Can prisoners also be victims? Promoting injustice through legislation

When the  inquiry started, we did a couple of things differently.  The victims in this case were members of the Mongrel Mob, a Maori gang whose code of ethics prevented them from making statements to the Police – even though they were on this occasion the victims.  We hired a private investigator to do the inquiries, and with the cooperation of the Mob leadership, the victims’ statements led to the identification of the offenders. 

The initial inquiry proceeded promptly and led to the dismissal of 12 prison staff.  Subsequent Police investigations began after I left the Prison Service at the end of 1993, and were slow to proceed.  That led to a report by the 2004 United Nations Committee against Torture, concerned about “the findings of the Ombudsman regarding investigations of alleged staff assaults on inmates, the reluctance to confront such allegations promptly, and the quality, impartiality, and credibility of investigations.”  

Some of the prison officers who committed those criminal acts were later reemployed in the prison service.  The  Crown procrastinated in accepting liability and  paying compensation to the prisoners for the serious injuries they had received.  In 1991, seven  years later, Attorney General Margaret Wilson courageously directed the Crown Law Office to pay out.  

The public and political reaction that followed, was orchestrated to some extent.   The  then Minister of Justice , the Hon Phil Goff, referring to the incident as an “alleged assault” and the  victims as a ‘pack of scumbags’.  His comments revealed a developing new response to the treatment of offenders, i.e. that prison was not, in itself, sufficient punishment.  In his view:    

‘it costs us $NZ50000 a year to keep someone in prison … that is a cost to society, not the repayment of a debt … you don’t repay your debt to the victim by being in prison’.    

The Prisoners’ and Victims’ Claims Act was introduced to prevent future claims for monetary compensation by prisoners for breaches of the Bill of Rights.  The legislation made it clear that seeking compensation was to be a last resort measure, and provided that if compensation was granted, the prisoner would not be entitled to it.  Instead, it would be paid into a fund, which could be accessed by the victims of crime, for payment of their expenses.

There were many that disagreed with the Bill, but none, in the face of public support, prepared to speak against it.  The consequences of the Bill – whether intended or unintended – have impacted adversely on the way New Zealanders  regard our justice system, and its fairness.  The messages it sends out deserve closer examination.  

Message One:  Going to prison is no longer sufficient punishment.  Punishment will take  on new and imaginative forms.  Offenders, by reason of their status, are no longer entitled to be treated with respect or decency; nor do they to have the same rights as other citizens who are victims of state brutality and violence.  

Message Two:  Prisoners do not have the same human rights as others.  If they are assaulted or brutalized in prison, the state will make it extremely difficult for them to be adequately compensated, and if they are, to receive the compensation.  

Message Three:  If you are a prison officer, you will be pleased to know that the state does not regard prisoners as fully human.  If you ill treat or brutalise them, the state will make it  very difficult for them to complain, or to seek compensation.  The state does not take the ill treatment of prisoners at all seriously.  While the state has a “duty of care”,  this legislation minimises its significance and status.  

Message Four:  The state has shifted its emphasis from the rehabilitation and humane treatment of prisoners, to ensuring that prisoners comply with the conditions of their sentence.  We know that the three prisoners who were brutalized and tortured by prison staff went on to become seriously dangerous offenders.   It is most likely that their treatment at the hand of the state contributed to that.  

Message Five:  If you are a prisoner, don’t waste your time complaining against ill treatment.   You are not valued, and your complaint is unlikely to be seriously considered.  If you are successful, you will not actually get the compensation you are entitled to.  If you want justice, look for other ways of getting it.   Like payback.  

Message Six:  If you are the victim of a crime, realise that the state does not have sufficient regard for your rights  and needs of victims to compensate you in your own right.  However, youy are free to apply for compensation which has been taken from other victims of crime i.e. blood money”   to meet your needs.  

The legislation overrides the common law principle that all are treated equally under the law, and is in breach of the International Covenant on Civil and Political Rights, under which our Government is required to ensure that inmates are treated with dignity, and that effective remedies are available when violations of those rights occur.  

It is one of a number of recent legislative initiatives and policy measures that breach human rights conventions and accepted standards of decency, e.g. withdrawal of legal representation at Parole Board hearings, removal of the right to vote, double bunking, extended lockdowns.  

Politicians responsible for introducing legislation of this kind, claim it as  “another step in putting victims at the heart of the criminal justice system.”  It would be more accurate to describe it as “another step toward creating more victims  within the criminal justice system”.  

Let’s be honest.  This is the nation that passed the 1879 Maori Prisoners Trials Act and the Maori Prisoners Act, in which prisoners were held indefinitely without trial, contrary to one of the most basic rights guaranteed to all British citizens.  We are a nation practiced   at justifying actions which are illegal, unjust and inhumane.

The idea that every time you acknowledge the human rights of offenders, and observe due process in their treatment, you take something of value away from victims, is both morally flawed and fatuous. What is instead required is a government sincerely committed to address both the rights and needs of victims, and to preserve the human rights of all those affected by the criminal justice system.