Young People and the Police (NSW)

In New South Wales, a young person aged 10 or older can be arrested and charged with a criminal offence. The process of being arrested is very similar for adults and young people; however, the police are required to take extra precautions when dealing with young people. Many of these precautions are connected to the way the young person is interviewed and dealt with once the charge has been laid. This article looks at the ways young people are dealt with by police in New South Wales.

Arresting young people

As with adult offenders, the police must have a reasonable suspicion that a young person has committed a crime before they arrest them. 

Fingerprinting and photographing young people

If a young person is under 14, the police must have a court order to take their fingerprints or photograph. However, a young person aged 14 or older can have their photograph and fingerprints taken by the police in order to identify them without a court order.

A young person’s fingerprints and photographs will be destroyed if the young person is found not guilty of the offence.

Support person and interviews with police

A support person (usually a parent) must be present when the police interview a person under 18. It is important for the support person to be in attendance, to ensure the young person understands what is going on and that they are treated fairly. The support person is also there to make sure the young person’s rights are not breached. 

The support person should be an adult who is not connected to the investigation. 

Getting legal advice

It is incredibly important that children get legal advice – and legal advice early if they are the subject of a police investigation. There are a number of different diversionary schemes that a child might be eligible for, but these depend on the kind of offence that has been committed. Critically, in order to be eligible for some of these kinds of diversions, the child needs to admit to the offence. There is inherent danger in participating in an interview with the police in these circumstances if they have not had legal advice prior because:

1. The offence might not be able to be dealt with by way of a caution;
2. Even if one of the offences can be dealt with by a caution, if the child admits to something else that cannot, then that evidence can be used in a police case against the child. 

Diversion

Under the Young Offenders Act 1997, the police may divert a juvenile offender away from court, by offering the young person a warning, a caution or by referring the matter to a youth justice conference. It is of critical importance to understand that not every single offence is capable of being dealt with in these ways, and there are preconditions for eligibility that need to be met (like admitting the offence) so getting legal advice about this is critical.  The diversionary options available in New South Wales are explained further below:

1. Warning

A warning can be given to a young person at any place. It cannot have conditions attached or additional sanctions imposed. Police can keep a record of the warning and also notify the young person’s parents.

2. Caution

A caution can only be given once a young offender consents to being dealt with by way of diversion and admits the offence.  

In determining whether to deal with a matter by way of a caution, the police will consider how serious the offence is, the degree of violence involved (if relevant), the harm to any victim, and whether (and how often) the young person has been dealt with before. 

When a young person is cautioned, a caution notice is given to them which outlines the nature, effect and purpose of the caution. The young person must sign this caution for it to become valid.

3. Youth Justice Conferencing

Either the Children’s Court or the police may refer a matter to Youth Justice Conferencing when a young offender has admitted an offence and consented to the holding of a conference. A conference brings juvenile offenders, their families and the victims of their offending together to discuss the offending and how people have been affected. The conference may result in an apology, reparations or the young person agreeing to take steps to avoid further offending. 

In New South Wales, juvenile offenders will face the Children’s Court if their matter does not receive one of the diversionary options above.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.