Corrections appears to have broken the law by keeping two women in a segregation unit for four months at Auckland Region Women's Correctional Facility, a human rights lawyer says.
The potential law breach emerged after RNZ revealed on Tuesday morning that prisoners Karma Cripps and Mihi Bassett were bombed with pepper spray during their four-month stay in the segregation unit, known as the pound.
Cripps, an asthmatic, was gassed with four canisters of pepper spray in her closed cell, which Corrections said was a tactic called 'cell buster extraction', designed to incapacitate uncooperative inmates so they could be removed from their cells.
Lawyer Douglas Ewen said the conditions the women faced may also have breached the International Convention Against Torture.
"New Zealand may have a case to answer in torture. Now, that is something that no western nation should ever have to put its hand up and admit."
Inmates usually stayed two weeks in the unit and if they were to be kept there for longer than 14 days, the prison needed the permission of the chief executive. To keep a prisoner there for longer than three months, a judge must visit the facility.
The prison's deputy director, Alison Fowlie, admitted she didn't know the rules existed. That shocked Ewen.
"The fact that the second-in-charge in the prison is unaware of a fundamental obligation is of extreme concern," he said.
The law required continual review of the risk of holding a prisoner in the pound because segregation could cause real psychological damage, Ewen said.
Corrections chief custodial officer Neil Beales said he could not address any of the specifics of the treatment of inmates raised by RNZ because what happened to those prisoners was subject to an ongoing court case.
However, he defended the use of the cell-buster technique, which he said had only been used 24 times since 2016.
He said it was a lawful and legitimate tool.
"I would prefer to use pepper spray than have to send staff in with a shield, where they're gonna have to physically restrain somebody using lock holds and wrestle them to the ground, in a small confined area, where there may be weapons involved.
"The area may be dangerous, because of people having flooded it out, or ripping furnishings from the wall, or even trying to set fire to places. I would rather use pepper spray every time than use physical force."
He said Corrections was not prevented from using it against inmates who had asthma.
Asked whether this was risking lives, he said, "their lives are already being risked by some of the behaviour that the people who you need to go and restrain are using.
"If somebody's intent on setting fire to a cell or holding a weapon against somebody else, or threatening staff that they're going to stab them when they come through the door, life is already at risk.
"We've got a duty to all the people who are in that prison, both the prisoners themselves who may be intent on even harming themselves as well - let's not forget that - and our staff, who are quite entitled to go home... safely back to their families."
Cripps' partner Mihi Bassett attempted suicide after her mental health deteriorated following months in the unit.
Bassett was sent to segregation after starting a fire in the jail, known as Auckland Women's Prison, which caused about $20,000 worth of damage. Cripps was moved to the unit later.
RNZ also revealed inmates at the prison were made to lie face down on the ground with their heads beside the toilet before they were given food and that they had to show guards their used hygiene products to receive new ones.
Prime Minister Jacinda Ardern said the revelations about conditions at the prison were "disturbing" and Corrections Minister Kelvin Davis had requested a briefing from officials.
Davis later said he had been assured the use of force by Corrections was lawful and justified.
Corrections said that in most of the cases of pepper spray bombings RNZ reported, the inmates had activated sprinklers in protest and that made the cell a safety risk. The women were warned they needed to vacate the cell or would be bombed with pepper spray.
Amnesty International New Zealand's executive director Meg de Ronde today called for the pepper spray bombings to be banned.
"Amnesty International is calling for the immediate end to cell buster extractions using pepper spray and an immediate end to the degrading practices around feeding," she said.
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