Summary
Two serving prisoners were successful in judicial review of ‘Cell Buster’ pepper spray devices used in prisons.
Background
The Cell Buster is a device used to spray a fog of pepper gas into a cell, aimed at pacifying any prisoner inside and allowing for minimal resistance. The spray also contains an ultraviolet marking dye. The use of Cell Buster was first authorised by regulations in 2009, and was later reapproved in 2012 and 2017.
Karma Cripps and Mihi Bassett are serving prisoners who were subject to “cell extraction” processes involving the use of Cell Buster. In Ms Bassett’s case, the District Court held the process involved a use of force “some distance beyond what was reasonably necessary”.
Cripps and Bassett filed for judicial review, alleging the use of Cell Buster in prisons was unlawful.
The case
New law governing the use of pepper spray, the Corrections Amendment Regulations 2022, was drafted shortly before the Court heard their view application. It was subsequently passed in April 2022.
The Crown argued the new regulations addressed the grounds raised by the applicants pertaining to the lawfulness of the regulations, and the Court need not engage with the first two causes of action. The Court disagreed, and held prisoners and the wider public were entitled to know whether the deployment of pepper spray was lawful at the time.
Was Cell Buster authorised by the regulations?
Cripps and Bassett submitted that the regulations only authorised use of the pepper spray substance rather than the dispersal mechanism. While the Court accepted the definition provided under the regulations was ambiguous, it was not uncertain enough to render it invalid. When given an ascertainable and reasonable meaning, the regulations were deemed to authorise the use of both the aerosol spray and the receptacle that contained and discharged it.
Was the use of Cell Buster consistent with the humane treatment of prisoners?
The Corrections Act 2004 requires the Ministerial authorisation of tools such as Cell Buster to be consistent with the humane treatment of prisoners.
For the Ministers to be reasonably satisfied the use of pepper spray was compatible with the humane treatment of prisoners, the Court held they would have needed to:
(a) Know Cell Buster would be used in planned use of force incidents;
(b) Consider the views expressed in international law, and the potential for abuse of pepper spray when used in confined spaces; and
(c) Ask whether the general restrictions on the use of force by Corrections officers required further limitation, particularly with regard to Cell Buster.
The Department of Corrections had previously acknowledged the statutory requirements governing the non-lethal use of force were insufficient to protect against inappropriate use of Cell Buster. The Court surmised this was why its use was restricted to “assaultive incidents” and not for acts of passive resistance.
The Court held the Ministers should have sought assurance through enforceable regulatory requirements for medical advice on the physical and mental health before using Cell Buster. In addition to this, they should have included restrictions where ventilation is poor, there is risk of further injury, or there are factors affecting the ability to observe or access the prisoner. There should also be a warning given prior to deployment, and a decontamination area to be used promptly following deployment.
For these reasons, the Court held this second ground was successful.
Is Cell Buster a justified limitation to rights under NZBORA?
Cripps and Bassett argued the Cell Buster is irreconcilable with prisoners’ rights to be free from torture, cruel, degrading or disproportionately severe treatment, and to be treated with humanity and respect for dignity. These rights are provided for under ss 9 and 23(5) of the New Zealand Bill of Rights Act (NZBORA) respectively.
The Court disagreed, and held the possibility Cell Buster could be used in breach of these rights was insufficient for it to be unlawful generally. The device was a humane alternative to other non-lethal counter measures which were already lawfully available, such as batons. It was instead a matter of whether its use was a breach of these rights in the circumstances. For this reason, the third ground failed.
Result
The Court declared the use of Cell Buster was unlawful since its introduction in 2009, as the Minister of Corrections (and their successors) could not have been satisfied its use was consistent with the humane treatment of prisoners. The Court also declared the regulations made in 2009, 2012 and2017 did not lawfully authorise the use of Cell Buster in prisons, and its use during those periods were unlawful.
The Judge noted the 2022 regulations were not before the Court, and no findings were made about its lawfulness. Nonetheless, Ellis J stated the conclusions reached by the Court in relation to humane treatment ofprisoners would be relevant to the Minister’s approval of the new regulations.
For more information, please contact Director Brigitte Morten
