii) of the African Charter on the Rights and Welfare of the Child; and Article 7(4) of the American Convention.
104
Article 40(2)(b)(ii) of CRC.
105
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Requiring the child and, where appropriate, his/her parents, to be informed is part of the overall requirement contained in Article 40(2)(b)(ii) of the CRC that legal safeguards should be fully respected. The child should be informed in a language that he or she understands. This may mean using an interpreter and presenting the information in a foreign language. It also requires that the child be informed in a manner and form of language that the child can understand. Formal legal language and jargon should be avoided.
Providing the child with an official document is not enough and an oral explanation is generally necessary. The authorities should not leave this task to the parents or legal guardians or the child’s legal or other assistance. Legislation should contain an article or section placing a duty on the relevant authorities (e.g. police, prosecutor, judge) to ensure that the child, parent or legal guardian understands each charge brought against the child and the possible consequences.106
Box 18: Explaining the child’s rights
In R. v. L.T.H, the Supreme Court of Canada upheld an appeal that the child defendant had not fully understood his rights when he waived the right to have an attorney and to consult with an appropriate adult.
Under section 146 of the Youth Criminal Justice Act, a young person’s statement is admissible only when: (a) the statement was voluntary;
(b) the person to whom the statement was made has, before the statement was made, clearly explained to the young person, in language appropriate to his or her age and understanding, that (i) the young person is under no obligation to make a statement, (ii) any statement made by the young person may be used as evidence in proceedings against him or her, (iii) the young person has the right to consult counsel and a parent or other person in accordance with paragraph (c), and (iv) any statement made by the young person is required to be made in the presence of counsel and any other person consulted in accordance with paragraph (c), if any, unless the young person desires otherwise; (c) the young person has, before the statement was made, been given a reasonable opportunity to consult (i) with counsel, and (ii) with a parent or, in the absence of a parent, an adult relative or, in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person, as long as that person is not a co-accused, or under investigation, in respect of the same offence; and
(d) if the young person consults a person in accordance with paragraph (c), the young person has been given a reasonable opportunity to make the statement in the presence of that person.
Section 146(4) allows the child to waive the right to consult with counsel or an adult. In this case, the child declined access to counsel, his parents or another appropriate adult and signed a form waiving his rights. However, the Court held that for a waiver of rights and subsequent statement to be admissible, law enforcement officer must explain the child’s rights “in language appropriate to the particular young person’s age and understanding”.
The Court also directed that police officer should “take into account the level of sophistication of the young detainee and other personal characteristics relevant to the young person’s understanding” to ensure that the child fully understand the consequences of his decision to waive rights or give a statement.
Sources: R. v. L.T.H , 2008 SCC 49, Supreme Court of Canada, 11 September 2008, p. 15, 18; Canadian Youth Criminal Justice Act, 2002, c. 1; Under Section 146(3) of the Youth Criminal Justice Act, 2002, “the requirements set out in paragraphs (2)(b) to (d) do not apply in respect of oral statements if they are made spontaneously by the young person to a peace officer or other person in authority before that person has had a reasonable opportunity to comply with those requirements”.
106
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