Criminal Procedure Amendment Bill [B59-98]: discussion

JUSTICE PORTFOLIO COMMITTEE
23 September 1998
CRIMINAL PROCEDURE AMENDMENT BILL: DISCUSSION

This meeting was not minuted. The following report emanated from this meeting:

This report appeared in the Announcements, Tablings and Committee Reports, dated 23 September 1998.

Report of the Portfolio Committee on Justice on the Criminal Procedure Amendment Bill [B 59 - 98] (National Assembly - sec 75), dated 23 September 1998, as follows:

The Portfolio Committee on Justice, having considered the subject of the Criminal Procedure Amendment Bill [B 59 - 98] (National Assembly - sec 75), referred to it, submits the Criminal Procedure Amendment Bill [B 132 - 98] (National Assembly - sec 75).

The Committee further wishes to report as follows:
1. The Committee noted that the Bill aims to deal with the detention of awaiting-trial children in the Criminal Procedure Act, 1977 (Act No. 51 of 1977) (hereafter referred to as the Act), rather than in the Correctional Services Act, 1959 (Act No. 8 of 1959), as is the case at present and, at the same time, that it aims to address certain problems which have come to light in the application of the present provisions dealing with the detention of awaiting-trial children.

2. The Committee, by way of introduction, wishes to highlight what the Bill sets out to achieve.
(1) The Bill, similar to the present provisions relating to the detention of awaiting-trial children, commences with a general rule, prohibiting the detention of awaiting-trial children in prisons, police cells or lock-ups. This is the ideal situation and is the ideal towards which the Government is striving. Because of numerous factors, amongst others, the lack of adequate secure care facilities to detain children who are accused of having committed serious offences, it is regrettably necessary to qualify this general rule with a few exceptions.

(2) The broad structure of the Bill allows for three categories of children to be detained, pending the finalisation of their trials and sentences. These categories are largely determined by the offences which the child in question is alleged to have committed. The proposed new Schedule 8 to the Criminal Procedure Act, 1977, consequently plays a pivotal role in the application of these new provisions. The offences set out in this Schedule include the most serious of all offences, which, in turn, means that only the most dangerous and hardened awaiting-trial children should be detained in either a police cell, lock-up or a prison.

(3) The first of these categories is in respect of children who have committed so-called "Non-Schedule 8" offences. They may be detained in a police cell or a lock-up for a maximum of 48 hours, as defined in section 50 of the Act, pending their first appearance in court, but only if certain very stringent requirements have been met. The second category relates to children who have committed "Schedule 8" offences. They can also be detained in a police cell or lock-up for 48 hours but the requirements which have to be met before detention can take place, are less onerous than the previous category. The third category deals with children who can be detained in a prison after their first court appearance. These children can only be remanded in custody to a prison if they have been accused of having committed a "Schedule 8" offence and then only if certain further stringent requirements have been met, amongst others, if the detention is in the best interests of the child, if it is in the interests of the administration of justice or the safety or protection of the public and, very importantly, if the person in question cannot be placed in a secure care facility.

(4) The Committee also wishes to highlight a further safety feature which has been built into the legislation in the interests of children, namely that no child under the age of 14 years may be detained in a prison, unless the prosecuting authority has confirmed that the child in question is in fact to be charged with a "Schedule 8" offence and that there is sufficient evidence to institute a prosecution in respect of that offence.

(5) The Committee furthermore wishes to point out that one of the implications of this Bill is that, as a general rule, no child who is accused of having committed an offence other than an offence referred to in Schedule 8 will be able to be detained in a prison and he or she will only be able to be detained for a maximum of 48 hours, prior to his or her first court appearance, in a police cell or lock-up. The exceptions to this rule are where a child is awaiting trial in respect of a "Schedule 8" offence or where a child has a previous conviction in respect of murder or rape, or where the child is alleged to have committed any other offence of a serious nature in conjunction with a gang or syndicate.

3. A number of concerns were raised by the Committee during its deliberations on the Bill or in submissions to the Committee. These concerns, as well as other requests of the Committee in respect of the Bill, are dealt with below:

(1) Since the Bill contains completely new provisions relating to the detention of awaiting-trial children, the Committee requests the Department of Justice to draft a memorandum, explaining the provisions of the Bill and the reasoning behind the provisions. This memorandum, together with the Bill and this resolution, must be submitted to all role-players who will be affected by the application of the legislation, including the Departments of Correctional Services, Welfare and Safety and Security, as well as to this Committee. When circulating the memorandum, the Department is cautioned not to impinge on the independence of the judiciary in any way.

(2) Bearing in mind the problems which arose when the Correctional Services Amendment Act, 1994, was put into operation in 1995, which, in effect, gave rise to the release of all awaiting-trial children in police cells, lock-ups or prisons the Committee wishes to highlight the transitional provisions contained in the Bill. They have been designed to ensure a smooth release of children, who in terms of this legislation will be required to be dealt with in accordance with the new provisions. The Committee consequently requests that an intersectoral plan of action be put in place by role-players (particularly the Departments of Justice, Correctional Services, Safety and Security and Welfare), relating to the implementation of the legislation. This plan of action should, amongst others, set out procedures to ensure the timely identification of detained children, the categories into which they fall in terms of the provisions and the arrangements required to be made by court, police, correctional services and welfare officials, so as to avoid any blockages or problems. Although the Committee requests that the legislation be implemented as a matter of extreme urgency, it wishes to emphasise the need for proper planning in this regard. The plan of action should also be submitted to the Committee.

(3)(a) The question of availability of secure care facilities, which have now been given a statutory framework, and which are specially designed to accommodate awaiting-trial juveniles who are accused of having committed serious offences and which must be able to contain these "high-risk" children from a physical, emotional and behavioural point of view, forms an integral part of this legislation. The legislation consequently places a responsibility on the Department of Welfare to play a central role in the application thereof. The Committee, however, expressed its concern regarding the lack of adequate secure care facilities available for the detention of awaiting-trial children and particularly children who have been charged with serious offences. From information available to the Committee it would seem as if there are only three of these secure care facilities in operation at present. It did, however, note that another nine are nearing completion, some of which are to open in the near future. Despite the existing legislation and the proposed legislation, which is intended to address the lack of adequate secure care facilities, the Committee pointed out that this lack of facilities creates enormous difficulties for the magistracy, who are required to carry out the letter of the law and to prevent children from being detained on the one hand and who are also expected to protect society from dangerous juvenile criminals on the other. The Committee, mindful of the scarcity of resources and financial constraints, nevertheless urges the Department of Welfare to do everything in its power to prioritise and expedite the opening of these and other facilities and, in conjunction with the Department of Justice, to submit a report to the Committee in this regard. This report must set out the State's programme and progress in respect of the establishment and functioning of secure care facilities which are intended to accommodate dangerous juvenile offenders. The report must also reflect the situation regarding existing facilities.

(b) During the deliberations on the Bill, it was brought to the attention of the Committee that abscondments of children from places of safety and even secure care facilities are commonplace. Since the Committee was not able to deal with this aspect in depth, due to time constraints, it requests the Department of Justice to investigate the matter in conjunction with the Department of Welfare and to report back to the Committee on the situation in this regard.

(4) In order to ensure that all aspects of these new provisions are applied properly and in the best interests of children, the Committee has seen fit to include a clause in the Bill which requires the Minister of Justice to make regulations, prescribing procedures to be put in place to assess the proper application of, or compliance with the legislation and to assess the implications or effectiveness thereof, in conjunction with other State Departments, where necessary. The Committee wishes to stress the importance of this monitoring and evaluation process and requests that the implementation of these particular provisions receives priority attention.

(5) In terms of the present provisions dealing with the detention of awaiting-trial children (section 29(3) of the Correctional Services Act, 1959), the police official responsible for the detention of any child prior to his or her first appearance in court for no longer than 48 hours, must provide the court with a written report, setting out the reasons for the detention of the child in a police cell or lock-up. It has come to light that this requirement is not always complied with by officials responsible for the detention of children and that it is also very difficult to monitor the situation so as to ensure compliance. This requirement is re-enacted in the proposed section 71A(4) of the Act. The Committee consequently requests the Minister of Justice to take the matter up with the Minister for Safety and Security, who must be requested to take remedial steps to ensure that the situation does not persist and to report back to the Committee on the steps that have been taken to address the problem. Police officials must also be reminded of these provisions and of their legal duty as police officials to carry out the letter of the law, the failure of which could result in disciplinary action or even worse. The Committee has requested that the provisions of proposed section 71A(7)(l) of the Act be highlighted in this regard. In terms of this subsection the courts are required to consider appropriate evidence when they make a decision on whether to detain or further detain a person in prison, including evidence in respect of these reports.

(6) Proposed section 71A(6)(e) of the Act, like the existing section 29(5)(a) of the Correctional Services Act, 1959, requires awaiting-trial children to be brought to court every 14 days to have their detention orders reviewed. Whilst there was a strong call in some submissions to the Committee for this period to be reduced to 7 days in the best interests of children, and whilst the Committee is of the opinion that this constitutes the ideal position, it realises that it would not be practicable to do so in the light of the pressure on existing State resources. In the light of allegations that this is not always adhered to, the Committee requests the Minister of Justice to put mechanisms in place in order to ensure that this aspect of the legislation is complied with.

(7) Proposed section 71A(10) of the Act, like the existing section 29(5A)(d) of the Correctional Services Act, 1959, provides that the highest priority shall be given to the most expeditious processing of the trial of a child. Whilst the Committee strongly endorses the sentiments contained in these particular provisions, it expresses the concern that the trials of children are often unduly delayed. The Committee consequently calls on the Minister of Justice, in conjunction with the Ministers of Welfare, Correctional Services and Safety and Security, to submit joint guidelines which are intended to address present blockages and problems in the expeditious finalisation of trials of children, in an attempt to ensure that these sentiments are concretised as far as possible.

4. The Committee requests the Department of Justice to report back to it on all the aspects raised in this resolution within 6 months from the date of the resolution.
Report to be considered.