British Bail System and the Reform of China's Juvenile Judicial System

Author: Xu Jian, Editor-in-Chief
Publisher:
Publishing Date: 2005-03-01
Features: This work, dedicated to the readers, is the result of collaborative research by Chinese and British experts and scholars in recent years. As early as the early 1990s, East China University of Political Science and Law began academic exchanges and discussions with the China-UK Cultural Exchange Association, the British Cultural Exchange Office in Shanghai, and Luton University on issues such as the status and characteristics of juvenile delinquency and the Chinese-UK juvenile justice systems. Subsequently, through academic exchanges, visits, and cooperation, both sides conducted pioneering explorations in areas such as judicial fairness, the protection of juvenile rights, and the theory and practice of juvenile justice systems. By the end of 2001, based on multiple academic exchanges and visits, we focused on researching the British bail system and explored whether China could adopt or introduce this system to enhance and promote the reform and improvement of China's juvenile justice system. Why did we prioritize the issue of bail? As is well-known, China's juvenile justice system was established in the 1980s. Starting with the establishment of a juvenile court in Shanghai's Changning District People's Court in 1984, under the affirmation, continuous promotion, and support of the Supreme People's Court, 100+ juvenile courts were established nationwide by 1988, 862 by 1990, and 2,763 by June 1992. By 1994, juvenile courts had been established in most grassroots courts nationwide, and some intermediate and grassroots courts had even established juvenile criminal courts and comprehensive juvenile case courts. By the end of 1994, there were 3,369 juvenile courts nationwide. During this period, China's juvenile justice system emerged and developed rapidly, forming an organizational framework and basic institutions. This is reflected in:
1. Not only were juvenile courts established nationwide in courts, but specialized juvenile prosecution teams, departments, and offices were also established in procuratorates, and corresponding organizational structures were set up in public security, judicial, and other departments.
2. Laws and regulations related to juvenile justice were promulgated, including the Protection Law of the People's Republic of China on Minors, as well as regulations, decisions, and notices formulated by the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice, as well as local regulations in various provinces and cities.
3. A guiding philosophy and special procedures different from those for adults were formed for juvenile justice, such as the principle of education, reform, and rehabilitation, the principle of prioritizing education over punishment, investigation procedures, educational procedures, and the requirement for parents or guardians to appear in court during the trial process. Although difficulties, problems, even setbacks and criticisms continued to arise during development, the scientificity, necessity, inevitability, and practical effects and impact of juvenile justice have been widely recognized and accepted. Theoretical circles and practical departments have already produced a considerable number of dedicated experts and scholars who are continuously researching, exploring, and advancing the development of China's juvenile justice system. The overall framework system of China's juvenile justice has taken shape, and the trend of its existence and development is irreversible. Starting in the mid-1990s, as China's legal system reform progressed, developed, and improved, a group of experts and scholars in theoretical and practical circles focused on learning from and foreign research trends and advanced experiences, combining them with China's realities and practices to continuously study and think about issues such as the substantive and procedural aspects, institutions, operational norms, and juvenile justice, making many pioneering, innovative, and experimental contributions, such as the classification and handling of juvenile robbery cases, fraud cases, the designation of jurisdiction for juvenile cases, juvenile courts, non-custodial and non-imprisonment measures, community service orders, community corrections orders, supervision orders, and the record-expungement system for first-time offenders, as well as the system of involving appropriate adults. These practices and researches generally reflect a trend: that the juvenile justice system still has many shortcomings and cannot stagnate in the current handling, prevention, and control of juvenile delinquency and crimes. There are still many areas that need further reform and improvement, and with the progress of the legal system, there is increasing emphasis on protecting the rights of minors, ensuring judicial fairness, and improving specific institutions and safeguards. Researching and studying the British bail system and the system of involving appropriate adults is essentially about finding and exploring the key breakthrough points for the next round of advancing China's juvenile justice system. Second, with social progress and development, human rights and judicial fairness have become increasingly respected and in national political life and the judicial field. On March 14, 2004, the 10th National People's Congress passed the Amendment to the Constitution of the People's Republic of China, confirming and adding the clause "the state respects and safeguards human rights" to the constitution, fully reflecting the trend and direction of China's legal system in emphasizing the protection of human rights. Juvenile rights are a landmark aspect of human rights protection and are highly valued and by the public and the judicial systems of various countries. In recent years, our discussions on judicial fairness, bail, and the system of involving appropriate adults have essentially focused attention on this pivotal point of human rights protection. Freedom is one of the most important rights of a person. Once a person is deprived of freedom, many other rights become enjoyed. Due to their age, minors are physiologically, psychologically, intellectually, and capacitatively a vulnerable group that is immature and relatively lacking in ability, a group that has not yet developed the capacity to fully protect itself. Therefore, when minors enter the criminal justice process, effective measures must be taken to avoid depriving them of their freedom. However, in China, on one hand, because bail is a coercive measure, laws and regulations require it to be used cautiously, but judicial personnel have not fully considered the significant differences in rights protection between bail and arrest, and in practice, they tend to prioritize arrest over bail. On the other hand, minors, like adults, have a very low actual application rate for bail. In recent years, with a significant increase in awareness of rights, incomplete statistics show that in Shanghai's public security departments, the application rate for bail is as high as 30%, in procuratorates about 10%, and in courts about 4-5%. On the other hand, in terms of understanding, judicial convenience and crime-fighting are given more priority or consideration than the concept of human rights. As long as a case enters the criminal justice system, except for those not considered guilty, coercive measures are typically used to ensure the smooth progress of the case. In practice, detention and arrest are often the choice, with arrest replacing investigation, trial, punishment, and bail. In contrast, bail, which is also a coercive measure, is only applied when it is clearly legally necessary to impose a fine, short-term imprisonment, or probation, and sometimes even when it is considered that since arrest is not necessary, bail can be used as a precaution for those who may not need criminal punishment. Third, from the perspective of respecting and safeguarding human rights and further advancing China's judicial reform process, the British bail system and its guiding philosophy are worth studying and. Bail has a history of over 200 years in the UK and has become a fundamental system of the UK's criminal justice system, having a significant impact on countries worldwide and being recognized as an important principle for protecting the fundamental rights of defendants or suspected persons during criminal proceedings. In 1994, I went to the UK for a special study on the application of non-custodial and non-imprisonment measures in juvenile crime. Six years later, in September 2001, I led a five-member academic exchange and study delegation to the UK at the invitation of the China-UK Cultural Exchange Association for a 10-day further exchange and study on various aspects of juvenile justice. These two direct and multi-faceted contacts and studies gave us a strong sense of the UK's significant efforts in developing and reforming its juvenile justice system, and many of its good experiences are worth serious study or. Bail has a relatively mature and systematic theory and experience, making it a valuable subject for research and in China's juvenile justice system. Other areas, such as community corrections, probation supervision, the system of involving appropriate adults, Youth Offending Teams (YOTs), and private juvenile prisons, are also highly enlightening and have certain significance when combined with China's realities, especially in terms of their scientific argumentation and standardized operations, which left a particularly deep impression. In the UK, anyone entering the criminal justice system has the right to apply for bail, and bail can only be granted by the court, with more than 95% of applications being approved. They have a complete system that safeguards citizens' rights during legal proceedings while ensuring the smooth progress of judicial activities and significantly saving judicial costs, which is also beneficial to society economically. From legal theory to specific operations, it is worth studying and in combination with China's situation. As a result, both Chinese and British sides, after research, reached a consensus and have organized three seminars on this topic: The first seminar involved mutual introductions of the relevant systems for comparison, mainly with the British introducing the history, guiding philosophy, procedures, and practices of the UK's bail system, while the Chinese introduced the special nature, regulations, and operational procedures of China's bail, which differs from the British system, to compare their characteristics. The second seminar, China's realities, explored from an operational level whether China needs to the theory and experience of the British bail system, focusing on whether it is necessary to expand the application rate of bail in China's juvenile justice system to reduce detention and arrest, and discussing the pros and cons, conditions, and risks of expanding its application in China. The third seminar, fully affirming the aspects of the British bail system, focused on practical testing, summarization, and specific proposals for improving the application rate of bail, as well as how to evaluate and reduce risks, and how to gain social support to ensure social safety and prevent judicial activities from being disrupted. Personally, I believe this book is based on the three seminars and thus has three characteristics:
1. Sino-British cooperation, integrating the experiences and research findings of experts and scholars from both sides, reflecting views and materials that are relatively new and accurate;
2. A combination of theory and practice, with a focus on practice, on how to combine the British bail concept and practices with China's situation to achieve tangible results in advancing judicial reform, human rights protection, and the improvement of the legal system;
3. Focusing on juvenile justice to find feasible ways to learn from and, through reflecting the special nature of juvenile justice within the current legal framework to make breakthroughs and innovations, both in advancing and in making it operational. We believe that the experience of bail to improve the application rate of bail in China and promote the system of involving appropriate adults is a key experiment and exploration for the development of China's juvenile justice system to achieve new progress and breakthroughs, which has important theoretical and practical significance. All three seminars were supported financially by institutions such as the China-UK Cultural Exchange Association and the EU Rethink Rights Center. Ms. Malena, former chair of the China-UK Cultural Exchange Association, put in hard work and made numerous contributions to the academic seminars and visits. Prof. John Bitt of Luton University, the Director of the Youth Department at Northamptonshire, and social work expert Cadi Pranell, among other British scholars, inspired us with their dedication to scholarship and their work methods, which are worth learning from. The seminars were also supported by leaders from the Shanghai Municipal People's Congress, Deputy Director of the Shanghai Municipal People's Government, former director of the Shanghai Prison Bureau, as well as leaders from the Shanghai Higher People's Court, the Shanghai Procuratorate, the Shanghai Municipal Public Security Bureau, the Shanghai Prison Bureau, the Shanghai Municipal Committee of the Communist Youth League, and the Shanghai Municipal Women's Federation. We express our heartfelt gratitude. The seminars were attended by representatives from the Supreme People's Court, the Supreme People's Procuratorate, the China Youth Crime Research Association, and the British Children's Charity, as well as representatives from Beijing, Tianjin, Zhejiang, Fujian, Jiangsu, and Yunnan provinces and cities, as well as experts and scholars from practical departments, universities, and the Shanghai Academy of Social Sciences. This ensured the seminars achieved good results, with participants expressing great inspiration and satisfaction. We sincerely thank the representatives and friends who participated in and supported the seminars. The Chinese side of the seminars was jointly organized by East China University of Political Science and Law and the Shanghai Police Society, with the Youth Crime Research Institute and the International Exchange Center of East China University of Political Science and Law handling the specific arrangements. Leaders from East China University of Political Science and Law, including the Party Secretary Du Zhichun, President He Qinhua, Vice Presidents Tong Xirong, Mo Fuchun, and Wang Limin, as well as the Executive Vice President of the Shanghai Police Society, Yang Jun, Zhong Yonggen, Vice Presidents Shen Weiji, and Zhang Zhuzhu, attended the seminars and delivered speeches. The entire research team of the Youth Crime Research Institute and some graduate students from the Youth Crime Research, Criminology, and Criminal Procedure Law programs participated in the seminars and work. The success of each seminar was made possible by the support of leaders and the cooperation and efforts of various departments, for which we extend our gratitude. Over 100 papers and materials were received for the three seminars. Due to the limited length of the book, a small number of papers had to be omitted, for which we apologize. The papers and articles included in the book, out of respect for the authors, have not been modified in terms of views, arguments, format, or style, except for some minor textual changes. There may be areas worthy of discussion and consideration, and we welcome your feedback.