Crime figures test constitution's limits

Crime figures test constitution's limits

Franny Rabkin

CRIME statistics for the past year will be announced today, no doubt eliciting the familiar mantra and furore about crime and the police's inability to curb it. Again, no doubt, people including the police themselves will say that the hands of the country's crime fighters are tied by a constitution which gives criminals more rights than their victims have.

Part of the problem seems to be a misunderstanding of when it is constitutionally permissible to use force when facing a criminal.

A study by the Centre for the Study of Violence and Reconciliation (CSVR) on the police says while "citizens demand that police protect them" they also demand that they "do so only legally and respectfully".

Incidents of police brutality and corruption are high in SA . According to the Independent Complaints Directorate (ICD), last year 419 people were killed "as a result of police action".

Of these 375 were shootings.

The CSVR study points to various factors as to why this is so.

One of them is public attitudes — while people condemn police violence and corruption, "many will hardly hesitate before bribing a traffic officer".

Also, "where many members of the public regard themselves as under siege by criminals, public opinion and pressure on the police to deliver results creates an environment permissive of human rights violations".

There are very good reasons for limiting the use of force. The taking of a life is one of the most fundamental breaches of a person's rights. Without life, there are no other rights. Taking life without having even establishing a person's guilt is even more extreme. The margin for error in the split second in which a decision to shoot is made in such circumstances is very high.

As the Constitutional Court has said, "The right to life, to human dignity and to bodily integrity are individually essential and collectively foundat-ional to the value system prescribed by the constitution.

"It follows that any significant limitation of any of these rights would, for its justification, demand a very compelling countervailing public interest."

Despite this, our courts have said it is sometimes justified to take another person's life. There are two circumstances in which force is permissible.

First, in situations of "private defence". This is when there is a threat to your or someone else's life or physical integrity.

All the arguments that the constitution puts people's lives in danger, or threatens the security of police officers, are misplaced.

The second situation, which seems to have caused much of the confusion, is the use of force when trying to arrest a fleeing suspect. The legal position on this is set out in section 49 of the Criminal Procedure Act.

Section 49 was amended in 1998 and the amendment came into force in 2003.

Between the amendment and its coming into force, two major judgments were given on section 49 by the Supreme Court of Appeal and by the Constitutional Court.

The judgments spelt out very clearly and simply when force could be used to effect an arrest.

In terms of the judgments, the police, or any person, may use force on a fleeing suspect in two circumstances: if there is a threat of serious physical harm to him or anyone else (ie private defence); and if the suspect is reasonably suspected of having committed an offence involving the infliction of serious bodily harm and there is be no other way to apprehend the suspect.

In the second instance, the reason force is justified is that there is a reasonable possibility that whatever the person might have done before could be repeated, with disastrous consequences. In other words, the suspect poses a future threat.

The idea of a future threat is what informs the new section 49. The section specifically refers to causing "an imminent or future death or grievous bodily harm".

But according to David Bruce, senior researcher at the CSVR, the new section 49 is not as clear or as simple as the judgments.

Bruce argues that the position in the judgments sets out a clear test: if the suspect is being pursued for a dangerous offence, force is permissible.

"But with the new section the truth is that no one will really know whether or not a fleeing vehicle hijacker is to be seen as someone who poses a risk of future death or grievous bodily harm.

"The new section 49 has muddied the waters."

The confusion could also be the reason why so few deaths as a result of police action are successfully prosecuted. Only 10 of the 419 cases last year resulted in convictions.

in Business Day, 30 June 2008.

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CSVR is a multi-disciplinary institute that seeks to understand and prevent violence, heal its effects and build sustainable peace at the community, national and regional levels.

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