The Department of Corrections was doing what the courts told it was the law. The courts were wrong about that, so now the Department of Corrections owes prisoners compensation. That's exactly how our law is supposed to work.

On Wednesday evening I had the pleasure of attending the launch of Sir Geoffrey Palmer and Andrew Butler's book proposing a written constitution for New Zealand. It was held at Parliament, and may I say that a fine time was had by all.

There'll be more on Palmer and Butler's proposal to come next week and, I suspect, over the months to come. But at that event I had a conversation with Graeme Edgeler (during which this happened). He smugly hinted that he was looking forward to receiving a Supreme Court judgment the next day which could have major implications for how prisoner release dates are calculated, and so could mean that lots and lots of people have been wrongfully detained in prison for longer than they ought to be. Such wrongful detention would, in turn, give rise to a right to compensation under both tort law and the New Zealand Bill of Rights.

My immediate response to hearing about this possibility was that the Government would reach for its magical retrospective validation button by way of an Act of Parliament. I didn't think that because I believed such legislation would be justified - remember, I hadn't seen the case or its reasoning - but rather because the notion of having to pay lots of money to criminals who happened to get kept in jail for a bit too long (when they all get let out too soon anyway, innit?) would be political anathema. 

Or, as Idiot Savant puts it over at No Right Turn;

Based on this government's past behaviour, they'll probably ram through a law under urgency to limit their exposure (and score some "tough on crime" votes) by removing the right to compensation for this false imprisonment by the state. Because that's how Judith Collins and friends roll...

And so, as day follows night, we now have the NZ Herald telling us that:

Corrections Minister Judith Collins has strongly indicated the Government will change the law after a ruling that some criminals have been locked up too long, and said the chances of compensation are "remote".

"I think if I was any of these offenders I would not be going out to buy a new car based on what I think I might get," Collins told the Herald after a briefing from Corrections today.

...

Collins said if the Parole Act was changed it could be done so in such a way as to rule out compensation.

Sigh. It's probably not a good sign that my post-two-glasses-of-wine cynicism about the knee jerk responses of politicians to inconvenient court rulings forms a reliable predictor of actual practice. So why exactly (aside from the obvious optics issue of giving money to criminals) is the Government considering squashing any chances of compensation as a result of the Supreme Court's decision? Answering that requires a very quick and simplistic explanation of what the Court decided. 

Let's say you are arrested, charged and held on remand (in custody) for crime A. Then, after you've been held on remand for a while, you are also charged with crime B. When you eventually get convicted and sentenced for both crimes A and B, Corrections were calculating your prison release date for crime A from the point at which you first were charged with crime A. That's because your total prison term includes any time you've already been in prison waiting to find out how long you'll have to stay in prison. But Corrections then calculated your release date for crime B from the point at which you were charged with crime B, ignoring the fact that you may have been in jail for quite a while already before those charges were laid.

It's this calculation that the Supreme Court has now said was flawed - Corrections should have calculated the release date for crime B from when a person first was held on remand for crime A. Failing to do so then meant that if a person's release date for crime B fell after crime A's, that person would have been wrongfully detained for a period of time. 

Now, I should note that Corrections isn't really at fault here. The lower courts gave their blessing to the way it was calculating release dates in a bunch of earlier cases. So it's not as if Corrections were doing something that clearly was at odds with what the governing statute required. That fact helps explain Ms Collins statement that:

The [Supreme Court's] new interpretation did not align with the way her department - or the Court of Appeal - had understood it to operate, she said.

"It's clearly not what the Court of Appeal believes the law should have been interpreted as, and we now have this new interpretation that the government and Parliament will need to consider, as whether or not that is the right place for the law to be."

But so what? The law isn't what the Court of Appeal said it was back in the past. The law is (and is deemed always to have been) what the Supreme Court says it is now. That's just how our legal system works, irrespective of any concern about the retrospective impact that a change in judicial position may have. As Lord Browne Wilkinson put it in a UK House of Lord's case

the theoretical position has been that judges do not make or change law; they discover and declare the law which is throughout the same. According to this theory, when an earlier decision is overruled the law is not changed; its true nature is disclosed, having existed in that form all along. This theoretical position is ...a fairy tale in which no one any longer believes ... . But while the underlying myth has been rejected, its progeny - the retrospective effect of a change made by judicial decision - remain.

And so the House of Lords also has held that even if prison authorities apply what the courts have told them is the law, they still are liable to pay damages to prisoners that a later court decision determines ought to have been released earlier than they actually were. As Lord Slynn put it;

It is accepted that false imprisonment is a tort of strict liability equally clearly deprivation of liberty may be shown to be lawful or justified. It may be so for example where it is pursuant to an order of a court or pursuant to the exercise of statutory powers. Here the court order did not specify the release date and the sentence of two years imprisonment had to be read subject to the [prison authority's] duty to calculate the release date. The [prison authority] cannot therefore rely on the court's sentence alone. [It] has to rely on compliance with the statutory provisions. [It] thought that [it] was complying with those provisions because what [it] did was in compliance with what the law was thought to be. The Divisional Court has since held that that is not the law; the statutory provisions have never had the meaning [it] thought they had. 

   ...

If the claim is looked at from the [prison authority's] point of view liability seems unreasonable; what more could [it] have done? If looked at from the [prisoner's] point of view she was, it is accepted, kept in prison unlawfully for 59 days and she should be compensated. Which is to prevail?

Despite sympathy for the [prison authority's] position it seems to me that the result is clear. She never was lawfully detained after 17 September 1996. She was merely thought to be lawfully detained. That is not a sufficient justification for the tort of false imprisonment even if based on rulings of the court. ... [T]he State ... must compensate her for her unlawful detention.

If that seems unreasonably harsh for the Department of Corrections, note that it's how things work for everyone. Let's imagine you're in a legal dispute with someone over, say, a contract. You ask your lawyer what you ought to do, and she tells you that the courts clearly have said that you are entitled to cancel the contract without paying damages. So you do so, get sued, win your case ... only for a higher court to then turn around and overrule those past interpretations of the law. The fact you acted on what your lawyer (correctly) told you the law was doesn't release you from liability for breaching the contract based on what the higher court now says the law is - you'll have to pay damages for doing so.

So an argument that the Department of Correction's decisions should be validated (deemed lawful) because they just were doing what the courts said they should at the time they acted really is an argument that we should change our basic understanding of how the law works. Which is fine, I guess, if that's what the Government wants to do. But if it is really just trying to avoid having to give money to bad people, is it really worth making that change?

Comments (21)

by Ross on September 23, 2016
Ross

It's odd that this problem of prisoners being kept in prison beyond their release date still exists seeing as it has been around a while.

http://www.stuff.co.nz/auckland/local-news/6119971/Crims-receive-six-fig...

Can victims request to be paid out any compensation paid to prisoners? How much compo are prisoners likely to actually see?

https://www.beehive.govt.nz/release/prisoner-compensation-restrictions-c...

by Nick Gibbs on September 24, 2016
Nick Gibbs

So the Supreme Court over rules the High Court only to be over ruled by Parliament which is fearful of being over ruled by the highest court of all, public opinion. This is just money for jam as far a National is concerned, and i haven't heard what Andrew Little thinks of this but I imagine it will be something like "We agree with Nationals intentions but can't support the process". (Another three years of opposition coming up).

What I don't understand is why your release date for crime B is dependent on time in remand for crime A. natural justice would suggest this ain't right. It also means we are dealing with people convicted of at least two separate crimes. Not the best of us are they. I can imagine NewsHub hovering around filming as double convict murdered Fred Blogs gets a large taxpayer check for a mis-calculated release date.

Quick Judith - to the validating machine. 

 

 

 

by Andrew Geddis on September 24, 2016
Andrew Geddis

@Nick,

What I don't understand is why your release date for crime B is dependent on time in remand for crime A. natural justice would suggest this ain't right. It also means we are dealing with people convicted of at least two separate crimes.

Take this example. Someone robs 2 people in separate incidents (offences A and B). They are caught for offence A, charged and remanded. Then, 6 months into that remand, evidence about offence B is uncovered that leads them to being charged with it. Three months later, they are convicted and sentenced for crimes A and B: 4 years for A and 3 years, 9 months for B (say A is a slightly worse offence than B).

Let's also say they serve their full term (no parole). The release date for A would thus be 3 years, 3 months after sentencing (4 years - 9 months served). For B, Corrections were calculating it as 3 years, 6 months distant (3 years, 9 months - 3 months). Meaning the person would spend a total of 4 years, 3 months in jail even though the longest sentence imposed on him for his offending was actually only 4 years.

Note also, if the person had been arrested and charged with both A and B at the same time, he'd only be in jail for 4 years. So it is pure luck when the charges are laid for each, and which offence carries the longer term, etc, etc. Which doesn't strike me as "natural justice" in action.

by Nick Gibbs on September 24, 2016
Nick Gibbs

@ Andrew

Thanks for your reply, its good to see something of the courts reasoning in this.

Reading your example I note that both sentences are served concurrently and this is where I come unstuck. He/she commits crimes earning a combined total 7+ years and pays with less than 4 years. I'd love to have his/her lawyer negotiate with my builder. Still that's whole other kettle of fish.

by Ross on September 24, 2016
Ross

I note that both sentences are served concurrently.

Which in itself could be an injustice. Two serious crimes should be punished with consecutive sentences. It's a bit like running a red light today and running a red light next week. You can't claim that you've already been punished for running one red light, so shouldn't be punished for running another.

by Graeme Edgeler on September 24, 2016
Graeme Edgeler

Nick - judges are required to sentence on the "totality" of offending. And you can't really add up 5 burglaries and arrive at a murder.

In respect of anomalies, consider these scenarios:

Person A is arrested for burglary 1, remanded in custody for 6 months, then charged with burglary 2. Pleads guilty. Judge decides the overall sentence should be four years. Sentences Person A to four years on each. Total time to be served 4 years six months.

Person B is arrested for burglary 1, which he did with person A, and gets bailed. Six months later charged with burglary 2. Pleads guilty. Judge decides the overall sentence should be four years. Sentences Person B to four years on each to be served concurrently. Total time to be served 4 years. Even though they got an identical sentence to their co-accused, they serve less time.

Person C is also arrested for for burglary 1, which he did with person A and person B. Denied bail, same as person A. Six months later charged with burglary 2. Pleads guilty. Judge decides the overall sentence should be four years. Sentences Person B to two years imprisonment on burglary 1, and two years on burglary 2. Total time to be served 4 years. Even though they got an identical sentence - four years all up for two burglaries, and were denied bail just the same as Person A, they serve six months less.

Now imagine Person A who is going to have to serve 4 years six months of their total sentence of four years, while in prison commits a minor assault on a prison guard, no injuries or anything, but prison authorities are taking a tough line on these, and lay a charge of assault. Person A pleads guilty to this minor assault, and the judge says, "I know this isn't particularly serious, and if an assault like this happened while you weren't in prison, you'd probably get community work, but you are in prison, so I can't sentence you to community work, and I think it's important that an additional punishment follows, so I sentence you to 1 month imprisonment cumulative on your earlier sentences". Person A will now be released 5 months earlier. That six months of remand time that has been ignored is now brought back, and the person is entitled to the full credit of it, and instead of serving four years six months, they will serve four years 1 month.

The Crown was arguing for all these anomalies (and more!) in this case.

If your concern is with concurrent sentences at all, your problem isn't this judgment, it's Parliament, because the law is pretty clear on this.

by Ross on September 24, 2016
Ross

And you can't really add up 5 burglaries and arrive at a murder.

But cumulative or consecutive sentences do get imposed. A burglar who repeatedly offends may well do the same prison time as a murderer.

This particular offender, a serial burglar, died in prison aged 44. He "spent most of his adult life in prison".

http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10342923

by Nick Gibbs on September 24, 2016
Nick Gibbs

@ Graeme,

I don't have any problems with concurrent sentences. They are firmly established and not going anywhere. I would use them to suggest that those asking for compensation have already been dealt with fairly and justly and that any payments to them would be a breach of natural justice for victims.

 Andrew also asks if we should be changing the law to avoid paying bad people money? I'd argue that it only sensible, and really, should the supreme court be making decisions they know will be automatically set aside to popular acclaim?

It could be that one day the court ends up in a big stoush with Parliament, and it doesn't help if you've already lost the preceding rounds by large margins.

 

by Graeme Edgeler on September 24, 2016
Graeme Edgeler

should the supreme court be making decisions they know will be automatically set aside to popular acclaim?

Parliament's intention in sections 90 and 91 of the Parole Act seems ridiculously clear. The heading of section 90 is "Period spent in remand deemed to be time served". With the recent decisions of the higher courts on this issue reaching people in the day to day criminal sphere (eg District Court judges and criminal lawyers (who don't usually deal with parole and release dates)) at least one judge was known to remark along the lines "Corrections is doing what with our sentences?".

This case is a particularly stark example, the judge here, knowing that the defendant had spent a substantial period in remand told him twice during sentencing that "you are getting out soon", and decided to sentence to 22 months in total with concurrent sentences instead of cumulative because it didn't matter.

Period spent in pre-sentence detention deemed to be time served
by Andrew Geddis on September 24, 2016
Andrew Geddis

Andrew also asks if we should be changing the law to avoid paying bad people money? I'd argue that it only sensible, and really, should the supreme court be making decisions they know will be automatically set aside to popular acclaim?

What is so "sensible" about it? 

And I'm uncomfortable with the idea of the Supreme Court deciding that the law means whatever it thinks would get the governing political party more support from the electorate.

by Nick Gibbs on September 24, 2016
Nick Gibbs

@Graeme,

I don't argue against remand time being considered part of the sentence. That's as it should be. In this case I don't think its right to compensate them for a few months extra in prison, they've already been given a benefit of concurrent sentences. Of course if it more than a few months I'd have to re-examine my opinion. 

@Andrew,

I'm also uncomfortable with that idea. But lets face it, the judgements going to be set aside or whatever the term is. I'm no lawyer but even I knew it wasn't going to happen as soon as I heard it. If Labour vote with National against the court that's a real kicking for the court to take and doesn't set a good precedent. If Labour vacillate, National will spin this out right up Oct next year just before the election. 

Just who are the winners here? Not the prisoners, not the victims, not the court? Probably John Key.

 

by Nick Gibbs on September 24, 2016
Nick Gibbs

And of course Winston will do well out of this issue.

by Andrew Geddis on September 24, 2016
Andrew Geddis

If Labour vote with National against the court that's a real kicking for the court to take and doesn't set a good precedent.

So perhaps people of good conscience with some concern for how our system works (rather than holding knee jerk, default anti-criminal sentiments) ought to raise their voices in opposition to such a move? Because our governing processes rely on certain constitutional niceties being observed, even if they don't legally have to be followed. If these start being ignored ... well, the system won't work (like it ought to). And if that happens, then Palmer and Butler's case for moving to a written constitution starts looking a whole lot stronger.

Further, your proposal seems to be that the Court ought not to fight losing battles. I agree that the Court can't ignore politics altogether (because politics is a part of the society it serves) ... but it isn't (and shouldn't be) a purely political institution. Instead, the Court has said what the law is here (and I think it is right - its reading of the statute makes a lot more sense than the one previously in place). If politicians want to then mess with things thereafter, that's for politicians to do. But the day the Court says "we think this should be the law (on our best understanding of the materials and applying our best reasoning), but realise that we'll probably just be legislated over, so fuck it ... we'll just say something different because that's easier for the Government" then it is no longer acting as a Court. It's basically just another arm of the Government.

 

by Nick Gibbs on September 24, 2016
Nick Gibbs

@Andrew,

Firstly my anti-criminal sentiments aren't knee-jerk, they are thoughtfully and sincerely held. But they aren't exhaustive. Do I think convicts should be deprived of voting rights? - no; are they owed an apology? - yes; are they owed a fat wad of cash?- no.

Further, if the supreme court has the best reading of the law, that should be the law. (Although it makes me wonder why a very well remunerated High Court Judge/s didn't see it that way.) 

Lastly; it's not my proposal that the court not fight any losing battles, just not this battle.  

Very lastly: So just how does politics play out in the NZ court system? (Future blog post perhaps?)

by Graeme Edgeler on September 24, 2016
Graeme Edgeler

(Although it makes me wonder why a very well remunerated High Court Judge/s didn't see it that way.)

That very well remunerated judge felt bound by an loosely-written Court of Appeal judgment from a case which clearly reached the right result on its facts, but whose facts were very different from those in this case.

by Andrew Geddis on September 24, 2016
Andrew Geddis

are they owed a fat wad of cash?- no.

But ... why not? The State has unlawfully deprived someone of their liberty. Our law has long recognised that as a wrong for which damages are an appropriate remedy. Why exactly change that approach here?

Also, as pointed out here:

Human rights lawyer Andrew Butler said if such a claim was successful in court, the prisoner might not obtain any of the money themselves.

He said victims now had first claim on such payments, as a result of the Prisoners' and Victims' Claims Act.

The legislation established a fund for victims as a result of a public outcry in 2004 when several Paremoremo prisoners received large amounts of compensation, after successfully claiming they were ill-treated, he said.

Mr Butler said when compensation was awarded to a prisoner, or former prisoner, victims were notified that they were able to claim it.

"Any compensation awarded [could be] eaten up by a range of claims filed by victims. [A prisoner] might get nothing, even if successful, and that's a factor they would have to take into account in bringing a compensation claim."

by Flat Eric on September 28, 2016
Flat Eric

But ... why not?

Because law does not reside in a vacuum. It is part of the social-political reality in which we operate. Nick is not alone in agreeing that whilst legally there has been an error, this is not an error that socio-politically is compensable. At least not under the present government. There is no constituency worth noting that would support it and a large constituency that would punish any attempt.

by Flat Eric on September 28, 2016
Flat Eric

Edit:(can't edit.)

The State has unlawfully deprived someone of their liberty

There is a difference, somehow, socio-politically, intuitively, even if not legally between someone innocent unlawfully deprived of their liberty and someone guilty of something detained marginally beyond the correct term for that something.

by Ross on September 28, 2016
Ross

Flat Eric,

Let's not forget that victims of crime, including those who are viciously assaulted, don't tend to be given large wads of cash by the State. Sure, they might receive medical treatment in a public hospital - with free meals! - generously provided by the State but that's not quite the same as receiving large wads of cash.

 

by Graeme Edgeler on September 29, 2016
Graeme Edgeler

detained marginally beyond the correct term...

How long would it have to be for it to no longer be marginal?

by Flat Eric on October 04, 2016
Flat Eric

Don't know, Graeme. A bit like that legal quote about porn I guess - one would know it if one saw it. Throwing the question back in a fashion, how would you calculate how much these criminals get in compensation?

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