Bell v Chief Executive of the Department of Corrections
[2021] NZHC 413
•8 March 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-000112
[2021] NZHC 413
UNDER the Judicial Review Procedure Act 2016 and New Zealand Bill of Rights Act 1990 IN THE MATTER
of an application for judicial review
BETWEEN
WILLIAM DWANE BELL
Applicant
AND
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 2 and 3 December 2020 Appearances:
Applicant in person
H Carrad and C Wrightson for the Respondent
H M Z Lanham and J K Grimmer as counsel assistingJudgment:
8 March 2021
Reissued:
11 March 2021
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Monday, 8 March 2021 at 2:00 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors: Crown Law (H Carrad and C Wrightson), Wellington Copy to: Applicant
BELL v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021] NZHC 413 [8 March 2021]
[1] This is an application for judicial review. The applicant, William Dwane Bell, is a prisoner in Auckland Prison. He challenges the decision of the respondent, the Chief Executive of the Department of Corrections, to increase his security classification from low medium to maximum following receipt of information, including from another prisoner that Mr Bell was planning to take a female staff member hostage as part of an escape attempt.
[2] Mr Bell raises eight causes of action alleging various breaches of the New Zealand Bill of Rights Act 1990 (NZBORA) and errors of law reviewable under the Judicial Review Procedure Act 2016. The respondent, in opposing the application, maintains that the decision to reclassify Mr Bell and the process by which that decision was reached were fair, lawful, reasonable and proportionate in all the circumstances. The respondent further submits that the courts should be slow to interfere in operational prison decision-making, especially where it involves assessment of security risks.
[3] Mr Bell is unrepresented by counsel and appeared in person. By a minute dated 20 August 2020, Palmer J appointed Ms Lanham to “assist the Court by providing an independent view of the legal and evidential issues that arise. The role of counsel will be to assist the Court, not to be Mr Bell’s counsel.”1
Security classification regime
General background
[4] By way of context, a prisoner’s assessed level of security risk dictates the degree of freedom the prisoner has within the prison and his or her access to services and opportunities. This Court has previously recognised that “[s]ecurity classification decisions have a major impact on the day to day lives of inmates”.2
1 Bell v Chief Executive of the Department of Corrections HC Auckland CIV-2020-404-112, 20 August 2020 (Minute No 4) at [1].
2 Genge v Chief Executive of the Department of Corrections [2018] NZHC 1302 at [33]. See also
Smith v Attorney-General [2016] NZHC 136, [2017] NZAR 331 at [8].
[5] Solomon Tuato Alosio Nui, the former Residential Manager of Unit 13 at Auckland Prison where Mr Bell was housed, gives evidence for the respondent as to the effect that different security classifications have on prisoners:
6. At Maximum security, prisoners are unlocked from their cells for one hour a day. At any time when they are moved, they are escorted by three staff and are regularly searched. For interviews, e.g. with a case manager, they are supervised by three staff. If there are privacy issues associated with the interview it will be in a non-contact booth but supervised from outside by three staff. Maximum security prisoners do not have jobs.
7. At High security, prisoners have more time out of their cells. Prisoners in Unit 13 generally have two unlock sessions, one in the morning and one in the afternoon. Low Medium and High security prisoners have access to both unlock sessions. High security prisoners are generally supervised with two staff at any one time and are unable to be left unsupervised. For interviews, High security prisoners are supervised by two staff, but staff can supervise from outside the room and interviews involving privacy issues do not need to be in a non-contact booth. There is a risk assessment completed about whether they can move alone, meaning whether a staff member must accompany the prisoner down a corridor or whether they can be sent and received by officers at each end of the corridor. High security prisoners can have certain jobs such as preparing meals in the kitchen.
8. At Low Medium security, prisoners can be supervised by one officer and can be left unsupervised for short periods, for example, the meal delivery to the units in the main building are done unsupervised or prisoners can be left alone to clean in an area unsupervised while the officer does “rounds” to do checks (meaning prisoners are left in areas and instead of standing and watching them the officer wanders around the areas checking on them). They can move between areas of the prison without being escorted by a prison officer. They can hold a bigger variety of jobs including serving meals and coffees in the staff canteen as well as running the transactions.
Corrections Act 2004
[6] Security classification reviews are governed by the Corrections Act 2004. Section 5 of that Act provides that the purpose of the corrections system is to “improve public safety and contribute to the maintenance of a just society”. Section 6 then provides guiding principles for persons exercising powers and duties under the Act:
(a) the maintenance of public safety is the paramount consideration in decisions about the management of persons under control or supervision:
…
(f)the corrections system must ensure the fair treatment of persons under control or supervision by—
(i)providing those persons with information about the rules, obligations, and entitlements that affect them; and
(ii)ensuring that decisions about those persons are taken in a fair and reasonable way that those persons have access to an effective complaints procedure:
(g)sentences and orders must not be administered more restrictively than is reasonably necessary to ensure the maintenance of the law and the safety of the public, corrections staff, and persons under control or supervision …
[7]As to the security classification regime, s 47 provides that:
(1)The chief executive must ensure that every prisoner who is subject to a sentence of imprisonment for a term exceeding 3 months is assigned a security classification that reflects the level of risk posed by that prisoner while inside or outside prison, including the risk of escape and the risk that escape would pose to the public.
…
(3)The security classification of each prisoner must —
(a)be undertaken and reviewed in the prescribed manner; and
(b)be reviewed—
(i)at least once every 6 months, unless an exemption from this requirement is prescribed [time-based review]; or
(ii)whenever there is a significant change in the prisoner’s circumstances [event-based review].
(4)For the purposes of subsection (3)(b)(ii), there is a significant change in a prisoner’s circumstances if—
…
(d) in the opinion of the prison manager, there is an event, or a change in the prisoner’s circumstances or behaviour, that indicates that the prisoner’s present security classification may be inappropriate.
[8]Section 48 further provides that:
(1)If a security classification is assigned to a prisoner, or the security classification assigned to a prisoner is changed, the manager of the prison in which the prisoner is detained must ensure that the prisoner is promptly informed in writing of—
(a)that classification or, as the case may be, that changed classification; and
(b)the reasons for the assignment of that classification or, as the case may be, that changed classification.
(2)A prisoner who is dissatisfied with the security classification for the time being assigned to that prisoner may apply to the chief executive for a reconsideration of that classification, and the chief executive must ensure that the security classification is reconsidered promptly in the prescribed manner.
Corrections Regulations 2005
[9] Part 5 of the Corrections Regulations 2005 is also relevant to the security classification of prisoners. Regulation 44(1) sets out the general principle that a prisoner should be assigned the lowest level of security classification at which the prisoner can safely and securely be managed given the assessment of the level of risk posed by that prisoner. Regulation 44(2) provides that a prisoner who has been assigned a security classification must be placed and managed within a facility and regime that is consistent with his or her security classification, to the extent that is practicable.
[10] Regulation 45 then provides mandatory considerations when determining the level of risk posed by a prisoner under s 47(1) of the Corrections Act:
(a)the seriousness of the offence for which the prisoner is serving a sentence of imprisonment or, in the case of a prisoner serving sentences of imprisonment for 2 or more offences, the seriousness of the most serious of those offences:
(b)the duration of the sentence or sentences being served by the prisoner:
(c)any history of escapes or attempted escapes from custody by the prisoner:
(d)any history of violent behaviour by the prisoner:
(e)any history of mental ill health:
(f)whether the prisoner is awaiting trial or sentencing on any further charges and, if so, the nature of those charges:
(g)any additionally matter specified in writing by the chief executive as a matter to be taken into account in conducting a risk assessment under section 47(1) of the Act.
[11] Regulation 48 specifies additional requirements for security classification reviews conducted under s 47(3) of the Corrections Act. A reviewer must also take into account:
(a)the duration of the period that the prisoner has left to serve under his or her sentence:
(b)the current state of the prisoner’s mental health:
(c)whether the prisoner has co-operated with staff members while serving his or her sentence:
(d)whether the prisoner has engaged in any misconduct while serving his or her sentence o has been involved in any reported incidents:
(e)whether the prisoner has—
(i)displayed motivation to achieve the objectives set out in his or her management plan; and
(ii)achieved those objectives.
(f)any additional matter specified in writing by the chief executive as a matter to be taken into account in conducting a review of a security classification under s 47(3) of the Act.
[12]Regulation 49 provides that a security classification review is complete once:
(a)a risk assessment has been undertaken under section 47(1) of the Act taking into account the matters specified in regulation 45 and regulation 48; and
(b)the staff member undertaking the risk assessment has notified the chief executive or prison manager that in his or her opinion, either the existing security classification ought to be retained or another security classification recommended by that staff member ought to be assigned; and
(c)the chief executive or prison manager has decided whether the security classification recommended under paragraph (b) (whether the existing security classification or another) is appropriate and either—
(i)has approved the recommended classification as the security classification assigned to the prisoner; or
(ii)has assigned a security classification to the prisoner that is different from the recommended classification.
[13] Regulation 52 sets out that any person undertaking the assignment, review or reconsideration of a prisoner’s classification must:
(a)be given access to the prisoner’s file kept by the department; and
(b)take into account any relevant information in any form that is readily available to the person; and
(c)record in writing the person’s recommendation or decision and the reasons for it.
The Guidelines — Prison Operations Manual
[14] Finally, the respondent says the security classification levels are specified in guidelines issued by the Chief Executive of the Department of Corrections in the Prison Operations Manual (Guidelines). The security classification process manages internal and external risk, which are defined as follows:
Internal risk is “the risk posed by a prisoner to the safety, security and good order of the prison while the prisoner is inside the prison secure perimeter. It indicates the risk of escape posed by the prisoner.”
External risk is the risk posed when outside the prison perimeter where authorised or as a result of escape.
[15] The Guidelines explain that the procedures for responding to a sudden increase in risk of escape depend on the prisoner’s risk classification and the circumstances motivating the risk of escape. Where a prisoner has a low level of external risk and where increased risk is temporary and related to external circumstances, the risk may be managed without recourse to a security classification review. By contrast, where a prisoner has a high level of external risk, increased risk of escape is more properly managed by review of the prisoner’s security classification.
[16] Three officers are involved in the security classification assessment process: an assessing/initiating officer, a recommending officer and an approving officer. To assist the review process and ensure consistency, a reviewer assigns points to each of the relevant matters. The accumulated points will suggest one of the five security classifications: maximum, high, low-medium, low or minimum. The classification resulting from the score can, however, be overridden if the officer believes the security classification is incorrect as a result of additional information not being accounted for in the assessment process. Clear reasons must be given for the override.
Factual background
[17] Mr Bell is currently serving a term of life imprisonment for murder with a minimum non-parole period of 30 years. He is in custody at Auckland Prison (Paremoremo), a maximum-security prison. In 2016, he was classified as a low- medium security risk. He maintained this classification until August 2019. The re- classification occurred as a result of four different events.
[18] The first incident occurred on March 2019, when prison staff found a notebook belonging to Mr Bell in the prison kitchen where he worked. The respondent says the notebook contained records of the registration number of trucks making deliveries to the prison, names and addresses of former prisoners, bank account details of another prisoner who had escaped, and reference to a remote-controlled helicopter. This information led prison staff to conclude that Mr Bell may be planning an escape. Mr Bell was subsequently stood down from his job in the prison kitchen. The respondent notes that an oversight meant that no event-based security classification review was completed at the time. Mr Bell explains that he kept a notebook as he takes comfort in writing in it and that he “imagine[s] things to entertain [himself] and make prison life just a tad more bearable”. As to the registration numbers, those were for trucks that delivered food to the kitchen, so he could identify them. As to the remote-controlled helicopter, he says, the “helicopter would face some difficulties ferrying me out through the mesh roof … I am 130kgs”. Ms Lanham observes that it is difficult to see how these disparate notebook entries amount to evidence of an escape plan, especially in the absence of further investigation.
[19] The second incident occurred on 27 April 2019 when prison staff received an anonymous letter alleging that Mr Bell was looking to obtain cleaning products/chemicals from the kitchen with the intention of using them to poison others in the unit or staff. The information was not confirmed by other sources and there is no evidence of Mr Bell being in possession of such chemicals or prisoners delivering such chemicals to him.
[20] On 3 July 2019, before the third incident occurred, a time-based security classification review was initiated for Mr Bell. While the matter was initiated in
July 2019, the actual assessment only took place on 2 August 2019. Based on the assessment, it was recommended that Mr Bell be classified as low-medium. The approving officer approved the recommendation of low-medium.
[21] Due to an oversight, however, the time-based review did not take into account the intelligence received about the risk of escape and/or harm to others arising from the first and second incidents. Once this omission became apparent, an event-based review was initiated for Mr Bell on 6 August 2019. In that event-based review, the preliminary classification of low-medium was overridden to high in response to the first and second incidents. The respondent did not consider that the concerns raised by those incidents (March and April 2019) were stale.
[22] The third and fourth incidents occurred in August 2019, when an anonymous informant called the Crime Stoppers 0800 number claiming that Mr Bell was planning to take a female staff member hostage in the prison laundry where Mr Bell was working. The informant also alleged that Mr Bell was passing drugs and notes through his position in the laundry and was asking other prisoners for shanks. Prison staff reviewed CCTV footage. It showed Mr Bell removed something from his pants and putting it in an envelope before passing it to another prisoner who, according to the respondent, is known to make weapons. The respondent considered the risk of Mr Bell taking a staff member hostage real and Mr Bell’s employment at the laundry was terminated. The female prison staff were also directed not to work in Mr Bell’s unit.
[23]The informant was subsequently identified as a fellow prisoner.
[24] In a note dated 27 August 2019, Peter Phelan, the former Reception and Movements Manager at Auckland Prison, queried the credibility of the informant, but nevertheless recommended that Mr Bell be upgraded to the maximum security classification.
[25] In a memorandum dated 25 October 2019 and prepared for the application for reconsideration filed by Mr Bell after his upgrade to the maximum classification, the Senior Adviser to the Acting National Commissioner recorded:
26. The Senior Adviser also specifically queried others’ views on the validity of the anonymous information received from another person in our care regarding Mr Bell’s plans to take a staff member hostage. They noted that, while the informant can at times be unreliable in their claims, they have in the past also provided reliable information to the Department about other events.
[26] As to the passing of the envelope, Mr Bell explains that he provided the prisoner with a phone number and that passing notes was common. Ms Lanham observes that no contraband items were found following a search.
[27] As a consequence of the allegations forming the third and fourth incidents, a further event-based review was initiated on 26 August 2019. The assessor proposed an override of Mr Bell’s high security classification to a maximum security classification based on “recent incidents. One involving breaches of prison rules, and the other a serious safety concern for the safety and well-being of staff.” The acting Custodial Systems Manager, Mr Phelan, ultimately supported the maximum security classification, saying:
Bell has been the subject of an allegation via a confidential Crimestopper disclosure, from another prisoner claiming that BELL plans to take a female staff hostage. Further CCTV evidence Is BELL was observed breaching security putting [a] envelope? Into another prisoners cell. Given his high profile and offending history and the information provided, an event review of his classification is justified. While he clearly warrants “High” security classification and retention in his current unit. He should be removed from his employment outside his unit. Based on information regards the individual behind the allegation? the CCTV evidence on its own, it is difficult to support overriding Bell to Maximum security classification. However, from a public safety perspective and our reputational risk he is considered one of our most dangerous prisoners and should always be regarded as such, therefore Maximum security is supported.
[28] On 13 September 2019, Mr Bell applied for reconsideration of the increase of his security classification to maximum. In his application, he challenged some of the scores assigned and requested that his classification “be replaced back to Low Medium or High Medium”. The Senior Adviser to the Acting National Commissioner prepared a report and recommendations. He concluded that four questions had been incorrectly scored but the new score did not change the preliminary classification of low-medium.
[29] Turning to review the override decision, the Senior Adviser considered the nature and source of the allegations, spoke to others about them (who noted that the
informant could be unreliable but had also provided reliable information in the past), and discussed the override decision with the Residential Manager overseeing Mr Bell’s management and the Regional Intelligence Manager in the Northern Region. Both advised that they strongly considered Mr Bell to be a significant risk of escape or harm to staff. The Senior Adviser also noted that Corrections had been able to successfully manage Mr Bell at a low-medium or high security classification by housing him in a high security unit and maintaining close oversight. After considering the Senior Adviser’s report and recommendations, Andrew Milne, the Acting National Commissioner, decided that Mr Bell could safely be managed at high security. On 29 October 2019, Mr Milne wrote to Mr Bell explaining his reconsideration and decrease to high security. Mr Bell was reclassified back to high security on 6 November 2019. Following a time-based review on 1 January 2020, Mr Bell’s security classification was further decreased to low-medium.
Causes of action
[30] Mr Bell pleads eight causes of action in judicial review and under the NZBORA:3
Discrimination:
(a)First, the decision was in breach of s 19 of the NZBORA, which provides that everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993. He says the Corrections officers discriminated against him on the basis of unconscious bias against his “Maori heritage and criminal offending”, and “Corrections have not actively sought to rehabilitate Mr Bell or even provide him with the tools and support necessary to address his emotional and intellectual difficulties.”
Human dignity:
3 Given the overlap in part as to the law and facts, I have adopted the grouping/categorising of the eight causes of action as suggested by the counsel assisting as amici curiae.
(b)Secondly, the decision was in breach of s 23(5) of the NZBORA, which provides that everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person. Mr Bell says s 23(5) was breached by the arbitrary imposition of restrictions against him. He says he was “subjected to three separate security classification reviews within a one month period despite no marked change in his circumstances, behaviour or actual risk. It was based on a historic allegation (notebook) and an unsubstantiated one (hostage), which resulted in an arbitrary increase”.
Procedural fairness/natural justice
(c)Thirdly, the decision was in breach of s 27 of the NZBORA, which provides that every person has the right to the observance of the principles of natural justice by any public authority which has the power to make a determination in respect of that person’s rights, obligations or interests protected or recognised by law. Mr Bell says he should have been heard before his security classification was increased. He says “[t]he review process is not the only tool available to officers for the management of prisoners … There are other management tools in the Corrections’ arsenal available for staff to mitigate any perceived risk. A simple dialogue between the prisoner and an experienced staff member … could have ascertained the veracity of the perceived risk.”
(d)Fourthly, the decision was in breach of s 6(1)(f)(ii) of the Corrections Act, which provides that the corrections system must ensure the fair treatment of persons under control or supervision by ensuring that decisions about those persons are taken in a fair and reasonable way and that they have access to an effective complaints procedure. Mr Bell says the allegations about his plan to take a female staff member hostage were made by a prisoner known to be vexatious, the Corrections staff did not undertake due diligence, and the complaints process was inefficient. He further says that “the decision to kickstart
the Maximum security review was unfair, and unreasonable, in the circumstances, because no other options to mitigate those risks were evidently explored. … The review, as opposed to being a last resort, was utilised as the first and only option.”
Error of law
(e)Fifthly, there was an error of law in that the decision-maker failed to consider relevant considerations. Mr Bell says the following should have been taken into account: the veracity of the allegations; whether the complainant was credible; whether the nature of the allegations was credible in the maximum security prison context; whether the decision was overly restrictive; whether other management tools were available; and whether the allegations were serious enough to warrant a misconduct investigation to ensure transparency and natural justice.
(f)Sixthly, there was an error of law in that the decision-maker took into account irrelevant considerations. He says the fact that he was a high- profile prisoner is irrelevant: “Infamy is an irrelevant factor”. Further, he says the decision-maker’s consideration of the consequence of Mr Bell’s escape and the detriment to Corrections’ reputation and the safety of the community is irrelevant because he was already held in the maximum security wing of the maximum security prison. Mr Bell says the contents of the notebook are also irrelevant due to the “failure to properly investigate the incident to ascertain the truth of the matter”.
(g)Seventhly, there was an error of law in that the decision-maker acted unreasonably. Mr Bell says the decision to reclassify was unreasonable because no misconduct charges had been proven or alleged during the material time or in the past three years; there was no clear purpose because the allegations of a plan to escape were “stale information without ascertainment of credibility”; the applicant was already residing in the maximum security wing and classification did not serve any purpose other than to terminate his employment in the laundry
which could have been done without reclassification; and the increase to the maximum security classification was contrary to reg 44 of the Corrections Regulations.
Legality of material considered
(h)Eighthly, the decision-maker acted ultra vires — “A file note is essentially hearsay evidence that does not require evidential facts to corroborate. It can also be labelled as an incident report, and contain allegations of breach of prison rules without the applicant being aware of its existence. Yet it is an admissible factor when considering an increase of classifications in security classification reviews. … The practice is unfair, unreasonable and thus ultra vires to the policies and the Corrections Act.”
[31]Mr Bell challenges three decisions relating to his security classification:
(a)the first event-based review dated 6 to 7 August 2019 following which his security classification was increased from low-medium to high;
(b)the second event-based review dated 29 August 2019 following which his security classification was increased to maximum; and
(c)following a request for reconsideration, the decision on 29 October 2019 to decrease his security classification from maximum to high, rather than to low-medium.
[32] As a result, Mr Bell seeks a declaration of inconsistency and Baigent4 damages in an amount that the Court deems reasonable and fair. Mr Bell acknowledges that the Prisoners’ and Victims’ Claims Act 2005 applies to any specific damages disbursed to him but seeks to pursue them anyway.
4 Simpson v Attorney-General [1994] 3 NZLR 667 (CA) [Baigent’s case].
Discussion
First cause of action — discrimination
[33] Mr Bell claims he has been subject to discrimination based on his ethnicity (Māori) and disability (intellectual impairment). He compares his security classification to that of another well-known prisoner, Philip John Smith, who did escape and fled to South America, but still received a lower classification.
[34] Ms Lanham accepts that Mr Bell harbours genuine concerns about his treatment, as well as the treatment of Māori and people with disabilities in prison more generally. The difficulty in the context of judicial review is that such a claim must be supported by sufficient evidence to find a breach of the right. Here, I agree with Ms Lanham that the evidence presented does not establish that Mr Bell has been subject to discrimination. There is no proven breach of s 19 of the NZBORA.
Second cause of action — humanity and inherent dignity
[35] The leading authority on s 23(5) of the NZBORA is the Supreme Court’s decision in Taunoa v Attorney-General.5 Andrew Butler and Petra Butler summarise the position as follows:6
Section 23(5), by contrast [to s 9 of the NZBORA], is breached by state conduct that is less reprehensible, but is still unacceptable in New Zealand society. It is conduct that does not rise to the level of outrageousness required to engage s 9. Section 23(5) captures conduct that lacks humanity, but falls short of cruelty, conduct that is demeaning, and/or conduct that is clearly excessive in the circumstances but not grossly so. … Section 23(5) requires an evaluative exercise, having regard to the conditions under which the inmate is held, the extent to which these diverge from the conditions which ought to have applied if there had been compliance with the legal requirements, and, in some circumstances, the extent to which those legal requirements are insufficient to meet the s 23(5) standard. That said, legislative standards are an appropriate standard by which to measure the humane treatment of a detainee. But equally technical breach of those standards may not amount to a breach of s 23(5).
[36] The authors give the following examples of s 23(5) breaches in detention: lengthy unlawful segregation from other inmates; loss of ordinary inmate entitlements
5 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429.
6 Andrew Butler and Petra Butler “The New Zealand Bill of Rights Act: A Commentary” (2nd ed, LexisNexis, Wellington, 2015) at [20.12.5].
while on segregation; poor cell hygiene; bedding and clothing that fell below the standards established by prison regulations; inadequate monitoring of inmate mental health; inadequate exercise conditions; some strip searches not complying with the law; detention for a period in a cell without windows or natural light; and detention on cell confinement in excess of the statutory maximum.7
[37] In my view, unlike the above examples, an increase to the maximum security classification in accordance with the prescribed process does not constitute a breach of Mr Bell’s right to be treated with humanity and respect for his inherent dignity. Counsel for the respondent points to the following factors:
(a)The review followed an allegation that Mr Bell planned to take a female staff member hostage. Corrections officers had a duty to consider the allegation in order to meet their duty to safeguard the public, prison staff and other prisoners.
(b)The review followed the prescribed process being considered by four prison officers of increasing seniority and finally the Chief Custodial Officer.
(c)Eric Rangi, Principal Corrections Officer, met with Mr Bell to explain why his security classification would likely be increased and explain the process.
(d)On increase to Maximum Mr Bell had the usual entitlements which apply to maximum security prisoners.
(e)Mr Bell had the right to challenge the decision and successfully did so with his security classification being decreased to high as a result.
[38] Ms Lanham submits that it may be open for the Court to find that a breach of s 23(5) occurred in this case if the Court determined that the decisions were unreasonable or that an incorrect procedure was followed. For reasons given later, I
7 At 1183–1184.
have not determined that the decisions were unreasonable or that an incorrect procedure was followed. There is, therefore, no breach of s 23(5) of the NZBORA.
Third and Fourth causes of action — natural justice and procedural fairness
[39] While breaches of both s 27 of the NZBORA and s 6(1)(f)(ii) of the Corrections Act are pleaded, these causes of action can be considered together because s 6(1)(f)(ii) imposes an obligation on the respondent to comply with the principles of natural justice,8 which is also the focus of s 27 of the NZBORA.
[40] The requirements of natural justice, however, are context-specific.9 I agree with counsel for the respondent that the requirements of natural justice in the context of the security classification regime reflect the administrative nature of the power and the context in which it is exercised. In particular, counsel points to:
(a)The security classification of every prisoner imprisoned for more than three months must be reviewed every six months. Auckland Prison often deals with over 1,000 security classification reviews in a year.
(b)The lifespan of a classification is six months. Given this lifespan, there is a need for security classifications to be undertaken quickly.
(c)Reconsideration of the classification is independent of the review and cannot be delegated to a staff member of the prison. This provides independent scrutiny of a security classification.
(d)The Act and Regulations provide for the prisoner to be advised in writing of the classification decision and the reasons for it, but do not provide a right to be heard. However, a prisoner has the right to seek reconsideration of the security classification and point to the aspects of it with which he disagrees when doing so.
8 McEwen v Spring Hill Corrections Facility Department of Corrections [2020] NZHC 724 at [68].
9 Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at 141; and McEwen v Spring Hill Corrections Facility Department of Corrections, above n 8, at [70].
[41] In Mr Bell’s case, Principal Corrections Officer Rangi explained to Mr Bell the reasons his security classification was likely to increase to maximum and Mr Bell had an opportunity to explain his position. Mr Bell was given written notification of the security classification review decision and the reasons for it. Mr Bell successfully sought reconsideration of the decision and identified aspects of the review with which he disagreed. His application was successful, with his security classification being decreased from maximum to high.
[42] Ms Lanham lists the following procedural rights in respect of security classification decision-making, which the Courts have recognised to date:
(a)Although a formal hearing is not required, a prisoner should have a reasonable opportunity to respond (or make representations) before a decision is made to change their prison conditions.
(b)The opportunity to respond to the underlying allegations leading to a change in prison conditions is not the same as an opportunity to respond to the proposed classification change itself. Both opportunities should be afforded to a prisoner.
(c)A prisoner should be sufficiently informed of the case being advanced so as to enable them to respond.
(d)Reasons should be provided to a prisoner after a decision is made so they can adequately decide whether to challenge the decision through the reclassification process. This is particularly important where overrides are involved.
[43] Ms Lanham acknowledges that these previously recognised rights are not particularly engaged on the facts of this case. She then submits that at issue is whether the respondent owes Mr Bell any further procedural obligations outside those recognised to date in the context of prisoner judicial review.
[44] Mr Bell pleads, at [32] of the amended statement of claim, that his right to natural justice was breached by the fact that no independent person determined the event-based classifications. At [33] he pleads that s 6(1)(f)(ii) was breached by the failure to verify the allegations made against him before undertaking the event-based classification.
[45] As to the first alleged breach, I agree with van Bohemen J in McEwen v Spring Hill Corrections Facility Department of Corrections that a prisoner has no right to a formal hearing in respect of a management decision concerning security and safety.10
[46] As to the second alleged breach, I agree with Ms Lanham’s submission that where there are concerns as to the reliability or completeness of information before a decision-maker, there is authority for the proposition that natural justice can require the decision-maker to undertake inquiries. That position would be consistent with the contextual nature of natural justice. Although it could be argued that further investigation should have been made if the individual events were being assessed on their own merits, it is important to bear in mind Mr Bell’s history and to consider all of the events as a whole.
[47]As to Mr Bell’s history, Mr Phelan states:
8.Mr Bell has had a recorded interest in escape since his imprisonment in 2001. Corrections has received information on multiple occasions about Mr Bell discussing escape plans with other prisoners. An alert on the Integrated Offender Management System (IOMS) for risk of escape was entered in 2007 and is still active. A copy of the IOMS record of Mr Bell’s offender alerts, highlighting the risk of escape alert, is annexed and marked PMP-2.
9.In February 2019, Corrections Intelligence considered what the risks would be in moving Mr Bell to a lower security unit. Mr Bell was classified Low Medium at this time, but was being managed in Whiti te Ra, a unit holding High and Maximum security prisoners. Corrections Intelligence assessed that it was likely Mr Bell would pose a risk of escape if moved to a lower security unit and it was possible he would follow through with previous plans to take a staff member hostage.
10 McEwen v Spring Hill Corrections Facility Department of Corrections, above n 8, at [76]–[79].
[48] It is important to view the four events alongside Mr Bell’s recorded interest in escape and previous plans to take a staff member hostage. Mr Bell has discussed escape plans with other prisoners “on multiple occasions”, according to Mr Phelan. The anonymous tip to Crime Stoppers that Mr Bell was planning to take a female staff member hostage in the prison laundry where he worked to facilitate an escape was, therefore, consistent with Mr Bell’s recorded interest in escape. The informant was quickly identified as a fellow prisoner, who although not always reliable, had also given reliable information in the past.
[49] Although the informant’s motivation for making the telephone call to Crime Stoppers was thought to be questionable, I cannot say that Corrections was wrong to give credence to the allegations. A direction was made at the time by John Small, Acting Deputy Prison Director, that female staff were not to work in Mr Bell’s wing and interviews with female staff were to be in a non-contact booth.
[50] There were also further investigations undertaken. The informant also said that Mr Bell was asking others for shanks and that he was passing drugs and notes through his position in the laundry. CCTV footage was therefore reviewed. It showed Mr Bell removing something from his pants, putting it in an envelope and sliding it under a door to another prisoner. Passing something unapproved to other prisoners, while relatively common, is against prison rules. The other prisoner was known to make weapons, which is consistent with the informant’s allegation that Mr Bell was asking others for shanks. Searches of cells were then undertaken, which did not locate any items of concern.
[51] Mr Bell was interviewed by Mr Rangi for an extended period of time over two days — 27 and 28 August 2019. He was advised why it was likely he was to be moved up to maximum and the process was explained to him. Mr Bell acknowledged he had done “little bits of bullshit” in his earlier days but denied being a staff hostage taker. When asked about the contraband or notes that he appeared to hand to a fellow prisoner, Mr Bell immediately said he gave him a phone number, nothing more.
[52] Ms Lanham attaches some significance to the fact that the recommendation to increase Mr Bell’s security classification to maximum was on the basis that the
upgrade was “pending investigation” and there was no evidence of what investigations were undertaken, other than Mr Rangi speaking to Mr Bell on 27 and 28 August 2019. It is, however, important to look more closely at the process.
[53] An event-based review of Mr Bell’s security classification was initiated on 6 August 2019, based on an information report dated 23 May 2019, relating to two separate incidents. The first concerned a notebook of Mr Bell’s found in the kitchen on 27 March 2019. The second, a letter from a prisoner received on 27 April 2019.
[54] Among other things, the notebook contained a list of vehicle number plates, including those of two food delivery trucks that delivered food to the main kitchen at Auckland Prison.
[55] Mr Nui, the assessing officer, proposed an increase of Mr Bell’s security classification from low-medium to high on the basis that:
Intel information received indicated a potential escape risk. Although Bell explains the information contained in his book an event based review has been conducted to reflect the potential risk. It is recommended that Bells security classification be overridden to High Security based on the potential risk the information in the book contained.
[56] A second officer, Mr Rangi, checked the form and recommended the security classification override. In approving the override and upgrade to high on 7 August 2019, a third officer, Mr Phelan, recorded:
Manual override of Event based review supported to reflect the information received, which has caused us to reflect on Bell’s current risk level and increase his security rating accordingly to ‘High”.
[57] The anonymous tip was received via Crime Stoppers two weeks later, on 22 August 2019. It was the next day, 23 August 2019, Steven Parr, the Acting Prison Director, directed that Mr Bell was to be security classified as maximum “pending the result of any investigation regarding the police complaints phone call have substance”. The upgrade was said to be temporary until it was confirmed (or not).
[58] Another event-based security classification review was therefore initiated on 26 August 2019. On that date, the initial assessing officer, Lily McLean, proposed
overriding Mr Bell’s low-medium classification to increase his classification to maximum based on “recent incidents. One involving breaches of prison rules and the other a serious safety concern for the safety and well-being of staff”.
[59] Because an increase to the maximum security classification was recommended by the security classification review, another decision-making process was initiated using a document titled “Maximum security initial assessment” but known as the SDF (Supported Decision-making Framework). The initial reviewing officer, Mr Rangi, did not recommend the maximum classification. The form was then sent to Mr Phelan, who recorded (as earlier noted):
Bell has been the subject of an allegation via a confidential Crimestopper disclosure, from another prisoner claiming that BELL plans to take a female staff hostage. Further CCTV evidence Is BELL was observed breaching security putting [a] envelope? Into another prisoners cell. Given his high profile and offending history and the information provided, an event review of his classification is justified. While he clearly warrants “High” security classification and retention in his current unit. He should be removed from his employment outside his unit. Based on information regards the individual behind the allegation? the CCTV evidence on its own, it is difficult to support overriding Bell to Maximum security classification. However, from a public safety perspective and our reputational risk he is considered one of our most dangerous prisoners and should always be regarded as such, therefore Maximum security is supported.
[60] The SDF was then signed off by Dave Pattinson, the Prison Manager, on 27 August 2019 and Audrey Koti, the Chief Custodial Officer, on 29 August 2019. Ms Koti recorded:
Approved as maximum security. Noted APD comment (S Parr)”
[61] In light of the SDF being approved by the Chief Custodial Officer, Mr Phelan signed the event-based review off as approving officer on 9 September 2019. It was only four days later, on 13 September 2019, that Mr Bell lodged a request for reconsideration of his maximum security classification, as he was entitled to do under s 48(2) of the Corrections Act. Mr Bell’s application for reconsideration was successful and his security classification was decreased from maximum to high.
[62] There were two major factors that led to Mr Bell’s application for reconsideration being successful. First, it was acknowledged that reputational risk, as
referred to by Mr Phelan in his recorded comment, was not sufficient to justify an override to maximum in any case. Secondly, Mr Bell’s risk of escape or harm for staff could be managed, as it had been in the past, by housing Mr Bell in a high security unit and maintaining close oversight of his management. An increase in his security classification to maximum was therefore unnecessary.
[63] When Mr Parr directed that Mr Bell was to be classified as maximum security on 23 August 2019, it was pending the result of any investigation into the substance of the anonymous tip to Crime Stoppers. The two earlier events had already been investigated and were the subject of an investigation report dated 23 May 2019. On the basis of that report a recommendation was made that Mr Bell’s security classification be overridden and increased too high.
[64] Investigations were undertaken following Mr Parr’s direction on 23 August 2019. It is obvious that CCTV footage was then reviewed. Although the information report analysing the CCTV footage is dated 9 September 2019, Mr Phelan must have had access to the footage when he referred to “further CCTV evidence” in his recorded comments dated 27 August 2019 in the SDF. Following review of the CCTV footage, cell searches were undertaken. In his submissions, Mr Bell suggests it is unit officers who are better suited to make judgement calls on operational matters, and not senior management officers. This is said to be because unit officers are more attuned to the daily dynamics of the prison sub-culture of which they have inexorably become a part. In the present case, senior management officers were aware of unit officers’ opinions. Mr Nui states:
I am aware that some, but not all, staff in Unit 13 thought Mr Bell did not need to be increased to Maximum security. With all the factors in play, I considered it was a reasonable decision to increase his security classification to Maximum security given the importance of protecting the safety of prison staff and the greater security which applies to Maximum security prisoners.
[65] This Court has previously considered that the reconsideration procedure meets the requirements of natural justice in ordinary cases.11 Therefore, even if it could be said that there was an error in increasing Mr Bell’s security classification to maximum,
11 Taylor v Chief Executive of the Department of Corrections [2015] NZHC 2196 at [102].
I agree with counsel for the respondent that the error would, in any event, have been ameliorated by Mr Bell availing himself of the reconsideration process.12
[66] Further, that Mr Bell was successful in having his security classification reduced and the practice guidance in the Guidelines updated indicates the reconsideration process functioned as an “effective complaints procedure” for the purposes of s 6(1)(f)(ii) of the Corrections Act.
[67] In all the circumstances, there was no breach of s 27 of the NZBORA or s 6(1)(f)(ii) of the Corrections Act. Natural justice was observed and there was no procedural unfairness.
Fifth, Sixth and Seventh causes of action — relevant/irrelevant considerations and unreasonableness
[68] Mr Bell pleads that there was an error of law in the process inasmuch as the respondent failed to consider relevant considerations, took into account irrelevant considerations or acted unreasonably. Properly approached, unreasonableness is focused on a decision’s outcome or merits. In the present case, however, Mr Bell’s unreasonableness claim largely appears to challenge the respondent’s reasoning process leading to the reclassification decisions. It is therefore useful to consider Mr Bell’s unreasonableness claim together with his allegations about relevant and irrelevant considerations.
[69] Mr Bell claims that the respondent failed to consider the following relevant considerations: the veracity of the allegations; whether the complaint was credible; whether the nature of the allegation was credible in the maximum security prison environment; whether the decision was overly restrictive and whether other management tools were available; and whether the allegations were serious enough to warrant a misconduct investigation to ensure transparency and natural justice.
[70] Regulations 45 and 48 of the Corrections Regulations prescribe the factors that must be taken into account when undertaking an event-based review. These are
12 Smith v Attorney-General, above n 2, at [26].
mandatory relevant considerations. They are incorporated into the Security Classification Review form. The decisions at issue, however, concern the discretionary override to change a security classification that otherwise results from the standard security classification review, which has taken the mandatory relevant consideration into account.
[71] In the case of maximum security prisoners there is a further step, which involves the completion of a Maximum security initial assessment form. There are a series of questions to create an evidence-based proposal for classification. Ms Lanham submits that these questions therefore comprise mandatory relevant factors to be considered prior to making a decision to classify a prisoner as maximum. I am, however, not persuaded that these are mandatory relevant factors such that if one question is not answered or is answered incorrectly, the decision to classify a prisoner as maximum security is amenable to judicial review.
[72] Ultimately, as to relevant considerations, the requirement of the Corrections Act and Corrections Regulations prevail, including ss 6(1)(a), 6(1)(g) and 47(1), and reg 44(1). Their general theme is that prisoner security classifications are to be determined based on the level of risk posed by the prisoner while inside or outside prison, including the risk of escape and the risk that escape would pose to the public. The minimum classification necessary to meet that risk is to be imposed.
[73] Without necessarily accepting that the factors referred to by Mr Bell can be considered mandatory relevant factors, I am of the view that they do not, in any event, provide a basis for successfully challenging the relevant decisions by way of judicial review. The respondent did consider the veracity of the allegations and the credibility of the complaint. Mr Phelan was aware that the informant was not always reliable. In the SDF form, Mr Phelan referred to “information regarding the individual behind the allegation” in his recorded notes. It is quite clear, therefore, that he took the veracity of the allegations and the credibility of the complaint into account. His knowledge of the informant led him to accord less weight to the allegations that he might otherwise have done. He still recommended an increase to the maximum security classification.
[74] As to whether the nature of the allegation was credible in a maximum security prison environment, an attempt to escape is, of course, much less likely to be successful. An unsuccessful attempt involving the taking of a female staff member hostage would, however, have the potential to be cause just as much, if not more, harm.
[75] Whether the decision was overly restrictive and whether other management tools were available was a matter of judgement for Corrections staff. The Court will be slow to interfere with prison management decisions involving such judgement calls.13 Where those decisions affect the safety and security of prisons and prisoners, courts have shown deference to the administrative decision-maker.14 Here, I agree with the comments of Nicholas Davidson J in Genge v Chief Executive of the Department of Corrections:15
… [w]hen Mr Genge says that security classification reviews should not be conducted in response to minor changes in risk that can be managed according to the guidelines, that is so obviously for prison management that this Court would never interfere with such a decision unless there was an egregious element of the decision making.
[76]I am of the view that no such egregious element exists in this case.
[77] Finally, the absence of misconduct charges against Mr Bell does not provide a basis for judicial review. The misconduct regime and security classification decisions are separate matters. Charges of misconduct are subject to the prosecution and hearing regime specified in sch 7 of the Corrections Regulations. Misconduct must be proved beyond reasonable doubt. In contrast, security classification decisions are inherently about risk.16 I note Mr Milne’s observation that it is often impossible to substantiate an allegation that someone plans to escape or take someone hostage before they attempt to do so.
[78] Mr Bell further claims that the respondent wrongly took into account the following irrelevant considerations in the reclassification decision: that he was a high-
13 Genge v Chief Executive of the Department of Corrections, above n 2, at [38].
14 See, for example, Taylor v Chief Executive of the Department of Corrections [2010] NZCA 371, [2011] 1 NZLR 112.
15 Genge v Chief Executive of the Department of Corrections, above n 2, at [38].
16 This Court has previously noted the distinction between the disciplinary regime and security classification: Genge v Chief Executive of the Department of Corrections, above n 2, at [12].
profile prisoner; and that he may or may not have secreted and passed an envelope to other prisoners in the yard.
[79] Ms Koti has explained the fact that Mr Bell is a high-profile prisoner was not a guiding factor in her consideration of his security classification. Many of the maximum-security assessments she dealt with related to such prisoners. Ms Koti was, however, relying on the recommendation of Mr Phelan. Mr Phelan concluded it was “difficult to support” a reclassification of Mr Bell to maximum based on the evidence they had. He instead supported an increase based on a “public safety perspective and our reputational risk”.
[80] Reliance on reputational risk is, however, irrelevant under the Act, Regulations and Guidelines. This was recognised by the respondent in dealing with the application for reconsideration filed by Mr Bell and was a factor in Mr Bell’s decrease from maximum to high. The Guidelines for completing male review security classification have now been amended to include the following guidance:
A classification must not be overridden solely on the grounds that a person poses a reputational risk to the Department.
[81] Mr Phelan was, however, not the Corrections Officer who made the final decision. That was Ms Koti and there is no evidence that she wrongly took reputational risk into account. She says she was most concerned with the safety of staff and that she considered it appropriate to take such allegations seriously until given reason not to. She specifically denies that Mr Bell’s profile was a consideration for her.
[82] As to unreasonableness, Mr Bell claims the decision to reclassify him was unreasonable because no misconduct charges had been proven or alleged during the material time or in the past three years; there was no clear purpose because the allegations of a plan to escape were “stale information without ascertainment of credibility”; he was already residing in the maximum security wing and classification did not serve any purpose other than to terminate his employment in the laundry, which could have been done without reclassification; and the increase to maximum was contrary to reg 44.
[83] Unreasonableness, as traditionally conceived, has a very high threshold — that the impugned decision is “so unreasonable that no reasonable authority could ever have come to it”.17 This standard, however, may be attenuated to the particular context and subject-matter.18
[84] The approach to unreasonableness (both in terms of process and outcome) was addressed by Ellis J in Taylor v Chief Executive of the Department of Corrections, a case involving an application for judicial review of a decision declining admission to a prison rehabilitation programme.19
The Court’s supervisory jurisdiction does not generally permit it to engage in a rehearing of the merits of an impugned decision. The mere fact that the Court might consider that a better decision could have been made on the facts does not mean that the application for review should succeed. Failure by a decision-maker to consider a relevant consideration is only fatal if the consideration can be said to be expressly or impliedly mandatory. It is trite that the unreasonableness threshold is a very high one.
[85] The allegations of unreasonableness here overlap with the allegations the respondent took into account irrelevant considerations and did not take into account relevant considerations. To the extent they challenge the merits of the decision to increase Mr Bell’s classification to maximum, I am of the view that the decision was not unreasonable. As noted by Ellis J, the mere fact that the court might consider that a better decision could have been made on the facts does not mean that the application for review should succeed.
[86] Here, the fact that following Mr Bell’s application for reconsideration and after further reflection and discussion other measures were identified enabling a decrease in Mr Bell’s security classification to high does not mean the earlier decision was unreasonable. It shows the reconsideration process working well in an area where decision-makers weighing various factors can reasonably vary.
17 Associated Provinicial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 at 229.
18 Smith v Attorney-General, above n 2, at [116].
19 Taylor v Chief Executive of the Department of Corrections [2016] NZHC 1805 at [58].
Eighth cause of action — ultra vires
[87] Mr Bell claims that the respondent’s security classification platform, namely, the ability to award demerit points over “negative” file notes is ultra vires the Corrections Act and also inconsistent with rules of natural justice under the NZBORA and at common law. File notes reflect officers’ untested viewpoints of events. They preclude prisoner input. The practice is unfair because it allows demerit points to be entered against a prisoner without the benefit of him being heard. A negative file note is subjective and is “essentially hearsay evidence”.
[88] It seems that this cause of action reflects Mr Bell’s concern with the way in which allegations of a security risk should be taken into account in reviewing a security classification. This appears to be another iteration of submissions made earlier as to the requirements of natural justice and unreasonableness, which are addressed in earlier causes of action.
Result
[89] None of the grounds of judicial review are made out. As a result, the question whether this Court should make declarations does not arise. Nor has any breach of NZBORA been established. There is, therefore, no question of damages. Mr Bell’s claim is dismissed.
Woolford J
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