The injustice in Simon Power's last stand

National wants to deny prisoners the right to any compensation whilst behind bars, but a shameful attack in 1993 raises questions about the messages such a law sends

When Simon Power tabled his Prisoners' and Victims' Claims Amendment Bill on October 13, it brought to mind one of the most shameful incidents of the New Zealand prison system. As Head of Prisons at the time, it gives me no pleasure to reflect on the incident and the subsequent political response.

In January 1993, three young prisoners at Mangaroa (now Hawkes Bay) prison were systematically beaten and tortured by prison officers. They held the young men naked in outside exercise yards, and used hit squads to repeatedly beat them over a three day period. The prisoners were initially denied access to medical support for injuries which included bruising and cracked bones.

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.

The struggle for compensation took until 2000. Goff referred to the incident as an “alleged assault” and the victims as a ‘scumbags’. Later comments in 2005 revealed a developing new response to the treatment of offenders, i.e. that prison was not, in itself, sufficient punishment. In his view:

" 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 Crown procrastinated in accepting liability and paying compensation to the prisoners for the serious injuries they had received. About seven years after the incident, Attorney General Margaret Wilson courageously directed the Crown Law Office to pay out.

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.”

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 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, 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 the rights and needs of victims to compensate you in your own right. However, you 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. It is one of a number of recent legislative initiatives and policy measures that breach human rights conventions and accepted standards of decency.  Politicians responsible for introducing legislation of this kind, claim it as “another step in putting victims at the heart of the criminal justice system."

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.