Preventive detention is an imprisonment that is not imposed as the punishment for a crime, but in order to prevent a person from committing a crime, if that person is deemed likely to commit a crime.
In most democracies, no one can be arrested without being told the grounds for such an arrest, except under rare and special circumstances (usually anti-terrorism legislation). An arrested citizen has certain rights: He or she must be subject to and informed of a criminal charge and brought before the nearest magistrate within a certain amount of time, and has the right to defend himself by a lawyer of his choice. Depending on the laws, this lawyer can be called for as soon as the detention starts, or sometimes days or weeks later.
In contrast to this, under preventive detention the government can imprison a person for some time without a criminal charge. It means that if the government feels that a person being at liberty can be a threat to the law and order or the unity and integrity of the nation, it can detain or arrest that person to prevent him from doing this possible harm. Some jurisdictions allow preventive detention only in specific cases, for example only for persons who have already been sentenced for a serious crime (or as part of the sentence for that crime).
A related, but different form of detention is detention of suspects. In contrast to preventive detention, detention of suspects must quickly be followed by a criminal charge (or happen after the charge).
In most jurisdictions, people suffering from serious mental illness may be subject to involuntary commitment under mental health legislation. This is undertaken on health grounds or in order to protect the person or others. It does not strictly speaking constitute a form of preventive detention, because the person is detained for treatment and released once this has proved effective.
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In Australia the legislation differs depending on the state, but the bulk of the preventive detention laws have been aimed at dangerous sex offenders. Some academics argue that this is fair, because of the dangerous offender's prior fault. Dennis J. Baker, ‘Punishment Without A Crime: Is Preventive Detention Reconcilable With Justice?’ (2009) 34 Australian Journal of Legal Philosophy 120.
In Canada, anyone declared a dangerous offender by the courts is subject to an indefinite period of detention.
The Republic of Costa Rica, where the 1998 Criminal Proceedings Code allows for a normal "preventive" imprisonment 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. In fact, in Costa Rica, as of 2006, over 4,000 people were serving terms of preventive detention.
The police can detain people for 6 hours without involving the courts or pay compensation for wrongful arrest.[1] 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.[2] 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.[3] Critics fear that they will remain as permanent laws when the summit is over.[4]
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 commited a grave offence and are considered a danger to public safety. It is an indeterminate life 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.[5] 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.[6]
In India, preventive detention can be extended for only three months. After three months, such a case is brought before an advisory board for review. In India, this is given in the Constitution of India under Right to Freedom, a Fundamental Right.
In Malaysia the Internal Security Act 1960 or ISA (Malay: Akta Keselamatan Dalam Negeri) is a preventive detention law in force. The legislation was enacted after Malaysia gained independence from Britain in 1957. The ISA allows for detention without trial or criminal charges under limited, legally defined circumstances. The ISA is invoked against terrorism activity and against anyone deemed a threat to National security. On 15 September 2011, the Prime Minister of Malaysia, Najib Razak said that this legislation will be repealed and replaced by two new laws.[7] The ISA would only be repealed in March 2012. [8]
In New Zealand, "preventive detention" is an indeterminate life sentence, and is handed down to individuals convicted of violent and/or sexual crimes (such as sociopathic murderers, serial rapists or recidivist pedophiles) where it is likely that the offender will reoffend if released. Such individuals will only receive parole if they can demonstrate they no longer pose a threat to the community. In October 2010, a total of 269 prisoners in New Zealand were serving terms of preventive detention.
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. Prisoners on preventive detention are very rarely, if ever, released, and generally persons given the sentence are kept in prison for life. Currently only 16 of the 269 persons serving sentences of preventive detention are on parole.[9]
The longest non-parole period on a sentence of preventive detention is one of 26 years, being served by Graeme William Burton, who killed two people and injured four others between 1992-2007.
Currently, New Zealand's longest serving inmate, Alfred Thomas Vincent, who became eligible for parole in 1975, is still serving a sentence of preventive detention after 43 years.[10]
England and Wales has provisions to deal with dangerous offenders similar to what is used in Canada.
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.
In late June 2009, United States President Barack Obama was reported to have been considering indefinite preventive detention for some Guantanamo captives.[11][12][13]