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Who Is Responsible For Prison Abuse?

Kevin List

Are Politicians Missing The Point Regarding Prison Abuse?

Justice Minister Phil Goff – Image By Mark Graham

Earlier this year, in April, the Department of Corrections was found to have acted outside the law by Justice Ron Young. Following his criticism of Correction's behaviour modification regime (BMR) in his April decision, Justice Young awarded nearly half a million dollars in costs and compensation to the inmates who were subjected to BMR, in early September 2004.

Justice Young ruled that "certain segregations of prisoners were unlawful, failures to provide certain conditions were unlawful, some security classification systems as they related to individual prisoners were unlawful and detention on BMR as it operated was in breach of ... the New Zealand Bill of Rights Act".

Despite Justice Young's decision finding the Department of Correction's had acted unlawfully, Justice Minister, Phil Goff considered that the prisoners should not be compensated for the "alleged wrongs done to them."

Mr Goff has instructed his officials to investigate the possibility of changing the law to prevent offenders from receiving compensation in any similar cases.

"What I am doing right now with the Ministry of Justice is determining a change in the law so that when compensation is given by the state in these circumstances, in future, following the passage of that law, the first call on that compensation would be to the real victims," Mr Goff said

When discussing the subject on National Radio this morning, Mr Goff claimed new laws preventing inmates from gaining compensation for maltreatment may prevent further "spurious claims"

"In that instance, if they know that the money is not going to them but rather to their victims, they may be less likely to make such spurious claims," Mr Goff said.

Despite Mr Goff's concerns regarding "spurious claims", Justice Young's concerns about Correction's treatment of inmates was also echoed in a recent UN Contention Against Torture report [Reference]

"Cases of over-prolonged non voluntary segregation (solitary confinement), as the prolonged and strict conditions of such a detention may amount, in certain circumstances, to acts prohibited by article 16 of the Convention."

The Department of Corrections failure to address official's findings of maltreatment against inmates was also covered by the report:

"The findings of the Ombudsman regarding investigations of alleged staff assaults on inmates, in particular regarding the reluctance to confront such allegations promptly, and the quality, impartiality, and credibility of investigations."

BMR and The Department of Corrections

At the time of Justice Young's April decision, Public Prisons Manager, Phil McCarthy had intimated to the New Zealand Herald that Corrections had failed to "come up to par in some respects" and that Correction's "needed to deal with that."

Mr McCarthy was also reported as stating that Corrections would review the decision and consider possible internal disciplinary action.

The lawyer for the inmates affected by the BMR programme, Tony Ellis, today expressed some surprise at hearing Mr McCarthy's comments from April.

"That strikes me as bizarre - that Phil McCarthy would say that - because clearly the person that should take responsibility for this whole fiasco is Phil McCarthy. If anybody should be disciplined or displaced it should be him," Mr Ellis said.

Mr Ellis considered it was somewhat ironic that Mr McCarthy had mentioned internal disciplinary action considering Mr McCarthy's role in instigating the BMR programme,"The Chief Executive [of Corrections] should have been looking at whether the General Manager of Public Prisons [Mr McCarthy] who set up this programme should still be in office," he said.

According to Mr Ellis the BMR programme was the result of prison riots in the late 90s – however at the time the system was being instituted in New Zealand, similar programmes operating in Australia and Canada had already been condemned and cancelled. Mr Ellis considered that the Department of Corrections had failed to fully understand the difference between segregation and solitary confinement, and had thereby breached their own internal regulations.

"In the regimes around the world, you can have a programme of segregation but not solitary confinement, much the same way as the paedophiles go into voluntary segregation. So they [the inmates] are in a unit where there might be ten of them but not with the other inmates in the prison. Well you can do that with people like Mr Taunoa. who are a problem to good order and discipline…you don't have solitary confinement- nobody seems to have grasped this fact."

The Department of Corrections was somewhat reticent regarding whether or not any internal disciplinary action had followed Justice Young's April decision. Mr McCarthy responded to queries regarding the BMR programme and the outcome of payments to prisoners by pointing out that an appeal had been lodged against Justice Young's decision.

"The Department has already lodged an appeal against the substantive High Court decision of 7 April, 2004, which said that the Department had breached section 23(5) of the New Zealand Bill of Rights Act 1990.

"Under the decision, the Department was liable to pay damages to the inmates who spent periods on the Behaviour Management Regime at Auckland Prison," Mr McCarthy said.

Because of this appeal it was unlikely to discover what internal ramifications, if any, had occurred following Justice Guy's April decision before the appeal was heard, possibly in late November.

"The Department will not be making any further comment until the appeal is decided," Mr McCarthy concluded.


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