If torturing a prisoner will lead to more money for victims of crime, then isn't that a good thing to have happen?

The other week, Justice Minister Simon Power gave a fantastic valedictory speech to the House. It capped off a lot of good things that he has done - in particular, I admire how he has handled the issue of changes to electoral finance rules and setting up the referendum on MMP.

But there's one legacy bill he is leaving to the next Parliament that I really wish he had not bothered with. (A hat-tip to I/S for alerting me to this issue.) I'll get to it in due course, but first I need to tell a story.

Mr Tofts was a criminal. He had done bad things - bad enough to get him locked up in the Auckland Prison. Whilst there, he proved very difficult to manage, and constantly broke prison rules (including by assaulting prison staff). So in order to try and manage his behaviour, the prison placed him on the "Behaviour Management Regime" (BMR).

Prisoners on the BMR were segregated (put in solitary confinement) for up to 23 hours a day, deprived of TV and other forms of mental stimulation, given restricted exercise opportunities, not allowed to wear their own clothes or possess toiletries, etc. After a period of time, these conditions would be gradually relaxed ... unless prisoners behaved badly again, whereupon they would be tightened. A classic carrot-and-stick approach to changing behaviour.

Unfortunately, there were a couple of problems. First of all, the BMR was unlawful. Flat out unlawful. Not only was there no legal basis to treat prisoners in this way, but some of the actual features of the BMR were in contravention of specific legal rules on how prisoners are to be treated.

Second, Mr Tofts should never have been on the BMR. A big part of the reason he was in prison, and why he couldn't behave whilst there, was that he suffered from "mental health problems which resulted from an incident that occurred prior to his imprisonment in which he received a severe skull fracture requiring neurological surgery and the insertion of titanium plates into his skull. This led to a number of medical and psychiatric problems." And Auckland Prison knew that putting people with mental health problems in solitary confinement with no forms of stimulation is a really, really bad idea.

So Mr Tofts, along with a number of other prisoners who had also been put on the BMR, sued. Here's how the Court of Appeal summed up the circumstances surrounding Mr Toft's treatment:

(a) Corrections knew of the risks of placing inmates who were psychiatrically vulnerable on BMR, and had access to international literature which would have reinforced that knowledge;

(b) Corrections knew of Mr Tofts’ psychiatric vulnerability;

(c) Corrections did not put in place an adequate screening process for inmates who were proposed to be admitted to BMR;

(d) Mr Tofts was therefore admitted to BMR when he ought not to have been;

(e) The conditions on BMR, particularly the withdrawal of access to a television set, removed one of the coping mechanisms available to Mr Tofts to deal with his psychiatric disability;

(f) Mr Tofts’ time on BMR exacerbated his pre-existing psychiatric and psychological difficulties.

These facts, the Court of Appeal concluded, amounted to a breach of Mr Toft's right to be free from "disproportionately severe treatment or punishment" under the New Zealand Bill of Rights Act 1990, s.9. Note that it didn't say he shouldn't have been in jail, nor that he was an angel. Rather, it said that while he was in jail justifiably paying his debt to society, the State (in the form of the Prison) had unlawfully subjected him to punishment that was "disproportionately severe" in its effects upon him. In short, it had made him even more mad than he had been before.

So, to compensate him in some way for the wrong done to him - including the worsened mental health problems he suffered from - the Court gave him $25,000 in damages. The Crown then accepted this conclusion and award. While it appealed some of the rulings made in respect of Mr Toft's fellow prisoners up to the Supreme Court, it conceded that Mr Toft's had been treated in a way that could not be defended and which deserved monetary reparation.

I tell Mr Toft's story to make it clear that when we are talking about prisoners receiving money for having their rights breached, it isn't just a matter of not getting bacon for breakfast or Sky coverage on their plasma TVs. If we are in any way a civilised society, there are some things that just should not be done to even bad people (like Mr Tofts - although whether his madness really put him in prison is a moot point). And if they are done, then the State has an obligation to try to make it right. And if money is all that can do this, then money it has to be.


While the case of Mr Tofts and his fellows made its way through the courts, the then Labour-led Government reacted to newspaper headlines about "criminals getting money for being in prison" by enacting the Prisoners' and Victims' Claims Act 2005. What this legislation does is firstly try to make it harder for prisoners to get any monetary compensation at all (by requiring they exhaust all other avenues of complaint, and saying damages should even then be last resort for a court), and then take any monetary compensation awarded to prisoners and put it into a special account. Any victim of the criminal who suffered loss as a result of the crime can seek redress from that account - with the prisoner only getting the remaining compensation after such victims have been repaid in full.

Now, this legislation obviously was designed to kill off a politically charged problem. But there still is some sort of principled reason behind it. After all, victims of a particular person's crime who suffered a monetary loss as the result of that crime do have a direct legal claim against the cause of that loss. So all the law did was set up a system whereby victims could more easily get their direct claims against a prisoner satisfied ... albeit only from money that the prisoner receives as the result of having his or her rights breached by the State. If the prisoner won Lotto or inherited a million dollars from her or his grandfather, then that money would sit separate in the prisoner's own bank accounts and the prisoner's victims would have to use the ordinary court process to try and get at it before it was all frittered away.

However, the Act had another feature. Originally, the restrictions on getting monetary compensation and the special account for repaying victims were to last for only 2 years. That time was meant to be spent setting up an independent prison inspectorate that would sort out the sorts of problems that give rise to monetary compensation claims in the first place, while allowing victims with existing claims to make them. However, in the way of things, the original 2 year period was extended in 2007 to 5 years, then for another 2 years in 2010. But as of 1 July, 2012 it should finally end and the restrictions on prisoners getting (and keeping) monetary compensation for rights breaches will end.

Which brings me (finally) back to where I began. Because rather than just allow these measures to lapse, Simon Power has introduced a bill into the House to make them permanent. And what is more, the bill will also change the law so that any money left in the special account after victims have made claims against a prisoner who caused them direct loss will go not to the prisoner who has suffered a breach of his or her rights, but to the Simon Power created "Victims Services Crown Bank Account".

Think about that for a second. A prisoner is in jail serving their punishment - doing the time for their crime. Whilst in jail, they are mistreated - perhaps as badly as Mr Tofts was - in a way that breaches the rights guaranteed to all New Zealanders under legislation. They then get monetary compensation (only after all other means of remedying the situation have failed). That compensation first pays any debt they owe to any person they may have harmed through their crime - assuming there is such a debt in place.

And then the Government takes back the rest of the compensation and uses it to bolster the account it uses to pay for the support of victims of all crime.

So, in essence, the Government is proposing to fund a system of helping crime victims with money that it pays to prisoners after mistreating them whilst they are in its custody. And it will take that compensation away no matter how grievous the rights breach the prisoner has suffered, and irrespective of whether the crime that put the person in prison caused any individual any loss at all.

Why on earth would someone as sensible as Simon Power think that this is a good idea? The reason, I fear, is in the title to his press release: "Another bill to put victims of crime first." He may be off to do less work for more money at Westpac - and good on him, too - but he remains a National Party man who wants to see his comrades back in office come November 27, 2011.

What most annoys me is that this is just another step in turning prisoners into "non-people". Labour kicked this off in its time in office. But this Parliament has seen National and Act take away the rights of all prisoners to vote - for no other reason than that they are bad individuals who shouldn't get treated like us good ones. It has seen prisoners told they may not smoke while in jail - for the ultimate Nanny-state reason that it's for their own good to lose this freedom of choice. And now, if Simon Power's departing gift makes it to the statute books next parliamentary term, prisoners can be treated in ways that outrageously breach their fundamental rights and cause them a great deal of harm ... and the consequence will be that the Government has more money to boast about spending on the victims of crime.

It's a shame, Simon. Your time in office deserved a better final act than this.

Comments (7)

by Pete Sime on October 14, 2011
Pete Sime

How would this work with the ACC system in cases of violent crime? Could the ACC assume the right to claim from the offender to recover what they've paid to the victim, much in the same way private insurance assumes the right to sue for loss of property, or is this only for exemplary damages? The law refers to claims by the victim or the victim's representatives - could the victim assign this right of claim to a third party, or nominate an insurer to act as their representative as a condition of any payout?

by Andrew Geddis on October 14, 2011
Andrew Geddis


No. ACC doesn't have any right to sue/recover costs for individual payouts from the person who caused the injury ... that would defeat the point of a "no fault" scheme.

A crime victim still could seek to sue an offender for exemplary damages, but unless and until he or she does so they do not have a claim against her or him for physical injury caused by a criminal offence. What is increasingly common, however, is for the court to make a reparation order for "emotional harm" at sentencing ... this can be claimed directly from an offender.

by on October 14, 2011

I understand what you are saying my issue is as a co-victim of homicide there is little support after a loved one is killed and dependign on class race and a few other issues there is often even less support. Sadly money does become an issue and many of us find ourlselves broke - take Ida hawkins 15+ years to get a headstone for her daughter. Unfair. I am not avocating harsher penalties etc but there does amongst many co-victims of homicide seem a degree of unfairness that many of us are left high and dry.

by Andrew Geddis on October 14, 2011
Andrew Geddis


I fully accept that victims of crime in New Zealand are not that well treated in many instances. And I also have no problem with those who cause others loss through their criminal actions having to recompense their victims for that loss. What I do object to is treating one group of victims (those who have their rights badly infringed by the State) as a convenient cash-cow to milk in order to help another group of victims (those who have been harmed by criminal action), irrespective of whether a member of the first group is in any way responsible for the harm caused to the second.

Much better would be for the State not to badly infringe the rights of those they have in its custody and to provide better funding for those who are the victims of crime. Is that too much to ask?

by DeepRed on October 18, 2011

The point that Andrew is making is that the cure (official brutality, or 'beating sense into the suspect' from the turd-polisher's viewpoint) can be worse than the disease (crime and criminals). Hypothetically, if the criminal involved dies in custody - regardless of how strongly some may wish it - then it's far harder to levy reparations off him.

by Liam Williams on November 04, 2011
Liam Williams

Once more we see penal populism rear its ugly head. Of course, it’s becoming less common for this to involve an increase in sentencing severity – thankfully – as people become more aware of the ridiculously high imprisonment rate in New Zealand (and the high costs associated with it). I would venture that this had led various factions in Parliament to get more creative with their asserted hard-line on crime. The result of this is pretty self-evident: Quinn’s prisoner disenfranchisement amendment and this bill.

I think that it's arguable that this is part of a larger legislative directive aimed at appearing to be hard on crime without actually costing the State any money. Of course, when this comes at the high price of fundamental prisoner rights, this becomes inexcusable.

by danniel on May 25, 2013

Despite all the efforts to make the law system clear and easy to apply I keep reading about shocking declarations that prove me that some people really think they are above the law. For me the Mirena lawsuit is revelatory, it proves me that the law functions as it should after all, we just have to keep believing in it.

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