Drew v Attorney-General
[2001] NZCA 207
•12 July 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA189/00 |
| BETWEEN | ANDREW LAWRIE DREW |
| Appellant |
| AND | THE ATTORNEY-GENERAL |
| First Respondent |
| AND | THE VISITING JUSTICE |
| Second Respondent |
| Hearing: | 8 and 9 May 2001 |
| Coram: | Richardson P Keith J Blanchard J Tipping J McGrath J |
| Appearances: | A J F Wilding for Appellant A S Butler and J Foster for Respondents A Shaw for New Zealand Council for Civil Liberties as Intervener |
| Judgment: | 12 July 2001 |
| JUDGMENTS OF THE COURT |
Judgments
Para Nos Richardson P, Keith, Blanchard and Tipping JJ
McGrath J[1] - [82]
[83] - [109]
RICHARDSON P, KEITH, BLANCHARD AND TIPPING JJ
(DELIVERED BY BLANCHARD J)
Introduction
This appeal is against dismissal in the High Court of an application for judicial review. It concerns the right of a serving prisoner, who is appealing against conviction at a Superintendent’s hearing of a disciplinary offence under the Penal Institutions Act 1954 (the Act), to be represented by a lawyer at the appeal hearing before a Visiting Justice, or at least to have the question of representation considered by the Justice. It raises incidentally the question of whether there may also be such a right at the original hearing before the Superintendent or when the Visiting Justice conducts the original hearing.
Facts
Mr Drew is a serving prisoner at Paparoa Prison near Christchurch. Following a random drug test, to which he was required to submit under s36BB of the Act, he was charged under a newly introduced section of the Act, s32A(1)(a), with an offence against prison discipline, namely having used a drug, heroin, without the authority of a medical officer (appointed under s6A). A hearing of the charge was conducted under s34 of the Act before the Deputy Superintendent of the prison:
Section 34 of the Act provides:
34Powers of Superintendent in relation to certain offences by inmates
(1) The Superintendent of any institution shall have power to hear any complaint relating to any offence against discipline under subsection (1) of section 32 of this Act alleged to have been committed by any inmate of that institution, and may examine any person concerning the alleged offence, on oath or otherwise at his discretion.
(2) Every such hearing and examination shall be in the presence and hearing of the inmate charged with the offence, who shall be entitled to be heard and to cross-examine any witness.
…
Section 7(2), together with reg131 of the Penal Institutions Regulations 1999 (the Regulations), permits delegation of the Superintendent’s disciplinary functions to the Deputy Superintendent. Section 32A(3) provides that an offence under s32A(1) is an offence against discipline under s32(1) and that the provisions of the Act apply accordingly.
Mr Drew had taken legal advice before the Superintendent’s hearing but was not permitted to have a lawyer speak for him because reg136(4) provides:
136 Advice before hearing
(4) An inmate may, at his or her own expense, contact his or her legal adviser for the purpose of assisting with the preparation of his or her defence, but the inmate’s legal adviser may not represent the inmate at the disciplinary hearing.
The Deputy Superintendent found the charge proved. He imposed a penalty of seven days cell confinement, 28 days loss of privileges and seven days loss of remission of sentence.
Being dissatisfied with the finding and the penalty, Mr Drew made a request under s35(1) of the Act that his case be referred by way of appeal to a Visiting Justice. Section 35(2) requires the Justice to rehear the case. The rights conferred by s34(2) must be taken to apply to such a rehearing. But reg144 provides:
144 Assistance with appeal
An inmate whose case is referred by way of appeal to a Visiting Justice under section 35 of the Act may, at his or her own expense, contact his or her legal adviser for the purpose of assisting with the preparation of the appeal, but the legal adviser may not represent the inmate at the appeal.
The disciplinary offences scheme
The disciplinary offences scheme is found in ss32 to 36 of the Act. Section 32 makes certain forms of conduct (not relating to drugs or alcohol) offences against discipline. The less serious offences are listed in subs(1), which covers, for example, disobeying the lawful order of an officer, behaving in an offensive or insolent manner, or assaulting another inmate. The more serious offences are contained in subs(2); for example, mutiny, or inciting other inmates to mutiny or assaulting a prison officer or other person (not being an inmate), or escaping from an institution or from lawful custody. Subsection (3) concerns attempts to commit or being a party to an offence against discipline, which are liable to be dealt with and punished in the same manner as if the inmate had committed the offence in question.
In 1997, in conjunction with the new s36B, which provided for a strategy on the use of drugs and alcohol by inmates, and the new ss36BA to 36BF, providing for random drug and alcohol testing, Parliament enacted s32A, which created certain offences involving drug or alcohol use. These included the offence of which Mr Drew has been convicted, namely using a drug or consuming alcohol without the authority of a medical officer. (A “drug” is defined in s2 to mean a controlled drug within the meaning of the Misuse of Drugs Act 1975 or a prescription medicine or restricted medicine within the meaning of the Medicines Act 1981.) It is plain that the s32A offences are regarded as of lesser seriousness since, as noted above, s32A(3) classes them as offences against discipline under s32(1) and applies the provisions of the Act accordingly.
Section 10 creates the position of Visiting Justices who have, as their name suggests, powers to visit and inspect penal institutions, interview inmates, “examine into” their treatment and conduct, hear complaints, inquire into abuses and into matters specifically referred by the Secretary (the Chief Executive of the Department of Corrections), take evidence on oath and to report to the Secretary (subs(3)). Every District Court Judge is automatically a Visiting Justice for every institution under the Act (subs(1)). Justices of the Peace can also be appointed Visiting Justices but only for specified institutions (subs(2)).
Section 10(4) empowers every Visiting Justice to deal with offences against discipline in accordance with the Act. Section 33 gives every Visiting Justice power
to hear any complaint relating to any offence against discipline alleged to have been committed by any inmate, and [to] examine any person concerning the alleged offence, on oath or otherwise at his discretion.
Section 33(2) provides that every such hearing and examination is to be in the presence and hearing of the inmate charged with the offence “who shall be entitled to be heard and cross-examine any witness”. (The rights are the same as those at a hearing before a Superintendent (para [3] above)).
Section 33(3) contains the penalties which a Visiting Justice may impose on finding an offence proved. The Visiting Justice may postpone an inmate’s final release date, determined in accordance with s90 of the Criminal Justice Act 1985, although the maximum period of postponement may not exceed the shorter of three months or a period which, by itself or when added to such other period or periods of postponement as there may be affecting the same sentence, is equal to one-half of the term already served under the sentence. A Visiting Justice can also forfeit or postpone any privilege of an inmate for a period not exceeding three months or forfeit an inmate’s earnings for a similar maximum period or order confinement of an inmate in a cell for a period not exceeding 15 days. The penalties are not permitted to be cumulatively imposed.
Section 33(4) authorises a Visiting Justice, if of the opinion that in the circumstances of the case the inmate should be charged before a Court with an offence under any enactment other than the Act, instead of being dealt with under s33, to decline to proceed with the hearing and direct that an information be laid accordingly. This must be done before a penalty has been imposed under s33.
Section 34 gives the Superintendent of any institution power to hear complaints against discipline under s32(1), but, on finding the offence proved, the Superintendent may not impose maximum penalties exceeding postponement of the inmate’s final release date for seven days (or a lesser period, taking into account any other periods of postponement, equal to one-half of the term already served), forfeiture or postponement of a privilege for a period of 28 days, forfeiture of earnings for a period of seven days and confinement in a cell for a period of seven days (subs(3)).
It is provided in s34(4) that the Superintendent may, in his discretion, at any time before imposing a penalty under the section, refer the case to a Visiting Justice to be dealt with under s33. He may also, like a Visiting Justice, decline to proceed with the hearing and cause an information to be laid against the inmate charging an offence under any enactment other than the Act.
Section 35 confers on an inmate convicted and penalised by a Superintendent the right to appeal to a Visiting Justice. The Justice is obliged to rehear the whole case and may reverse or confirm the finding, confirm the penalty or impose in substitution therefor any penalty which could have been imposed by the Superintendent. So on appeal there can be no increase in penalty beyond that limit. Any penalty imposed by the Superintendent is deemed suspended until the appeal is disposed of (subs(4)).
Section 36 provides that no penalty imposed under ss33 to 35 is to operate to extend the detention of any inmate beyond the term for which the inmate was originally liable to be detained.
It should also be mentioned that, consistently, s90 of the Criminal Justice Act 1985, which fixes the final release date for an offender, is expressed to be subject to ss33(3) and 34(3) of the Penal Institutions Act.
The hearing before the Visiting Justice
His Honour Judge Noble conducted the appeal hearing as Visiting Justice on 18 October 1999. There was an appearance on behalf of the Prison Authority by a Mr Bird, who acted effectively as a prosecutor and called the evidence against Mr Drew. A member of the Regional Crime Unit at the Prison gave evidence of the random drug test and the results of a urine sample analysis from Mr Drew by Environment Science and Research Ltd (ESR). The test was said to be positive for morphine, codeine and mono-acetyl morphine. Dr Russell, a forensic toxicologist employed by ESR, was called to give evidence concerning the significance, in particular, of the presence of mono-acetyl morphine in Mr Drew’s urine. She said that mono-acetyl morphine is a breakdown product formed in the body after heroin use and that it does not result from use of morphine or codeine.
Prior to the hearing Mr Drew had endeavoured to obtain evidence from another toxicologist, Dr Peter George, who was not present at the hearing. Mr Drew tendered to the Visiting Justice a letter from Dr George in which it was said, inter alia, that it was impossible to be certain that a finding of mono-acetyl morphine actually indicated heroin use, particularly in individuals taking codeine-based medication, as Mr Drew claimed he had. In these circumstances he rather ineffectually endeavoured to cross-examine Dr Russell, by putting to her Dr George’s letter. Dr Russell expressed the view, however, that the mono-acetyl morphine could not all have come from codeine. Despite some assistance to Mr Drew from the Visiting Justice, who tried to clarify the line of cross-examination, and despite some questioning of the witness by the Visiting Justice, Dr Russell’s evidence remained very largely unshaken.
Giving evidence himself, Mr Drew referred to the quantity of codeine prescribed for him for pain relief and denied taking any illegal drug. The Visiting Justice put to him Dr Russell’s opinion. In answer to a question, Mr Drew mentioned that his lawyer had been told that he could not appear. The Visiting Justice confirmed that was the position:
The law does not permit prisoners to be represented at a hearing of this kind. I’ll tell you what I’ll do. In the circumstances I will receive your letter and I will attach such weight as I can to it. I think in fairness to you I’ll admit the letter but it’s a question of how much weight.
In an oral judgment the Visiting Justice confirmed that he had received Dr George’s letter on that basis and accorded it “such weight as I am able to given that the witness has not been called”. However, he accepted the opinion of Dr Russell that the mono-acetyl morphine levels found in Mr Drew’s urine could be consistent only with recent heroin use. Accordingly, the Visiting Justice confirmed the finding of the Deputy Superintendent. He regarded the sentence which had been imposed as appropriate and reset it at the same levels.
The application to the High Court
Mr Drew then applied to the High Court at Christchurch for judicial review, seeking the quashing of the order of the Visiting Justice convicting him and imposing the penalties. A declaration was also sought that the Attorney-General should not act on the Visiting Justice’s decision.
In the High Court at Christchurch John Hansen J delivered a reserved judgment on 18 August 2000, reported at [2000] 3 NZLR 750, dismissing the application for judicial review. The Judge considered an argument that regs136(4) and 144 are ultra vires the Act because they abrogate rights guaranteed under ss24 and 25 of the New Zealand Bill of Rights Act 1990 to someone charged with an offence. John Hansen J found otherwise, holding that, on the basis of Canadian Authority (R v Wigglesworth (1987) 45 DLR (4th) 235 and, in particular, R v Shubley (1990) 65 DLR (4th) 193), an offence against discipline under the Act is not an offence of the kind to which ss24 and 25 refer. The Judge said that, even if s24(c) (the right to consult and instruct a lawyer) applied, the denial of legal representation in the particular circumstances was justifiable under s5 of the Bill of Rights.
In view of the course taken by argument on the appeal and the conclusions we have reached, we need not express a view on the possible application of ss24 and 25 to this situation, which is not without its difficulties. We leave that matter open.
Argument for appellant
In this Court, Mr Wilding, who did not appear below, advanced a rather different primary argument. He submitted that reg144 is ultra vires the rule-making power in the Act, namely s45(1)(19), which empowers the making by the Governor-General, by Order in Council, of regulations for the purpose of:
Ensuring the discipline of inmates, including (without limitation) regulating the laying of complaints relating to offences against discipline and prescribing the procedures for the hearing of such complaints.
The case now put for the appellant is that reg144, and the identically worded reg136(4), are in conflict with s34(2), and also contrary to the principles of natural justice, as affirmed by the guarantee of the right to observance of those principles found in s27 of the New Zealand Bill of Rights Act 1990:
27 Right to justice
(1) Every person has the right to the observance of the principles of natural justice by any tribunal or other 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.
(2)Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.
…
Accordingly, it was submitted that s45(1)(19) must be read as not empowering a regulation which denies absolutely the right to legal representation before the Visiting Justice. Regulations cannot bar legal representation when it is necessary in order that the inmate’s rights to be heard and to cross-examine are meaningful and effective. Consequently, it was said, the Visiting Justice had a discretion to allow legal representation, which he ought to have exercised affirmatively in this case, as the principles of natural justice required. Mr Wilding drew attention to the influential decision of the Queen’s Bench Division in R v Secretary of State for the Home Office, Ex parte Tarrant [1985] QB 251 in which it was held that it was an error of law for a Board of Visitors hearing a serious prison disciplinary offence to consider that it had no discretion to permit a prisoner to be legally represented. The Court referred to certain matters which should be taken into account in exercising the discretion: the seriousness of the charge and the potential penalty; whether any points of law were likely to arise; the capacity of a particular prisoner to present his own case; procedural difficulties; the need for reasonable speed; and the need for fairness as between prisoners and as between prisoners and prison officers.
Counsel pointed out that the House of Lords approved the approach taken in Tarrant in R v Board of Visitors of H.M. Prison, The Maze, Ex parte Hone [1988] 1 AC 379, 392. In this country the Report of the Ministerial Committee of Inquiry into the Prisons System (1989), chaired by Sir Clinton Roper, had recorded (at para 29.43) the Department’s submission recommending that legislation be enacted granting an adjudicator a discretion to allow an inmate to be legally represented and that the factors to be taken into account should be those suggested in Tarrant. While the report did not go that far, it recommended that legal representation should be made available at the appeal level.
Counsel noted that an approach similar to that in Tarrant had been adopted in Canada by the Federal Court of Appeal in Re Howard and Presiding Officer of Inmate Disciplinary Court of Stony Mountain Institution (1985) 19 DLR (4th) 502.
Mr Wilding drew attention to material showing that many prisoners are of low intellectual ability, immature or suffer from psychiatric problems. They would have real difficulty in presenting their cases. Some face charges which may carry substantial penalties. A final release date can be postponed for up to three months, which is the equivalent of an additional six month sentence (s90(1)(a) of the Criminal Justice Act 1985). In the criminal courts that would, as guaranteed by s24(e) of the Bill of Rights, entitle a person accused to elect a jury trial. Legal aid would be made available where the person does not have sufficient means. Cell confinement for up to seven days is also a significant sentence, even for someone already in prison. The Ministerial Report (at 29.31) had described it as the most severe disciplinary measure available in the penal system.
Counsel submitted also that some charges are factually and/or legally complex and the presentation of an adequate defence may be beyond the capacity of the prisoner. Mr Wilding said the present case provides a clear example, Mr Drew being quite incapable of defending himself by cross-examining an expert toxicologist on technical matters.
Mr Wilding submitted that regulations which totally ban legal representation at disciplinary hearings cannot be valid. Parliament had expressly provided in s33(2) for a right of cross-examination. It could not have been intended, counsel submitted, that the regulations would then deprive a prisoner of the effective means of exercising that right. It was not enough to give effect to the right that the prisoner was permitted to take legal advice in advance of the hearing. Many inmates would be incapable of comprehending and following that advice, particularly if the situation changed during the hearing, as it often does at trial.
Mr Wilding also addressed the position concerning legal aid. Regulations 136(4) and 144 permitted an inmate “at his or her own expense” to take legal advice for the purpose of assisting with preparation of a defence. If this were to be read as proscribing legal aid, it would be an additional breach of the right to natural justice, since a right to legal aid is an integral part of the right to be heard.
Argument for the respondent
Mr Butler said that there had been a deliberate omission of a right to legal representation at hearings under the disciplinary scheme. It does not involve any criminal charges. Indeed, Mr Butler said, s36BD restricts the use which can be made of the compulsory drug testing results; they cannot be used in Court. When Parliament had wished to confer a right to counsel in connection with the Act it had done so expressly (see for example in s41B(4) concerning claims for compensation for property damage caused by escapers) – although counsel accepted that there were no express exclusions in the Act itself relating to legal representation at hearings.
Central to Mr Butler’s submission was the argument that, taken as a whole, the scheme of the Act and regulations for prison disciplinary offences is fair and in accordance with the principles of natural justice. It does not allow legal representation at hearings, but counsel said there is no such fundamental right. Fairness can be achieved in other ways (Maynard v Osmond [1977] 1 QB 240). Fairness and natural justice is accorded by other elements in the scheme:
[a]At the Superintendent hearings, the distancing of the adjudicator from the inmate, and even more so at first instance or appeal hearings conducted by a Visiting Justice. The Superintendent or Visiting Justice is not just a neutral umpire dealing with only the evidence presented. He or she has a duty to conduct an inquiry in a semi-inquisitorial manner.
[b]The Visiting Justice is an independent judicial officer.
[c]Written prior notification of the charge, describing the incident/circumstances of the offence, is required (reg133(2)).
[d]Written notice detailing procedures to be followed is required (regs133(2) and 136(1)).
[e]Sufficient time to prepare a defence is allowed (regs134 and 142(2)).
[f]Dismissal of charges is provided for if there is unreasonable delay between the laying of the charge and the hearing (reg135).
[g]Assistance in the preparation of defence is to be provided by the Superintendent (reg136(3)).
[h]Legal advice can be obtained prior to hearing (regs136(4) and 144).
[i]A support person can be present at the hearing and can speak when invited (reg139).
[j]Formal steps to be followed at the hearing are provided for (reg140).
[k]An entitlement to be heard and to cross-examine witnesses exists (ss33(2) and 34(2) and reg140(2)).
[l]Proof beyond reasonable doubt is required (reg140(3)).
[m]Inmates with a communication difficulty in English are provided with an accredited interpreter and access to translation services when preparing to appear, and appearing, at disciplinary proceedings. (Public Prisons Service Policy & Procedures Manual D.14 “Inmates with a Communication Difficulty in English (National Policy)”).
[n]Inmates with disabilities interfering with their ability to function independently are provided with advocate support for preparing for disciplinary hearings (Public Prisons Service Policy & Procedures Manual D.01 “Inmates with Disabilities (National System)”).
Mr Butler submitted also that Superintendents and Visiting Justices, subject to the provisions of the Act and the Regulations, have the power to regulate their own procedures and are able to do so to assist an inmate with presentation of the defence case (as is said to have happened here).
Counsel referred to a survey of practice and experiences in Australia, the United Kingdom, the United States and Canada which he said showed a diversity of response, demonstrating that this was a field where a margin of appreciation for each country’s choice of prison disciplinary regime was appropriate. Counsel distinguished Tarrant as a decision in a context where there were no governing regulations and where the tribunal was therefore the master of its own procedures.
Mr Butler stressed the need for speed in dealing with disciplinary matters in a prison environment. A swift response is needed in the confined environment of a prison where inmates, some of whom are dangerous, exist in close contact with prison staff. The effectiveness of the regime can be diminished if it can be used disruptively, delaying the imposition of sanctions. To allow legal representation would be to invite delays – by way of applications for discovery and adjournments, and possibly in relation to the obtaining of legal aid. In the meantime, disciplinary breaches would go unsanctioned. There was also the danger that a prisoner might be released before a hearing, so that any penalty could no longer be imposed. In addition, delay could lead to problems in obtaining access to witnesses in a changing prison population.
Counsel referred to the very large number of disciplinary hearings to which any right to legal representation might apply: perhaps as many as 8,800 Superintendent hearings per annum. The numbers were likely to be even higher because of the Department of Corrections’ drugs reduction strategy, recently formulated pursuant to s36B of the Act. In the year to 30 June 2000 there had been 2876 positive results of drug tests (29%), from which some 2600 prison drugs charges would be likely to result under the Department’s policy of bringing disciplinary charges wherever drug taking was detected. In the years 1998, 1999 and 2000, there were respectively 511, 841 and 892 hearings held by Visiting Justices (both in appellate and original jurisdiction). Of those, 336, 476 and 531 respectively were inmate appeals. Mr Butler suggested that there could be considerable cost in permitting legal representation, both to the country as a whole, if legal aid were granted, and to the Department for Corrections in particular, in having to train greater numbers of prosecuting officers competent to deal with a legally represented defendant, and because complications could creep into the system if lawyers were allowed to be involved at hearings.
Reflecting what he said was a view held in some quarters of Government, Mr Butler also advanced an argument that the Regulations, being an “enactment” (s29 of the Interpretation Act 1999), are protected by s4 of the Bill of Rights Act:
4 Other enactments not affected
No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),—
(a) Hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or
(b) Decline to apply any provision of the enactment—
by reason only that the provision is inconsistent with any provision of this Bill of Rights.
By reason of this provision, it was submitted, when regulations cannot be read down under s6 of the Bill of Rights (it was not suggested for the appellant that regs136(4) and 144 could be so read down and the Crown’s position was that they unequivocally prevented legal representation), they are protected in their own right and are valid unless they are ultra vires for reasons other than the Bill of Rights. To strike down reg144 because of the s27 guarantee of a right to the observance of the principles of natural justice would, it was submitted, be to invalidate it by reason only of inconsistency with the Bill of Rights – because the regulation making power in s45(1)(19) had been found to be exceeded only because that power was being read in light of the Bill of Rights.
On the question of legal aid, Mr Butler said that the only purpose of the words “at his or her own expense” in regs136(4) and 144 was to ensure that the expense of legal representation of an inmate should not fall upon the Department for Corrections. He said that those regulations do not purport to determine eligibility for civil legal aid, as is confirmed by reg136(5), which stated that the regulation did not confer an entitlement on an inmate to legal aid under the Legal Services Act 1991.
Discussion
It is apparent from a consideration of the disciplinary scheme that an inmate charged with an offence, particularly one under s32(2), can be facing quite substantial penalties. Where the matter falls within s32(1) or s32A, and therefore within the jurisdiction of the Superintendent of the institution, the penalties to which the inmate is exposed are relatively minor – no more than seven days postponement of release date (effectively seven days extra imprisonment: the equivalent of a 14 day sentence). But the Superintendent can also order that up to seven days be spent in cell confinement. The Ministerial Report commented on the potentially harmful effects of such confinement. The Crimes Act 1961 contains, in s17, a prohibition on sentences of solitary confinement, but this prohibition is expressly made subject to the operation of the disciplinary provisions of the Penal Institutions Act.
There is also a risk for the inmate that the Superintendent may, at the end of a hearing, refer the case to a Visiting Justice to be dealt with under s33. It would then attract higher maximum penalties, which might well be the reason for the decision to so refer it.
The Superintendent might also decide that the matter is sufficiently serious that a criminal charge should be laid. The nature of most of the s32(1) offences, and the prohibition on the use of drug and alcohol testing results other than under s32A for disciplinary purposes (see s36BD), suggests that this will happen only infrequently – perhaps where the charge has been one of assaulting another inmate or damaging property and it appears more serious to the Superintendent than it did to those who initially investigated. In a limited number of cases, also, admissions made in front of the Superintendent could possibly lead to a criminal charge.
Where the charge is heard by a Visiting Justice, either directly under s33 or upon reference by the Superintendent under s34(4)(a), the potential penalties are much greater. The maximum postponement of release date is three months which, as Mr Wilding pointed out, is the equivalent of a prison term of six months and therefore of a length which would in a criminal court give an accused the right to elect trial by jury (s66(1) of the Summary Proceedings Act 1957; s24(e) of the Bill of Rights). It is also to be remembered that s10 of the Criminal Justice Act 1985 directs that an offender convicted in a criminal court is not to be given a full-time custodial sentence without having had the opportunity of legal representation at the stage of proceedings where the offender was at risk of conviction. The maximum period of cell confinement which a Visiting Justice can order is 15 days which, in itself, is a considerable penalty. There is also exposure to the possible loss of privileges and earnings for up to three months.
The penalties which may be imposed by a Visiting Justice are nothing like the loss of remission of 570 days awarded against a prisoner in England in the case of Campbell and Fell v United Kingdom (1986) 7 EHRR 175, and found to be a violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Nevertheless they are substantial, even though, as Mr Butler observed, they do not get included in an offender’s criminal record so as to affect sentencing on any future offending. It may be that for inmates who become eligible for parole there will not necessarily be a longer period in prison merely because their final release date is postponed. The disciplinary conviction is apparently not taken into account in relation to eligibility. But the existence of a disciplinary offence conviction will, it seems, be relevant to the process of consideration for parole.
The ability of an inmate to put forward an adequate defence to a disciplinary charge, especially one attracting the higher level of penalties able to be imposed by a Visiting Justice, is also of relevance. An inmate of mature years and of average intellectual ability (i.e. average for the general population) can ordinarily be expected to cope with the task of defending himself against a charge when the facts are relatively straightforward (for example, where the decision will turn on a choice between two versions of an incident) and no question of legal interpretation or point of evidence arises. Most cases are likely to be of this kind.
On the other hand, an immature or intellectually dysfunctional inmate may have difficulty in putting forward even a simple defence to a straightforward charge, at least without some assistance from the Superintendent or Visiting Justice conducting the hearing. The Prison Census figures for 1999, helpfully supplied to the Court by Crown Counsel, reveal that 435 inmates (8.9%) were 19 or under, with 13 being only 15 or 16 and four having been under 15 when first sentenced. 581 inmates were under psychological or psychiatric supervision. 6% of male inmates and 19% of female inmates were receiving medication for psychiatric problems. A National Study of Psychiatric Morbidity in New Zealand Prisons in the same year stated that 5.8% of inmates had only primary school education and 273 (or 6.42%) were suspected of being possibly of low intellectual function.
Where the facts relating to the charge or the legal issues are complicated, even inmates of above average intellect may fail to present their cases adequately unless the disciplinary regime provides proper assistance for them. The paradigm case, it may be thought, is one in which the prosecuting officer calls an expert whose opinion will have to be challenged in cross-examination if the defence is to succeed.
It is apparent from a study of the scheme that the role of the Superintendent and, particularly, the Visiting Justice is predominantly that of an adjudicator required to make a decision on the evidence presented by the prison authorities and the inmate. The process has the usual hallmarks of an adversarial contest to which the principles of natural justice apply – the laying of a charge to be proved beyond reasonable doubt, the calling of evidence by the parties at a hearing and the right to cross-examine. The adjudicator is not required or empowered to conduct his or her own investigations outside the hearing. The Visiting Justice’s role under ss33 and 35 is distinct from that performed under s10(3) (see para [10] above).
Whilst in practice Superintendents and Visiting Justices correctly see the need to assist inmates in presenting their cases, they can do little more than a Judge confronted with a case in which a party is legally unrepresented. Any judicial officer in that situation will intervene to try to clarify the issues and will make suggestions about the matters upon which the litigant should concentrate questioning and argument. At most, there is a slight inquisitorial element, but the task remains fundamentally one of adjudication between the cases which the parties have chosen to present.
Since the hearing of argument in this case the House of Lords has given judgment in R v Secretary of State for the Home Department, Ex Parte Daly, 23 May 2001, [2001] UKHL 26, a case concerning the validity of a policy governing the searching of cells of prisoners in England and Wales. Lord Bingham of Cornhill made a general observation very pertinent to the present case:
5. Any custodial order inevitably curtails the enjoyment, by the person confined, of rights enjoyed by other citizens. He cannot move freely and choose his associates as they are entitled to do. It is indeed an important objective of such an order to curtail such rights, whether to punish him or to protect other members of the public or both. But the order does not wholly deprive the person confined of all rights enjoyed by other citizens. Some rights, perhaps in an attenuated or qualified form, survive the making of the order. And it may well be that the importance of such surviving rights is enhanced by the loss or partial loss of other rights. Among the rights which, in part at least, survive are three important rights, closely related but free standing, each of them calling for appropriate legal protection: the right of access to a court; the right of access to legal advice; and the right to communicate confidentially with a legal adviser under the seal of legal professional privilege. Such rights may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment. [Emphasis added]
This observation is to be borne in mind in considering whether s45(1)(19), in authorising the making of regulations prescribing the procedures for the hearing of complaints relating to disciplinary offences empowers the making of a regulation which, in absolute terms, denies to a charged inmate any legal representation at the disciplinary hearing. Regulation 144 does so, moreover, when s33(2) expressly provides for the right of an inmate to be heard and to cross-examine any witness.
It was Mr Butler’s submission, for the respondents, that, although observance of the principles of natural justice is a fundamental right, the existence of a right to legal representation at a hearing is not an essential component of natural justice and that adequate protection for a charged inmate can be, and is, provided by the combination of the other means to which he referred the Court (see para [37] above).
The respondents have not been able to satisfy us, however, that those other protections are fully adequate to ensure a fair hearing in all cases before a Visiting Justice, at which the inmate is at risk of substantial penalties. Where those protections are inadequate, the inmate is being denied natural justice and, in terms of s33(2), is, in effect, being denied the right to be heard; for that right must be taken to be one intended to be exercisable by the inmate in a process complying with the principles of natural justice. Where, without legal representation, inmates are out of their depth in conducting cross-examination because of the complexity of the evidence or the particular inmate’s intellectual limitations, the right to cross-examination promised by s33(2) is effectively denied.
It is true that, in theory, reg144 does not prevent an inmate’s lawyer from being present at the hearing. To that extent, the inmate can be said to have access to legal advice at the critical time, but the lawyer cannot speak for the client. Plainly, it is not intended that the lawyer may play any significant role in proceedings. Indeed, if the lawyer were to try to do so by suggesting detailed questions to the inmate, the hearing might be prolonged even more than if the lawyer were permitted to undertake the questioning of the prison authority’s witnesses. (The regulations permit a support person to be present and to speak if invited to do so (reg139) but there was nothing before the Court to suggest that this often occurs. The Report of the Committee on the Prison Disciplinary System presented to the Home Department in 1985, known as the Prior Report, indicated that in England such an arrangement was found to be of little practical use.)
In our view, it is necessary to look only to what happened to Mr Drew to find a case where the various safeguards mentioned by Mr Butler were insufficient. We say this not because Mr Drew’s defence failed, but because a perusal of the record of the hearing before the Visiting Justice strongly suggests that, without representation by someone skilled in cross-examining an expert witness, this inmate was at a significant disadvantage in trying to defend himself. He really had no idea how to question the witness and to put to her the contrary opinion of Dr George. He struggled to do so even after receiving some guidance from the Visiting Justice, who clearly was trying to redress the imbalance between witness and inmate.
Yet Mr Drew is a mature person who appears to be of at least average intelligence. Nor is it apparent from the transcript and other evidence that he suffers from any psychological problem which might have impeded his ability to defend himself. For an inmate who was deficient in any of these respects, the problems in presenting a defence to the type of case faced by the appellant would have been even worse.
In the light of what occurred in this case, it does not seem to us to be a reasonable response for the Crown to say that the independence and role of the Visiting Justice, along with the pre-hearing procedures and the right to take advice from a lawyer before the hearing, will always ensure that an inmate receives a fair hearing. No criticism of Judge Noble is intended when we say that his interventions to assist Mr Drew have not dispelled the impression of unfairness.
It would also, in our view, be asking too much of an inmate in Mr Drew’s position, to expect him to be able, on receiving notification of the case against him, to prepare an adequate defence on the basis of advice from a lawyer about what might transpire at the hearing, including advice about how cross-examination might be conducted to good effect. As is well-known, lawyers themselves are frequently caught by surprise at the way evidence emerges in the witness box. And many prisoners, even if advised in advance by a lawyer, simply do not have the ability to absorb and follow that advice when actually engaged in an adversarial or semi-adversarial hearing, particularly when under the pressure which comes from a realisation of the consequences if the defence fails. We are speaking here, we should emphasise, not of inmates with disabilities for whom advocate support (not apparently involving legal representation) appears to be available (see para [37] [m] and [n] above), but of inmates of average intelligence without forensic experience.
We summarise the factors which draw us to the conclusion that Visiting Justices must have the power when exercising their jurisdiction under ss33 and 35 of the Act to decide whether a prisoner should have legal representation:
The decision makers hold judicial office and exercise judicial power
They follow a procedure which is essentially that of a court
They may have to resolve difficult issues of fact and law
The prisoners may not be able, if unrepresented, to address effectively those issues – to the disadvantage both of themselves and the decision maker
The penalties may be substantial; in the regular criminal justice system they would call for legal representation
While representation will involve increased costs and cause delay, the legislation itself incorporates elements of delay and the costs and time are justified by the advantages of better and fairer processes.
It would have been permissible under s45(1)(19) to make a regulation which denied legal representation where that was appropriate to the particular circumstances and the particular inmate, but this empowering provision cannot have been intended by Parliament to authorise the making of a regulation which, in its operative effect, results in some hearings which may be conducted in a manner contrary to the principles of natural justice. For the reasons given, we are satisfied that this is bound to occur if legal representation is always denied to an inmate regardless of the seriousness of a charge, the complexity of the case or the analytical ability of the inmate. Nor can it have been intended by Parliament that there be a regulation which in some circumstances denies in practical effect the rights conferred by ss33(2) and 34(2). We accordingly conclude that reg144 is ultra vires the regulation making power in s45.
We have been able to reach this conclusion applying common law principles of construction, guided by the principles of natural justice. We have found no need to refer to the guarantee of the observance of those principles in s27 of the Bill of Rights, although that guarantee necessarily affirms and strengthens the appellant’s case on the ultra vires ground. A total denial of legal representation cannot possibly give proper recognition to the right. It could not, in terms of s5 of the Bill of Rights, be a reasonable limit on the operation of the principles of natural justice. In truth, as Mr Shaw pointed out, natural justice is itself a flexible concept which adapts to particular situations. Where its principles apply there is no room and no need for the operation of s5.
It is therefore not really necessary to respond to Mr Butler’s argument that the regulations in question are protected by s4 of the Bill of Rights. However, we are satisfied that this argument is so plainly erroneous that it is desirable that we despatch it in the present case rather than leave any lingering doubt that it might have had validity. Counsel was correct, of course, when he said that a regulation is an “enactment.” Section 29 of the Interpretation Act 1999 confirms that position. But the answer to counsel’s argument is that, in striking down the regulations because they are ultra vires the empowering section (s45), the Court is not doing so only because they are inconsistent with the Bill of Rights. To the extent that it is necessary to refer to the Bill of Rights, the regulation is invalid because the empowering provision, read, just like any other section, in accordance with s6 of the Bill of Rights, does not authorise the regulation. The Court merely gives s45 a meaning that is consistent with the rights and freedoms contained in the Bill of Rights. In accordance with s6, that meaning is to be preferred to any other meaning. As Mr Wilding said, s4 is not reached.
The position being, as we have held, that reg144 is invalid, it follows that the Visiting Justice should not have denied Mr Drew legal representation simply because of the existence of that regulation. He should instead have considered whether, in the particular circumstances, natural justice required that Mr Drew be represented at the hearing by a lawyer, as he had requested.
It is well established in England that where the disciplinary regime does not deal expressly with the question of legal representation – as must now be taken to be the case with the Act and regulations – the tribunal has a discretion in the matter. An inmate is not entitled as of right to legal representation but the tribunal must exercise its discretion consistently with the principles of natural justice, or, as was said in Tarrant (at p273), “fairly and properly”. As Lord Denning MR said in Maynard v Osmond at p252,
even if he should not be entitled as of right, I should have thought that as a general rule the tribunal should have a discretion in the matter…They are the masters of their own procedure: and, unless clearly forbidden, should have a discretion to permit it.
It seems to us that the following considerations listed in Tarrant (at p285-6) provide appropriate guidance, as it appears the Department itself thought when making its submissions to the Ministerial Committee in 1989. For convenience we restate them, noting that the list is not intended to be comprehensive:
(1)The seriousness of the charge and of the potential penalty;
(2)Whether any points of law are likely to arise;
(3)The capacity of a particular prisoner to present his or her own case;
(4)Procedural difficulties likely to be encountered;
(5)The need for reasonable speed in making the adjudication; and
(6)The need for fairness as between inmates and as between inmates and prison officers.
In view of the nature of the charges which can be heard by a Superintendent and the restricted nature of the available penalties, and bearing in mind that there is a right of appeal to a Visiting Justice who is required to rehear the matter, it should be a very rare event that natural justice will require that an inmate be legally represented at a Superintendent’s hearing. In Hone (p392), the House of Lords said that it would be difficult to imagine that natural justice would ever require legal representation before a Prison Governor, though it was not absolutely ruled out. We think this statement may have been a little too sweeping for application to the Act in this country.Consideration will have to be given to representation if the inmate is very young or under a disability, if the matter, though minor, is of unusual complexity or if there is a real prospect that the Superintendent may decide at the hearing to refer the matter for criminal prosecution. But otherwise it should not be necessary. Irregularities and unfairness can be cured by the process of appeal to the Visiting Justice which involves a complete rehearing (Reid v Rowley [1977] 2 NZLR 472, Calvin v Carr [1980] AC 574 and Nicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385, 435-437).
Where the matter is before a Visiting Justice, either under s33 or on appeal, it will be open to the Visiting Justice to conclude that a fair hearing does not require legal representation of the inmate. For example, although the charge may be under s32(2) and may even concern an act which also constitutes the commission of a crime, it may be clear that the likely penalty, if there is a disciplinary conviction, will not involve any substantial period of postponement of release date, that there are no factual or legal complexities and that in the circumstances the particular inmate has the capacity to present his or her own case. An example might be an uncomplicated assault on another inmate which is not going to be the subject of a criminal charge.
The experience in England suggests that in a comparatively small number of cases only will the Visiting Justice’s discretion be required to be exercised in favour of permitting legal representation. The Prior Report stated that, even after Tarrant, “representation is still to be seen as the exception rather than the rule” (para 10.5).
The Committee observed also, it may be noted, that Boards of Visitors handling cases with legal representation of the prisoner had found it helpful in clarifying the issues and having the evidence in, perhaps complex, cases presented in a relevant, clear and logical manner (para 10.23). It may be, therefore, that there will not prove to be the delays and complexities about which Mr Butler expressed concern. In any event, administrative difficulties or inconvenience alone are not a basis for depriving an inmate of the right to a fair hearing (R v Board of Visitors of Hull Prison, ex parte St Germain (No.2) [1979] 1 WLR 1401, 1406). The system already accommodates periods of delay, for example, in the need to wait for the results of drug testing and in the periods of time allowed for preparation for hearing and for appeals, as shown in this case where the hearing by the Visiting Justice was three months after the drug test sample was taken. In a case in which there is particular need for speed, that requirement can be taken into account when the question of legal representation is considered.
Section 24 and 25 of the Bill of Rights
We have not found it necessary to determine whether prison disciplinary offences under the Act fall within the expression “offence” in ss24 and 25 of the Bill of Rights. The Canadian authorities to which the High Court Judge referred suggest they do not, but, as Mr Shaw submitted, something can be said the other way. The point was not the focus of oral argument and is better left for another day.
On the assumption that the sections could have application, we are of the view that, provided the adjudicator’s discretion whether to permit legal representation of an inmate is exercised in accordance with natural justice, the resulting decision would satisfy the relevant requirements of the sections. A proper application of natural justice principles will result in a reasonable and proportionate response to those guarantees so far as they relate to legal representation. Similarly, proper exercise of the discretion will ensure compliance with New Zealand’s obligations under Article 14 of the International Covenant or Civil and Political Rights (the right to a fair trial).
Legal aid
If reg144 were otherwise valid, we would not have read it as denying legal aid to an inmate. The intent of the words “at his or her own expense” seems to have been, as Mr Butler said, just to ensure that the Department of Corrections did not have to foot the bill.
Decision in the particular case
We have already said sufficient to indicate that we consider that the Visiting Justice should have exercised his discretion to permit Mr Drew to have legal representation before him. We do not say this because the appellant was facing substantial penalties. He was not. The matter came to the Visiting Justice on appeal. He could do no more, upon convicting Mr Drew, than impose the penalties available to the Superintendent. There was also no question of referring the matter to a Court for criminal proceedings. However, Mr Drew’s defence involved challenging the expert opinion of Dr Russell by putting to her the views of Dr George. This appeared to require a skill in cross-examination which Mr Drew was unlikely to possess and, in hindsight, proved not to have. Because the Visiting Justice erroneously understood that reg144 gave him no discretion, the Visiting Justice gave these relevant matters no consideration. The hearing consequently took place without legal representation and therefore, in the particular circumstances, in breach of the principles of natural justice, as affirmed by s27 of the Bill of Rights.
Result
The appeal is allowed. The conviction under s32A(1)(a) and the penalties imposed on Mr Drew are quashed. In view of the less serious nature of the charge and the lapse of time since the result of the drug test, the prison authorities may consider that the charge should not now be further pursued.
There will be a declaration that reg144 is ultra vires s45(1)(19) of the Act and is void accordingly.
Costs of $10,000 on the appeal are awarded to the appellant. The first respondent must also pay Mr Drew’s reasonable expenses, including his counsel’s travel and accommodation, to be fixed if necessary by the Registrar. Costs in the High Court are to be determined in that Court in light of this judgment.
McGRATH J
I agree with the conclusion of the other members of the Court that reg144 of the Penal Institutions Regulations 1999 is ultra vires s45(1)(19) of the Penal Institutions Act 1954. That is because the regulation precluded the Visiting Justice from exercising a discretion to permit legal representation of Mr Drew at the hearing of his appeal against the earlier disciplinary decisions of the Deputy Superintendent of the prison.
It follows that I agree with the result of the appeal as expressed in the final three paragraphs of the judgment delivered by Blanchard J. I do not however agree with the wider observations in that judgment indicating that the prohibition under reg136(4) on legal representation at hearings taking place before a Superintendent is also ultra vires s45(1)(19). There are in my opinion important differences, reflected in the Act, in the nature of the role of the respective adjudicators at the different levels of the prison disciplinary process. In outlining why I see these distinctions import the requirements of natural justice to the process to different degrees I adopt the comprehensive discussion of the facts and setting out of the relevant provisions of the Act and the regulations in the judgment of the other members of the Court.
The Penal Institutions Act provides for a regime of prison discipline that is separate from the criminal justice system. It reflects the particular need in the prison context to maintain order within the institutions by punishing conduct which undermines proper authority or orderly community living. Closely linked to the imperative of continuing order is the maintenance of the integrity of prison security, which includes security against the introduction and use of illegal drugs within the prison. It is a complaint in relation to the events of unauthorised use of drugs within the prison that gave rise to the disciplinary proceedings against Mr Drew which have become the subject of this appeal.
At the heart of the statutory scheme for prison discipline is the policy that is shared with many countries that responsibility for dealing with misconduct by prisoners should, in general, form part of the governmental function of prison management. In this context the Act contemplates that the principal burden of disciplinary adjudication should fall on those responsible for the operation of the prison. That is achieved by providing under the Act a two tier disciplinary process. At the first level the prison disciplinary system is administered by the senior officers in the prison, with the aim that the great majority of incidents will be dealt with at this level in a fair, timely and effective manner consistent with the need to maintain order. An important safeguard for prisoners who become subject to the process at this level is a right of appeal against any finding by the Superintendent that a complaint concerning an offence against discipline has been proved and against the penalties that may consequently be imposed (s35).
At the second level of the disciplinary system an independent outside adjudicator is introduced in the form of the Visiting Justice who must be either a District Court Judge or a Justice of the Peace appointed by the Minister (s10). The function of the Visiting Justices is both an appellate and a first instance one. They hear appeals from the decisions of Superintendents by way of a re-hearing of the whole case. (s35(2)). They also have a first instance role, which overlaps with that of the Superintendents, in that Visiting Justices are given power to hear complaints relating to any offence against discipline (s33(1)). However, because they have exclusive jurisdiction over the disciplinary offences in the more serious category specified by s32(2), and have jurisdiction also to impose more severe penalties following their findings at first instance that offences have been proved, this aspect of the functions of Visiting Justices functions is also appropriately seen as part of the second tier of the disciplinary system. The two tier scheme is also reflected in the power conferred on a Superintendent, at any time in the course of the process before imposing a penalty, to refer a case to a Visiting Justice to be dealt with under the Justice’s first instance powers (s34(4)(a)).
The Act also envisages that both Visiting Justices and Superintendents may decline to proceed with the hearing of a complaint and cause an information to be laid before the Courts in relation to the circumstances of the case (ss33(4) and 34(4)(b)). This recognises that the restrictions in the scope of the disciplinary system make it inappropriate to deal with the most serious incidents of misconduct in prisons. It is however plain that merely because the facts alleged in relation to a particular complaint would constitute a crime if proved before a Court having criminal jurisdiction, that does not preclude the complaint being determined at one level or other of the prison disciplinary system.
By comparison with the criminal justice process the disciplinary system provides for significantly less severe maximum penalties than those dealing with equivalent conduct under criminal statutes. For example, had Mr Drew been charged in the criminal jurisdiction of the District Court under s7 of the Misuse of Drugs Act with possession of a Class A drug, he would have been at risk had the crime been proved of a maximum penalty of six months imprisonment cumulative on his current sentence. Furthermore the implications of a finding that a disciplinary charge has been proved are less far reaching than those of a criminal conviction, as the finding will not form part of any record available for reference on occasions of future criminal sentencing.
But there are advantages also for a prisoner whose alleged offending against discipline is heard by a Superintendent at the first level of the disciplinary process rather than the second. The maximum penalty that the Superintendent could impose on Mr Drew was that which was imposed, namely loss of remission of seven days, loss of privileges for 28 days and cell confinement for seven days. Had the complaint been referred to a Visiting Justice for decision the maximum periods of punishment that could have been imposed by way of loss of remission and privileges would have been three months and of cell confinement fifteen days.
There are also, in my opinion, indications within the statute that at both levels of the prison disciplinary system the adjudicator is required to ascertain the relevant facts and to be prepared to that end, in a spirit of impartial inquiry, to question the inmate charged with the offence and any persons able to assist. This follows from the power of the adjudicator in hearing a complaint to “examine any person concerning the alleged offence” (ss33(1) and 34(1)). The Act expressly stipulates that such examination is to be in the presence and the hearing of the prisoner charged (s33(2), s34(2)). This indication that there is an inquisitorial aspect to the respective disciplinary functions reflects the overall importance in the disciplining of prisoners of ensuring the use of authority within the institution has been lawful, reasonable and fair. It is to be distinguished from the procedure of a Court of criminal jurisdiction where it is fundamental that the process is adversarial rather than inquisitorial. (Wade & Forsyth, Administrative Law (8th Edition (2000) p906).
It is plain that the great bulk of disciplinary complaints are heard at the first level of the system. In the years 1998, 1999 and 2000 respectively there were 511, 841 and 892 hearings by Visiting Justices of which 175, 365 and 361 were first instance hearings. The average national prison muster is currently 5,835 a figure expected to rise to 6,500 by 2005. Accurate national figures for hearings by Superintendents are not available but on the estimates given us in the Crown’s submissions could be around 8,800 each year. It is clear on that basis that less than 7% of the first instance case-load comes before the Visiting Justices. The theme of expedition, and in particular the desirability of early finality, in relation to findings of guilt and penalties imposed by Superintendents, is reflected in the statutory direction to the Superintendent to cause any case the subject of an appeal to be brought before a Visiting Justice as soon as possible (s35(1)). Less than 10% of the Superintendents’ decisions are presently the subject of appeals. All penalties imposed by Superintendents are suspended until the appeal is disposed of (s35(4)).
In relation to application of the rules of natural justice in the prison disciplinary process, Parliament has only stipulated that every hearing by both a Superintendent and a Visiting Justice shall be in the presence and hearing of the inmate charged with the offence, who shall be entitled to be heard and to cross-examine any witness (ss33(2) and 34(2)). This expression of what natural justice requires is clearly not complete and, in particular, the Act is silent on the right to legal representation at disciplinary hearings.
In England in R v Secretary of State for the Home Department ex parte Tarrant [1985] QB 251 the Divisional Court recognised that natural justice could, in some circumstances, require a right to legal representation before hearings of a prison Board of Visitors. At that time the Boards heard the more serious categories of disciplinary cases. Prison governors were restricted to the imposition of penalties of a maximum loss of 28 days remission. In Tarrant the prisoners had been found guilty of charges which included mutiny following disturbances in prisons. The Divisional Court found it was in breach of natural justice for the Board to fail to consider whether they should be legally represented in the proceedings before them. The case required consideration of that question by reference to what has come to be called “the Tarrant stamp”, consisting of considerations which every Board should address to decide whether or not to exercise a discretion to permit legal representation at the disciplinary hearing or to allow the assistance of a friend or advisor. The considerations in summary are:
the seriousness of the charge and the potential penalty;
whether any points of law of difficulty are likely to arise;
the capacity of particular prisoners to present their own cases effectively (having in mind in particular a mentally sub-normal prisoner).
procedural difficulties such as having to cross-examine witnesses, particularly experts at short notice.
the need for reasonable speed in making their adjudication;
the need for fairness as between prisoners and between prisoners and prison officers.
In R v Maze Visitors, ex parte Hone [1998] AC 379 the House of Lords held that it did not follow that simply because the facts, the subject of a disciplinary charge, would in law constitute a crime that the rules of natural justice required the Tribunal to grant a right of legal representation. In delivering the judgment of the House of Lords, Lord Goff observed that both prison Governors and Boards of Visitors were bound by rules of natural justice in exercising their disciplinary functions but that nevertheless there was a difference in what the rules required between the two forms of adjudication. Lord Goff went on to say:
The difference between them is not so much a legal as a practical difference. The jurisdiction exercised by the governor is of a more summary nature, and should properly be exercised with great expedition; furthermore the punishments which he can award are limited…, though he can refer to the Secretary of State (and, through him, to a board of visitors)...if he considers that it may be desirable that a more severe punishment should be awarded. In the nature of things, it is difficult to imagine that the rules of natural justice would ever require legal representation before the governor. But though the rules of natural justice may require legal representation before a board of visitors, I can see no basis for Mr Hill’s submission that they should do so in every case as of right. Everything must depend on the circumstances of the particular case, as is amply demonstrated by the circumstances so carefully listed by Webster J in Reg. v Secretary of State for the Home Department, Ex parte Tarrant [1985] QB 251 as matters which boards of visitors should take into account.
Lord Goff’s observation that it was difficult to imagine that the rules of natural justice would ever require legal representation before the Governor was made in the context of a disciplinary system established by rules under the Prison Act (Northern Ireland) 1953. These rules provided that the maximum penalties that might be imposed by a Governor included loss of remission for a period not exceeding 28 days. Penalties that could be imposed for more serious offences by the Board of Visitors were considerably more substantial.
Although no reason was stipulated for the difference in approach it seems clear that the House of Lords considered that the rules of natural justice did not require that consideration be given to legal representation of the prisoner facing the lower level process because of the more restricted penalties that might be imposed by a Governor. A recent English text indicates that currently the number of adjudications where a prisoner is legally represented at the first level has fallen to a handful every year. (Livingstone and Owen, Prison Law, 1999, O.U.P. para 9.42).
In my opinion it is a matter of necessary implication, from the right to cross‑examine witnesses under s33(2), that a prisoner facing disciplinary proceedings before a Visiting Justice, at first instance or on an appeal, must have the right to seek to be legally represented. As well the Visiting Justice must have a discretion to permit such representation if the particular circumstances of the case require that degree of protection. This right arises from s33(2), read in the context of the statutory scheme for second level disciplinary proceedings under the Act, and the impact they have on the requirements of the rules of natural justice.
Three elements of the second level of the system lead me to this view. Of particular significance is that both appellate and first instance hearings at this level of the process are presided over by a judicial officer who is independent of prison administration. This feature of itself signals the importance the Act attributes, at this stage of the process, to the rules of natural justice and the lesser significance of considerations of prison administration in the exercise of the adjudicative functions of the Visiting Justices.
Secondly, in the context of their appellate jurisdiction, the Visiting Justices are scrutinising the outcome of the internal first level prison disciplinary process. While this takes place in the context of a fresh hearing the Justices effectively are addressing an appellant’s complaint about the earlier outcome. Part of the importance of this appellate stage within the system lies in its ability to correct any errors in the earlier adjudications by prison administrators (Reid v Rowley [1977] 2 NZLR 472).
Thirdly, in the context of first instance hearings by the Visiting Justices, the penalties that may be imposed are potentially severe and in this respect it is to be borne in mind that in practical terms the second tier procedure at first instance is reserved for complaints of offences involving more serious alleged misconduct.
In my view these elements, together, indicate a statutory intention that the right under s33(2) to cross-examine witnesses in the course of second level prison disciplinary processes is to be accompanied by natural justice protections appropriate to the circumstances of the case. At times these will include the right to be legally represented in the course of the process having regard to factors such as those discussed in ex parte Tarrant. I also agree with the other members of the Court that Mr Drew’s appeal to the Visiting Justice was such a case. That is due to the reasonable need in the circumstances, in defending the complaint, to cross-examine an expert witness on matters of science.
Because reg144 precludes representation of a prisoner by a lawyer before the Visiting Justice, whatever the circumstances of the case, in my opinion it follows that it is inconsistent with s33(2) of the Act and is therefore ultra vires s45(1)(19) of the Act.
While the statutory stipulation to allow cross-examination of witnesses is the same at the first level of the disciplinary process as at the second the extent of the requirements of natural justice differ. As previously discussed at this stage the disciplinary process forms part of the prison management function and is administered by the senior prison managers. The Act envisages, in my opinion, that the scope of the duty of fairness in adjudication and the requirements of natural justice must accommodate to a reasonable extent the constraints of effective prison administration. These include the need for a measure of expedition in the process.
Furthermore, the decisions of Superintendents are subject to the appeal process stipulated by the Act which can, in the context of a fresh hearing before an independent judicial officer be expected to cure deficiencies in the first level process, in particular deficiencies said to arise from mistakes of a legal kind. Finally, and most importantly, the severity of the maximum penalties that may be imposed by Superintendents is considerably less than at the second tier. In particular the maximum period of loss of remission and the lesser penalty of cell confinement are set at 7 days. This factor in particular, in my opinion, gives the first tier of the prison disciplinary scheme a low-level, complaint related character
In this context, and having regard to the need to administer a disciplinary system for a current national prison muster of 5,835 involving over 8,000 complaints each year, in my opinion it cannot be considered contrary to the rights given under s34 of the Act, the Act as a whole, or the principles of natural justice to promulgate regulations which preclude legal representation of prisoners who are subject to the first level of the disciplinary process. In my opinion it is open to the Governor‑General in Council to conclude that to require prison authorities to evaluate requests for legal representation at such hearings, and to accommodate the delays in adjudication and the expense that will inevitably result from such representation, would be an inappropriate additional burden on prison administration.
I have not overlooked the concern at the position in relation to inmates with disabilities. However there are aspects of the process which plainly cater for their situation. Inmates with disabilities that interfere with their ability to function independently are provided with advocate support in their preparation for disciplinary hearings. Inmates who are not able to communicate in English are provided with accredited interpreters and access to translation services, both in the preparation of their cases and when appearing at disciplinary hearings. (Public Prisons Service Policy & Procedures Manual: Sections D.01 and D.14 respectively). If such administrative policies prove inadequate that will be corrected on appeal to Visiting Justices and new policies put in place.
It is to be borne in mind that in the great majority of cases the offences that are heard at the first tier are neither of particular complexity nor particular seriousness. The Regulations allow for a prisoner to have been able to receive advice prior to the hearing from a lawyer as to what the likely issues would be and what witnesses it would be desirable to call. Inmates may also have support persons present at disciplinary hearings who as in this case may include a lawyer. They are not however permitted to speak unless invited by the Superintendent to do so (reg139).
Overall under the Penal Institutions Act the first level of the disciplinary process imposes the rules of natural justice on the adjudicator but not, in my opinion, to the extent that requires a right to apply for legal representation at the hearing, coupled with a discretion in the Superintendent to permit it. I regard the similar approach taken to an equivalent two tier disciplinary system by the House of Lords in Ex parte Hone as both sound in principle and consistent with the nature of a process which needs to be expeditious and effective as well as fair. Accordingly in my view the Act empowers a Regulation in the form of reg136(4) which precludes representation by a prisoner’s legal adviser at a disciplinary hearing conducted by a Superintendent.
Solicitors:
Glover Sewell, Christchurch for Appellant
Crown Law Office, for Respondents
N B Dunning, Wellington for Intervener
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