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Prisoner's rights

Starting your sentence

Pandemics and emergencies

When is it “reasonable” to remove minimum entitlements?

Corrections Act 2004, s 69-78

This will depend on the circumstances. The more urgent a situation is, the more likely that it might become reasonable for some minimum entitlements to be removed. At the same time, the more urgent the situation is, the more likely that the restrictions will be more temporary.

For example, if there was a fire in the prison, you may have to be moved to another area of the prison where you are unable to exercise, or to have visitors while the fire is being brought under control. This should be for no longer than necessary. If the exercise yard was damaged in the fire, it would not be reasonable for the prison to remove your right to exercise until a new yard was built. Instead, the prison would have to find new ways to provide your minimum entitlement to have at least 1 hour of exercise per day in the open air.

If there was a health and safety issue, like a contagious virus, it may be reasonable to urgently change the way things are done, which may involve some temporary restrictions on minimum entitlements. However, the prison has an obligation to find new ways to provide your minimum entitlements.

What are my rights during a pandemic?

Corrections Act 2004, s 69-78;

Pandemics, like COVID-19, present a lot of problems around health and safety and your welfare. It’s important the prison is balancing the need to prevent the spread of the virus with prisoners’ mental health needs. This means ensuring that if there are restrictions in some areas, it is made up for as much as possible by increasing entitlements in other areas.

In some cases it may be reasonable to remove some minimum entitlements. For example, during level 4 of the COVID-19 pandemic, the Government imposed restrictions on people’s movements. This meant that it was reasonable for the prison to remove the entitlement to visitors, because people were not allowed to visit the prison by law. There was no other choice.

This doesn’t mean that the prison is allowed to just remove access to visits and not take any other steps. For example, when visiting wasn’t allowed during level 4 of COVID-19, the prison had an obligation to ensure prisoners were able to contact family and whānau through other means like additional access to phone calls.

As soon as the restriction was lifted, the prison was obligated to find ways to make it possible for visits to resume. This included taking extra measures to prevent the spread of the virus by maintaining physical distancing and additional hygiene standards (like hand sanitizer).

Ombudsman report on COVID-19

OPCAT COVID-19 report- Report on inspections of prisons under the Crimes of Torture Act 1989

In June 2020 the Ombudsman released a report about how prisons had dealt with prisoner welfare during and after lockdown for COVID-19.

  • The report found that, for the most part, prisons had adapted to the new environment without restricting prisoners’ entitlements.
  • However, the report was also found that in some prisons:
  • Prisoners were not receiving their entitlement of at least 1 hour’s exercise in fresh air each day.
  • The lack of exercise and fresh air was especially so for new arrivals, those with COVID-19 symptoms and those who were particularly vulnerable to the effects of COVID-19 and had been isolated.
  • Prisoner’s were not provided with additional activities to occupy their time and some had no access to TV.

The Ombudsman noted that “contact with the outside world is an essential safeguard against ill-treatment and is critical for the psychological well-being of prisoners”. Restricting visitor access was a significant change. the Ombudsman commented that:

“Where visiting regimes are restricted, even in these unprecedented circumstances, I expect that sufficient alternative methods for prisoners to maintain contact with the outside world should be facilitated, encouraged, and frequent.”

The Ombudsman noted instances where some prisons had installed additional phones, provided in-cell phones, provided unlimited calls for a set cost, and provided additional TV channels and movies, activity workbooks, boardgame sessions and library books.

The Ombudsman made the following recommendations, which were all accepted by the Department of Corrections:

  • All prisoners are able to spend at least one hour each day in the fresh air.
  • All prisoners have access to cleaning materials.
  • All prisoners have access to hand washing facilities and products when in recreation areas.
  • Unit staff maintain complete and accurate records of time out-of-cell.
  • All prisoners are given their initial phone call on admission to the prison.
  • All prisoners subject to separation and medical isolation have access to a television in their cells.

If there are lockdowns in the future it’s important to remember that your welfare and mental health needs are just as important as anyone else’s. While some restrictions may be reasonable, the prison is still obligated to ensure your needs are met. If you think your rights have been unreasonably restricted you can complain to a prison inspector or the Ombudsman.

See “Making complaints about your treatment

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