Use of Cell Buster pepper spray in prisons was unlawful - Judge

Corrections has been breaking the law by gassing prisoners in their cells with a potent pepper spray called the Cell Buster, a High Court judge has ruled.

The Cell Buster, made by American company Sabre and marketed under the tagline Making Grown Men Cry Since 1975, involves hosing pepper spray into a closed cell to incapacitate the inmate.

It was used multiple times against Mihi Bassett and Karma Cripps at Auckland Women's Prison in 2019 in what the District Court earlier ruled was cruel and degrading treatment designed to break their spirit.

Bassett and Cripps then took a case against the Attorney-General challenging the use of Cell Buster in New Zealand prisons.

Yesterday the Wellington High Court Judge Rebecca Ellis ruled that 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."

Justice Ellis ruled that 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."

The judge said that information put before ministers at times gave the impression that the pepper spray was the same as that used by police - a small canister, worn on the belt, which is drawn and aimed at the face.

But the Cell Buster is hosed into a closed cell using a canister similar to a fire extinguisher.

Read more:

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• Scrutiny of use of segregation and force in New Zealand prisons underway as review kicks off
• Corrections Minister orders urgent overhaul, review of women's prisons

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."

The Cell Buster was used against Bassett and Cripps in Auckland Women's Prison and deployed by up to six guards in full riot gear.

Justice Ellis made it clear that 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".

The 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.