The Legal Problems on the Juvenile and Family Courts Act and Procedure of the Juvenile and Family Court, B.E. 2553: A Case Study of Arrest and Review of Arrest.

Abstract

The Juvenile and Family Court Act and Procedure of the Juvenile and Family Court, B.E. 2553 has changed various principles and essence of the former procedure of juvenile and family law of Thailand (The Act on Establishing Juvenile and Family Courts and Procedure, B.E. 2534). The new Act laid down new specific procedures and amended its predecessor in many areas; in particulars, it expand jurisdiction and measures empowered to the existing Juvenile and Family Court. Due to its spanking new concepts, its enforcement and official interpretation of the new law have not yet been stabilized. These haphazard natures of the law will affect confidence in the criminal justice process, particularly at its main streams of investigating, interrogating and prosecuting the juvenile delinquents.

This research analyzes the problems of applying the new law in Thailand and compares the findings with the similar situations in the United States of America, England and Japan. With the focus on arrest and accompanying process, this thesis finds that there are flaws which render the application of the law by enforcement agencies unnecessarily difficult. In particular, there are problems with regard to the power of the arresting agency and their duty to bring the child to the court for the review of arrest process conducted by the enforcement officer. The thesis finds certain ambiguities in the area of competency and the allocation of power to prevent future and immediate danger caused by juvenile behavior. In many instances, detention centers of children and juvenile are inappropriate and most of the time undermanned and insufficiently equipped; length of detention period is inappropriate. The juvenile courts are overloaded because the court is required to review all arrest cases made by the enforcement agencies. There are no special measures to remedy illegal process with regard to the treatment of children or juvenile by officers.

Comparing procedures in different jurisdictions, this thesis finds that there are differences among them. Especially in the area of arrest, duration of custody and measures after arrested which vary in accordance with individual social and cultural context.

Through legal analysis, this thesis recommends that the Juvenile and Family Court Act and Procedure of the Juvenile and Family Court, B.E. 2553 should be amended. Police officers should be allowed to use more discretion and power in the area of arrest and take into custody of child and juvenile offenders in case there are reasons to believe that they will violate the law or to keep peace of the community. Custodial time prior to the arrest reviewing process should be more flexible than what the law allow at the present time.

Review of arrest should cease to be mandatory in every case, but should be done only in serious cases or when there is ground for objection asserted by concerned party. Court of competent jurisdiction must be change to the court where the offense took place so that evidence relevant to the conduct of arrest can be found.

This thesis also recommends that there are examples of foreign jurisdictions that are suitable for adoption into Thailand. Authority to undertake child and juvenile process should be invested in those officers with special training for particular tasks. Officers should be allowed to use more discretion in the area of child or juvenile recidivists. ‘Primary crime prevention method’, ‘cautioning’ and ‘caution plus’ or ‘support caution’ schemes should be put in place as soon as possible. It is imperative that re-socializing of child and juvenile offenders must be well supported and the family’s right of privacy should be protected from unscrupulous news report.