Mitchell v Attorney-General
[2020] NZHC 2683
•13 October 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2020-485-511
[2020] NZHC 2683
UNDER the Judicial Review Procedure Act 2016, sections 8 and 15, New Zealand Bill of
Rights Act 1990, sections 9, 11, 23(5), 27(2),
28, Corrections Act 2004, sections 69 and 70IN THE MATTER OF
judicial review of statutory power and statutory power of decision of the Attorney- General (on behalf of the Chief Executive Officer, Department of Corrections and/or Prison Director (ARWCF)) and associated breach of fundamental rights and minimum entitlements and urgent interim injunction
BETWEEN
KERRYN MITCHELL
Applicant
AND
THE ATTORNEY-GENERAL
Respondent
Hearing: 8 October 2020 Appearances:
Applicant in person (via AVL)
D J Perkins and N B de Lautour for respondent
Judgment:
13 October 2020
RESERVED JUDGMENT OF DOBSON J
[1] Ms Mitchell is currently an inmate at Auckland Regional Women’s Correctional Facility (ARWCF) with status as a remand accused. She is awaiting trial, which is likely to be next year. She completed the last of a relatively long list of prison sentences in March 2020.
MITCHELL v THE ATTORNEY-GENERAL [2020] NZHC 2683 [13 October 2020]
[2] Ms Mitchell has relatively extensive experience in bringing proceedings to challenge the conditions under which she serves prison sentences and has commenced this proceeding on her own behalf. She is, however, in the process of instructing Mr Douglas Ewen to act as counsel in the proceeding and he is conditionally involved, subject to confirmation of a grant of legal aid. I was grateful to Mr Ewen for attending the hearing on those conditional terms and, as described below, heard from him on certain matters about the future of the proceeding.
[3] Ms Mitchell alleges that she is, and has been for much of this year, held on terms that are in breach of her rights under the New Zealand Bill of Rights Act 1990 (NZBORA) and of protections for prison inmates in the Corrections Act 2004 (the Act). She brings this proceeding against the Attorney-General on behalf of the chief executive of the Department of Corrections and the prison director at ARWCF.
[4] In particular, Ms Mitchell alleges that she is locked in her cell for longer periods than is permitted under the Act: routinely for periods of 17 hours at a time and on occasions for as long as 27.5 hours. She complains that access to the gymnasium at ARWCF is restricted and that she was last outside in the open air on 8 April 2020. (Ms Mitchell acknowledges having been transferred for a period to Arohata Prison between 20 May and 9 July 2020 where she had time outside in open air yards every day.)
[5] Ms Mitchell characterises her confinement as long-term solitary confinement, contrary to international rules on humane treatment of prisoners. Ms Mitchell does not complain that she is being discriminated against in these forms of treatment, but rather that the prison manager is making the same unlawful decisions in respect of the confinement of a significant number of prisoners characterised as high security risk. She raises the present concerns not only on her own behalf, but because she perceives the terms of confinement add materially to the mental health stresses of other women who are treated on the same terms. Her perception is that there has been a significant increase in attempted suicides and self-harming by women prisoners, which she contends is a result of the unlawfully short periods that the prisoners are let out of their cells.
[6] Ms Mitchell filed an application for an interim injunction to stop the prison director from exercising his statutory powers to limit inmates’ time out of their cells to the extent that has occurred during 2020. A hearing for the interim injunction application was afforded priority because, if her grounds for complaint were made out, prompt consideration needed to be given to some measure of declaratory relief confirming a breach of her rights.
[7] The application is to be dealt with in terms of s 15 of the Judicial Review Procedure Act 2016, which provides as follows:
15 Interim orders
(1)At any time before the final determination of an application, the court may, on the application of a party, make an interim order of the kind specified in subsection (2) if, in its opinion, it is necessary to do so to preserve the position of the applicant.
(2)The interim orders referred to in subsection (1) are interim orders—
(a)prohibiting a respondent from taking any further action that is, or would be, consequential on the exercise of the statutory power:
(b)prohibiting or staying any proceedings, civil or criminal, in connection with any matter to which the application relates:
(c)declaring that any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by the passing of time before the final determination of the application, continues and, where necessary, that it be deemed to have continued in force.
(3)However, if the Crown is a respondent,—
(a)the court may not make an order against the Crown under subsection (2)(a) or (b); but
(b)the court may, instead, make an interim order—
(i)declaring that the Crown ought not to take any further action that is, or would be, consequential on the exercise of the statutory power:
(ii)declaring that the Crown ought not to institute or continue any proceedings, civil or criminal, in connection with any matter to which the application relates.
(4)An order under subsection (2) or (3) may—
(a)be made subject to such terms and conditions as the court thinks fit; and
(b)be expressed to continue in force until the application is finally determined or until such other date, or the happening of such other event, as the court may specify.
[8] In her submissions, Ms Mitchell made two points material to her concerns that were not foreshadowed in her statement of claim or her affidavit. First, she contends that ARWCF was inadequately designed in that, being intended to house high-security prisoners, it did not include an open-air yard with sufficiently high fences to enable secure exercising by high-security prisoners. Secondly, she contended that Mr Stephen Parr, who is presently the prison director at ARWCF, whilst having substantial experience in managing men’s prisons, does not have the expertise to deal with the distinct and different problems that arise in managing a women’s prison. She contends that emotional health difficulties are inclined to arise to a greater extent for female prisoners and that current conditions at ARWCF are exacerbating their extent and seriousness.
[9] Ms Mitchell’s present statement of claim lacks precision to an extent that limits any utility in the filing of a statement of defence. Hopefully, with Mr Ewen’s involvement, it can be re-pleaded relatively promptly but, as matters stand, it is difficult to define the basis of the claim for the purposes of assessing her interim injunction application.
[10] The rights most directly relied upon are those in ss 69 and 70 of the Act. Section 69(1)(a) provides that every prisoner has the entitlement to physical exercise as provided in s 70. That entitlement is subject to s 69(2), which is in the following terms:
69 Minimum entitlements
(2)A prisoner may be denied, for a period of time that is reasonable in the circumstances, 1 or more of the minimum entitlements set out in subsection (1) if—
(a)there is an emergency in the prison; or
(b)the security of the prison is threatened; or
(c)the health or safety of any person is threatened.
[11]The relevant entitlement to exercise is expressed in s 70 as follows:
70 Exercise
(1)Every prisoner (other than a prisoner who is engaged in outdoor work) may, on a daily basis, take at least 1 hour of physical exercise.
(2)The physical exercise referred to in subsection (1) may be taken by the prisoner in the open air if the weather permits.
[12] At first blush, the extent to which Ms Mitchell has been deprived of her entitlement to exercise appears difficult to justify on the grounds set out in s 69(2) of the Act. To the extent that her complaint is also made on behalf of a significant number of other women prisoners, then denial of their exercise entitlements may raise a serious systemic failure.
[13] Mr Parr has sworn an affidavit in opposition to the interim injunction application in which he describes in general terms the processes for classifying security levels for each prisoner, arrangements for managing different cohorts of women prisoners and the considerations applying to decisions on how physical exercise can be arranged for them. Mr Parr also describes the impact on prison management of the COVID-19 pandemic. His affidavit did not make any specific acknowledgements of the way in which Ms Mitchell has been managed as a prisoner, nor does it contain any denial of the complaints raised by her. Mr Parr does state that no increases in mental distress or self-harm had been reported to him.
[14] Mr Perkins confirmed that decisions made on Ms Mitchell’s access to exercise facilities have not invoked any provisions under the Health Act 1956, the Epidemic Preparedness Act 2006 or other emergency measures passed in response to the COVID-19 pandemic. Rather, he characterised those provisions and the imposition of various levels of lockdown during the year as matters of context in which prison management have made decisions which depend on the relevant provisions in the Act.
[15] Mr Perkins submitted that Corrections ought to be afforded a more meaningful opportunity to respond to a pleading on Ms Mitchell’s behalf that is focused on the extent to which there have been alleged breaches of her entitlements and grounds raised as to why they are not justified, as well as a fuller opportunity to provide factual
material that might reasonably support Corrections’ defence of the criticisms made against it.
[16] Further, in dealing prospectively with management of Ms Mitchell, those managing the prison have to make daily decisions in the interests of the security, health and safety of all in the prison environment, and in response to a range of conditions that can change from day to day. Mr Perkins submitted that any order intended to require the prison management to inflexibly afford a certain level of entitlement to exercise in the open air for Ms Mitchell, irrespective of the conditions pertaining from day to day, may create unforeseen and significant difficulties in the management of the prison overall. Any order in such terms also ran the risk of overlooking reasons for limiting such entitlements that the Court would accept were justified if appraised of the different individual circumstances that may arise from day to day.
[17] On the basis of the materials available to the Court thus far, I am inclined to accept that Ms Mitchell has a serious question to be tried. The explanations in Mr Parr’s affidavit do not bring the extent to which she has allegedly been deprived of exercise (and in particular exercise in open air) within the grounds for denying that entitlement in s 69(2) of the Act.
[18] A number of jurisdictional difficulties would arise in granting anything in the nature of mandatory declaratory relief under s 15(3) of the Judicial Review Procedure Act that was intended to enforce Ms Mitchell’s entitlement to an hour of physical exercise every day and that she be enabled, when weather permits, to take such exercise in the open air. Any such orders could only be contemplated on terms that recognised exceptions to the prison manager’s obligations in any of the circumstances provided for in s 69(2) of the Act, which is effectively the status quo. It is not feasible at this interim stage for the Court to define any limit on the circumstances in which such grounds for reducing the s 70 entitlement might apply. That analysis must await the substantive hearing.
[19] As I indicated during the hearing, these difficulties with the form of any interim relief are not to be taken as a rejection of what may eventually be made out as an actionable breach of Ms Mitchell’s entitlements under the Act. However, the present
state of the pleadings and evidence, as well as the legal and practical position, are not readily suited to orders that would have any practical effect to improve her position.
[20] At the conclusion of the argument, the Court made the audio visual link to Ms Mitchell available for dialogue between her, Mr Ewen and counsel for the respondent. I returned to Court at their request after discussions had taken place and heard Mr Ewen on two further propositions.
[21] First, Mr Ewen sought a direction requiring Corrections to maintain a record of the times for each of Ms Mitchell’s permitted absences from her cell, and where else in the prison she spent those periods out of lockdown. Ms Mitchell expanded on her understanding that the prison authority is required to maintain a logbook, at least for each unit, if not for individual prisoners, intended to record the time at which the prisoners are let out of their cells, which part of the prison they go to and when they are returned to their cells.
[22] Mr Ewen suggested that the direction he sought was likely to be very little more than the minimum record-keeping required of the prison authorities.
[23] Mr Perkins denied that there was a lawful basis for making such a direction. He made the practical concession that, in evidentiary terms, the prison management will know that Ms Mitchell is maintaining a daily record of her permitted absences from her cell and that, unless the prison maintains its own record of such details as was suggested by Mr Ewen, it may face the prospect of the Court inevitably accepting Ms Mitchell’s record of such details.
[24] I am not prepared to make the direction, but the prison management is on notice of the relevance likely to be attributed to such records.
[25] The second request made by Mr Ewen was that the interim injunction application not be dismissed, but be “put on hold” against the prospect that Ms Mitchell may continue to suffer a denial of her exercise entitlement after an amended statement of claim has been filed and with there being a likely delay before a substantive hearing can be convened.
[26] Adjourning the present interim injunction application is not an attractive prospect. Ms Mitchell has raised a serious issue and it deserves to be determined substantively as a matter of priority. I am concerned that holding out the prospect of a further interim hearing will in fact distract the parties from preparing for the substantive hearing. Given the nature of the issues involved, Ms Mitchell will always face at least a conceptual difficulty in seeking any interim relief without making out her case that there has been an unjustified denial of her exercise entitlement.
[27] I prefer to direct that the substantive hearing be afforded priority. In the meantime, the interim injunction application is dismissed. There is no issue, at least at this stage, as to costs.
[28] The Registry is to arrange a further case management conference in approximately one month’s time to review progress towards the substantive hearing. I direct the Registry to make provision for a one day expedited hearing of the substantive judicial review as soon after 23 November 2020 as can be accommodated.
Dobson J
Solicitors:
Crown Law, Wellington for respondent
Copy to:
The applicant
Douglas Ewen, Wellington
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