By Guyon Espiner of RNZ
A Hawke's Bay woman who established a reputation as an artist for work done in and out of jail has won a High Court decision establishing Corrections has been breaking the law by gassing prisoners in their cells with a potent pepper spray.
The action against the Attorney-General was taken by Karma Cripps, now aged about 35 and from Napier, and Mihi Bassett, aged about 29 and from Bay of Plenty.
The spray, known as Cell Buster, made by American company Sabre and marketed under the tagline Making Grown Men Cry Since 1975, was used by Corrections officers hosing pepper spray into closed cells to incapacitate inmates.
It was used multiple times against Cripps and Bassett at Auckland Women's Prison in 2019 - by up to six guards in full riot gear.
The District Court had ruled it was cruel and degrading treatment designed to break their spirit, and the pair then took a case against the Attorney-General challenging the use of Cell Buster in New Zealand prisons.
A hearing was held in the High Court at Wellington four months ago with a decision by Justice Rebecca Ellis delivered on Thursday ruling Corrections regulations in force between 2009 and 2021 failed to properly authorise the use of the Cell Buster pepper spray.
"The use of Cell Buster in prisons while those regulations were in force was also therefore unlawful," she said, adding Ministers of Corrections over those years did not have enough information to ensure the weapon could be used safely.
"Ministers could not have been satisfied that the use of Cell Buster would be consistent with the humane treatment of prisoners," Justice Ellis said.
The judge said information put before ministers at times gave the impression the pepper spray was the same as that used by police - a small canister, worn on the belt, and drawn and aimed at the face.
But the Cell Buster is hosed into a closed cell using a canister similar to a fire extinguisher.
In a promotional video, manufacturer Sabre says the Cell Buster produces a fog of pepper spray "which contaminates the cell and inflames the inmate's respiratory tract".
It says that "the coughing and irritation produced by Cell Buster generally results in a much more co-operative inmate".
The judge said Cell Buster was a different weapon to standard pepper spray.
"It follows that it was necessary to authorise Cell Buster as a non-lethal weapon separately from other forms of pepper spray," she said.
Justice Ellis made it clear the tactic concerned her.
"The notion of intentionally and remotely inflicting pain on a prisoner - a vulnerable person by definition - while locked in his or her cell is instinctively unpalatable," she said.
"It is, perhaps, the ability to deploy Cell Buster in a more calculated and impersonal way - to inflict pain on a person who cannot escape, while observing their suffering from a safe distance - that has the potential to rob the process of its humanity, and the prisoner of their inherent dignity."
However, she said it was possible that, in cases where a prisoner was armed or threatening to hurt others, using Cell Buster could be warranted and in those instances it may be more humane than other tactical options.
Faced with the legal action, Corrections Minister Kelvin Davis got Cabinet approval for new Corrections regulations earlier this year in an attempt to ensure the use of Cell Buster was legal.
But Justice Ellis said the 2022 regulations were not put before her in this case "so I expressly make no formal findings about their lawfulness or otherwise".
Cell Buster was used 27 times in New Zealand prisons between 2016 and 2020.
The case is yet another rebuke for Corrections over their treatment of Bassett and Cripps at Auckland Women's Prison.
RNZ reported in 2020 that the women were gassed in their cells with pepper spray, forced to lie face down in their cells before being fed and were unlawfully detained for months in a segregation unit.
Bassett's mental health declined and she attempted to kill herself in her cell. In the minutes after the suicide attempt, she was placed in handcuffs and threatened with pepper spray. She was returned to segregation the next day.
Corrections issued a rare apology to the women and has promised them compensation.
The case also led to a full review of how Corrections treats women in prison. Corrections now says it aims to be a "world-leading centre of excellence for the management and care of women".
National Commissioner Rachel Leota said last year the changes would include redesigning Auckland Women's Prison to allow for more recreation time and fresh air, and better conditions for pregnant inmates.
Corrections would now "ensure mechanical restraints will not be used for women who are 30 weeks or more pregnant, during labour, and while they are in hospital after giving birth".
But Leota said Corrections would continue to use pepper spray in women's prisons.
In 2012 Cripps featured in a charity auction of 10 of her works said to have been bought by Napier lawyer Philip Jensen, who had marvelled at the talent of a young woman who had no formal art training, and who, according to the then 25-year-old artist, "didn't make high school''.
"They are good pictures,'' Jensen said at the time. "And she's a good artist.''
When he became aware of her skills, he had told her it was a better way of making a living than stealing and going to jail.
"It worked,'' he said, highlighting that at the time she hadn't been to prison in the previous four years.
Her interest in art in custody had been shown years earlier when she appeared in court with injuries said to have been caused by an officer in a cell overnight after she refused to divulge how she obtained a pen and paper with which she was drawing pictures.
Additional reporting by Hawke's Bay Today