Human Rights and Prisons

7. Treatment

7.1 Torture and Ill-Treatment

Law and policy framework

The Corrections Act states that the purposes of the corrections system include that sentences are administered in a ‘safe, secure, humane and effective manner’ (s5(1)(a)) and refers to the UN Standard Minimum Rules as part of the basis of correctional facilities (s5(1)(b)).
The Act also states that the corrections system must ensure the fair treatment of prisoners (s6(1)(g)) and that ‘sentences and orders must not be administered more restrictively than is reasonably necessary to ensure the maintenance of the law and the safety of the public, corrections staff, and persons under control or supervision’ (ibid). The role of prison managers and officers includes ‘ensuring the safe custody and welfare of prisoners received in the prison’ (s12(b), 14(1)(a)).
The New Zealand Bill of Rights Act (s9) establishes that ‘Everyone has the right not to be subject to torture, or to cruel, degrading, or disproportionately severe treatment or punishment’. This asserts New Zealand’s international obligations with regards to the UN Convention against Torture. The NZBORA also states (s23(5)) that ‘Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person’.

Issues

Following on from the violations through the Behaviour Management Regime and the Canterbury Emergency Response Unit, the Corrections Department and staff have been noted to ‘have moved on’ from such institutional ill-treatment of prisoners and inappropriate staff conduct (Ombudsmen’s Office, 2005:4).
Currently, prosecutions of alleged acts of torture can be undermined by the ‘public interest’ discretion of the Attorney-General and police. The UN Committee Against Torture (2009) has recommended that where there is reasonable ground to believe that torture has been committed, investigations should commence immediately.

7.2 Use of Force, Weapons or Restraints

Law and policy framework

The Corrections Act (ss83-88) regulates the use of force, weapons and restraints. The use of force by prison officers is prohibited except where there are reasonable grounds to believe that it is necessary for: self defence, protection from injury, in an escape, prevention of damage to property, or where there is active or passive resistance to a lawful order (s83(1)). Restraints must be compatible with humane treatment; the benefits of use must outweigh the risks; and they must not be used for disciplinary purposes (s87).
Prison officers must not deliberately provoke prisoners (s84(1)) so that force can be used. If force is used, it must be no more than reasonably necessary in the circumstances (s83(2)). Further, aside from the use of handcuffs/waist restraints during transit, a prisoner who has experienced force must be examined by a health professional as soon as practicable afterwards (s83(3)). The use of force, weapons or restraints must also be recorded and reported (s88).
Firearms must not be used while prisoners are present, and must not be stored in a prison (s86). Any non-lethal weapons that are used – to incapacitate or temporarily disable – must be compatible with the humane treatment of prisoners (s85).

Issues

In June 2009, Corrections Minister Judith Collins announced that Corrections officers were to receive body armour, batons and pepper-spray; tasers were also considered but were rejected. In February 2010, the Minister also launched a package of stab-resistant vests and ‘spit hoods’ that shield staff from communicable diseases (Collins, 2010).
Both the Human Rights Commission (2009) and the UN Committee Against Torture (2009) have remarked upon the use of restraints. In particular, they state concerns about the implementation of waist restraints during prisoner transport. Waist restraints were introduced following the death of Liam Ashley, in order to protect prisoners from prisoner-on-prisoner violence inside multi-occupant compartments. The Ombudsmen’s Office (2007b) had previously recommended the use of separate compartments within prison vans¹⁰; the use of waist restraints, while a considerably cheaper option, may well cause pain and humiliation.
Information provided to the Human Rights Commission by the Department of Corrections (Department of Corrections, 2009e) states that, over the four year period 2005-2009, there were a total of 67 employment investigations as a result of allegations of assault or the use of excessive force - 11 in 2005/6, 27 in 2006/7, 17 in 2007/8 and 12 in 2008/9. These investigations resulted in 10 dismissals, 17 final warnings, two staff being placed on performance management, six written warnings, three verbal warnings, four resignations, eight cases where no action was taken and 15 cases where there was no evidence to support the complaint. Two other cases are still under investigation. Further monitoring and research on the roll-out and effect of new technologies, weapons and restraints within the penal environment would be worthwhile.

7.3 Searches

Law and policy framework

Sections 89-103 of the Corrections Act deal with searches. Rub-down searches, scanner searches and cell searches can be carried out, at any time, for the purposes of detecting unauthorised items. Strip searches may be conducted where a prison officer has reasonable grounds for believing the prisoner has unauthorised item(s) and has obtained manager’s approval for the search (although manager approval is not required if the health or safety of any person, or prison security, are endangered).
The Corrections Act (s98) states that every prisoner must be strip-searched on being admitted to a prison, and before transfer to another prison. Strip searches are allowed: immediately before a prisoner is locked down on a penalty of cell confinement; on return to prison; on return from work or an unsupervised part of the prison; immediately before leaving the prison; any time while being transferred to another prison; any time outside of the prison; immediately before being brought before a Visiting Justice, hearing, court or Parole Board; immediately before an alcohol or drug test; and, immediately before or after a visit.
Strip searches include the authority to conduct a visual examination of the mouth, nose, and ears (with the use of illuminating and magnifying devices), and to conduct a visual examination of the anal and genital areas (without the use of illuminating and magnifying devices), but does not authorise the insertion of any instrument into any of those areas (s90(4)(b)). The person being searched may be required to do things such as: open their mouth; lift or raise any part of their body; or spread their legs and bend their knees (s90(2)).
However, where an officer has reasonable grounds to believe that a prisoner has an unauthorised item in their possession, they may also require the person to squat with their buttocks adjacent to their heels and visually inspect their anal and genital areas, with the use of illuminating and magnifying devices (s90(4)). An x-ray search may be conducted where an officer has reasonable grounds to believe an unauthorised item is concealed on the prisoner (s98(9).
During a rub-down search or strip search, the searcher must be of the same sex as the person being searched, and the search should be out of view of anyone not of the same sex. The searcher must be accompanied by another officer or member of the police. Strip searches must be out of the view of any other prisoners. Searches must also be carried out with decency and sensitivity and in a manner that affords the greatest degree of privacy and dignity (s94(2)).
Any person who enters a prison, or visits a prisoner, may be required to undergo a scanner search for the purpose of detecting unauthorised items (s99). If that person refuses to submit to the search, reasonable force may be used. A rub-down of the person may be conducted, with their consent, if an officer has reasonable grounds to believe they possess an unauthorised item. Those who refuse these searches, must be refused admission or access to a prisoner.
In relation to staff, a staff member’s locker may be searched for the purposes of detecting unauthorised items. Searches must have the prior approval of the prison manager, and must be undertaken by two staff (s100). The staff member must also be advised of the proposed search, and has the right to be present during the search.
If an officer has grounds to believe that a visitor or staff member is in possession of a controlled drug, they may detain that person, use reasonable physical force and promptly call the police. A person must not be detained for more than four hours (s103). Finally, any vehicle brought into a prison can be stopped and searched for unauthorised items or attempted escapees. Reasonable force can be used for the purposes of executing this search (s101).

Issues

In 2009, the Ombudsmen upheld a complaint concerning a situation where prisoners were required to squat during strip searches in circumstances where that requirement was not permitted by legislation (Ombudsmen’s Office, 2009:14). Further information on strip searches, with regards to women, can be found in section 8.3. There is clearly a need for further research across this whole area.