McEwen v Spring Hill Corrections Facility Department of Corrections
[2020] NZHC 724
•8 April 2020
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV 2019-419-000137
[2020] NZHC 724
IN THE MATTER OF Application for relief pursuant to s 27(2) New Zealand Bill of Rights Act 1990 BETWEEN
KEITH McEWEN
Applicant
AND
SPRING HILL CORRECTIONS FACILITY DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 10 March 2020 Appearances:
Applicant in person
J B Watson for the Respondent
Judgment:
8 April 2020
JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 08 April 2020 at 2.00pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors:
Crown Law, Wellington
Also send copy to:
Keith McEwen, Spring Hill Corrections Facility, Private Bag 503, Huntly
McEWEN v SPRING HILL CORRECTIONS FACILITY DEPARTMENT OF CORRECTIONS [2020] NZHC 724 [8 April 2020]
[1] Keith McEwen has brought judicial review proceedings against the Department of Corrections. He challenges decisions by managers at Spring Hill Corrections Facility (Spring Hill) to remove him from the self-care unit in which he had been residing and to terminate his employment in the light engineering workshop at Spring Hill following the discovery of a plug containing tobacco and cigarette papers during a search of his room on 5 February 2019. Mr McEwen denies responsibility for these items being in his room.
Relevant facts
[2] Mr McEwen is serving a sentence of preventive detention for rape, unlawful sexual connection, kidnapping, and aggravated robbery committed in November 2006.
[3] From October 2018 until the events giving rise to this proceeding, Mr McEwen resided at an internal self-care unit at Spring Hill. From November 2018, Mr McEwen worked at the light engineering workshop at Spring Hill.
[4] Internal self-care units are houses on the prison site in which prisoners, usually those who are nearing release, reside. Prisoners in the self-care units have considerably fewer restrictions placed on them than prisoners housed in conventional cells. One of the purposes of the self-care units is to assist in reintegration of prisoners into the community. To be eligible for placement in an internal self-care unit, a prisoner must be classified as low medium, low or minimum security.
[5] The light engineering workshop is one of a number of industries or areas of employment available to prisoners at Spring Hill. To be eligible for employment at the workshop, a prisoner must be classified as low medium, low or minimum security.
[6] Prior to his admission to the self-care unit, Mr McEwen was provided with induction materials and required to sign various forms. On 11 October 2018, Mr McEwen signed a “Motivation Agreement / Behavioural Contract for Internal Self Care” in which it was stated that Mr McEwen:
(a)Agreed that he would, among other things:
Not possess any items not lawfully issued to me, nor trade or swap items, including items of clothing or property with other prisoners without the written permission of the Residential Manager.
(b)Understood that:
… any breach of unit routine, policy or failure to comply with Staff directives could result in a misconduct and/or transfer to another Unit.
[7] On 13 November 2018, before starting in the workshop, Mr McEwen signed the Light Engineering Workshop Prisoner Induction Handbook which set out the conditions and procedures that applied within the workshop. The section of the Handbook headed “Induction Information” stated, among other things:
Good standards of behaviour are expected to be maintained at all times. There are two types of breaches: Serious Breaches and Non-Serious Breaches. The procedures for managing these breaches are:
Serious Breaches
In the case of serious breaches there are grounds for instant stand-down from the workplace. Warnings will not be given and instant dismissal might be a result.
The following actions constitute serious breaches:
…
· Smoking or possession of tobacco or smoking related devices after 1 July 2011.
…
Any of these acts will result on instant stand-down from the workplace. The stand-down period continues for the duration of any misconduct proceedings.
[8] On 5 February 2019, Senior Corrections Officer Maniapoto and Corrections Officer Fenwick conducted a search of House E, the self-care unit in which Mr McEwen and three other prisoners were housed. Incident reports prepared that day by the two officers stated that while searching Mr McEwen’s bedroom Officer Maniapoto had found an item described as a “plug” wrapped in Gladwrap under clothing on the desk in Mr McEwen’s bedroom. The plug was found to comprise tobacco and cigarette papers. When asked, Mr McEwen declined to say who the items belonged to. Officer Maniapoto’s report recorded that he said to Mr McEwen that if
[the plug] was not his then whose was it, and that Mr McEwen replied, “Do you expect me to say whose it is?” Officer Maniapoto recorded that he told Mr McEwen he should do his own lag and not someone else’s. Mr McEwen was informed that he would be placed on a misconduct charge.
[9] On 7 February 2019, Mark Hennessy, Industry Manager at Spring Hill, sent Mr McEwen a letter advising him that on 5 February 2019 he had committed “a breach” by having an article in his cell without the approval of an officer. The letter advised Mr McEwen that as a result he was being stood down from the workshop and that the stand down period would continue until a decision had been made regarding his suitability to continue employment.
[10] On 8 February 2019, Mr McEwen was served with a misconduct report which referred to s 128(1)(f) of the Corrections Act 2004 and stated that Mr McEwen, being a prisoner at Spring Hill on 5 February 2019, had an article in his cell without the approval of an officer.1 The report recorded that Officers Maniapoto and Fenwick had conducted a search of the room in House E solely occupied by Mr McEwen and that, as a result of the search, a plug containing tobacco and cigarette papers had been found under some clothing on Mr McEwen’s desk. At the same time, Mr McEwen was provided with the standard “Notice to Prisoners Charged with a Disciplinary Offence” explaining how the charge would be dealt with.
[11] Also on 8 February 2019, Garry Grant, Residential Manager at Spring Hill, spoke to Mr McEwen about the incident. In an affidavit sworn on 8 October 2019, Mr Grant says that Mr McEwen was unwilling to discuss who the contraband (i.e. the tobacco and cigarette papers) belonged to but “seemed fixated” on a discrepancy between the misconduct report, which stated that both Corrections Officers had searched Mr McEwen’s room, and the incident reports, which stated that the search of Mr McEwen’s bedroom had been conducted only by Officer Maniapoto. Mr Grant says that Mr McEwen was adamant that regulations or Corrections policy required the presence of two officers in the search of a room and that, as a consequence, he could
1 Section 128(1)(f) of the Corrections Act provides that it is an offence against discipline for a prisoner to have any article in his or her cell without the approval of an officer.
not be found guilty of misconduct. Mr Grant says he told Mr McEwen that to his knowledge there was no regulations or policy to that effect.
[12] On 20 February 2019, the hearing of Mr McEwen’s misconduct charge was scheduled to be heard before a Hearing Adjudicator but was adjourned to 27 February 2019 to enable Officers Maniapoto and Fenwick to give evidence.
[13] On 27 February 2019, a Hearing Adjudicator directed that the misconduct charge be withdrawn. The reason recorded on the Record of Hearing form was that the charge was “outside timeframes”. It was common ground at the hearing that this was a reference to timeframes in the Corrections Regulations 2005.
[14] On 1 March 2019, Mr Hennessy wrote a Formal Letter of Dismissal to Mr McEwen. The letter stated that:
(a)On 5 February 2019, Mr McEwen had been involved in a breach which resulted in him being stood down from employment;
(b)The decision had been made to dismiss him from employment in the Engineering Workshop at Spring Hill;
(c)He had been dismissed because smoking or being in possession of tobacco or smoking related devices after July 2011 was considered a Serious Breach of Prison Rules; and
(d)Mr McEwen had a right to make a formal complaint and to complain to a Corrections Inspector or the Office of the Ombudsmen.
[15] On 6 March 2019, Mr McEwen was informed that he was being dismissed from the workshop and removed from the self-care unit because a plug of tobacco had been found in his room when he had undertaken in the Motivation Agreement / Behavioural Contract not to possess any items not lawfully issued to him. Mr McEwen was moved later that day to the Katahi Pod at Spring Hill. The Katahi Pod is classified as low security but comprises conventional prison cells in which prisoners are locked for set periods.
[16] In his affidavit, Mr Grant says that on 29 March 2019 he again interviewed Mr McEwen “… to give him another opportunity to discuss with me why he thought he had been hard done by.” In his affidavit, Mr Grant says Mr McEwen did not say anything to make Mr Grant change his assessment that Mr McEwen was a risk to the security of the site.
[17] In April 2019, Mr McEwen filed a complaint with the Corrections Inspectorate. By letter dated 29 April 2019, the Principal Inspector responded to the six areas of complaint identified by Mr McEwen and did not uphold any of them.
[18]On 24 May 2019, Mr McEwen filed his application for judicial review.
[19] In June 2019, Mr McEwen took up the job of “Sterile Zone Cleaner” and was reported by Corrections officers as doing “a very good job”.
[20] During the latter half of 2019 Corrections staff had two discussions with Mr McEwen about moving him back into a self-care unit but he had declined because he did not want to prejudice his case.
[21] In early 2020, Mr McEwen took up a position in the carpentry workshop at Spring Hill.
Mr McEwen’s case
[22] Mr McEwen is self-represented. He prepared his own statement of claim and swore three affidavits, two of which were in response to affidavits sworn by Mr Grant and Mr Hennessy.
[23] In his statement of claim, Mr McEwen says the decisions to terminate his employment at the light engineering workshop and to move him out of the self-care unit were in breach of his rights under the New Zealand Bill of Rights Act 1990, in particular:
(a)Section 9, because the decisions amounted to disproportionately severe punishment in light of the charges that had been brought against him being withdrawn;
(b)Section 23(5), because he had not been treated with dignity;
(c)Section 25, because he had been punished without being granted a hearing and thus without being given a chance to present a defence;
(d)Section 27, because the principles of natural justice had not been followed.
[24] Mr McEwen also filed comprehensive submissions before the hearing. The submissions rehearsed Mr McEwen’s complaints about the inconsistency between the incident reports and the misconduct report and about the actions of the officers involved, raised a number of questions which Mr McEwen said should be referred to the Court of Appeal for determination regarding the applicability of s 25 of the Bill of Rights Act with respect to prisoners’ rights, challenged the procedural propriety of the decisions to remove him from the self-care unit and terminate his employment following the dismissal of the misconduct charge, and submitted that those decisions had infringed on his rights to rehabilitation and reintegration into the community and, in that context, his right to employment. In explaining his position, Mr McEwen made detailed reference to the Corrections Act 2004 and various decisions he considered relevant.
[25] At the hearing, Mr McEwen preferred to respond to questions rather than address the full breadth of his submissions. He said Corrections had been wrong to have punished him for possessing tobacco without giving him a formal opportunity to present his case and to call evidence which he believed would have established that he was not responsible for the tobacco and cigarette papers being in his room. He said that if the hearing had gone ahead, he would have requested the showing of footage of the CCTV camera trained on the front of Unit E. He said he believed this footage would have shown someone reaching inside the window of Unit E and placing the plug with the tobacco and cigarette papers on his desk.
[26] Mr McEwen also said the meeting he had with Mr Grant on 8 February 2019 was not an adequate substitute for a formal hearing before a Hearing Adjudicator. He said the focus of the meeting was on getting McEwen either to confess or to “dob someone else in”. He also said the latter was not an option in a facility like a self-care unit where four prisoners are present and there are no locked doors. Mr McEwen observed he would need to sleep with one eye open if he were to name another prisoner.
[27] Although Mr McEwen maintained his concerns about the manner in which the search of his cell had been conducted, about the incident reports of the search that had been prepared by the Corrections officers, and about the withdrawal of the misconduct charge, he accepted that the crux of his complaint was about what followed after misconduct charge had been withdrawn. His principal complaint was that there should have been a formal process before his accommodation and working arrangements were altered to his detriment.
[28] Specifically, Mr McEwen submitted that before Corrections takes decisions that affect the employment and placement of a prisoner in response to an alleged misconduct by the prisoner, they must either:
(a)Conduct a disciplinary hearing in accordance with sch 7 of the Corrections Regulations 2005;
(b)Review the security classification of the prisoner in accordance with pt 5 of the Regulations; or
(c)Review the placement of the prisoner in accordance with pt 5A of the Regulations.
[29] Mr McEwen also submitted that his removal from the self-care unit and dismissal from the workshop removed his opportunities for rehabilitation and re- integration into the community and were inconsistent with the Department’s obligations under the Corrections Act to ensure that Mr McEwen had a management plan which provided for these matters. He said that at his last hearing before the Parole
Board, the Board had reinforced the importance of Mr McEwen demonstrating that he had been rehabilitated and was ready for reintegration into the community before he could be considered for parole.
The Department’s case
[30] Mr Watson, counsel for the Department of Corrections, submitted that Mr McEwen’s case must fail because the decisions taken to move him out of the self- care unit and to terminate his employment at the workshop had been made consistently with the paramount principle of prison management: to ensure the safety of prisoners and staff. He submitted that that principle was engaged whenever contraband was discovered and had been given appropriate weight by the Department’s staff in this instance. He said it was not correct to say that Mr McEwen had been being punished as a result of the contraband being found in his room. Rather, Mr McEwen had been given a chance to explain himself, certain privileges had been withdrawn, namely residence in the self-care unit and employment in the workshop, and this had been done consistently with the paramount principle of safety and the duty of staff to act in accordance with it.
[31] Mr Watson also referred to the traditional reluctance of the Courts to interfere with operational decisions made in a prison context, particularly where those decisions were motivated by security concerns. Mr Watson acknowledged that, while the traditional view had been that the management of prisons was not amenable to judicial oversight, the law had moved on and it was now accepted that Courts could properly review the Department’s actions if it acted arbitrarily or capriciously. However, he submitted that in the absence of such arbitrariness or capriciousness – which, he said were not present in this case – the actions of the Department were not amenable to judicial review and the Courts should not involve themselves in such day to day matters. Otherwise the business of running prisons and the Court system would grind to a halt.
[32] Mr Watson accepted that s 3 of the Bill of Rights Act applied to the Department but said that the Department had not infringed on Mr McEwen’s rights as set out in
that Act.2 He also said that the decisions to remove Mr McEwen from the self-care unit and terminate his employment in the light engineering workshop had been made in accordance with the principles of natural justice which, in this case, required only that the prison authorities explained why their decisions were being made and giving Mr McEwen a chance to respond.
[33] On the specific processes that Mr McEwen said the Department must follow before altering the employment or placement of a prisoner charged with misconduct, Mr Watson said these processes did not apply in the circumstances of Mr McEwen’s case.
[34] Mr Watson also said that to the extent Mr McEwen had been prejudiced by the decisions to move him out of the self-care unit and to dismiss him from the light engineering workshop, that prejudice had been removed by the offers made to move him back into the self-care unit and his recent employment in the carpentry workshop.
The law
[35] The Corrections Act 2004 (the Act) and the Corrections Regulations 2005 (the Regulations) govern the operation of prisons in New Zealand. As stated in s 5(1) of the Act:
The purpose of the corrections system is to improve public safety and to contribute to the maintenance of a just society by –
(a)ensuring that … custodial sentences are administered in a safe, secure, humane and effective manner; and
(b)providing for corrections facilities to be operated in accordance with rules set out in this Act and regulations made under this Act that are based, among other things, on the United Nations Standard Minimum Rules for the Treatment of Prisoners; and
(c)assisting in the rehabilitation of offenders and their reintegration into the community, where appropriate, and in so far as is reasonable and
2 Section 3 of the New Zealand Bill of Rights Act 1990 provides:
This Bill of Rights applies only to acts done—
(a)by the legislative, executive, or judicial branches of the Government of New Zealand; or
(b)by any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.
practicable in the circumstances and within the resources available, through the provision of programmes and other interventions; and
(d)providing information to the courts and the New Zealand Parole Board to assist them in decision-making.
[36] Section 6(1) sets out the principles that guide the operation of the corrections system. These include that the maintenance of public safety is the paramount consideration in decisions about the management of persons under control and supervision.3 Section 6(1) also provides that the corrections system must ensure the fair treatment of persons under control and supervision by ensuring that decisions about those persons are taken in a fair and reasonable way.4
[37] Section 6(2) requires persons exercising powers under the Act and regulations made under the Act to take applicable principles in s 6(1) into account so far as practicable in the circumstances. That requirement is reinforced by ss 8(1)(a) and 12(a) of the Act which require the Chief Executive and prison managers to ensure that the corrections system and prisons operate in accordance with the purposes in s 5 and the principles in s 6. In addition, reg 6(1) of the Regulations provides that a prison manager is responsible for the good management of the prison and the fair, safe, secure, orderly and humane management and care of its prisoners.
[38] The Act and Regulations provide for the security classification of prisoners that reflects the level of risk posed by a prisoner, including the risk of escape and the risk that escape may pose to the general public.5 Classification is mandatory and must be reviewed every six months, unless an exemption is granted or whenever there is a significant change in the prisoner’s circumstances.6 A prisoner should be assigned the lowest level of security classification at which the prisoner can safely and securely be managed, and a prisoner must be placed and managed within a facility that is consistent with his or her security classification, to the extent that is practicable having regard to the availability of accommodation and other resources.7
3 Section 6(1)(a).
4 Section 6(1)(f).
5 Section 47(1).
6 Section 47(3)(b)(i)-(ii).
7 Regulation 44.
[39] The Act requires the Chief Executive to ensure that, as far as practicable, a prisoner is provided with an opportunity to make constructive use of his or her time in prison.8 The Chief Executive is also required to ensure that appropriate programmes are in place to promote the rehabilitation of prisoners and their reintegration into the community. In particular, ss 51 and 52 require:
(a)The Chief Executive to ensure an individual management plan is prepared and revised at regular intervals for every prisoner with a term of imprisonment of more than two months;9
(b)Each plan to outline, among other things, how the prisoner can make constructive use of his or her time in prison, including ways of addressing offending behaviour and preventing reoffending, and how the prisoner may be prepared for eventual release from the prison and successful reintegration into the community;10
(c)The Chief Executive to ensure that, to the extent consistent with the resources available, rehabilitative programmes are provided to those prisoners who, in the opinion of the Chief Executive, will benefit from those programmes.11
[40] The Act provides that every prisoner may, while in custody, be employed in any work that is directed or provided by the prison management.12 Such work must be intended to provide the prisoner with work experience or to assist his or her rehabilitation or reintegration into the community or intended to reduce the costs of keeping prisoners in prison such as cooking, cleaning and maintenance within a prison.13 Prisoners may be directed to perform work, but only work intended to reduce the costs of keeping prisoners in prison.14
8 Section 50.
9 Section 51(1)-(3).
10 Section 51(4).
11 Section 52.
12 Section 66(1).
13 Section 66(5)(a) and (6).
14 Section 66(5)(b).
[41] The Act also prescribes the minimum entitlements of every prisoner. These are: physical exercise; a bed and bedding; food and drink; access to private, statutory and specified visitors; access to legal advisers; to receive medical treatment; to send and receive mail; to make outside telephone calls; and access to information and education.15 The Act and Regulations set out the scope of each of these entitlements and the manner in which they may be exercised.16
[42] The Chief Executive is required to ensure that each type of accommodation provided in a prison complies with requirements made in regulations prescribing the items and facilities to be included or excluded from accommodation of that type and the standards of accommodation of that type.17 A prisoner may be accommodated in an individual cell, a shared cell, or a self-care unit.18 However, the Act provides, for the avoidance of doubt, that a prisoner does not have any legitimate expectation of being accommodated in the same or similar conditions, or of being provided with the same or similar programmes or opportunities, during the whole term of his or her sentence.19
[43] Part 5A of the Regulations sets out a procedure for the management of prisoners in accordance with a prisoner placement system. However, that system applies only to prisons specifically designated by the Chief Executive under reg 52D.
No such designation has been made with respect to Spring Hill.20
[44] Prison officers have the right to search any prison cell at any time for the purpose of detecting any unauthorised item.21 It is an “offence against discipline” for a prisoner, without the approval of an officer, to have any article in his or her cell or in his or her possession.22
15 Section 69.
16 Sections 70-78; regs 71-117.
17 Section 82.
18 Section 82A.
19 Section 82B.
20 Regulation 52D(3) states that a list of prisons designated by the Chief Executive under reg 52D must be published and maintained on the Department of Corrections website. Spring Hill Corrections Facility is not one of such designated facilities listed at the time of this judgment. See
< 98(1)(c).
22 Section 128(1)(f).
[45] Offences against discipline are dealt with under subpt 5 of pt 2 of the Act and pt 11 and sch 7 of the Regulations. Charges of alleged offences against discipline must be heard by a Hearing Adjudicator or a Visiting Justice, depending on the nature of the conduct at issue and the nature of the penalty that may be warranted, and the complexity of the issues that may arise.23 Disciplinary proceedings must be conducted in accordance with sch 7 of the Regulations.24 Decisions by a Hearing Adjudicator may be appealed to a Visiting Justice.25
[46] Sections 133(3) and 137(3) of the Act set out the penalties that may be imposed if a Hearing Adjudicator or Visiting Justice finds an offence proved. These are: forfeiture or postponement of a privilege for prescribed periods; forfeiture of earnings for prescribed periods; and confinement to a cell for prescribed periods.
[47] Regulation 158 prescribes the privileges that may be lost or postponed when a penalty of forfeiture or postponement of privileges is imposed under ss 133(3) or 137(3). In summary, these are opportunities to socialise with other prisoners, to have visitors, and to engage in various recreational activities, provided the penalties do not impinge on a prisoner’s minimum entitlements under the Act or, in certain cases, conflict with a prisoner’s management plan. Accommodation and work opportunities within the prison are not included in the privileges that may be lost or suspended through penalties imposed under ss 133(3) or 137(3).
[48] No penalty under ss 133(3) or 137(3) may be imposed on a person charged with a disciplinary offence without a disciplinary hearing and the prisoner either having pleaded guilty or been found guilty of the offence.26 A prisoner may not be punished before the disciplinary hearing has concluded and may not be punished more than once for the same disciplinary offence.27
[49] It is apparent from the above summary that the Act and Regulations give the Chief Executive, and prison managers as the Chief Executive’s delegates, a range of
23 Section 134.
24 Regulation 152.
25 Section 136.
26 Corrections Regulations, sch 7, cl 47.
27 Corrections Regulations, sch 7, cl 48 and 49.
powers to manage the operations of prisons. In some areas, the Act is mandatory and requires the Chief Executive and prison managers to implement certain procedures and to ensure that minimum requirements are met. The security classification system, ensuring prisoners’ minimum entitlements are respected and the disciplinary process are examples of such mandatory requirements and procedures. In other areas, the Chief Executive and prison managers are given broad powers to manage a prison’s operations, subject to the requirements to ensure a prison operates in accordance with the purpose and principles in the Act and that powers exercised under the Act take into account those principles.
[50] Except in circumstances where pt 5A of the Regulations applies, decisions on where a prisoner is accommodated and what work a prisoner undertakes fall within the broad powers given to the Chief Executive and prison managers.
[51] While the Act requires that a prisoner be placed and managed within a facility that is consistent with his or her security classification, it does not prescribe how accommodation decisions should be made. The Act leaves to the Chief Executive and prison managers decisions on whether a prisoner is accommodated in a single cell, a shared cell or a self-care unit and makes it clear that prisoners have no legitimate expectation to remain in any accommodation to which they may be assigned during their imprisonment. The requirement to place and manage a prisoner within a facility consistent with the prisoner’s security classification is itself subject to the availability of accommodation and other resources.
[52] Similarly, the Act leaves to the Chief Executive decisions on whether a prisoner should be offered work and the nature of any such work opportunities. The only mandatory requirements relate to the type of work that may be offered and to the nature of any work a prisoner may be directed to perform.
[53] There are mandatory aspects to a prisoner’s management plan. The Chief Executive is required to ensure that there is such a plan for every prisoner sentenced to a term of imprisonment of more than two years, and the plan must address the elements set out in s 51(4) of the Act. However, the Act leaves to the Chief Executive and prison managers the decisions on how those mandatory elements, such as how the
prisoner can make constructive use of his or her time in prison and how rehabilitation and the preparation for a prisoner’s reintegration into the community, are addressed. In addition, the Chief Executive’s responsibilities are subject to the availability of resources.
[54] These provisions make it clear that no prisoner has a right to any particular form of activity to promote his or her rehabilitation or reintegration, including work opportunities. That conclusion is reinforced by s 82B, which applies to opportunities and programmes as well as accommodation, and makes it clear that a prisoner has no legitimate expectation of being provided with the same or similar opportunities or programmes throughout the whole terms of his or her sentence. Much is left to the discretion of the Chief Executive and prison managers.
[55] Notwithstanding the historical reluctance of Courts to intrude into the management of prisons to which Mr Watson referred, it is well-established that the Courts are prepared to exercise oversight of the Chief Executive’s implementation of the disciplinary procedures in subpt 5 of pt 2 of the Act and its predecessor legislation. In Drew v Attorney-General, the Court of Appeal held that a regulation made under the Penal Institutions Act 1954 was ultra vires the regulation-making section in that Act because it denied legal representation to inmates in hearings before a Visiting Justice.28 The majority of the Court based their decision on the principles of natural justice but also acknowledged, without making findings on the point, that ss 24, 25 and 27 of the Bill of Rights Act may be applicable.29
[56] In a separate judgment, McGrath J noted the particular nature of the regime for prison discipline. He said that the regime in the Penal Institutions Act:30
… 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 the introduction of and use of illegal drugs within the prison. …
[86] At the heart of the statutory scheme for prison discipline is the policy that is shared with many countries that responsibility for dealing with
28 Drew v Attorney-General [2002] 1 NZLR 58.
29 At [58]-[68] and [76].
30 At [85]-[86].
misconduct by prisoners should, in general, form part of the governmental function of prison management.
[57] The Court of Appeal has confirmed the relevance of those remarks to the Corrections Act 2004.31
[58] Reflecting the admonition in McGrath J’s remarks about the need to respect prison management’s right to manage prisons and to ensure prison security, the Courts have held that various management decisions by prison authorities are not susceptible to judicial review. Judges have noted the risks to the effectiveness of the prison system and of the Courts if they were to become engaged in “micro-managing” prisons; for example the decisions of Ronald Young J in Greer v Prison Manager at Rimutaka Prison,32 Collins J in Mitchell v Attorney-General33 and Katz J in Smith v Attorney- General.34 Even so, except in obviously trivial cases, the Courts have carefully considered the complaints about prison managers decisions before holding them to be outside the scope of judicial review. On occasion, the Courts have also made appropriate orders where they have found that the Department had failed to comply with the Act.35
Mr Ewen’s complaints
[59] At the heart of Mr McEwen’s complaint is his view that the decisions to remove him from the self-care unit and to terminate his employment in the light engineering workshop were punishments imposed on him for having tobacco and cigarettes in his room rather than decisions taken by prison management in carrying out their responsibilities under the Act to ensure that prisons are administered in a safe, secure, humane and effective manner.
31 Department of Corrections v Taylor [2009] NZCA 129, [2009] 3 NZLR 34 at [49]-[50]; Taylor v Chief Executive Department of Corrections [2010] NZCA 373, [2011] 1 NZLR 112 at [28]-29].
32 Greer v Prison Manager at Rimutaka Prison HC Wellington CIV-2008-485-1603, 18 December 2008 at [9].
33 Mitchell v Attorney-General [2013] NZHC 2836 at [39].
34 Smith v Attorney-General [2016] NZHC 136, [2017] NZAR 331 at [133].
35 Genge v Chief Executive Department of Corrections [2018] NZHC 1302.
Disciplinary process not at issue
[60] It is clear that those decisions were not the result of the disciplinary process set out in subpt 5 of pt 2 of the Act. That process was started with the laying of the misconduct charge on 8 February 2019. However, it was terminated on 27 February 2019 when the Hearing Adjudicator directed that the charge be dismissed because it was outside timeframes.
[61] That direction appears to have been based on a miscalculation of time frames and a misreading of the Regulations. The relevant timeframes are set out in sch 7, cl 11(b) which provides that a prisoner charged with a disciplinary offence may apply for the charge to be dismissed if a hearing before a Hearing Adjudicator has been adjourned and the charge has not been heard within 21 days of the charge being laid. While the tobacco and cigarette papers were found on 5 February 2018, 22 days before the hearing on 27 February 2019, the charge was laid on 8 February 2018, 19 days before the hearing on 27 February 2019 and therefore within the period. Furthermore, Mr McEwen had not applied for the charge to be dismissed so there was no need for the Hearing Adjudicator to consider whether to dismiss the charge under the section.
[62] However, whether or not the Hearing Adjudicator’s direction was technically correct, there is not doubt that the disciplinary process was terminated before the charge was heard. That means that, in accordance with sch 7, cl 47, no penalty could be imposed on Mr McEwen on the basis of the charge.
[63] Furthermore, even if the disciplinary process had not been terminated and Mr McEwen had been found guilty or had pleaded guilty, neither the Hearing Adjudicator nor any Visiting Justice on appeal could have imposed penalties of removal from the self-care unit or termination of Mr McEwen’s employment at the workshop because penalties of that kind are not available under ss 133(3) and 137(3) of the Act.
[64] For the above reasons, Mr McEwen was not subject to the disciplinary process and his complaint does not raise any issues about that process. As a consequence, the rights of persons charged with an offence set out in s 24 of the Bill of Rights Act and the minimum standards set out in s 25 of that Act have no bearing on Mr McEwen’s
situation. Accordingly, there is no need for this Court to revisit the question left open by the majority of the Court of Appeal in Drew, namely whether s 25 of the Bill of Rights Act applies to prison disciplinary offences as Mr McEwen submitted.
Were the prison authorities required to follow another formal process?
[65] Mr McEwen submitted that because the disciplinary process was terminated without a formal hearing, the prison authorities should not have punished him or held him responsible for the presence of tobacco and cigarette papers in his cell without a formal process at which he would have the opportunity call evidence and challenge that of the prison authorities. One difficulty with that submission is that no such formal process is provided for in the Act or Regulations for someone in Mr McEwen’s position.
[66] The security classification process had no application because Mr McEwen’s security classification did not change. Mr McEwen was transferred from one form of low security accommodation to another form of low security accommodation. In addition, as Nicholas Davidson J said in Genge v Chief Executive Department of Corrections, the disciplinary regime is quite separate from that of security classification. Classification and reclassification are based on present and future risk and are not imposed as a punishment.36
[67] The prisoner placement system in pt 5A of the Regulations did not apply either because no designation applying that system to Spring Hill has been made under reg 52D. Indeed, as Mr Watson informed the Court, only Auckland South Corrections Facility has been designated under reg 52D which means that most prisoners in New Zealand are not managed under that system.37
Were the prison authorities obliged to comply with the principles of natural justice?
[68] It is clear from s 6(1)(f) of the Act that one of the principles of the Act is that the corrections system must ensure the fair treatment of prisoners by ensuring that decisions about them are taken in a fair and reasonable way. To that extent, at least,
36 Ibid at [33]-[34].
37 See also above at n 20.
the Act itself imposes an obligation on prison managers to comply with the principles of natural justice bearing in mind the well-known statement of the majority of the Privy Council in Furnell v Whangarei High School Boards,38 as recalled by Cooke J in Daganayasi v Minister of Immigration, that natural justice is but fairness writ large and juridically, or “fair play in action”.39 Or, as the Court of Appeal put it more recently, in Graeme Martin Contracting Ltd v Disputes Tribunal, natural justice requires ensuring fairness in the particular case.40
[69] The obligation to ensure the fair treatment of prisoners by ensuring that decisions about them are taken in a fair and reasonable way applies to all decisions about prisoners and is not limited to decisions taken in the context of the disciplinary process. It follows that to the extent that prison managers do not comply with that obligation, which amounts to an obligation to observe the principles of natural justice, their decisions can be amenable to judicial review in accordance with well-established principles of common law as well as s 27(2) of the Bill of Rights Act.41
[70] That does not mean every decision taken by prison managers is subject to the requirements of natural justice and are thus amenable to judicial review. As the Court of Appeal said in Graeme Martin Contracting:42
Context is always important, including the significance of the decision and the purpose of the statute under which the decision-making power is exercised.
That statement echoes the words of Tucker LJ in Russell v Duke of Norfolk that the requirements of natural justice depend on the circumstances of each particular case and the subject matter under consideration.43
38 Furnell v Whangarei High School Boards [1973] 2 NZLR 705 (PC) at 718.
39 Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at 141.
40 Graeme Martin Contracting Ltd v Disputes Tribunal [2018] NZCA 328, [2018] NZAR 1636 at [37], citing Ali v Deportation Review Tribunal [1997] NZAR 208 (HC) at 220 and R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 (HL) at 560.
41 Section 27(2) of the New Zealand Bill of Rights Act 1990 provides:
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.
42 Above n 40.
43 Russell v Duke of Norfolk [1949] 1 All ER 109 (CA) at 118.
The context of the decisions
[71] The context in this case is that Mr McEwen was housed and employed in facilities where a high degree of responsibility and trust are expected and required of prisoners. In his affidavit, Mr Grant explained that prisoners in self-care units have a high degree of autonomy and freedom. One door of the houses remains unlocked at night; prisoners cook their own meals and are provided with their own cutlery. Prisoners are expected to behave responsibly and to demonstrate they can be trusted. Mr Grant said the possession of contraband in self-care units is treated very seriously and that staff take a zero-tolerance approach to the presence of contraband because of the risk that self-care units become a gateway for contraband to enter the prison. Mr Grant said that prisoners in self-care units often interact with the community on shopping trips or through their jobs, and also interact with other prisoners in the mainstream cells while performing their jobs.
[72] In his affidavit, Mr Hennessy said that Corrections staff have to know that they can trust a prisoner to behave appropriately in the workshop environment because the prisoners are working with high risk tools, sharp objects and blades, which means that anything that increases the potential for violence is treated very seriously. Mr Hennessy said that in taking his decision to dismiss Mr McEwen from the workshop he had placed weight on the fact that tobacco has the potential to pose a real risk to the good order and safety of the engineering workshop. He says that contraband such as tobacco can be traded for goods that other prisoners may have, and that such trades may not always go smoothly, which increases the risk of violence. He said he had also been mindful that the workshop could become an avenue for contraband to ensure the wider prison. Mr Hennessy also said that the presence of tobacco increases the potential for “standover” behaviour between prisoners and that such behaviour is especially dangerous in the engineering workshop because of the presence of potentially lethal tools.
Safety considerations paramount
[73] Clearly, these concerns are important and must be given considerable weight, particularly having regard to s 6(1)(a) of the Act which provides that the maintenance of public safety is the paramount consideration in decisions about the management of
persons under control or supervision. This consideration is directly relevant to the purpose of the Act and to the observations of McGrath J in Drew concerning the need in the prison context to maintain order within the institutions and the close linkage of the maintenance of the integrity of prison security to the imperative of continuing order.44 Indeed, at the hearing Mr McEwen acknowledged that the presence of tobacco has the potential to undermine prison discipline and said he took no issue with Corrections’ zero tolerance policy.
[74] It is also relevant that it was open to the prison managers to remove Mr McEwen from the self-care unit and to terminate his employment at the workshop on the basis of safety concerns whether or not Mr McEwen had been found guilty of the misconduct charge, and whether or not the charge had been dismissed. In that regard, as Mr Watson said, the disciplinary process and the managerial process are essentially unrelated or, to put it another way, they are conceptually distinct. It follows that the outcome in one process could not determine the outcome in the other process.
[75] However, in taking the decisions to remove Mr McEwen from the self-care unit and from terminating his employment at the workshop, the prison managers still had to comply with their responsibility to treat Mr McEwen fairly and in accordance with the principles of natural justice. While the safety concerns behind the decisions may have been the paramount consideration, those concerns cannot be at the expense of the prison manager’s obligation to ensure their decisions were taken in a fair and reasonable way unless the safety concerns were so urgent that other considerations had to be put aside.
Formal hearing not required
[76] I do not accept Mr McEwen’s contention that he should have been given a formal hearing. There is no basis in the Act for requiring that degree of formality when taking management decisions, particularly decisions based on concerns of prison safety. I agree with Mr Watson that the requirements of natural justice in this case could be satisfied by the prison authorities explaining to Mr McEwen why the decisions were being made and giving Mr McEwen a chance to respond. That would
44 Above n 30.
be consistent with the fifth and sixth factors identified by Lord Mustill in R v Home Secretary; ex parte Doody when discussing what the requirements of fairness may be in a particular case. As Lord Mustill said:45
(5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result, or after it is taken, with a view to procuring its modification, or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.
[77] The decision in ex parte Doody was reaffirmed by the Supreme Court of the United Kingdom in R (Bourgass) v Justice Secretary where the Court held that a prisoner should normally have a reasonable opportunity to make representations before a decision is taken to segregate the prisoner.46 Segregation is another decision that prison managers can take in the interests of prison safety.47
[78]I consider that in Mr McEwen’s case it would have been sufficient if:
(a)The prison authorities had explained to Mr McEwen that they had intended to remove him from the self-care unit and to terminate his employment, notwithstanding the dismissal of the misconduct charge, because they continued to have safety concerns about his continued residence in the self-care unit and his employment in the workshop because of the unexplained presence of tobacco and cigarette papers in his room; and
(b)Given Mr McEwen an opportunity to respond.
[79]That did not happen.
45 R v Home Secretary; ex parte Doody [1994] 1 AC 531, [1993] 3 All ER 92 at 106.
46 R (Bourgass) v Justice Secretary [2015] UKSC 54, [2016] AC 384, [2016] 1 All ER 1033 at [96].
47 Section 58(1) of the Act.
When was Mr McEwen told and what was he told?
[80] Mr Watson says the requirements of natural justice were satisfied by the opportunities Mr McEwen was given to explain himself when he was interviewed by Officers Maniapoto and Fenwick on 5 February 2019 after they had found the plug with the tobacco and cigarette papers and by Mr Grant’s meeting with Mr McEwen on 8 February 2019. However, those interviews were intrinsically connected to the disciplinary process. While I accept that those discussions had a bearing on the decisions to remove Mr McEwen from the self-care unit and terminate his employment at the workshop, it is apparent from the reports prepared by Officers Maniapoto and Fenwick and from Mr Grant’s affidavit that the focus of the discussions was on getting Mr McEwen either to accept responsibility for the presence of the contraband or to identify another prisoner or prisoners. The issue then was on the alleged misconduct and not on prison safety.
[81] In addition, and importantly, Mr Grant says in his affidavit that he waited until 6 March 2019 to remove Mr McEwen from the self-care unit because he considered that the fairest course was to wait until the disciplinary process had come to a conclusion before making his decisions about his future in the self-care unit. That is, Mr Grant acknowledges that the decision to remove Mr McEwen from the self-care unit for reasons of prison safety was taken only after the disciplinary process had concluded. In addition, Mr Hennessy says in his affidavit that he took the decision to terminate Mr McEwen’s employment at the workshop on 1 March 2019, that is after the disciplinary process had concluded.
[82] Given that sequence, which I agree was the appropriate sequence, it follows that meetings with Mr McEwen in the context of the disciplinary process and with a focus on Mr McEwen’s culpability while the disciplinary process was in train, were not sufficient to meet the requirements of natural justice to tell Mr McEwen that he was being removed from the self-care unit and his employment at the workshop terminated for reasons of prison safety and to give him an opportunity to respond.
[83] In his affidavit, Mr Grant also refers to the interview with Mr McEwen on 6 March 2019, when Mr McEwen was informed that he was being removed from the
self-care unit and his employment in the workshop terminated, as providing Mr McEwen with an opportunity to give an explanation of who the contraband belonged to if not him. Again, however, the focus of that interview was not on safety but on culpability and on the undertaking that Mr McEwen had signed before starting in the self-care unit and in the workshop.
[84] I accept that culpability and safety are intrinsically related in this context. The question of how the tobacco and cigarette papers came to be in Mr McEwen’s room is directly related to the prison managers’ concerns about prison safety. But the prison managers cannot meet their responsibilities when taking management decisions based on safety considerations by focusing entirely on culpability and the undertakings Mr McEwen had signed, and not making any reference to the safety considerations they say were the reasons for their decisions.
[85] As the Supreme Court of the United Kingdom said in Bourgass, a prisoner's right to make representations is largely valueless unless he or she knows the substance of the case being advanced in sufficient detail to enable him or her to respond.48 Mr McEwen was only told of the safety considerations when he met with Mr Grant on 29 March 2019 some weeks after he had been removed by the self-care unit.
[86] Had Mr McEwen been told of the safety concerns at that time the decisions were being made, he would have had the opportunity to say, as he said in his affidavit sworn on 4 November 2019 in response to Mr Grant’s affidavit, that he had not been on any shopping outings, had not received any visits in the months leading up to search of his room in the self-care unit, was the only prisoner living in the house that did not go outside the prison on a daily basis and was the only resident of the house not present at the time of the search. The Court is in no position to know whether this information would have any influence on the decisions to remove Mr McEwen from the self-care unit and to terminate his employment. However, it is relevant information that Mr McEwen could have put forward for consideration.
[87] It is not hard to understand why Mr McEwen considered he was being treated unfairly when reading the notes of the meetings with Mr McEwen on 6 March 2019
48 Above n 46 at [100].
when he was told of the decisions to remove him from the self-care unit and to terminate his employment. The reasons given to him for the decisions were that tobacco had been found in his room and he had signed a form on being inducted into the self-care unit not to have any unapproved items in his room. So, from Mr McEwen’s perspective, he had learned on 27 February 2019 that the misconduct charge based on his having unapproved items in his room had been dismissed, yet was he was told just over a week later that his living and working arrangements were being changed because he had unapproved items in his room. From his perspective, it was a “Catch-22” situation, notwithstanding the conceptual distinction between the two processes, and there was nothing to which he could sensibly respond.
[88] That problem would have been avoided if the prison authorities had met with Mr McEwen at the time the decisions were taken to remove him from the self-care unit and to terminate his employment and had explained the reasons for the decisions as set out in the affidavits of Mr Grant and Mr Hennessy and had given him a chance to respond. But they did not, and in failing to explain those reasons and to give Mr McEwen a chance to respond, they failed to take into account the requirement to ensure Mr McEwen was treated fairly in accordance with s 6 of the Act and the requirements of natural justice.
Significance of decisions for Mr McEwen
[89] While these decisions were management decisions, they had considerable significance for Mr McEwen. He lost valuable opportunities to demonstrate that he was being rehabilitated and was preparing for reintegration into the community as required of him by the Parole Board. The Court is in no position to assess the impact of the decisions on Mr McEwen’s eligibility for parole but accepts that the decisions had the potential, at least, to delay Mr McEwen’s prospects of being granted parole.
Did urgency preclude the prison authorities from explaining their decisions?
[90] It is also apparent that there was no particular urgency that precluded the prison authorities from properly explaining their decisions to Mr McEwen. Mr McEwen was stood down from the light engineering workshop on 7 February 2019, two days after the tobacco and cigarette papers had been found, so there could be no safety concerns
about Mr McEwen’s employment in the workshop after that date. Mr Grant clearly did not believe the safety considerations about Mr McEwen continuing to be in the self-care unit were pressing because he did not consider it necessary to remove Mr McEwen from the unit until after the disciplinary process had concluded.
Conclusion on need for fair treatment and observance of natural justice
[91] For these reasons, I am satisfied that, while the prison authorities had the power to remove Mr McEwen from the self-care unit and to terminate his employment at the light engineering workshop, in taking those decisions they did not take account of the principle in s 6(1)(f) that the corrections system must ensure Mr McEwen’s fair treatment by ensuring that decisions about him were taken in a fair and reasonable way and, accordingly, did not comply with the principles of natural justice. To that extent, I uphold Mr McEwen’s complaint against the Department of Corrections.
Mr McEwen’s claim under s 23 of the Bill of Rights Act 1990
[92] I record that Mr McEwen did not pursue his claim under s 23 of the Bill of Rights Act and I see no basis for finding that he was not treated with dignity.
Remedy
[93] In his statement of claim, Mr McEwen seeks reinstatement to employment at the same level as he was when dismissed, reinstatement in self-care residence and, if the Court considers it appropriate, recompense for lost wages at the rate of $20 per week for the time he was without a job.
[94] I am satisfied that none of those remedies is appropriate. First, while the prison authorities erred in the manner in which they took their decisions, they were entitled to take those decisions and it is not for the Court to second-guess prison managers’ assessment of safety considerations. Secondly, Mr McEwen has already been reinstated to work in an equivalent prison workshop – the carpentry workshop – and acknowledged to the Court that he is content being employed there. Thirdly, Mr McEwen has already twice been offered reinstatement in an internal self-care unit, which he chose to decline. There is no need, therefore, for the Court to direct his
reinstatement to self-care residence and, given the responsibility of prison managers to manage prison accommodation, it would also be inappropriate for the Court to make such a direction. Fourthly, because the prison authorities were entitled to take their decisions and because it is not for the Court to second-guess prison managers’ assessment of safety considerations, it would not be appropriate to order that Mr McEwen be compensated for the time he was without a job.
[95] I consider it appropriate, however, to make a declaration reflecting the Court’s finding in [91] above and to direct that this decision is brought to the attention of the Parole Board so the Board is aware of it when considering Mr McEwen’s efforts towards rehabilitation and reintegration into the community.
Declaration and direction
[96] I declare that in taking the decisions to remove Mr McEwen from the internal self-care unit at Spring Hill Corrections Facility and to terminate Mr McEwen’s employment at the light engineering workshop at the Facility, the Department of Corrections did not take account of the principle in s 6(1)(f) of the Corrections Act 2004 that the corrections system must ensure Mr McEwen’s fair treatment by ensuring that decisions about him were taken in a fair and reasonable way and, accordingly, did not comply with the principles of natural justice.
[97] I direct that this decision is brought to the attention of the Parole Board so the Board is aware of it when considering Mr McEwen’s efforts towards rehabilitation and reintegration into the community.
Costs
[98] Mr McEwen is self-represented and does not seek costs. I am satisfied that this is not a case where costs should be ordered.
G J van Bohemen J
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