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Prison Act

LAWS OF TONGA

1988 Revised Edition]

CHAPTER 36

PRISONS ACT

Arrangement of Sections

Section
1 Short title.
2 Interpretation.

PART I - PRISONS AND PRISON OFFICERS

3 Minister of Police to have supervision.
4 Existing prisons continued.
5 Power to make rules.
6 Prisons establishment.
7 Existing prison officers continued.
8 Appointment and promotion.
9 Duration of appointment.
10 Resignation.
11 Delivery up of accoutrements, etc.
12 Powers and privileges.
13 Provision of uniforms.
14 Responsibility of Chief Gaolers.
15 Court of inquiry for major offences by prison officers.
16 Powers of court of inquiry.
17 Visiting officers.
18 Penalty for improper use by prison officers of government property.
19 Minor offences by prison officers.
20 Reduction of prison officers to lower rank for misconduct or inefficiency.
21 Dismissal of prison officers.
22 Deduction of fines from prison officer's pay.

PART II – PRISONERS

23 Hard labour.
24 Corporal punishment.
25 Removal of prisoners from one prison to another.
26 Removal of sick prisoners to hospital.
27 Inquests on prisoners dying during imprisonment.
28 Penalty for assault on prison officer.
29 Penalty for escaping.
30 Prison offences generally.
31 Penalty for aiding prisoner to escape.
32 Penalty for permitting prisoner to escape.
33 Penalty for harbouring prisoner.
34 Penalty for delivery to prisoner of article not permitted by prison rules.
35 Police to prosecute.
36 Order for attendance of prisoner as witness at court.
37 Prisons Advisory Committee.
38 Regulations.

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PRISONS ACT

Acts No 9 of 1923, 9 of 1935, 20 of 1942, 10 of 1945, 8 of 1947, 8 of 1962, 13 of 1987

AN ACT RELATING TO PRISONS

Commencement [17th July, 1923]

1 Short title.

This Act may be cited as The Prisons Act.

2 Interpretation.

In this Act:

"Minister of Police" includes any person for the time being lawfully performing the duties of that office;

"Prison officer" means a Chief Gaoler or any subordinate officer employed in any prison.

PART I - PRISONS AND PRISON OFFICERS

3 Minister of Police to have supervision.

The Minister of Police shall have the supervision and direction of all prisons and prisoners subject to the control of the Cabinet.

4 Existing prisons continued.

The buildings and premises in Hu'atolitoli in Tongatapu, 'Ohonua in 'Eua, Pangai in Ha'apai, Neiafu in Vava'u, Hihifo in Niuatoputapu and Angaha in Niuafo'ou which have heretofore been used as prisons shall continue to be so under this Act:

Provided that His Majesty may by Order in Council permanently or temporarily close any such prisons or may appoint other buildings and premises to be used as prisons either in addition to or in substitution for any existing prison or prisons. (Amended by Act 13 of 1987.)

5 Power to make rules.

The Minister of Police may from time to time with the consent of the Cabinet make, alter or revoke rules relating to prisons and providing for:

(a) the government of the prisons;

(b) the diet, clothing, maintenance, employment, discipline and punishment of the prisoners;

(c) the conduct and duties of the prison officers;

(d) the rations, accoutrements, clothing and other articles to be furnished to the prison officers and their care of the same;

(e) the inspection of all prisoners, prisons and prison equipment and of the prison officers, their accoutrements and clothing.

6 Prisons establishment.

The establishment of the prisons shall consist of the Superintendent of Prisons, Assistant Superintendents of Prisons, Chief Warders and such number of officers as may from time to time be provided for in the Annual Estimates of the Kingdom. (Substituted by Act 13 of 1987.)

7 Existing prison officers continued.

Any prison officer who was appointed under any repealed enactment shall continue to hold his appointment in the same manner as if such enactment had not been repealed but subject to the provisions of this Act.

8 Appointment and promotion.

All appointments and promotions of prison officers shall be made by the Minister of Police with the approval of the Cabinet.

9 Duration of appointment.

Every prison officer shall on his first appointment as such be engaged for a period of 2 years but at the end of that period he may if of good character and fit for further service be re-employed from year to year.

10 Resignation.

No prison officer shall during the period for which he is employed resign or withdraw from the duties of his office without the written consent of the Minister of Police and any such officer who shall resign or withdraw from his duties without such consent shall be liable for so doing on conviction before a magistrate at the instance of the police to a fine not exceeding $40 and in default of payment to imprisonment for any term not exceeding 3 months.

11 Delivery up of accoutrements, etc.

Every prison officer upon being dismissed from or ceasing to hold office shall forthwith deliver up to the Minister of Police (or the person appointed by him for the purpose) all accoutrements and other articles whatsoever which have been supplied to him at the public expense and in default of so doing shall be liable on conviction before a magistrate to a fine not exceeding $100 and in default of payment to imprisonment for any term not exceeding 3 months and the convicting magistrate shall and is hereby required to issue his warrant to search for and seize on behalf of the Government such articles wheresoever they may be found. (Amended by Act 13 of 1987.)

12 Powers and privileges.

Every prison officer shall during the continuance of his service be deemed by virtue of his appointment to be a constable and to have all the powers and privileges of a constable and shall be provided with a staff similar to that carried by the police. (Amended by Act 13 of 1987.)

13 Provision of uniforms.

Every prison officer shall be provided with uniform at the public expense.

14 Responsibility of Chief Gaolers.

The Chief Gaoler of each district shall be responsible for:

(a) the safe custody of all prisoners committed to the prison of which he has control;

(b) the carrying out of the sentences passed upon the prisoners committed to his custody;

(c) due compliance with the prison rules by all prison officers and prisoners under his charge;

(d) the safeguarding and proper care of all instruments, tools and other implements connected with the prison of which he has control.

15 Court of inquiry for major offences by prison officers.

The Minister of Police and the magistrate for the district or any person or persons (not exceeding 3 in number) whom the Cabinet may nominate in any particular case shall form a court of inquiry into any charges of breach of discipline or offences brought against any prison officer except those of a petty nature the punishment for which may be provided for by rules made under this Act. The Minister of Police and in his absence the magistrate or such other person as the Cabinet may appoint shall be the president of such court and shall have all the power of a magistrate in regard to summoning and enforcing the attendance of witnesses, the punishment of witnesses for non-attendance or for refusing to answer any question relevant to the inquiry.

16 Powers of court of inquiry.

The court referred to in section 15 shall have power to hear and determine all charges of:

(a) intoxication, or

(b) serious breaches of good order or discipline or of any prison rule,

which may be brought against any prison officer and where no punishment is expressly provided for an offence may impose a fine not exceeding $50 or imprisonment for any term not exceeding 2 months. (Amended by Act 13 of 1987.)

17 Visiting officers.

His Majesty in Council shall appoint in each district for which there is a prison not less than 2 and not more than 4 persons to be prison visiting officers for the district to which they are appointed. One or more prison visiting officers shall visit the prison to which they are appointed at least once every 2 weeks. The prison visiting officers shall examine into the conduct of the respective prison officers and shall inquire into all abuses and irregularities within the prison. They shall hear any complaints which may be made to them by the prisoners and shall take cognizance of any matters of pressing necessity and regulate the same. (Added by Act 8 of 1947.)

18 Penalty for improper use by prison officers of government property.

Every prison officer who uses any Government property committed to his care otherwise than in the public service or who sells or gives away any Government property under his care or any part of his arms, clothing or accoutrements shall be liable on conviction thereof before such court as is mentioned in section 15 to a fine not exceeding $50 and in default of payment to imprisonment for any term not exceeding 4 months. (Amended by Act 13 of 1987.)

19 Minor offences by prison officers.

The Minister of Police may after full inquiry impose such punishment in respect of any petty breach of discipline or prison rules as may from time to time be prescribed by any rules made hereunder.

20 Reduction of prison officers to lower rank for misconduct or inefficiency.

Subject to any rules that may be made hereunder the Minister of Police may for misconduct or inefficiency reduce any prison officer to a lower grade and may for a like reason suspend any prison officer.

21 Dismissal of prison officers.

The Cabinet on the recommendation of the Minister of Police or of any court of inquiry constituted according to section 15 may dismiss any prison officer.

22 Deduction of fines from prison officer's pay.

All fines imposed upon any prison officer under the provisions of this Act or any rules made hereunder may be deducted from the pay of such officer by the Treasurer or a Sub-Treasurer and applied for the use of the Government.

PART II - PRISONERS

23 Hard labour.

(1) Every prisoner undergoing sentence of imprisonment (unless his sentence specifies that the imprisonment is to be without hard labour) may be employed at hard labour within or without the prison premises.

(2) Hard labour within the prison premises shall consist of such work as may be prescribed by prison rules.

(3) Hard labour when performed outside the prison premises shall consist (subject to the rules) of the employment of the prisoner on any work of public utility.

24 Corporal punishment.

Corporal punishment may be inflicted upon male prisoners for such prison offences and at the instance of such person or persons and under such conditions as may be prescribed by prison rules. Such corporal punishment in the case of a prisoner of or over 16 years of age shall be inflicted with a cat or rod and in the case of a prisoner under that age with a rod. The cat and rod shall be of a pattern to be approved by the Cabinet. The number of lashes inflicted for a prison offence on a prisoner of or over 16 years of age shall not exceed 25 and in the case of any prisoner under that age the number of strokes of the rod shall not exceed 18.

25 Removal of prisoners from one prison to another.

A prisoner awaiting trial may for the purpose of being tried be removed from one prison to another and a prisoner serving his sentence may be similarly removed.

26 Removal of sick prisoners to hospital.

In the case of illness a prisoner may be removed from any prison to any hospital for treatment for so long as may be necessary and the time during which the prisoner is in such hospital shall be counted as part of the term for which he was sentenced. Any prisoner escaping from any such hospital shall be liable to the like punishment in all respects as a prisoner escaping from prison.

27 Inquests on prisoners dying during imprisonment.

An inquest shall be held on the body of every prisoner who dies during his imprisonment. No prison officer or prisoner shall be a juror on any such inquest.

28 Penalty for assault on prison officer.

Any prisoner who shall assault any prison officer shall be liable upon conviction thereof before the Supreme Court and a jury to imprisonment for any term not exceeding 2 years in addition to the term of imprisonment which he was serving at the time when such assault was committed.

29 Penalty for escaping.

Whoever being under lawful arrest or having been sentenced to imprisonment by a court of competent jurisdiction or being employed at labour as a convicted criminal or undergoing removal as a prisoner under the powers contained in this Act shall escape or attempt to escape shall be liable on conviction thereof to imprisonment for any term not exceeding 2 years. Such imprisonment in the case of any person who at the time of his escape or attempted escape was serving a sentence of imprisonment shall be in addition to and shall begin at the termination of such sentence. The time during which the prisoner was at large shall not be counted as part of the term of his original sentence. (Amended by Act 20 of 1942; Ord. 10 of 1945.)

(2) In addition to any punishment of imprisonment awarded by the Court it shall be lawful for the Court to order that the offender shall be whipped. (Added by Act 9 of 1935.)

30 Prison offences generally.

Prison visiting officers may take evidence and examine any prisoners touching any act or omission committed or done by that prisoner which may be declared by the prison rules to constitute a prison offence. If satisfied that the prisoner is guilty of such offence they may order him to be punished in each or any of the following manners

(a) solitary confinement with or without reduced diet not exceeding 14 days, provided that solitary confinement shall be for not more than 7 days at any one time and that an interval of 7 days shall elapse before the next period required to complete the remaining portion, if any, of the said solitary confinement commences;

(b) forfeiture of marks in accordance with the prison rules;

(c) corporal punishment. (Added by Act 8 of 1947.)

31 Penalty for aiding prisoner to escape.

Every person who renders assistance of any kind or in any manner whatsoever and whether directly or indirectly to a prisoner in order to enable such prisoner to escape from prison or from lawful custody shall be liable on conviction thereof before the Supreme Court and a jury to a fine not exceeding $1000 and to imprisonment for any period not exceeding 2 years. (Amended by Act 13 of 1987.)

32 Penalty for permitting prisoner to escape.

Whoever either wilfully or through negligence allows any prisoner lawfully in his custody to escape shall be liable on conviction thereof before the Supreme Court and a jury to imprisonment for any term not exceeding 5 years.

33 Penalty for harbouring prisoner.

Whoever knowing or having reason to believe that any person has escaped from prison or from lawful custody harbours, conceals or aids any such person shall on conviction for so doing before a magistrate be liable to a fine not exceeding $500 or to imprisonment for any term not exceeding 6 months. (Amended by Act 13 of 1987.)

34 Penalty for delivery to prisoner of article not permitted by prison rules.

If any person delivers or attempts to deliver or causes to be delivered to any prisoner or delivers to any other person for the purpose of being conveyed to any prisoner any money or article whatever except as provided by prison rules, he shall on conviction thereof before a magistrate be liable to a fine not exceeding $250 or to imprisonment for any term not exceeding 3 months. (Amended by Act 13 of 1987.)

35 Police to prosecute.

All prosecutions for offences against this Act shall be instituted by the police.

36 Order for attendance of prisoner as witness at court.

(1) It shall be lawful for the Chief Justice or any magistrate on its being stated on oath before him that the presence of any prisoner is necessary for the purpose of answering any criminal charge or of giving evidence as a witness in any criminal or civil cause in his Court to issue a warrant or order for such prisoner to be taken from the prison to his Court.

(2) A prisoner taken from prison in pursuance of any order issued under subsection (1) shall while outside the prison be kept in the custody of the police and while in their custody shall be deemed to be in lawful custody.

37 Prisons Advisory Committee.

(1) The Minister of Police with the approval of His Majesty in Council may appoint a Prisons Advisory Committee (in this section referred to as "the Committee") of not more than 3 members to advise and assist him in connection with:

(a) the treatment of prisoners;

(b) the remission of sentences;

(c) the review of long-term prison sentences; and

(d) any other matter relating to prisons and prisoners on which the Minister of Police may require the advice of the Committee.

(2) The Committee shall perform its functions in accordance with the regulations and the directions of the Minister of Police.

(3) A member of the Committee shall be paid such fees and allowances (if any) as the Minister of Police determines. (Added by Act 8 of 1962.)

38 Regulations.

His Majesty in Council may make regulations not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for carrying out or giving effect to this Act. (Added by Act 8 of 1962.)

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