6. PRE-TRIAL DETENTION AND RELEASE POLICY

6.1 Release policy is inextricably linked to the aims of de-institutionalisation and restorative justice. It is widely recognised that pre-trial detention for children is undesirable and that legal mechanisms to facilitate the minimum use of pre-trial detention need to be included in juvenile justice legislation. There are several reasons why it has been found to be undesirable to institutionalise children who await trial. Amongst them are adverse results of institutionalisation, as shown internationally by criminological research, and possible further introduction into delinquency, as well as the undesirability of separation of children from their families, which inhibits re-integration of the child into society.

Current South African law

6.2 The present South African position is regulated by the Constitution, the Criminal Procedure Act, the Correctional Services Act (as amended) and to a lesser extent, the Child Care Act. The constitutional provision mirrors that to be found in international instruments, as cited below, and provides, with respect to children, that detention shall be used as a matter of last resort only, and for the shortest appropriate period of time. The 1996 Constitution, in section 28(1)(g), also makes the point that the child has the additional right to be "treated in a manner, and kept in conditions, that take account of the child's age."

6.3 The Criminal Procedure Act includes several mechanisms designed to facilitate pre-trial release once a child has been arrested. These include:

Written notice to appear (s 56), which can be issued at the police station where minor offences are involved. The effect is the release of the child from custody.
Bail, which can be granted either before first appearance in court at the police station in the instance of certain minor offences (s 59) or by a judicial officer after appearance in court (s 60).
Release on warning by a judicial officer after first appearance in court (s 72). This section provides that in the instance of a juvenile under the age of 18 years, the accused can be released in the custody of the person in whose custody he or she is, and that person would then be warned to return with the accused to court on a specified day.

6.4 Widespread attention has been devoted over recent years to the continued pre-trial detention of children under the age of 18, despite the above alternative provisions. With respect to pre-trial detention after first appearance in court, this may be either in a place of safety, designated for the detention of children awaiting trial, and established in terms of the Child Care Act, or a prison. Police cells have also been used, and are still sometimes utilised as places of detention after court appearances, although the 1996 amendment to section 29 of the Correctional Services Act sought to abolish this practice. Before appearing, many children are detained in police cells.^[44]

6.5 The position of children detained in adult prisons became a source of concern to political activists and NGOs in the 1990's. Campaigns to advocate for the release of children from pre-trial detention were launched by NGOs and the movement culminated in the adoption of Act 17 of 1994 by Parliament in October 1994 to attempt to regulate the continued use of imprisonment for pre-trial detention for children. This legislation, promulgated in May 1995, led to the release of 829 children who at that time were awaiting trial in prisons, and approximately the same number who were then detained in police cells. Since the legislation prohibited pre-trial detention after first appearance in court other than in a place of safety, children then had to be accommodated in places of safety, or alternatively released. The crisis which ensued in both places of safety, and in the courts, as released children failed to return for trial, led to the establishment of the IMC referred to above, and later to the introduction of temporary legislation (Act 14 of 1996) which allows for certain young people to be held in prison awaiting trial. Currently there are approximately 800 children awaiting trial in prisons.^[45]

6.6 Monitoring of the implementation of the new legal provisions regulating juvenile detention shows that some children are held awaiting trial in prison after high monetary bail has been set, which they are unable to pay. One study showed the use of bail in 9,9% of cases in that sample.^[46]

6.7 General statistics comparing the use of pre-trial detention in comparison to pre-trial release are not readily available. In the Western Cape 41,3% (1995) and 33,3% (1996) of arrested children were released by courts into the care of parents or guardians after first appearance, and a further 9,1% (1995) and 12,1% (1996) were released by courts on their own recognisance. This suggests that a large number of arrested children were detained for some period after arrest only to be released at court. Bearing in mind that least 50% were released by courts, it is questionable whether detention was necessary at all. In this province only 25% of arrested children are held after first appearance in court in some form of detention.

6.8 Pilot projects and provincial initiatives have shown that the key to effective release policy is the speedy location and involvement of parents and guardians, so that children may be released into their care. Early intervention, ie assessment and reception of young offenders, form one pillar of the overall IMC Recommendations regarding transformation of the child and youth care system.

6.9 Alternative placement possibilities, such as places of safety, are not evenly situated throughout the country and in poorer resourced areas, children have been incarcerated simply because welfare institutions do not exist. From an equality perspective, it cannot be acceptable that a child accused, say, of theft, be held in prison in one province, whilst in another such accused child would ordinarily be referred to an alternative institution. This supports the contention that limits need to be placed on the circumstances in which a child can be remanded in custody. A further important outcome of the IMC process has been the focus on secure care facilities to provide an alternative to prison for young offenders who cannot be released while awaiting trial, and who require the type of secure care that is not available in a place of safety. One such facility is to be established in each province. This will be an important step towards ending the detention of awaiting trial children in prisons.

Legislative limitations on pre-trial detention

6.10 In the Draft Correctional Services Bill, which is currently being circulated for comment, no similar provision to replace the current section 29, as amended, is included. In the Notes to the Draft Bill^[47] the drafters advise that "(t)his Bill provides for what happens to children who are detained in prison. It does not, however, determine when children, either sentenced or unsentenced, may be held in prison. That question should properly be dealt with in the Criminal Procedure Bill or in more specialised juvenile justice legislation."

6.11 Both the 1994 and 1996 amendments to Section 29 attempted to limit magisterial discretion, with the aim of reducing juvenile detention in prisons before trial. The first amendment simply disallowed detention in a prison as an option, save for an interim 48 hour period, and then only for certain specified offences, and for children between 14 and 18 years only.

6.12 The second Amendment Act, adopted after it became clear that there was dissatisfaction with the earlier enactment, also allowed juvenile detention in prison, but with certain limits.^[48] The Act included a schedule of offences for which a child could be remanded to prison, but also left the option open of a discretionary referral where the offence was committed in circumstances so serious as to warrant such detention. The legislature attempted to include further safeguards, such as the requirement that oral evidence be led pertaining to the risk (of re-offending, of danger to other children, or of absconding) that the child may pose before a detention decision is taken, and that the detention must be necessary and in the interests of society. The detention is subject to review every 14 days.

6.13 There have been numerous interpretation problems with this Act, and monitors and NGOs have found breaches of its provisions. Approximately half the children currently in detention have been remanded, not for offences enumerated in the schedule, but for other offences under the category “offences committed in circumstances so serious as to warrant such detention”. Some of these have been found to be serious, whilst in many instances investigation has shown the matters to be petty (theft of minor items, shoplifting etc). According to statistics provided by the Department of Correctional Services for March 1997, there were a total number of 789 children awaiting trial in South African prisons. Of this number, 321 were charged with offences listed in Schedule 2 of the Act, and 467 charged with offences not listed in the Schedule.^[49] The question that arises from the experience with section 29 is how juvenile justice legislation can limit juvenile detention, in accordance with the Constitution, without repeating the inflexibility of the 1994 legislation.

International perspective

6.14 The UN Convention on the Rights of the Child provides in article 37(b) that "arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time". Release of children from pre-trial detention has been emphasised as a primary concern for the protection of children.^[50] The Human Rights Committee of the United Nations has disapproved of pre-trial detention for juveniles and has expressed its concern to Canada where juveniles aged between 12 and 18 could be detained by the juvenile courts before trial.^[51]

6.15 The Beijing Rules spell out that "[w]herever possible, detention pending trial shall be replaced by alternative measures, such as close supervision, intensive care or placement with a family or in an educational setting or home".^[52] The Commentary to the Rules stresses the danger to juveniles of "criminal contamination" while they remain in detention pending trial, and encourages the development of new and innovative measures to avoid pre-trial detention.

Proposals

(i) Detention

6.16 International law and constitutional law provide that children awaiting trial should be detained only as a measure of last resort. South African law has provided a range of options to enable the release of the child, post arrest as well as after the first appearance in court. Practice has revealed that there are still numerous problems preventing or hindering^[53] the application of the Constitution and the international rules.

6.17 The South African experience has shown that unfettered discretion and wide detention powers have resulted in inappropriate use of custodial detention for children who await trial^[54] (see paragraph 6.13). Attempts to eliminate prison as a detention option have been abandoned, and the present temporary legislation aims to structure judicial discretion in such a way as to limit the use of pre-trial detention for children in prisons. The application of the new legislation has been problematic, and the use of a schedule to determine seriousness of offence (and therefore the option of detention) has met with opposition from some role-players.

6.18 As far as legislation is concerned, one option would be to provide for mandatory assessment of all children prior to a valid decision to detain a child in an institution (here, places of safety, prisons and secure care facilities would be relevant, as inappropriate placements occur in all of these). A further option, based on the legislation currently in place, would be to devise schedules listing instances where a juvenile offender may not be detained, with a further schedule of offences in respect of which a detention decision is possible.^[55] Suggestions in this regard will be welcomed.

(ii) Bail

6.19 Research has shown that in many cases bail amounts currently being set are such that children (or their parents) cannot pay, thereby necessitating the child remaining in detention. An option to be considered is that monetary payments of bail as a condition of pre-trial release should not be included in the proposed legislation.^[56] Conditional release should remain an option, but could be linked to other conditions of release, such as reporting to a police station or a probation officer or other official. Existing options could be developed innovatively, for example by including curfews, school attendance, or regular attendance at another programme (such as a shelter for homeless children).

[44] See footnote 33 above.

[45] Figures from the Department of Correctional Services for 28 February 1997.

[46] J Sloth-Nielsen and S Said Statistical research on juvenile justice: Examining court records of juvenile offenders (supra).

[47] At 6.

[48] These are described in J Sloth-Nielsen Pre-trial detention of juveniles revisited: Amending section 29 of the Correctional Services Act 1996 SACJ 61.

[49] Children charged with both scheduled and non-scheduled offences are also held in places of safety.

[50] Van Bueren 176.

[51] Ibid.

[52] Rule 13.2.

[53] Such as the failure to locate parents or guardians into whose care the child could be released, setting of bail amounts that children cannot pay, and absconding of children from placements such as places of safety.

[54] See J Sloth-Nielsen No child should be caged: Closing doors on the detention of children 1995 SACJ 47-59.

[55] But not mandatory: at the time that section 29 was re-amended in 1996, some magistrates interpreted the schedule to mean that alternatives, such as bail, or release on warning, were no longer available options, and that they were obliged to remand in custody in the instances set out in the schedule.

[56] Report by the IMC Monitoring Project to the Committee on the Management of Juveniles Awaiting Trial.

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