Session Two: The Role of Police and Prosecution inJuvenile Justice

Mr. Junsuke Yamaguchi, National Police Agency, JapanMr. Yasuhiro Tanabe, Professor, UNAFEI, Japan
Mrs. Mary Mwangangi, Kenya Police Headquarters, Kenya
Mr. Joseph Kasili Kundu, Superintendent of Police,
Criminal Investigation Department, Kenya

Please note that the following papers have not been edited
for publication. The opinions expressed therein are those of
the author’s. They do not necessarily reflect the position of
the departments or agencies that they represent.

ROLE OF THE POLICE IN JUVENILE JUSTICE IN JAPANMr. Junsuke YAMAGUCHI
Juvenile Division, Community Safety Bureau, National Police Agency

I.

INTRODUCTION

The prevention of juvenile delinquency and the enhancement of the sound development of juveniles
are important not only for juveniles themselves, but also for their families and communities. Additionally,
they are also important for maintaining a sound and stable society. Reflecting changes in social conditions
along with public awareness and life styles at that time, the number of juvenile delinquencies has either
increased or decreased over the years from the post-war period to the present. Facing juvenile delinquency
squarely, in changing times, the police authorities have been tackling this issue in different ways according
to the causes as well as the conditions of the period.
For the sound development of juveniles, the Juvenile Law, the pivot of the juvenile legal system inJapan, aims to put youths that are delinquent on protective measures for personality correction as well as
circumstantial adjustment, and specifies procedures of hearing, etc. in the Family Court. Concerned
agencies, including the Police, are addressing this issue from their own respective standpoints in order toprevent delinquency and to protect juveniles.
The Police are vigorously promoting extensive activities to prevent juvenile delinquency and toenhance sound development. The Police are the agency with whom delinquent youths first come into
contact and have a responsibility to ease the public’s anxieties and to ensure a society where people can leadsecure lives. They are thus putting the utmost effort, day and night, into tackling currently worsening
juvenile delinquency problems in order to meet people’s expectations.

II.

RULES IN POLICE INVESTIGATIONS OF JUVENILE CASES

Police investigations of juvenile cases are conducted properly in “the spirit of contributing to thesound development of juveniles” in compliance with the provisions of the Criminal Procedure Law and theJuvenile Law, and bylaws such as the Norms of Criminal Investigation (regulations of the National Public
Safety Commission), the Outline of Police Activities to Juveniles (instructions from the Deputy DirectorGeneral for National Police Agency), etc.
In cases where “juveniles subject to the jurisdiction of the Family Court” (juvenile delinquents) are
identified, the Police refer them to the Family Court, public prosecutors, Child Guidance Centers, etc., orsend notification after due investigations or inquiries are carried out.
“Juveniles subject to the jurisdiction of the Family Court” includes three types:-“juvenile offenders”(juveniles over 14 but under 20 who committed criminal acts)-“juveniles suspected of illegal behavior” (juveniles under 14 years of age who are alleged to haveviolated any criminal law or ordinance)-“pre-delinquents” (those who are deemed likely to result in future offenses or violations ofcriminal laws and regulations in light of their personalities or circumstances)— 63 —

Since the investigation (or inquiry) of juvenile cases is supposed to lead to a procedure for protection
and fosterage of juveniles in the Family Court despite having the nature of a criminal investigation, it should
be conducted with “the spirit of contributing to the sound development of juveniles” and should coverpersonalities, behavior, background records, education, family backgrounds, friends or associates ofdelinquent youths as well as the facts, causes and motives for delinquency.
1.

Principles of Criminal Investigation Conducted on a Non-Compulsory Basis

The Criminal Procedure Law stipulates that the Police “can conduct necessary investigations inorder to obtain a purpose. However, compulsory measures cannot be carried out unless otherwise specified
in this Criminal Procedure Law.” Referring to the Norms for Criminal Investigation, it also states that“ investigations must be conducted on a non-compulsory basis as much as possible”. In principle, criminal
investigations should be conducted on a non-compulsory basis. This is no different from adult cases.
2.

Interview of Juveniles

When interviewing juveniles, considering that the Police must find not only the facts regarding thedelinquency (criminal acts) but also the facts regarding the necessity for correctional measures as well as
circumstantial adjustment (possible need for protection), delinquent facts and the need for protection must
always be clarified. Hours, places, behavior, etc. are also taken into account in conducting an interview.
Needless to say, an interview of a juvenile must be carried out on a voluntary basis for both adults andjuveniles. But, especially in the case of juveniles, there is a danger that they might be easily influenced bysomeone’s suggestions or leading questions, etc. because they are not mature or stable enough in terms ofeither their mind or body. There are many cases where juveniles make an ambiguous confession and thevoluntary nature of their response is called into question. Therefore, the voluntary nature and credibility ininterviewing juveniles must be secured while evoking a sense of contrition and remorse.
3.

Arrest, Custody and Detention of Juveniles

Regarding the investigation of juvenile cases, the Norms for Criminal Investigation stipulates that “themeasure of keeping a juvenile suspect in custody should be avoided as much as possible. In the case wherea juvenile suspect is to be arrested, taken or escorted in unavoidable circumstances, the timing and method,in particular, must be considered carefully.” In response to this, the Outline of Police Activities to Juveniles
regulates that “police officers should avoid arrest, custody and other compulsory measures for criminal
juveniles as much as possible” and puts restrictions on compulsory measures including their arrest. In
arresting juvenile suspects, as in the case of adults, the reasons and necessity for arrest, the nature of thecase, the juveniles’ behavior, a guardian’s custodial ability, etc. must all be considered and carefulconsideration of the adequacy of arrest is essential. This is because the investigation of juvenile cases aims
to enhance the sound development of youths and to put them on protective measures for personality
correction as well as circumstantial adjustment if necessary. Thus it is natural to consider the magnitude of
the impact that compulsory measures such as arrest could have on the mind and body of a juvenile.
As for the reasons for arrest, in an ordinary arrest, the Criminal Procedure Law stipulates, “where
there is a reasonable ground to suspect that the suspect committed a crime, the Police may arrest him upona warrant of arrest issued in advance by a judge”. As to an emergency arrest without a warrant and arreston the spot, requisites for each arrest are stipulated by law according to the category. There is no differencein handling juvenile and adult suspects. Bearing in mind that besides the reasons for arrest, the necessity
for arrest also refers to a case where there is a suspicion of a possibility of absconding, destroying or altering
evidence unless an accused is kept under restraint, the Criminal Procedure Law stipulates the above “ ... inlight of a suspect’s age, background, as well as the gravity of the crime, the state and other circumstances.”
Generally, since juveniles depend heavily on their guardians, are immature mentally and physically, andoften not very capable socially and economically, it can be surmised that juveniles are less likely to destroy— 64 —

or alter evidence than adults.
The decision on juvenile custody is basically made on the same basis as for adult cases. That is, thegravity of a case and its conditions, the presence of obstruction in the process of investigation such as
escaping or the destruction or alteration of evidence, collusion, etc. along with age, background, health andother circumstances of a suspect must be taken into consideration (the Norms for Criminal Investigation).
Also, when it is determined that there is no necessity for the detention of an arrested suspect, the suspectshould be immediately released. When it is decided that there is a necessity for detention, a suspect must
be referred to a public prosecutor along with the documents and articles of evidence within 48 hours ofapprehension. So as to block contact with other suspects, a juvenile suspect must be separated from othersuspects and thus a separation rule for the handling of adults and juveniles is provided. In a case where
there are many juvenile accomplices, they must not be kept together in the same room and each suspect
must be held separately. In the case where a juvenile suspect is kept in custody, the principle is that a
guardian or a substitute should be contacted without delay. By doing this, a guardian or a substitute will beable to give adequate guidance to the juvenile during the period of recovery, protection and fostering after
the case is closed.
As for a request for the detention of a juvenile, the Juvenile Law stipulates that this request must only
be made in unavoidable circumstances. A decision on “unavoidable circumstances” shall be made according
to each specific case while considering requests arising from the characteristics of a criminal case as well
as a protection case. In practice, there are roughly three “unavoidable circumstances”: First, those related
to physical reasons such as the capacity of nearby juvenile homes when placement in a remote home mayhinder investigation. Secondly, those related to the personal circumstances of a juvenile; for instance, in thecase where the same treatment as adults should be appropriate considering the age, record of delinquencies,
character and conduct of a juvenile. Thirdly, those related to the performance of an investigation; a serious
obstruction may occur due to the nature, gravity or complexity of the case, the involvement of many people,
denial, other charges under investigation, etc. unless a suspect is placed in detention. The law also stipulates
that a suspect should be placed in a detention house or a jail; a custody facility in a police station used inlieu of a detention house.
4.

Taking of Fingerprints and Photography of Juvenile Suspects

Under the Criminal Procedure Law, the Regulation for Fingerprint Handling, etc., fingerprints andphotographs of those juvenile suspects kept in detention must be taken. For those who are not kept in
detention, the Law specifies that fingerprints and photographs must only be taken in unavoidable
circumstances and only when consent is acquired from a juvenile suspect. Especially, in the case ofjuveniles of 14 or 15 years of age and for minor offenses, the necessity and voluntary nature must be
carefully considered especially in acquiring consent. A guardian’s consent must be sought for a juvenile
under 16 years of age.
5.

Open Criminal Investigation of a Juvenile Suspect“ Open criminal investigation” is to publicize extensively the name, etc. of a suspect and to actively
ask the public for their help. If the open criminal investigation of a juvenile suspect is conducted, his/hername and so forth would be known at the investigation stage. The Juvenile Law stipulates that “concerning
a juvenile who is subject to the Family Court or an adult against whom public prosecution is instituted witha crime committed when he/she was a juvenile, articles or photographs that may indicate the identity of aperson through their name, age, occupation, residence, features, etc. must not be placed in papers or otherpublications”. This regulation prohibits the placement of articles, etc. about a juvenile who is put on the
Family Court procedure or a person against whom public prosecution has been instituted with a crimecommitted when he/she was a juvenile. It basically aims to give them an opportunity for rehabilitation inlight of their future possibilities. It is therefore considered that this purpose should also be emphasized at— 65 —

the investigation stage. Also, this Law specifies that juvenile proceedings should not be open to the public,
thus aiming to protect immature juveniles and enabling them to rehabilitate themselves in the future.
Furthermore, the Norms for Criminal Investigation or the Outline of Juvenile Police Activities also specify
that inference of the juvenile in question must not occur by announcing the name, address or the name of
their school, etc. In conformity with these regulations, it is considered that the open criminal investigationof a juvenile suspect should be basically avoided.
However, as in the cases of suspects alleged to have committed vicious crimes such as a series ofmurders or who are likely to commit another crime, there are special circumstances where requests can bemade in the public interest for the protection of society. Where it is feared that a juvenile suspect may
commit suicide and they need to be protected at once, there are also special circumstances. It is consideredthat the open criminal investigation of a juvenile suspect can be carried out after considering suchexceptional circumstances of the offense as well as the potential to escape, a suspect’s personality and otherpossible investigating measures.

III.

FUTURE TASKS IN INVESTIGATION OF JUVENILE CASES

It is the Police that make the initial contact with juvenile delinquents. The investigation period injuvenile cases is thus extremely important to ensuring fairness in juvenile proceedings. It is essential that
the Police take a firm position against vicious delinquencies, clarify facts and then make delinquents
understand the social consequences of their crimes and the victims’ suffering. The Juvenile Law waspartially amended and became effective this April, and the new law includes a review of the handling ofjuvenile cases, etc. conducting fairer fact findings in juvenile proceedings and introducing a system to takecare of victims. In the expectation that criminal court cases against juveniles will increase and that fact
finding will be conducted with an even closer attention to detail in juvenile proceedings due to thisamendment, a more thorough basic investigation along with a closer and fairer investigation will be soughtin the future including striving to gather more extensive evidence, etc. Also, in order to take prompt andunerring action on increasingly complicated and tough juvenile cases and to maximize the limited
investigation capacity, it is essential to strengthen the investigation system for juvenile cases.
1.

Promoting a Closer and Fairer Investigation of Juvenile Cases

What should be clarified through the investigation of juvenile cases is basically no different from thatof adult cases. But, taking the characteristic features of juveniles into consideration, an even closer andfairer investigation is required for juvenile cases. Recent juvenile cases indicate that: atrocious and violent
crimes as well as complicit crimes are on the increase and the crimes themselves are becoming more
complex. The cases where persons involved arrange their stories in advance so as not to contradict eachother and fake alibis are also increasing. Therefore, in order to ensure proof in juvenile cases, not just by
taking the statements of juveniles, the police need to obtain evidence to support the statements, secure
objective evidence, and review inconsistencies in investigation documents, etc. Therefore, in order toprovide uniform and objective guidance, etc. on juvenile cases, investigative supervisors are placed in theJuvenile Division of the Prefectural Police Headquarters and give individual and specific guidance on eachcase. In addition, general education is provided to investigators as well as other staff members on a daily
basis.
2.

Strengthening Investigating Capacities of Juvenile Cases

Recent juvenile cases are becoming more atrocious and the number of juveniles under arrest isreaching that of adults, which means that the influence of juvenile delinquency under public security is now
immense. However, the system of police dealing with juvenile cases is not necessarily well organized.
Based on this situation, the Police are constantly endeavoring to set up and extend Juvenile Case Special— 66 —

Investigation Branches, etc. at the Police Headquarters or to introduce a system for designating investigatorsof juvenile cases, etc. by increasing the number of investigators for juvenile cases through relocating
personnel. Furthermore, strengthening the cross-sectional investigating capacity has been pushed forward
by addressing the further improvement of investigator’s skills and by taking every opportunity to educate
not only investigators of juvenile cases but also investigators in other divisions about investigative
procedures as well as the characteristics of juvenile cases.
3.

Dealing with Victims of Juvenile Cases

The amended Juvenile Law includes a system in the Family Court of notifying an alleged juvenile’s
name, proceeding results, etc. to a victim’s family. Society’s rapidly growing interest in crime victims has
forced the police authorities to put more emphasis on care for the victims among the numerous activities of
the Police. The needs of crime victims for more information on investigations are no different regardlessof adult or juvenile cases. Similarly, whether a victim is an adult or not has no bearing on the Police’s
approach to victims of a crime. Under the Juvenile Law, the means of acquiring information is limited to
victims of juvenile crimes in contrast to those of adult cases, due to its special nature of non-publicity injuvenile proceedings. However, while considering possible obstructions in the process of investigation, thehonor of persons concerned, the protection of privacy, the suspicion of harming juveniles’ sounddevelopment, etc., special efforts are being constantly made to emphasize the feelings of victims and to meettheir demands as much as possible.

IV

CONCLUSION

The Police are applying all their energy to tackling worsening juvenile delinquency both in terms of
quality and quantity in order to enhance the sound development of juveniles. The question of how to deal
with delinquent juveniles and then how to rehabilitate them is shared amongst all the agencies concernedwith juvenile cases. The Police, as the agency responsible for making the initial contact with a delinquent,needs to fulfill its duty while working closely with other agencies for the sound development of juveniles.

V.

RECOMMENDATIONS(1)Juveniles under detention pending trial should be kept separate from adults and should be detainedin a separate institution or in a separate part of an institution also holding adults.

(2)

Police officers, respecting children’s rights, should be trained in the use of child-friendly interview
techniques and procedures conducive to the best interests of children.

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ROLE OF PUBLIC PROSECUTORS IN JUVENILE JUSTICE IN JAPANMr. Yasuhiro TANABE
Professor, UNAFEII.

INTRODUCTION

Japan has public prosecutors, who have the power to investigate criminal cases and instituteprosecutions. Japan does not have a system of police prosecutions. The police must refer all criminal cases
investigated to public prosecutors, and public prosecutors review the cases and decide whether or not toinstitute prosecution. Japan has no private prosecutions.
In Japan, a “juvenile” is defined as a person under 20 year of age in the Juvenile Law and is treateddifferently from an adult offender in criminal procedure. Although public prosecutors do not play any
particular role in the rehabilitation process for juveniles, and deal with only juvenile offenders referred by
the police, their role regarding fact-finding in juvenile criminal cases is significant.
Since criminal justice systems differ from country to country, I would like to touch upon the publicprosecutors system briefly and point out some characteristics of the Japanese criminal justice system tofacilitate your understanding before explaining the juvenile criminal justice.

II.

PUBLIC PROSECUTORS

A.

Qualification

In Japan, public prosecutors have the same qualifications for appointment as judges and private
attorneys (practicing lawyers). Any person who wants to become a judge, a public prosecutor or a private
attorney has to pass the National Bar Examination in principle, and then, take an 18-month training course
as legal apprentices at the Legal Research and Training Institute managed by the Supreme Court. After
graduating from the Institute, they are inaugurated as a judge, a public prosecutor or a private attorney.
Every year approximately 120 apprentices become judges, approximately 60 to 80 apprentices become
public prosecutors and approximately 800 apprentices become private attorneys.
B.

Status of Public Prosecutors

Prosecutorial functions are part of the executive arm of the government. On the systematic side, theMinistry of Justice is responsible for public prosecutors. However, the Minister of Justice cannot control
an individual public prosecutor in order to secure the independent and impartial exercise of its power.
C.

Organization

Public Prosecutors offices are divided into four types: One Supreme Public Prosecutors Office(headed by the Prosecutor-General) corresponding to the Supreme Court, 8 High Public Prosecutors Offices
corresponding to the High Courts, 50 District Public Prosecutors Offices and their 203 branches
corresponding to District Courts and Family Courts, and 438 Local Public Prosecutors Offices
corresponding to Summary Courts.
There are about 1,200 public prosecutors, about 900 assistant public prosecutors and about 9,000
assistant officials in Japan.

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D.

Functions
The main functions of public prosecutors are as follows:1) investigate criminal cases2) prosecute criminal cases3) present criminal cases in the trial court, prove the offence charged and request courts to make theappropriate application of the law to criminal cases

III.

CRIMINAL PROCEDURE (ADULT CASES)

A.

Overview of Criminal Investigation Process

In Japan, although both the police and the public prosecutors are authorized to conduct criminal
investigations independently, the police in practice conduct the investigation initially and primarily in almost
all cases. The police, however, do not have the power to finalize the criminal case and only publicprosecutors have the power to do so by law. Therefore, the police must refer any case to public prosecutors
with all documents and evidence.
After referral, the public prosecutor in charge of the particular case reviews and scrutinizes it, andinterviews suspects and key witnesses by him/herself. If necessary, the prosecutor can give the police officer
advice to collect further evidence. Afterward, he/she decides whether or not to institute a prosecution.
B. Criminal Procedure in Arrest Cases
First of all, an arrest is not a prerequisite for referral to prosecutors or for prosecution in Japan. Whenthe nature of the case is not so serious, the police and public prosecutors can conduct criminal investigations
without arresting suspects, and even indict him/her without an arrest in any type of cases.
No one may be arrested without a warrant issued by a judge. Only in cases where the probability of
absconding or the destruction of evidence is found as well as where there is probable cause that the suspectcommitted the alleged crime, can such a warrant be issued. There are two exceptions; an arrest of a flagrant
offender and an emergency arrest. In the case where the police arrest a suspect, they must refer the case toa public prosecutor within 48 hours of arrest.
After the public prosecutor receives the case from the police, the prosecutor must interview thesuspect referred and screen the case, and decide upon the necessity of pre-indictment detention. If necessary,
the public prosecutor can request for a judge a pre-indictment detention order within 24 hours of receiving
the case, and normally they do so.
The judge receiving the request reviews the case and may order the pre-indictment detention of thesuspect for 10 days. The order is issued based on the same grounds as the arrest. The public prosecutor
may request a judge an extension of the detention for up to 10 days, if necessary. The public prosecutor
must release the suspect by the termination of the detention period unless a prosecution is initiated.
The suspect is in many cases detained in a police jail, which is substituted for a detention house,
during the above-mentioned period. During the period of pre-indictment detention, the suspects have noright to bail, although bail may be granted after the indictment.
Japan has no examining judge or magistrate. The law enforcement agencies such as the police, andpublic prosecutors are responsible for criminal investigations. Even after the police refer the case to the— 69 —

public prosecutor, the police generally continue to conduct criminal investigations such as interviewing thesuspects and persons involved in the case, collecting any evidence. In addition, in almost all cases, thepublic prosecutor by him/herself also interviews the suspect and important witnesses directly.
All suspects have the right to remain silent and the privilege against self-incrimination.
With regard to non-arrest cases, there is no periodical limit on investigation.
All suspects have the right to counsel. However, under the present law, before the indictment, thesuspect must hire his/her attorney by his/herself, although the Japanese government assigns a defense
counsel to him/her after the indictment.
C.

DISPOSITION OF CASES

1.

Monopolization of Prosecution

Public prosecutors have the exclusive power to decide whether to prosecute. Japan has no grand jury
or preliminary hearing system conducted by judges.
2.

Institution of Prosecution
There are 2 main forms of prosecution: formal procedure and summary procedure.
a) Indictment
The public prosecutor indicts a suspect, which is a formal charge procedure. The publicprosecutor submits to the court only a bill of indictment including the defendant’s name, age, address
and the facts constituting the offense charged. No evidentiary materials may be attached to the billof indictment so as not to prejudice a judge or judges before trial.
b) Summary Procedure
When the public prosecutor determines that the suspect deserves a fine not exceeding ¥500,000,
and the suspect admits his/her guilt, the public prosecutor can choose the summary procedure. In thatcase, based on acceptance of the suspect, the suspect is charged to a summary court and no public
hearing is held. The judge in the court examines in chambers the documents sent by the publicprosecutors and decides whether to impose a fine.

3.

Non-Prosecutiona) Insufficiency of Evidence
It is clear that a public prosecutor should not prosecute a suspect without sufficient evidence. In
Japan, in order to protect the fundamental rights of suspects and abide by the rules of impartiality,
public prosecutors conduct case screening very carefully and decide on non-prosecution based upon
“beyond a reasonable doubt” standard in practice. For that reason, the rate of acquittal stands at only
0.0054%.
b) Suspension of Prosecution
The public prosecutor has wide discretionary power and he/she can drop the case even when there
is enough evidence to secure a conviction. This disposition is called “Suspension of Prosecution”.
This is the most remarkable characteristic of Japanese prosecution. This system is advantageous in
disposing of cases flexibly based on all circumstances including the seriousness of individual
offenses, the criminal tendencies of each suspect, the issue of compensation and the remedy of thevictim's feelings, and moreover, in giving them the chance to rehabilitate themselves into society. It
is observed that this wide discretionary power granted to public prosecutors has a significant role inpromoting individualized justice and encouraging suspects’ rehabilitation, and does work well.

— 70 —D.

CRIMINAL TRIAL PROCEDURES (ADULT CASES)

1.

Public Trials

According to the Constitution, trials shall be conducted and judgments declared publicly. In addition,
the accused shall enjoy the right to a speedy trial.
Japan does not have jury trials. Competent judges try all cases. A three-judge panel tries serious
cases, and the others are tried by a single-judge.
2.

Presumption of Innocence

Japan adopts the adversarial system regarding the criminal trial procedure. Defendants are presumed
innocent until proven guilty. Conviction must be established by evidence beyond a reasonable doubt. The
public prosecutor bears the burden of proving facts relating to all material elements of the crime.
3.

Trial Procedure

Japan does not have an arraignment system. Therefore, even if the accused pleads guilty in the
opening proceedings, the fact-finding process cannot be omitted.
Japan has the hearsay rule. Hence, witnesses must testify in courts, unless the defendant consents to
his/her written statement.
The trial procedure is not procedurally divided into separate trial and sentencing stages.

IV.

JUVENILE CASESA.

Definition of Juvenile

Persons who are under 20 years of age are defined as juveniles, according to the Juvenile Law inJapan. Persons who are under 14 years old are not criminally responsible for offenses in Japan.
B.

Criminal Investigation Procedure

At the criminal investigation stage, the criminal investigation procedure in relation to juveniles isbasically the same as that for adult suspects.
The police can arrest juveniles, and then they must refer the case to a public prosecutor within theabove-mentioned period like adult suspects. There is an exception that if the crime in question is punishable
by a fine or lesser penalty, the police must refer the case directly to the family court.
Although juvenile suspects can be detained, the public prosecutor and the judge consider the necessityof his/her detention carefully. According to the Juvenile Law, public prosecutors shall not request a judge
to detain the juvenile suspect unless unavoidable circumstances exist. Juvenile suspects under detention are
kept separate from adults. In addition, juvenile suspects may be held in the Juvenile Classification Home
instead of a detention house or a police jail because of appropriate protection of juveniles.
The police and public prosecutors conduct criminal investigations basically in the same manner as anadult suspect, respecting the sound upbringing of juveniles.

— 71 —

Criminal investigations of juveniles are conducted expeditiously. Since juveniles grow up rapidly andchange intellectually and mentally, unnecessarily delayed dispositions do not have the desired effect.
C.

Disposition of Juvenile Cases

In Japan, since the Juvenile Law upholds the educational goal of sound and wholesome developmentof juveniles rather than punishment, the family court handles all juvenile cases apart from those proceededin the regular criminal courts.
For this reason, public prosecutors must refer all juvenile cases to the family court if there is enoughevidence to show the juvenile committed the offense. The public prosecutor must also refer the case where
there are grounds that the case is subject to a family court procedure even when there is no suspicion of an
offense. Therefore, public prosecutors have no discretionary power to dispose of juvenile cases unlike thecases committed by adult suspects.
After the family court receives juvenile cases from the public prosecutor, it determines, throughexamination and hearing, whether the juvenile needs to be placed under any protective measures such asplacement under probation or commitment to the Juvenile Training School. In this connection, one option
the family court can choose is to refer the case back to the public prosecutor. In other words, the family
court can refer the case back to the public prosecutor for prosecution in the criminal court when it finds it
proper to do so in light of the nature and circumstances of the offence.
However, this refer-back of the case to the public prosecutor is, in reality, an exceptional disposition.
The percentage of such refer-back cases was only approximately 3-5 % each year. By offense, traffic
accident cases and violations of road traffic laws represented most of these cases.
The Juvenile Law, established in 1949, was amended and the amended law was put into force in Aprilof this year. It stipulates that all juvenile suspects aged 16 or older who allegedly commit serious offenceswith intent, resulting in a victim's death, shall be referred back to a public prosecutor except where this is
not proper when considering of all the circumstances.
Once the case is referred back to the public prosecutor, the prosecutor is obliged to prosecute thejuvenile in the same manner as an adult offender. The trial procedure is the same as that for an adultdefendant. The procedural safeguards such as the presumption of innocence, the right to remain silent, andthe right to counsel are also guaranteed for juvenile defendants in the same way as for adult defendant.
However, a person who is under 18 years old at the time of the commission of an offense may nothave the death penalty imposed. In that case, a juvenile defendant is sentenced to a penalty of life
imprisonment. In the case where a juvenile is to be punished with imprisonment of which the maximum
period is more than 3 years, he/she shall be given a sentence which prescribes the maximum and minimum
periods, that is, no specific period of imprisonment is given.
D.

Participation of Public Prosecutors in the Family Court Proceedings

According to the previous Law, a public prosecutor was not allowed to participate in any proceedings
conducted by a family court. In contrast, the amended law allows a public prosecutor to participate in suchproceedings including attending hearings, if a court deems this is necessary. Therefore, in the complicatedcases where a juvenile severely contests the charge on serious crime such as homicide, the public prosecutor
can present evidence at the hearing. This amendment is aimed at improving the fact-finding process.

— 72 —

E.

The Role of the Public Prosecutors in Juvenile Justice

As mentioned previously, the public prosecutor deals with only juvenile offenders, and is not involvedin any rehabilitation process of delinquent juveniles. However, since the finding of facts is obviously aprerequisite for determining appropriate disposition of cases, the role of the public prosecutor with respect
to the fact-finding process is of vital importance. It appears to be increasingly difficult to conduct criminal
investigations and to find out the true facts, taking into consideration the recent trends in Japan that thecrimes committed by juveniles have become more complex, and in some cases many juveniles jointly
commit serious offence.
On the other hand, it is equally important to note the protection of the rights of juvenile offenders.
Considering the promotion of the well-being of the juveniles, the police officers and the public prosecutors
also have to treat them in such a way as to avoid undue harm to them. In this regard, public prosecutors
as legal professionals need to play a role to secure the due process of law and the protection of juveniles’
rights.

— 73 —

THE ROLE OF KENYA POLICE IN JUVENILE JUSTICE
Mrs. Mary M. MWANGANGIKenya Police Headquarters, Kenya*

Honourable Judges of the High Court of Kenya,
Our Distinguished Guests from UNAFEI, Japan,
Participants,
Ladies and Gentlemen.

I am very happy to be here with you during this seminar. I am also pleased to see professionals fromvarious fields gathered here to tackle issues of common interest. I wish in particular to acknowledge thepresence of officials from UNAFEI, Japan who have come to share with us their experiences, knowledge
and ideas. Like any other organization the Kenyan Police Force is always happy to receive suggestions andwhere appropriate effect changes. This seminar is, therefore, ideal because it provides a suitable arena forfinding solutions to common problems based on practical experiences of professionals.
The Kenyan Police is a National Force established under chapter 84 of the laws of Kenya and its
duties include:• Maintenance of law and order• Prevention and detection of crime• Preservation of peace• Protection of life and property• Apprehension of offenders• Enforcement of all laws and regulations with which the force is charged.
With regard to juvenile justice the role of the Police is first and foremost to prevent occurrence ofcrimes related to juveniles. This is done through patrols and educating the public during seminars and otherforums.
The Force is structured in such a manner as to cover the whole country. Police stations, posts andpatrol bases are located in various parts of the country so as to bring security closer to the people. In recent
times the concept of community policing has also been introduced so as to tap support from the public. As
a result we have noted that members of the public are now willing to report cases of offences against
juveniles.
Cases against juveniles investigated by the Police include murder, assault, abduction, defilement, andincest among others. In this regard, when a crime is committed, the Police assume the role of investigators.
This includes recording the report in the occurrence book. In cases where the offence is defilement, incest
or other sexual related offences the Police escort the victim to a doctor for medical examination andtreatment. Police Officers also collect from the doctor the victims blood sample, clothes including pants
and petticoats, vaginal smears and take them to government chemists who conduct further tests. In themeantime, the scene of crime is visited and more evidence collected. The Police collect any items which
belong to the victim or suspect at the scene. This includes clothing, shoes, hair and any other items that
may have been left at the scene during the struggle. The exhibits collected are carefully handled, packed
separately and labeled accordingly.

* This paper was presented on behalf of Mr. Philemon F. Aborgo, the Commissioner of the Kenyan Police.
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Another role of the Police is to record statements from the victim and witnesses. Sometimes thevictim may state that although she did not know the suspect before the assault she can identify him if shesees him. In such a case if the Police have a suspect, an identification parade is held to see whether thevictim is able to identify the suspect. However the lack of one way glass during identification parades
involving children is sometimes a handicap to investigations.
At times the juvenile is the offender. Offences committed by juveniles include stealing, trespass,possession of narcotics, assault and defilement among others. This is attributed to poverty, HIV/Aidsorphans, drug abuse, etc. When the suspect is a juvenile the Police have a responsibility to inform theparents or guardian of the arrest as soon as practicable. The suspect (juvenile) should be released to parents
or guardian on bond/or cash bail entered by the latter. Unless:• The charge is murder or manslaughter or other grave crime;• It is in the interests of the juvenile to remove him from association with an undesirable person;• His/her release would defeat the ends of justice.
Our Police Standing Orders specify that a juvenile will not be placed in the same cells as adultprisoners whether male or female.
If the suspect is a female juvenile our regulations state that:• She should be searched by a female officer.
• Be placed in a separate cell and must never share a cell with males.
• If she complains of illness or injury or appears to be unwell a female police officer or a woman
should visit and assist her.
• A male police officer will not enter her cell unless accompanied by a female or another police
officer.
• The services of a wife of a police officer other adult female relative of a police officer should beobtained when no woman police officer is available.
Another role of the Police is that of taking the finger prints of the suspect to check his criminal
records. This helps us to know whether the suspect is a first offender or whether he has a previous recordof conviction, perhaps for a similar offence.
Thereafter a charge and caution statement is taken by an officer not below the rank of Inspector before
the suspect is charged before court. If the suspect pleads not guilty the Police have a responsibility to bondthe victim and witnesses to give evidence before court.
Another role played by the Police is that of a Court Prosecutor. If the accused is ultimately foundguilty the Court Prosecutor fills in an appropriate Police form to record the conviction and the document isforwarded to the criminal records office (CRO) for record purposes.
Some of the problems encountered in the investigation of offences against children;• Unwillingness of victims to report especially street children who feel that they have alreadycommitted an offence by being in the streets hence they fear the Police.
• Sometimes children believe adult perpetrators when told to keep a secret or are intimidated orbribed hence they do not file a complain with the Police.
• In case of incest family members sometimes conspire to conceal the crime hence lack of support
for the child.
• Sometimes there is also cultural interference with the legal process hence issues are dealt within
the community rather than making a report at the Police Station.

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• In cases of defilement or incest, a complainant unknowingly destroys evidence such as having abath or washing clothes.
• Lack of corroboration in evidence. Our laws require that the evidence of a child be corroborated
by an adult. We are happy this is being addressed in the children’s Bill.
• Sometimes it takes a long time to hear/finalize cases, hence unwillingness of the would beprosecution witnesses to assist the police.
• Lack of Police doctor. There is only one Police doctor, based in Nairobi.
• Some doctors are unwilling to fill P3 forms due to time consumed, travelling and accommodation
expenses when attending court.
• Some doctors ask for money to cover their expenses which victims may not afford.
Dear Participants, one of our plans at the moment is to set up desks that are manned by speciallytrained officers to deal with cases related to women and children. At the moment a number of Police officers
including court prosecutors have been trained in handling cases related to children. The training includes
such topics as defilement, incest, abduction, among others. These officers are back to their Stations and wehave noted improvement in the handling of victims of these crimes.
Ladies and gentlemen, that in brief, is the role of the Police in Juvenile Justice. I wish to thank you
most sincerely for inviting me to make a presentation in this seminar. I see this gathering as an indicationof your support to our efforts of eliminating offences against children in our society.
Thank you.

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THE ROLE OF THE CRIMINAL INVESTIGATION DEPARTMENT
IN THE ADMINISTRATION OF JUVENILE JUSTICE
Mr. Joseph Kasili KUNDU
Superintendent of Police, Kenya

It is with great pleasure and appreciation that I take this opportunity to thank the organizers of thisworkshop – that is UNAFEI in conjunction with the Children Department in the Ministry of Home Affairs.
In our daily activities, we Prosecutors are faced with so many challenges, and rarely have to think
about some of our important roles. This is therefore a good opportunity for us to be together and think of
the administration of Juvenile Justice.
In many urban areas in Kenya, children are seen loitering in streets, in slums, in parks, markets andall sorts of areas. Most of them have no known means of subsistence; and they live on begging, picking,pick-pocketing, gambling, stealing, taking up small casual jobs and some times running errands. Most ofthem have never been to school or dropped out at a very low level, look miserable, are half naked or naked,
and live in squalid conditions.
These delinquents if not reformed graduate into adult criminals who pose a great risk to our society.
Incidents of juveniles at home with parents or guardians who rebel, against guidance and commit crimes
individually or as per groups, are on the increase to the extent that juveniles have made head lines innewspapers.
Under the Children and Young Persons Act Chapter 141 of the Laws of Kenya a “Juvenile” meansa person who is of the age of fourteen years or more and is under the age of sixteen years. However, under
the convention of the rights of the child, the definition of a child is anyone under the age of 18 years.
Therefore the word “child” is used interchangeably with the word “juvenile”. A child under the Kenyan
Law is entitled to live with his guardians or parents.
However there is a child conduct that may cause a juvenile to appear in a court of Law andsubsequently be separated from his parent or guardian. Such child is termed delinquent.
Juvenile delinquency, therefore, refers to the commission of faults, misdeeds and crimes by juveniles.
Meanwhile, a “crime” is an act in violation of criminal law, commited without defence or excuse andpenalized by the state as a felony, or misdemeneaor. A criminal is, therefore, one adjudicated as such by
the courts.
Other than delinquency, a child may enter the juvenile justice system in the case of need for care andprotection, because there is no parent or guardian to stay with him or her.
The administration of juvenile justice involves a number of institutions, which include; the Police,
Courts of Law, Probation Officers, Remand Homes and Approved Schools. Each of these institutions playa very important role in the administration of juvenile justice.

I.

ARREST OF JUVENILES BY POLICE

The Police arrest juveniles either upon a complaint against the Juvenile or through operations gearedat netting idle and disorderly persons in the towns. The arrested juveniles are not mixed with adultoffenders.
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HANDLING OF JUVENILE CASES

Not all forms of juvenile delinquency are necessarily crimes, and vice versa, not all crimes aredelinquent behaviour. In the handling of juvenile delinquency, of the youth concerned, the necessary
measures should be taken with and without conviction in a Court of Law.

III.

JUVENILE COURTS

According to the children and Young Persons Act Chapter 141 Laws of Kenya, a juvenile court
consists of a permanent magistrate appointed by the Chief Justice for the purpose of hearing any charges
against persons below the age of 18 years. This Juvenile Court has the jurisdiction to hear and determine
a charge against a child or young person of any offence other than homicide.
A juvenile should be brought before a juvenile court for hearing and sentence if convicted. Even
when he is found guilty of an offence other than homicide by any court other than juvenile court, the court
shall remit the case to a juvenile court unless satisfied that it would be undesirable to do so. Generally
specially, no charge against a juvenile will be heard by a court of summary jurisdiction which is not ajuvenile court.
There is one juvenile court gazzetted, in Kenya, which is situated within Nairobi Central BusinessDistrict. The court handles juvenile cases within Nairobi Area, Kajiado and Ngong.

IV.

PROSECUTIONSThe Prosecution is carried out by police officers, who have been trained in the handling of juvenile
matters. The Juvenile Court is designed to provide a formal and solemn setting where unrelated or
unauthorized persons are not allowed to be present. The Police prosecutors do not wear uniforms. They
attend to the juvenile in civilian clothes to look friendly.

V.

CONSTRAINTS FACED BY PROSECUTORS IN THEIR ROLE IN THE ADMINISTRATIONOF JUVENILE JUSTICE

Lack of child friendly cells at Police Stations is a major handicap. Section 6 of the Children andYoung Persons Act require that persons under an age of 16 years, while detained at police stations, or while
being conveyed to or from court, or while awaiting to attend or leave, court, should be prevented fromassociating with adverts charged or convicted of any offence. This is not possible without present facilities.
Lack of proper training on how to handle children issues.
Goodwill is required all round for the way forward.

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