7. Detention in police cells — Te mauhere ki roto i ngā whare herehere o ngā Pirihimana

New Zealand context

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Legislation and policy

The international standards and most legislation for those detained in prison also apply to those detained in police cells. In addition, sections of the Police Manual of Best Practice and General Instructions issued pursuant to section 30 of the Police Act 1958 govern practice.

The documents supplied to the Human Rights Commission describe in detail the arrangements for the management of those held in police custody for short periods.[67] However, we note that PO99 of the Police General Instructions referring to the treatment and rights of prisoners requires that:

Police shall be most vigilant in regard to the custody of prisoners who are to be treated with the most humane consideration that their situation and the safety of persons dealing with them will permit.

Any force or restraint used on a prisoner must always be reasonable in the circumstances.

The documents show the very real concern of police for ensuring that these particular injunctions are given force and that practice is in line with international standards. The documents set out in detail the procedures for assessing and monitoring those at risk of harming themselves or others and ensuring the safety of everyone in the management of detention (including escorts of detainees).

New Zealand today

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Locations

Police cells are located in police stations throughout the country. They are normally small in size, minimal in their provisions, and lacking in privacy. They are intended expressly for short-term use and lack the exercise and other facilities that are normally present in places of detention in New Zealand. Adult prisoners are held in police cells for short periods, normally only until the next available court sitting.

Current numbers

Data from the New Zealand Police annual report for 2002 show that a total of 116,953 people were held in police cells following arrest, while on remand after sentence pending hearings or while on transfer. A breakdown of the numbers and characteristics of those detained in police cells for 2002-2003 shows that:

In 2002, one person died in custody, 25 sustained injuries, and 12 complaints relating to prisoners in custody were upheld. This represents one upheld complaint for every 4,332 prisoners. A separate report on the 6,175 people with mental disabilities held in safe custody showed that there were no deaths or successful complaints in this group, and that injuries were sustained in five cases.

Unfortunately there are no data on procedures for monitoring practice, and no data on the nature of complaints or the lengths of time for which people are held.

Key issues

The key human rights issues raised about detention in police cells were the detention of children and young people, and detention under the ADA Act.

Young people in police cells

A recurring area of concern has been the holding of children and young people in police cells. [69] All parties, including the New Zealand Police, Youth Court judges, and the Children's Commissioner, regard the facilities in police cells as quite unsuitable for children or young people. However, children continue to be held in this accommodation, often for several days and at times for a week or more. The problem has arisen because of the lack of secure alternative facilities in which to hold young people who are arrested or remanded in custody and who are considered a risk to themselves or others. For this reason, young people are often held in police custody for longer than adults.

In 1997, in response to problems arising from a lack of secure places for young people who had offended,[70] an interdepartmental strategy was developed by the justice sector departments for the improved management of youth justice remand placements. The strategy document highlights the lack of adequate facilities in police cells and sets out a plan for reducing the number of young people held in such conditions and the length of time for which they are held. It describes a number of specific initiatives intended to ensure that young people are held in police cells for only short periods. [71] These include increasing the availability of alternatives by providing more beds in residences for young people who offend. Central to the strategy is the appointment of a watchdog group that receives information regularly on the numbers of young people in police cells and the reasons for holding them. This committee includes Child, Youth and Family, Police, Ministry of Justice personnel and the Principal Youth Court Judge.

The effectiveness of the strategy has been limited by the fact that the planned additional secure beds have still not been provided. Instead, the problem is growing. The Principal Youth Court Judge, Judge Beecroft (2004), recently described the situation as 'scandalous'. Judge Beecroft reported that, while 447 young people spent a total of 1,152 nights in police cells in 2002, in 2003 that had increased to 522 young people spending 1,677 nights in police cells - almost a 50 percent increase in the total number of nights. The average stay of a young person in police custody during 2002 was 2.6 nights. In 2003, this average increased to 3.2 nights (Office of the Commissioner for Police, 2004c). Judge Beecroft has reported that the 90 residential beds currently available are insufficient and 15-20 more beds are urgently required.

Detention in police cells under the ADA Act

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When a constable finds a person in a public place who is intoxicated, section 37A of the Alcoholism and Drug Addiction Act 1966 (ADA Act) provides a three-step process. If the person's address is known or if he or she is able and willing to provide it, the constable can take the person home. If that is not possible, then the constable may take the person to a temporary shelter or detoxification centre. If that is not possible either, then the person can be detained in police custody for up to 12 hours.

During 2003, police were called on 16,000 times to securely detain intoxicated people in cells. This represents a 33 percent increase in the number of recorded incidents during the last five years (Office of the Commissioner for Police, 2004a).

The Office of the Commissioner for Police has expressed concern about the risks to both the detainees and to police staff from having severely intoxicated persons in cell blocks. In a letter to the Deputy Director of Mental Health in March 2004 (Office of the Commissioner for Police, 2004b) the police refer to a case in November 2002 in which a detainee's serious medical conditions appear to have been masked by his state of intoxication; a matter which is still before the Coroner's Court for determination, as the detainee later died after being transferred for hospital care. The letter also refers to the growing recognition of alcohol misuse as a risk factor for suicide and other self-harming behaviour in custodial settings, and the fact that the realities of busy police watch houses mean that monitoring and supervision of intoxicated people in police cells must 'inevitably be intermittent'.

8.  Children and young people in detention — Te mauhere o te tamariki rangatahi

International standards

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The articles in UNCROC that apply to the issue of detention are listed earlier in this chapter. New Zealand has a reservation relating to the mixing of young people and adults where the shortage of suitable facilities makes this unavoidable.

New Zealand context

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The Children, Young Persons and Their Families Act 1989 (CYP&F Act), is the key piece of legislation relating to detention of children and young people.[72] The CYP&F Act and protections available in various guidelines issued under the Act apply to under-17-year-olds only, which is inconsistent with the UNCROC definition of the child which defines a child as any human being under 18. [73] This has been widely criticised (Action for Children & Youth in Aotearoa (ACYA), 2003; UNCROC, 2003). The CYP&F Act has two main parts, one dealing with care and protection, and the other dealing with youth justice.

Under the CYP&F Act, children and young people can be removed and detained for their care and protection in various circumstances.[74] They can be placed into the custody of the Children, Youth and Their Families Service (CYFS). [75]

The CYP&F Act and the Criminal Justice Act 1985 (CJA) deal with the issues of when and where children and young people who are accused or convicted of committing criminal offences can be detained. Part 4 of the CYP&F Act lists guiding principles, one of which is that a child or young person who commits an offence should be kept in the community so far as is practicable and consonant with the need to ensure the safety of the public.[76] Following arrest they can be detained by police [77] or given into the custody of others, including Child, Youth and Family. [78]

A child or young person can be sentenced by the Youth Court to supervision with residence requirement. [79] Children and young persons who are sentenced to imprisonment can be detained in a residence approved by CYFS or a prison. [80]

When a child or young person is detained for their care and protection their welfare and interests are the first and paramount consideration. [81] When they are detained under the youth justice provisions, guiding principles in the CYP&F Act require that they be dealt with in a way that acknowledges their needs and that will give them the opportunity to develop in responsible, beneficial, and socially acceptable ways.[82]

The Children, Young Persons, and Their Families (Residential Care) Regulations 1996 (Residential Care Regulations) provide comprehensive rules for the treatment of children and young people detained in Child, Youth and Family residences, and require a high standard of professional care.[83] Corporal punishment or other physical force is prohibited, as is discipline or treatment that is cruel, inhumane, degrading or humiliating, or is likely to induce an unreasonable amount of fear or anxiety. [84]

New Zealand today

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The key human rights issues raised about youth justice facilities were:

Treatment of children and young people detained in residential institutions

The Code of Practice for Residential Care Services 1998 contains measures that support the humane treatment of children and young people in residences. The Care and Protection and Youth Justice Handbook has rules that emphasise the safety and dignity of the young people. CYFS has advised that professional practice standards are maintained through a comprehensive selection process, a 12-week induction programme for training new staff, and ongoing monitoring through supervision.

The 2001 Compliance Audit Report on Child, Youth and Family residences reported that on eight out of 10 criteria there had been a significant regression in the degree of compliance with the Regulations. In the 2002 Compliance Audit Report , no improvement was shown in any of the categories, and in the judgement of the auditors standards were 'inadequate'. Examples are: in three of the six residences, children (or their rooms) were routinely searched (the Residential Care Regulations allow search only for reasonable belief that the child has some harmful or unlawful item concealed); in one residence, children were subjected to 250 strip searches in the year to June 2002; and the report questions whether the criteria for holding children in secure care are being applied correctly in some residences.

A report by ACYA in March 2003 raised concerns about the treatment of children and young people in residential care and in the youth justice system.

Access to others

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UNCROC stresses that those under 18 years of age who are separated from their parents have a right to maintain personal relations and direct contact on a regular basis. This principle is supported by the CYP&F Act, [85] the Residential Care Regulations 1996 [86] and the Code of Practice for Residential Care Services 2001.

CYFS has said that residences encourage visitors at all reasonable times and have facilities where families from out of town can stay. However, the ACYA report claims that young offenders are being held outside their home region, preventing access to their families. ACYA also says that in some residences restrictions were placed on visits by family of the residents.

Complaints and grievance procedures

Complaint procedures for children and young people in care are provided in the Residential Care Regulations. [87] The child or young person must be advised of his or her right to an independent advocate and assisted to obtain an advocate. Grievance panels set up under these regulations must report quarterly on all reviews of complaints, stating whether there has been compliance with the procedures. It is not known to what level these reports are monitored. The ACYA report says that, in two centres, grievance procedures were not operating effectively. Complaints may also be made to the Ombudsmen's office.[88]

Monitoring and inspections

Departmental Internal Auditors conduct annual audits of each residence and review compliance with regulations and social work practice. [89] These reports are sent to the appropriate staff at Child, Youth and Family. All young prisoners who are transferred to a Child, Youth and Family residence have access to a Prison Inspector. Inspectors are entitled to have physical access to the detainee and to all relevant staff and records. The Police Complaints Authority has jurisdiction to examine some issues relating to detention in police cells.