Judicial Inspectorate of Prisons

JUDICIAL INSPECTORATE OF PRISONS PRESENTATION TO THE PARLIAMENT OF THE REPUBLIC OF SOUTH AFRICA

CORRECTIONAL SERVICES PORTFOLIO COMMITTEE

15 March 2005

THE IMPACT OF THE CORRECTIONAL SERVICES ACT

111 of 1998 –"The Act"

1. Discipline & Security – the Statutory notifications

2. Correctional Supervision or parole on medical grounds

1. Statutory Notifications

Segregation – s30

The Act makes it compulsory for the Department of Correctional Services to notify the Office of the Inspecting Judge of Prisons –

# Of all instances of the segregation (7 days) or extended segregation (up to 30 days) of inmates. An agreement exists between the Inspecting Judge and the Department of Correctional Services that these notifications are reported Electronically via our web-page.

# Inmates are segregated in one of the following circumstances; v.i.z.

at their own request

if prescribed by a medical officer

where violence or the threat thereof exists

if an escapee has been re-captured or the threat exists

at the request of the South African Police Services

Where one or more of the above circumstances exists the Department of Correctional Services may segregate. Of importance is that segregation is of a temporary nature. The Department is still obliged, in the circumstances, to conduct a disciplinary hearing or address the underlying problem giving rise to the need to segregate.

Since 31 July 2004 the Office of the Inspecting Judge of Prisons has received in excess of 1000 segregation notifications. In brief our experience has been that:

# The majority of these are easily dealt with as they are on the request of inmates.

# Where necessary, matters have been referred to the Independent Prison Visitors for verification and/or the obtaining of additional evidence.

# Inmates are generally not aware that they can refer, for review, their segregations i.t.o. s30(7).

We suggest:

# The Department of Correctional Services build in a monitoring mechanism

to ensure that all segregations are actually and accurately reported.

# The Department of Correctional Services train, extensively, their personnel on the distinction between segregation, solitary confinement and the separation of inmates.

# Consideration be given to inserting into the Act a further sub-section to allow segregation in the circumstances where an investigation is being conducted and it is necessary to segregate to ensure the integrity of the investigation. Broadly we propose the following insertion –

s30(1)g) if an investigation is being conducted and in the opinion of the Head of Prison it is in interests of the administration of justice or necessary to protect the integrity of the investigation.

# Consideration be given to replacing s30(7) and inserting the following

s30(7) (a) A prisoner who is subjected to segregation must be advised of his right to refer the matter for review to the Inspecting Judge; and

(b) Such referral must be facilitated by the Head of Prison.

Mechanical Restraints – s31

The Act makes it compulsory for the Department of Correctional Services to notify the Office of the Inspecting Judge of Prisons –

# Of all instances of the use of mechanical restraints, except handcuffs and leg-irons. The Office of the Inspecting Judge of Prisons with the agreement of the Department of Correctional Services is of the view that the exception be extended to include hand-ties and belly-chains, which are generally used in the prison environment. In this regard we propose, for consideration, that the relevant section read –

s31(4) (a) All cases of the use of mechanical restraints, except handcuffs, leg-irons, belly-chains and plastic ties, must be reported immediately by the Head of the Prison to the Area Manager and to the Inspecting Judge.

(b) Where an inmate is in solitary confinement or in segregation as contemplated in sub-section 3(a) and must be restrained, such case must be referred to the Inspecting Judge for review, who after considering the reasons therefore and a report from a registered nurse , psychologist or the medical officer on the health status of the inmate may confirm or set aside the decision and substitute an appropriate order for it.

Sub-section (b) is proposed to give greater clarity on the requirements by the Department of Correctional Services and to ensure that the use of mechanical restraints which, by definition, makes inroads in the free movement of inmates, be used in a very limited set of circumstances.

# Similarly to segregation, inmates appear to be unaware of their right to

refer and we propose the following amendment –

s31(5) (a) A prisoner who is subjected to such restraints must be advised of his right to refer the matter for review to the Inspecting Judge; and

(b) Such referral must be facilitated by the Head of Prison.

# The Office of the Inspecting Judge has since 31 July 2005 received 32 such notifications.

Solitary Confinement

A most significant section of the 1998 Act is the power it confers on the Inspecting Judge of Prisons in the area of prisoner discipline. Section 25 provides for the Inspecting Judge to review, first, the intended penalty of solitary confinement before implementation. Solitary confinement is statutorily defined as "being held in a single cell with loss of all amenities". The legislation imposes an obligation on the Department, when it intends imposing the harshest available penalty, to conduct a disciplinary enquiry and health assessment before providing the Inspecting Judge with these. In brief this office, since 31 July 2004, has experienced the following:

# From the 109 requests for review it is clear that the Department’s disciplinary officials have received either no or inadequate training in the area of conducting these hearings in line with the Constitutional requirements of "lawful, reasonable and procedurally fair" hearings.

# There appears to be much confusion as to the distinction between the concepts of segregation and solitary confinement.

# On the positive side, without exception, those prisons that comply have

been willing to be advised and assisted by our office.

Suggestions

# The Department of Correctional Services build in a monitoring mechanism to ensure that all solitary confinements are actually and accurately reported.

# The Department of Correctional Services train, extensively, their personnel on the distinction between segregation and solitary confinement.

2. Correctional Supervision or Parole on Medical Grounds

The Judicial Inspectorate of Prisons reported in its Annual Report 2003/2004 that there were 117 medical releases in 2003. The number of deaths was 1683. Since s79 only came into operation on 1 October 2004 it is pre-mature to make any meaningful comparison.

However, it is our view that the 1998 provision is too restrictive. The effect of raising the threshold to "in the final phase of any terminal disease or condition" would make improbable that any inmate would be considered for release until s/he is literally "on deaths door".

The High Courts have, when interpreting the 1959 Act placed the medical release of inmates, in the wider context of the Constitutional requirement that inmates must be provided "adequate health care". We urge that more discretion is allowed to the Department who may be faced with an inmate who may not be dying (terminally ill) but requires 24 hour care, special meals, assistance to perform the most basic human requirements and be in position where the legislation requires that s/he be "in the final stage of terminal illness". Furthermore, the Department will be place in the invidious position that the family may not want to accept the inmate in that state of health.

Our view is that the 1959 position must be reverted to.