Criminal Procedure Amendment Bill, 2017 Presentation to The Select Committee on Security and Justice 07 June 2017

Criminal Procedure Amendment Bill, 2017 Background information: Current legal position: Section 77 of the CPA deals with the capacity of an accused person to understand criminal proceedings and provides that if it appears to a court that an accused person is by reason of mental illness or mental defect not capable of understanding the proceedings so as to make a proper defence, the court shall direct that the matter be enquired into and be reported on in accordance with the provisions of section 79 (composition of panel for purposes of enquiry and report under sections 77 and 78). Section 77(6)(a)(i) provides that if a court finds that an accused person is not capable of understanding the proceedings the court must, in the case of a charge of murder or culpable homicide or other offence involving serious violence, direct that the accused concerned be detained in a psychiatric hospital or a prison pending the decision of a judge in chambers in terms of section 47 of the Mental Health Care Act, 2002. Section 77(6)(a)(ii) of the CPA requires that a court must direct that an accused person, where the court finds that the accused has committed an offence other than one contemplated in section 77(6)(a)(i) or that he or she has not committed any offence, be admitted to and detained in an institution as if he or she were an involuntary mental health care user contemplated in section 37 of the Mental Health Care Act, 2002.

Criminal Procedure Amendment Bill Background information (cont): Sections 77 to 79 established a procedure which consists of three components, namely― (i)certain accused persons are referred to psychiatric institutions for observation; (ii)a panel of experts is tasked with the observation of the accused persons and reporting to the courts on the mental condition of the accused persons concerned; and (iii)the courts make findings with regard to the mental condition of the accused persons and orders their institutionalisation in psychiatric institutions.

Criminal Procedure Amendment Bill Purpose of Bill: To give effect to two judgments, as discussed below. 1. Constitutional Court: De Vos N.O. and Others v Minister of Justice and Constitutional Development and Others [2015] ZACC 21, which declared section 77(6)(a)(i) of the CPA to be inconsistent with the Constitution and invalid to the extent that it provides for— (a) compulsory imprisonment of an adult accused person; and (b) compulsory hospitalisation or imprisonment of children. This judgment was delivered on 25 June 2015 – Court gave Parliament 24 months to correct provisions concerned.

Criminal Procedure Amendment Bill Purpose of Bill(continued): 2. Western Cape High Court: S v Pedro [2014] JOL 32061 (WCC): Composition of the panels provided for in s 79 of CPA came under scrutiny in this case. The case largely dealt with the correct interpretation of section 79(1)(b) of the CPA insofar as it relates to the composition of the psychiatric panels. Section 79(1) of the CPA deals with the constitution of the panels for purposes of the sections 77 and 78 reports to be prepared for the court. Section 79(1)(b) provides that where the accused is charged with, among others, murder or culpable homicide or another charge involving serious violence, the panel concerned must consist of a— medical superintendent of a psychiatric hospital designated by the court, or by a psychiatrist appointed by the medical superintendent at the request of the court; a psychiatrist appointed by the court and who is not in the full-time service of the State unless the court directs otherwise, upon application of the prosecutor, in accordance with directives that have been issued by the National Director of Public Prosecutions; a psychiatrist appointed for the accused by the court; and a clinical psychologist where the court so directs. The court gave a clear and unambiguous interpretation of how section 79(1)(b) should be read in order to ensure that the psychiatric panels are properly constituted. The Court found that three psychiatrists, including a private psychiatrist, must be appointed unless the court, upon application by the prosecutor, directs that a private psychiatrist need not be appointed, in which case there must be two psychiatrists. The court may in any event appoint a private psychiatrist. The Amendment Bill therefore also aims to amend section 79 of the CPA in order to ensure that the provisions thereof are not only consistently interpreted and applied in the Western Cape, but throughout the country.

Criminal Procedure Amendment Bill Consultation: A Task Team consisting of DoJ&CD, NPA, DoH, DCS and SAPS worked together in drafting a Bill. Cape Mental Health and the Commission on Gender Equality submitted comments during public consultation process. Provisions of the Bill Clauses 1 and 2 give effect to the De Vos case. Clause 1(a) - replaces the outdated term of “mental defect” in S 77(1) with “intellectual disability”. Clause 1(b) - amends S 77(6)(a)(i) – the court is given a discretion to order that― the accused person be detained in a psychiatric hospital; or the accused person be detained in a correctional health facility of a prison where a bed is not immediately available in a psychiatric hospital if the court is of the opinion that that the accused poses a serious danger to him- or herself or to members of the public; accused person be admitted to and detained in an institution as an involuntary mental health care user contemplated in S 37 of the Mental Health Care Act, 2002; or the accused person be released subject to such conditions as the court considers appropriate; and The proposed new paragraphs (i)(ee) and (ii)(dd) are aimed at highlighting the position of a child who is in need of care and protection. Provision is therefore made for such a child to be referred to a Children’s Court as contemplated in section 64 of the Child Justice Act, 2008 (Act No. 75 of 2008).

Criminal Procedure Amendment Bill Clause 1(c) - amendment of 77(9) is of a consequential nature. Subsection? (9) provides that if an appeal against a finding that an accused can understand the proceedings then the court of appeal should set aside conviction and sentence and order that accused admitted to an institution. Subsection? (9) to be amended to provide that the case be referred back to court that made finding in order to issue direction i.t.o s 77(6)(a)(i) or (ii). Clause 2 Subclauses (a) to (d) and (f) replace the outdated term of “mental defect” wherever it appears in S 78 with “intellectual disability”. Subclause (e) deals with the detention of a person in prison and requires that the person concerned be detained in a correctional health facility of a prison where a bed is not immediately available in a psychiatric hospital if the court is of the opinion that it is necessary to do so on the grounds that the accused poses a serious danger or threat to him- or herself or to members of the public.

Criminal Procedure Amendment Bill Provisions of Bill Clause 3 gives effect to the Pedro case: Subclause (a) amends S 79(1) to the following effect: in the case of less serious offences: enquiry must be conducted and reported on by the head of a health establishment if the head is a psychiatrist or by a psychiatrist delegated by the head. in the case of serious offences: a panel must be constituted and consist of at least two psychiatrists. A third member of the panel, namely a psychiatrist, may be appointed by the court upon application by the accused person. A clinical psychologist will form part of the panel if the court so directs. Subclause (b) inserts the term “mental condition” before the term “mental capacity” for purposes of consistency with other provisions of S 79. Subclause (c) replaces the outdated term of “mental defect” in S 79(4)(d) with “intellectual disability”. Subclause (d) repeals S 79(13) as a consequence of the proposed amendment of S 79(1).

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