Cripps v Attorney-General
[2020] NZHC 3523
•22 December 2020
ORDER PROHIBITING PUBLICATION OF THE CONTENTS OF PARAGRAPHS [41] TO [44] OF THIS JUDGMENT IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE IN ACCORDANCE WITH CONFIDENTIALITY ORDERS MADE BY CONSENT ON 18 DECEMBER 2020 IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2020-485-718
[2020] NZHC 3523
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for judicial review
BETWEEN
KARMA CYNTILLA CRIPPS, of Auckland Women’s Correctional Facility, Auckland, Inmate
Applicant
AND
ATTORNEY-GENERAL
Respondent
Hearing: 18 December 2020 Appearances:
D Ewen for Applicant
D Perkins and G Taylor for Respondent
Judgment:
22 December 2020
JUDGMENT OF ELLIS J
Introduction [1]
More about pepper spray [10]
Regulating the use of pepper spray as a weapon [18]
The Arms Act 1983 [18]
The Corrections Act 2004 [24]
Corrections Amendment Regulations 2009 [25]
Corrections Amendment Regulations 2012 [31]
Corrections Amendment Regulations 2017 [33]
CRIPPS v ATTORNEY-GENERAL [2020] NZHC 3523 [22 December 2020]
Circumstances in which the Cell Buster is used [38]
Ms Cripps’ experience of the Cell Buster [46]
The application for review [48]
The application for interim orders [49]
Does Ms Cripps have a position to preserve? [53]
Should orders be made? [54]
The strength of the claim [55]
Repercussions [61]
Conclusion [65]
Introduction
[1] Karma Cripps is a serving prisoner. She is, and at all material times was, incarcerated in Auckland Region Women’s Corrections Facility (ARWCF). Ms Cripps presently has a “High” security classification, although it has previously been “Maximum”.
[2]Ms Cripps is a diagnosed asthmatic.
[3] Ms Cripps has filed judicial review proceedings in which she challenges the past, and potential ongoing use of “Cell Busters” on prisoners by the Department of Corrections (Corrections) as a means of, or ancillary to, control and restraint (C&R) techniques. The Cell Buster is used in New Zealand prisons for the purposes of “extraction”, which means persuading recalcitrant prisoners to come out of their cells. Ms Cripps says she has been the subject of a Cell Buster “extraction” on three occasions.
[4] In essence, a Cell Buster is essentially a wand attached to a hose attached to a cannister containing pepper spray. It is described as a “fog delivery system”. The wand is designed to be slid under a cell door, at which point the cannister is activated and a mist of pepper spray is pumped, by means of a gas propellant, into the cell.
[5] When the Cell Buster is used with the wand attachment in this way, the spray coats any exposed skin with the particulate residue of the pepper spray aerosol, which can potentially permeate through clothing to the skin below. The pepper spray causes
an intensely painful burning sensation anywhere it touches, including the body, face, and, in particular, the eyes.
[6] Ms Cripps says that even following the decontamination procedures employed immediately after the deployment of the Cell Buster, the burning sensation caused by the pepper spray continues for hours. Her evidence is that the decontamination procedures used by Corrections involve dousing the prisoner with cold water, either in a shower or by hose.
[7] Ms Cripps contends that the use of the Cell Buster in New Zealand is unlawful. For reasons set out in more detail later in this judgment, she says either that their use is not authorised by regulations made under the Corrections Act 2004 (the CA) or, if the regulations purport to authorise their use, then the regulations are ultra vires the Act.
[8] Pending resolution of her substantive claim, Ms Cripps seeks interim orders effectively prohibiting Corrections from using the Cell Buster against her or any other New Zealand prisoner.
[9] Before turning to consider that application it is necessary to set out a number of background matters.
More about pepper spray
[10] The Cell Buster used by the Department of Corrections in New Zealand is a Sabre Red MK-9 (large) canister with an extension wand.1 As noted above, it uses a gas propellant to release a diffuse fog of pepper spray into a prison cell.2
[11] The Cell Buster can be compared with the other methods used by Corrections for deploying pepper spray, which are:
1 The manufacturer’s specifications are:
SABRE CELL BUSTER - FOG DELIVERY (920060-W)
MK-9 with extension wand 18.5 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 formulation is non-flammable.
2 A standard cell is nine square metres.
(a)The handheld MK-9 (large) cannister. This is aimed at the face of the prisoner sought to be restrained. It has a high-volume stream and a long range.3
(b)The MK-3 (small) cannister. This too is aimed at the face of the prisoner sought to be restrained. It may be used as a tactical option in a “use of force incident” that arises spontaneously. This is similar to the pepper spray used and carried by Police.4
[12] The most common pepper spray—used in both versions of the MK-9 and in the MK-3—is still Oleoresin Capsicum (OC) spray. According to medical advice received by the Department of Corrections in November 2009:5
Oleoresin capsicum is an extract from peppers. It is a strong irritant. It also acts directly on peripheral sensory nerves but not on motor (muscle) nerves. It's physiologic effect on the sensory nerves is that of stimulating release of neuropeptides such as substance P and neurokinin A. These neuropeptide substances directly stimulate pain fibres. They also result in neurogenic inflammation. This inflammation occurs in the airway lining, smooth muscle, mucous membranes, and glands leading to vasodilatation, increased vascular permeability, neutrophil chemotaxis, mucus secretion, and transient bronchoconstriction.
Thus in addition to the irritant effect there is an effect of neurogenic inflammation with OC spray.
Exposure routes include direct contact with eyes or skin, inhalation, and ingestion (often secondary to swallowing mucus produced from the airways).
[13]The report goes on to note the effects on skin, respiration and eyes. It states:
Skin effects. The main effects are those of intense burning pain, swelling, redness, and occasionally blistering. There is a powerful stimulation of heat receptors in the skin which causes reflex sweating and vasodilatation. OC spray also has an effect of stimulating central nervous system cooling mechanisms. These combined bodily attempts at cooling can increase the risk of hypothermia if water decontamination is prolonged and performed using cold water in cool temperatures or with a wind chill effect.
3 The handheld MK-9 does not contain the same propellant as the Cell Buster.
4 These canisters are worn in the belt. Since 2017, Corrections Officers have also been authorised to carry these handheld canisters.
5 It seems this advice was provided at the time of the promulgation of the first regulations permitting the use of pepper spray in prisons (see below). It appears to be based on a literature review, rather than the particular expertise of the writer. Its focus is on the effects on both prisoners and prison staff exposed to OC spray.
Respiratory effects. The main effects are those of airway irritation, increased mucous production, gagging, gasping, transient laryngospasm, and transient bronchoconstriction. The latter effect is probably mediated by either substance P or by a reflex vagal effect.
Eye effects. Intense irritation occurs with lacrimation (tearing) and often reflex closing of the eyes. There is inflammation of the conjunctiva and corneal erosions can occur. These can occur due to the direct effects of OC spray. Soft contact lenses absorb the OC and need to be discarded as recurrent flushing does not remove all the OC residue.
[14] The report notes that there is no good evidence that repeated exposures to OC spray over time causes adverse health effects or that OC spray is carcinogenic. And as far as the effect of OC spray on asthmatics is concerned, the report writer says:6
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 [High Volume Stream] 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.7
[15] This part of the report concludes that there is no evidence to suggest that OC spray will actually cause or induce an attack in someone who suffers from asthma, and notes that other forms of C&R can have adverse effects on asthmatics.8
[16] In terms of the effects of the HFC 134a propellant (the propellant used in the Cell Buster) the report states:9
6 Emphasis added.
7 The uncertainty around the possibly differing respiratory effects of the Cell Buster as opposed to the use of HVS or Foam is also emphasised in the executive summary of the report.
8 Because a C&R event that requires a period of prone restraint could acutely reduce lung volumes and function.
9 Emphasis added.
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.
[17]But the report concludes:
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.
Regulating the use of pepper spray as a weapon
The Arms Act 1983
[18] For reasons that will become apparent, it is instructive to begin with the primary statute regulating the possession and use of weapons in New Zealand is the Arms Act 1983 (the AA).
[19] The AA 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 of this Act, to be a restricted weapon:
[20]Section 4 then relevantly provides:
4Power to declare weapons to be restricted weapons or specially dangerous airguns
(1)For the purposes of this Act, the Governor-General may from time to time, by Order in Council, declare—
(a)any weapon (including an airgun) to be a restricted weapon;
…
(2)Any Order in Council made under this section may relate to any weapon or airgun specified by its name or trade name, or to any class of weapons or airguns identified by a description of that class.
(3)An Order in Council made under this section is a legislative instrument and a disallowable instrument for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.
[21] The Arms (Restricted Weapons and Specially Dangerous Airguns) Order 1984 (the 1984 Order) has been promulgated under s 4. Clause 2 of that Order states that:
2 Restricted weapons
The weapons specified in the Schedule to this order are hereby declared to be restricted weapons.
[22]Clauses 8 and 9 of the restricted weapons Schedule then 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 [of this Schedule].
[23] Under the AA, therefore, both pepper spray itself, and any device by which it is deployed are classified as restricted weapons.
The Corrections Act 2004
[24] The use of weapons in prisons is governed by subpt 4 of Pt 2 of the CA, which is entitled Coercive Powers. Sections 83 and 85 are of most relevance here. They respectively and relevantly 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.
Corrections Amendment Regulations 2009
[25] As is made clear by s 85(3), regulations may not be made under s 85 unless the Minister is satisfied that the use of that kind of weapon is compatible with the humane treatment of prisoners, and that the potential benefits from the use of the weapon outweigh the potential risks.
[26] Regulations authorising the use of pepper spray (as a non-lethal weapon) were the Corrections Amendment Regulations 2009 (the 2009 Regulations). They amended the wider Corrections Regulations 2005.
[27]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.
[28] Under the 2009 Regulations, pepper spray was essentially regulated in the same way as batons. By contrast with the 1984 Order, however, the 2009 Regulations did not prescribe as a non-lethal weapon the device by which pepper spray was to be deployed.
[29] But as envisioned by s 85(2), the 2009 Regulations did place some limits and conditions on the use of pepper spray:
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.
[30] At the same time, the Arms Regulations 1992 were amended to include reg 30A, which relevantly provided:10
(2) A staff member of a corrections prison may carry or possess pepper spray11 belonging to the Crown for the purposes of regulations 121 to 123 of the Corrections Regulations 2005.
10 Arms Amendment Regulations 2009. The amendment does not expressly permit Corrections officers to carry the device by which pepper spray is deployed.
11 Defined by reference to the Corrections Regulations 2005 definition.
Corrections Amendment Regulations 2012
[31] In 2012 the relevant provisions were amended again, principally by separating out the use of pepper spray from the use of batons. The authority conferred by the replacement for reg 123(1) (reg 123C) was also 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.
[32] The definition of “pepper spray” remained the same. Again, the replacement regulations did not prescribe as a non-lethal weapon the device by which pepper spray was to be deployed.
Corrections Amendment Regulations 2017
[33] The pepper spray regulations were again amended in 2017 by the Corrections Amendment Regulations 2017 (the 2017 Regulations). The amendments reworked regs 123A to 123C and added a new reg 123D.
[34] The definition of pepper spray was expanded in the 2017 Regulations to include an aerosol spray or other aerosol substance that contains a synthetic irritant. Again, the 2017 Regulations did not prescribe as a non-lethal weapon the means by which pepper spray was to be deployed.12
[35] The Explanatory Note to the 2017 Regulations 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
12 Indeed, the Regulatory Impact Statement that preceded the promulgation of the 2017 Regulations seems largely directed to the use of MK-3 pepper spray as it is used by the Police, rather than Cell Busters.
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).
…
[36]The 2017 Regulations also expressly record that they are 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
(ii)the potential benefits from the use of pepper spray outweigh the potential risks.
[37] In accordance with the 2017 Regulations, the chief executive of Corrections has promulgated guidelines that stipulate procedures for the use of Cell Busters, an overview of which is given below.
Circumstances in which the Cell Buster is used
[38] As noted above, s 83 of the CA governs when the use of force in prisons (including the use of the Cell Buster) is permitted. As well, and as a matter of policy, Mr Robert Hall13 deposed that the Cell Buster (and the handheld MK-9) may only be deployed in “planned” use of force incidents. Such incidents usually occur when a prisoner is inside their cell and showing an intention to be physically violent if officers were to enter,14 for example:
(a)where a prisoner is smashing things in their cell and cannot be persuaded to desist; or
(b)where a prisoner has been directed to move cells or move units,15 but refuses to comply.
Mr Hall says that, in such situations, Corrections officers have two ways of
removing the prisoner from the cell:
(a)A “planned control and restraint”, which involves four corrections officers wearing personal protective equipment (including helmets, shields, and arm and leg pads) entering the cell rapidly, physically restraining the prisoner, and removing them by force. This generally involves upper and lower limb holds, placing the prisoner into a prone position and then into handcuffs or a controlled walking position, and walking them out of the cell.
(b)To deploy the MK-9 (either by direct application or the extension wand)
and then:
(i)waiting until the prisoner leaves the cell voluntarily; or
13 Corrections’ Principal Adviser, Tactical Operations.
14 Such as by adopting a fighting stance, holding an improvised weapon, throwing heavy items at the door as soon as it is opened, verbal threats of violence. A prisoner’s history of physical violence against corrections officers may also be relevant to the assessment.
15 As a result of a change in security classification, or as a disciplinary measure imposed by a Visiting Justice.
(ii)entering the cell to remove the prisoner while incapacitated.
[40] Corrections’ position is that pepper spray is the safer of these two options; a planned C&R presents a higher risk of injury to both prisoners and staff. The MK-9 tends to de-escalate the situation rapidly and is likely to require much less physical force to restrain and relocate the prisoner. By way of example, Mr Hall says that between October 2010 and October 2011 (when pepper spray was being trialled in Corrections prisons), planned uses of force that did not involve pepper spray resulted in:
(a)12 recorded injuries to staff (ranging from sprains and bruises to bites, dislocations, and lacerations from weapons); and
(b)15 recorded injuries to prisoners (bruises, grazes, scratches, cuts, sprains or similar).
[41] [ ] [42]
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[43]
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[44]
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[45] According to Corrections, the Cell Buster has been used on 27 occasions since 2016. It seems that a little over 10 per cent of those occasions involved Ms Cripps, although it has now not been used on her for over a year.
Ms Cripps’ experience of the Cell Buster
[46] Because of the urgency with which the interim orders application was heard, Corrections did not have the opportunity to respond to or test Ms Cripps’ evidence. While Corrections accept that the Cell Buster has been used on her “at least two times” they do not necessarily accept her account of what occurred. Nonetheless it is all the
evidence that the Court presently has about a prisoner’s experience of Cell Buster use and so I set it out in full. She deposed:
22.My first experience of the cell buster and the use of a hose to decontaminate after pepper spray was when I was still in C wing.16 The pepper spray canister looks a bit like a fire extinguisher and comes in black. It has a silver hose, which is thicker than a pen maybe. The hose is detachable.
23.I activated the sprinklers in my cell. It was mainly to get their attention because I kept asking for my minimum entitlements (such as towels, tampons etc) and I was being ignored.
24.I was in my cell by myself and was not hurting anyone and I was not armed.
25.Officers started to gather outside my door. I noticed they were fully suited up with protective gear, shields and helmets. It looked like they were going to a war. There were about five or six (maybe more) officers outside my cell door.
26.I got scared and did not want to come out of my cell. When they told me to come out of my cell, I did not comply as I was afraid.
27.Then a wand slipped under my door and it sprayed pepper spray everywhere. It doesn’t matter where you are standing in the room. Gas goes all the way up in the air and it takes up all the airspace in the cell.
28.I did not know what was going on. I was blinded. I think I was screaming for help because I didn’t understand what just happened.
29.I only saw the wand coming in for a second and the room quickly filled up with gas. I couldn't see anything after that. Spraying continued for five minutes I think. The officers keep spraying the room until you surrender or you drop.
30.It feels like your whole body is on fire. The gas seeps into your clothes and the heating sensation doesn't go away for hours. You need to shower with cold water after it gets sprayed, because warm or hot water makes it feel worse as it heats your body up all over again. Even after a shower with water, the burning feeling still lasts for hours.
31.The worst pepper spraying incident was when I was in D wing, either 19 or 20 November 2019, because my room was pepper sprayed twice in a row.
32.It was the worst because on that occasion, the officers deployed about four canisters at one go. When they put the hose in and deploy gas
16 In Ms Cripps’ affidavit she explains that over the last 14 months she has been housed in either “C” or “D” Wing of ARWCF. C Wing is a management unit. It houses Maximum Security prisoners or others who are transferred there for disciplinary and other reasons. It contains 18 beds. D Wing is a non-residential wing containing six cells. D Wing is known as the “Pound”; it is where prisoners are sent as punishment.
inside your cell, officers put towels under the door so as to keep the gas inside. While they do this, all officers are seen wearing helmets and heavy protective masks.
33.When the first canister had finished, I could hear officers yelling “A1” (or something like that) and yell “A2” then “A3” and so on. So officers were ordering other officers to keep spraying my cell because I kept standing.
34.I almost choked because I suffer from asthma. I couldn’t see anything. By that stage my whole body was soaked wet. I could not breathe.
35.Other inmates were screaming from their own cells telling officers to stop. I could hear them screaming “she has asthma,” “it’s been ten minutes already go inside her cell now” “get her out” and counting the canisters out loud, in the hope it will be recorded somewhere.
36.After pepper spraying stopped, officers kept me in the room for a while. I just waited and waited until someone would open the door and let me out. There was no oxygen left and I was breathless.
37.I think I got the worst of pepper spraying out of all maxi prisoners. I’ve seen or heard others being bombed before but that was definitely the worst.
[47] In evidence recently given by her in the District Court (in relation to a criminal matter), she described the decontamination process which (she said) involved the use of a hose while the prisoner remains handcuffed. She also explained that because it was known she suffers from asthma, a ventilator was on standby, although it is unclear whether she needed to use it. All of that seems generally consistent with the Corrections’ guidelines dealing with decontamination.
The application for review
[48] Ms Cripps’ (amended) application for review pleads three alternative and overlapping causes of action, all of which are essentially vires based. She says
(a)the failure to approve as a non-lethal weapon by way of regulation the device by which pepper spray may be deployed (such as a Cell Buster device) makes the use of the Cell Buster device unauthorised and unlawful;
(b)the 2017 Regulations do not authorise use of a Cell Buster, because the Minister has not made the proper and sufficient assessment of its humane use and the associated risks, as required by s 85 of the Act; or
(c)to the extent the 2017 Regulations do purport to authorise the use of Cell Buster, they are ultra vires the CA because the use of a Cell Buster is not compatible with:
(i)the humane treatment of prisoners; or
(ii)ss 9 (the right not to be subjected to torture, or to cruel, degrading, or disproportionately severe treatment or punishment) and 23(5) (the right of persons deprived of liberty to be treated with humanity and with respect for the inherent dignity of the person) of the NZBORA; or
(iii)the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and other international conventions.
The application for interim orders
[49] By way of interim relief, Ms Cripps seeks a declaration that the respondent, by his servants or agents, should not use any Cell Buster in any New Zealand prison, pending further order of the Court.
[50] Mr Ewen’s principal focus for interim purposes was on the third ground of review set out at [48] above. While the first and second grounds of review are not directly relevant to the present application, I do take them into account in a general sense.
[51]Section 15 of the Judicial Review Procedure Act 2016 relevantly provides:
15 Interim orders
(1)At any time before the final determination of an application, the court may, on the application of a party, make an interim order of the kind specified in subsection (2) if, in its opinion, it is necessary to do so to preserve the position of the applicant.
(2)The interim orders referred to in subsection (1) are interim orders—
(a)prohibiting a respondent from taking any further action that is, or would be, consequential on the exercise of the statutory power:
(b)prohibiting or staying any proceedings, civil or criminal, in connection with any matter to which the application relates:
(c)declaring that any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by the passing of time before the final determination of the application, continues and, where necessary, that it be deemed to have continued in force.
…
(4)An order under subsection (2) or (3) may—
(a)be made subject to such terms and conditions as the court thinks fit; and
(b)be expressed to continue in force until the application is finally determined or until such other date, or the happening of such other event, as the court may specify.
[52] The general approach to interim relief under the predecessor to s 15, s 8 of the Judicature Amendment Act 1972, was set out by the Supreme Court in Minister of Fisheries v Antons Trawling Company Ltd:17
[3] Before a Court can make an interim order under s 8 of the Judicature Amendment Act 1972 it must be satisfied that the order sought is reasonably necessary to preserve the position of the applicant. If that condition is satisfied the Court has a wide discretion to consider all the circumstances of the case, including the apparent strengths or weaknesses of the applicant’s claim for review and all the repercussions, public and private, of granting interim relief.
Does Ms Cripps have a position to preserve?
[53] On one analysis, the status quo is that the Cell Buster is presently authorised to be used in New Zealand prisons and Ms Cripps has no position to preserve. But as Mr Perkins realistically acknowledged, that position is an unattractive one in a case where ss 9 and 23(5) of the NZBORA are arguably engaged, as I think they are here.
17 Minister of Fisheries v Antons Trawling Company Ltd [2007] NZSC 101, (2007) 18 PRNZ 754.
So I propose to proceed on the basis that the position Ms Cripps has to preserve is her right to be free—and protected—from inhumane treatment.
Should orders be made?
[54] The more difficult question is whether interim orders of the kind sought should be made in this case. I consider that primarily by reference to:
(a)the apparent strength of the substantive claim; and
(b)the repercussions of granting or declining relief.
The strength of the claim
[55] It is useful to begin by noting that the excessive use of pepper spray (by Police) has already been the subject of NZBORA analysis by this Court, in Falwasser v Attorney-General.18 On the facts of that case, Stevens J found that there had been a breach of s 23(5), but not s 9. There:
(a)Mr Falwasser was arrested for a relatively minor matter but refused to co-operate with Police with “processing” (fingerprinting and photographing) and then refused to leave his cell;
(b)he was pepper-sprayed over 60 times by a handheld device, over a 20 minute period, mostly through vents and a “floor aperture” in his cell;
(c)the use of pepper spray against Mr Falwasser was, in a sense, spontaneous, in that it was responding to a perceived incident in the moment; and
(d)at the time the majority of sprays occurred, he had a 6 cm open cut on his head (caused by the use of a baton), which would have made the spray particularly painful.
18 Falwasser v Attorney-General [2010] NZAR 445 (HC).
[56] There are obvious differences between Mr Falwasser’s case and the present, although some may need to be explored through evidence at the substantive hearing. By way of example only, one would intuitively expect the use of Cell Buster to be a more effective (and so potentially more painful) means of deploying pepper spray into a closed cell than trying to use a handheld device through vents in the cell door. It might also be supposed that the spray used in a Cell Buster is more potent (has a higher Scoville rating19) than the spray used in a handheld device. As well, the fact that the use of Cell Buster involves the considered deployment of pepper spray—the planned infliction of pain and suffering (albeit temporary) on a prisoner for coercive purposes—arguably makes it a qualitatively different act from “in the moment” use of a handheld device in response to a perceived crisis.
[57] I acknowledge, however, that the specific use in Mr Falwasser’s case did have some particularly aggravating features, including the cut on his head and the sheer number of times the spray was deployed. And as Mr Perkins pointed out, there is a difference between a case impugning a particular instance involving the use of pepper spray (where the presence of specific aggravating features may result in a finding of illegality or breach) and this case, where the contention is that the use of Cell Busters in any circumstances constitutes a breach. But given the other matters referred to in the preceding paragraph, that is far from a complete answer, in terms of any assessment of the strength of Ms Cripps’ claim.
[58] It might, of course, be thought that the risk of a claim based on the NZBORA is diminished here because s 85 of the CA prohibited the making of the regulations authorising (or purporting to authorise) the use of pepper spray unless the Minister of Corrections was first satisfied that the proposed use is compatible with the humane treatment of prisoners. And it seems that the various Ministers did—in 2009, 2012, and 2017—formally indicate their satisfaction in that regard.
[59] But on the material before the Court at this stage, the difficulty is that there is no evidence of either the reasons for those conclusions or the matters that were taken
19 A measure of the concentration of capsaicinoids—essentially a measure of the “heat” of chili peppers.
into account, including any specific consideration of the NZBORA implications.20 Moreover, there is the further concern (raised in the substantive application) that there was a failure to consider separately the different effects of the devices used to deploy pepper spray, as well as the different circumstances in which the different devices are deployed. If such a failure is later established, then whatever NZBORA consideration there was, may also have been deficient. It seems to me that the differences (in terms of effect and the intended circumstances of use) between handheld pepper spray and a Cell Buster might well be relevant to an analysis of whether such use is “inhumane” or inconsistent with the NZBORA.21
[60] For now, the short point is that there is clear authority for the proposition that the use of pepper spray on those who are detained can engage NZBORA rights. And notwithstanding the breadth of Ms Cripps’ focus in these proceedings, my present view is that her claim is tenable. So for all these reasons, and at this preliminary stage, my assessment is that the strength and importance of the underlying claim for review is a factor that favours the grant of interim relief.
Repercussions
[61] Under this heading I consider the short-term consequences for Ms Cripps (and other prisoners) if interim relief is not granted and the consequences for Corrections, if it is.
[62] As to the former, there is the possibility that the Cell Buster will be used on Ms Cripps or other prisoners pending resolution of the substantive review. Given the possibility that such use may constitute inhumane treatment (or may be otherwise ultra vires the CA) is not untenable, that is a very serious matter. And I record in that respect that I am not attracted by Mr Perkins’ submission that its use is within a prisoner’s control (by which he meant that if prisoners “behave” it will not be deployed). That
20 Although I acknowledge Mr Perkins’ submission that such evidence may—because of the urgency accorded the interim orders application—have been redacted on the basis of legal professional privilege and so may yet be revealed.
21 Whether there is a material difference would depend on such things as the strength of the pepper spray used and the volume of pepper spray dispensed on each deployment. Also relevant to the analysis, though, might be the circumstances in which a particular device is intended to be deployed, for the reason given at [56] above.
is for the simple reason that inhumane treatment—if that is what the use of Cell Buster proves to be—cannot be justified in any circumstances.
[63] Against that, however, are the potentially adverse consequences of making interim orders of a mandatory kind affecting operational matters going to prison management and to security and safety. As the Court of Appeal said in Taylor v Chief Executive of the Department of Corrections:22
[28] The operation and control of prisons is provided for in the Corrections Act 2004 and regulations made under its authority. The purpose of the corrections system, as stated in s 5(1) of the Corrections Act, is to “improve public safety and contribute to the maintenance of a just society”. Section 6(1)(a) provides that the “paramount consideration” in decisions about the management of persons under control or supervision is that public safety is maintained. While a prisoner is not wholly deprived of the rights available to other citizens, the particular need in prisons to maintain order and discipline has been recognised in a number of decisions. In his dissenting judgment in Drew v Attorney-General, McGrath J commented in relation to the Penal Institutions Act (the predecessor to the Corrections Act):
It reflects the particular need in the prison context to maintain order within the institutions by punishing conduct which undermines proper authority or orderly community living. Closely linked to the imperative of continuing order is the maintenance of the integrity of prison security …
This statement was subsequently quoted and adopted by the Court of Appeal in Department of Corrections v Taylor.
[64] On the (admittedly untested) evidence that is before me at this juncture, there is a clear link between issues of prison safety and security and the use of the Cell Buster. Corrections’ position is that the Cell Buster is safer for both prisoners and staff than the alternative C&R procedures. While that does not, by and of itself, suffice to justify its use it is a powerful factor against interfering with its use—let alone prohibiting it entirely—before hearing all the evidence. And the mere fact of a prohibition, if it became known among the prison population, would deprive Corrections of the prophylactic effect to which the mere threat of its use gives rise.
22 Taylor v Chief Executive of the Department of Corrections [2010] NZCA 371, [2011] 1 NZLR 112 (footnotes omitted).
Conclusion
[65] On the state of the evidence before the Court, the important, and competing, repercussions set out above are impossible to reconcile. In the end, there are two matters that tip the balance—by a fine margin—against the exercise of discretion to grant interim relief now.
[66] The first is the evidence that the Cell Buster is used relatively infrequently. This operates to moderate the position that Ms Cripps and other prisoners have to preserve; the degree of jeopardy to prisoners’ rights to be free from inhumane treatment is not as acute as it might be.
[67] The second is that the parties are agreed that the substantive application for review can and should be brought on for hearing quickly in the new year (in March or April at the latest). That also moderates the jeopardy to the rights at stake.
[68] And in the meantime, the fact of these proceedings and the contents of this judgment should suffice to put Corrections on notice that there are, in my (albeit partially informed) view, some real concerns about the relevant regulations. Those concerns include, but are not limited to, whether they purport to authorise inhumane treatment of prisoners or treatment that is contrary to the NZBORA. The amended statement of claim admirably makes the range of concerns very clear. It is to be hoped that the resultant uncertainty might be regarded as a relevant consideration in any future decision about whether to deploy the Cell Buster.
[69] As matters stand, therefore, the application for interim relief is declined. Counsel are to liaise with the Registry—before the Christmas break, if possible— about obtaining a substantive fixture as a matter of urgency, taking into account the time needed to brief further expert and other evidence. Ideally, a timetable should be agreed between the parties and the Court notified.
[70] Leave is nonetheless reserved to bring the matter back urgently before me, or another Judge, should the circumstances require.
[71] In light of the importance of the issues raised by the proceeding I am inclined to let the costs of the present application lie where they fall. But if the parties have a different view, memoranda may be filed.
[72] Out of an abundance of caution, and in light of the confidentiality orders made by me by consent on 18 December 2020, any publication of the contents of [41]-[44] above is prohibited.
Rebecca Ellis J
Solicitors: Cooper Legal, Wellington for Applicant Crown Law, Wellington for Respondent
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