Preventive detention

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Preventive detention is an imprisonment that is putatively justified for non-punitive purposes, most often to prevent further criminal acts.

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Preventive detention sometimes involves the detention of a convicted criminal who has served their sentence but is considered too dangerous to release.

Remand or pre-trial detention and involuntary commitment are sometimes considered a form of preventive detention.

Specific jurisdictions

Australia

Australia laws authorize preventive detention in a variety of circumstances. [1] For example, mandatory detention in Australia (a form of immigration detention) is applied to asylum seekers who arrive in Australian territorial waters or territory until their status as an asylum seeker is established.

In New South Wales, preventive detention regimes, such as Serious Crime Prevention Orders ('SCPOs'), allow the state to detain, continuously monitor, and limit particular activities of those convicted of serious sexual and violent offences. [2] A range of state officials may apply to the NSW courts to create an SCPO consisting of conditions deemed appropriate, [3] such as an obligation to report to a police station and prohibitions on travelling beyond a certain region. Failure to comply with an SCPO carries a maximum penalty of five years' imprisonment. [4]

SCPOs have been described as a "watershed extension of state power in New South Wales" by legal academics, and were strongly opposed by the legal community when they were introduced. [5]

Costa Rica

In Costa Rica, the 1998 Criminal Proceedings Code allows for a pre-trial remand of 12 months if the person is considered a "flight risk". [6] If the case is considered complex in nature, the detention can be increased to up to three and a half years or more of imprisonment. As of 23 May 2013, over 3,000 people were in pre-trial detention. [6]

Denmark

In cases that connected to riots or other situations involving public safety risks, the police can detain a person for up to twelve hours without involving the courts. [7] [8] [9] Until 2009, the limit was six hours. This change was part of the so-called Lømmelpakke (da). [7] [9]

Germany

In Germany, preventive detention (German: Sicherungsverwahrung) is an indeterminate sentence that follows regular imprisonment, imposed as part of a criminal sentence. [10] It is handed down to individuals who have committed a grave offence and are considered a danger to public safety. The suitability of each preventive detention has to be reviewed every two years to determine the ongoing threat posed by the individual. Preventive detention is typically served in regular prisons, though separated from regular prisoners and with certain privileges.

Sicherungsverwahrung is imposed in the original judicial sentence. It could formerly be subsequently imposed under certain circumstances, but the practice of subsequent incapacitation was ruled a violation of Art 7 of the European Convention on Human Rights by the European Court of Human Rights. [11] The Federal Constitutional Court of Germany also issued a verdict on Sicherungsverwahrung in May 2011, deeming it unconstitutional. [12] In response, a new law regulating Sicherungsverwahrung was passed in November 2012. [13]

In 2023 27 supporters of Last Generation (climate movement) were preemptively imprisoned after the group announced protests of the International Motor Show Germany. [14]

India

In India, preventive detention is for a maximum period of three months, a limit which can be changed by the Parliament. According to Preventive Detention Act 1950, it can be extended beyond three months up to a total of twelve months, only on the favourable recommendation of an advisory board, made up of High Court judges or persons eligible to be appointed High Court judges. [15]

Preventive detention in India dates from British rule in the early 1800s, and continued with such laws as the Defence of India Act, 1939 and the Preventive Detention Act 1950. [16]

The controversial Maintenance of Internal Security Act was originally enacted by the Indian parliament early during Indira Gandhi's prime ministership in 1971. However it was amended several times during "The Emergency" (1975–1977), leading to human rights violations. It was subsequently repealed after Indira Gandhi lost the election in 1977, and the new government took over. [17]

India's National Security Act of 1980 empowers the Central Government and State Governments to detain a person to prevent him/her from acting in any manner prejudicial to the security of India, the relations of India with foreign countries, the maintenance of public order, or the maintenance of supplies and services essential to the community it is necessary so to do. The act also gives power to the governments to detain a foreigner in a view to regulate his presence or expel from the country. The act was passed in 1980 during the Indira Gandhi Government. [18] The maximum period of detention is 12 months. The order can also be made by the District Magistrate or a Commissioner of Police under their respective jurisdictions, but the detention should be reported to the State Government along with the grounds on which the order has been made. [19] The National Security Act along with other laws allowing preventive detention have come under wide criticism for their alleged misuse. The act's constitutional validity even during peacetime has been described by some sections as an anachronism. [20]

Japan

In Japan, pre-trial detention of a suspect can be for up to 23 days without charge. The length of detention, up to the maximum period, is at the discretion of the public prosecutor and subject to the approval of local courts. It can also be extended. [21]

Malaysia

In Malaysia the Internal Security Act 1960 (ISA) was a preventive detention law that was enacted after Malaysia gained independence from Britain in 1957. The ISA allowed for detention without trial or criminal charges under limited, legally defined circumstances. The ISA was invoked against terrorism activity and against anyone deemed a threat to national security. On 15 September 2011, Najib Razak, the then Prime Minister of Malaysia, said that this legislation would be repealed and replaced by two new laws. [22]

On 17 April 2012, the Security Offences (Special Measures) Act 2012 (SOSMA) was approved by the Malaysian Parliament as a replacement for the ISA. It was given the royal assent on 18 June 2012 and gazetted on 22 June 2012. [23]

New Zealand

New Zealand has two types of preventive detention. The one called "preventive detention" is an indeterminate sentence of imprisonment. The other is called a "public protection order" and is a civil detention.

"Preventive detention" is an indeterminate sentence of imprisonment, similar to life imprisonment and second only to it in terms of seriousness. It may be given to offenders aged 18 or over who are convicted of a qualifying sexual or violent offence, and the court is satisfied that the person is likely to commit another qualifying sexual or violent offence if they were given a determinate sentence of imprisonment. [24] Preventive detention has a minimum non-parole period of five years in prison, but the sentencing judge can extend this if they believe that the prisoner's history warrants it. A total of 314 people were serving terms of preventive detention in 2013, of whom 34 were on parole. [25] Alfred Thomas Vincent was in prison on preventive detention for 52 years from 1968 to 2021. [26]

A public protection order is a civil detention order for someone who has finished a finite prison sentence and still poses a very high risk of serious sexual or violent reoffending. The person is detained in a secure civil residence inside the perimeter of a prison. [27]

Singapore

In Singapore, preventive detention is a special type of imprisonment reserved for recalcitrant offenders at least 30 years old with at least three previous convictions since turning 16. This detention order, which may last between seven and 20 years, does not allow remissions for good behaviour. It is usually used to detain offenders are deemed a threat to society, with the purpose of isolating them for the protection of society. [28]

For example, in 2004, Chong Keng Chye was sentenced to 20 years of preventive detention for abusing a child to death and for various cheating offences. He had several past convictions for cheating and violent crimes since he was 16. [29] [30] In another case, Rosli Yassin, was sentenced in 2012 to 12 years preventive detention for culpable homicide and cheating, before the detention order was increased to 20 years upon the prosecution's appeal. [31] [32] Drug trafficker Abdul Kahar Othman served ten years of preventive detention from 1995 to 2005 due to a lengthy criminal record of drug offences. [33] [34]

In February 2024, Singapore passed a dangerous offenders law where dangerous offenders can be held indefinitely even after they have completed their sentences for certain offences such as rape, culpable homicide and abuse of minors. The law will apply to those from the age of 21 and above and will be assessed on an annual basis. [35]

South Africa

Under Apartheid, the government of South Africa used preventive detention laws to target its political opponents. These included, notably, the Terrorism Act of 1967, which gave police commanders the power to detain terrorists—or people with information about terrorists—without warrant. [36]

United Kingdom

England and Wales used to have provisions, introduced by the Labour Government in 2003, to deal with dangerous offenders similar to what is used in Canada. However, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 abolished what was called Imprisonment for Public Protection (IPP) without replacement, although offences committed prior to the coming into force of the 2012 Act may still trigger IPP.

United States

In the United States, the Sixth Amendment to the United States Constitution guarantees the right to "a speedy and public trial". Thus, arrested persons may not be held for extended periods of time without trial.

However, since the passage of the National Defense Authorization Act for Fiscal Year 2012 (NDAA), controversy has broken out as to whether or not the U.S. government now has the power to indefinitely detain citizens. Section 1021 and 1022 of the legislation enacted policies described by The Guardian as allowing indefinite detention "without trial [of] American terrorism suspects arrested on U.S. soil who could then be shipped to Guantánamo Bay". [37]

Convicted persons can be held indefinitely as a "dangerous offender".

See also

Related Research Articles

Life imprisonment is any sentence of imprisonment for a crime under which convicted criminals are to remain in prison for the rest of their natural lives. Crimes that warrant life imprisonment are extremely serious and usually violent. Examples of these crimes are murder, torture, terrorism, child abuse resulting in death, rape, espionage, treason, illegal drug trade, human trafficking, severe fraud and financial crimes, aggravated property damage, arson, hate crime, kidnapping, burglary, robbery, theft, piracy, aircraft hijacking, and genocide.

<span class="mw-page-title-main">Federal prison</span> Type of prison operated under the jurisdiction of a federal government

A federal prison is operated under the jurisdiction of a federal government as opposed to a state or provincial body. Federal prisons are used for convicts who violated federal law, inmates considered dangerous (Brazil), or those sentenced to longer terms of imprisonment (Canada). Not all federated countries have a legal concept of "federal prison".

In Canada and England and Wales, certain convicted persons may be designated as dangerous offenders and subject to a longer, or indefinite, term of imprisonment in order to protect the public. Dangerousness in law is a legal establishment of the risk that a person poses to cause harm. Other countries, including Denmark, Norway, and parts of the United States have similar provisions of law.

A habitual offender, repeat offender, or career criminal is a person convicted of a crime who was previously convicted of other crimes. Various state and jurisdictions may have laws targeting habitual offenders, and specifically providing for enhanced or exemplary punishments or other sanctions. They are designed to counter criminal recidivism by physical incapacitation via imprisonment.

Anti-terrorism legislation are laws with the purpose of fighting terrorism. They usually, if not always, follow specific bombings or assassinations. Anti-terrorism legislation usually includes specific amendments allowing the state to bypass its own legislation when fighting terrorism-related crimes, under alleged grounds of necessity.

<span class="mw-page-title-main">Detention (imprisonment)</span> Process whereby a state or private citizen lawfully holds a person, removing their freedom

Detention is the process whereby a state or private citizen lawfully holds a person by removing their freedom or liberty at that time. This can be due to (pending) criminal charges preferred against the individual pursuant to a prosecution or to protect a person or property. Being detained does not always result in being taken to a particular area, either for interrogation or as punishment for a crime. An individual may be detained due a psychiatric disorder, potentially to treat this disorder involuntarily. They may also be detained for to prevent the spread of infectious diseases such as tuberculosis.

Administrative detention is arrest and detention of individuals by the state without trial. A number of jurisdictions claim that it is done for security reasons. Many countries claim to use administrative detention as a means to combat terrorism or rebellion, to control illegal immigration, or to otherwise protect the ruling regime.

<span class="mw-page-title-main">Criminal Law (Temporary Provisions) Act</span> Statute of the Parliament of Singapore

The Criminal Law Act 1955 is a Singapore statute that, among other things, allows the executive branch of the Government of Singapore to order that suspected criminals be detained without trial. It was introduced in 1955 during the colonial era and intended to be a temporary measure, but has since been renewed continuously; the Government has declined to make it permanent, claiming it "believe[s] that the Act should be explicitly extended by Parliament every five years". The validity of the Act was most recently extended in February 2018, and it will remain in force till October 2024.

Capital punishment is a legal penalty in Malaysian law.

<span class="mw-page-title-main">Internal Security Act (Singapore)</span> Statute of the Parliament of Singapore

The Internal Security Act 1960 (ISA) of Singapore is a statute that grants the executive power to enforce preventive detention, prevent subversion, suppress organized violence against persons and property, and do other things incidental to the internal security of Singapore. The present Act was originally enacted by the Parliament of Malaysia as the Internal Security Act 1960, and extended to Singapore on 16 September 1963 when Singapore was a state of the Federation of Malaysia.

<span class="mw-page-title-main">Pre-trial detention</span> Detention after arrest and charge until a trial

Pre-trial detention, also known as jail, preventive detention, provisional detention, or remand, is the process of detaining a person until their trial after they have been arrested and charged with an offence. A person who is on remand is held in a prison or detention centre or held under house arrest. Varying terminology is used, but "remand" is generally used in common law jurisdictions and "preventive detention" elsewhere. However, in the United States, "remand" is rare except in official documents and "jail" is instead the main terminology. Detention before charge is commonly referred to as custody and continued detention after conviction is referred to as imprisonment.

At His Majesty's pleasure, sometimes abbreviated to the King's pleasure, is a legal term of art referring to the indeterminate or undetermined length of service of certain appointed officials or the indeterminate sentences of some prisoners. It is based on the proposition that certain government officials are appointed by the Crown and can be removed for policy reasons, unlike employees. Originating in the United Kingdom, the phrase is now used throughout the Commonwealth realms, Lesotho, Eswatini, Brunei, and other monarchies, such as Spain, the Netherlands, and Oman. In realms where the monarch is represented by a governor-general, governor, or administrator, the phrase may be modified to be at the governor's pleasure or variations thereof, since the governor-general, governor, lieutenant governor, or administrator is the king's personal representative in the country, state, or province.

Indefinite imprisonment or indeterminate imprisonment is the imposition of a sentence of imprisonment with no definite period of time set during sentencing. It was imposed by certain nations in the past, before the drafting of the United Nations Convention against Torture (CAT). The length of an indefinite imprisonment was determined during imprisonment based on the inmate's conduct. The inmate could have been returned to society or be kept in prison for life.

Life imprisonment in Canada is a criminal sentence for certain offences that lasts for the offender’s life. Parole is possible, but even if paroled, the offender remains under the supervision of Corrections Canada for their lifetime, and can be returned to prison for parole violations.

Life imprisonment has been the most severe criminal sentence in New Zealand since the death penalty was abolished in 1989, having not been used since 1957.

<span class="mw-page-title-main">Criminal sentencing in Canada</span> Overview of criminal sentencing in Canada

Canadian criminal law is governed by the Criminal Code, which includes the principles and powers in relation to criminal sentencing in Canada.

Sentencing in England and Wales refers to a bench of magistrates or district judge in a magistrate's court or a judge in the Crown Court passing sentence on a person found guilty of a criminal offence. In deciding the sentence, the court will take into account a number of factors: the type of offence and how serious it is, the timing of any plea of guilty, the defendant's character and antecedents, including their criminal record and the defendant's personal circumstances such as their financial circumstances in the case of a fine being imposed.

Prisons in India are overcrowded and eight of out ten prisoners in Indian jails await trial. There are 1319 prisons in India as of 2021. Currently, there are about 1400 prisons. After the COVID-19 pandemic, the number of prisoners increased 13% from 2020 to 2021, making over 80% of the prisons overcrowded. After the Supreme Court order, a number of prisoners were released in 2020 to decongest the jails, reducing the overall prison occupancy in 20 states and two Union Territories to a little over 93%. However, the occupancy rate increased to 130% again by 2021. About 63 unnatural deaths took place in Indian prisons. Among the major states, Tamil Nadu is the only state which has less than 100% occupancy followed by Karnataka.

<span class="mw-page-title-main">Jammu and Kashmir Public Safety Act, 1978</span> Preventive detention law in the Indian state of Jammu and Kashmir

The Jammu and Kashmir Public Safety Act, 1978 (PSA) is a preventive detention law under which a person is taken into custody to prevent them from acting harmfully against "the security of the state or the maintenance of the public order" in the Indian state of Jammu and Kashmir. Whereas PSA applies only to Jammu and Kashmir, it is very similar to the National Security Act that is used by the central and other state governments of India for preventive detention.

<span class="mw-page-title-main">Tamil Nadu Goondas Act</span> 1982 Indian law

The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders, Forest Offenders, Sand Offenders, Slum-Grabbers and Video Pirates Act, 1982, popularly known as the Goondas Act in Tamil Nadu, India and Gundar Sattam in Tamil, is a law for habitual offenders to be detained for a year as a preventive measure.

References

  1. ↑ McSherry, Bernadette; Keyzer, Patrick, eds. (2011). Dangerous People. doi:10.4324/9780203807774. ISBN   9780203807774.
  2. ↑ Crimes (Serious Crime Prevention Orders) Act 2016 (NSW)
  3. ↑ Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) ss 5-7
  4. ↑ Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) s 8
  5. ↑ Methven, Elyse; Carter, David J. (2016). "Serious Crime Prevention Orders". Current Issues in Criminal Justice. 28 (2): 223–234. doi:10.1080/10345329.2016.12036070. hdl: 10453/74815 . S2CID   151528372.
  6. 1 2 "In Costa Rica 17 persons ordered daily to preventive detention". QCostarica.com. Q Media. 30 June 2013. Retrieved 2 May 2015.
  7. 1 2 "L 49 Forslag til lov om ændring af straffeloven og lov om politiets virksomhed" [L 49 Proposal for a law amending the penal code and the law concerning police activities] (in Danish). Folketinget (the Danish Parliament). 26 November 2009. Retrieved 21 July 2019.
  8. ↑ Frihedsberøvelse inden dom [Detention before judgment] (in Danish). Systime. 2019. ISBN   9788761647702 . Retrieved 21 July 2019.
  9. 1 2 Ringberg, J. (26 November 2009). "Hårdt politisk opgør før Folketinget sagde ja til lømmelpakken" [Political showdown before the Danish Parliament said yes to the lømmelpakke law] (in Danish). DR. Retrieved 21 July 2019.
  10. ↑ https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#StGBengl_000P66 §66 Strafgesetzbuch
  11. ↑ "HUDOC - European Court of Human Rights" . Retrieved 1 February 2017.
  12. ↑ (www.dw.com), Deutsche Welle. "German court rules preventive detention unconstitutional - Germany - DW.COM - 04.05.2011" . Retrieved 1 February 2017.
  13. ↑ Gesetz zur bundesrechtlichen Umsetzung des Abstandsgebotes im Recht der Sicherungsverwahrung (BR-Drs. 689/12) "Archived copy" (PDF). Archived from the original (PDF) on 2013-10-19. Retrieved 2012-11-25.{{cite web}}: CS1 maint: archived copy as title (link) (PDF; 266 kB)
  14. ↑ "ZEIT ONLINE | Lesen Sie zeit.de mit Werbung oder im PUR-Abo. Sie haben die Wahl". www.zeit.de. Retrieved 2023-09-10.
  15. ↑ "Preventive Detention Act 1950 Complete Act - Citation 134080 - Bare Act | LegalCrystal". www.legalcrystal.com. Retrieved 2020-06-25.
  16. ↑ A. Faizur Rahman, "Preventive detention an anachronism", The Hindu, 7 September 2004.
  17. ↑ Saxena, Priti (1 January 2007). Preventive Detention and Human Rights. Deep & Deep Publications. pp. 99–. ISBN   978-81-7629-992-3.
  18. ↑ "Dour farm leader of 76 named as India's fifth PM". Montreal Gazette . 27 July 1979.
  19. ↑ "NSA, 1980" (PDF). Home Ministry, Govt of India. Archived from the original (PDF) on 3 February 2013. Retrieved 17 September 2013.
  20. ↑ "Preventive detention an anachronism". The Hindu . 2004-09-07. Archived from the original on 2015-03-08. Retrieved 2015-10-10.
  21. ↑ Code of Criminal Procedure (Act No. 131 of July 10, 1948, as amended in 2006)
  22. ↑ Internal Security Act to be abolished, says Najib, 15 September 2011, Bernama.com.
  23. ↑ Security Offences (Special Measures) Act 2012
  24. ↑ "Sentencing Act 2002 No 9 (as at 22 December 2016), Public Act 87 Sentence of preventive detention". New Zealand Legislation. Retrieved 1 February 2017.
  25. ↑ Sharpe, Marty (17 July 2013). "A third of Kiwi life termers are out on parole". Stuff.co.nz . Retrieved 25 May 2015.
  26. ↑ "Longest-serving prisoner out of jail, lawyer relieved he did not die there". Stuff . 18 February 2021. Retrieved 18 February 2021.
  27. ↑ "Public protection orders". Department of Corrections (New Zealand). 20 December 2017. Retrieved 29 June 2022.
  28. ↑ "7 Detention Orders in Singapore: When Will They be Ordered?". Singapore Legal Advice. Retrieved 4 April 2022.
  29. ↑ "True Files S3 E5 Killed by His Mother's Lover". meWATCH. Retrieved 4 April 2022.
  30. ↑ "20 years for man who did this to 7- year-old boy". Facebook. Retrieved 4 April 2022.
  31. ↑ "Singapore Law Watch" (PDF). Retrieved 4 April 2022.
  32. ↑ "Crimewatch 2013 E1". meWATCH. Retrieved 4 April 2022.
  33. ↑ "S'pore Death Row Inmate Had A Rough Childhood, Expressed Wish To Live Before Execution". Must Share News. 31 March 2022. Retrieved 4 April 2022.
  34. ↑ "Singapore hangs drug trafficker in resumption of executions". The Washington Post. 30 March 2022. Retrieved 4 April 2022.
  35. ↑ "Singapore passes law to hold 'dangerous offenders' beyond prison terms". The Business Standard. 2024-02-05. Retrieved 2024-02-06.
  36. ↑ Jonathan Cohen, "1967 Terrorism Act, No. 83 of 1967", South African History Online.
  37. ↑ McGreal, C., "Military given go-ahead to detain US terrorist suspects without trial", The Guardian , 14 December 2011: .
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