Opinion; Subjects: NEW ZEALAND, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.16-17415(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its seventy-sixth session,
22-26 August 2016
Opinion No. 32/2016 concerning Gary Maui Isherwood (New Zealand)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights, which extended and clarified the Working Group’s
mandate in its resolution 1997/50. The Human Rights Council assumed the mandate in its
decision 1/102 and extended it for a three-year period in its resolution 15/18 of 30
September 2010. The mandate was extended for a further three years in resolution 24/7 of
26 September 2013.
2.
In accordance with its methods of work (A/HRC/30/69), on 7 April 2015 the
Working Group transmitted a communication to the Government of New Zealand
concerning Gary Maui Isherwood. The Government replied to the communication on 7 July
2015. The State is a party to the International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following
cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or
her sentence or despite an amnesty law applicable to him) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,
25, 26 and 27 of the International Covenant on Civil and Political Rights (category II);
(c)
When the total or partial non-observance of the international norms relating
to the right to a fair trial, established in the Universal Declaration of Human Rights and in
the relevant international instruments accepted by the States concerned, is of such gravity
as to give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or
remedy (category IV);
United Nations
A/HRC/WGAD/2016/32
General Assembly
Distr.: General
7 October 2016
Original: English
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(e)
When the deprivation of liberty constitutes a violation of international law for
reasons of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation or
disability or other status, that aims towards or can result in ignoring the equality of human
beings (category V).
Submissions
Communication from the source
4.
Mr. Isherwood is a 38-year-old national of New Zealand currently detained at
Christchurch Men’s Prison. On 18 November 1999, Mr. Isherwood was sentenced to eight
years of imprisonment for three offences: (a) sexual intercourse with a female aged 12-16;
(b) living off the earnings of prostitution; and (c) administering morphine.
5.
On 1 July 2003, Mr. Isherwood was released on parole. Two weeks later, on 15 July
2003, he committed five additional offences: (a) sexual violation by rape of a female over
16 (three counts); (b) sexual violation by unlawful sexual connection with a female over 16
(four counts); (c) kidnapping (one count); and (d) two drug-related offences. On 21 April
2004, Mr. Isherwood was sentenced to preventive detention for a minimum period of
imprisonment of 10 years on each charge under section 87 of the Sentencing Act 2002.
6.
In 2004, Mr. Isherwood appealed against his convictions, but not the sentences
imposed. On 14 March 2005, his appeal was dismissed. In 2010, Mr. Isherwood’s
application for leave to appeal that decision, and to appeal his original sentence, was
dismissed.
7.
On 3 August 2010, the Court of Appeal quashed the sentence for the two drug-
related offences because they were not offences for which the High Court had power to
impose preventive detention under the Sentencing Act 2002, and substituted finite
sentences of four years of imprisonment for both offences. However, the Court of Appeal
upheld the sentences of preventive detention in relation to Mr. Isherwood’s offences
involving sexual violation and kidnapping. On 21 September 2010, Mr. Isherwood’s
application for leave to appeal that decision was dismissed.
8.
On 21 April 2014, Mr. Isherwood completed the minimum period of 10 years of
imprisonment without parole. On 30 April 2014, the New Zealand Parole Board denied Mr.
Isherwood parole. When the source submitted this case to the Working Group in January
2015, Mr. Isherwood had been in detention for a period of 10 years and 8 months. He has
completed the punitive period of his detention and is currently in preventive detention.
Submissions regarding arbitrary detention
9.
The source submits that Mr. Isherwood’s detention was arbitrary from the time he
was sentenced in 2004, as well as since April 2014, when he commenced the period of
preventive detention. The source refers to the Human Rights Committee’s general comment
No. 35 (2014) on liberty and security of person (article 9 of the Covenant), in paragraph 12
of which the Committee states that:
An arrest or detention may be authorized by domestic law and nonetheless be
arbitrary. The notion of “arbitrariness” is not to be equated with “against the law”,
but must be interpreted more broadly to include elements of inappropriateness,
injustice, lack of predictability and due process of law, as well as elements of
reasonableness, necessity and proportionality.
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10.
The source argues that Mr. Isherwood’s detention, other than that imposed for a
finite term, was arbitrary from the start, as it does not meet the Committee’s requirements
of reasonableness, necessity and proportionality.
11.
In addition, the source recalls the statement made by the Working Group at the
conclusion of the visit it conducted to New Zealand from 24 March to 7 April 2014, in
which the Working Group expressed particular concerns over the widespread availability of
preventive detention since the enactment of the Sentencing Act 2002. The Working Group
restates its view, also shared by the Committee,1 that:
When a criminal sentence includes a punitive period followed by a preventive
period, then once the punitive term of imprisonment has been served, to avoid
arbitrariness, the preventive detention must be justified by compelling reasons, and
regular periodic reviews by an independent body must be assured to determine the
continued justification of the detention.
Detention conditions must be distinct from the treatment of convicted prisoners
serving a punitive sentence and be aimed at the detainees’ rehabilitation and
reintegration into society. If a prisoner has served the sentence imposed at the time
of conviction, international law prohibits equivalent detention under the label of
civil preventive detention. The grounds for detention must be defined with sufficient
precision to avoid overly broad or arbitrary application.2
12.
The source refers to the requirements of international law set out in the statement of
the Working Group and submits that they have not been met because:
(a)
The preventive period of Mr. Isherwood’s detention has not been justified by
compelling reasons;
(b)
Regular periodic reviews of Mr. Isherwood’s detention by an independent
body have not taken place;
(c)
The conditions of Mr. Isherwood’s detention are not distinct from those of
convicted persons serving a punitive sentence, nor are they aimed at his rehabilitation and
reintegration.
13.
In support of this argument, the source refers to the 2004 annual report of the
Working Group (see E/CN.4/2005/6, para. 58 (f)):
Decisions on psychiatric detention should avoid automatically following the expert
opinion of the institution where the patient is being held, or the report and
recommendations of the attending psychiatrist. Genuine adversarial procedure shall
be conducted, where the patient and/or his legal representative are given the
opportunity to challenge the report of the psychiatrist.
14.
The source alleges that, contrary to those requirements, the New Zealand Parole
Board has not analysed the legality of the continued detention of Mr. Isherwood but has
relied exclusively on the psychological report of one expert finding that he poses too high a
risk to be released on parole. By using this vague risk assessment or suspicion that Mr.
Isherwood might reoffend, the Parole Board has shown that it has no real intention of
releasing inmates held in preventive detention. According to the source, the detention of a
drug-dependent person (someone whose drug addiction is the primary factor behind all of
his offending) beyond the punitive period because society does not know what else to do
1 See general comment No. 35, paras. 21 and 22.
2 The full text of the statement is available from
www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14563&LangID=E.
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with him or her falls radically short of a proper and full consideration of Mr. Isherwood’s
prolonged detention. The source adds that Mr. Isherwood has not been treated with inherent
respect and dignity.
15.
Furthermore, the source claims that, since the expiry of his original sentence in May
2014, Mr. Isherwood is still being detained in prison under punitive conditions. The source
states that there is no plan for Mr. Isherwood’s integration or rehabilitation, nor is it known
when he will be receiving the psychological care provided for by law. As a result, the
conditions under which Mr. Isherwood is currently detained are the same as those before
May 2014, when his sentence became preventive. The source argues that there are less
restrictive and more humane alternatives to prison, and submits that Mr. Isherwood’s
ongoing detention despite these alternatives and because it is suspected that he might
reoffend, is punitive.
16.
Finally, the source considers that, in order to be treated with humanity and respect
for his inherent dignity, Mr. Isherwood must be placed in a facility that addresses his needs
and provides him with an opportunity for rehabilitation and reintegration into the
community. The source alleges that Mr. Isherwood’s anxiety should have been treated
before his drug addiction but was not, and that this set him up for failure. The source also
claims that Mr. Isherwood’s treatment in a drug unit has been unnecessarily delayed and
was not a realistic option. The source notes that, according to the psychological report to
the New Zealand Parole Board of 21 March 2014, Mr. Isherwood had been identified as
suitable for participation in a special treatment unit programme but that it had not yet been
determined which programme, if any, would be the most appropriate for him. The source
emphasizes that the failure to identify a treatment programme for Mr. Isherwood is
arbitrary, given that he has already served over 11 years of his sentence and will not be
released without receiving treatment. The source also argues that the Parole Board has not
taken into account Mr. Isherwood’s ability to cope with indefinite detention and that there
is no programme available in New Zealand prisons to address the potentially harmful
effects of long-term imprisonment.
17.
For these reasons, the source submits that the detention of Mr. Isherwood violates
articles 3, 9 and 10 of the Universal Declaration of Human Rights and articles 9 (1) and (4),
10 (1) and (3) and 14 (7) of the Covenant, and is arbitrary according to categories I and III
of the categories applied by the Working Group.
Response from the Government
18.
On 7 April 2015, the Working Group transmitted the allegations from the source to
the Government of New Zealand under its regular communications procedure, requesting
the Government to provide detailed information by 8 June 2015 about the current situation
of Mr. Isherwood and to clarify the legal provisions justifying his continued detention. On
26 May 2015, the Government sought an extension of 30 days, until 8 July 2015. The
extension was sought in accordance with paragraph 16 of the methods of work of the
Working Group.
19.
In its response of 7 July 2015, the Government submits that Mr. Isherwood’s
detention is not arbitrary, arguing that the issues of reasonableness, necessity and
proportionality of his preventive sentence are issues that may be addressed on appeal to the
Court of Appeal to ensure that the sentence is imposed only when appropriate. In the
present case, Mr. Isherwood was sentenced to preventive detention because he posed a very
high risk to public safety, and this was the subject of the appeal by Mr. Isherwood. The
Government also refers to the view expressed by the Committee that preventive detention is
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not arbitrary per se, provided that it is justified by compelling reasons and subject to review
by a judicial authority.3
20.
The Government states that Mr. Isherwood’s ongoing detention is reviewed
annually4 by the New Zealand Parole Board, an independent body which is itself subject to
judicial review. The Government refers to provisions under the Parole Act 2002 that ensure
that decisions by the Parole Board are made fairly and transparently. This includes
providing offenders with information that is considered by the Parole Board prior to the
hearing, allowing the offender to have legal representation and requiring that decisions be
made in writing and that reasons be given for the decision.
21.
The Government notes that, on 21 April 2015, the New Zealand Parole Board held a
second hearing in relation to Mr. Isherwood, as a result of which it determined that he
continued to pose an undue risk to public safety and therefore could not be released on
parole. According to the Government, that assessment was made using a robust process that
relied upon a psychological assessment of risk and reflected international best practice. The
Government notes that Mr. Isherwood had an opportunity to file submissions before the
Parole Board to challenge the risk assessment made in relation to his case and to seek
judicial review but did not do so.
22.
Furthermore, the Government submits that Mr. Isherwood is not subject to double
punishment as he continues to serve the sentence that was imposed at the time of his
conviction. In addition, under New Zealand law, sentences are not divided into “punitive”
and “non-punitive” periods. The Department of Corrections manages Mr. Isherwood’s
sentence consistently with the purposes of the corrections system, which include providing
activities for rehabilitation and reintegration in so far as is reasonably practicable and
within available resources.
23.
The Government claims that Mr. Isherwood has received, and continues to receive,
an array of opportunities and services that work towards his rehabilitation, including being
employed in the prison, pastoral care, psychological support and participation in courses.
The Government notes that, in January 2013, prior to the completion of his minimum non-
parole period in April 2014, Mr. Isherwood commenced a drug treatment programme. In
April 2013, Mr. Isherwood was removed from the programme because he failed a drug test.
Mr. Isherwood commenced the programme for a second time in February 2014 but was
reported to have engaged in disrespectful behaviour and elected to leave the programme in
March 2014. In September 2014, a team overseeing Mr. Isherwood’s situation suggested
that he complete the programme in another region, where he might be provided with a more
constructive environment, one that might have assuaged some of the behavioural issues and
disruptive tendencies associated with Mr. Isherwood maintaining a profile at Christchurch
Men’s Prison. Mr. Isherwood refused that option, however, as he would have been
distanced from his social support network. Since June 2015, Mr. Isherwood has been on the
waiting list to enter the drug treatment programme for a third time.
24.
The Government notes that, while States have a duty to provide the assistance
necessary to allow detainees to be released as soon as possible, an offender may contribute
to delaying the date of his or her release.5 The Government argues that the Department of
Corrections has offered Mr. Isherwood a significant opportunity to reduce the risk of
reoffending but that, owing to his own behaviour and decisions, progress has been delayed.
3 See communication No. 1512/2006, Dean v. New Zealand, Views adopted on 17 March 2009, para.
7.4.
4 The Government notes that, in line with new legislation, review by the New Zealand Parole Board
takes place every two years from September 2015.
5 See Dean v. New Zealand, para. 7.5.
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25.
Furthermore, in relation to allegations by the source that the detention of Mr.
Isherwood violates article 10 (3) of the Covenant, the Government submits that that
provision does not confer on prisoners the right to participate in specific rehabilitation
programmes and that the means by which rehabilitation is achieved in the penitentiary
system is at the discretion of the State.
Further comments from the source
26.
The Government’s response was sent to the source on 8 July 2015 for comment. The
source replied on 10 August 2015.
27.
The source does not dispute the fact that Mr. Isherwood’s case warranted a
substantial finite sentence but argues that Mr. Isherwood is being subjected to an
indeterminate sentence from which it is difficult, if not impossible, to seek release, given
the arbitrary way in which the preventive sentence has been administered.
28.
The source challenges four of the Government’s arguments, as follows:
(a)
Mr. Isherwood’s rehabilitation was provided primarily after the expiry of his
punitive period of imprisonment and the resource-driven provisions of New Zealand law,
which delay treatment, are contrary to international human rights law, including articles 9
(1) and (4), 10 (3) and 26 of the Covenant;
(b)
The lack of a distinction in New Zealand between “punitive” and “non-
punitive” periods of imprisonment is mere semantics (a minimum period of imprisonment
without parole and a punitive period amount to the same thing), and international human
rights law makes such a distinction;
(c)
Mr. Isherwood’s original sentencing and the determination of his risk by the
New Zealand Parole Board was arbitrary, as it is not possible to accurately determine a very
high risk, nor the actual risk of any particular individual;
(d)
The New Zealand Parole Board is not independent.
29.
The source makes comments on a number of factual inaccuracies in the
Government’s response. Some of the comments relate to disputed details of Mr.
Isherwood’s case that have been taken into account by the Working Group but are not
repeated in detail here.6 The most significant of the alleged inaccuracies relates to the
Government’s claim that Mr. Isherwood failed to complete drug treatment on two
occasions. The source states that Mr. Isherwood was removed from the drug treatment
programme because his medications had been stopped owing to a confusion relating to the
prescriptions. According to the source, Mr. Isherwood unlawfully self-medicated, but later
stabilized when he went back on his previous medications. On the second occasion, Mr.
Isherwood removed himself from the programme when another withdrawal of his
medication led to erratic behaviour. The source notes that Mr. Isherwood was offered
another opportunity to participate in the programme in another region but declined because
he did not want to be relocated to a place where he would have no support, particularly
given that he suffers from anxiety, and that he has fulfilled the requirements to complete the
programme at his local prison. The source therefore disputes the Government’s assertion
that Mr. Isherwood is delaying his own rehabilitation.
6 For example, the source: (a) provided clarifications on a painting and paper-hanging course that Mr.
Isherwood completed; (b) corrected a finding by the psychologist that since Mr. Isherwood was
appealing his conviction he might not be able to complete a sex offender course, noting that
participation in the course should not have been placed on hold owing to the appeal; and (c) clarified
that Mr. Isherwood’s security classification is low-to-medium and that his motivation to participate in
activities is average.
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30.
The source also notes that Mr. Isherwood is again on the waiting list for drug
treatment because of systemic underfunding by the Government for rehabilitative treatment.
The lack of resources provided by the Government has resulted in Mr. Isherwood starting
treatment primarily after the minimum period of imprisonment without parole had expired.
As a result, Mr. Isherwood did not have a fair chance of being released at the first possible
opportunity, in April 2014, contrary to articles 10 (3) and 26 of the Covenant. In relation to
article 26, the source alleges that inmates in preventive detention, like Mr. Isherwood, are
discriminated against when it comes to access to treatment, as they should receive treatment
before prisoners serving finite sentences but do not.
31.
The source also refers to the Government’s assertion that Mr. Isherwood has
received, and continues to receive, an array of opportunities and services that work towards
his rehabilitation. While this is literally correct, the source argues that he has not received
timely and appropriate treatment for sex- and drug-related issues. The source also points to
an inconsistency between the Government’s reply and the information in the 2015
Department of Corrections report to the New Zealand Parole Board regarding whether Mr.
Isherwood was receiving chaplaincy and counselling support. The source argues that the
inconsistency shows a lack of good faith, as the Government uses that support to show that
it has offered rehabilitation opportunities to Mr. Isherwood, while advising the Parole
Board that the counsellor and the chaplain are not involved in his support.
32.
Furthermore, the source comments on a statement by the Government that Mr.
Isherwood did not seek parole in 2014. According to the source, no application for parole
was necessary given that, in line with a statutory requirement of the Parole Act 2002, the
New Zealand Parole Board should consider granting offenders the possibility of parole
every 12 months. Moreover, the source points out that Mr. Isherwood did seek parole in
2015.
33.
The source makes a number of submissions relating to the New Zealand Parole
Board, arguing that the Parole Board is not an independent and impartial tribunal as it is
required to be pursuant to articles 9 (4) and 14 (1) of the Covenant, including because it
does not have broad powers to release inmates. These arguments are based on submissions
made by the source in another case that is currently before the Committee, and relate
particularly to the appointment and lack of secure tenure of members of the Parole Board.
The source also points to the fact that an offender has to seek the leave of the Board in
order to be represented by counsel, which does not sit comfortably with independence. The
source argues that appointments to the Parole Board are political in actuality and
appearance and that the appointment of members for a three-year period is inadequate and
allows for political interference. The source notes that the appointments coincide with the
three-year electoral cycle in New Zealand.
34.
Finally, the source points to a new legislative regime in New Zealand that took
effect in September 2015 and that allows the New Zealand Parole Board to postpone
consideration of parole for up to five years, although an offender may apply for parole at
any time if there is a significant change in his or her circumstances. The source submits that
this ability to postpone consideration of parole for up to five years7 under section 13 of the
Parole Amendment Act 2015 does not meet the requirements for a regular periodic review.
Further comments from the Government
35.
Given the extensive submissions from the source on the independence of the New
Zealand Parole Board, the Working Group decided to seek further information from the
7 Prior to the amendment, the period of a postponement order was up to three years for an offender
serving a sentence of preventive detention (see sect. 27 (2) (a) of the Parole Act 2002).
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Government regarding the Parole Board. On 21 October 2015, the Working Group
requested the Government to clarify the use of the words “independent body” to describe
the Parole Board in its response to the source’s original submissions. In addition, the
Government was requested to provide additional information on the guarantees currently in
place to ensure the independence of the Parole Board and how its members are designated.
The Government was not given a time frame within which it was required to reply.
36.
The Government responded to the request on 27 November 2015, the last working
day before the start of the Working Group’s seventy-fourth session. As the Working Group
was not able to consider the Government’s submissions during that session, the matter was
discussed at the seventy-fifth session and submitted for final consideration at the seventy-
sixth session.
37.
In its comments, the Government notes that the case submitted by the source to the
Committee involves a different time period and that there has since been a change in the
legislation governing Mr. Isherwood’s case, as the Parole Act 2002 came into force in June
2002.
38.
The Government submits that the New Zealand Parole Board is sufficiently
independent, impartial and adequate in procedure to constitute a court within the meaning
of article 9 (4) of the Covenant, even though the Parole Board does not have all of the
attributes of an orthodox, judicial court. The Government refers to the case of Manuel v.
New Zealand, in respect of which the Committee rejected the claim that the Parole Board
did not satisfy the requirements of article 9 (4).8 The Government notes that the three-tier
protection of regular review of detention by the Parole Board, the ability to apply for
habeas corpus and the availability of judicial review of the Parole Board’s decisions (and
the possibility of filing an appeal with the Court of Appeal based on the High Court’s
findings on the review), have been found to be sufficient for the purposes of article 9 (4) in
the Manuel and Rameka decisions.
39.
The Government further argues that article 14 (1) of the Covenant does not apply to
the New Zealand Parole Board. It submits that the “criminal limb” of article 14 (1) does not
apply to parole proceedings because the Parole Board is not involved in the “determination
of a criminal charge”. The Government also submits that the “civil limb” of article 14 (1)
does not apply to the Parole Board because the appearance of a prisoner before the Board
does not involve a determination of his or her rights and obligations in a suit at law.
Moreover, even if the civil limb did apply to parole proceedings, the ability of a prisoner to
seek judicial review of the Parole Board’s decision satisfies the requirement of access to a
competent, independent and impartial tribunal for determination of a “suit at law” under
article 14 (1).
40.
Finally, the Government refers to a number of attributes of the New Zealand Parole
Board indicating that it operates as an independent body. These include the status of the
Parole Board as an independent statutory body, provisions of the Parole Act 2002 regarding
the appointment and removal of Parole Board members, provisions requiring the Chair of
the Parole Board to avoid actual or perceived bias on the part of the Board and the reporting
and recording of Parole Board decisions. The Government also refers to the three-year term
of Parole Board members, noting that such tenure does not compromise the independence
of members given the other guarantees of independence under the Parole Act 2002. The
fact that counsel may only represent prisoners with the leave of the Parole Board does not
affect its independence either.
8 See communications No. 1385/2005, Manuel v. New Zealand, Views adopted on 14 November 2007,
para. 7.3; and No. 1090/2002, Rameka v. New Zealand, Views adopted on 15 December 2003.
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41.
For these reasons, the Government submits that the New Zealand Parole Board is an
independent body and that the detention of Mr. Isherwood is not arbitrary.
Discussion
42.
The Working Group notes that Mr. Isherwood’s case again raises the issue of
preventive detention under New Zealand law, which has previously been the subject of
review by the Working Group (most recently in its opinion No. 21/2015 and in the report
on its visit to New Zealand in April 2014 (see A/HRC/30/36/Add.2, para. 47)), as well as
by the Committee.9
43.
The Working Group takes this opportunity to restate and reaffirm the requirements
stated by the Committee in paragraph 21 of its general comment No. 35 in relation to
preventive detention:
21.
When a criminal sentence includes a punitive period followed by a non-
punitive period intended to protect the safety of other individuals, then once the
punitive term of imprisonment has been served, to avoid arbitrariness, the additional
detention must be justified by compelling reasons arising from the gravity of the
crimes committed and the likelihood of the detainee’s committing similar crimes in
the future. States should only use such detention as a last resort and regular periodic
reviews by an independent body must be assured to decide whether continued
detention is justified. States parties must exercise caution and provide appropriate
guarantees in evaluating future dangers. The conditions in such detention must be
distinct from the conditions for convicted prisoners serving a punitive sentence and
must be aimed at the detainee’s rehabilitation and reintegration into society. If a
prisoner has fully served the sentence imposed at the time of conviction, articles 9
and 15 prohibit a retroactive increase in sentence and a State party may not
circumvent that prohibition by imposing a detention that is equivalent to penal
imprisonment under the label of civil detention.10
44.
The Working Group considers that the arguments advanced by the source do not
disclose a violation of the requirements under international law. Firstly, as recognized by
the Committee, preventive detention does not, in itself, violate international human rights
law, provided that it meets the above requirements.
45.
In the present case, the Working Group considers that there are compelling reasons
arising from the gravity of the crimes committed and the likelihood of the detainee’s
committing similar crimes in the future to justify Mr. Isherwood’s continued preventive
detention. Mr. Isherwood has a significant history of committing violent sexual offences, in
particular offences involving girls under the age of 18. Mr. Isherwood committed the
offences for which he was sentenced to preventive detention within two weeks of his
release from prison, after having been convicted in 1999 for similar offences.
46.
According to information provided by the source, in sentencing Mr. Isherwood to
preventive detention for the offences he committed in July 2003, the High Court judge
referred to the similarities between Mr. Isherwood’s previous and most recent offences and
to the fact that the latter occurred soon after he was released on parole. The judge noted the
harm caused to the community by the offences committed by Mr. Isherwood, the factors
that placed him at risk of reoffending and his failure to address the causes of the offending.
9 See, for example, Rameka v. New Zealand, Dean v. New Zealand and communication No. 1629/2007,
Fardon v. Australia, Views adopted on 18 March 2010.
10 The Working Group reaffirmed these principles during a follow-up visit to Germany in November
2014 (see A/HRC/30/36/Add.1, paras. 25-26).
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The judge considered that Mr. Isherwood’s most recent offences, committed in 2003,
caused serious harm to the community given that they involved the use of drugs to subdue
an 18-year-old woman and the repeated sexual violation of the victim, and that the
underlying motivation for carrying out those acts was to have the victim work as a
prostitute. The judge took into account three reports (of a probation officer, a psychologist
and a psychiatrist), all of which found that the risk of Mr. Isherwood reoffending was very
high, and concluded that Mr. Isherwood was a significant and ongoing risk to the safety of
the community and an enormous risk to young women. The judge referred to the previous
eight-year finite sentence imposed on Mr. Isherwood in 1999, noting that it had failed
dismally given that he reoffended very soon after being released, and concluded that the
only way the community could be protected was through the preventive detention of Mr.
Isherwood.
47.
In its 2014 review of Mr. Isherwood’s circumstances, which was carried out in order
to report to the New Zealand Parole Board, the Department of Corrections noted that Mr.
Isherwood had been subject to 26 proven charges of misconduct between December 2004
and September 2013. While those charges do not appear to have been related to violent
sexual behaviour, they support the view expressed by the psychologist in his report that
rehabilitation in custody should be the focus for Mr. Isherwood. In addition, the
Government notes in its submissions that the Parole Board stated at its first hearing of Mr.
Isherwood’s case in April 2014 that he had “accepted that he had a considerable amount of
work to do to address the causes of his offending”. The source did not challenge the
accuracy of the Government’s restatement of this finding. In April 2014, the Parole Board
held its first parole hearing for Mr. Isherwood and denied parole, noting that he had been
assessed as posing a “very high risk of sexually violent offending”.
48.
In its second parole assessment report, prepared in March 2015, the Department of
Corrections noted that Mr. Isherwood had also been the subject of four incidents (two
relating to searches carried out by drug detection dogs, one relating to returning to a course
and one to speaking in an aggressive manner). Mr. Isherwood received a warning for
speaking in an aggressive manner but no conviction, as he had managed to de-escalate the
situation. Although the incidents were minor compared to the previous sexual offences, it is
not unreasonable for Mr. Isherwood’s conduct in detention to be taken into account in
considering whether he would be able to comply with the law or with any restrictions
placed upon him once released into the community. In April 2015, the New Zealand Parole
Board held its second parole hearing for Mr. Isherwood and denied parole. The updated
psychological assessment noted that Mr. Isherwood’s risk of committing sexually violent
offences continued to be very high.
49.
In concluding that there are compelling reasons to justify Mr. Isherwood’s ongoing
preventive detention, the Working Group has taken into account the very real risk that his
sentence may become indefinite. As the Working Group has previously stated, the
deprivation of liberty on an indefinite basis without an assessment as to the necessity and
proportionality of the purpose of such detention in each individual case, and without review
before a judicial or other independent authority, amounts to arbitrary detention that is
inconsistent with international human rights law.11
11 For example, Working Group opinions No. 54/2015, No. 52/2014 and No. 10/2013. On the
requirements of reasonableness, necessity and proportionality, see also Working Group deliberation
No. 9 concerning the definition and scope of arbitrary deprivation of liberty under customary
international law (see A/HRC/22/44, especially para. 61) and the Committee’s general comment No.
35, para. 12.
A/HRC/WGAD/2016/32
11
50.
The determination of whether the preventive detention imposed in the present case
was based on necessity and proportionality involves weighing the competing interests of
the right to liberty of Mr. Isherwood against the safety and security to which members of
the public are entitled. In considering what limitations on the rights of individuals may be
permitted as “necessary in a democratic society”, the Working Group has found it useful to
refer to jurisprudence of the European Court of Human Rights. Consideration must be
given to the aim of the preventive detention, to whether such detention is legitimate and to
whether preventive detention is needed to achieve the aim. 12 In its submission, the
Government states that Mr. Isherwood is subject to ongoing preventive detention because
“in the interests of public safety it is necessary that he be detained until he is assessed as no
longer posing an undue risk”. The Working Group considers that maintaining public safety
is a legitimate and reasonable aim, particularly in the present case, where the safety of
young women as a vulnerable group and their right not to be subjected to violence must be
taken into account. Moreover, for the reasons outlined in paragraphs 44-47 above, the
Working Group considers that the ongoing detention of Mr. Isherwood is necessary to
protect young women.
51.
At the same time, consideration must be given to the proportionality of the
preventive detention to the Government’s aim of maintaining public safety and protecting
young women. In other words, the Government must demonstrate that this aim could not
have been achieved by means less intrusive than continued detention13 and that preventive
detention is a last resort. Alternatives to imprisonment include supervision and reporting
requirements, residential restrictions and electronic monitoring (e.g. bracelets). In its most
recent assessment of Mr. Isherwood’s case, in March 2015, the Department of Corrections
considered some of those options, including community-based rehabilitative programmes,
Global Positioning System monitoring and conditions restricting Mr. Isherwood’s access to
children. Ultimately, however, the Department considered that, on the basis of Mr.
Isherwood’s past poor compliance, he would be unlikely to comply with any rehabilitative
conditions imposed and did not support his application for parole. The Department did,
however, note that these would be appropriate ways to mitigate Mr. Isherwood’s high risk
of reoffending once he no longer poses an unacceptable risk to the public and is suitable for
release. The source states that there are less restrictive and more humane alternatives to
preventive detention but has not suggested specific options that could be employed in the
present case. On the basis of the information available to it, the Working Group considers
that Mr. Isherwood’s rehabilitation can only be achieved, at this time, through his continued
detention. Ongoing assessments indicate that Mr. Isherwood’s risk of once again
committing violent sexual offences is still very high and, as discussed below, that he has
not completed the necessary drug treatment programme, despite being offered the chance to
do so in another region, which would have reduced his risk profile and allow him to
undergo treatment for sex offending.
52.
In relation to the submission that the risk assessment of Mr. Isherwood was vague,
the Working Group notes that an assessment of the likely danger posed to the community
when a person under preventive detention is released can never be completely certain. That
finding has not led relevant bodies, such as the Committee and the European Court of
Human Rights, to find that preventive detention is arbitrary per se. As the Committee has
noted, a risk assessment involves “a finding of fact on the suspected future behaviour of a
12 See, for instance, Handyside v. the United Kingdom, application No. 5493/72 (7 December 1976),
paras. 42-59. In that case, reference is made to the phrase “necessary in a democratic society”, cited
from art. 10 (2) of the Convention for the Protection of Human Rights and Fundamental Freedoms
(European Convention on Human Rights).
13 See Fardon v. Australia, Communication No. 1629/2007, 10 May 2010, para. 7.4.4.
A/HRC/WGAD/2016/32
12
past offender which may or may not materialize”.14 States parties to the Covenant must
therefore exercise caution and provide appropriate guarantees in evaluating future dangers
relating to those serving sentences in conditions of preventive detention. The Working
Group considers that the Government has provided appropriate guarantees in the present
case. As the Government points out, and the source does not contest, Mr. Isherwood had an
opportunity to, but did not, challenge the risk assessment made in relation to his case by
making submissions before the Parole Board, by internal review of the Parole Board
decision (by the Chair or Panel Convenor of the Board) or by way of judicial review.
53.
Furthermore, information submitted by the source, including the report prepared by
the Department of Corrections in relation to the New Zealand Parole Board’s most recent
hearing of Mr. Isherwood’s case in April 2015, indicates that Mr. Isherwood’s case was
reviewed in 2014 and 2015 (in other words, that it has been kept under regular annual
review) since he completed the minimum period of imprisonment without parole. In
Rameka v. New Zealand, the Committee was of the view that the authors failed to show that
compulsory annual reviews of preventive detention by the Parole Board, which are subject
to judicial review, were insufficient to meet international standards (see para. 7.3).
54.
The Working Group wishes to emphasize that the above findings are specific to the
facts of the present case and do not rule out the possibility that preventive detention may be
arbitrary in other circumstances.15 On the particular facts of the present case, the Working
Group is satisfied that sufficient safeguards are in place at this stage to ensure that the
justification for the preventive detention still exists, including regular periodic review of
Mr. Isherwood’s risk profile. The Working Group stresses that the present case should not
be understood as diminishing the right to liberty and that each case must be considered in
its own context.
55.
In that regard, the Working Group considers that the facts of Mr. Isherwood’s case
can be distinguished from those of other recent cases involving preventive detention, in
particular the case of A v. New Zealand (see Opinion No. 21/2015). In that case, a man
suffering from serious intellectual disabilities was subjected to preventive detention with no
plan for his integration or rehabilitation, and the Working Group considered that his
detention was arbitrary. In the present case, Mr. Isherwood is being offered relevant
treatment options intended to prepare him for release into the community. This treatment
was already being provided to Mr. Isherwood in January 2013, when he first joined the
drug treatment programme, over a year before he completed his minimum period of
imprisonment without parole. He was also placed in the programme a second time in
February 2014. Information provided by the Government and the most recent Department
of Corrections report indicate that Mr. Isherwood is being considered for a third attempt.
Once he has completed the programme, Mr. Isherwood will be able to complete a special
treatment programme for sex offenders to assist his reintegration into the community.
Furthermore, as the source acknowledges, Mr. Isherwood has been offered and has
completed other relevant programmes, such as a four-session programme dealing with
alcohol and other drugs Brief Support Programme in 2014. Finally, the most recent report
from the Department of Corrections in March 2015 contains a “rehabilitative needs
summary” and a “reintegrative needs summary” for Mr. Isherwood with specific start and
14 See Fardon v. Australia, para. 7.4.4.
15 For example, the source noted that the Parole Amendment Act 2015 allows the New Zealand Parole
Board to postpone consideration of parole for up to five years. These provisions may violate the
requirement for regular periodic reviews to determine whether the justification for preventive
detention is still compelling, and may result in the arbitrary deprivation of liberty. There is no
indication, however, that these provisions have been applied to Mr. Isherwood and it is not necessary
for the Working Group to determine this point in the present case.
A/HRC/WGAD/2016/32
13
end dates for working with his case manager on areas such as pre-release treatment and
relapse prevention, as well as post-release housing, health, well-being, lifestyle, work and
education, and financial support.16
56.
The Working Group considers that Mr. Isherwood was offered a fair chance of
release by participating in treatment before his eligibility for parole was first considered by
the New Zealand Parole Board in April 2014 and that he continues to receive relevant
treatment. Even though Mr. Isherwood does not appear to be subject to different material
conditions from those of prisoners serving finite sentences (e.g. different accommodation or
living conditions),17 the conditions of Mr. Isherwood’s preventive detention are sufficiently
distinct from a punitive prison sentence because opportunities are being provided to him to
access psychological and other care aimed at his rehabilitation and release. In M. v.
Germany, the European Court of Human Rights stated, in relation to the level of care that
must be provided to inmates in preventive detention and in order to limit the duration of
their detention to what is strictly necessary, that “persons subject to preventive detention
orders must be afforded such support and care as part of a genuine attempt to reduce the
risk that they will reoffend, thus serving the purpose of crime prevention and making their
release possible”.
57.
The Working Group notes that attempts to provide Mr. Isherwood with care have
not yet been successful in achieving his rehabilitation owing to factors such as Mr.
Isherwood’s change of medication when he was attempting to participate in the drug
treatment programme on two previous occasions. The lack of success so far does not,
however, negate what appear to be genuine attempts to address Mr. Isherwood’s multiple
treatment needs (for pain, anxiety, drug addiction and sex offending) within available
resources and with a view to making his rehabilitation and release possible in accordance
with article 10 (3) of the Covenant. In addition, the Working Group finds no violation of
article 26 of the Covenant in the present case, as Mr. Isherwood is being offered relevant
care and there is no basis to conclude that he has been discriminated against vis-à-vis
prisoners serving a finite sentence in terms of access to treatment options.
58.
A further distinguishing factor in the present case is Mr. Isherwood’s failure to
participate in his rehabilitation when a multidisciplinary team (composed of case managers,
offender health staff and psychologists) overseeing his situation recommended in
September 2014 that he complete the six-month drug treatment programme in another
region. The Working Group recognizes that it is the duty of the Government to provide the
assistance necessary for Mr. Isherwood to be released as soon as possible, but it is also
incumbent upon Mr. Isherwood to take every opportunity provided by the Government to
carry out rehabilitative activities in preparation for re-entry into the community. While Mr.
Isherwood has the right to refuse treatment and cannot be forced to participate in
rehabilitative activities, the Working Group considers that he cannot claim that he has not
had a sufficient chance to reduce his risk of reoffending if he did not make every effort to
participate in that treatment, even though it would have taken him away from his social
support network. According to his case managers, Mr. Isherwood would have benefited
from completing the programme in a more constructive environment in another region.18 In
16 New Zealand Department of Corrections, Parole Assessment Report to the New Zealand Parole Board,
23 March 2015, pp. 3-5.
17 The Committee did not find that the material conditions of preventive detention in New Zealand
amounted to arbitrary detention in the Rameka or Dean cases.
18 In its reply to the source’s submissions, the Government stated that the team overseeing Mr.
Isherwood had suggested that Mr. Isherwood complete the programme in another region, and that this
“would provide a more constructive environment that might lessen some of the behavioural issues and
disruptive tendencies associated with Mr. Isherwood maintaining his profile at Christchurch Men’s
A/HRC/WGAD/2016/32
14
paragraph 7.5 of Dean v. New Zealand, the Committee found that the author contributed to
the delay in his release by choosing not to attend certain rehabilitation programmes, which
would have been an important preliminary step in developing his release plan, and thus
could not show a violation of articles 9 (1) and 10 (3) of the Covenant. Similarly, Mr.
Isherwood chose not to attend a rehabilitation programme that would have been an
important preliminary step in addressing the causes of his offending and preparing him for
reintegration into society.19
59.
The Working Group is grateful for the extensive arguments advanced by the source
and the Government regarding the independence of the New Zealand Parole Board. As the
source notes in its original submission to the Working Group, this issue is the subject of a
separate communication to the Committee, which has yet to be determined. The Working
Group has come to its own conclusion on this issue, however, because a preventive
detention regime will only meet the requirements set down by the Committee in its general
comment No. 35 if regular periodic reviews are conducted by an independent body to
determine whether continued detention is justified.
60.
The Working Group has taken into consideration submissions relating to the
possibility of political interference with the New Zealand Parole Board’s operations, given
the three-year terms for members and the potential appearance of political influence in
some appointments. The Working Group notes that a three-year term with the possibility of
reappointment is not unusual in the parole context, as indicated by the legislative provisions
cited in the Government’s submission concerning the three-year terms of various parole
boards in several different countries. Moreover, the Working Group considers that the
three-year terms present no significant challenge to the independence of Parole Board
members, given other statutory guarantees under the Parole Act 2002 that require the Parole
Board to function with a high degree of independence and transparency. Among the
statutory guarantees are the following:
(a)
Parole Board members are appointed by the Governor General on the
recommendation of the Attorney General. Before recommending the appointment of a
member, the Attorney General must be satisfied that the person holds appropriate
qualifications (sect. 111);
(b)
Parole Board members can only be removed for just cause by the Governor
General, on the recommendation of the Attorney General (sect. 121 (2));
(c)
The Chair must be a former or current judge of either the High Court or the
District Court (sect.112). The Parole Board must include at least nine panel convenors, who
must be former or current District Court judges or barristers or solicitors who have held a
practising certificate for at least seven years (sects. 111 (2) (b) and 114 (1));
(d)
The Parole Board is required to act consistently with the principles of natural
justice: the Chair must ensure that a member with actual or perceived bias for or against an
offender is not involved in decision-making regarding that person (sect.118 (2)) and
decisions must be in writing and include reasons (sect. 116 (3));
Prison”. The March 2015 Department of Corrections report to the New Zealand Parole Board noted
that Mr. Isherwood has a well-established connection with a gang that “appears to feed into his
antisocial conduct in prison” (p. 3).
19 The European Court of Human Rights reached a similar conclusion in Grosskopf v. Germany,
application No. 24478/03, 21 October 2010, para. 52. In that case, the person subject to preventive
detention had refused to undergo any therapy that might have lowered the risk of him committing
further serious property offences in future.
A/HRC/WGAD/2016/32
15
(e)
The Parole Board develops and revises its own policies (sect.109 (2) (a)) and
regulates its own procedures (sect. 117A);
(f)
An offender who is the subject of a Parole Board decision can apply for
internal review of the decision by the Chair or a panel convenor (sect. 67). The Chair must
ensure that no person involved in a parole hearing is involved in the review of a decision of
that panel (sect. 118 (1)). The decisions of the Parole Board are also subject to judicial
review.
61.
Having considered all the submissions made in the present case, the Working Group
is satisfied that the above statutory guarantees are sufficient to allow the New Zealand
Parole Board to meet the standard of independence set out in the Committee’s requirements
for preventive detention regimes. The Committee reached the same conclusion regarding
the independence of the Parole Board in the Rameka and Manuel cases cited above.
62.
Finally, given the serious implications for Mr. Isherwood’s right to liberty, the
Working Group has considered whether his preventive detention meets the principle of
legality required by the rule of law. The principle of legality requires that no crime or
punishment exist without a legal ground (or nullum crimen, nulla poena sine lege), as
enshrined in article 11 (2) of the Universal Declaration of Human Rights and article 15 (1)
of the Covenant. 20 It has been argued in some of the dissenting views expressed by
members of the Committee that inmates in preventive detention are being sentenced and
punished for what they might do when released rather than for a crime that has been
committed, contrary to article 15 (1) of the Covenant, which only permits the
criminalization of past acts.21 That argument means, in effect, that preventive detention is
arbitrary in itself, as it will always be based on an assessment of the likelihood of
reoffending for the purposes of protecting the public.
63.
The Working Group notes, however, that this position is not the majority view of the
Committee, as demonstrated in the Rameka and Dean cases, for example, nor is it
consistent with the jurisprudence of the European Court of Human Rights. In the respectful
view of the Working Group, this understanding of preventive detention does not allow for
an appropriate balance to be struck between the human rights of the detainee and those of
other persons who form part of the community in exceptional cases involving offenders for
whom past finite sentences have manifestly failed to achieve the aims of the sentences
imposed. In addition, the Working Group notes that the period of preventive detention, if
genuinely aimed at the detainee’s rehabilitation and reintegration into society, is not
punitive and is intended to protect society, in particular young women. Preventive detention
therefore does not fall under the scope of article 15 (1) of the Covenant. For these reasons,
the Working Group finds that there has been no violation of the principle of legality in Mr.
Isherwood’s case. Similarly, Mr. Isherwood continues to serve the sentence that was
imposed at the time of his conviction in 2004, including the preventive element. He has not
been charged with any additional offence that would violate his right to the presumption of
innocence under article 14 (2) of the Covenant, nor has he been subjected to double
punishment under article 14 (7) of the Covenant.
20 See also Working Group opinions No. 10/2013, para. 37, and No. 56/2012.
21 See, for example, the dissenting view of Rajsoomer Lallah in Rameka v. New Zealand, annex.
A/HRC/WGAD/2016/32
16
Disposition
64.
In the light of the foregoing, the Working Group finds, on the basis of paragraph 17
(b) of its methods of work, that the present case is not a case of arbitrary detention.
[Adopted on 24 August 2016]