IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-718

[2022] NZHC 1532

BETWEEN KARMA CYNTILLA CRIPPS and MIHI ISIBELLA BASSETT
Applicants

AND

ATTORNEY-GENERAL

Respondent

Hearing: 28 February – 2 March 2022

Appearances:

D A Ewen and J S McHerron for applicants D Jones and C N Tocher for respondent

Judgment:

30 June 2022

JUDGMENT OF ELLIS J

Table of Contents
Paragraph

PEPPER SPRAY [4]

Oleoresin Capsicum [4]

Delivery mechanisms [5]

Effects [10]

INTERNATIONAL LAW CONTEXT [16]

Chemical Weapons Convention [17

European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment [18]

United Nations Standard Minimum Rules for the Treatment of Prisoners [20]

United Nations Guidance on Less-Lethal Weapons in Law Enforcement [22]

OVERVIEW AND AMBIT OF APPLICANTS’ CLAIMS [25]

Preliminary question: are the first and second causes of action now moot? [28]

CRIPPS v ATTORNEY-GENERAL [2022] NZHC 1532 [30 June 2022]

THE USE OF PEPPER SPRAY IN NEW ZEALAND PRISONS: A FACTUAL AND LEGISLATIVE CHRONOLOGY [31]

The Arms Act 1983 [31]

The Arms (Restricted Weapons and Specially Dangerous Airguns) Order 1984 [34]

The Corrections Act 2004 [36]

Corrections Regulations 2005 [41]

Corrections Amendment Regulations 2009 [45]

Ministerial and Cabinet approval [47]

The Regulations [52]

The trial [57]

Stage one [58]

Medical advice [64]

Stage two [71]

Corrections Amendment Regulations 2012 [77]

Ministerial and Cabinet approval [77]

The Regulations[82]

Corrections Amendment Regulations 2017 [88]

Ministerial and Cabinet approval [88]

The Regulations [96]

Corrections’ internal policies and procedures regarding pepper spray [100]

The experience of Ms Cripps and other women at ARWCF [113]

PEPPER SPRAY IN THE DOMESTIC, OVERSEAS AND INTERNATIONAL COURTS [115]

New Zealand [116]

Falwasser [116]

United States [120]

Cell extraction and proportionate use [125]

Passive resistance and prior warnings [135]

Medical inquiries before the fact [139]

Mental Illness [141]

Medical Attention after the fact [142]

Decontamination [145]

Cross Contamination [149]

Cell Buster [151]

Canada [153]

Australia [157]

International cases [163]

Oya Ataman v. Turkey [163]

Ali Güneş v. Turkey [166]

Tali v Estonia [167]

DO THE CLAIMS FOR REVIEW SUCCEED? [172]

First cause of action [173]

Discussion [174]

Second cause of action [186]

What might make the difference between humane and inhumane treatment? [190]

What did the Ministers know? [193]

Discussion [198]

Third cause of action [221]

The content of the ss 9 and 23(5) rights [227]

Discussion [233]

Result [244]

Costs [246]

Post-script: what about the CAR22? [247]

[1] Karma Cripps and Mihi Bassett are serving prisoners. While incarcerated in Auckland Region Women’s Corrections Facility (ARWCF) they and at least two other women detained there were, on several occasions, the subject of a “cell extraction” process that involves Department of Corrections (Corrections) staff pumping pepper spray into their closed cells by means of a fog delivery device known as “Cell Buster”. The District Court has already found that—at least as regards Ms Bassett—this process involved a use of force that went “some distance beyond what was reasonably necessary to extract her from her cell”.1

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cripps v Attorney-General

Details

AGLC: Cripps v Attorney-General [2022] NZHC 1532
Case: [2022] NZHC 1532
Decision Date: 30 June 2022

CaseChat Overview and Summary

Karma Cripps and Mihi Bassett are serving prisoners who have challenged the use of pepper spray and the device known as “Cell Buster” in New Zealand prisons, on legal grounds. The High Court found that the use of Cell Buster in prisons was unlawful because the regulations authorising it did not adequately cover matters likely to be determinative of humane use. The Court found that the Minister could not have been satisfied under s 85(3) of the Corrections Act that the use of Cell Buster in prisons would be consistent with the humane treatment of prisoners, because the regulations did not sufficiently cover matters such as the necessity of the use of force, the proportionality of the use of force, and the decontamination of the prisoner after deployment. The Court also found that the use of Cell Buster in prisons could never be reconciled with prisoners’ rights under ss 9 or 23(5) of the New Zealand Bill of Rights Act 1990, but that this cause of action was ultimately unsuccessful because the Court found that it was possible to use Cell Buster in a way that was consistent with s 23(5). The Court dismissed the first and third causes of action but found in favour of the applicants on the second cause of action. The Court made declarations that prior to approving the relevant regulations, Ministers could not properly have been satisfied under s 85(3) that the use of Cell Buster in prisons would be consistent with the humane treatment of prisoners because they did not have sufficient information to make that assessment and there were matters that were not adequately covered by the general restrictions on the use of force contained in the Corrections Act and which could not properly be left to unenforceable departmental guidelines. The Court also declared that to the extent the regulations purported to authorise the use of Cell Buster in prisons, they did not lawfully do so, and that the use of Cell Buster in prisons while those regulations were in force was also therefore unlawful.

Orders