Equity and Common Law

Prior to the decision to utilize Methodologies for this project, it was critical to ensure that every effort was made to guarantee that all available possibilities are explored. It is in light of this, that the researcher applied the following: i. Collection and collation of related literature and documentary reviews via the internet, actual texts and articles, ii. Visitation to the libraries of the Community college, Family Court and Documentation Centre and the Kingstown Public Library, iii. Referencing the Constitution and other relevant laws of St Vincent and the Grenadines, iv. Interviews with the President of the Family Court and at risk Juveniles. i.

ITS INSTITUTIONALISATION/BACKGROUND: The Family Court of St Vincent and the Grenadines although established as a Court of record in 1992 with powers of civil and criminal functions and all sittings held in camera, began operations in 1995. It is the first of its kind to be established in the Eastern Caribbean and the second in the English speaking Caribbean. To date, the Court has witnessed four Presidents; three women and one man.

The Court commenced operations at the Lyric Building where other Magistrate’ Courts were, but now services the Vincentian populace from its own space at Rose Place. ii. STRUCTURE & PHYSICAL LAY OUT OF THE COURT: The Court is headed by a President who is a lawyer by profession. She is complemented by three (3) counselors, Court clerks, bailiff and police officers that are dressed in civilian clothes. The Physical building includes the Court, President’ office, counseling rooms, a Secretariat, conference, dining room and a kitchenette.

There is also a stairway at the back of the building which enhances the Security provided for Madame President. iii. ROLE/RESPONSIBILITY OF THE COURT: The Family Court Act of 1992 introduced a new legal approach to social, behavioral and emotional problems in St Vincent and the Grenadines. It is seen as a new form of Court equipped with professionals capable of developing and applying new approaches to Family issues, with all cases held “in camera” and according to the President, “the Court having full responsibility for :

a. Family Law matters, b. sexual offences, c. affiliation (establishment of Paternity)and maintenance, d. custody and access/visitation, e. Domestic Violence, f. sole jurisdiction for execution of the Juveniles Act of 1952”. 1 According to the text Vincentian Children and the Law, “The Court is the main legal medium for preserving and strengthening the Vincentian family, thus promoting the most HUMANE and constructive solution, where possible”. Since one of its main functions is finding solutions to applicants problems, there “is no winner or loser”.

2 Due to easy, financial and comfortable access, the Court is often referred to as “poor people and layperson’ Court. i. THE JUVENILE ii. THE JUVENILE COURT iii. JUVENILE SENTENCING iv. BIASES i. WHO IS A JUVENILE? Before discussing the issue of Juvenile sentencing, it is imperative to establish the meaning of the term “Juvenile”. According to the Juvenile Act Cap 168 of 1990, a Juvenile is a person under the age of sixteen, yet, the legislation states that “no child under the age of eight years can be guilty of an offence”. ii.

JUVENILE COURT: Juvenile Court is one which is established under Section 5 of the Juvenile Act to deal with Juvenile offences. The Governor General may make provisions for the establishment of one or more such Court and an order made under Section 1 may provide for such Courts to be held elsewhere or in buildings utilized as Magistrate Court. iii. JUVENILE SENTENCING: According to Elliott & Quinn, “Sentencing is the process by which offenders are punished for crimes or offences committed against a victim and society as a whole”.

5 Juvenile sentencing therefore addresses Juvenile. Sentencing could be custodial or non custodial and has many purposes: a. To punish offenders, b. Reduce crimes, c. Reform and rehabilitation, d. Protect the public, e. Making reparation to victims. iv. BIASES IN SENTENCING JUVENILE: This can be defined as anything within the ambit of the law, mechanism or social support which may prevent/hinder justice from being done or may cause Victims to be considered unfairly dealt with. i. CONSIDERATION FOR JUVENILES BY THE COURT:

The Juvenile Act of St Vincent and the Grenadines specifies certain pre-requisites which MUST be met in dealing with cases involving Juveniles. Discussions with the President of the Family Court reiterated the following as critical: a. Consider the welfare of the Juvenile and if necessary, take steps to remove her/him from undesirable surroundings, b. Ensure that no person other than members and officers of the Court, parties to the case, legal representatives for the case, as well as other persons connected to the case shall, except by leave of the Court, be allowed to attend, c. Separating the Juvenile from other offenders, d. In the event of bail, recognizance must be considered, e. Trial to be held in camera, f.

Legal provision MUST be taken into consideration. ii. POWERS OF THE JUVENILE COURT: In discussion with the President of the Family Court and according to law, Court cases involving Juveniles, have the following options: a. Commit the Juvenile to the care of a fit person willing to take responsibility for such care, b.

Require the juvenile’ parent/guardian to enter into a recognizance to exercise proper care and guardianship, c. Place the Juvenile under the care and supervision of a Probation Officer for not more than three years, d. Committing the Juvenile to an approved school, e. Order the parent/guardian of the Juvenile to pay compensation or costs, f. Commit the Juvenile to probation and counseling, g. Order the offender to be whipped/caned, h. Dismiss the charge, i. Order the parent/guardian to provide security for the Juvenile’ good behaviour.

Sentencing of Juveniles by the Family Court is based on the existing Juvenile Act which is an Act to provide for the care, protection, trial and treatment of juvenile offenders, the establishment of Juvenile Courts, approved schools and other matters related to them. a. GENDER BIAS: Based on the Corporal Punishment of the Juveniles Act of 1983, there is gender bias in sentencing Vincentian Juveniles. First of all, Juveniles are treated differently based on their gender. In the Interpretation, “juvenile offender” refers to a male under the age of sixteen”.

3 Reality then insinuates that only “males” are offenders. In addition, while there is an approved school; the Liberty Lodge Boys Training Centre where male Juveniles can and are sent, there is no such provision for the female Juvenile. On the other hand, whereas Juvenile males can and are ordered to be caned, the same is not true for female Juveniles. b. SYSTEM BIAS: i. The Juvenile Act and the Court System contradicts themselves by indicating that Juveniles are persons under the age of sixteen (16), yet reminds in the same piece of legislation that the age of criminal responsibility is eight (8) years. ii.

Persons living in St Vincent and the Grenadines, who are victims of crimes committed by Juveniles, seem not to be entitled to any form of compensation, even if the law provides for such. This action make Victims feel that Justice is not served and that the Court is in breach of their Human Rights. c. DUE PROCESS AND THE JUVENILE: i. St Vincent and the Grenadines Constitution guarantees all citizens the fundamental right of due process. In 1993, SVG signed and ratified the Convention on the Rights of the Child. However, articles 37 and 40 of the said CRC establish that Juveniles are entitled to the same rights as adult.

A report entitled “Juvenile Justice in the Caribbean- A Rights Approach to children in the Juvenile System”, suggests that findings of the various Caribbean countries, inclusive of St Vincent and the Grenadines “fail in their duty to ensure due process to juveniles and that the poor and dispossessed, and females are far worst”. The study also suggested that “due process to the Juvenile is dependent on the class and status of the Juvenile’ family, hence seen as the right to entitlement to children of the wealthy and other upper class members of society, whereas children of the poor and down trodden are left to fend for themselves.

”4 In St Vincent and the Grenadines for example, the state does NOT provide legal aid for Juveniles in conflict with the law, except in the case of homicides. From the literature scanned by the researcher it is notable to establish that the hypothesis is justified, as there is biases when the Court is dealing with Juveniles, but before discussing this, the researcher would like to place on record the discrepancy in the existing legislation as it relates to the country’ signature to the United Nations Convention on the Rights of the Child.

The research also pointed to the fact that there is No specific legislation on the Vincentian statute is in conformity with the United Nations Convention on the rights of the child,. While there are bits and pieces of Legislation that conforms, but no specific one addresses issues affecting juvenile in total. In addition, while the age of Juveniles is sixteen years, Criminal responsibility of persons is eight years. Hence, although a person may commit a crime, s/he cannot be brought to Court, punished, or be committal, the law emphasises that these persons are not and cannot be liable.

It can be noted too, that there is no legal aid provided for Juveniles by the Court, except in the case of Capital punishment. The issue of criminal responsibility is a sore point for victims of crimes committed by Juveniles as this target group continues to gripe about the issue, reflecting that “Justice is not done, or seen to be done”, hence their rights are infringed in cases of this nature. There are specific biases in different pieces of legislation reference Juvenile.

The Family Court has specific jurisdiction for implementation of the Juvenile Act and while the Court has authority to place male Juveniles in an available Government facility, there is no such available facility for the female; a gross bias in the legislation and system. Despite this positive for male Juveniles, there is that aspect of the legislation which lists “flogging” for the males, a total of twelve strokes, rather inhumane and barbaric option showing no consideration for the Convention on the Rights of the Child , which St Vincent and the Grenadines has signed and ratified.

The findings also pointed to the fact that Juveniles come before the Court for a variety of offences, none more significant than the other in terms of quantity and occurrences and that the majority of these Juveniles are the product of poor, vulnerable parents who seem to have lost control, while “due process” is ignored. The findings also show that the records of the Family Court do NOT distinguish between the ages of offenders. The researcher has concluded therefore that while there is some level of fairness in the system and legislation for addressing Juvenile in “conflict with the law“, there certainly are biases.

Legislation, as well as discussions reiterates that there are guidelines available for sentencing Juveniles, but despite availability, there is still room for improvement in the system and legislation. Based on the research findings, the following recommendations are put forward for consideration, that: 1. The Convention on the Rights of the Child guidelines be considered when addressing juveniles, particularly Articles 37 & 40, 2. A total reformation of the social services delivery system, 3.

There be a well established interministerial mechanism/ protocol to address juvenile issues such as: -responsibility, -procedure, -resources available -alternative sentencing such as diversion strategies: apologies, compulsory classes, community service. 4. Presence of child Psychologist where Juvenile can be referred for assessment, prior, during & after sentencing, 5. Access to Legal representation since Juvenile and parent are unfamiliar with the Justice System, 6. Expounding of records, 7. Computerisation of cases for future references, therefore development of a particular programme to facilitate this process, 8. That there should be equity in the legislation as it relates to punishment and housing of male and female juvenile, 9.

Rise the age of criminal responsibility from eight to twelve and educate the populace on same, 10. Harmonise the national laws in keeping with the Convention on the Rights of the Child. Antoine, Rose-Marie Belle. Commonwealth Caribbean Law and Legal Systems Second edition. Canada: Routledge-Cadvendish, 2008. Constitution of Saint Vincent and the Grenadines, 1979. Dugdale, A. M, V. M Bermingham et al. A Level Law. London England: Butterworths Lexis Nexis, 2002. Elliot, C. and F. Quinn. English Legal System. England: Pearson Education Limited, 1996, 2008.

Juvenile Justice in the Caribbean- A Rights Approach to Children in the Juvenile Justice System. OECS Family Law & Domestic Violence; Legal & Judicial Reform Project, 2007. Ollivierre, J. and C. Mc Donald. Vincentian Children and the Law. St. Vincent and the Grenadines: The Women’s Affairs Department of St. Vincent and the Grenadines, 1999. Laws of Saint Vincent and the Grenadines Revised Edition, 2009. – Interview schedule – President of the Family Court – Copy of Juvenile Act – Copy of Juvenile Procedure Act – Copy of Criminal Code Act – Sample stats from Family Court.