Cripps v Attorney-General - [2020] NZHC 3523

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Cripps v Attorney-General

Details

AGLC: Cripps v Attorney-General [2020] NZHC 3523
Case: [2020] NZHC 3523
Decision Date: 22 December 2020

CaseChat Overview and Summary

In Cripps v Attorney-General, Karma Cripps, a prisoner with a diagnosed asthmatic condition, challenged the use of “Cell Busters” by the Department of Corrections (Corrections) as a means of control and restraint (C&R) techniques. The Cell Buster, a wand attached to a hose and a cannister containing pepper spray, is used in New Zealand prisons for persuading recalcitrant prisoners to leave their cells. Ms Cripps sought interim orders prohibiting Corrections from using Cell Busters against her or any other prisoner while her substantive claim was being determined. The court considered the legal issues of whether the use of Cell Busters was authorised by regulations made under the Corrections Act 2004, and whether such use was compatible with humane treatment of prisoners and the New Zealand Bill of Rights Act 1990. The court found that the strength of the claim was tenable, but the repercussions of granting interim relief, particularly in relation to prison safety and security, weighed against it. The application for interim relief was therefore declined, but the substantive application was to be expedited. The court emphasised the importance of the issues raised and reserved leave to bring the matter back urgently if required.

Orders