Physical Privacy in Prison: Why dignity is an inalienable right and how the intrusion tort can protect it

Abstract

People incarcerated in psychiatric segregation units in New Zealand prisons are subject to constant CCTV surveillance. Privacy screening in these psychiatric segregation units is prohibited by the Corrections Regulations 2005; therefore, people incarcerated there are always subject to surveillance – even while using the toilet, shower, and undressing. Research shows that this kind of surveillance is detrimental to mental health and well-being, and in many cases leads to long-lasting harm and poor mental health outcomes. The tort of intrusion upon seclusion is designed to remedy this kind of harm arising from unauthorised intrusions upon physical privacy where there is a reasonable expectation of privacy. While some privacy normally afforded in society is justifiably curtailed in prison, the privacy of one’s ablutions is inherently connected to human dignity and thus should be protected. The Department of Corrections is under a statutory mandate to carry out safe custodial management; however, rehabilitation is a complementary statutory objective which necessitates the preservation of human dignity. Accordingly, competing interests in safety and privacy must be re-balanced. This paper argues that the tort of intrusion upon seclusion should be extended to capture conduct that is prima facie authorised, but ultra vires in light of the Bill of Rights Act 1990. On this basis, incarcerated people subjected to intrusions into their most private moments should be able to sue the Department of Corrections using the tort of intrusion.