The way children aged 16 and 17 are dealt with in Bermuda’s criminal courts is at odds with the United Nations’ child treaty, according to a new Supreme Court ruling.

Chief Justice Ian Kawaley said certain parts of the Youth Offender’s Act (YOA) 1950 and the rules governing the way Police treat child suspects were inconsistent with the United Nations Convention Rights of the Child (UNCRC)

However, the Chief Justice ruled that the provisions did not breach the Bermuda Constitution after lawyer Saul Dismont challenged the legislation on behalf of two clients aged 16 and 17. He argued that the two legal rules unfairly treated the teenagers as adults in criminal proceedings.

“My clients’ claim can be simply explained: there is a court specifically designed to accommodate children accused of a crime and all children under the age of 18 should be permitted to appear before it,” Mr Dismont said.

“The YOA provides a separate juvenile court for all children charged with any offence other than murder, attempted murder, manslaughter or infanticide. But it redefines the meaning of ‘child’ to mean a person under 16, not a person under 18, as is the common definition in most other jurisdictions.

“Under the act a child aged 16 and 17 is defined as a young person, consequently these children have to appear in the adult courts under the public and media spotlight sat among the ranks of adult defendants, convicts and criminals.”

Mr Dismont argued the act’s definition of a ‘child’ was at odds with Bermuda’s Children Act 1989 and Age of Majority Act 2001, which say a person should not be regarded as an adult until they are 18, as does the UNCRC.

He maintained that putting 16 and 17 year olds in adult court had a raft of negative consequences.

“Juvenile Court provides absolute privacy, requires the attendance of parents and ensures that children are separated from adult criminals,” Mr Dismont said.

“It is on a different floor to the adult criminal courts and unless you are involved in the proceedings you cannot even gain entrance to the reception area.

“The rooms are considerably smaller and much of the legalese is done away with, there are no wigs and gowns and the children can sit with their lawyers and parents throughout the proceedings.

“There are also two members of the public who preside over each case with the judge, no doubt to bring a wider personal experience to the hearings.

“These measures are all out of recognition that children are vulnerable and those that are guilty often come with a history of abuse, mental health issues or are just finding the teenage years rather difficult.”

Mr Dismont also took issue with rules that allow a child to be interviewed by the police alone, without an appropriate adult being present.

The civil case between Mr Dismont’s two clients and the Attorney-General’s Chambers and the Department of Public Prosecutions was held in December at Supreme Court with the judgment coming out last week.

Chief Justice Kawaley ruled: “It seems clear that not only is the YOA inconsistent with the UNCRC, the formal interview rules, if not the practice, are inconsistent as well.

“On the other hand, it appears to be the case that genuine efforts are being made by the police in practice to recognise the generic vulnerabilities of all children in the UNCRC sense at the custody and interview stage of the criminal process.”

He added: “Although the applicants have demonstrated the important point that their trials in the Magistrates’ Court will be inconsistent with the UNCRC, they have failed to establish that the statutory provisions requiring them to be so tried will on the facts of their respective cases contravene their rights under the Bermuda Constitution.

“The applicants have alternative means of redress as regards any potential conflict between their pending adult trials and their constitutional rights through enforcing the Magistrates’ Court’s common law duty to ensure that their criminal trials are fair.

“How the proceedings in relation to a minor are conducted in any adult court are always subject to modification to ensure that the trial is fair. That such accommodation ought in principle to take place may not have been formally judicially acknowledged previously under Bermudian law.”

Mr Dismont told The Royal Gazette the ruling could have significant implications.

“This ruling identifies that in addition to Bermuda law breaching the Rights of the Child, adult courts are required to consider any modifications that are necessary to accommodate a child and ensure they receive a fair trial,” he said.

“This means that before a child client even sets foot in the adult Magistrates’ Court there should be a preliminary hearing for their lawyer to request modifications of the court to reflect those conditions of the Juvenile Court.

“The government could simply eliminate the expense of such hearings by amending the YOA to say ‘a child means a person under the age of 18 years’. That way every child could appear before the juvenile court.

“Otherwise we are going to just continue to offend United Nations conventions and subject our children to a system that was never designed or intended for them.”