References: [2007] NZSC 70, [2008] 1 NZLR 429, [2007] 5 LRC 680
Links: Nzlii
Coram: Elias CJ, Blanchard J, Tipping J, McGrath J
Ratio: Supreme Court of New Zealand – The claimants sought damages after their treatment in prison. They challenged the legality of a behaviour modification regime which five prisoners had been subjected to. The regime had been operated at Auckland Prison by the Department of Corrections over the period 1998-2004, to deal with extremely disruptive prisoners. There was a distinctly punitive element to the regime. The point of the regime was to change the prisoners’ behaviour. The regime involved a highly controlled environment and severe restrictions on association and maximum security conditions, which could become progressively less restrictive depending on a prisoner’s behaviour.
Held: (majority) Sections 9 and 23(5) establish a hierarchy of proscribed conduct:
(a) Blanchard J considered that there are ‘degrees of reprehensibility’ evident in sections 9 and 23(5). He considered that section 9 is concerned with conduct on the part of the state and its officials which is to be utterly condemned as outrageous and unacceptable in any circumstances; section 23(5) is confined in its application to persons deprived of their liberty. It proscribes conduct which is unacceptable in our society, but is of a lesser order, not rising to a level deserving to be called outrageous.
(b) Tipping J considered that s 9 can be seen as prohibiting inhumane treatment, whereas s 23(5) requires prisoners to be treated with humanity. He warned that there is a danger of these concepts being conflated in a way which reduces the degree of seriousness required for a section 9 breach. He considered that s 9 is reserved for truly egregious cases which call for a level of denunciation of the same order as that appropriate to torture.
(c) McGrath J considered that s 9 affirms the rights of all not to be tortured or subjected to cruel, degrading or disproportionately severe treatment or punishment, while s 23(5) focuses on the rights of those deprived of their liberty to be treated with respect for human dignity. He considered that there is a hierarchy between the two sections, and that they are separate, though complementary, affirmations of rights. That hierarchal relationship reflects the graduated standards of the two provisions in the relative gravity of breaches of the rights they respectively affirm. There is a high threshold to be met before the Court can find that there has been a breach of the prohibition in s 9. (d) Henry J agreed with Tipping J.
Tipping J noted that conduct breaching s 9 will usually involve intention to harm or at least consciously reckless indifference as to the causing of harm, as well as significant physical or mental suffering. It seems that s 9 could extend to: (a) torture involving the deliberate infliction of severe physical or mental suffering for a prescribed purpose, such as the obtaining of information; (b) cruel treatment which inflicts suffering, or results in severe or substantial suffering or distress. Views differed on whether or not this needs to be deliberate.
Elias CJ (dissenting) said that ss 9 and 23(5) are not simply different points of seriousness on a continuum, but that they involve distinct, though overlapping rights. She considered that s 9 is concerned with the prevention of treatment properly characterised as inhuman, amounting to a denial of humanity; s 23(5) is directed to an additional, but complementary requirement that prisoners be treated humanely. She considered that denial of humanity could occur through deprivation of basic human needs, including personal dignity and physical and mental integrity. In contrast, inhumane treatment was treatment that was not fitting for human beings, ‘even those behaving badly in prison.’
Statutes: New Zealand Bill of Rights Act 1990 9 23(5)
This case is cited by:
- Cited – Takitota v The Attorney General and Others PC (Bailii, [2009] UKPC 11, 26 BHRC 578)
Bahamas – The claimant appeald as to the amount of compensation awarded to him for his unlawful detention for over eight years, in appalling prison conditions. The Court of Appeal categorised his treatment not only as ‘less than humane’ but as a . .
(This list may be incomplete)
Last Update: 29-Aug-16
Ref: 471045
