Quick - to the validating machine!

The Department of Corrections was doing what the courts told it was the law. The courts were wrong about that, so now the Department of Corrections owes prisoners compensation. That's exactly how our law is supposed to work.

On Wednesday evening I had the pleasure of attending the launch of Sir Geoffrey Palmer and Andrew Butler's book proposing a written constitution for New Zealand. It was held at Parliament, and may I say that a fine time was had by all.

There'll be more on Palmer and Butler's proposal to come next week and, I suspect, over the months to come. But at that event I had a conversation with Graeme Edgeler (during which this happened). He smugly hinted that he was looking forward to receiving a Supreme Court judgment the next day which could have major implications for how prisoner release dates are calculated, and so could mean that lots and lots of people have been wrongfully detained in prison for longer than they ought to be. Such wrongful detention would, in turn, give rise to a right to compensation under both tort law and the New Zealand Bill of Rights.

My immediate response to hearing about this possibility was that the Government would reach for its magical retrospective validation button by way of an Act of Parliament. I didn't think that because I believed such legislation would be justified - remember, I hadn't seen the case or its reasoning - but rather because the notion of having to pay lots of money to criminals who happened to get kept in jail for a bit too long (when they all get let out too soon anyway, innit?) would be political anathema. 

Or, as Idiot Savant puts it over at No Right Turn;

Based on this government's past behaviour, they'll probably ram through a law under urgency to limit their exposure (and score some "tough on crime" votes) by removing the right to compensation for this false imprisonment by the state. Because that's how Judith Collins and friends roll...

And so, as day follows night, we now have the NZ Herald telling us that:

Corrections Minister Judith Collins has strongly indicated the Government will change the law after a ruling that some criminals have been locked up too long, and said the chances of compensation are "remote".

"I think if I was any of these offenders I would not be going out to buy a new car based on what I think I might get," Collins told the Herald after a briefing from Corrections today.


Collins said if the Parole Act was changed it could be done so in such a way as to rule out compensation.

Sigh. It's probably not a good sign that my post-two-glasses-of-wine cynicism about the knee jerk responses of politicians to inconvenient court rulings forms a reliable predictor of actual practice. So why exactly (aside from the obvious optics issue of giving money to criminals) is the Government considering squashing any chances of compensation as a result of the Supreme Court's decision? Answering that requires a very quick and simplistic explanation of what the Court decided. 

Let's say you are arrested, charged and held on remand (in custody) for crime A. Then, after you've been held on remand for a while, you are also charged with crime B. When you eventually get convicted and sentenced for both crimes A and B, Corrections were calculating your prison release date for crime A from the point at which you first were charged with crime A. That's because your total prison term includes any time you've already been in prison waiting to find out how long you'll have to stay in prison. But Corrections then calculated your release date for crime B from the point at which you were charged with crime B, ignoring the fact that you may have been in jail for quite a while already before those charges were laid.

It's this calculation that the Supreme Court has now said was flawed - Corrections should have calculated the release date for crime B from when a person first was held on remand for crime A. Failing to do so then meant that if a person's release date for crime B fell after crime A's, that person would have been wrongfully detained for a period of time. 

Now, I should note that Corrections isn't really at fault here. The lower courts gave their blessing to the way it was calculating release dates in a bunch of earlier cases. So it's not as if Corrections were doing something that clearly was at odds with what the governing statute required. That fact helps explain Ms Collins statement that:

The [Supreme Court's] new interpretation did not align with the way her department - or the Court of Appeal - had understood it to operate, she said.

"It's clearly not what the Court of Appeal believes the law should have been interpreted as, and we now have this new interpretation that the government and Parliament will need to consider, as whether or not that is the right place for the law to be."

But so what? The law isn't what the Court of Appeal said it was back in the past. The law is (and is deemed always to have been) what the Supreme Court says it is now. That's just how our legal system works, irrespective of any concern about the retrospective impact that a change in judicial position may have. As Lord Browne Wilkinson put it in a UK House of Lord's case

the theoretical position has been that judges do not make or change law; they discover and declare the law which is throughout the same. According to this theory, when an earlier decision is overruled the law is not changed; its true nature is disclosed, having existed in that form all along. This theoretical position is ...a fairy tale in which no one any longer believes ... . But while the underlying myth has been rejected, its progeny - the retrospective effect of a change made by judicial decision - remain.

And so the House of Lords also has held that even if prison authorities apply what the courts have told them is the law, they still are liable to pay damages to prisoners that a later court decision determines ought to have been released earlier than they actually were. As Lord Slynn put it;

It is accepted that false imprisonment is a tort of strict liability equally clearly deprivation of liberty may be shown to be lawful or justified. It may be so for example where it is pursuant to an order of a court or pursuant to the exercise of statutory powers. Here the court order did not specify the release date and the sentence of two years imprisonment had to be read subject to the [prison authority's] duty to calculate the release date. The [prison authority] cannot therefore rely on the court's sentence alone. [It] has to rely on compliance with the statutory provisions. [It] thought that [it] was complying with those provisions because what [it] did was in compliance with what the law was thought to be. The Divisional Court has since held that that is not the law; the statutory provisions have never had the meaning [it] thought they had. 


If the claim is looked at from the [prison authority's] point of view liability seems unreasonable; what more could [it] have done? If looked at from the [prisoner's] point of view she was, it is accepted, kept in prison unlawfully for 59 days and she should be compensated. Which is to prevail?

Despite sympathy for the [prison authority's] position it seems to me that the result is clear. She never was lawfully detained after 17 September 1996. She was merely thought to be lawfully detained. That is not a sufficient justification for the tort of false imprisonment even if based on rulings of the court. ... [T]he State ... must compensate her for her unlawful detention.

If that seems unreasonably harsh for the Department of Corrections, note that it's how things work for everyone. Let's imagine you're in a legal dispute with someone over, say, a contract. You ask your lawyer what you ought to do, and she tells you that the courts clearly have said that you are entitled to cancel the contract without paying damages. So you do so, get sued, win your case ... only for a higher court to then turn around and overrule those past interpretations of the law. The fact you acted on what your lawyer (correctly) told you the law was doesn't release you from liability for breaching the contract based on what the higher court now says the law is - you'll have to pay damages for doing so.

So an argument that the Department of Correction's decisions should be validated (deemed lawful) because they just were doing what the courts said they should at the time they acted really is an argument that we should change our basic understanding of how the law works. Which is fine, I guess, if that's what the Government wants to do. But if it is really just trying to avoid having to give money to bad people, is it really worth making that change?