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Office of The Children's Advocate

SUBMITTED: FEBRUARY 15, 2010 BY: OFFICE OF THE CHILDREN' S ADVOCATE

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OCA's Team:

Office of the Children 's Advocate Report on Visit to Free Port Lock-up

February 3, 2010

Mrs. Mary Clarke, Children 's Advocate Mr. Courtney Ben-y, Investigation Officer Mr. Dwayne Cargill, Research Officer Miss Laura Evans, CUSONSO Co-operant

The Child Care and Protection Act, 2004 (CCP A) makes provisions for the treatment

of children held at police stations. According to section 12.-

(1) A constable, a children's officer or a probation and after-care officer may take

to a place of safety any child in respect of whom any of the offences mentioned in

the Second Schedule has been committed, or there is reason to believe has been

committed, or who is, in accordance with the provisions of section 13, about to be

brought before a Children's Court.

(2) Any child taken to a place of safety under this section, or any child who seeks

refuge in a place of safety, shall not be detained there for longer than forty-eight

hours without having been brought before a Children's Court or, if there is no

Children's Court sitting in that parish, a Resident Magistrate in chambers.

Pursuant to section 13 (1) Any constable or authorized person may bring before a

Children's Court any child in need of care or p'rofoctiOn: .

Sections 66 and 67 of the CCP A, 2004 state that an-angements shall be made for

preventing a child who is -

(a) at a police station in connection with the commission of any offence, whether

committed by the child or by any other person;

(b) being conveyed to or from any criminal court, remand centre or place of safety; or

( c) waiting before or after attendance of court,

OCA/Feb/2010 1

from associating with any adults, not being relative, who is charged with any offence

other than the offence with which the child is jointly charged.

67. - (1) Where a person who is apparently a child is apprehended, with or without

wanant, and cannot be brought forthwith before a court, the officer or sub-officer of

police in charge of the police station to which the person is brought shall act in

accordance with subsection (2).

(2) The officer or sub-officer shall -

(a) so inform the government agency responsible for the care and protection of

children; and

(b) enquire into the case and may, in accordance with the Bail Act, release the

person on a recognizance being entered into by the person or his parent or

guardian (with or without sureties) for such amount as will, in the opinion of the

officer or sub-officer, secure the person's attendance upon the hearing of the

charge, and shall release that person unless -

(i) the charge is one of murder or other grave crime;

(ii) it is necessary in the person's interest to remove the person from the

association with any reputed criminal or prostitute; or

(iii) the officer of sub-officer has reason to believe that the person's release would

defeat the ends of justice.

(3) Where a person apparently a child is apprehended and is not released under

subsection (2), the agency responsible for the care and protection of children shall cause

the person to be detained in a juvenile remand centre until the person can be brought

before the court.

Pursuant to Section 68.-(1) Any court on remanding or committing for trial a child who is

not released on bail shall commit that child to custody in a juvenile remand centre named

in the commitment, to be detained there for the period for which the child is remanded or

until the child is there delivered in due course of law:

Provided that in the case of a child who has attained the age of

fourteen years -

OCA/Feb/2010 2

-,

(a) the court shall not be obliged so to commit that child if the court certifies that

the child is of-

(i) so unruly a character that the child cannot safely be so committed; or

(ii) so depraved a character that the child is not a fit person to be so

detained; and

(b) where the court so certifies, the child may be committed to such place,

including an adult correctional centre, as may be specified in the commitment

warrant.

(2) Subject to subsection (3), the court which makes an order under subsection (I),

committing a child to custody may, on application-

( a) vary the order; or

(b) revoke the order in respect of a child referred to in the proviso to subsection

(1).

(3) If an application under subsection (2) cannot conveniently be made to the comi

which made the order for commitment, action under that subsection may be taken by any

court having jurisdiction in the place where the sitting of the court which made the order

was held.

( 4) If the order is revoked, the child may be committed to such place, including an adult

correctional centre, as may be specified in the commitment warrant.

- ---- 'Pursiianfto Sedion-69""wner-e .. a"i::hild.is cliargea-with an offence or is for-any other reason -

brought before a court, the parent/ guardian shall be required to attend the court before

which the case is heard or determined, during all the stages of the proceedings, unless the

court is satisfied that it would be unreasonable to require his/her attendance.

Minimum Standards

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The United Nations Rules for the Protection of Children Deprived of their Liberty ( 1990)

is the international authority on the treatment of children in lock-ups. The Rules are

intended to counteract the detrimental effects of deprivation of liberty by ensuring respect

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for the human iights of juveniles. They serve as an internationally accepted framework

within which states can regulate the deprivation of liberty of all those under 18 years of

age. Although the Rules per se are in the form of a non-binding recommendation, some

have become binding by vi1tue of their incorporation into our laws. They are also

elaborations of the basic principles found in the United Nations Convention on the Rights

of the Child of which Jamaica is a signatory.

Deprivation of liberty means any form of detention or imprisonment or the placement of

a person in a public or p1ivate custodial setting, from which this person is not permitted

to leave at will by order of any judicial, administrative or other public authority.

SECTION II (12) states that the deprivation of liberty should be effected in conditions

and circumstances which ensure respect for the human rights of juveniles. Juveniles

detained in facilities should be guaranteed the benefit of meaningful activities and

progranunes which would serve to promote and sustain their health and self-respect, to

foster their sense of responsibility and encourage those attitudes and skills that will assist

them in developing their potential as members of the society.

SECTION III. JUVENILES UNDER ARREST OR A WAITING TRIAL

17. Juveniles who are detained under arrest or awaiting trial ("untried") are presumed

innocent and shall be treated as such. Detention before trial shall be avoided to the extent

possible and limited to exceptional circumstances. Therefore, all efforts shall be made to

apply alternative measures. When preventive detention is nevertheless used, juvenile

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processing of such cases to ensure the shortest possible duration of detention. Untried

detainees should be separated from convicted juveniles.

18. The conditions under which an untried juvenile is detained should be consistent with

the rules set out below, with additional specific provisions as are necessary and

appropriate, given the requirements of the presumption of innocence, the duration of the

detention ano-thelegal status and-circumstances of the juvenile. These -provisions-would

include, but not necessarily be restricted to, the following:

OCA/Feb/2010 4

.-

a) Juveniles should have the right of legal counsel and be enabled to apply for free legal

aid, where such aid is available; and to communicate regularly with their legal advisers.

Privacy and confidentiality shall be ensured for such communications;

b) Juveniles should be provided, where possible, with opportunities to pursue work, with

remuneration, and continue education or training, but should not be required to do so.

Work, education or training should not cause the continuation of the detention;

c) Juveniles should receive and retain materials for their leisure and recreation as are

compatible with the interests of the administration of justice.

Section V. Personnel

81. Personnel should be qualified and include a sufficient number of specialists such as

educators, vocational instructors, counsellors, social workers, psychiatrists and

psychologists. These and other specialist staff should normally be employed on a

permanent basis. This should not preclude part-time or volunteer workers when the level

of support and training they can provide is appropriate and beneficial. Detention facilities

should make use of all remedial, educational, moral, spiritual, and other resources and

forms of assistance that are appropriate and available in the community, according to the

individual needs and problems of detained juveniles.

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OCAIF eb/2010 5 .·

OCA Observations

The Office of the Children's Advocate visited the children at the Free Port lock-up in

Montego Bay, St. James on February 3, 2010 at approximately lO:OOam. The visitors

observed that the children were in four cells.

The visitors were told that there are only two bathrooms for all the inmates; both males

and females. When the females are bathing, the males are locked in. When children are

to bath, the other inmates are locked in. The visitors were told that there is no special

staff employed specifically to deal with the children.

The cells are semi dark with limited light and ventilation and are approximately 6x10

inches in size. There are two sets of concrete bunk beds and one toilet in each cell. The

visitors observed numerous cockroaches on the cell gates. The visitors were told that the

children are locked in for 24 hours as there is no staff to monitor them outside.

Additionally, no educational activities are provided for the juveniles.

The visitors were informed that there were 21 children in the lock-up of which one was

female and that all the children were remanded by the court. It was also pointed out that

occasionally the lock-up holds children allegedly involved in murders, shootings and

house breaking. There is limited space and as such, children with major and minor

crimes and those deemed uncontrollable are placed together regardless of the reason for

being detained. Parents and guardians are allowed to take food and change of clothes

The visitors were told that because the court system is sometimes overburdened, children

can be remanded in custody for up to a year. The administration uses a Card System for

all inmates which record all relevant information on the inmates. The visitors did not

view any of the cards.

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The visitors spoke to all 21 children in the four cells in the presence of the officer in

charge. Of the children the visitors spoke with, eight were school drop-outs.

Cell 1

There were six boys in this cell with only two sets (4) of concrete bunk beds. Their

ages and reasons for being in lock-up are shown in the table below. They are allowed to

use the bathroom once per day.

Age R easons for being in Lock-up # of times to Court

12 Parent ask for him to stay in None

lock-up

14 Set parent house on fire (Sept) 5

15 Held with a knife (August) 6

16 Police take him in to punish Not yet

him

13 House break in Not yet

17 Father carry him in 1

Cell 2

Age Reasons for being in Lock-up # of times to Court

17 Police raid House (yesterday) Not yet ...... " ' ' ·-..:-~ 0 . .. ,. '" , .,.,, ' " ·~·· · ---- · W o , , ·~ ~ . ... ' ''"" .. .. ... ·~· 4~ .,,. . - ·'" - -~ '. .... ..

, __ 17 Police raid House (yesterday) Not yet

15 To be processed Not yet

14 Wounding (December) 3

14

17 4

17 Robbery with Aggravation 8 - - - -- --- -- --- - -

-·- coct)

17 Unlawful Wounding 1

OCNFeb/2010 7

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Three of the boys in this cell were living without adult supervision at the time of their

detention. One of the boys stated that his mother was abroad.

Cell 3

Age Reasons for being in lock-up # of times to Court

17 Breach Probation

17 To be processed

17 Suspicion of shooting and 4

robbery

14 Illicit drugs Not yet

17 Shooting Sentenced

The 14 year old stated that his mother does not know that he is in jail.

Cell 4

The visitors observed that there were four inmates in this cell, one of whom was a child

age 16. The other three inmates were adults in lock-up for major crimes. The teenager

infonned the visitors that she was brought in after the Police came to the house she was

staying in search of another individual, however she was alone there. Contact was made

with the Child Development Agency regarding the female in need of care and protection.

The OCA must highlight the fact that the minimum standards set out by the United

Nations are not being observed and the CCPA, 2004 are not being complied with. ·----·· ____ , - -;.::.·__::::.::::::::::::::::::::::.~===.:::::::

• Children are placed together irrespective of the reasons for being detained.

• Children are being held with adults in the case of cell four.

• There is no provision for the children to continue their education when they are

held in custody.

• The sleeping arrangement for the children are cruel and inhumane

• There is no provision for the children to have recreational activities.

• ·· -lffire-is iio-speda1ized staffing 1n place for the-children-----=------

OCA/Feb/2010 8

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• Some children are not taken to court within the 48 hours specified by the Child

Care and Protection Act, 2004.

• Some of the children claimed that their parents were not informed that they were

in lock-up or when they were attending court.

• The Child Development Agency officers are sometimes not present in Court and

not aware when children are held in lock-ups.

Previous visits to other lock-ups were also made by an investigation officer from the

OCA. Reports were submitted to the OCA's Senior Legal Advisor who is contemplating

legal proceedings. A summary of findings is attached.

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OCA/Feb/2010 9

Actions taken by the OCA to date

1. The following letters were sent:

To Subject

Hon. Delroy Chuck, MP Inadequate places for Speaker to the House of juveniles in Places of Safety Representative. and Juvenile Remand Centres-

Complaints by the Jamaica Constabulary force and the St.

Hon. Dr. Oswald Harding, Mary resident Magistrate's PhD,QC, President of the Court Senate Ms. Alison Anderson, Chief Executive Director, Child Development Agency

Difficulties being experienced by the Jamaica Constabulary Force with respect to children for Places of Safety and the Courts

Copied To

Dr. Jean Dixon, Permanent Secretary, Ministry of Health

Hon. Delroy Chuck, MP Speaker to the House of Representative.

Mrs. Heather Cooke Clerk to the Houses of Parliament

Hon. Rudyard Spencer Minister of Heath

Need for additional space in Hon. Senator Dorothy

Hon. Dwight Nelson Minister of National Security

Places of Safety and Juvenile Lightbourne, Attorney Remand Centres General/Minister of Justice

Ms. Alison Anderson Chief Executive Officer, Child Development Agency

Clerk of the Courts, St. Mary Resident Magistrate's Court

Superintendent of Police, St. Mary Division

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OCNFeb/2010

Kingston Central Division

Hon. Delroy Chuck, MP Speaker to the House of Representative.

Mrs. Heather Cooke Clerk to the Houses of Parliament

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2. Contact made to the Permanent Secretary of the Ministry of National Security for

sanitization of cells at Bridgeport Police Station

3. Eleven signed statements collected to seek legal redress on behalf of the children.

Recommendation

Children in lock-up have now become an issue of national concern and the OCA is

calling on the relevant authorities to immediately identify a facility for children on

remand. The full cooperation of the criminal justice system is needed to reduce the

number of children being detained in lock-ups across the island. Related ministries and

agencies also need to take immediate action.

OCAIF eb/20 I 0 11

Report on Juveniles in the Custody of the Police

Date: .January 19, 2010

During the week of January 11 to 13 2010, three Police Stations in St. Andrew and

St. Catherine were visited and juveniles who were in the custody of the Police were

interviewed and signed statements taken from them. Four were at Admiral Town,

three at Half Tree and one at the Bridgeport Police Station.

Juveniles at Admiral Town Police Station were held in unsatisfactory conditions.

The cells were dark and cold and there were no preparations made for them in

keeping with the minimum standards. They are let out of their cells for five minutes

each day to have a bath and use the toilet. They have to pass their urine in bottles

while they are locked down, which is twenty four hours a day. They reported that

they have contracted fungus from the conditions in the cells and from sleeping on the

cold concrete. They complained of roaches crawling over them most of the times

even in the days while they are in the cells. An·angements will be made to have these

juveniles medically examined and medical reports submitted on their behalf.

At the Half Way Tree Police Station, there were four juveniles who were

interviewed. Each stated a different case as to how long they were allowed to be out

of their cells each day. They said they were being held with adults. This was verified

when the cell in which they were held was inspected. It was discovered that of the

seven persons in the cell, three were adults. This infraction was pointed out to the ---- -- -- -- --- -- ·· ~ ·-

officer on duty, who said he would be moving to correct the matter very urgently.

Two of these juveniles were held in Trelawny on December 27, 2009 and charged

for possession of ganja. They were transferred to the Half Way Tree Police Station

for an Identification Parade because it was said that the Police in Kingston had

OCA/Jan/2010

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interest m them. They were interviewed by the Major Investigations Unit on

Saturday 15 January 2010, who stated they did not have any interest in them at this

time. They were due for court at Clarks Town on Tuesday January 19th 2010 but

were not picked up by the Police.

Courtney Berry Investigation Officer

OCNJan/2010 2

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Report on .Juveniles in the Custody of the Police

Date: November 4, 2009

The complaint was made that there are juveniles in the custody of the Police. The

Detention and Courts Division of the Jamaica Constabulary Force was visited on

Tuesday, November 4 2009 and the officer in charge interviewed and a signed

statement taken. This Division keeps a daily record of all persons who are in the

custody of the Police across the island. A register is maintained at the Division and

daily reports are made to the Assistant Commissioner of Police Administration and

Senior Superintendent of Police Services. Two officers at the Division, an Inspector

and a Corporal are in charge of keeping a daily record of all juveniles who are in the

custody of the Police and to seek alternate accommodations in the Correctional

Centres and Places of Safety. As of Tuesday, November 3, 2009, there were seventy

three (73) juveniles in the custody of the Police across the island, twelve (12) of

which are females.

The DSP said there was a meeting with the CDA on March 25 2009 in regards to the

space problem. CDA said they had no space, however the suggestion that the Police

should reduce the number of children charged for Care and Protection, then more

spaces will be available in the places of safety to accommodate them was put

forward.

The officer reported that continuous representations are made to the Correctional - - ---- ------ _,___ __

Services for juveniles to be placed in their care, but they too have also maintairied

that there is no space. Copies of correspondence reviewed, revealed that the Police

have been making every attempt to remove juveniles from their custody. The officer

OCA/Nov/2009 1

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stated that in every Police division, there are designated Police Stations that keeps

juveniles.

The Divisions and Stations are as follows:

• St. Andrew North Lawrence Tavern

• St. Andrew South Hunts Bay/Duhaney Park

• Kingston West Admiral Town

• ·Kingston East Mountain View

• St. Ann Ocho Rios

• St. Catherine Bridgeport

• Clarendon Four Paths

• Manchester Porns

• St. Elizabeth Black River

• Westmoreland Negri!

• Hanover Lucea/Sandy Bay

• St. James Freeport

• Trelawny Stewart Town

As at 4: OOpm Wednesday, November 4 2009, there were sixty one ( 61) juveniles

in the custody of the Police, fifty eight (58) males and three (3) females. They

were in the custody of the Police at the stations listed below.

Males Females

• Freeport 19 4

• Frome 8

• Ocho Rios 5

• Claremont 2

• Porns 2

• Four Paths 7

• Central 4 -- - - • - Admiral Town - 1- ------~-

• Hunts Bay 2

• Bridgeport 5

• Falmouth 1

• Linstead 1 • Morant Bay 1 1 2