Forrest v Chief Executive of the Department of Corrections

[2014] NZHC 1780

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2014-485-202 [2014] NZHC 1780

BETWEEN

BRENDON DOUGLAS FORREST

Plaintiff

AND

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Defendant

Hearing:	28 July 2014
Appearances:	B Forrest appearing in person K Laurenson for the Defendant
Judgment:	29 July 2014

JUDGMENT OF MALLON J

Introduction

[1]      Mr Forrest is a serving prisoner.   He applies for judicial review of the requirement imposed by the Chief Executive of the Department of Corrections (Corrections) that prisoners wear orange overalls when receiving visitors.   The grounds for review are that the decision is unreasonable and that it breaches s 23(5) of the New Zealand Bill of Rights Act 1990 (NZBORA).  Before me is Corrections’ application to strike out Mr Forrest’s application on the grounds that it discloses no reasonable cause of action and is frivolous and vexatious.

Background

[2]      Mr  Forrest’s  statement  of  claim  sets  out  arrangements  for  prison  visits. Visitors must go through an approval process and, if approved, they must give notice of the intended visit.   On the day of the visit the visitor must produce photo identification.  The visitor must go through a scanner to ensure that no contraband is

entering the prison.  The prisoner is taken to the main visiting area of the prison and

FORREST v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2014] NZHC 1780 [29

July 2014]

subjected to a rub down search.  They are then required to put on fluorescent orange overalls.  The purpose of the overalls is to prevent or minimise contraband coming into the prison.   At the conclusion of the visit the prisoner is subjected to a strip search.

[3]      Although not the subject of affidavit evidence, for the assistance of the Court I  was  informed  by  counsel  for  Corrections  and  by  Mr  Forrest  that  sentenced prisoners are required to wear prison-issued clothing when they are in prison.  This generally takes the form of a grey or green tracksuit which has pockets.  The orange overalls are worn for the short period of the visit.   Prison visits take place in a visiting room at certain times allocated for such purpose.  All prisoners receive their visits together in this room.  A table and chairs are provided for each prisoner.  The visits are supervised by Corrections officers and there are security cameras.  There is heating in the visitor’s room.

[4]      Counsel for Corrections advises that, so far as she has been able to ascertain, the requirement to wear orange overalls during visits is not set out in a written document.   Rather it is a long standing practice that applies to prisons around the country.  Mr Forrest says it has been the practice so far as he is aware for about five years.

[5]      Mr Forrest pleads that he has complained to Corrections and to an Inspector of Corrections about the requirement to wear overalls.   This has not resolved the issue.   By way of elaboration at the hearing, he advises me that his complaint to Head Office was made to Ms Julie Miller.  Counsel for Corrections has provided me with a letter dated 13 February 2014 in response to Mr Forrest’s complaint to Head Office.    In  that  letter  Ms  Miller advises  that  the orange overalls  are  to  enable prisoners to be clearly identified at all times in order to better observe prisoners, to assist in minimising the risk of prisoner escapes when visitors depart, and to help minimise  the  risk  of  contraband  being  introduced  into  the  prison.    Mr  Forrest confirms that he has a copy of this letter.

[6]      Also by way of elaboration, Mr Forrest advises me that his complaint to the

Inspector was to Ms Rimmer.   He says that Ms Rimmer called him to discuss his

complaint but he has not heard further from her.   He has not complained to the Ombudsman.  However a complaint to the Ombudsman on another matter produced the response that, given that judicial review proceedings were underway in relation to that matter, there was an adequate right or remedy available to Mr Forrest.  By inference the same response could be expected if Mr Forrest were to complain to the Ombudsman about the present matter while this proceeding is on foot.

[7]      As this is a strike out application, Corrections proceeds on the basis of the pleadings.  It notes that if this were to proceed to a hearing it would adduce evidence as to the purpose of the requirement (as set out in the letter from Ms Miller), the circumstances in which prisoners are strip searched after visits and the steps Mr Forrest has taken to raise his concern about the requirement through other avenues.

The legislative power

[8]     Prisoner clothing is dealt with under the Correction Regulations 2005. Specifically reg 68 provides:

68       Clothing

(1)       Prisoners  may  wear  their  own  clothing  and  footwear,  except  as provided in subclauses (3) and (4).

(2)       The manager must provide clothing or footwear to a prisoner on request by that prisoner, as long as the manager is satisfied that the request is reasonable.

(3)       The manager may require a prisoner who is not an accused prisoner to wear clothing or footwear provided by the prison.

(4)       The manager must require a prisoner (whether an accused prisoner or not) to wear clothing or footwear provided by the prison if the prisoner's own clothing or footwear is—

(a)      generally insufficient or unfit for use; or

(b)      insufficient or unfit for a specific activity or work in which the prisoner is engaged.

(5)      Clothing or footwear that is provided by the prison must be—

(a)      suitable for the activities or work likely to be undertaken by the prisoner who is wearing that clothing or footwear; and

(b)      adequate for safety, warmth, comfort, and health.

(6)       Clothing (other than clothing for a specific activity or work) that is provided to accused prisoners must be distinguishable from clothing provided to other prisoners.

[9]      Accordingly, pursuant to reg 68(3) Corrections are able to stipulate what clothing  a  sentenced  prisoner  must  wear  generally  and  when  receiving  visits. Pursuant to reg 68(5), where the prison provides that clothing, it must be suitable for the activities undertaken by the prisoner (in this case, suitable for receiving visits in the prison) and adequate for safety, warmth, comfort, and health.

[10]     Searches before or after visits are dealt with in the Corrections Act 2004. Section 28(3) provides that an officer may conduct a strip search of a prisoner in certain  circumstances.    Under  s  98(6)  those  circumstances  include  immediately before or after any person has visited the prisoner.  This power is limited by s 98(5) which provides:

The power to conduct a strip search of a prisoner under subsection (3) may only be exercised –

(a)       for the purpose of detecting any unauthorised item; and

(b)       if a strip search is necessary in the circumstances for the purpose of detecting an unauthorised item.

[11]     Accordingly, a strip search at the end of a prison visit is permitted providing it is for the purpose of finding contraband items and the strip search is necessary in the circumstances for that purpose.  It is because of those limits on the power that Corrections says that strip searches are not universally conducted at the conclusion of a visit, although for the purposes of this strike out it accepts that they ordinarily are conducted.

Assessment of strike out application

[12]     The first issue raised on this strike out application is whether the requirement to wear orange overalls is properly a matter for High Court intervention.  Corrections submits that it is not.  It submits that the clothing prisoners are to wear is a day to day prison management decision.  As such, barring something clearly inappropriate

about the decision, Corrections submits that it is not a matter in which the Court should become involved and other avenues for complaint are more suitable.1

[13]     Mr Forrest responds by referring to the recent case in which there was a successful judicial review of a school principal’s decision to suspend a student from school for not cutting his hair.2    He says if that can be judicially reviewed, then a decision about what prisoners must wear should be susceptible for review as well. Counsel for Corrections points out the different statutory context under which a school suspension decision is made.3    That said, Corrections does not submit that prisoner clothing could never be susceptible to judicial review.   Counsel gave the example of clothing which was clearly inadequate for year round warmth.

[14]     For present purposes I proceed on the basis that a decision as to the clothing that all prisoners must wear when receiving visitors is potentially susceptible to review.    Whether  the  Court  ought  to  entertain  an  application  to  review  such  a decision will depend on the requirement that is imposed.  As Corrections submits, the choice of clothing is in the ordinary course a day to day decision in which the Court should not become involved absent something particularly inappropriate about that decision.

[15]     The second issue is whether it is reasonably arguable that the requirement to wear fluorescent orange overalls is an unreasonable decision.4   Mr Forrest says that the  overalls  are  unnecessary  because  there  are  procedures  in  place  for  visitor approval,  visits  are  supervised,  there  are  a  number  of  cameras  operating,  and prisoners are strip searched.  He says that these other measures prevent contraband entering the prison and it is therefore unnecessary to also require prisoners to wear the overalls.  He also says that it is unnecessary to have a blanket policy that applies to  all  prisoners,  when  prisoners  have  different  assigned  security  classifications

ranging from minimum, low, low medium, high, and maximum security.

1      Greer v Prison Manager at Rimutaka Prison HC Wellington CIV-2008-485-1603, 18 December

2008; Daemar v Hall [1978] 2 NZLR 594 (SC); Taylor v Chief Executive of the Department of

Corrections [2010] NZCA 371, [2011] 1 NZLR 112.

2      Battison v Melloy [2014] NZHC 1462.

3      Education Act 1989, s 14(1)(a) provides that a decision to suspend a student has to be based on “reasonable grounds” which is regarded as increasing the prospects of judicial intervention into school disciplinary proceedings: see Battison v Melloy, above n 2, at [38] and [39].

4      That is, a decision that no reasonable person in the position of the defendant could have made.

[16]     I am satisfied that it is not reasonably arguable that the requirement to wear the overalls is unreasonable.  The orange overalls are not a particularly unusual item of clothing.  Others outside the prison may wear clothing of this kind in situations where  visibility  is  important.    It  is  apparent  that,  for  security  purposes,  ready visibility of prisoners during prison visits is important.  The overalls also assist with minimising contraband items from being passed to prisoners during visits because they make it more difficult for prisoners to hide those items.   The overalls are therefore suitable clothing for their intended purpose(s).

[17]     It is the case that there are other measures which are also aimed at preventing contraband items from coming into the prison.  However that does not mean that the additional measure of the overalls is unreasonable.  There is no guarantee that the other measures will be completely effective.  A strip search is a far more invasive measure than the requirement to wear overalls and should only be carried out if it is considered necessary in the circumstances.   Moreover it is preferable to have a measure aimed at preventing the contraband item from reaching the prisoner in the first place rather than finding the item on the prisoner in a search. The latter measure gives rise to the risk of a confrontation between Corrections officer(s) and the prisoner.   Where the contraband item is a weapon, there is the potential for that confrontation to be dangerous.

[18]     The requirement is also not unreasonable because it applies to all prisoners regardless of a prisoner’s security classification.   It is obvious that if only some prisoners are required to wear the overalls, the prisoners who do not have to wear them may become targets of prisoners seeking contraband items. That raises security issues as well.

[19]     The third issue is whether the requirement to wear the overalls breaches section 23(5) of the NZBORA.   Mr Forrest says that requiring prisoners to wear fluorescent orange overalls when they receive visits from their family and friends is demeaning of prisoners and lacks humanity.  He says that prisoners’ families should not have to see their loved ones in that state and it does not assist in showing the rehabilitation progress that prisoners may have made.

[20]     In my view it is not reasonably arguable that the requirement breaches s

23(5).  As already discussed the clothing is not particularly unusual.   Others wear such clothing outside the prison.   It is difficult to see why family and friends will find it any more distressing to see their loved one in orange overalls during a prison visit, than the fact that the visit is taking place inside a prison under supervision of Corrections officers and cameras and in the presence of other prisoners.  Although s 23(5) captures breaches of rights of a lesser order than those captured by s 9 of the

NZBORA5, the requirement to wear the overalls nonetheless falls far short of what

would constitute a breach of s 23(5).

[21]     For these reasons I consider that the application for review has no prospects of success and should be struck out.  During the hearing, and in response to hearing the submissions from counsel for Corrections, Mr Forrest indicated that he would like  to  amend  his  pleading.    He  said  that  he  intended  to  plead  that  it  was unreasonable to conduct strip searches of every prisoner after a visit, because that was too invasive in light of the other measures in place.  He also intended to plead that the overalls were unsuitable because they did not keep prisoners warm. Whether the strip searches are unreasonable is a separate matter from the requirement to wear overalls which is the subject of the present pleadings.   The warmth of prisoners during the short period of a prison visit is a day to day matter which is not for this Court.   It can be raised with Corrections directly, for example by asking that the heating be turned up, if it is in fact a problem.  Mr Forrest’s proposed amendments are therefore not a reason to decline to grant the strike out application.

Result

[22]     The application to strike out the statement of claim is granted.

Mallon J

5      Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [170] and [177].