Vogel v Attorney General & Ors CA 171/2012  NZCA 545 (7 November 2013)
The New Zealand Court of Appeal has found that sentencing a prisoner to 21 days cell confinement can amount to a breach of the obligation to treat detained persons with humanity and respect for their inherent dignity. The content of the obligation is to be determined not only through international jurisprudence, but by the statutory standards and domestic values and practices in New Zealand. It is not only the potential breach of such standards, but the effect that the confinement would have on the particular individual that must be considered when sentencing them to a period of cell confinement.
On 26 February 1988 Mr Vogel was sentenced to life imprisonment for murder. He was released on parole on 4 May 1998 but returned to prison in January 2000 on the basis of further offending and apprehended risk to the public. In April 2000, while still in prison, Mr Vogel was sentenced to 21 days cell confinement by a Visiting Justice at the prison for a drug-related disciplinary offence.
Mr Vogel claimed that the sentence of 21 days cell confinement was unlawful as the maximum penalty under the Penal Institutions Act 1954 (Penal Act) is 15 days cell confinement. In addition, Mr Vogel claimed he was not visited daily by the superintendent or the medical officer, nor had the medical officer been informed of the cell confinement, breaching the Penal Institutions Regulations 1999. Mr Vogel also claimed breach of his rights under sections 9 and 23(5) of the New Zealand Bill of Rights Act 1990. At the time of his confinement, it was known that Mr Vogel was also being treated for chronic depression.
Section 9 of the Bill of Rights states:
'Everyone has the right not to be subjected to torture or to cruel, degrading or disproportionately severe treatment or punishment'.
Section 23(5) states:
'Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person'
Cell confinement meant that Mr Vogel was confined to his cell for 23 hours a day and was given one hour of exercise during which he also had to shower. There was no access to television or radio and only a limited amount of reading material. During confinement, Mr Vogel was not permitted to make or receive phone calls or see visitors.
The Crown submitted that Mr Vogel had asked for a sentence of 21 days in order to assist him to deal with his drug taking habit. The Crown also argued that Mr Vogel had been properly attended to by health and custodial staff while subject to the sentence of cell confinement. While he had not been visited daily by a doctor, the nurses would have visited him each morning to ask about his health.
The trial judge held that sentencing Mr Vogel to 21 days confinement was unlawful, in that it exceeded the powers given to the Visiting Judge under the Penal Act. However, the confinement did not amount to a breach of sections 9 or 23(5) of the Bill of Rights. Previous domestic and international cases regarding cell confinement had found that much longer periods of cell confinement, such as three months and twelve months, did not amount to a breach of the Bill of Rights or its international human rights law equivalent. As such, the trial judged reasoned, cell confinement for only 21 days could not amount to a breach of the Bill of Rights.
The Court of Appeal agreed with the trial judge’s conclusion on section 9 of the Bill of Rights, noting that in the previous case of Taunoa v Attorney General  NZSC 70, longer periods of cell confinement were found not to amount to a breach of section 9.
The Court, however, disagreed with the trial Judge’s conclusion on the right to humane treatment protected in section 23(5). Section 23(5), unlike section 9, imposes a positive obligation upon the state in relation to persons deprived of their liberty. The precise nature of that obligation is to be determined not only from international jurisprudence, but from the values and standards prevalent in New Zealand at the time, particularly statutory standards. Citing Taunoa, the court noted that a failure to observe the law relating to prison management may, therefore, 'more readily cause a breach of the state's positive duty under s 23(5)'.
The court went on to say that the statutory maximum of 15 days cell confinement is clearly an important protection for prisoners' mental health and wellbeing. Mr Vogel was known to suffer from depression and to be battling drug addiction. Consequently there was 'a need in his case for special care in imposing any sentence of solitary confinement'.
As such, section 23(5) imposes a duty upon the Visiting Justice to ensure 'not only that the sentence imposed did not exceed the statutory maximum but also that the sentence was one which could be safely imposed.' The fact that Mr Vogel requested the 21 day sentence is irrelevant; as Mr Vogel was a vulnerable person, the duty under section 23(5) cannot be avoided on the basis that he consented.
The imposition of a 21 day sentence in breach of the statutory obligation and in circumstances where the dangers to the mental and physical health of the prisoner should have been obvious amounted to a failure to treat Mr Vogel with humanity and respect for his inherent dignity.
Both the Trial Judge and the Court of Appeal referred to international jurisprudence in their judgement, but their treatment of such case law differs. There is a close similarity between section 23(5) of the New Zealand Bill of Rights Article 10(1) of the International Covenant on Civil and Political Rights. Interestingly, it was the trial judge’s deference to international jurisprudence on Article 10(1) that led him to conclude, wrongly, there had been no breach of section 23(5) of the Bill of Rights, relying heavily on international jurisprudence which seemed to indicate that Article 10(1) would only be breached after a few months in solitary confinement, not merely 21 days.
In contrast, the Court of Appeal preferred to use domestic statutory standards to determine when conduct amounts to a failure to treat a person with humanity and respect of inherent dignity. It was these local standards, rather than international precedents, that gave content to the right in section 23(5).
The decision is available at: http://www.commonlii.org/nz/cases/NZCA/2013/545.html
Emily Christie is a Human Rights Lawyer at DLA Piper, on secondment to the Human Rights Law Centre