Sheriff Act 1900 Review


Appendix 2

Court Security and Custodial Services Act 1999 (WA)

Schedule 2 ¾ Powers in relation to custodial services
[ss. 3, 15, 16, 22, 23, 24, 25, 27, 48, 70, 75, 79, 93, 95 and 100]

Division 1 ¾ Powers in relation to taking charge of, and moving, persons in custody

1. Power to take charge of, and move, persons in the custody of law enforcement officers
The power to take charge of, and move, a person in the custody of a law enforcement officer in accordance with a request under section 71, 72 or 76.

2. Power to take charge of, and move, prisoners and detainees
(1) The power to take charge of a prisoner or detainee at any of the following custodial places ¾
(a) a court custody centre or lock-up (but if the authorized person is a contract worker, the court custody centre or lock-up must be one that is managed under the relevant contract);
(b) any other part of court premises;
(c) a hospital or other place that is outside a prison or detention centre and attended by the prisoner or detainee for medical treatment;
(d) a place to which the prisoner has been removed under section 28 of the Prisons Act 1981;
(e) a place attended by the prisoner under section 83 of the Prisons Act 1981; or
(f) a place attended by the detainee under section 188(4) of the Young Offenders Act 1994,
in accordance with such of the provisions of the Prisons Act 1981 or the Young Offenders Act 1994 or of an order, direction, warrant or other instrument under those Acts or any other law, as are relevant to the authorized person's taking charge of the prisoner or detainee at such a place.
(2) The power to move a prisoner or detainee between custodial places and to take charge of the prisoner or detainee while he or she is so moved or is being prepared to be moved, in accordance with such of the provisions of the Prisons Act 1981 or the Young Offenders Act 1994 or of an order, direction, warrant or other instrument under those Acts or any other law, as are relevant to the movement of the prisoner or detainee between such places.

3. Power to take charge of, and move, persons in court custody
(1) The power to take charge of a person in court custody at any of the following custodial places ¾
(a) a court custody centre (but if the authorized person is a contract worker, the court custody centre must be one that is managed under the relevant contract);
(b) any other part of court premises; or
(c) a hospital or other place that is attended by the person in court custody for medical treatment,
in accordance with the provisions of a court order.
(2) The power to move a person in court custody between custodial places and to take charge of the person while he or she is so moved or is being prepared to be moved, in accordance with the provisions of a court order.

4. Power to move young persons remanded for observation
The power to move a young person between court premises and a place to which the court has, under section 49 of the Young Offenders Act 1994, remanded the young person for observation and to take charge of the young person while he or she is so moved or is being prepared to be moved, in accordance with the provisions of the order.

5. Power to move mentally ill or mentally impaired defendants
The power to move a person who is the subject of a hospital order or a custody order under the Criminal Law (Mentally Impaired Defendants) Act 1996 between custodial places and to take charge of the person while he or she is so moved or is being prepared to be moved, in accordance with the provisions of the relevant order.

Division 2 ¾ Powers in relation to keeping persons in custody

6. Powers in this Division apply in relation to exercise of Division 1 powers
The powers set out in this Division may only be exercised ¾
(a) by a person who is authorized to exercise a power under Division 1 in relation to a person in custody; and
(b) for the purposes of the authorized person's taking charge of, or moving, the person in custody in accordance with the relevant request, provision, order, direction, warrant or other instrument.

7. Power to take particulars of identity of persons in custody
(1) The power to take or cause to be taken from a person in custody who is at a custodial place or being moved between custodial places, all such particulars as the authorized person thinks necessary or desirable for the identification of the person in custody, including the photograph, measurements, fingerprints and palmprints of the person in custody.
(2) Section 50AA (2) of the Police Act 1892 applies to photographs, fingerprints, palmprints or other identification particulars of a person in custody that are taken under subclause (1).

8. Power to search persons in custody and their possessions
The power to search a person in custody who is at a custodial place or being moved between custodial places and any thing in the person's possession for any property that the authorized person believes on reasonable grounds is likely to adversely affect the security, good order or management of ¾
(a) a custodial place; or
(b) a vehicle used for moving persons between custodial places.

9. Power to seize property from persons in custody
(1) The power to seize, without warrant, from a person in custody who is at a custodial place or being moved between custodial places any property that the authorized person believes on reasonable grounds is likely to adversely affect the security, good order or management of ¾
(a) a custodial place; or
(b) a vehicle used for moving persons between custodial places.
(2) Property may be seized under subclause (1) from a prisoner or detainee even though it was issued to, or is retained by, the prisoner or detainee with the approval of the superintendent of the relevant prison or detention centre.
(3) The power to seize, without warrant, from a prisoner or detainee who is at a custodial place or being moved between custodial places any property ¾
(a) which apparently was not issued to the prisoner or detainee with the approval of the superintendent of the relevant prison or detention centre; or
(b) which is retained by the prisoner or detainee without the approval of that superintendent.
(4) An authorized person who seizes property under subclause (1) or (3) has lawful possession of the property subject to section 95 of this Act and to section 6(2) of the Weapons Act 1998.
(5) Property seized under subclause (1) or (3) is to be dealt with in accordance with the CEO's rules.

10. Power to take persons in custody from certain custodial places for medical treatment
(1) In this clause ¾
}custodial place~ means a custodial place other than a prison or a detention centre;
}medical treatment~ means medical treatment that cannot, by reason of impracticality or urgency, be administered within a custodial place.
(2) The power ¾
(a) to take a person in custody from a custodial place to a place for medical treatment and, after the treatment, to return the person in custody to the custodial place; and
(b) to take charge of a person in custody while the person in custody is admitted to a place for medical treatment.
(3) The custodial status of a person is not affected by the person being taken, under subclause (2), to a place for medical treatment.

11. Power to issue orders to persons in custody
(1) The power to issue to a person in custody, other than a prisoner or a detainee, who is at a custodial place or being moved between custodial places such orders as are necessary for the security, good order or management of ¾
(a) a custodial place; or
(b) a vehicle used for moving persons in custody between custodial places.
(2) A person in custody referred to in subclause (1) must comply with an order under that subclause.
Penalty: $300.
(3) The power to issue orders to a prisoner in accordance with section 14(2) of Prisons Act 1981.
(4) The power to issue orders to a detainee as if the authorized person were a person having authority to give orders to a detainee for the purposes of the Young Offenders Act 1994.

12. Power to restrain persons in custody
(1) The power to restrain a person in custody who is at a custodial place or being moved between custodial places.
(2) The power to restrain a person in custody is limited to circumstances in which, in the opinion of the authorized person, the restraint is necessary ¾
(a) to prevent a person in custody injuring himself or herself or any other person;
(b) to prevent a person in custody from causing damage to property;
(c) on medical grounds but only if a doctor or nurse considers the restraint necessary; or
(d) to prevent the escape of a person in custody ¾
(i) where no physical barriers exist to prevent escape; or
(ii) during the person's movement within a custodial place or between custodial places.
(3) Despite subclause (2), the power to restrain a person in custody in a courtroom ¾
(a) is not to be exercised unless the person presiding in the courtroom has directed that the person in custody be restrained in the courtroom; and
(b) is to be exercised in accordance with any direction of the person presiding in the courtroom.
(4) An authorized person must not restrain a person in custody by the use of medication unless the restraint is on medical grounds and has the approval of a doctor.
(5) If a person in custody is restrained by an authorized person under subclause (2)(a), (b) or (c), the use and circumstances of the restraint must be recorded in accordance with the CEO's rules.
(6) If ¾
(a) an adult person in custody is restrained by an authorized person for a continuing period of more than 24 hours; or
(b) a young person in custody is restrained by an authorized person for a continuing period of more than 8 hours,
the use and the circumstances of the restraint must be reported forthwith to the CEO by the authorized person.
(7) Regulations are to provide for ¾
(a) the kinds of devices or substances other than medication that can or cannot be used to restrain persons in custody;
(b) the manner in which a device or substance must, or must not, be used to restrain persons in custody; and
(c) the procedures to be followed in respect of the use of restraints on persons in custody.

13. Power to prevent communication etc. with persons in custody
The power to prevent another person from communicating or interfering with, or giving or passing anything to, a person in custody if, in the opinion of the authorized person, that action is likely to adversely affect the security, good order or management of ¾
(a) a custodial place; or
(b) a vehicle used for moving persons between custodial places.

14. Power to make charges of prison offences
The power to make a charge of a prison offence as defined in the Prisons Act 1981 that is alleged to have been committed by a prisoner ¾
(a) at a custodial place or when being moved between custodial places; and
(b) when the prisoner was in the charge of the authorized person.

15. Power to make charges of detention offences
The power to make a charge of a detention offence referred to in section 170 of the Young Offenders Act 1994 that is alleged to have been committed by a detainee ¾
(a) at a custodial place or when being moved between custodial places; and
(b) when the detainee was in the charge of the authorized person.

Division 3 ¾ Powers in relation to intoxicated detainees

16. Powers as to intoxicated detainees
The power to take charge of, and move, an intoxicated detainee in accordance with a request under section 80 or 81.

Division 4 ¾ Powers in relation to visitors to lock-ups and court custody centres

17. Interpretation
(1) A reference in this Division to a lock-up or court custody centre is, if the authorized person is a contract worker, a reference to a lock-up or court custody centre that is managed under the relevant contract.
(2) A reference in this Division to a person does not include a reference to a person in custody.

18. Power to identify visitors to lock-ups and court custody centres
(1) The power to ask a person who is about to enter, or who is already within, a lock-up or a court custody centre¾
(a) for the person's name, address and date of birth;
(b) for the person's reason for wishing to enter, or being within, the lock-up or court custody centre; and
(c) to produce evidence of the person's identity.
(2) A person must not, in response to a request under subclause (1) ¾
(a) fail or refuse to provide the requested information;
(b) give information that is false or misleading in a material particular; or
(c) provide any false evidence of identity.
Penalty: $1 000.

19. Power to deal with disorderly or suspicious visitors to lock-ups and court custody centres
(1) The power to prevent a person from entering a lock-up or a court custody centre if the person ¾
(a) is behaving in a disorderly manner at or in the immediate vicinity of the lock-up or court custody centre; or
(b) does not satisfy the authorized person that he or she has a proper reason for wishing to enter the lock-up or court custody centre.
(2) The power to ask a person to leave a lock-up or court custody centre and, if the person refuses to leave that place, to remove the person from that place, if the person ¾
(a) is behaving in a disorderly manner at the lock-up or court custody centre; or
(b) does not satisfy the authorized person that he or she has a proper reason for being in the lock-up or court custody centre.

20. Power to search visitors and their possessions at lock-ups and court custody centres
The power to ask a person who is about to enter, or who is already within, a lock-up or court custody centre ¾
(a) to allow a search to be made of his or her person; and
(b) to allow a search to be made of any thing in the person's possession,
for any property that the authorized person believes on reasonable grounds is likely to adversely affect the security, good order or management of the lock-up or court custody centre.

21. Power to require visitors to lock-ups and court custody centres to deposit property
The power to ask a person who is about to enter, or who is already within, a lock-up or court custody centre to deposit with an authorized person for the duration of the person's presence within that place ¾
(a) any property that the authorized person believes on reasonable grounds is likely to adversely affect the security, good order or management of that place; or
(b) any thing in the person's possession that is reasonably capable of concealing such property.

22. Further powers to refuse entry to, or remove visitors from, lock-ups and court custody centres
The power ¾
(a) to prevent a person from entering a lock-up or court custody centre; and
(b) to ask a person to leave a lock-up or court custody centre and, if the person refuses to leave that place, to remove the person from that place,
if ¾
(c) the authorized person is not satisfied on reasonable grounds as to the person's identity;
(d) the person does not comply with a request under clause 20 to allow a search of his or her person or a thing in the person's possession; or

(e) the person does not comply with a request under clause 21 to deposit property.