Editorial: Phillip John Smith has rights, but so do the people who run prisons

Phillip John Smith.
DAVID WHITE/FAIRFAX NZ

Phillip John Smith.

OPINION: Phillip John Smith's fight to wear a wig in jail strikes many people as not only absurd but offensive. Smith is a monster who sexually abused a child when he was 17 and returned at the age of 21 to kill the child's father.

This man, who notoriously escaped to Brazil before being recaptured and returned, now dares to assert his "right" to wear a toupee. But Smith, like all other human beings, does have rights. That's the whole point about rights. You don't just lose them because you are wicked.

In this case, the question is whether he has a "right" to wear the toupee in prison. Smith argued that he needed the wig because he felt humiliated by his baldness. He hated appearing before others in his natural bald state. The prison accepted this and in 2012 allowed him to wear the wig.

But since then he has escaped and been recaptured, and  the prison changed its tune. In denying him the toupee, unfortunately, the prison official didn't really set out reasons for what might seem obviously an extra punishment for absconding.

Now Smith has taken the case to court, arguing that the prison's decision was a denial of his right to freedom of expression. Justice Edwin Wylie has upheld the claim, saying that his right to freedom of expression was denied. But, crucially, he has sent the matter back to Corrections for further consideration.

The judge's decision was genuinely wise and sensible. It upholds a human right but it clearly leaves the way open for the prison authorities to continue to deny Smith his wig. What they have to do is set out the reasons they took the decision.

The prison officer who made the decision later set out his reasons in an affidavit, and some of these seem quite reasonable. Smith came back from Brazil apparently under the influence of drugs. The prison suspected he had hidden a pill in his hairpiece; Smith said he had actually hidden it in his sock.

The point here is that Smith's wig could be used to hide contraband and the prison can therefore plausibly claim to have a good reason for refusing to let him wear it. The prison has offered some other reasons, including the idea that other prisoners might use the wig in attempting to escape. These reasons seem less plausible.

But the important point about Justice Wylie's decision is that it takes Smith's argument about rights seriously while acknowledging the rights of the prison authorities to keep order in the jail and prevent wrongdoing by the prisoners.

It also usefully reminds the prison officials that they, like everyone else, must observe the human rights law. Even the most vicious prisoners have rights, and the courts must uphold them.

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That is why, for example, the courts have correctly ruled in other cases that prisoners have a right not to suffer excessive use of solitary confinement.

If prisons don't have to recognise prisoners' rights, we are on a  slippery slope to all kinds of oppression. Civilised societies will resist this.

At the same time, this decision could allow a compromise that will stop Smith wearing his wig. Then both justice and common-sense would be served.

 - Stuff

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