The case of a ten year old stabbing to death a male adult of 50 has unleashed a flood of interesting and not so interesting comments from numerous quarters and at the same time highlighted the anxiety of the population as to the inadequacy of our laws to deal with such cases. I undertake in this short article to offer an insight on the factors that are taken into account before a case of that nature is decided.

A reading of the two relevant sections of our penal code, sections 44 and 45 which deal with the prosecution of minors under the age of 14, clearly pre-supposes that in Mauritius a child under the age of 14 can be prosecuted for a criminal offence. The ultimate question is whether the child acted with or without discernment. It is a matter for the jury to decide whether discernment exists in a case of murder or manslaughter.

● What is discernment?

In simple terms, it is the capacity of the child to understand the consequence of his or her action, an ability to distinguish good from evil. Guidance is normally sought from medical experts, psychologists and very often from probation officers.

● How is a case involving a child suspected of homicide decided?

Once the police enquiry is over and the case submitted to my office, the decision whether to prosecute or not, is taken on the basis of two important considerations, namely (a) the sufficiency of the evidence; and (b) the public interest in putting a child under 14 on trial before a jury.

The first consideration is an assessment of the quality of the evidence, its reliability and credibility. It is based on the prosecutor’s objective assessment of the evidence, including the impact of any defence and any other information that a suspect may have put forward to buttress his or her defence.

The public interest component addresses essentially the best interest and welfare of a child. As a rule, it is recognized that the criminal justice system should treat minors differently from adults and that significant weight must be attached to the age of the suspect if he is under the age of 18 or 14 for that matter.

The best interests and welfare of a child imply such consideration as to whether a prosecution is likely to have an adverse impact on his or her future prospects that may be disproportionate to the seriousness of the offence. There are strong reasons militating against sending a child to face a court if he or she has committed a petty offence such as a shoplifting for the first time. But that may not necessarily be the case for more serious offences especially where it is not the child’s first encounter with the authorities.

The bottom line is that the younger the person the less likely it is that a prosecution is required. Additionally the prosecutor must take into account the obligations of Mauritius arising under the UN Convention on the Rights of the Child in particular articles 3, 9,12, 37 and 40 and other relevant international instruments such as the Beijing rules.

A decision involving a child offender cannot be taken lightly and only after a full review of all the factors mentioned above. In the case of the little girl suspected of homicide the police enquiry is still in progress. A decision to prosecute or not can only be considered after all the circumstances of the case are fully enquired into including the submission of medical and psychological reports relating to the issue of discernment.

This article first appeared in the December issue of the THE MONTHLY LEGAL UPDATE NEWSLETTER published by the offi ce of the DPP.