Report on an examination of the Prisoners of Extreme Risk Unit under the Crimes of Torture Act 1989

Excerpt from Executive Summary

As Chief Ombudsman | Kaitiaki Mana Tangata, my role is to ensure the mana and dignity of all people in our country is upheld. As an independent Officer of Parliament, I am tasked with giving effect to a number of key democratic and human rights measures aimed at safeguarding the rights of people and promoting government accountability and transparency. 

This includes examining the general conditions and treatment of people in prisons and otherwise in the custody of Ara Poutama Aotearoa |Department of Corrections (Corrections). I am designated as a National Preventive Mechanism (NPM) [1] under the Crimes of Torture Act 1989 [2] for this purpose. As NPM, it is my role to form an independent opinion on the conditions and treatment of people who are detained, and to make recommendations to improve those conditions and treatment where I consider it appropriate. [3]

My examination of the Prisoners of Extreme Risk Unit (PERU), which is currently the only unit of its type in New Zealand, has given me a clear picture of how the PERU operates, and what it means for the conditions and treatment experienced by people in custody in the PERU. I saw compelling evidence of prolonged solitary confinement in oppressive conditions of all those in custody in the PERU, as well as other human rights abuses, including concerning incidents of use of force. I consider the cumulative human impact of the conditions and treatment of the people in custody in the PERU to be cruel, inhuman, and degrading.

Ill-treatment is a term often used to collectively refer to cruel, inhuman, or degrading treatment. I have serious concerns that people held in the PERU have experienced ill treatment in breach of Article 16 of the United Nations Convention against Torture (UNCAT). [4] It follows that there may also have been breaches of the New Zealand Bill of Rights Act 1990 (NZBORA).

I acknowledge that some of the individuals in the PERU have committed serious crimes, and some may find it difficult to understand why we should care about the conditions and treatment these people experience in prison. Treating every person humanely while in custody, even those who have acted in ways that we consider reprehensible, maintains the moral dignity of this country, and promotes the rehabilitation of people in custody. It does not undermine the rights of victims of crime; it cements our collective commitment to human rights and demonstrates our values of justice and humanity. 

People were placed in the PERU based on a new model developed by Corrections, framed around a concept of ‘extreme risk’. This categorisation captured a diversity of people who had been convicted of a range of offences, including non-violent crimes. At the time of my examination, some people in the PERU were awaiting trial. The conditions imposed upon this select group of people saw them living under the most restrictive regime in the country. Almost all will be released at some point back into the wider community.

I repeatedly heard the conditions and treatment of people in custody in the PERU justified on the basis of the inability to manage people safely elsewhere in the prison estate. This is not acceptable to me. We must do better. It must be possible for all people in custody in our country to be held in humane conditions. 

Despite the benefit of experienced staff and the relatively small cohort of people in custody in the PERU, I consider an operating model was developed for the PERU which relied on extremely restrictive management of individuals, over prolonged periods, to a degree that was not, in my view, justified, necessary, or proportionate. 

New Zealand not only has an obligation under international and domestic law to ensure people are not subjected to ill treatment, it also has a positive duty to investigate where there are reasonable grounds to believe that ill treatment has occurred. [5]

As Chief Ombudsman I consider the PERU model of custody is unacceptable in our country and inconsistent with the purpose of New Zealand’s Corrections system. While improvement of public safety is the paramount consideration under the Corrections Act 2004 (the Corrections Act), so too is maintenance of a just society. [6] This cannot be achieved without fair treatment and a focus on rehabilitation and reintegration for all people in custody, [7] as the law intended, even those whom Corrections may find the most challenging to manage. 

The full report is available in PDF and Word formats at the top of this page.

Footnotes

1. “Designation of National Preventive Mechanisms” (22 June 2023) New Zealand Gazette No 2023-go-2676. Return to text
2. The Crimes of Torture Act 1989 gives effect to the Optional Protocol to the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (OPCAT), which New Zealand ratified in 2007. Available online at https://www.ohchr.org/en/instruments-mechanisms/instruments/optional-protocol-convention-against-torture-and-other-cruel. Return to text
3. Crimes of Torture Act 1989, s 27, which gives effect to Article 17 of the OPCAT. Return to text
4. New Zealand ratified this convention on 10 December 1989. Return to text
5. New Zealand has an obligation under Article 16 of UNCAT to ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there are reasonable grounds to believe that cruel, inhuman, or degrading treatment or punishment has occurred. This investigation should be and in line with standards set out in the Istanbul Protocol: see United Nations Office of the High Commissioner for Human Rights, Istanbul Protocol : Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 2001, 2004, 2022. Return to text
6. Corrections Act 2004, s 5(1). Return to text
7. Above n 6, s 5: Purpose of Corrections system. Return to text