Bid to change detention laws

HOULD an awaitingtrial prisoner with a mental illness or disability be automatically detained at a prison or psychiatric facility before a trial has proved their guilt?

This is the complex question being debated at the Constitutional Court this week, in an attempt to change the Criminal Procedure Act.

Two major criminal cases against mentally disabled young men have sparked this potential change in legislation.

In 2005, a 14-year-old with permanent brain damage was charged with the murder of a teenage girl of the same age.

Two specialist psychiatrists and a clinical psychologist determined the teenager was mentally disabled and would not be able to follow the court proceedings.

The second case followed a 35-year-old suffering from Down syndrome who allegedly raped an 11-year-old girl.

Psychiatric professionals were unanimous in declaring the man not fit to stand trial, as he was unable to understand the concept of rape.

The man was ordered to be kept in a mental facility pending the outcome of his trial.

It was in the subsequent Western Cape High Court proceedings in the second matter

Sthat Judge Bennie Griesel said it was unconstitutional to detain such prisoners before their guilt could be proved. He said that with the current Criminal Procedure Act legislation, a judge or magistrate was obligated to do so if following the letter of the law, and this needed to be changed.

At the Concourt this week, Judge Griesel’s judgment was under intense scrutiny by lawyers representing the ministers of Health and Justice and the director of public prosecutions in the Western Cape.

Discretion

Advocate Dumisa Ntsebeza SC, for the government, argued that trial courts still had discretion in choosing whether or not to detain mentally disabled awaiting-trial prisoners, meaning magistrates were not necessarily obligated to do so.

The lawyers representing the two accused and their families had originally argued that detention in a psychiatric hospital or prison was inhumane, and not constitutional if only for the purpose of protecting society from potential danger.

However, Ntsebeza insisted that these facilities were meant not only for detention and to keep the accused from harming himself or others, but also to care for, treat and rehabilitate mentally ill accused.

Deputy Chief Justice Dikgang Moseneke asked if such detention or imprisonment must always ensue.

He cited an example, asking whether it was humane for a court to send a mentally disabled person who stole an apple for months of involuntary mental examination or imprisonment.

Ntsebeza argued that this legislation only applied to those who had committed more serious crimes, but admitted the State believed that detention should be the first option in even minor crimes.

However, he insisted that this detention was specifically for treatment, and not meant as imprisonment.

Chief Justice Mogoeng Mogoeng described the idea that, with the current reading of the Criminal Procedure Act, a court being obliged to detain such a person without full medical understanding of the individual case was “a robotic way of doing things”.

Justice Johann van der Westhuizen also noted during Ntsebeza’s argument that the paragraph in the section dealing with this issue was one 28line sentence, and himself suggested that this warranted scrutiny from legislators to make it less complicated.

The Concourt will hand down judgment at a later date.