In this short piece, we focus on the impact of both the pandemic and the response on human rights, particularly in the criminal justice system. Our main areas to be discussed are:
• the legality of the ‘lockdown powers’ and how police and emergency powers are being used against vulnerable people and over-policed communities,
• fair trial rights, remote participation and delays in the justice system,
• the human rights of people in custody, detention, quarantine and isolation.
New Zealand appears to have avoided the worst effects of the Covid-19 virus. Though 22 people have lost their lives, the swift and strict lockdown imposed at an early stage meant that the health and contact tracing systems could be built up to withstand and contain the spread of the virus.
The country had a strict lockdown (‘Alert Level 4’) in place for a month from the 23rd March, with the following two weeks at the less restricted ‘Alert Level 3.’ On 13th May, the country moved to ‘Alert Level 2,’ meaning that, apart from restrictions on large gatherings, the closure of the border and requirements for physical distancing and contact tracing, daily life returned to relative normality, and on 8th June to ‘Alert Level 1,’ meaning that only border restrictions remained.
New Zealand’s Government, and particularly the Prime Minister Jacinda Ardern, has been lauded domestically and internationally for a public health-driven and empathetic response to the pandemic. Commentators have described Ardern’s communication style as ‘egoless’ and suggest that she:
"may be the most effective leader on the planet"
Yet, amongst the plaudits, there are concerns about human rights and freedoms, the legality of what was one of the world’s strictest lockdown regimes and the impact of harsh decisions such as refusals to permit quarantined travellers to visit dying relatives.
Rt Hon Jacinda Ardern, 21 March 2020
Like many jurisdictions world-wide, the country’s legislative framework was not designed for this unprecedented situation. The decision by the Government to order that almost all businesses be closed, and that people be confined to their homes except for essential personal movement, was underpinned by an order made by the Director-General of Health, Dr Ashley Bloomfield. This order was empowered by the 1956 Health Act, which was a product of a much different time. A state of national emergency was also declared, giving further powers. However, as Knight (2020) has noted:
‘much of the force of the lockdown has come from the Prime Minister’s strong signals, guidance and nudges.’
The Prime Minister and the Director-General of Health were key in engendering public support for the measures, appearing in a must-watch daily press conference at 1 pm, which gave updates on case numbers as well as explanations of policy and rules. Communication of messages of unity and collaboration underpinned the approach, with exhortations to ‘be kind,’ ‘unite against Covid-19’ and to be ‘part of the team of 5 million.’ With Parliament suspended, oversight of powers and accountability for the response was overseen by a special Epidemic Response Committee (chaired by the leader of the Opposition) which took place by videoconferencing and was available for public viewing.
The lockdown orders allowed police constables to ‘assist’ the Director-General of Health in enforcing the orders, as well as powers under a national state of emergency. Approximately 600 charges have been filed for breaches of these powers under the lockdown period. There has been public concern about the use of powers against vulnerable persons and overpoliced communities, or in ways that entrench inequality. An example is the reports of a Māori law student who had been moved on by the police from outside a library where she was trying to access the free wi-fi to complete her university work.
Concerns about the legality of these orders led to the enactment of a specific law which empowers the enforcement of Covid-19 related restrictions. A controversial aspect was the power of the police to enter homes without a search warrant, with Māori communities protesting the power to enter marae (traditional meeting houses) without warrant.
A key element of the lockdown was the decision to close the borders to all but New Zealand citizens and permanent residents. While this has been a contributing factor to the low impact of the virus, it has led to many heart-rending situations, where families have been kept apart and people on work visas unable to return to their homes. Migrant workers without residency permits are also not permitted to access state benefits, and must rely on emergency assistance such as food parcels.
The most poignant effect of these border restrictions has been on those who returned to New Zealand to visit dying relatives or attend funerals, but were prevented or delayed from doing so due to the mandatory 14 day quarantine.
One of these people (Christiansen) sued the government in order to be allowed to visit his dying father.
Courts in New Zealand, as in many states, are public spaces. With a constant flow of people, particularly in the larger metropolitan areas, it is clearly an area of heightened risk for spreading any kind of virus. The various court jurisdictions imposed restrictions on access to court buildings and encouraged the use of remote participation to the extent possible. In the large District Court jurisdiction, approximately 16,000 court events were rescheduled and approximately 7,000 were adjourned.
The focus for all courts during the lockdown period was matters affecting the liberty of the individual and time critical proceedings.
There was some initial confusion with some defendants in custody having proceedings administratively adjourned. The move to alert level 2 allowed the machinery of justice to operate more freely, but continuing public health measures mean that in-person participation remained constrained, and varied between courts according to the facilities available.
Perhaps the most significant effect has been the suspension of new criminal jury trials for four months from mid-March. Waiting times for jury trials are already lengthy, and the suspension of jury trials will continue to have repercussions in the medium to long-term even as restrictions ease. This affects not only the rights of the defendant or the person who is to be sentenced but also the rights of victims, who must also endure the wait for a hearing. Judges are provided very limited powers to override a defendant’s trial by jury. Legislative change could, of course, alter this position.
While such a response may be appear practical, it should be borne in mind that the rights to trial by jury and without undue delay are, in many states, bastions of democracy.
There is a danger that more defendants will plead guilty in order to avoid further delay or may elect judge-alone trial when they would otherwise have elected trial by jury. For the most serious offences such as murder and manslaughter, trial must be by jury. Despite the presumption of innocence, a significant proportion of defendants will be remanded in custody for lengthy periods (McLay, 2020).
Remote participation by phone or audio-visual link (which will be in place for many court events in the medium term due to public health measures) raises concerns for fair trial and participation rights. Defendants have a right to be present at their own trial, although presence doesn’t necessarily require being in person in the courtroom. Hinging from this is the right effectively and meaningfully to participate, including presenting a defence. Giving effect to this right means simple measures such as being able to hear and see, or tailored measures such as translation services. For child defendants, the Oranga Tamariki Act places extensive duties on the court and counsel to ensure understanding of the process and outcomes including the provision of supports such as communication assistance where the young person has communication needs.
Vulnerable defendants are particularly at risk. Numerous studies show high rates of neuro-disability, traumatic brain injury, low literacy and communication in the population of people who offend — leading both to injustice and to low rates of compliance with orders and bail conditions. Where these defendants don’t appear in person, and have limited time to consult with legal representation, disability and problems with effective participation might not be picked up, and the right to a fair trial ultimately could be undermined. Similar problems arise with effective preparation of cultural and specialist pre-sentence reports.
Other in-person justice processes such as restorative justice and youth justice family group conferences have been disrupted.
While all people in New Zealand experienced some restrictions on our liberty and freedom of movement during the lockdown period, people in detention — be that prison, youth justice custody or other forms of confinement such as detention under the mental health legislation — have been particularly affected.
Several reports have been published outlining the implementation of extended cell hours. Under New Zealand law each prisoner is entitled to at least an hour of exercise per day. This entitlement may be restricted for health reasons, which is fairly evident with the potential for Covid-19 to spread rapidly through such a tightly-packed population.
The Department of Corrections, the body that administers prisons in New Zealand, has postponed several rehabilitation and reintegration programmes that require in-person facilitation. Providing rehabilitative programmes and ensuring the constructive use of prison time is a statutory requirement under the Corrections Act 2004. Opportunities for parole may be affected where a prisoner’s release is contingent on their completing such a programme, alongside lost time for engagement with the myriad of positives outcomes that these programmes provide.
With the coming into force of an epidemic management notice on 30 March, provisions of the Parole Act 2002 were activated that significantly curtail the usual processes. Prisoners may be denied not only the right to be present, but also to make submissions. Decisions are able to be made on the basis of documents only. To what extent this has impacted decisions is yet to be seen.
Face-to-face visits at prisons were suspended during Alert Levels 3 and 4. At Alert Level 2 prisons re-introduced in person visits as well as facilitating the re-introduction of rehabilitative programmes. Restrictions at Alert Level 3 and 4 resulted in difficulty for prisoners to discuss their case with legal counsel, stemming from limited access to remote facilities including ’phone and audio-visual technology. Email has also proved difficult. Lack of effective consultation potentially infringes on the rights both to legal representation and to present a defence. Those remanded in custody are likely to be at risk of long terms of imprisonment; with liberty at stake it is vital that these defendants are able to access unhindered advice.
Despite, or perhaps because of, these extreme measures, Covid-19 has not entered the prison system in New Zealand. This is reflective of New Zealand’s response as a whole. Success notwithstanding, there are significant concerns for the rights of those in prison and these concerns would increase the longer restrictions were kept in force. There are also practical problems with the already high prison population in New Zealand and the corresponding strain on facilities. Rights and pragmatism dictate that those in prison are not kept incarcerated any longer than necessary despite restricted access to rehabilitation and parole.
As noted above, people entering New Zealand must now spend 14 days in managed isolation facilities. As of 25 May, approximately 10,000 people had been through, or were currently residing in, these facilities.
It is without doubt that New Zealand has responded effectively to the Covid-19 crisis. However, as we return to the new ‘normal,’ it is inevitable that significant work lies ahead to resolve the impact of the pandemic on the most vulnerable. An effective response will need to be timely, but without eroding the quality of justice delivered.
Stephen Woodwark is Judge’s Clerk at Chief District Court Judge of New Zealand
Dr Nessa Lynch is an Associate Professor at the Faculty of Law of the Te Herenga Waka, Wellington, New Zealand.
She can be emailed here: nessa.lynch@vuw.ac.nz
References
Knight, D. (2020). Lockdown bubbles through layers of law, discretion and nudges — New Zealand.
McLay, G. (2020).The legal low-down on the lockdown.
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