Preventive detention is an
imprisonment
Imprisonment is the restraint of a person's liberty, for any cause whatsoever, whether by authority of the government, or by a person acting without such authority. In the latter case it is "false imprisonment". Imprisonment does not necessari ...
that is putatively justified for non-
punitive
Punishment, commonly, is the imposition of an undesirable or unpleasant outcome upon a group or individual, meted out by an authority—in contexts ranging from child discipline to criminal law—as a response and deterrent to a particular acti ...
purposes, most often to prevent (further) criminal acts.
Types of preventive detention
There is no universally agreed definition of preventive detention, and multiple types of detention are sometimes considered a form of preventive detention.
Usually, preventive detention is the detention of a convicted criminal who has served their sentence, but is considered too dangerous to release. In that case, the detention is considered "preventive" in that it is not intended to punish or deter the criminal, but to prevent the criminal from committing further crimes and/or also protect the public.
This article focuses on both this type of preventive detention and detention of a person without trial or conviction by a court. Its purpose is to not to punish a person for their past offences, but to prevent him from committing an offence in the near future.
Remand or pre-trial detention (detention of a suspected criminal prior to trial) and
involuntary commitment
Involuntary commitment, civil commitment, or involuntary hospitalization/hospitalisation is a legal process through which an individual who is deemed by a qualified agent to have symptoms of severe mental disorder is detained in a psychiatric hos ...
(detention of people considered a risk to themselves or others due to mental illness) are sometimes considered a form of preventive detention. For example, in
Peru
, image_flag = Flag of Peru.svg
, image_coat = Escudo nacional del Perú.svg
, other_symbol = Great Seal of the State
, other_symbol_type = Seal (emblem), National seal
, national_motto = "Fi ...
, remand is called "prisión preventiva", literally "preventive prison (detention)".
Specific jurisdictions
Australia
Australia laws authorize preventive detention in a variety of circumstances. For example,
mandatory detention in Australia
The Australian government has a policy and practice of detaining in immigration detention facilities non-citizens not holding a valid visa, suspected of visa violations, illegal entry or unauthorised arrival, and those subject to deportation and ...
(a form of
immigration detention
Immigration detention is the policy of holding individuals suspected of visa violations, illegal entry or unauthorized arrival, as well as those subject to deportation and removal until a decision is made by immigration authorities to grant a vi ...
) 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’). 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. 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.
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 and passed into with less than two weeks' consideration by the Parliament of NSW.
Costa Rica
In
Costa Rica
Costa Rica (, ; ; literally "Rich Coast"), officially the Republic of Costa Rica ( es, República de Costa Rica), is a country in the Central American region of North America, bordered by Nicaragua to the north, the Caribbean Sea to the no ...
, the 1998 Criminal Proceedings Code allows for a normal pre-trial "''prisión preventiva''" or
remand[ 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.]
Denmark
In connection to riots or other situations where there is a safety risk to the general public, the police can detain a person for up to twelve hours without involving the courts. Until 2009, the limit was six hours. This change was part of the so-called Lømmelpakke ( da), a law package that also included other changes, notably a higher punishment for preventing the work of the police.[
]
Germany
In Germany
Germany,, officially the Federal Republic of Germany, is a country in Central Europe. It is the second most populous country in Europe after Russia, and the most populous member state of the European Union. Germany is situated betwe ...
, "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. 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. In response, a new law regulating ''Sicherungsverwahrung'' was passed in November 2012.
India
In India
India, officially the Republic of India (Hindi: ), is a country in South Asia. It is the seventh-largest country by area, the second-most populous country, and the most populous democracy in the world. Bounded by the Indian Ocean on the so ...
, 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.
Preventive detention in India dates from British rule in the early 1800s, and continued with such laws as the Defence of India Act, 1939
The Defence of India Act, 1939 (No.35) was an Act passed by the Central Legislature on the 29th day of September, 1939 which effectively declared martial law in India.
Although it was enacted on 29 September 1939 it was deemed to come into force ...
and the Preventive Detention Act 1950.
The controversial Maintenance of Internal Security Act
The Maintenance of Internal Security Act (MISA) was a controversial law passed by the Indian parliament in 1971 giving the administration of Prime Minister Indira Gandhi and Indian law enforcement agencies very broad powers – indefinite pre ...
was originally enacted by the Indian parliament early during Indira Gandhi
Indira Priyadarshini Gandhi (; Given name, ''née'' Nehru; 19 November 1917 – 31 October 1984) was an Indian politician and a central figure of the Indian National Congress. She was elected as third prime minister of India in 1966 ...
's prime ministership in 1971. However it was amended several times during "The Emergency" (1975–1977), leading to human rights
Human rights are Morality, moral principles or Social norm, normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for ce ...
violations. It was subsequently repealed after Indira Gandhi lost the election in 1977, and the new government took over.
India's National Security Act of 1980 empowers the Central Government
A central government is the government that is a controlling power over a unitary state. Another distinct but sovereign political entity is a federal government, which may have distinct powers at various levels of government, authorized or dele ...
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. The maximum period of detention is 12 months. The order can also be made by the District Magistrate
A District Collector-cum-District Magistrate (also known as Deputy Commissioner in some states) is an All India Service officer of the Indian Administrative Service (IAS) cadre who is responsible for ''land revenue collection'', ''canal reven ...
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. 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
An anachronism (from the Ancient Greek, Greek , 'against' and , 'time') is a chronology, chronological inconsistency in some arrangement, especially a juxtaposition of people, events, objects, language terms and customs from different time per ...
.
Japan
In Japan
Japan ( ja, 日本, or , and formally , ''Nihonkoku'') is an island country in East Asia. It is situated in the northwest Pacific Ocean, and is bordered on the west by the Sea of Japan, while extending from the Sea of Okhotsk in the north ...
, 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.
Malaysia
In Malaysia the Internal Security Act 1960
The Internal Security Act 1960 ( ms, Akta Keselamatan Dalam Negeri 1960, abbreviated ISA) was a preventive detention law in force in Malaysia. The legislation was enacted after the Federation of Malaya gained independence from Britain in 1957 ...
(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
Dato' Sri Haji Mohammad Najib bin Tun Haji Abdul Razak ( ms, محمد نجيب بن عبد الرزاق, label= Jawi, script=arab, italic=unset, ; born 23 July 1953) is a Malaysian politician who served as the 6th prime minister of Malaysi ...
, the then Prime Minister of Malaysia, said that this legislation would be repealed and replaced by two new laws.[Internal Security Act to be abolished, says Najib](_blank)
15 September 2011, Bernama.com.
On 17 April 2012, the Security Offences (Special Measures) Act 2012 (SOSMA) was approved by the Malaysian Parliament
The Parliament of Malaysia ( ms, Parlimen Malaysia) is the national legislature of Malaysia, based on the Westminster system. The bicameral parliament consists of the Dewan Rakyat (House of Representatives, lit. "People's Assembly") and the D ...
as a replacement for the ISA. It was given the Royal Assent on 18 June 2012 and gazetted on 22 June 2012.
New Zealand
New Zealand
New Zealand ( mi, Aotearoa ) is an island country in the southwestern Pacific Ocean. It consists of two main landmasses—the North Island () and the South Island ()—and over 700 smaller islands. It is the sixth-largest island count ...
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. 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. Alfred Thomas Vincent was in prison on preventive detention for 52 years from 1968 to 2021.
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.
Peru
In Peru
, image_flag = Flag of Peru.svg
, image_coat = Escudo nacional del Perú.svg
, other_symbol = Great Seal of the State
, other_symbol_type = Seal (emblem), National seal
, national_motto = "Fi ...
, "preventive prison" has been used extensively by local courts and the National Court of Peru. Such uses have imprisoned and led to the sentencing of various prominent political figures perceived to have committed illicit acts of corruption
Corruption is a form of dishonesty or a criminal offense which is undertaken by a person or an organization which is entrusted in a position of authority, in order to acquire illicit benefits or abuse power for one's personal gain. Corruption m ...
in Peru. Over 30 prominent political figures in Peru have been detained as per order of preventive detention, including five presidents
President most commonly refers to:
*President (corporate title)
*President (education), a leader of a college or university
*President (government title)
President may also refer to:
Automobiles
* Nissan President, a 1966–2010 Japanese ful ...
and one presidential candidate.
The continuation of using preventive detention as a means of justice is currently being debated amongst the legislative and executive powers of Peru.
Singapore
In Singapore
Singapore (), officially the Republic of Singapore, is a sovereign island country and city-state in maritime Southeast Asia. It lies about one degree of latitude () north of the equator, off the southern tip of the Malay Peninsula, borde ...
, preventive detention is considered as a special type of imprisonment reserved for recalcitrant offenders aged at least 30 years old and have at least three previous convictions since turning 16, and this detention order, which may last between seven to 20 years, do not allow the usual one-third remission of sentence for good behaviour. It is divided into three stages: the first is prison life, the second is prison life with labour, and the third is rigorous industrial and social training to rehabilitate the detainees. Usually, it was used by the courts of Singapore to cage any offenders who were recalcitrant and deemed a threat to society, with a purpose to isolate them for the protection of society as long as possible.
An alternative order of preventive detention is also used by the Internal Security Act Internal Security Act may refer to:
* Internal Security Act 1960, former Malaysian law
*Internal Security Act (Singapore)
* McCarran Internal Security Act, a United States federal law
*Suppression of Communism Act, 1950, a South African law, rename ...
to detain any individuals who pose a threat to Singapore's national security.
One notable case was convicted child abuser Chong Keng Chye (aged 37 in 2004), who had several past convictions for cheating and violent crimes since age 16, was sentenced in 2004 to the maximum of 20 years' preventive detention and nine strokes of the cane for severely abusing a seven-year-old boy to death in 1999, as well as for several cheating offences in 2003. In another case, Rosli Yassin (aged 52 in 2012), who went in and out of prison since 1991, 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. Drug trafficker Abdul Kahar Othman
Abdul Kahar bin Othman (1953/1954 – 30 March 2022) was a Singaporean drug trafficker who was found guilty in 2013 of two charges of trafficking a total of 66.77 grams of heroin in Singapore, and later sentenced to death by the High Court in ...
was previously serving ten years of preventive detention from 1995 to 2005 due to his long criminal record of drug offences, before he was caught and later executed in 2022 for a 2010 drug trafficking crime.
South Africa
Under Apartheid
Apartheid (, especially South African English: , ; , "aparthood") was a system of institutionalised racial segregation that existed in South Africa and South West Africa (now Namibia) from 1948 to the early 1990s. Apartheid was ...
, 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.
United Kingdom
England and Wales
England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
used to have provisions, introduced by the Labour
Labour or labor may refer to:
* Childbirth, the delivery of a baby
* Labour (human activity), or work
** Manual labour, physical work
** Wage labour, a socioeconomic relationship between a worker and an employer
** Organized labour and the labour ...
Government in 2003, to deal with dangerous offender
In Canada, 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. Other countries, including Denmark and parts of the U ...
s similar to what is used in Canada. However, the Legal Aid, Sentencing and Punishment of Offenders Act 2012
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) is a statute of the Parliament of the United Kingdom enacted by the coalition government of 2010-2015, creating reforms to the justice system. The bill for the act was intro ...
abolished what was called Imprisonment for Public Protection In England and Wales, the imprisonment for public protection (IPP; ) sentence was a form of indeterminate sentence introduced by section 225 of the Criminal Justice Act 2003 (with effect from 2005) by the Home Secretary, David Blunkett, and abolis ...
(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 United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
, the Sixth Amendment to the United States Constitution
The Sixth Amendment (Amendment VI) to the United States Constitution sets forth rights related to criminal prosecutions. It was ratified in 1791 as part of the United States Bill of Rights. The Supreme Court has applied the protections of this ...
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 The National Defense Authorization Act (NDAA) for Fiscal Year 2012112th Congress, 1st Session, H1540CR.HSE"National Defense Authorization Act for Fiscal Year 2012."/ref> () is a United States federal law which among other things specifies the budget ...
(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
''The Guardian'' is a British daily newspaper. It was founded in 1821 as ''The Manchester Guardian'', and changed its name in 1959. Along with its sister papers ''The Observer'' and ''The Guardian Weekly'', ''The Guardian'' is part of the Gu ...
'' as allowing indefinite detention "without trial fAmerican terrorism suspects arrested on U.S. soil who could then be shipped to Guantánamo Bay".[McGreal, C., "Military given go-ahead to detain US terrorist suspects without trial", '']The Guardian
''The Guardian'' is a British daily newspaper. It was founded in 1821 as ''The Manchester Guardian'', and changed its name in 1959. Along with its sister papers ''The Observer'' and ''The Guardian Weekly'', ''The Guardian'' is part of the Gu ...
'', 14 December 2011
Convicted persons can be held indefinitely as a "dangerous offender
In Canada, 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. Other countries, including Denmark and parts of the U ...
".
See also
* Administrative detention
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 ...
* Anti-Terrorism Act 2005
The ''Anti-Terrorism Act 2005'' (Cth) is an Act of the Parliament of Australia, which is intended to hamper the activities of any potential terrorists in the country. The counter-terrorism law was passed on 6 December 2005.
Background
Hi ...
(Australia)
* Arbitrary arrest and detention
Arbitrary arrest and arbitrary detention are the arrest or detention of an individual in a case in which there is no likelihood or evidence that they committed a crime against legal statute, or in which there has been no proper due process of law ...
* Civil confinement
Some jurisdictions may commit certain types of dangerous sex offenders to state-run detention facilities following the completion of their sentence if that person has a "mental abnormality" or personality disorder that makes the person likely to ...
* Criminal Law (Temporary Provisions) Act (Singapore)
The Criminal Law (Temporary Provisions) Act 1955 (often known by the abbreviation "CLTPA") is a Singapore statute that, among other things, allows the executive branch of the Government of Singapore to order that suspected criminals be detai ...
* Indefinite imprisonment
Indefinite imprisonment or indeterminate imprisonment is the imposition of a sentence by 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 Natio ...
* Internal Security Act (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 th ...
* Pre-crime
''Pre-crime'' (or ''precrime'') is the idea that the occurrence of a crime can be anticipated before it happens. The term was coined by science fiction author Philip K. Dick, and is increasingly used in academic literature to describe and critici ...
* Preemptive arrest
A preemptive arrest is one in which a person is arrested prior to committing a crime. Preemptive arrests are sometimes viewed with suspicion as being contrary to the principles of a democracy.
This practice is distinct from an arrest on a charge ...
* Xinjiang "re-education" camps
References
{{DEFAULTSORT:Preventive Detention
Imprisonment and detention
Law enforcement in India
Prevention
Statutory law
Terrorism laws
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