Top level government advice to oppose bail for prisoners on the grounds they may have Covid-19 is unlawful and turns prisons into quarantine facilities, according to leading defence lawyers.
Solicitor-General Una Jagose. Photo: RNZ / Alexander Robertson
The lawyers are taking on the government's chief legal advisor, Solicitor-General Una Jagose, who has sent a directive to prosecutors advising them to oppose bail if a defendant who has recently been in the community is suspected of having Covid-19.
The lawyers are also concerned at claims in Jagose's memo that Air New Zealand is refusing to let inmates released from jail fly home on the airline during the pandemic. But Air New Zealand says the claim is wrong.
Barrister Douglas Ewen, who specialises in criminal law and human rights, said the Bail Act could not be used to detain people suspected of an illness.
"There are three reasons to decline bail, and that's if there's a risk that the person will not turn up to court on the right day, that they will interfere with witnesses or evidence or they will offend whilst on bail," he said. "If it does not fit under one of those three headings it's not an available reason to refuse bail."
Barrister Douglas Ewen Photo: Supplied
Ewen said refusing bail to people suspected of having Covid-19 was not only unlawful but was unsafe, especially given about a third of the country's 10,000 prisoners were double-bunked.
"People are held in close confinement and sometimes more than one to a cell. It is an ideal breeding ground for a virus of this nature and locking people up because they present a Covid risk is simply to introduce that Covid risk into the prison population."
Attorney-General David Parker rejected the notion prisons were being turned into quarantine facilities.
He said the solicitor-general's advice was given on health and safety grounds but there was no expectation defence lawyers would agree with it and decisions on releasing defendants were ultimately up to the Courts.
Some defence lawyers are worried prisons would become quarantine stations. Photo: RNZ / Cole Eastham-Farrelly
But RNZ understands that a dozen leading defence lawyers are concerned that the solicitor-general's directive turns prisons into quarantine stations.
It's understood they raised their concerns with the solicitor-general, saying her directive amounted to the Crown advocating for sick people to be put into prisons.
"It's at times like this when we need to have a heightened respect for human rights to make sure that what we are doing is both sensible and lawful," Ewen said.
The Human Rights Commission also has significant concerns about the erosion of prisoners' rights during the pandemic, according to its chief legal advisor Janet Anderson-Bidois.
"I think situations like this illustrate just how fragile the rights of all individuals in our country are and we know from experience, internationally and in New Zealand, that people who are detained are at particular risk of having their rights violated," she said. "That is why independent monitoring and transparency around decisions is really important in these cases."
She was concerned that those with a statutory role to monitor prison conditions, such as the Office of the Ombudsman, were being denied access to prisons, after being caught up in the ban on visitors during the pandemic.
Anderson-Bidois said she understood Corrections was working to address that and said it was vital the department did so.
"You have to be very, very clear that there's no other way to address some of the health and safety issues before you start preventing those visits from occurring."
Corrections Minister Kelvin Davis said Corrections' chief executive could still facilitate statutory visits where they could be done safely and legal counsel was still available via phone, video and email.
Douglas Ewen said he was also concerned about how prisoners were being treated on release. The solicitor-general's letter to prosecutors said the newly-formed Justice Sector Covid-19 Working Group understood that Air New Zealand was currently not allowing released prisoners to fly.
"The Working Group understands that Air New Zealand will not accept defendants on flights while the restrictions remain in place," the solicitor-general's memo says.
Ewen said he was troubled by that position given that it was majority government-owned and that the Secretary for Justice had designated travel from custody as an essential activity.
"They should exhibit a degree of social responsibility at a time like this," he said. "You would have thought given the decrease in passengers they would look for any passenger that they could."
But a spokesperson for Air New Zealand said the Justice Sector Covid-19 Working Group was wrong: the airline was allowing prisoners to fly.
Air New Zealand said essential travel was determined by Aviation Security at the airport and if someone met the criteria they should be allowed to check in and would then be accepted by the airline.
RNZ has previously reported that during the pandemic prisoners have been confined to their cells for more than 22 hours a day, which meets the United Nations' definition of solitary confinement.
Amnesty International Executive Director Meg de Ronde said her organisation had asked Corrections Minister Kelvin Davis to release data on lockdown hours for the last month. "Unfortunately, he hasn't done that so we're now saying that this is urgent, he needs to release that data and we need to know what's going on in our prisons."
She was also urging the government to outline its future plans, saying the extended lockdown hours could not continue.
"We're moving to Alert Level 3 but that doesn't actually mean a huge amount of change. It's possible that Corrections may continue to use lockdown practices that are concerning for much longer."
The Human Rights Commission's Janet Anderson-Bidois said liberties and laws could not be suspended indefinitely.
"The agencies concerned are going to have to show that the steps that they took were legal, that means that they were proportionate, that they were necessary, and that they were justified, and that they were the best or the only means of ensuring that their public health objectives were met."
Kelvin Davis said these were not decisions that his department made lightly but health was the top priority and so far the jails remained Covid free.
