Preventive detention – unlawful arbitrary detention

Dr Anthony (tony) Ellis1

1Blackstone Chambers, Wellington, New Zealand

Miller and Carroll v New Zealand (April 2018) was a landmark case where the UN Human Rights Committee found NZ in breach of its international obligations, particularly as to the length two preventive detainees were held. Since 2001 in Mr Miller’s case (17 years), and 1998 (20 years) in Mr Carroll’s case, the prisoners had been held arbitrarily as despite the effective non-minimum parole period being 10 years, they were detained in punitive conditions since those dates, despite the reasons for their detention being now purely for public protection purposes. Holding prisoners detained for protection not punitive purposes has considerable policy implications, which the NZ Government are considering. This has potential effects for all prisoners with sentences over two years.

The Committee also found any detention must be proportionate, and the longer the detention the greater the risk would need to be, the unavailability of less intrusive methods to rehabilitate short of detention needed to be demonstrated and were not.  The case built on earlier cases including Fardon v Australia (2010), and the inexact nature of psychiatric and psychological reporting of risk. Additional findings were that Mr Carroll’s recall in 2004 for a further 14 years was also an arbitrary detention. The inability to have a court review on the merits rather than on procedural issues of NZ Parole Board decisions was also found to be a breach of NZ’s international obligations. The Minister of Justice giving the initial response of the NZ Government was encouraging. The Government were asked to respond in 180 days compensate Mr Miller, and Mr Carroll, and prevent future violations


Dr Tony Ellis is a New Zealand Human Rights Lawyer. He holds law degrees from Australia, England and NZ. Tony was President of the NZ Council of Civil Liberties for over 8 years. His caseload includes murder appeals, public law cases, and cases on behalf of intellectually disabled clients. He current caseload includes an extradition to China for homicide involving a potential death penalty, and torture, and a woman who received 300 ECT treatments which she alleges is torture. He has won (6) cases before UN Human Rights Bodies, and is the only NZ lawyer to have won any.

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