Cripps v Attorney-General
[2022] NZHC 1532
•30 June 2022
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
ApplicantsAND
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
1 R v Bassett [2020] NZDC 24454 at [89]. This finding was treated as an ameliorating factor when Ms Bassett was sentenced on a charge of setting fire to her cell: R v Bassett [2021] NZDC 5067. Evidence was not called by the Crown as to what alternatives to Cell Buster might (or might not) be available to Corrections staff.
[2] The focus in these judicial review proceedings, however, is not on the use of pepper spray on particular occasions or on particular prisoners. Rather, Ms Cripps and Ms Bassett challenge the use of pepper spray (and Cell Buster in particular) in New Zealand prisons more generally, on purely legal grounds. They say the use of Cell Buster in prison in any circumstances has, since its first purported approval in 2009, been unlawful. They say this illegality arises due to legal defects in the authorising regulations and—more widely again—because the intentional infliction of pain on confined prisoners in this way constitutes cruel, inhumane and degrading treatment that is incapable of justification in a free and democratic society.
PEPPER SPRAY
Oleoresin Capsicum
[3] The pepper spray used historically by Corrections in New Zealand prisons is “soluble Oleoresin Capsicum (OC) and ultraviolet marking dye”. This is the “pepper- based irritant” referred to in the regulations. Since 2017, however, the Regulations have also authorised the use of “synthetic” sprays, such as PAVA, used in prisons in the United Kingdom.
Delivery mechanisms
[4] There are several potential delivery mechanisms for pepper spray. For the purposes of this judgment it is necessary to consider only on those three presently used by Corrections in New Zealand. These are:
(a)The handheld “MK-9” (large canister). This is aimed at the face of the prisoner sought to be restrained. It delivers pepper spray though a high- volume stream (HVS) device, which has a long range.
(b)“Cell Buster” which is a “MK-9” canister with an extension wand attached (which can be placed under cell doors). The wand is not aimed directly at the prisoner, but rather creates a fog in the cell.
(c)The “MK-3” (small canister). This too is aimed at the face of the prisoner sought to be restrained. It is handheld and carried on the belt.
It can be used as a tactical option in a use of force incident that arises spontaneously. It has a range of up to six metres and is similar to the pepper spray carried and used by Police.
[5] As already noted, the present application for review is primarily concerned with the larger delivery devices, and with Cell Buster in particular. The manufacturer's specifications for this type of canister and deployment method are:
SABRE CELL BUSTER - FOG DELIVERY (920060-W)
MK-9 with extension wand18.5 ozs / 518 gr/ 555ml
Pistol Grip with safety and wand extension Propellant: HFC 134a and Nitrogen
Formulation: soluble Oleoresin Capsicum and ultraviolet marking dye. The formation is non-flammable.
[6] Pepper spray is distributed from the Cell Buster by means of an aerosol propellant (HFC 134a). The spray also contains an ultraviolet marking dye, which does not change the concentration or effects of the spray. Each canister can deliver spray for up to 20 seconds, either continuously or in staggered bursts.
[7] Pepper spray distributed from the handheld MK-9 canister (without an extension wand) does not contain HFC 134a. The spray is propelled by nitrogen.
[8] The contents of both the Cell Buster and handheld MK-9 are 10 per cent OC. And in terms of the strength of capsaicinoids themselves:
(a)the handheld MK-9 has strengths ranging from 0.33 to 1.33 per cent;2 and
(b)Cell Buster comes in a single strength of 1.33 per cent capsaicinoids.
2 It is not known which of these strengths is in the MK-9s used by Corrections in New Zealand.
Effects
[9] The point of pepper spray is, of course, to cause pain at a level likely to render compliance in the subject. In 2006 the European Court of Human Rights described the known effects in the following terms: 3
It is recognised that the use of “pepper spray” can produce effects such as respiratory problems, nausea, vomiting, irritation of the respiratory tract, irritation of the tear ducts and eyes, spasms, chest pain, dermatitis or allergies. In strong doses, it may cause necrosis of tissue in the respiratory or digestive tract, pulmonary oedema or internal haemorrhaging (haemorrhaging of the suprarenal gland).
[10] There are some reported cases (from the United States in particular) of pepper spray death being a cause—or at least a contributing cause—of a prisoner’s death.4
[11] In this case, specific expert evidence was called by both the applicants and the Crown as to the physiological effects of pepper spray deployed by the MK-9 and Cell Buster.5 The experts conferred and produced a joint report, which addressed (amongst other things) what difference the deployment device made to the effects of pepper spray on the subject. They agreed that:
The direct spray may cause more severe reactions on the skin and eyes, while the fog may have a greater impact on breathing. But the severity of each response, no matter the delivery system, will be impacted to the greatest extent by the strength, volume and length of OC exposure.
[12] The experts agreed that the less severe effects of Cell Buster in terms of “skin pain and inflammation and eye pain and damage” was, however, dependent on prompt decontamination of the subject. Overall toxicity was also noted to be dependent on:
(a)capsaicinoid strength;
(b)number of bursts applied;
3 Oya Ataman v Turkey (2006) ECHR 481 at [18].
4 Christie v Scott 923 F.Supp.2d 1308 (2013), discussed at [145] and [146] below. In another case, a lawsuit over the death of a prisoner, Tyrone Briggs, following the administration of pepper spray in a Pennsylvania Corrections facility, with minimal decontamination or medical follow up resulted in the payment of a $8.5 million settlement in 2021: Pa. prisons pledge reform, agree to
pay $8.5M after inmate died from pepper spray (corrections1.com)
5 Dr Leo Schep was the applicants’ expert. Dr Lyn Wise and Dr David Hartshorn were the Crown’s experts.
(c)extent and site of coverage achieved;
(d)duration of exposure;
(e)the volume/air concentration of the delivered fog (which may differ in different parts of the cell, potentially increasing OC exposure when the recipient is prone); and
(f)length of time before decontamination is achieved.
[13]The experts were also agreed that:
… an extended delay in extracting and decontaminating prisoners will likely increase the severity of the OC symptoms, the decontamination time and the recovery time. This will particularly be the case when high concentrations of OC were administered in confined spaces.
[14] The experts did not address—and there appears to have been little research on—the psychological effects of the use of pepper spray, particularly in confined spaces or on subjects with mental health issues.
INTERNATIONAL LAW CONTEXT
[15] There are several international instruments that have a bearing on the use of force in prison generally, and the use of pepper spray, specifically.
Chemical Weapons Convention
[16] Under the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (the CWC), pepper spray is not classed as a chemical weapon but, rather, falls within the definition of “riot control agent”.6 The CWC makes it clear that the use of riot control agents is
6 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction 1974 UNTS 45 (opened for signature on 13 January 1993, entered into force 29 April 1997). Article 2(7) defines a riot control agent as any chemical “which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure”.
permitted for the purpose of law enforcement, including domestic riot control, but not as a method of warfare.7 This has led a Judge in the United States to observe:8
The use of pepper spray is no small thing. The chemical agent, which temporarily blinds its recipients, is—unlike tasers—banned for use in war …
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
[17] In 2009, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT) first expressed concerns over the use of pepper spray in a law enforcement context. In its report on its visit to Bosnia and Herzegovina the CPT noted:9
79. Pepper spray is a potentially dangerous substance and should not be
used in confined spaces. Even when used in open spaces the CPT has serious reservations; if exceptionally it needs to be used, there should be clearly defined safeguards in place. For example, persons exposed to pepper spray should be granted immediate access to a medical doctor and be offered an antidote. Pepper spray should never be deployed against a prisoner who has already been brought under control. Further, it should not form part of the standard equipment of a prison officer.
The CPT recommends that the authorities of Bosnia and Herzegovina draw up a clear directive governing the use of pepper spray, which should include, as a minimum:
- clear instructions as to when pepper spray may be used, which should state explicitly that pepper spray should not be used in a confined area;
- the right of prisoners exposed to pepper spray to be granted immediate access to a doctor and to be offered an antidote;
- the qualifications, training and skills of staff members authorised to use pepper spray;
- an adequate reporting and inspection mechanism with respect to the use of pepper spray.
(emphasis added)
7 Articles 1(5) and 2(9).
8 McCoy v Alamu 950 F3d 226 (5th Cir 2020) at 235, per Costa J.
9 Report to the Government of Bosnia and Herzegovina on the visit to Bosnia and Herzegovina carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 19 to 30 March 2007 (2009)..
[18] Similar observations and recommendations were made by the CPT in its report on its visit to the Czech Republic that same year.10
United Nations Standard Minimum Rules for the Treatment of Prisoners
[19] Rule 1 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (also known as the Nelson Mandela Rules) provides:11
All prisoners shall be treated with the respect due to their inherent dignity and value as human beings. No prisoner shall be subjected to, and all prisoners shall be protected from, torture and other cruel, inhuman or degrading treatment or punishment, for which no circumstances whatsoever may be invoked as a justification. The safety and security of prisoners, staff, service providers and visitors shall be ensured at all times.
[20]The use of force is addressed specifically in r 82:
1. Prison staff shall not, in their relations with the prisoners, use force except in self-defence or in cases of attempted escape, or active or passive physical resistance to an order based on law or regulations. Prison staff who have recourse to force must use no more than is strictly necessary and must report the incident immediately to the prison director.
2. Prison staff shall be given special physical training to enable them to restrain aggressive prisoners.
3. Except in special circumstances, prison staff performing duties which bring them into direct contact with prisoners should not be armed. Furthermore, prison staff should in no circumstances be provided with arms unless they have been trained in their use.
United Nations Guidance on Less-Lethal Weapons in Law Enforcement
[21] The United Nations’ Guidance on Less-Lethal Weapons in Law Enforcement provides instruction about when the use of chemical irritants, including pepper spray, will be lawful or unlawful.12
[22]The Guidance specifies that a chemical irritant should only be used:13
10 See Report to the Czech Government on the visit to the Czech Republic carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 25 March to 24 April 2008 (2009) at [49].
11 United Nations Standard Minimum Rules for the Treatment of Prisoners GA Res 70/175 (2015), r 1.
12 Office of the United Nations High Commissioner for Human Rights Guidance on Less-Lethal Weapons in Law Enforcement UN doc HR/PUB/20/1 (2020) at [7.2.3]–[7.2.7].
13 At [7.2.3].
(a)where sufficient toxicological information is available to confirm that it will not cause any unwarranted health problems;
(b) when its delivery against a target is accurate; and
(c)where a law enforcement official has reason to believe there is an imminent threat of injury.
[23] The Guidance warns that a chemical irritant shall not be used where irritants contain carcinogenic substances or hazardous levels of active agents and should not be used:14
(a)repeatedly or in a manner that causes prolonged exposure;
(b)in situations of purely passive resistance;
(c)where a person is already under the control of a law enforcement official; or
(d)in closed environments without adequate ventilation or a viable exit.
OVERVIEW AND AMBIT OF APPLICANTS’ CLAIMS
[24] The focus of the application for review is on the validity (and effectiveness) of the regulations authorising use of pepper spray in prisons. There are three relevant iterations of the regulations at issue: the Corrections Amendment Regulations 2009 (CAR09), the Corrections Amendment Regulations 2012 (CAR12) and the Corrections Amendment Regulations 2017 (CAR17).15 While the claim itself has its origins in events that occurred after the CAR17 came into effect, the matters which allegedly make the regulations unlawful apply equally to the earlier versions. Moreover, the nature of the second cause of action requires consideration of the regulation-making process throughout this time.
14 At [7.2.6] – [7.2.7].
15 A consequential 2009 amendment to the Arms Regulations 1992 is also impugned by the applicants’ claims.
[25] The applicants’ third amended statement of claim contains three causes of action, the first two of which overlap. Mr Ewen crystallised the three claims at the hearing as follows:16
(a)first, the applicants contend that pepper spray was not authorised by the CAR17 or its predecessors because the regulations approved only the possession of the spray itself, not the means of dispersal;
(b)secondly, they contend that in approving the various regulations the respective Ministers of Corrections could not have been satisfied that the use of pepper spray was consistent with the humane treatment of prisoners, as required by the Corrections Act 2004; and
(c)thirdly, they say that use of Cell Buster in prisons is prohibited per se because it can never be reconciled with prisoners’ rights under ss 9 of the New Zealand Bill of Rights Act 1990 (the NZBORA) to be free from torture, cruel, degrading or disproportionately severe treatment and their rights under s 23(5) of the NZBORA to be treated with humanity and respect for dignity.
[26] The applicants seek orders quashing the relevant regulations or declarations that:
(a)the use of Cell Buster and/or the MK-9 (or their analogues) is unlawful; and
(b)the use of Cell Buster on them was (therefore) unlawful.
Preliminary question: are the first and second causes of action now moot?
[27] Shortly before I heard the review application, the Corrections Amendment Regulations 2022 (CAR22) were drafted. Without prejudice to its continued denials of the first and second causes of action, the Crown said these new regulations address
16 While this summary does not wholly reflect the pleadings it nonetheless does capture—and usefully differentiates between—the three distinct contentions contained in them.
the matters which the applicants say rendered the earlier iterations of the regulations unlawful. The Crown contended that this renders the first and second causes of action moot because:
(a)it is no longer possible to quash the earlier regulations (because, by the time of judgment, they will have been replaced by the CAR22);17
(b)to the extent there was any illegality it has been remedied; and
(c)any difficulties with prior Ministerial approvals to the earlier regulations have been cured by the approval of the CAR22.
[28] The Crown accordingly submitted that I should not therefore engage with those first two causes of action.
[29] But I do not accept that the CAR22 render these claims moot. While they undoubtedly affect one of the remedies sought (quashing the earlier regulations), whether they remedy any defects in those earlier regulations is not a matter before me and was not addressed by counsel. Even if they do, pepper spray was deployed on the applicants and other prisoners at an earlier point in time. It is undisputed that such use potentially engaged their fundamental right to be free from degrading and inhumane treatment. So they must be entitled to know—and there is a real and ongoing wider public interest in knowing—whether the deployment of pepper spray by Corrections was lawful at that time. All three causes of action require consideration, accordingly.
THE USE OF PEPPER SPRAY IN NEW ZEALAND PRISONS: A FACTUAL AND LEGISLATIVE CHRONOLOGY
The Arms Act 1983
[30] It is instructive to begin the legislative chronology with the primary statute regulating the possession and use of weapons in New Zealand: the Arms Act 1983.
17 The Corrections Amendment Regulations 2022 came into force after the hearing, on 1 April 2022.
[31] The Arms Act distinguishes between “prohibited firearms” and “restricted weapons”. Section 2 defines the term “restricted weapon” as:
… any weapon, whether a firearm or not, declared by the Governor-General, by Order in Council made under section 4, to be a restricted weapon:
[32] Under the Arms Act, no one may possess a restricted weapon without an endorsement on a relevant licence. Section 3(2)(a) creates exceptions for members of the New Zealand Defence Force, the Police and others, but not Corrections officers. Section 3(2)(b) also provides that others may be authorised to possess such weapons (where the weapons belong to the Crown) by regulations made under the Arms Act. Section 4 then confers upon the Governor-General the power to declare any weapon to be a restricted weapon by way of Order in Council.
The Arms (Restricted Weapons and Specially Dangerous Airguns) Order 1984
[33] The Arms (Restricted Weapons and Specially Dangerous Airguns) Order 1984 (the 1984 Order) classified weapons specified in its Schedule as restricted weapons. Clauses 8 and 9 of that Schedule provide:
8Every firearm, weapon, and device designed for the purpose of discharging any lachrymatory, deleterious, or toxic gas, smoke, or other stupefying or overpowering thing capable of rendering any person either wholly or partially incapable of resistance (other than any device designed and intended solely for any medical, surgical, veterinary, scientific, agricultural, industrial, or other similar lawful purpose).
9Any gas, substance, material, or thing specially intended or adapted for use in conjunction with any firearm, weapon, or device specified in clause 8.
[34] There is no dispute that pepper spray (and whatever device discharges it) is covered by this Order.
The Corrections Act 2004
[35] Section 5 of the Corrections Act stipulates that the purpose of the corrections system is to improve public safety and contribute to the maintenance of a just society by (amongst other things):
… providing for corrections facilities to be operated in accordance with rules set out in this Act and regulations made under this Act that are based, amongst other matters, on the United Nations Standard Minimum Rules for the Treatment of Prisoners …
[36] The use of weapons by officers and staff in prisons is governed by subpt 4 of pt 2 of the Act, entitled Coercive Powers. Sections 83 and 85 respectively provide:
83 Use of force
(1)No officer or staff member may use physical force in dealing with any prisoner unless the officer or staff member has reasonable grounds for believing that the use of physical force is reasonably necessary—
(a)in self-defence, in the defence of another person, or to protect the prisoner from injury; or
(b)in the case of an escape or attempted escape (including the recapture of any person who is fleeing after escape); or
(c)in the case of an officer,—
(i)to prevent the prisoner from damaging any property; or
(ii)in the case of active or passive resistance to a lawful order.
(2)An officer or staff member who uses physical force for any of the purposes or in any of the circumstances referred to in subsection (1) may not use any more physical force than is reasonably necessary in the circumstances.
(3)If an officer or staff member uses physical force in dealing with any prisoner, the prisoner must, as soon as practicable after the application of that force, be examined by a registered health professional, unless that application of force is limited to the use of handcuffs of a kind that have been authorised for use as a mechanical restraint.
…
85 Use of non-lethal weapons
(1)In any situation described in section 83(1) or in any other situation where an officer or staff member is authorised by any other provision in this Act or any other enactment to use physical force, any officer or staff member may, if necessary, use any kind of nonlethal weapon prescribed for use.
(2)The use of a non-lethal weapon by an officer or a staff member—
(a)is subject to any conditions or restrictions specified in regulations made under this Act; and
(b)must, if the weapon is used in any situation described in section 83(1), be in accordance with section 83(2).
(3)Regulations may not be made authorising the use of any kind of non- lethal weapon unless the Minister is satisfied that—
(a)the use of that kind of weapon is compatible with the humane treatment of prisoners; and
(b)the potential benefits from the use of the weapon outweigh the potential risks.
In this section, non-lethal weapon means any weapon designed—
(a)to temporarily disable a person against whom it is used; or
(b)to incapacitate a person against whom it is used.
…
(emphasis added)
[37] Section 86 places tight restrictions on the carriage and use of firearms in prisons and s 87 governs the use of prescribed mechanical restraints. The first three subsections of s 87 are expressed in materially identical terms to s 85(1)–(3), including the same specific requirement that, before approving regulations authorising the use of any kind of mechanical restraint, the Minister must be satisfied that such use is compatible with the humane treatment of prisoners. Subsections (4) to (7) of s 87 also, themselves, contain statutory conditions on the use of restraints:
(4)A mechanical restraint—
(a)may not be used for any disciplinary purpose:
(b)must be used in a manner that minimises harm and discomfort to the prisoner.
(5)A mechanical restraint must not be used on a prisoner for more than 24 hours at a time unless the use of the restraint for more than 24 hours—
(a)is authorised by the prison manager and is, in the opinion of a medical officer, necessary to protect the prisoner from self- harm; or
(b)is, in the case of a prisoner who has been temporarily removed to a hospital outside the prison for treatment, necessary to prevent the escape of the prisoner or to maintain public safety.
(5A) An authorisation under subsection (5)(a) must—
(a)be in writing; and
(b)specify the type of restraint to be used; and
(c)specify the time during which the prisoner is to be kept under restraint; and
(d)include a record of the medical officer’s opinion that the restraint is necessary to protect the prisoner from self-harm.
(6)Despite subsections (1) to (5), chains or irons must not be fitted or attached to a prisoner in any circumstances.
(7)In subsection (6), chains or irons does not include handcuffs.
[38] And s 88 provides that the particulars of any use of force, non-lethal weapons, and mechanical restraints must:
… wherever required by regulations made under this Act,—
(a)be recorded; and
(b)be given by notice in writing to the chief executive and to any other person or persons specified in those regulations.
[39] The regulation-making powers themselves are contained in ss 200–203 of the Act. Section 200(1)(c) authorises the making of regulations for the purpose of “ensuring the safe custody of prisoners”. This is elaborated in s 202, which (relevantly) contemplates the promulgation of regulations:
(j) regulating the use and reporting of the use of force, authorising and regulating the use and reporting of the use of specified kinds of mechanical restraints in particular circumstances, and authorising and regulating the use of and reporting of the use of specified kinds of non- lethal weapons:
(emphasis added)
Corrections Regulations 2005
[40] The use of force, non-lethal weapons and mechanical restraints are dealt with in pt 9 of the Corrections Regulations 2005 (the CR05). Up until 2009 only batons and mechanical restraints were dealt with in pt 9. The general prohibition in the Arms Act therefore precluded the use of pepper spray by Corrections staff in prisons.
[41] For reasons that will later become clear, it is relevant to note how pt 9 deals with mechanical restraints. Regulation 124 (which immediately follows the regulations dealing with batons, and now pepper spray) provides that that:
A mechanical restraint may be used to restrain a prisoner only if—
(a)the restraint is authorised by Schedule 5; and
(b)the restraint is used in accordance with the requirements
of Schedule 5.
(emphasis added)
[42] The mechanical restraints authorised by sch 5 are specific. At the time of writing this judgment, only handcuffs for general use, handcuffs for emergency use, waist restraints used in conjunction with handcuffs, torso restraints, head protectors and spit hoods are so authorised.18
[43] And the more detailed requirements governing the use of these mechanical restraints contained in sch 5 include that:
(a)a prisoner may not be handcuffed or restrained to any part of a vehicle used for transportation or a cell grill.
(b)where handcuffs, or waist restraints used in conjunction with handcuffs, are applied on a prisoner who is being escorted to or from medical treatment, or receiving medical treatment, escorting officers must, taking into account the advice of the treating medical practitioner,—
(i)implement any measures that are reasonably necessary to ensure that the mechanical restraint does not adversely affect the health and comfort of the prisoner; and
(ii)remove the mechanical restraint if necessary to allow the prisoner to receive medical treatment.
18 The authorisation of tie-down beds and wrist bed restraints was revoked in 2019.
(c) handcuffs for general use must not be fitted so as to impede circulation;
(d)handcuffs for emergency use must be regularly checked to ensure that circulation is not being impeded and must, as soon as practicable, be removed and replaced with handcuffs for general use; and
(e) head protectors may only be used on medical advice.
Corrections Amendment Regulations 2009
[44] It seems that the possible authorisation of pepper spray for use in prison was first raised in 2009. As will be evident from the legislative overview above, such authorisation required the approval of the Minister of Corrections, which could only be given if she was satisfied that the use of pepper spray would be consistent with the humane treatment of prisoners. Because the second cause of action in these proceedings impugns that approval process (both in 2009 and subsequently) it will be necessary to set out the evidence about that in some detail here.
[45] The evidence about the Ministerial approval processes filed by the Crown largely took the form of papers submitted by respective Ministers over time, seeking Cabinet approval for the relevant amendments to the CR05. These papers were annexed to an affidavit sworn by a Corrections employee; some are not signed and some contained quite significant redactions. Crown counsel accepted that, to the extent those documents do not refer to matters found relevant to these proceedings, the Court may infer that the Minister was unaware of those matters and (so) did not take them into account. That is the approach I propose to take.
Ministerial and Cabinet approval
[46] The documents before the Court indicate that, in 2009, the possible use of pepper spray in prisons was raised in response to growing concerns about the safety of Corrections staff. The documents record that reported assaults on staff members had trebled over the previous five years.
[47] The initial proposal was that the CR05 and the Arms Regulations 1992 (the AR) be amended to permit an “operational trial” of pepper spray in prisons, and then continued use “if the trial showed positive results”.
[48] A briefing paper on the proposal for the Cabinet Business Committee (CBC) from the then Minister of Corrections, the Hon Judith Collins, relevantly advised that:
(a)the Minister had to be satisfied of the matters specified in s 85(3) of the Corrections Act before making regulations authorising use of non- lethal weapons;
(b)pepper spray causes tears, pain and even temporary blindness;
(c)there are a variety of ways in which pepper spray can be dispersed;19
(d)the circumstances in which pepper spray would be used were to be limited to situations that would reduce the risk of assault and violence towards others and self-harm by prisoners, and was to be a “last resort”;
(e)any use of pepper spray “would have to be” carefully controlled and documented to ensure it was not discriminatorily or punitively used;
(f)there were operational benefits in officers having a range of tactical responses to call upon in cases of prisoner violence;
(g)New Zealand Police have used pepper spray since 1997 and use it on average 2,000 times a year;
(h)there were isolated examples of problems arising from the use of pepper spray, but no evidence of systemic concerns;
19 There was no elaboration on the different dispersal mechanisms.
(i)pepper spray is available for use by corrections authorities in some Australian jurisdictions (ACT and Victoria), as well as in Scotland and Northern Ireland;
(j)the “Act and Regulations would set out the limited circumstances in which nonlethal weapons may be used”, and it was envisioned that pepper spray would be deployed in circumstances similar to those where the use of batons was permitted;
(k)the operational trial would assist Corrections to determine appropriate safeguards and standards, which would also “draw on Police’s standards based on their experience since 1997 with the use of pepper spray”; and
(l)there was some risk of adverse consequences “especially to respiratory and visual functioning”, but a 2002 review of available research suggested that “when used appropriately, pepper spray’s safety profile appears to be acceptable”.
[49]The Minister advised the CBC that:
I am satisfied that the use by corrections staff members of pepper spray for the purposes set out in section 83(1) of the Act is compatible with the humane treatment of prisoners, and that the potential benefits outweigh the potential risks. It is recommended that the Corrections Regulations be amended to authorise the use of pepper spray on prisoners using the current provisions in the Regulations for the use of batons as a model.
[50] This paper went before the Committee on 28 September 2009. CBC Min (09) 11/5 records that (with the authority of Cabinet to act) the Committee:
6agreed to amend Part 9 of the Corrections Regulations 2005 to put in place a regime for the use of pepper spray as a non-lethal weapon that is the same as that for the use of batons, involving:
6.1defining the meaning of pepper spray;
6.2restricting the carriage of pepper spray to those situations where it has been issued at the direction of a prison manager and the staff member has received adequate training;
6.3setting out the rules for the storage and use of pepper spray, including the grounds under which pepper spray would be used:
6.3.1where there is a serious threat to prison security or the safety of any person;
6.3.2where the use of the pepper spray would reduce or eliminate that serious threat and other means of doing so would be ineffective;
7agreed to amend the Arms Regulations 1992 to specify staff members of corrections prisons as a class of person permitted to have possession of pepper spray;
8noted that pepper spray will not be introduced nationally until Corrections has carried out, and evaluated, a trail to determine whether the use of pepper spray is appropriate;
The Regulations
[51] As foreshadowed by the Minister, the CAR09 regulated pepper spray in the same way as batons were already regulated under the CAR05. The term “pepper spray” was defined as:
… an aerosol spray that—
(a)contains a pepper-based irritant to the eyes and respiratory passages (for example, oleoresin capsicum); and
(b)is designed for use as a disabling weapon.
[52] Conditions on the use of pepper spray and batons were identical, and were contained in the new (replacement) regs 121–123:
121Restrictions on carrying batons or pepper spray
(1)A security officer must not carry a baton or pepper spray while performing his or her functions as a security officer in any circumstance.
(2)A staff member of a prison must not carry a baton or pepper spray outside a prison while performing his or her functions as a staff member in any circumstance.
(3)A staff member of a prison may carry a baton or pepper spray only if—
(a)the baton or pepper spray was issued at the direction of the manager; and
(b)the staff member has received adequate training in the use of the baton or pepper spray, as the case may be.
(4)Staff members trained to use batons or pepper spray must undergo refresher courses, approved by the chief executive, in the use of batons or pepper spray, as the case may be, at least once a year.
122Issue and storage of batons or pepper spray
(1)The manager must ensure that batons and pepper spray are securely stored at all times except when they have been issued to staff members.
(2)The manager may direct the issuing of batons or pepper spray to staff members only if he or she reasonably believes that—
(a)there is a serious threat to prison security or to the safety of any person; and
(b)the use of batons or pepper spray, as the case may be, will reduce or eliminate the serious threat; and
(c)other means of reducing or eliminating the serious threat have been or are likely to be ineffective.
(3)The manager must promptly direct that batons and pepper spray be returned to storage once the serious threat no longer exists.
123Use of batons or pepper spray
(1)A staff member who has been issued a baton or pepper spray may draw or use the baton or pepper spray only if the manager’s approval has been obtained, unless it is impracticable in the circumstances.
(2)A staff member must use the baton or pepper spray in a way that minimises pain or injury to the prisoner, as far as it is consistent with protecting prison security or the safety of any person.
[53] At the same time, the AR were amended to include reg 30A(2), which relevantly provided:20
(2) A staff member of a corrections prison may carry or possess pepper spray belonging to the Crown for the purposes of regulations 121 to 123 of the Corrections Regulations 2005.
[54] Regulation 30A(1) provided that “pepper spray” had the same meaning as in reg 120A of the CR.
20 Arms Amendment Regulations 2009.
[55] The general requirements as to the reporting of any use of force or non-lethal weapons contained in the existing regs 128 and 129 applied equally to the newly authorised use of pepper spray.
The trial
[56] The trial of pepper spray in prisons then began. It was approved to take place in two stages. The relevant Corrections Manager, Mr Eamonn Coulter, deposed that the primary objective of stage one was to determine which, if any, “standard” deployment options available in the marketplace were suitable for use in New Zealand prisons. If findings from stage one identified appropriate options, Corrections would proceed with stage two, to evaluate those option(s) during a 12-month, nationwide, operational use trial. The training and operational policy developed in stage one would also be assessed, in that operational context.
Stage one
[57] Stage one was completed between 19 and 22 October 2009. According to Mr Coulter, it comprised five phases:
21.1General Deployment: To evaluate the delivery system of each OC deployment option in an open-air environment.
21.2Cross Contamination: To assess the level of cross contamination on staff entering the cell as part of a planned Control & Restraint (C&R) intervention.
21.3Environmental Factors: To assess the impact of OC spray on the different types of cell designs, ventilation systems and surrounding area.
21.4Operational Testing: To determine the advantages and disadvantages of each deployment option within existing C&R techniques.
21.5Final Evaluation: To evaluate the results of the trial and outline the recommendations to the Prison Senior Management Team.
[58] One of the deployment options trialled was Cell Buster. It was tested on around 10 volunteers (Corrections employees, both men and women), who entered a cell into
which Cell Buster had been sprayed. The staff members remained in the cell for as long as they were able, signalling when they wanted to be let out.21
[59] At certain stages of the test, Corrections attempted to replicate the physical tension staff experienced whilst managing cell extractions. This was done by requiring the volunteers to complete aerobic exercises for two minutes while next to a mannequin treated with pepper spray to simulate the physical exertion experienced by a Control and Restraint (C&R) team restraining a non-compliant prisoner. Volunteers were also asked to run up and down stairs for five minutes to simulate the level of exertion a non-compliant prisoner experiences during a planned C&R incident.
[60]In their joint report prepared for these proceedings, the expert witnesses noted:
7. Trials into the use of pepper spray in Corrections’ facilities in 2009 showed that the intensity of burning sensation on the eyes, for example, was less following use of Cell Buster than with the direct spray MK-9 HVS, as were recovery times. When directed into the face of volunteers who agreed to participate in direct spray, after 1 burst of the MK-9 HVS, the reaction to pain was intense and lasted 10 seconds before decontamination was requested. When remaining in a cell that was contaminated with the contents of Cell Buster, a volunteer lasted in the cell for 1 minute and 20 seconds; they stated they could not breathe. Indeed, when a 3-second burst of a fogging device was applied to the cell of a non-compliant prisoner [sic], the prisoner immediately fell to the ground and was successfully removed.
8. Following a very brief exposure to these products, a summary of these investigations by the Prison Service, under closely controlled conditions, suggests direct spray from the MK-9 HVS may cause greater localised adverse effects than Cell Buster, because it is a more targeted delivery mechanism. We agree … that “[t]he direct spray may cause more severe reactions on the skin and eyes, while the fog may have a greater impact on breathing.” …
[61] The experts expressly qualified that assessment by noting that the less severe effects of OC fog (in terms of skin pain and inflammation and eye pain and damage) was dependent on prompt decontamination of the subject. They also noted:
10. One of the investigations from 2009 ascertaining cross contamination (live spray) in an unventilated cell showed that the effects of the spray delivered from the MK-9 HVS system were still in the room after 3 minutes, with volunteers experiencing only a slight cough. In contrast, after application
21 Volunteers were assessed to determine whether they had medical conditions that might make the exercise unsafe. They were provided with instructions on the process before the spray was deployed.
of the Cell Buster, it was discovered that when the cell door was opened, the effects on subjects in the adjacent room were so high that they had to leave the room; it took an hour to remove the effects form the Control and Restraint Room. When Control and Restraint staff entered a cell after application of this fog, due to the high level of contamination, they would be required to wear respirators.
[62] The evaluation panel concluded that Cell Buster could significantly contribute towards the safety of officers and staff. Even where there might be initial resistance, the overwhelming coughing response meant that subjects would want to get out of the cell as quickly as possible. Moreover, it had advantages over the handheld MK-3 and MK-9 because the cell door did not need to be opened for it to be used, thereby avoiding physical confrontation with the prisoner and (given effective use of the MK-3 and MK-9 depended on accurately aiming at prisoners’ eyes) risking a violent response if the target was missed.
Medical advice
[63] As part of the first stage of the trial, Corrections also obtained a Health Assessment Report from Dr David Hartshorn, who also gave expert evidence in this proceeding. This report was based on a literature review, rather than any particular experience of the author.
[64] After noting the effects on skin, respiration and eyes, Dr Hartshorn observed that there was no good evidence that repeated exposure to pepper spray causes adverse health effects or that it is carcinogenic. As far as the effect of pepper spray on asthmatics is concerned, Dr Hartshorn said:
OC spray has irritant effects and as such there is concern that OC spray may have an effect to cause acute worsening of lung function which may pose a risk to the prisoner or to corrections officers due to cross contamination should they have asthma. … there appears to be some evidence to suggest that the respiratory effects of OC spray are not overtly different in asthmatic subjects compared to those without asthma.
…
… There are however significant gaps in the literature with no data looking at fromal [sic] lung function changes in asthmatics exposed to OC spray. The doses of capsaicin used in some of the laboratory testing may not represent the doses in OC spray use in the field. The field data in terms of post OC spray effects is very likely limited to the use of HVS or foam applications. The inhalational dose with the fog may well be higher and thus it is possible
that respiratory effects may be more pronounced in this application. There is no data upon which to base conclusions in this regard.
[65] This part of the report concluded there was no evidence to suggest pepper spray will cause or induce an attack in someone who suffers from asthma and noted that other forms of C&R can also have adverse effects on asthmatics.
[66] In terms of the effects of the HFC 134a propellant (the propellant used in Cell Buster) the report stated:
An issue that does need to be considered is the fact that HFC 134a is heavier than air and in a confined space may accumulate at ground level and displace air (oxygen). Thus the use of this in a cell may result in a layer of HFC134a at ground level. Air movement such as ventilation, drafts, wind, or air movement due to activity within the cell may also reduce this tendency. Whether this is a practical concern will depend on the volume of OC spray used and the size, shape, and ventilation of the cell. This issue could be clarified by oxygen analysis within a cell after a cell buster has been emptied into the cell. A small cell, with no ventilation, drafts, or people movement will approximate the worst case scenario in this regard. If this generates an area of non-breathable air or compromises the breathability [it] may lead to a requirement for mitigation strategies. This could include fan ventilation, changes to the use of prone restraint which may place the breathing zone into lowly oxygenated air, limiting the use of cell buster to ventilated facilities.
[67]But the report concluded:
The use of OC spray may introduce some new risks. There is a risk of respiratory effects although the available data suggests that this is very unlikely to be a serious risk except in rare situations. There does not appear to be good evidence to suggest that asthma is a major problem for OC spray use although there are gaps in the data. The risk profile of OC spray for heart disease appears better than current C&R practice and the risk of respiratory compromise appears to be higher for prone restraint than for OC spray use based upon the available data.
[68] The first stage of the trial identified ways to mitigate safety concerns about the use of Cell Buster:
(a)ensuring line of sight so that Corrections officers could constantly see the prisoner in the cell;
(b)ensuring there are no barricades in the cell, so the prisoner could be removed immediately;
(c)ensuring a decontamination area is set up prior to deployment; and
(d)requiring respirators for C&R staff extracting the prisoner from the cell.
[69] On 11 February 2010, following consideration of the trial’s detailed findings, the Prison Senior Management Team approved the commencement of stage two. It was agreed that Cell Buster and the MK-9 High Volume Stream would be tested during that stage for “planned control and restraint incidents”.
Stage two
[70] Stage two (12 months of operational use) took place between 18 November 2010 and 17 November 2011 across 10 prison sites.
[71] The Evaluation Report on this trial, dated 9 May 2012, records that over the course of this year there were 56 planned use of force incidents at the 10 sites. The majority of these (39) did not meet the policy or criteria, or were otherwise deemed inappropriate, for the use of pepper spray. There were 17 occasions when the criteria for the use of pepper spray were met. Of these, pepper spray was deployed once and approved for use in two further other incidents.22
[72] The main issue identified was that the CAR09 suggested that pepper spray was only to be used a last resort. As a result, many staff believed pepper spray could only be used after a C&R event and that they could not otherwise request permission to use pepper spray. This explained why pepper spray had not always been considered in planned use-of-force incidents, and why pepper spray had been ruled out in cases where, on paper, the conditions indicated it was an appropriate option.
[73] Based on its successful use in the single incident, its deterrent value, and staff views, the overall finding was that pepper spray could be an effective and efficient tactical option to improve staff safety and reduce the risk of injury to staff and prisoners in planned use-of-force incidents.
22 In these two incidents, the prisoner was reported to have become compliant as a result of the threat that pepper spray would be used.
[74] The Evaluation Report noted the key risks associated with the use of pepper spray were death of a prisoner,23 cross-contamination, and legal and reputational risks. “[T]o enable the full potential of pepper spray to be realised”, it proposed several changes to the regulatory framework, policy regime, and departmental procedures. These were intended to remove areas of uncertainty in the regulatory framework, improve and clarify the policy, and streamline processes to make pepper spray more accessible to staff in planned use of force situations.
[75] On 9 May 2012, following receipt of the Evaluation Report, Corrections’ Executive Leadership Team approved pepper spray for implementation nationally.
Corrections Amendment Regulations 2012
Ministerial and Cabinet approval
[76] The main proposed change to the CR05 following the operational trial was an amendment permitting pepper spray to be issued to trained Corrections officers more widely than before, including in any situation where they reasonably believed it was necessary to use force against a prisoner for any of the purposes referred to in s 83(1) of the Corrections Act (self-defence, preventing escape, preventing damage to prison property, or active or passive resistance to a lawful order).
[77] In August 2012 the then Minister of Corrections (the Hon Anne Tolley) submitted a paper to the Cabinet Social Policy Committee (the CSPC) seeking agreement to these amendments. She advised the CSPC that:
(a)amendments to the regulations were required to make the process for issuing and using pepper spray in prisons more straightforward, and not just as an option of “last resort”;
23 In this respect the Report noted that:
While pepper spray in itself is unlikely to kill someone, there have been a range of reports of deaths in overseas jurisdictions following the use of pepper spray. Many of these deaths have been caused by positional asphyxia. Because of this, both the operational policy for custodial staff and the clinical guidelines for health services require staff to ensure that the prisoner is placed in a position that
maintains the airway and prevents positional asphyxia.
(b)protections against inappropriate or excessive used “will remain in the Regulations, and will be reflected in departmental guidelines”;
(c)the 12-month operational trial had seen:
(i)a single use of pepper spray in prison, which “proved highly effective in gaining control of the prisoner and resolving the incident, without injuries to staff or long-term ill-effects for the prisoner”;
(ii)two other occasions on which compliance was achieved “because of the presence of pepper spray”;
(d)that the proposed changes would allow pepper spray to be issued where either the prison manager or (where that was not practicable) a trained staff member reasonably believed that it is or will be necessary to use force against a prisoner; and
(e)she was satisfied that:
… the use of pepper spray as proposed is compatible with the humane treatment of prisoners and the potential benefits from the use of pepper spray outweigh the potential risk of its inappropriate use. The requirement in the Regulations relating to how pepper spray must be used, as well as general statutory provisions relating to the appropriate use of force against prisoners (as detailed in tile Regulatory Impact Statement) would continue to apply. Pepper spray would continue to be returned to storage after use and Departmental guidelines relating to the deployment of pepper spray would inform operational practice.
[78]Under the heading “Human Rights” the Minister advised:
26The proposed regulatory change does not further impact upon the human rights of prisoners than is already provided for under the Corrections Act 2004 and Corrections Regulations 2005, and may in fact prove to be more humane than the current regulations as use of force incidents are likely to be reduced .
[79]And then, after further (redacted) paragraphs, she recorded:
Gender implications
31The proposals in this paper will almost exclusively impact male offenders as they make up approximately 94 percent of the prison population. Operational policy on the use of pepper spray states pepper spray must not be used where a prisoner is pregnant. There are no other gender implications.
Disability perspective
32Disabilities that may increase the health risks of using pepper spray will be identified prior to the deployment of pepper spray. Health staff generally provide information to custodial staff prior to deployment on known pre-existing conditions and allergies that may lead to adverse effects when pepper spray is used. The correct procedures for engaging any health risk and decontaminating the prisoner are subsequently identified and followed. The proposals in this paper do not have any further disability implications.
[80] The accompanying Regulatory Impact Statement (prepared by Corrections and referred to by the Minister in her advice to the Committee) advised that the policy options identified (amendment to regulations or regulations remaining the same) “will not override the principle that the law should conform with international law”. It also contained a section headed “Risk to prisoner and staff health” which advised:
19Due to its nature as an irritant, pepper spray is designed to cause immediate closing of the eyes, difficulty breathing, runny nose, and spray, but the average full effect lasts around 20-45 minutes. there may be concern that increased use of pepper spray may lead to a greater risk of unintentional harm to prisoner and staff health (through cross- contamination).
20The Clinical guidelines for health services sets out the conditions for which health staff need to provide information to custodial staff before the use of pepper spray, and the assessment and treatment of prisoners following the use of pepper spray. This process ensures that known pre-existing conditions and allergies that may lead to adverse effects when pepper spray is used are identified, and that correct procedures for managing any health risks and decontaminating the prisoner (and staff if required) are followed.
[81] On 28 August 2012 the Cabinet Social Policy Committee agreed to the proposed amendments.
The Regulations
[82]The CAR12 separated out the use of pepper spray from the use of batons.
[83] New reg 123A specified that pepper spray may only be issued at the direction of a prison manager or (if that is impractical) another officer who has received adequate training.
[84] New reg 123B broadened the circumstances in which prison managers could issue pepper spray from the “necessary to reduce or eliminate serious threat” test contained in CAR09. It provided:
123B Issue and Storage of Pepper Spray
(1) …
(2) The manager, or officer, as the case may be, may direct the issue of pepper spray to officers only if he or she reasonably believes that it is, or will be, necessary to use force against a prisoner.
[85] Similarly, the authority conferred by the replacement for reg 123(1) (reg 123C) was in broader terms than before, providing:
123C Use of pepper spray
(1)An officer who has been issued pepper spray may draw or use the pepper spray if he or she has reasonable grounds for believing that the use of physical force is reasonably necessary for any of the purposes in section 83(1) of the Act.
…
[86]The definition of “pepper spray” remained the same.
Corrections Amendment Regulations 2017
Ministerial and Cabinet approval
[87] On 29 January 2016, a Pepper Spray Working Group was convened to assess the existing policies and procedures of pepper spray deployment during incidents within a prison. The Working Group concluded that that front-line Corrections Officers should be permitted to have ready access to (handheld) pepper spray for use when facing violent situations.
[88] A briefing on the proposed changes was provided to the Minister of Corrections (the Hon Louise Upston) in mid-February 2016. The briefing paper (which was before
the Court) on its face suggests that it was not provided to the Minister but, rather, used “to provide support notes for the Chief Custodial Offices briefing to the Minister on the proposed changes to the use of pepper spray in NZ prisons”. It is the only such document before the Court that refers expressly to Cell Buster. In this regard the paper records:
Current situation
8.Pepper spray is available in Prisons for use in pre-planned Control & Restraint (C&R) incidents.
9.It is stored centrally and needs the Prison Director, or other trained staff member, to approve its use in C&R incidents.
10.The need to obtain approval and getting a team of trained staff together to form a C&R team has the potential to cause delays in deploying the pepper spray and hence could lead to more violence and injuries to those involved in bringing the incident to its conclusion.
11.The types of pepper spray currently in use are the Cell Buster, designed to introduce pepper spray by a wand type nozzle in to a confined space such as a cell and the MK-9 canister that delivers a stream of pepper spray which is aimed at the face of the prisoner.
Proposed changes
12.The use of the Cell Buster will remain as is the current policy.
13.The MK-9 pepper spray canisters will be moved forward to Unit Control/Guard Rooms where they will be stored in a secure safe. The Unit PCO or SCO will be trained to assess violent and/or threatening incidents and if appropriate approve the deployment of the spray.
[89] In her subsequent paper for the CSPC seeking agreement to the amended regulations, the Minister advised that:
(a)there were risks in giving staff greater access to pepper spray and, in particular:
8… There are health and safety risks in using pepper spray in confined spaces, such as escort vehicles, and in some prisons due to the nature of the ventilation system. If officers routinely carried pepper spray, there would be increased risks of inappropriate use, canisters being taken by prisoners and used against staff, and adverse impacts on the relationship between prisoners and staff. It is also possible that members of the public could become involved in incidents involving the use of pepper spray against prisoners. For example, if
pepper spray is carried when escorting prisoners in the community, there is a risk that an innocent bystander could be affected when the spray is discharged. This could raise legal and reputational issues for the Department of Corrections.
(b)Corrections would mitigate these risks by providing thorough guidance and training to the relevant officers and the Prison Operations Manual “will continue to require staff to follow clear operational rules, which detail the circumstances when pepper spray may and may not be used, health checks, and decontamination procedures that must be followed after use, and strict processes for logging and reporting incidents”;
[90]Under the heading “Human Rights” the Minister advised:
42The Corrections Regulations 2005 are consistent with the Bill of Rights Act 1990 and the Human Rights Act 1993 with respect to the five areas in which amendments are proposed: the use of pepper spray and mechanical restraints, private visitors, temporary release and removal, and media interviews with prisoners. The new powers and requirements proposed in these areas are considered necessary to improve staff and public safety and to uphold the interests of victims. The proposed regulations also introduce new protections and safeguards to ensure that prisoners’ human rights are protected.
[91]And under the heading “Disability perspective” she said:24
47There is overseas evidence that mentally ill prisoners are more likely to commit disciplinary infractions and have force used against them. It seems likely that enabling officers to carry pepper spray would result in more frequent use of pepper spray against mentally ill prisoners. However, it may mean that alternative forms of force, such as control and restraint techniques, which can be as or more harmful, have to be used less frequently.
[92] On this occasion the Minister does not appear to have specifically referred to her obligation under s 83 of the Corrections Act, although the CAR17 themselves expressly recorded that they were made:
(b)on the advice of the Minister of Corrections who, in accordance with section 85(3) of that Act, is satisfied that—
(i)the use of pepper spray is compatible with the humane treatment of prisoners; and
24 This paragraph also footnoted a 2015 Human Rights Watch paper entitled Callous and cruel: Use of force against inmates with mental disabilities in US jails and prisons.
(ii)the potential benefits from the use of pepper spray outweigh the potential risks.
[93] The accompanying Regulatory Impact Statement also referred to the relevant risks, noting:
8There are some risks to extending the use of pepper spray. There are some health risks associated with pepper spray so its inclusion in everyday practice could increase the likelihood of health incidents. This risk is higher in spaces where the ventilation systems are not designed for rapid dispersal of chemical agents, such as in escort vehicles and some prison facilities. Other potential risks include:
•pepper spray being used without reasonable cause;
•canisters being taken by prisoners and used against staff or other prisoners;
•adverse impact on relationships between staff and prisoners;
•adverse impact on vulnerable groups, particularly prisoners with serious mental health issues; and
•incidents involving members of the public, with attendant litigation and reputational issues.
9Overall, pepper spray is a safe tactical option, with a low risk of injury compared with other means of force. The risks identified above can be mitigated to a large extent by ensuring that staff receive appropriate training and guidance.
(emphasis added)
[94]The CSPC agreed to the proposed amendments on 15 March 2017.
The Regulations
[95] The CAR17 revoked reg 120A, reworked regs 123A to 123C and added a new reg 123D.
[96] The definition of pepper spray was expanded to include an “aerosol spray or other aerosol substance” that contains a synthetic irritant. Again, the regulations did not prescribe as a non-lethal weapon the means by which pepper spray was to be deployed.
[97] The Explanatory Note to the CAR17 explains the effect of the other amendments as follows:
The principal regulations currently provide that pepper spray may be issued only if the prison manager (or another adequately trained officer in limited circumstances) reasonably believes that force is, or will be, necessary against a prisoner. The amendments allow pepper spray to be issued without this requirement, but only to officers who have received adequate training in its use and subject to any further conditions or restrictions imposed by the chief executive.
Security officers, and staff members who are not officers, continue to be prohibited from carrying pepper spray.
An officer to whom pepper spray has been issued must keep it secure, and the prison manager must ensure that it is securely stored when it is not issued to an officer.
The amendments allow officers who have been issued pepper spray to draw and use it both in the prison and while carrying out escort duty outside the prison.
The amendments also set out the following restrictions with respect to the drawing and use of pepper spray:
•pepper spray may not be drawn or used unless the officer has reasonable grounds for believing that physical force is reasonably necessary for any of the purposes in section 83(1) of the Act:
•pepper spray must be used in a way that minimises pain or injury to the prisoner so far as that is consistent with protecting prison security or a person’s safety (as in the current provisions):
•the drawing and use of pepper spray are subject to any further conditions or restrictions imposed by the chief executive:
•officers trained in the use of pepper spray must undergo refresher courses (as in the current provisions).
…
(emphasis added)
[98] Notwithstanding the Minister’s advice that the new regulations would introduce “new protections and safeguards to ensure that prisoners’ human rights are protected”,25 the only new safeguard in the regulations appears to be the inclusion of a new requirement (in the new regs 123B(4) and 123C(5)) that the issuing, drawing
25 See the passage at [90] above.
and use of pepper spray must comply with any further conditions or restrictions imposed by the Chief Executive.
Corrections’ internal policies and procedures regarding pepper spray
[99] Evidence was given about Corrections’ relevant policies and procedures around the use of pepper spray by Mr Robert Hall, who is currently Corrections’ Principal Adviser, Tactical Operations. He annexed to his affidavit three documents in which the relevant policies and procedures that were current at the time the present claim was filed are set out: the Tactical Options Manual of Guidance (TOMG), the Tactical Options Instructors Guide (TOIG) and the Custodial Practice Manual (CPM). These documents considerably overlap, although there are some inconsistencies between and (within) them.26
[100] For present purposes I propose to focus primarily on the CPM which is stated to form part of the “Incident response process” contained in the Prison Operations Manual (POM). As I understand it, the POM itself provides that, in the event that the instructions in the POM conflict with other Departmental manuals and directives the POM instructions take precedence.
[101] The relevant part of the CPM is headed “Request and approval to use pepper spray on planned use of force”. It expressly states that this section relates to “Mark 9 and Cell buster containers”. It begins as follows:
1. Request procedures
1.A corrections officer may request the issuing of pepper spray, only after the first responding officer in attendance has determined whether:
a.other non physical intervention strategies will be inadequate to resolve the incident safely; and
b.use of force is necessary.
2.Before making a request for the issuing of pepper spray, a corrections officer must complete a risk assessment to determine whether use of pepper spray would be appropriate given the circumstances and
26 I do not know whether the contents of earlier iterations of these documents were similar to the versions before me. The date on the CPM is 3 August 2018.
determine whether pepper spray can be used in the area where the incident is occurring, based on cross contamination testing results.
3.Where practicable, seek advice from Health Services on whether the prisoner has any medical conditions that would prevent the use of pepper spray unless impracticable to do so.
2. Approval process
1.The prison director (or a delegated authority who has been trained) must consider whether to approve the use of force, including the issuing of pepper spray, only if they have reasonable grounds for believing force is necessary:
a.in self-defence, in the defence of another person, or to protect the prisoner from injury, or
b.in the case of an escape or attempted escape (including the recapture of any person who is fleeing after escape); or
c.to prevent the prisoner from damaging property, or in the case of active or passive resistance to a lawful order.
2.The prison director (or a delegated authority who has been trained) may only issue pepper spray to a corrections officer who has been trained in its use.
[102] The prerequisites for approval referred to in the CPM here reflect (and replicate) s 83(1) of the Corrections Act. The requirement that only trained corrections officers may be “issued” with pepper spray reflects reg 123B of the CAR17.
[103] The next section stipulates that prior to use of pepper spray, a decontamination area must be set up and Health staff must be available at that area and remain there during the decontamination process to manage any medical emergencies.
[104] Then there is a larger heading “Procedures for using pepper spray”, which begins as follows:
1. Use of pepper spray
1.A corrections officer trained in the use of pepper spray may only use pepper spray when all of the following conditions apply:
a.there is a planned control & restraint (C&R) incident
b.all members of the C&R team are trained and current in C&R and pepper spray
c.health staff are available at the decontamination area
d.the prisoner is displaying ‘assaultive’ behaviour; and
e.approval to use force, including the issuing of pepper spray, has been given by the prison director (or delegated authority who has been trained on the use of pepper spray).
Note: It is the responsibility of a corrections officer issued with pepper spray to ensure the canister’s security.
2.The pepper spray will not be used against:
a.a prisoner armed with a firearm (notify Police immediately to respond to the situation)
b.pregnant prisoners
c.prisoners on a roof or other areas where the use of pepper spray at such a height may cause the prisoner to be injured if they were to fall.
d.prisoners who cannot be continually observed
e.prisoners located in an area that cannot be accessed quickly (e.g. the entry/ exit point has been barricaded)
f.a prisoner who is restrained (i.e. C&R locks or mechanical restraint).
3.A corrections officer designated as “Number 1” within a Control and Restraint team has the final decision on whether to use pepper spray, including the type of pepper spray canister to be used.
4.Pepper spray must be used in a way that minimises pain or injury to the prisoner, as far as it is consistent with protecting prison security or the safety of any person.
5.The officer may only draw or use the pepper spray against a prisoner and only if the officer has reasonable grounds for believing that the use of physical force is reasonably necessary as per use of force requirements set out in the “Approval Process” above.
Note: Corrections officers must be trained, familiar with, and adhere to the Department’s approved pepper spray training manual.27
(emphasis added)
[105] There appears to be a conflict between the two passages I have italicised here. On the one hand para 1(d) appears to confine the use of pepper spray to cases involving “assaultive behaviour”, which is defined in the TOMG as:
27 I assume this to be a reference to the TOMG.
… actively hostile behaviour, accompanied by physical actions or intent, expressed either verbally and/or through body language to cause physical harm. Examples include kicking, punching or aggressive body language signalling an intention to assault.
[106] On the other, para 5 appears to authorise the planned use of pepper spray in any if the circumstances referred to in s 83, including “passive resistance to a lawful order”.28
[107] The next parts of the CPM set out the procedures that apply in the aftermath of the deployment of pepper spray:
2. Procedures after pepper spray has been used
1.The Incident Supervisor is responsible for ensuring the canister is secured and returned to the locked cabinet once he or she reasonably believes that it is no longer necessary to use force against a prisoner.
Note: Ultimate responsibility to direct the return of the pepper spray lies with the person (i.e. the prison director or delegated authority who has been trained in the use of pepper spray) who directed that pepper spray be issued.
2.After the pepper spray has been used on the prisoner a corrections officer must:
•check that the prisoner’s breathing has not been severely affected
•immediately request medical assistance from health staff if the prisoner has difficulty resuming normal breathing before relocating the prisoner.
ensure the prisoner is not left lying face down with their hands restrained behind their back.
3.After the pepper spray has been used the corrections officer must consider whether the use of handcuffs is reasonabl[y] necessary to protect the prisoner from injury, or to defend themselves or another person. Any use of handcuffs must be done in a manner that minimises harm and discomfort to the prisoner. A corrections officer should consider whether or not the use of handcuffs is justified in the circumstances. For example:
•The prisoner becomes violent during the decontamination process and tries to harm a staff member or themselves.
•The prisoner is attempting to transfer the pepper spray onto others for example by wiping it onto another person.
28 The same conflict is apparent in the TOMG itself.
4.The post incident procedures must be followed as per POM IR.05 Post Incident.
3. De-contamination process
1.The decontamination procedure can commence in the area where the pepper spray has been deployed, or any other appropriate area. If the prisoner is being escorted to another area of the prison for full decontamination, the corrections officer must make an individual case by case assessment as to whether they have reasonable grounds to believe the use of handcuffs is necessary in the circumstances.
2.The prisoner must not have their faces covered; the use of a spit hood is not permitted.29
3.A corrections officer trained in the use of pepper spray is responsible for the decontamination process.
4.Decontamination will only commence when the prisoner is compliant and safely contained. This will be carried out by a corrections officer.
5.During the decontamination procedure the corrections officer may consider whether the use of handcuffs is reasonably necessary to protect the prisoner from injury, or to defend themselves or another person.30 Any use of handcuffs must be done in a manner that minimises harm and discomfort to the prisoner. A corrections officer should consider whether or not the use of handcuffs is justified in the circumstances. For example:
under ss 200(1)(c)/202(j). So the starting point is that regulations in some form must
be promulgated, in order for pepper spray to be authorised at all.
[207] Next—and at the risk of repetition—any such regulations can only be made with the Minister’s s 85(3) approval, which can only be given if she is satisfied that the use of the relevant weapon would be compatible with the humane treatment of prisoners. That obligation is, undoubtedly, a deeply serious one. It undoubtedly engages and coincides with NZBORA rights and safeguards New Zealand’s compliance with the Nelson Mandela Rules. It is an obligation that is, for those reasons, personal to the Minister.
[208] There is therefore a compelling logic to the proposition that regulations that authorise the use of a non-lethal weapon must also contain any conditions or restrictions on the use of that weapon, at least to the extent that:
(a)they are not obviously encompassed by the statutory restrictions on the use of force; and
(b)the existence of those conditions or restrictions could make a difference to whether or not the use of weapon will be humane (and so to the Ministers’ s 85(3) assessment).
[209] It is my clear view that the matters I have listed at [202] are precisely of that kind.
[210] So even assuming that the Minsters knew that these matters would be dealt with in Corrections’ internal procedures and guidelines (and I am not persuaded on the evidence that they did) it is difficult to see how this could satisfy them to the standard required by s 85(3). Knowledge that matters that are critical to the humane use of pepper spray are, or will be, dealt with through operational guidelines (or even knowledge that the CAR17 require that such procedures be complied with) could not suffice because those guidelines do not have the force of law. Moreover, they can, presumably, be changed at any time without the Minister’s knowledge or consent.
[211] This argument is, I think, strengthened by a further point. Ever since the Court of Appeal’s decision in Drew v Attorney-General it has been clear that (absent some express provision to the contrary) statutory provisions that authorise the promulgation of regulations do not empower regulations that are inconsistent with the NZBORA.86 Regulations that are inconsistent with the NZBORA will be regarded as ultra vires the empowering statute. And here:
(a)regulations were promulgated under ss 200/202 (as s 85(1) required) authorising the use of pepper spray in prisons;
(b)the regulation-making powers (ss 200/202) must be assumed only to authorise regulations that are consistent with the rights confirmed by the NZBORA;
(c)under s 23(5) of the NZBORA all detainees have the right to be treated with humanity and with respect for the inherent dignity of the person;87
(d)the cases suggest that the use of pepper spray by Corrections officers is capable of breaching s 23(5), regardless of whether the use of force is authorised by the Corrections Act and is not, by and of itself, excessive;
(e)conditions going to the matters listed at [202] above might be determinative of whether s 23(5) has been breached in any given case;
(f) regulations that simply authorise the use of pepper spray without also addressing such matters—by specifying them as further restrictions and conditions on use—leave the question of compliance with s 23(5) at large (or, at best, to unenforceable guidelines); and
86 Drew v Attorney-General [2002] 1 NZLR 58 (CA) at [68].
87 Section 23(5) is discussed in more detail under the third cause of action. There is a considerable degree of congruence between the s 85(3)(a) (humane treatment) threshold and the s 23(5) right.
(g) the regulations cannot be said to be consistent with s 23(5) and so are ultra vires the Corrections Act.
[212] I am further fortified in this view by one last point. The CRs seem already to follow what I consider to be the proper approach in relation to the use of mechanical restraints, which are also dealt with in pt 9 of those regulations.88 As noted at [37] above, the Corrections Act provision dealing with mechanical restraints (s 87) begins in identical terms to s 85 and—just like s 85—requires the Minister to be satisfied that the regulations authorising such restraints are consistent with the humane treatment of prisoners.89
[213] Significantly (and as detailed earlier at [41]to [43]), the provisions of CR05 dealing with mechanical restraints are both quite specific about the different types of restraints authorised and also as to further conditions designed to ensure their humane use. There is no obvious reason why the same approach was not be taken in relation to key conditions on the use of pepper spray (especially Cell Buster) and there are some very good reasons why it should have been.
[214] As will be clear by now, I do not go so far as to suggest that all the matters listed in [189] above needed to be addressed in regulations. As noted, Ministers were entitled to take some assurance from the assumption that Corrections officers would comply with the existing statutory parameters relating to the use of force.90 They were also entitled to expect the development of Departmental policies designed to guide officers in achieving compliance with those parameters.
[215] But I also consider that for Ministers to be reasonably satisfied the use of pepper spray was compatible with the humane treatment of prisoners, they needed:
(a)to know that Cell Buster was or would be in use in planned use of force incidents;
88 As noted earlier, pt 9 is concerned with “Use of force, non-lethal weapons, and mechanical restraints”.
89 Unlike s 85, s 87 itself contains a number of use conditions that appear to focus on that requirement.
90 Although that did not obviate the need for some inquiry as to whether those parameters should, themselves, have been narrowed, in the case of Cell Buster.
(b)to turn their minds to the views expressed by the CPT and the European Court and the potential for abuse of pepper spray when used in confined spaces raised by Falwasser;
(c)to ask whether the general (s 83(1) and (2)) restrictions on the use of force by Corrections officers needed further limitation, particularly in relation to Cell Buster;
(d)assurance (in the form of enforceable regulatory requirements) that there would be restrictions and conditions on use of the kind set out in
[202] above.
[216] Leaving any or all of those matters to be dealt with as a matter of Departmental policy or operating procedures was not good enough. Ministers could not properly be satisfied that the use of pepper spray would be compatible with the humane treatment of prisoners without first knowing that matters on which the humanity of such treatment depended would be addressed as a matter of enforceable legal (regulatory) obligation.
[217] It follows that it was necessary to authorise Cell Buster (and its analogues) as a non-lethal weapon separately from other forms of pepper spray. A considerable number of the matters discussed only arise in planned use of force cases where Cell Buster is deployed. As just noted, I consider that Ministers needed to be specifically advised that Cell Buster was to be used in prisons in order to turn their minds to the human rights ramifications that were particular to it.
[218] I do not think it is necessary to reach a decisive view about whether these findings also extend to the authorisation of the MK-9 for use in direct mode. It was not really the focus of the hearing and it was not (as I understand it) what was experienced by the applicants. I simply observe that, especially to the extent it is deployed or is intended to be deployed in planned C&R incidents, many of the preconditions discussed above would be likely again to be at play, when considering whether it can be used in prisons humanely.
[219] It suffices for present purposes to conclude that to the extent the Ministers’ respective approvals of the CAR09, CAR12 and CAR17 purported to authorise the use of Cell Buster in prisons, they did not lawfully do so. Without further information, and without further restrictions and conditions on use being contained in the regulations themselves, Ministers could not have been satisfied that the use of Cell Buster would be consistent with the humane treatment of prisoners. The use of Cell Buster pursuant to those regulations was also therefore unlawful.
Third cause of action
[220] The applicants also say the use of pepper spray in prisons discharged by either the MK-9 or the MK-9 in Cell Buster form cannot under any circumstances be reconciled with prisoners’ rights under NZBORA s 9 (the right not to be tortured or subject to cruel or degrading treatment) or under s 23(5) (the right to be treated with humanity and respect for dignity). And because the Corrections Act does not empower the making of regulations that are contrary to those rights, they say regulations purporting to permit the use of those devices in prisons are not, and could never be, valid or lawful.
[221]There are three preliminary points.
[222] First, although this cause of action encompasses both the MK-9 and Cell Buster, there was little focus on the MK-9 “simpliciter” at the hearing. There is no evidential basis for concluding that the use of MK-9 is more likely to infringe the relevant rights than the MK-9 with a wand attachment. So, again it is convenient to focus on Cell Buster here.
[223] Secondly, the analysis below necessarily puts to one side my finding of invalidity under the second cause of action. That finding does not render the third cause of action moot because it does not entail or imply a finding that Cell Buster could never lawfully be authorised but rather that, by dint of some important omissions from the CARs, it has not been in this case. The third cause of action therefore remains of some potential moment for the future.
[224] And thirdly, it is important to emphasise that the possibility that Cell Buster could be used unlawfully and in breach of s 9 or s 23(5) does not suffice to establish this cause of action. Indeed, I necessarily proceed on the assumption that—just as the use by Corrections officers of batons and mechanical restraints also might constitute a breach—it could. That is not only self-evident but is borne out in my earlier review of the decided cases and, of course, from Judge McNaughton’s findings in the District Court about what happened in Ms Bassett’s case.
[225] Rather, I agree with the Crown that the burden here falls on the applicants to satisfy the Court that the use of Cell Buster could never (or perhaps, could only rarely) be consistent with s 9 or s 23(5), even when used in the limited way contemplated by the Corrections Act and any valid regulations.91 I will return to that point shortly.
The content of the ss 9 and 23(5) rights
[226] The Supreme Court’s decision in Taunoa v Attorney-General remains the leading authority on the application and ambit of ss 9 and 23(5).92 The Court there held that ss 9 and 23(5) establish a hierarchy of proscribed conduct. Thus:
(a)s 9 is “reserved for truly egregious cases”,93 involving official conduct “which is to be utterly condemned as outrageous and unacceptable in any circumstances”; and94
(b)by contrast, s 23(5) is breached by State conduct that is less reprehensible, but still unacceptable.95
[227] Conduct breaching s 9 will usually involve an intention to harm or conscious and reckless indifference to the causing of harm, as well as significant physical or mental suffering. Thus:
91 R (Bibi) v Secretary of State for the Home Department (Liberty intervening) [2015] UKSC 68, [2015] 1 WLR 5055 at [69]; A v SSHD [2021] UKSC 37 at [76]–[78].
92 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429. But see also the more recent discussion in Fitzgerald v R.
93 At [297] per Tipping J.
94 At [170] per Blanchard J.
95 At [170] per Blanchard J and [285] per Tipping J.
(a)“torture” involves deliberately inflicting severe physical or mental suffering for a proscribed purpose, such as obtaining information;96
(b)“cruel” treatment involves deliberately inflicting suffering or treatment that results in severe suffering or distress;97
(c)“degrading” treatment gravely humiliates and debases the person subjected to it;98 and
(d)“disproportionately severe” treatment is conduct so severe that it shocks the national conscience or is so disproportionate as to cause shock and revulsion. It means conduct which is well beyond treatment that is manifestly excessive.99
[228] Conduct breaching s 9 will usually involve an intention to harm or conscious and reckless indifference to the causing of harm, as well as significant physical or mental suffering.
[229] The Court identified the following factors as potentially relevant to an assessment of an alleged breach of s 9:100
(a)the nature of the conduct being examined;
(b)the state of mind of the party responsible for the conduct; and
(c)the effect of the conduct on its victims.
96 At [81] per Elias CJ and [171] per Blanchard J. The purposes that are specifically (but without limitation) proscribed in art 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment are: (a) obtaining information or a confession from the subject or a third person, (b) punishment for an act the subject or a third person has committed or is suspected of having committed, (c) intimidating or coercing the subject or a third person, or (d) for any reason based on discrimination of any kind.
97 At [171] per Blanchard J and [282]–[283] per Tipping J.
98 At [171] per Blanchard J.
99 At [172] per Blanchard J and [289] per Tipping J.
100 At [291], [294] and [295] per Tipping J, and [353] and [360] per McGrath J.
[230]As far as s 23(5) is concerned, the following points emerge:101
(a)s 23(5) responds to the special vulnerability of prisoners and others deprived of their liberty;102
(b)s 23(5) imposes a positive duty of humane treatment on the Crown;103
(c)s 23(5) is based on art 10(1) of the ICCPR,104 and so the Nelson Mandela Rules—which are used by the Human Rights Committee as a tool for assessing compliance with art 10 of the ICCPR—will influence New Zealand decisions on compliance with it;105
(d)while the content of the s 23(5) right will be informed by an analysis of comparative jurisprudence, it will ultimately be determined by reference to New Zealand standards and values; a relevant touchstone would be conduct which, while not outrageous or reprehensible, is regarded as unacceptable in contemporary New Zealand society;106 and
(e)s 23(5) captures “conduct which lacks humanity, but falls short of being cruel; which demeans the person, but not to an extent which is degrading; or which is clearly excessive in the circumstances, but not grossly so”.107
[231] The cases both here and overseas make it clear that a use of force that is unnecessary or excessive will be held to be inhumane and inconsistent with the dignity of a detainee. More specifically, this Court has (as mentioned earlier) found a breach of s 23(5) when Police officers intentionally inflicted injuries on, and inappropriately used pepper spray against a person in custody.108
101 By the time Taunoa reached the Supreme Court, the Crown had conceded the so-called “Behaviour Management Regime” that had been implemented at Paremoremo prison breached s 23(5), so there is arguably less analysis of this aspect of the claim.
102 Taunoa v Attorney-General, above n 92, at [78] per Elias CJ and [177] per Blanchard J.
103 At [78] per Elias CJ, [177] per Blanchard J, and [294] per Tipping J.
104 At [28]–[31] and [78] per Elias CJ, and [162]–[163] per Blanchard J.
105 At [28]–[31] per Elias CJ and [180] per Blanchard J.
106 At [11] per Elias CJ, [179] and [213] per Blanchard J, and [279] and [292] per Tipping J.
107 At [177] per Blanchard J.
108 Falwasser v Attorney-General, above n 32.
Discussion
[232] I propose to begin my analysis by focusing on whether Cell Buster is incapable of use in a way that is consistent with s 23(5). Given the theoretical nature of the inquiry in this case, and given the hierarchy between s 23(5) and s 9, it follows that, if I find against the applicants on that point, there will be no need to consider s 9.109
[233] I record at the outset that I understand the driver behind the applicants’ position here. The notion of intentionally and remotely inflicting pain on a prisoner—a vulnerable person by definition—while locked in his or her cell is instinctively unpalatable. Devoid of context, at least, I would even be prepared to accept that the idea could get close to being “unacceptable in contemporary New Zealand society”.
[234] I also acknowledge that there is arguably a material and qualitative difference between the use of Cell Buster and the use of batons (the only other non-lethal weapon to have been authorised for use in prisons). Use of batons involves a direct kind of engagement between Corrections officers and a prisoner and (of course) some risk to the officers themselves. It is, perhaps, the ability to deploy Cell Buster in a more calculated and impersonal way—to inflict pain on a person who cannot escape, while observing their suffering from a safe distance—that has the potential to rob the process of its humanity, and the prisoner of their inherent dignity.
[235] But ultimately, it is impossible to speak in generalisations of this kind. All that reasonably can be said (or repeated) is that it is undoubtedly possible to use Cell Buster in a way and in circumstances that engage s 23(5) (or even s 9). Some of the decisions discussed earlier give a flavour of the kinds of cases in which it might do so.
[236] Conversely, however, it is not difficult to conceive of circumstances where the New Zealand public (or the majority of New Zealanders) would likely accept that the use of Cell Buster was not only warranted, but more humane than the alternatives that are already lawfully available. Using Cell Buster would surely not only be seen as an
109 If I find in favour of the applicants on s 23(5), however, I accept it would be necessary to go on to consider s 9 as well.
appropriate use of force, but likely a less harmful use of force, when used on a prisoner who:110
(a)is not suffering from any mental or physical disability;
(b)is in his cell, armed with (say) some form of knife;
(c)has already attacked another prisoner and is threatening to injure themselves or anyone who attempts to enter;111
(d)has been ordered to surrender and warned that Cell Buster will be deployed if they do not;
(e)continues to behave threateningly and declines to surrender; and
(f)is decontaminated immediately after deployment.
[237] The only potential support for the absolutist proposition (that the use of Cell Buster in prison can never be consistent with s 23(5)) is the statement by the CPT about the use of pepper spray in confined spaces, and its subsequent repetition in the dicta from the European Court in Tali.112
[238] Tali itself, however, was a case where it was the use of pepper spray in a confined space combined with other seriously aggravating events that were found to breach the cognate right (art 3 of the European Convention). I note as well that in Taunoa, after reviewing a number of decisions of European Court where breaches of art 3 had been found (again, often as a result of a combination of factors), Blanchard J said:
[161] That a breach of art 3 was found in these circumstances can perhaps be seen to reflect an evolution in the ECHR jurisprudence towards a more
110 For present purposes it is not necessary to be troubled by the more difficult cases at the margins.
111 As the Nelson Mandela Rules confirm, prison authorities owe an overarching obligation not just to ensure the safety and security of prisoners, but also to ensure the safety of staff, service providers and visitors at all times.
112 Tali v Estonia, above n 75.
demanding view of the requirements of the article, particularly in the context of the treatment of prisoners. …113
[239] There is, however, a more fundamental and decisive point. As the Chief Justice observed, it is the provisions of the Corrections Act itself that:114
… are perhaps the best guide to what is unacceptable in contemporary New Zealand. As such, they are highly significant in assessing whether the treatment of the prisoners conforms with ss 9 and 23(5) of the New Zealand Bill of Rights Act.
[240] So whatever views might be held by individuals about prisons and penal policy more generally, Parliament (speaking through the Corrections Act) has declared that force may be used by Corrections officers in certain circumstances and that such force may include the use of non-lethal weapons, where those weapons have been lawfully prescribed. As will by now be very clear, these circumstances are limited to those described in s 83, which require that the force may only be used in certain circumstances and must be proportionate. Importantly, s 83 is consistent with (and indeed reflects) the relevant Nelson Mandela Rules.
[241] And ultimately, the s 85(3) requirement—that non-lethal weapons may only be prescribed for use in prisons where the Minister is satisfied that such use is consistent with the humane treatment of prisoners—leaves no real room for s 23(5) to operate in any kind of general way here. Ministerial approval does not and cannot guarantee that pepper spray will, in every instance, be used in a way that is consistent with s 23(5), because it cannot preclude the possibility that individual corrections officers might sometimes act beyond their authority. But approval does—provided it is given lawfully—provide a very significant level of assurance that pepper spray can be used in prisons consistently with s 23(5). As the present case exemplifies, that assurance is heightened still further by the fact that the lawfulness of any approval remains subject to oversight by the Courts.
113 As Blanchard J noted, the ECHR contains no equivalent of s 23(5) of the NZBORA; it imposes no separate obligation upon states and their officials to ensure prisoners are treated with humanity. Instead, the European Court has captured the flavour of s 23(5) within its art 3 jurisprudence in emphasising that, in order to prevent the inhuman treatment of persons deprived of liberty.
114 The statute in issue in Taunoa was the predecessor to the Corrections Act, the Penal Institutions Act 1954.
[242] In my view this is really a complete answer to the generalised s 23(5) claim here and it must fail accordingly. There is, accordingly, no need separately to consider the (generalised) s 9 aspect of the third cause of action.
Result
[243]For the reasons I have given, the first and third cause of action are dismissed.
[244]But the second cause of action succeeds. I make declarations as follows:
(a)Prior to approving the CAR09, CAR12 and CAR17, 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:
(i)they did not have sufficient information to make that assessment; and
(ii)there were matters (such as those set out in [202] in particular) likely to be determinative of humane use 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;
(iii)those matters should have been included as conditions and restrictions on use in the regulations themselves.
(b)To the extent the CAR09, CAR12 and CAR17 purported to authorise the use of Cell Buster in prisons, they did not lawfully do so.
(c)The use of Cell Buster in prisons while those regulations were in force was also therefore unlawful.
Costs
[245] The applicants have succeeded and, subject to the applicants’ legal aid position, 2B costs should follow that event. I would certify for second counsel.
Post-script: what about the CAR22?
[246] I noted earlier in this judgment that the CAR22 are not before me in these proceedings and so I expressly make no formal findings about their lawfulness (or otherwise). They are similar to the CAR17 but do differentiate between the three types of deployment mechanism, including Cell Buster and the MK-9 in direct mode (or their analogues), and do restrict their use.
[247] I was also provided with a copy of the briefing paper that was provided to the current Minister (the Hon Kelvin Davis) before their promulgation, seeking his approval under s 85(3) and agreement to recommend the amendments to Cabinet. I put on record that this paper was a model of its kind; it clearly addressed considerations of the kind relevant to the approval decision and the relevant NZBORA issues.
[248] That said, however, there are other matters raised by my conclusions in relation to the second cause of action that remain relevant to the validity of the Minister’s approval and of the new regulations themselves. I simply flag these for further consideration.
Rebecca Ellis J
Solicitors:
Cooper Legal, Wellington for Applicants Crown Law, Wellington for Respondent
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