Preventive detention

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 Australia's most populous State, New South Wales, preventive detention regimes have established powers to detain or to continuously monitor and limit particular activities of those who were once convicted of various serious sexual and violent offences. Recently, this has been extended, with the State government now able to control the free movement, speech, association and work of individuals and businesses via Serious Crime Prevention Orders (‘SCPOs’).^[2] Based on provisions in the United Kingdom, a range of state officials may apply to the NSW District or Supreme Courts to create an SCPO consisting of any conditions they consider appropriate.^[3] These conditions may include positive obligations - such as an obligation to report to a police station - or negative ‘prohibitions’ or ‘restrictions’, for instance, a prohibition on travelling beyond a certain location. Failure to comply with the SCPO, carries with it a maximum penalty of five years’ imprisonment.^[4]

SCPOs have been described as a "watershed extension of state power in New South Wales"^[5] by legal academics, and were strongly opposed by the legal community when they were introduced and passed into with less than two weeks' consideration by the Parliament of NSW.

Canada

In Canada, anyone declared a dangerous offender by the courts is subject to an indefinite period of detention

Costa Rica

In Costa Rica, the 1998 Criminal Proceedings Code allows for a normal pre-trial "prisión preventiva" or remand^[6] of 12 months if the person is considered a "flight risk", but if the case is declared "complex", it can be increased to up to three years and a half of imprisonment without conviction, or even more in some cases. As of 23 May 2013, over 3,000 people were in pre-trial detention.^[6]

Denmark

The police can detain people for 6 hours without involving the courts or pay compensation for wrongful arrest.^[7] In relation to the ongoing gang war in Copenhagen between the biker gangs and second generation youth gangs it has been suggested to extend the 6 hour limit to several weeks.^[8] Before the Copenhagen Climate Council a new set of emergency laws was introduced allowing the police to detain people for up to 12 hours without charging them for a crime.^[9] Critics fear that they will remain as permanent laws when the summit is over.^[10]

Germany

In Germany, "preventive detention" (German: Sicherungsverwahrung, §66 Strafgesetzbuch) has a similar meaning to that in New Zealand. Sicherungsverwahrung can only be imposed as part of a criminal sentence, and it is handed down to individuals who have committed a grave offence and are considered a danger to public safety. It is an indeterminate sentence that follows a regular jail sentence. To assure the suitability of the preventive detention, it 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.

The Sicherungsverwahrung is usually imposed in the original verdict, but can be imposed later under certain circumstances. This practice of subsequent incapacitation orders was ruled a violation of Art 7 of the European Convention on Human Rights by the European Court of Human Rights.^[11] Subsequently, a huge discussion in Germany over the handling of this verdict occurred. In reaction to this the Federal Constitutional Court of Germany 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]

India

In India, preventive detention can be extended for up to six months. After three months, such a case is brought before an advisory board for review.

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.^[14]

The controversial Maintenance of Internal Security Act was enacted by Indian parliament during Indira Gandhi prime ministership in 1971, however it was amended several times during national emergency (1975-1977), leading to human right violations. It was subsequently repealed after Indira Gandhi lost the election in 1977, and the new government took over.^[15]

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 further extended.^[16]

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 Prime Minister of Malaysia, said that this legislation would be repealed and replaced by two new laws.^[17]

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.^[18]

New Zealand

In New Zealand, "preventive detention" is an indeterminate sentence of imprisonment, second only to life imprisonment 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.^[19] 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.^[20]

Alfred Thomas Vincent has been in prison on preventive detention since 1968 and was still there as of 2015.^[21]

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.^[22]

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".^[23]

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