Overhaul of NZ women's prison system highlights the risk and doubt surrounding use of force on inmates

Examples of the police using force in the line of duty are not uncommon, but allegations of excessive force used by staff at Auckland Women’s Prison have raised serious questions about what happens away from the public eye.

Corrections Minister Kelvin Davis has now ordered an urgent overhaul and review of women’s prisons. This follows criticism by a district court judge of the Department of Corrections for its failure to properly respond to accusations of “degrading” and “inhumane” treatment of inmates at the prison.

At the same time, a reported increase in assaults on corrections officers has highlighted what a difficult ethical and practical area this is for staff.

Generally, the use of force by police and other law enforcement agencies in democratic societies is governed by the principles of reasonableness, proportionality and necessity.

The Crimes Act sets out how anyone — not just those entrusted with specialist law enforcement powers — may use force in certain circumstances: self-defence, the defence of another, or to prevent suicide or immediate and serious injury.

But determining whether the use of force was necessary, reasonable and proportionate is often open to interpretation. What happens in the heat of the moment may look quite different in the cold light of another day.

Permission to use force

Police and anyone using force are governed by section 62 of the Crimes Act, which stipulates any force used should not be excessive. If and when it is found to be excessive, the person responsible is criminally liable.

Prison staff are also governed by the Corrections Act. It gives them the power to use force in self-defence, defence of a prisoner or other person, provided the use of physical force is reasonable and necessary.

Unlike the police, however, corrections staff require permission whenever practical before force is used.

In the case of Auckland Women’s Prison, the Corrections Department’s independent inspectorate found no evidence of deliberate cruelty by staff but said they lacked proper oversight and guidance.

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This underlines the importance of risk identification and management in a custodial situation. Custody officers have a duty of care to the people in their protection, but also a clear interest in their own safety.

Equally, supervisors need to balance the rights of those in custody with the safety of their workforce. The reported increase in assaults on corrections officers will undoubtedly affect their sense of personal safety and inform their risk assessment when considering the need to use force.

The review of women’s prisons will need to address the real challenges of determining the reasonableness, proportionality and necessity of actions, both at the time of the event and afterwards.

Risk in the real world

In reality, assessing risk is never easy. When training to be a frontline police constable, for example, I didn’t anticipate the need to use force on someone affected by mental illness. Police training at the time was focused on the apprehension of criminal suspects rather than those in crisis.

In fact, police report force being used once in every 91 suicide attempts attended in 2019 — making up 6% of all incidents where force was used.

Two incidents in particular influenced how I assessed risk and responded.

The first involved a 13-year-old female who had been sending text messages threatening to self-harm. I detained her at her school but she became less compliant when she realised we were heading to the police station. She kicked out the rear passenger window to escape.

The second involved a middle-aged male who had sliced both arms in a suicide attempt. It took three of us to restrain him, all the while trying to avoid the blood and blood-drenched towels, before he could be sedated and given first aid.

Unlike many dramatised depictions of police use of force, real incidents tend to be messy. Without context they can appear uncoordinated, excessive or repressive. Actions taken in response to something might seem more reasonable at first glance than those taken to prevent it.

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Getting the balance right

Research has shown people’s attitudes tend to be shaped by their own levels of trust and confidence in police. Those who hold generally positive views will view police actions as appropriate; those who hold negative views see them as inappropriate.

How people view the actions of prison staff will probably depend on similar perceptions.

While the Auckland Women’s Prison inquiry has drawn attention to the potential for misuse of force, we should be mindful of missing the many nuances that render easy assessment superficial — including that the people who work in these places are not allowed to comment publicly.

The review ordered by the minister will have to address the need to strike the right balance between the safety of those in custody and the safety of those responsible for them. The decisions upon which that balance hinges are not as easy as they might appear.