19 Apr 2018

Rapists' rights breached in prison - UN

5:27 pm on 19 April 2018

A landmark decision by the United Nations criticising New Zealand's treatment of two serial rapists could lead to more freedoms for 850 prisoners currently serving life setences or in preventive detention, says their lawyer.

Tony Ellis

Human rights lawyer Tony Ellis. Photo: RNZ/Tom Furley

Tony Ellis took the cases of two New Zealand prisoners to the Human Rights Committee (HRC) in Geneva last year.

The HRC ruled the rights of two rapists - Allan Miller and Michael Carroll - had been breached on multiple reasons.

It said the New Zealand government should immediately review facilitating the release of the two men, give them reparation compensation and amend the law so this does not happen to anybody else.

Mr Ellis said the outcome had been a long time coming.

"I started on this around 2008 when we started the judicial review in the High Court... which we lost, then we lost in the court of appeal."

"The domestic courts have not considered it necessary to release these two, and the Supreme Court didn't even have the courtesy of allowing the case to be argued."

Mr Ellis said both men's rights were breached because they were kept in punitive - or punishing - conditions after their non-parole period had finished.

"These particular two prisoners were held on preventative detention - which is a sentence of indeterminate length - arbitrarily since they served the first 10 years of their sentence. After that period you have your parole board hearing and the board considers whether you're a risk to the public.

"So what happens after [your non-parole period] is that you're being detained only for protection of the public, you're not being punished. The HRC has said 'that's arbitrary you can't do that'."

The HRC also found the men's rights were breached as the ability to have a parole board decision reviewed was "limited and insufficient".

Another breach was due to the failure to rehabilitate the prisoners.

"The [prison] system says the purpose is to rehabilitate... so the Corrections department haven't been doing that to the proper extent."

"Certainly after your 10 years - and I would argue well before that - you're supposed to be being rehabilitated and being trained to re-enter society, but that rehab doesn't happen in a meaningful fashion, which means we as a society pay hundreds of thousands of dollars a year to house them in prisons when we could spend an awful lot less to rehabilitate them and release them."

Mr Ellis said Mr Carroll had a further right breached after he was caught drinking while out on parole.

"He was released [on parole] in 2003. During that time the correction department leaked his address and there was a bit of a media frenzy and he had to be rehoused. Then the department leaked his address again and he just couldn't cope.

"He ran away twice in a five day period and during that time he consumed some alcohol and was recalled to prison 14 years ago."

"It's some what excessive," he said.

Mr Ellis said Allan and Carroll had been held in punitive conditions for 17 and 20 years respectively, longer than they should have been.

He said the government was under no legal obligation to take onboard the HRC findings, but he hoped it would.

"Lets hope they do because if they don't our reputation on international law goes down and we're seen as human rights abusers."

"If necessary, if the government don't react positively there will be further domestic action to try and get these clients released."

He said if the system was reviewed it could mean the 850 prisoners who are currently serving life sentences or in preventative detention, could have their human rights "significantly enhanced".

The Justice Ministry said the government had just received the decision and would need time to consider it.

The Ministry's general manager for civil and constitutional policy, Caroline Greaney, said the UN committee "has raised a number of issues and the Ministry and other agencies will be providing advice to Ministers before the Government formally responds".

"That response is required within the next six months and are unable to comment further while we prepare that advice."

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