Criminal Procedure Amendment Bill [39 – 2010]: public hearings

Meeting report

Centre for Study of Violence and Reconciliation (CSVR) submission
Dr David Bruce, CSVR Senior Researcher in the Criminal Justice Programme, said that the organization did believe that there was a need for an amendment about the training for officials as well as clarity on the interpretation of Section 49 which was being amended. What was of concern was that the amendment expanded the powers of the police. Currently there was a high level of the use of force by the police. If the Amendment Bill were to be passed in its current form, it would aggravate the problem. The statistics released by the Independent Complaints Directorate (ICD) for last year reflected the highest to date of police killings. There were 48 innocent bystanders that were part of that statistic. Studies from the United States of America (USA) had shown that the greatest improvement in police safety had been through those police departments that had minimised the reliance on the use of force. Police departments in South Africa (SA) currently did not keep nor report on statistics on the use of force by their members. Deadly force should be used only against someone who was going to cause serious bodily harm to a police officer or another person in an immediate situation or in the future. The use of force could also be used in a situation where a person posed a serious threat to an officer or another person where there were no other ways of apprehending them. The current Section 49 did embody this principle but it was not clear enough. The principles of proportionality and necessity were supposed to be the guiding principles that shaped the use of force by police.

There were two categories of violent persons: repeat offenders and those who committed violent crimes on a once-off basis. The legislation should identify repeat offenders. The protection of life principle was an ethical principle. When police officers use lethal force it should be in the protection of human life. Basing the use of deadly force on clear ethical principles had a profound internal benefit for law enforcement agencies. The CSVR proposed amendment for Section 49 was on page six of its submission. The principle of necessity where there were no other means to apprehend the individual was a separate sub-clause in the proposal. Section 49 should be clear on the safety of bystanders. Police had had difficulty in interpreting the legislation. The submission provided guidelines for when a person may be regarded as presenting a danger to others. The guidelines could be: where a person was reasonably suspected to have committed multiple acts of violence using a knife or gun; perpetrators of rape where a gun or knife was used. The clause should not have an exhaustive list and the concept of reasonableness could be incorporated. The definition of arrest in Section 49(1)(a) should be amended to restrict the use of deadly force to peace officers which would include police and correctional services officials. There had to be professionalism instilled in police in the use of force and legislation may not do this, there was a need for several other instruments in order to achieve this.

Discussion
Ms D Schäfer (DA) said that Section 49 was not difficult to interpret, why did CSRV feel that it was? It was true that the police were not properly trained and any legislation would not correct this. The proposals from CSRV required interpretation as well where concepts such as ‘reasonableness’ were used. Under what circumstances were the 48 innocent bystanders killed by the police? How could innocent bystanders be protected? ‘Grievous harm’ had been changed to ‘serious harm’. Was this of any significance?

Mr S Swart (ACDP) asked if the amendment in the Bill was not in line with the Walters case.

Dr M Oriani-Ambrosini (IFP) noted there was the self-defence instinct and the hunting instinct (where a suspect was getting away). Training had to be super-imposed on these basic human instincts. The difficulty was clarity in the text and under what circumstances would one interpret each. How much compliance would there be once the line was drawn and the rule was established? The standard training for police officers was to fire 1000 rounds at a fixed target and 1000 rounds on a discriminating target (where a good/bad guy pops out). By asking questions of the police, it had been established that 100 rounds are for a year, the sight adjustment was fixed and there was no requirement to bring in the weapon to change the sight adjustment. Many of the guns were old and there was a loose interface between the barrel and the piece of metal that held the barrel. All this spelt out an unsafe situation for the suspect and the bystander

Professor G Ndabandaba (ANC) asked why the police were killed so often.

Mr J Jeffery (ANC) said that murder, attempted murder and assault with grievous bodily harm were not included in the submission where it was proposed that lethal force could be used; only a rapist and robber were specified. It was strange that the aforementioned were left out, why was this?

Dr Bruce replied that the legislation currently did not articulate what it was trying to communicate in a succinct manner, for example, the concept of future dangerousness. The police legal department had interpreted this as meaning that lethal force could be used against a known serial rapist or killer. Police were thus placed in a double jeopardy situation. It was debatable whether the Act was consistent with the Walters case because it did not integrate this concept of dangerousness. The key focus of the submission was on the threat of violence of the suspect. Aggravated robbery and rape with a dangerous weapon were identified in the submission because these were the types of crimes where repeat offenders were usually involved. There was not any good research done on the circumstances where the police had killed the 48 innocent bystanders. ‘Grievous’ seemed to set a higher threshold than ‘serious’ but the distinction was not clear. The instillation of ethics in police members via the legislation would serve to discourage deviance from the rule. It may be that police officers were killed because of the tendency towards violence of SA society. Police who were killed were mostly off duty. Police tactics and professionalism were key when engaging with perpetrators of violent crime.

Southern African Catholic Bishops Conference (SACBC) submission
Adv Mike Pothier, SACBC Research Coordinator, said that the courts often refused to make armchair criticisms on officers who were out there in the field. Section 49 had to provide clarity for police in the field. The Act as it stood narrowed down the scope for the use of lethal force. There was very little scope in the Act for the ‘trigger happy’ use of force, the question was could this be put across in a clear manner through training to police members. The provisions of the Act had to be as clear as possible. Section 49(2)(a) was a clear improvement and made things more straightforward, however it was a strictly objective test. There was room to bring in a ‘reasonable’ rather than ‘objective’ test. The use of the word ‘threatened’ in Section 49(2)(b) was concerning because it moved the scenario of what the suspect might be capable of doing into the future. ‘Threatened infliction’ was unclear, what did this mean in law? It was too flimsy a basis for allowing the use of lethal force. The use of ‘intended’ rather than ‘threatened’ might be helpful under Section 49(2)(b). It would be desirable to limit the application of the Amendment Bill to peace officers. However it would not be desirable to have similar provision applying to security guards.

Discussion
Mr Jeffery said that an element like intention may not belong in the clause. How was intention established when things were difficult enough in the field.

Prof Ndabandaba said that the issue of home security was crucial.

Dr Oriani-Ambrosini asked should the correct wording not be ‘deadly’ or ‘necessary’ force?

Adv Pothier said that the drafters may decide on whether to use ‘intended’ or ‘threatened’. Intention could be established physically as the act of violence was being carried out. The issue of private security should be left untouched for now as it would make things difficult for those home security companies who came face to face with robbers all the time. Reasonable necessity meant that the police could shoot someone in the leg for example rather than killing them as a means of stopping them from fleeing.

African Policing and Civilian Oversight Forum (APCOF) submission
Mr Sean Tait, APCOF Coordinator, said his submission was based on the understanding that the legislative framework for the use of firearms must be consistent with international norms and standards as well as South Africa’s Constitution. There had to be training and a rights based approach to the spectrum on the use of force by the police in SA. The right training, equipment, use of non-lethal force, systems of review, counseling of officers involved in situations where force was used and the support to victims was important. Section 49(2)(a) and (b) did not meet international standards and this was a concern. The use of force should be used only when there was imminent harm or death and to protect life. The current amendment would give police the authority to use lethal force in a manner that was not proportionate to the suspected offence or the risk posed by the subject. It promoted the use of lethal force to a level where it was not necessary. In its current form, the Amendment Bill encouraged the use of lethal force on any suspect involved in a crime. Proportionality and necessity were pinned to the fact of the suspect resisting or fleeing arrest rather than the threat posed by the suspect. There was no explicit requirement for other practical non-forcible means to be used before resorting to lethal force. The law should specify when firearms could be used in line with international best practice. Lethal force should be used where there was an imminent threat to life; as a last resort; after providing a clear warning of the intent to use lethal force after sufficient time. The law should also state that if the use of force was necessary then the police should exercise restraint, minimize damage and injury and ensure that medical aid was rendered at the earliest opportunity and ensure that the relatives of the injured person were notified. Section 49 should be divided into two sections, the first should deal with the use of force and describe the limitations for the permissible use of force in the following way: that all practical non-forcible methods had been exhausted, that the use of force was strictly necessary and proportionate and that the lowest possible force was used. A second section should deal with the use of force with deadly firearms and must be strictly regulated and limited to self-defence and/or the defence of others. Deadly firearms should be used where there was an imminent threat to life, to arrest a person presenting such danger or resisting authority, or preventing the escape of a person presenting such danger and only when less extreme measures were insufficient to achieve these objectives.

Discussion
Ms Schäfer asked what were the views of APCOF that an arrestor should only be a peace officer?

Mr Tait replied that the common law did make provision for protection of threats against oneself and others; this would cover private arrests and private security officers.

Law Faculty, University of Cape Town (UCT) submission
Prof Pierre De Vos, UCT Professor of Public Law, said that the amendment was trying to do something that the Constitution did not allow. The amendment was trying to alter a discretionary decision into a mechanical one, that is, it was trying to codify something that was not codifiable. There was a concept of proportionality, which was in the Walters case. The Walters judgment set out to say that there was always going to be an application of proportionality and consideration of all circumstances when a decision was taken. This was not easy and the courts understood this and it was not expected that impossible decisions had to be made by police officers. Paragraph 4.4 of his submission underscored this. There were two issues: the first was could one protect oneself when threatened, and the second was, could one use force? The answer to both was that the common law provided for the protection of oneself and force could be used on a proportional basis. The Amendment Bill was saying that if there was a reasonable suspicion that a person had committed a crime then reasonable force could be used. The Amendment Bill took away the discretion that the Constitution provided for every arrestor. It allowed for the killing of suspects even when they posed no threat and violence could be used disproportionately. This was a departure from the letter and spirit of the Constitution.

Mr Mervyn Bennun, UCT Honorary Research Associate, said there was no gap in the law that needed to be filled. The proposals in the UCT submission were that either Section 49 could be left as it was, or the entire Section could be deleted and the common law and jurisprudence from the Walters case could be the guiding law or the model from English law could be followed. The SA common law on the test of reasonableness was excellent and adequate and it was also subjective. The concept of immediacy required a police officer to have excellent foresight in a moment of extreme stress and this was unreasonable and too onerous a burden to place on someone. The problem could also be solved via adequate training.

Discussion
Mr Jeffery said that the Section proposed on page 23 of the UCT submission was a problem in terms of interpretation by the police. If the jurisprudence in the Walters case was followed then one would have a Criminal Procedure Act which had a section on the use of force, but not on lethal force. This was not going to be helpful for police in the field. The proposal on page 23 was so wide, broad and bland that it might not be useful for police in the field. If Section 49 was deleted then one would have an Act that dealt with everything except for the use of force.

Ms D Smuts (DA) said that the proposal on the use of deadly force in an immediate situation was good as it was simple to understand.

Dr Oriani-Ambrosini said that he agreed entirely with everything said in the submission.

Prof De Vos said that the problem of interpretation from the police’s side was just that and the reason why there were public hearings was that the Committee was trying to fix something via legislation that could only be fixed via training. Sub-section 2 encapsulated the proportionality test from the Walters judgment. In the proposed amendment the proviso was an extension of the general rule thus expanding the powers of the police. The proposed amendment went beyond the guidelines set out in the Walters judgment. The Amendment Bill was somewhat illogical as it first said that there was a proportionality test and then went on to state that regardless of the proportionality test, one could always shoot and use deadly force as long as it was reasonably suspected that the suspect had committed a serious crime.

Dr Oriani-Ambrosini said that the Amendment Bill had a proviso, which was the exception, and the rule was a limitation. The proviso was an extension of the limitation set out in the main rule.

Prof De Vos agreed with the explanation from Dr Oriani-Ambrosini.

Mr Bennun said that there were long judgments or legal texts that tried to explain the difficulties of interpretation for Section 49.

Civil Society Prison Reform Initiative (CSPRI) submission
Ms Claire Ballard, CSPRI Researcher, said that the focus of the submission would be on the relationship between the Amendment Bill and the correctional services legislation. The Amendment Bill was not at all that different from the provisions in the previous Act that were declared unconstitutional in the Walters judgment. The current legislation was commensurate with the requirements set out in the Walters judgment. The Correctional Services Act governed the use of force within a prison setting and the language there was very clear: ‘A minimum degree of force musty be used and the force must be proportionate to the objective’. In relation to firearms, the provision in the Act was as follows: ‘A firearm may only be used by correctional services officials who were appropriately trained as a last resort and (a) in self defence, in defence of any other person, to prevent an inmate from escaping or if the security of the correctional centre or inmates or any other person is threatened’. The Act went on to state that before a firearm was discharged, ‘A verbal warning must be given, if the warning was of no effect, a warning shot must be fired and if the warnings were of no effect, the line of fire should be directed in such a manner that the probable result would not be of fatal injury’. This was in line with the proportionality test set out in the Walters judgment. One was going to have the same category of inmates placed in a police facility as one would find at a correctional services facility. What one would if the Bill became law, would be two different standards of regulation for the same category of persons. This would fall foul of Section 9 of the Constitution. The Constitutional Court had held that one could only have a differentiation if there was good reason to do so, that was connected to a legitimate and rational government purpose. There was no good reason to treat inmates from a police facility and a correctional service facility differently.

Discussion
Ms Schäfer asked if there was no distinction between persons already in custody at a correctional services facility and those in custody at a police facility.

Ms Ballard granted that there was a difference but the point of the submission was that there was little difference between persons at police facilities and correctional facilities. Inevitably circumstances would arise in both settings where the use of force might be used and there would be two different pieces of legislation governing the use of force for essentially the same category of persons.

Mr Swart asked if there was anything in the Police Service Act that limited the use of force?

Ms Ballard said she had not found any.

The Chairperson asked how CSPRI would respond to UCT’s proposal that Section 49 could scrapped and the jurisprudence from the Walters judgment be relied upon.

Ms Ballard said that it was an alternative proposal in CSPRI’s submission.

Craig Horne submission
Mr Craig Horne, law graduate from the University of the Western Cape, said that there had been wide criticism of Section 49 and also much confusion in the interpretation of the Act. The definition of deadly force was a good addition in the Amendment Bill. The deletion of the phrase ‘any person lawfully assisting the arrestor’ could have a positive and negative implication. The positive aspect of this was that an arrestor as defined in the Amendment Bill would be the only person who could make arrests. The replacement of the word ‘grievous’ with ‘serious’ meant that there was now a less stringent criterion for when there was a use of deadly force. Police officers had to be trained to properly use their discretion when it came to using deadly force. The omission of the word ‘immediately’ from the sub-section would create the impression that the arrestor had the power to use deadly force even though an attack on him or her had not commenced.

Discussion
Dr Oriani-Ambrosini said that he was comfortable with sub-section 2 without the proviso. It was the training that was important. Sub-section 2 could remain and the proviso could be deleted and the training should regulate everything.

Mr Swart said that it was strange that the phrase ‘any person lawfully assisting the arrestor’ had been deleted whilst the definition of arrestor previously included a person assisting an arrestor. Did the definition of arrestor not include the assistor?

Mr Horne said that the deletion of the words would mean that the legislator was aware that the person lawfully assisting the arrestor had the same rights.

The Chairperson commented that the Committee was going to send these submissions to the police. Thereafter the police would come and make a submission to the Committee.

Institute for Security Studies (ISS) submission
Dr Johan Burger, ISS Senior Researcher: Crime and Justice Programme, said the ISS submission dealt with three primary issues: data on SA’s violent crime, use of deadly force by police, and there being no clear link between the current Section 49 and the police’s ability to address crime through the use of deadly force. The training of the police and the responsible use of firearms were essential when it came to the use of deadly force. When the current Section 49 came into operation in 2003, crime in general reached a peak but there was a decrease in the use of deadly force. In the three years leading up to 2008/09 there was a sharp increase in the number of instances where the police used deadly force. The fears that Section 49 would restrict the police’s ability to fight crime were unfounded. Section 49 had also not prevented police from being able to use deadly force. There was no correlation between the reduction of violent crimes and the use of deadly force.

The ISS recommended that the Amendment Bill should only refer to peace officers. The common law principle of self-defence was adequate for citizens to be able to protect themselves. The ISS recommended that Section 49 should be amended to provide for the use of deadly force. The SA police as well as metropolitan police should develop a single coherent use-of-force policy. The Minister of Police should also issue Regulations on firearm use, firearm training and effective reporting and reviewing of instances where firearms had been used. Parliament should require detailed reports on steps taken by the police to improve, there should be monitoring of police on the use of deadly force. Reviews conducted on a continual basis were extremely important. More should be done to support police and encourage wellness.

Discussion
Ms Schäfer said that the ISS was too optimistic about the state of police training - the state in which it was in was well known. What circumstances did the ISS envisage for not being able to arrest somebody later and how would the police know at the time?

Dr Burger replied that in some instances the perpetrator was know by the police or somebody else knew the perpetrator. The police could then look at the alternative solutions of apprehending the suspect at a later stage perhaps.

Mr Swart asked how the police could take such a decision very quickly and decide to shoot a fleeing suspect now because they were not gong to arrest him later? Was there a problem with the previous wording in the Act?

Dr Burger said that the ISS had formulated a guiding principle which was the protection of life; the idea being that shooting a suspect to prevent an escape was not ideal. All other suitable alternatives should be explored when trying to apprehend a fleeing suspect. How on earth was a police officer expected to determine that a fleeing suspect could cause harm at a later stage. The Amendment Bill referred to reasonable grounds, what constituted reasonable grounds? These were difficult issues, which had to be addressed in policy or regulations. The fact that a suspect was fleeing should not be enough to use deadly force.

Prof Ndabandaba asked if the ISS used statistics from the Human Science Research Council (HSRC).

Dr Burger replied that the ISS had used HSRC statistics in the past but not for this submission.

Mr Swart said if it was not broken should it be fixed, that is, if there was nothing wrong with the current provision, why not leave it as it is?

Dr Burger replied that this may be true but the problem with the current Act was that it focused on the present and future but did not provide for the past where a police officer knew about the suspects previous criminal record.

The Chairperson said that from the public hearings it seemed like the problem really lay with the need for adequate and effective training, it would not matter how perfect the legislation may be. The police would be afforded the opportunity to make a submission as well.

Meeting adjourned.