Mitchell v Attorney-General
[2017] NZHC 2089
•30 August 2017
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CIV-2015-485-1021
[2017] NZHC 2089
UNDER the Judicature Amendment Act 1972 and the New Zealand Bill of Rights Act 1990 BETWEEN
KERRYN MITCHELL
Plaintiff
AND
THE ATTORNEY-GENERAL
Defendant
Hearing: 5 July 2017 Counsel:
G H Allan for Plaintiff R S May for Defendant
Judgment:
30 August 2017
JUDGMENT OF THOMAS J
Table of Contents
Introduction............................................................................................................. [1]
The Decision............................................................................................................. [9]
Were the searches unreasonable?........................................................................ [18]Arbitrary detention............................................................................................... [27]
Should a declaration be made?............................................................................ [34]
Delay................................................................................................................... [36]
Standing............................................................................................................... [40]
No prejudice/issue is moot.................................................................................. [53]
Conclusion........................................................................................................... [63]Result...................................................................................................................... [67]
MITCHELL v ATTORNEY-GENERAL [2017] NZHC 2089 [30 August 2017]
Introduction
[1] On 15 July 2010 the plaintiff, Kerryn Mitchell, was a sentenced prisoner at Arohata Prison, Wellington (the Prison). A prison guard received information there were illegal drugs in the Fergusson Wing of the Prison. A decision was taken to strip search the 16 inmates of the Fergusson Wing, including Ms Mitchell. The prisoners were directed to accompany Department of Corrections (Corrections) officers from the Fergusson Wing to the Prison’s Visiting Centre. They were then informed they were to be strip searched. Ms Mitchell started passive resistance at the time of being directed to the Visiting Centre. She was taken to a booth cell within the search area of the Visiting Centre. She continued her passive resistance and told Corrections officers she would actively resist any strip search. A decision was taken that she should instead be subject to a rub-down search, with which she complied. All the other prisoners were strip searched.
[2]No illegal drugs were found either on the prisoners or in their cells.
[3] By her statement of claim, Ms Mitchell seeks judicial review of the alleged unlawful exercise of strip search powers on the prisoners and seeks a declaration the Corrections officers acted unlawfully. By her second cause of action, Ms Mitchell claims the Corrections officers had no lawful authority to strip search her or the other prisoners and no lawful authority to detain them, and claims the Corrections officers effected unreasonable searches and arbitrary detentions in breach of ss 21 and 22 of the New Zealand Bill of Rights Act 1990 (NZBORA). She seeks declarations to that effect.
[4] In submissions on Ms Mitchell’s behalf at the hearing, her claim was framed in different terms as follows:
(a)The decision to subject her and the other prisoners in the Fergusson Wing to a strip search (the Decision) was contrary to the requirements of s 98(3) of the Corrections Act 2004 (the Act) and therefore unlawful.
(b)The strip searches of the other prisoners and the attempted strip search of her were unreasonable under s 21 of NZBORA and gave rise to arbitrary detention under s 22.
[5] I will return to the differences between the claim and the way the case was presented later in this decision.
[6] The defendant, noting the proceedings commenced over five years after the events in question and Corrections staff concerned have no real memory of the events, nevertheless implicitly accepts the Decision was unlawful. However, the defendant says, even if the Decision is reviewable, the declaration of illegality ought to be declined because the question is moot as regards Ms Mitchell who was subject to a lawful rub-down search which she does not challenge. Furthermore, the only prejudice Ms Mitchell could have suffered would have been the anticipation of a strip search which was a fleeting prejudice only. The defendant cites Ms Mitchell’s delay and lack of standing.
[7] Ms Mitchell’s claim of unreasonable search under NZBORA is opposed on the basis it is premised on an assertion Ms Mitchell was subject to an unlawful strip search, whereas it was in fact a lawful rub-down search. The defendant contends Ms Mitchell’s position was reasonably considered and a less intrusive search with her consent was administered.
[8] The claim of arbitrary detention is opposed on the basis an action does not lie for a detention within a detention. Ms Mitchell’s detention for the purpose of a search was lawful and was for the legitimate purpose of searching for contraband.
The Decision
[9] The power to conduct a strip search is contained in s 98 of the Act which, relevant to the circumstances of this case, provides:
98 Search of prisoners and cells
(1)An officer may, at any time, for the purpose of detecting any unauthorised item, conduct—
(a)a scanner search of any prisoner:
(b)a rub-down search of any prisoner:
(c)a search of any cell in a prison.
(2)Nothing in subsection (1)(c) limits or affects any power or authority to search or inspect any cell in any prison for any purpose relating to the security of the prison.
(3)An officer may conduct a strip search of a prisoner—
(a)if the officer—
(i)has reasonable grounds for believing that the prisoner has in his or her possession an unauthorised item; and
(ii)has obtained the manager’s approval to the conduct of a strip search; or
(b)in the situations referred to in subsection (6).
(4)Despite subsection (3)(a)(ii), it is not necessary to obtain the approval of a prison manager for the conduct of a strip search under subsection
(3) if the delay involved in obtaining that approval would endanger the health or safety of any person or prejudice the maintenance of security at the prison.
(5)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.
…
[10] A rub-down and a strip search are defined by ss 89 and 90 of the Act respectively:
89Definition of rub-down search
(1)For the purposes of this Act, a rub-down search means a search of a clothed person in which the person conducting the search may do all or any of the following:
(a)run or pat his or her hand over the body of the person being searched, whether outside or inside the clothing (other than any underclothing) of that person:
(b)insert his or her hand inside any pocket or pouch in the clothing (other than any underclothing) of the person being searched:
(c)for the purpose of permitting a visual inspection, require the person being searched to do all or any of the following, namely—
(i)open his or her mouth:
(ii)display the palms of his or her hands:
(iii)display the soles of his or her feet:
(iv)lift or rub his or her hair.
(2)For the purpose of facilitating any of the actions referred to in any of paragraphs (a) to (c) of subsection (1), the person conducting a rub- down search may require the person being searched—
(a)to remove, raise, lower, or open any outer clothing (including (without limitation) any coat, jacket, jumper, or cardigan) being worn by the person being searched, except where that person has no other clothing, or only underclothing, under that outer clothing; and
(b)to remove any head covering, gloves, or footwear (including socks or stockings) being worn by that person.
(3)Authority to conduct a rub-down search includes the authority to conduct a visual examination (whether or not facilitated by any instrument or device designed to illuminate or magnify) of the mouth, nose, and ears, but does not authorise the insertion of any instrument, device, or thing into any orifice of those kinds.
90Definition of strip search
(1)For the purposes of this Act, a strip search means a search where the person conducting the search may require the person being searched to remove, raise, lower, or open all or any of that latter person’s clothing.
(2)For the purpose of facilitating a strip search, the person conducting the search may require the person being searched to do all or any of the following:
(a)open his or her mouth:
(b)display the palms of his or her hands:
(c)display the soles of his or her feet:
(d)lift or rub his or her hair:
(e)raise his or her arms to expose his or her armpits:
(f)with his or her legs spread apart, bend his or her knees until his or her buttocks are adjacent to his or her heels:
(g)lift or raise any part of his or her body (including, for example, rolls of fat, genitalia, and breasts).
(3)Authority to conduct a strip search—
(a)includes the authority to conduct a visual examination (whether or not facilitated by any instrument or device designed to illuminate or magnify) of the mouth, nose, ears, and anal and genital areas; but
(b)does not authorise the insertion of any instrument, device, or thing into any orifice of those kinds.
[11] As noted above, the statement of claim and the way in which the case was presented at the hearing differed. The statement of claim focuses on the actions of Corrections officers whereas the hearing focused on seeking review of the Decision. Judicial review can be sought of the exercise of a statutory power. A statutory power includes the exercise of a statutory power of decision. A statutory power also includes a power to require any person to do any act or thing which, but for such requirement, he or she would not be required by law to do, and a power to do any act or thing which would, but for such power, breach the legal rights of any person.1 Requiring a prisoner to undergo a strip search is clearly the exercise of a statutory power. The case was conducted on the basis of a statutory power of decision (the Decision) by which the plaintiff is taken to be referring to the decision of the Prison Manager to approve the strip search pursuant to s 98(3)(a)(ii) of the Act.
[12] The defendant accepts s 98 can be interpreted as including a statutory power of decision even though it is expressed as a statutory power. This is important in this case as Ms Mitchell was not subject to a strip search (although this is an issue considered in more detail below). Mr May, appearing for the defendant, said there was no practical reason to challenge a decision to search which was not carried out, referring to the case of Forrest v Attorney-General, where the Court of Appeal discussed the matters to be considered prior to a strip search but it was the search itself which was held to be unlawful.2
1 Judicature Amendment Act 1972, s 3. These proceedings were commenced prior to the coming into force of the Judicial Review Procedure Act 2016. The Judicature Amendment Act 1972 applies pursuant to s 23 of the Judicial Review Procedures Act 2016.
2 Forrest v Attorney-General [2012] NZCA 125, at [18].
[13] I am not convinced it is appropriate to characterise the events which are the subject of this judgment as the exercise of a statutory power of decision. It is more properly characterised as the exercise of a statutory power. This issue comes into stark relief when the question of remedy is addressed later in this judgment. For the moment, however, I will analyse the circumstances in the context of examining the lawfulness of the Decision.
[14] The Decision was made after information was received from a prisoner that there were illegal drugs on the Fergusson Wing. Another prisoner identified by name and cell number told the informant prisoner there was cannabis on the Wing. The Prison Manager at the time spoke to the informant and authorised the strip search. The prisoner who was the source of the information was not spoken to. The information was received at 4.25 pm and by 4.45 pm the prisoners were being escorted to the Visiting Centre for the purpose of being strip searched.
[15] It is clear that, contrary to s 98(3), the Corrections officers conducting the searches did not have reasonable grounds to believe Ms Mitchell or any other individual prisoner was in possession of an unauthorised item. The Prison Manager should not have approved (or decided to approve) the strip search in those circumstances. The information received did not identify any individual as being in possession of cannabis or any other illegal drug. Furthermore, the power to conduct a strip search arises only when “necessary in the circumstances for the purpose of detecting an unauthorised item”. The Act provides for a range of less intrusive measures than a strip search which were available to Prison staff in the circumstances, particularly given what can be considered the relatively vague information received. The Court in Forrest observed that officers planning to strip search must turn their minds to the circumstances and options available to them. This would involve a consideration as to whether other forms of search would suffice.3 There is nothing to support the suggestion any such steps, for example scanner or rub-down searches, were considered or taken in this case. In those circumstances, it cannot be said a strip search was necessary.
3 At [15].
[16] This conclusion can be stated with some confidence in relation to Ms Mitchell in light of the Prison record of the events. These noted “she was not one of the prisoners named as a perpetrator in this incident”4 and, more particularly, the acknowledgement that “Ms Mitchell did not have any history of drug use”. As noted in Forrest, the history of the particular prisoner would be a highly relevant circumstance in the consideration of whether a strip search was necessary.5
[17]For these reasons, the Decision was unlawful.
Were the searches unreasonable?
[18] The second cause of action claims the strip searches amounted to unreasonable searches and arbitrary detentions contrary to ss 21 and 22 of NZBORA.
[19] Mr Allan appeared for Ms Mitchell. He relied on R v Smith where the Court of Appeal held:6
… a search is unreasonable if the circumstances giving rise to it make the search unreasonable or if a search which would otherwise be reasonable is carried out in an unreasonable manner. … Whether a governmental search or seizure is unreasonable depends on both the subject matter and the particular time, place and circumstance.
[20] An unlawful search is normally, but not always, unreasonable. Such a search is unreasonable except where the breach is minor or technical, or where the person carrying out the search had a reasonable but erroneous belief of acting lawfully.7
[21] In Mr Allan’s submission, the intrusive and demeaning nature of the strip searches must make them unreasonable. In his submission, reasonable expectations of privacy were also relevant, noting the power to strip search is subject to certain requirements and there are other less intrusive searches which could have been undertaken. He noted the principles guiding the Corrections system as set out in the Act and, in particular, that the Corrections system must ensure the fair treatment of
4 This comment was explained in the affidavit of the Prison Manager at the time. The reference to “perpetrators” was to the original source of the information, who told it to the informant, and to another prisoner who had given the source Ritalin a few days previously.
5 Forrest, above n 2, at [14].
6 R v Smith (Malcolm) [2000] 3 NZLR 656 at [40].
7 Hamed v R [2012] 2 NZLR 305 at 174.
persons under its control or supervision by ensuring decisions about them are taken in a fair and reasonable way.8
[22] Also relevant, in Mr Allan’s submission, were the values of personal freedom and dignity, a right to be let alone, and reasonable expectations of privacy as recognised by the Supreme Court in Hamed.9 He said Ms Mitchell had a reasonable expectation her personal freedom and dignity would be free from unreasonable and arbitrary state intrusion. In Mr Allan’s submission, the course of conduct leading up to the decision to undertake a rub-down search constituted a search in the context of Hamed. The course of conduct was to give effect to the Decision, which was to strip search her and was therefore unreasonable.
[23] Mr Allan relied on Forrest in support of his submission that a finding of a breach of s 21 should follow a finding of illegality.10
[24] The defendant’s position was that Ms Mitchell was lawfully searched and therefore exceptional circumstances would be required in order to find the search was unreasonable.11 The defence, therefore, focused solely on Ms Mitchell’s rub-down search, submitting no aspects of it were unreasonable. Indeed, in Mr May’s submission, the Corrections officers’ “willingness to take into account Ms Mitchell’s protests” ought to be viewed as a factor showing reasonableness. The defence did not address whether the strip searches of other prisoners was reasonable.
[25] The claim involves the “unlawful exercise of strip search powers”. There is no doubt Ms Mitchell was subject to the consequences of the Decision to carry out a strip search of her and all other prisoners in the Fergusson Wing. Ms Mitchell was informed she was to be strip searched and it was only as a result of her resistance that the strip search did not eventuate.12 Arguably the Decision to undertake the strip search in respect of Ms Mitchell was implemented, even if it stopped before the intrusive part of the search took place. There is, however, no evidence she was required to remove,
8 Corrections Act 2004, s 6(1)(f).
9 Hamed, above n 7.
10 Forrest, above n 2, at [18].
11 R v Williams [2007] NZCA 52, [2007] 1 NZLR 207 at [24].
12 Although the amended statement of claim dated 9 September 2016 alleges “Corrections officers attempted to remove the plaintiff’s clothing”, that was not substantiated by Ms Mitchell’s affidavit.
raise, lower or open any of her clothing. The definition of strip search is limited to the actual search rather than any preparatory steps.
[26] Leaving aside Ms Mitchell’s individual circumstances, there is no doubt the strip searches carried out on 15 July 2010 of prisoners resident in the Fergusson Wing of the Prison were unlawful and unreasonable.
Arbitrary detention
[27] In Mr Allan’s submission, the evidence shows the purpose of the prisoners’ detention was for the strip search:13
At approximately 1645 hours 16 Fergusson Prisoners were escorted from the wing to the main [visiting] centre to be strip searched for contraband and held in the [visiting] holding cells while assisting officers conducted a full search of Fergusson Wing.
[28] Mr Allan said the criteria for a strip search were not met and therefore the criteria for detention for that purpose were not met. The women were detained for the unlawful purpose of an unlawful search and this was arbitrary, in his submission. He said, where there is evidence of detention, the Crown has the burden of showing on the balance of probabilities that such detention was not arbitrary and only in exceptional circumstances will unlawful detention not also be arbitrary.14
[29] Mr Allan emphasised the strip search could be effected only with detention. He acknowledged the staff could have conducted a rub-down search at any time if searching for contraband,15 but said the defendant could not rely on this as an ex post facto justification for an arbitrary detention. The prisoners were detained and moved for the purposes of a strip search, whereas a rub-down search could have been carried out in the cells.
[30] Mr Allan asked the Court to dismiss the suggestion from the defendant that any claim in this regard should have been brought under s 23(1)(c) of NZBORA which
13 Second incident information report.
14 Manga v Attorney-General [2000] 2 NZLR 65 (HC).
15 Corrections Act 2004, s 98.
relates to rights of persons arrested or detained. He said s 23 relates to a different right in a different context.
[31] In Mr May’s submission, moving a person from one place to another while already in lawful custody cannot constitute detention for the purposes of s 22 of NZBORA. He referred to two decisions. In Bennett v Superintendent, Rimutaka Prison,16 which involved an application for a writ of habeas corpus, the Court of Appeal held a change of conditions under which an inmate sentenced to imprisonment was being detained did not create a new detention for the purposes of s 23(1).17 An alteration of conditions of detention did not deprive a prisoner of any liberty which they had not already lost when initially confined. Mr May distinguished the case of R v Briggs relied on by Ms Mitchell.18 In that case, prisoners, who were held on remand, were arrested without warrant and then taken to a police station for processing. They were, therefore, moved to a completely different location outside of the prison and I accept the case is distinguishable on this basis.
[32] Mr May noted the decision of Attorney-General v Taunoa,19 where this issue was given some consideration. The High Court had followed the decision of Bennett and, in the absence of any argument to substantiate a claim it was wrongly decided, the Court of Appeal followed that decision.
[33] In my assessment, it is artificial to separate any detention of Ms Mitchell and the other prisoners from their broader incarceration. Moving the prisoners to the Visiting Centre was simply preparatory to the implementation of the search. I note, despite the discussion in respect of a strip search carried out in a prison in the Forrest case and a finding of a breach under s 21 of NZBORA, there was no suggestion that arbitrary detention had also occurred.
16 Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616 (CA).
17 At [62].
18 R v Briggs [2009] NZCA 244.
19 Attorney-General v Taunoa [2006] 2 NZLR 457 (CA).
Should a declaration be made?
[34] Once a reviewable error is found, the plaintiff is prima facie entitled to a remedy. This position is encapsulated by Harrison J’s judgment in Williams v Auckland Council:20
In the judicial review context a plaintiff who has proved a breach of his or her rights is entitled to the vindication of a declaration unless there are special considerations to the contrary or extremely strong reasons for refusal.
[35] A similar sentiment was endorsed by Elias CJ and Arnold J in Ririnui v Landcorp Farming Ltd.21 I note, however, that position was established in circumstances of substantial prejudice. Ultimately, as noted in Rees v Firth, remedies in judicial review are discretionary and a nuanced approach taking into account all the circumstances is necessary.22 With that in mind, I turn now to the possible reasons for refusal.
Delay
[36] Delay itself is not necessarily a bar to relief. There is no rigid test, rather the Court undertakes a fact-specific assessment.23 Relevant to the assessment are the competing rights, interests and potential prejudice which arise out of the delay, the seriousness of the illegality, and the reasons for the delay.24
[37] Mr May submitted the delay suggested the matter lacked significance to Ms Mitchell. I do not agree. The delay is readily explainable. Ms Mitchell has been in prison on remand and as a sentenced prisoner for a considerable period. This has by no means been a bar to her taking legal proceedings, indeed she has been an active litigant. However, the reality of her situation needs to be considered. She has been
20 Williams v Auckland Council [2015] NZCA 479 at [99] citing Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 at [60]–[61]; Survey Nelson Ltd v Maritime New Zealand [2010] NZCA 629 at [52]; and Berkeley v Secretary of State for the Environment [2001] 2 AC 603 (HL) at 608 and 616.
21 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [112].
22 Rees v Firth [2011] NZCA 668, [2012] 1 NZLR 408 at [48].
23 Hauraki Catchment Board v Andrews [1987] 1 NZLR 445 (CA) at 448.
24 See for example Air Nelson Ltd, above n 20; Forsyth v District Court at Lower Hutt [2015] NZHC 2567, [2016] 2 NZLR 248 at [115]; and Green v Auckland Council [2013] NZHC 2364.
pursuing a number of cases herself within the confines of prison and subject to the limitations of that environment.
[38] Conversely, the defendant cannot show any prejudice by the delay. File notes were made at the time which demonstrated the absence of any lawful grounds for the search. Any staff recollection could not rectify the obvious and serious illegality.
[39] On balance, the delay is not material to the decision of whether to grant relief. This is particularly so in light of the relief sought which will not prejudice the defendant or any third party.
Standing
[40] In Mr May’s submission, as Ms Mitchell was not strip searched, she does not have standing to seek a declaration. He said Ms Mitchell fails to come under either of the two categories relating to standing: the first, where the applicant has a particular personal or private interest; and the second, where there is a public interest in judicial intervention to prevent or remedy unlawful actions affecting the community at large. He emphasised the matter at issue in this case was the legality of the single decision to strip search prisoners which took place almost seven years ago.
[41] In Attorney-General v Taylor,25 the Court held Mr Taylor did not have standing to bring an application seeking a declaration of inconsistency under NZBORA in respect of legislation restricting the voting rights of prisoners. Mr Taylor was not affected by the legislation and could not benefit from a declaration of inconsistency. The Court noted that a representative plaintiff may be allowed to seek a remedy but the applicant must be directly affected. In the case of Mr Taylor, while he was a prisoner, he was not representative of prisoners affected by the legislation at issue and his rights were therefore not sufficiently engaged.26 The difference in that case, however, was that there were four other prisoners who were party to the proceedings and whose rights were engaged.
25 Attorney-General v Taylor [2017] NZCA 215, [2017] 3 NZLR 24.
26 At [166], [177] and [178].
[42] Mr May also referred to the decision in the Court of Appeal of England and Wales in Hussein v Secretary of State for Defence.27 The appellant in that case was found not to have standing to seek judicial review of a British military interrogation policy on the grounds it was contrary to the Geneva Conventions. The appellant, an Iraqi national, had been arrested and questioned by British forces in Iraq and alleged he had been ill-treated during questioning. He sought to review the interrogation policy. The Court concluded Mr Hussein was not an individual directly affected by the matters the subject of the claim. He was not subjected to the technique of interrogation with which the Court was concerned and there was no possibility he would be. The Court accepted there were situations in which it was appropriate for standing to be acknowledged notwithstanding the lack of a personal interest in the claim but it was not persuaded in the circumstances the public interest required Mr Hussein to have standing to bring the proceedings. Finally, the Court said:28
… the purposes of judicial review would be better served by an application by a person who has been subjected to challenge direct. That would have the additional advantage of enabling the issues to be considered by reference to an actual set of facts. Contrary to the submissions on behalf of the appellant I do not consider that this is unlikely to occur.
[43] After the close of the hearing, Mr May drew the Court’s attention to a recent High Court decision, Smith v Attorney-General.29 In that case, Palmer J undertook a useful analysis of the law on standing, summarising the position as:
[2] The requirement of standing in judicial review proceedings has been significantly relaxed in New Zealand. But it is not so relaxed that it is horizontal. It still exists. Personal standing is concerned with whether a litigant’s personal rights and interests are affected by the decision under challenge. Public interest standing is more concerned with whether the decision under challenge is or may be unlawful. …
[44] While that case concerned an application to strike out a claim and therefore required the Court to be certain it was so untenable it could not possibly succeed, nevertheless the analysis of the law is helpful. Palmer J’s statement reflects a considerable body of precedent which suggests standing is not to be viewed narrowly. The standing rule exists to protect the courts from being flooded with irresponsible
27 Hussein v Secretary of State for Defence [2014] EWCA Civ 1087.
28 At [88].
29 Smith v Attorney-General [2017] NZHC 1647.
applications30 but, because of the constitutional importance of judicial review, a relaxed view as to standing may be appropriate.31 A sufficiency of interest is required, assessed in the context of a totality of the facts.32 In Moxom, Fisher J considered standing would be found where the applicant had a “significant personal or private interest beyond that which is shared with members of the public at large”, with the relevant interest given a broad meaning.33 The corollary of a relaxed view on standing, however, is that it may be a factor when considering whether and what kind of relief is appropriate.34
[45] Ms Mitchell’s position can be distinguished from the cases cited by Mr May. Unlike Mr Taylor, she was subject to the acts of public power she challenged or, at the very least, steps taken in preparation for the exercise of the power. These circumstances are wholly unlike those of Mr Hussein. Ms Mitchell does not seek to review different policy or decisions from those which were misapplied to her. She was directly affected by the Decision and the strip search at issue and her experience provides the necessary factual basis on which to assess her application for review.
[46] In Mr May’s submission, there was a critical difference between Ms Mitchell’s experience and that of the other prisoners. The Decision was carried out with respect to the other prisoners but not with respect to her.
[47] I accept the difference but there was nevertheless a strong nexus between the Decision, the steps preparatory to its implementation to which Ms Mitchell was
30 Consumer Co-operative Society (Manuwatu) Ltd v Palmerston North City Council [1981] 1 NZLR 1 (CA) at 5.
31 See for example the comments in Ririnui, above n 21, at [91(a)] per Elias CJ and Arnold J; Kim v Prison Manager Mt Eden Corrections Facility [2012] NZSC 121, [2013] 2 NZLR 589 at [76] per Chambers J; Ye v Minister of Immigration [2009] 2 NZLR 596 (CA) at [322] per Glazebrook J; and Environmental Defence Society Inc v South Pacific Aluminium Ltd (No 3) [1981] 1 NZLR 216 (CA) at 221 per Cooke J.
32 See for example Ye v Minister, above n 31, at 322 per Glazebrook J; and Budget Rent A Car Ltd v Auckland Regional Authority [1985] 2 NZLR 414 (CA) at 419.
33 Moxom v The Casino Control Authority HC Hamilton M324/99, 24 May 2000 at [103]. Similar sentiments have been expressed in other High Court judgments, see for example James v Waitakere City Council HC Auckland CIV-2010-494-2338, 29 October 2010 at [21]; McNicholl v Auckland Regional Authority HC Auckland A952/85, 8 August 1986 at 78–79; and Re Royal Commission on Thomas Case [1980] 1 NZLR 602 (HC) at 609.
34 Auckland City Council v Attorney-General HC Auckland CIV-2009-404-1761, 24 November 2009 at [29].
subject and the strip search to which others were subject. It was only by dint of Ms Mitchell’s persistent resistance that the invasive strip search was not carried out.
[48] Ms Mitchell’s circumstances are perhaps better considered in the context of an “attempted strip search”. Here, an analogy to criminal law may be useful. If a person intends to carry out an action and does an act for the purpose of achieving the object, he or she has attempted to carry out that action if the act is immediately or proximately connected to it.35 There is no doubt the actions taken by the Prison staff, not only in taking Ms Mitchell to the Visiting Centre, but also in placing her in a cell and threatening her with the use of force in order to carry out the strip search, were done for the purpose of accomplishing the object of strip searching Ms Mitchell.
[49] In these circumstances I consider Ms Mitchell does have a particular personal or private interest in the matter which is beyond that shared by members of the public at large.
[50] The fact no other women have taken action to complain of the unlawful strip search is not determinative. Given the acts took place quite some time ago and, understandably, Ms Mitchell no longer has contact with the other prisoners, there are good reasons for no other women being parties to the application.
[51] If Ms Mitchell’s standing is not recognised, matters will not be “adequately traversed by other parties” and, in my assessment, a relatively flexible approach is required in this case given the importance of the protected values.36 There is an obvious power imbalance between prison staff and those in their custody. Sentenced prisoners are among the most marginalised members of society.
[52] I consider there is a clear public interest in judicial intervention to prevent or remedy the unlawful actions which affected a number of women. The broader public interest is served by holding Corrections to account for the unlawful treatment of sentenced prisoners. There is a public interest in the administration of justice and vindication of the rule of law.37
35 R v Eagleton (1855) Dears CC 515 at 538, 169 ER 826 (Cr C R) at 835.
36 Moxom, above n 33.
37 Smith v Attorney-General, above n 29, at [27].
No prejudice/issue is moot
[53] The issue then is whether any further validation of Ms Mitchell’s complaint is required. The defendant’s position is that Ms Mitchell’s objection has been validated in the most meaningful way possible, that is, by not being subject to a strip search.
[54] In Mr May’s submission, the legality or otherwise of the Decision is moot with respect to Ms Mitchell because she was subject to a lawful rub-down search. The only prejudice suffered by her was when she was informed of the Decision. The prejudice was fleeting, he said, and resolved by the subsequent decision to administer a rub- down search instead, something a Corrections officer may do at any time for the purpose of detecting an unauthorised item.38
[55] Mr May referred to instances where the courts will withhold relief where a defect in a decision has been overtaken by events. He said the error could not be considered “material” because the outcome would have been the same regardless of the error.39 Other cases have referred to “mootness”40 or a decision being academic41 in circumstances where subsequent events eliminated the controversy or rendered further litigation meaningless. Those cases concerned matters such as the potentially unlawful non-issue of a consent or licence being rectified by a consent or licence subsequently being issued42 or the expiry of a challenged suspension.43 This case is not concerned with what might be considered such relatively mundane or procedural issues which were subsequently rectified.44 I note in such circumstances the Court of Appeal has stated:45
[39] But a discretionary withholding of relief is not the normal outcome of a successful attack on a reviewable decision. If some form of relief could have a practical value then it ought be granted. This litigation has been concerned
38 Corrections Act 2004, s 98(1)(b).
39 G Taylor Judicial Review: a New Zealand Perspective (3rd ed, 2014 Lexis Nexis, Wellington) at [5.33].
40 Maddever v Umawera School Board [1993] 2 NZLR 478 (HC) at 502–503.
41 Caie v District Court Pukekohe HC Auckland CIV-2009-404-7220, 11 June 2010 at [21].
42 See for example Caie v District Court Pukekohe, above n 41; and Just One Life Ltd v Queenstown Lakes District Council [2004] 3 NZLR 226 (CA).
43 Wislang v Medical Council of New Zealand HC Wellington CP219/00, 21 June 2001 at [44].
44 As in Wislang, above n 43 (suspension of practising certificate); Just One Life Ltd, above n 42 (a replaced resource consent); Reekie v Chief Executive of Department of Corrections [2013] NZHC 271 (procedural oversights); Maddever, above n 40 (a meritless claim); and Caie, above n 41 (damage already cured through success in other litigation).
45 Just One Life Ltd, above n 42.
with the possibility of a declaration. The issue is not confined to whether or not a declaration ought be made but to whether no form of declaration could have any practical utility. It might well be that a declaration that the impugned consents were issued unlawfully, without elaboration, would provide both the appellant’s apt vindication and the respondent's more general concerns.
[56] I note also it is not out of the ordinary to grant declarations to guide future decisions or where other individuals may be placed in a similar position in the future.46
[57] Mr May then referred to the case of Reekie.47 Despite a finding that the prison authority’s omission to give the applicant notice prior to his transfer to a different prison was “a significant oversight”, the Court nevertheless declined to grant the declarations sought because the omissions were relatively short lived and of no consequence to the substantive decisions themselves.
[58] Ms Mitchell’s evidence was that, once she was in the Visiting Centre, she was confronted by four staff members and told she would be searched for drugs and put over “the mirror”. This is a search technique in which a woman is required to unclothe and then squat over a mirror so Corrections officers can see into the woman’s anal and vaginal openings. The affidavit of Ian Blowers, the Corrections Officer who directed Ms Mitchell should be subject to a rub down search instead of a strip search, said that, if force had had to be used against Ms Mitchell in order to undertake a strip search, a control and restraint team in protective gear would have been required. Ms Mitchell would then have been given the option of compliance and, if she had chosen not to, then the team would have “restrained her, for the search to be conducted”.
[59] Ms Mitchell said she received threats of force, faced the prospect of being charged, the prospect of not being released the following Monday (her release date) and was required to steel herself for further physical resistance.
[60] In the circumstances, Ms Mitchell had a very real fear of being subject to a strip search which by its very nature is degrading and invasive. She avoided it only by adamant and persistent passive resistance. The fact the strip search was not in fact
46 See Nixon v War Pensions Appeal Board HC Wellington CP360/91, 5 March 1993; and Talley’s Fisheries Ltd v Minister of Immigration HC Wellington CP201/93, 10 October 1995.
47 Reekie, above n 44.
carried out emphasises the staff had no reasonable belief she was in possession of contraband. These considerations support a conclusion that a declaration would not be “futile” or “of academic interest only”. It would vindicate Ms Mitchell’s resistance.
[61] In saying that, however, I return to the issue identified at the start of this decision, which is the difference between the way in which the case was pleaded and the way in which it was presented at the hearing. The distinction between a statutory power of decision and a statutory power does have some relevance. A statutory power will have been exercised only when the action is taken, whereas a statutory power of decision will have been exercised (and is therefore reviewable) when the decision was made. Mr May was unable to find any prior case in which the distinction between the power of decision and power of search was relied on. As discussed above, I have some disquiet about the case being analysed on the basis of a statutory power of decision. I question whether it is appropriate to seek judicial review of a decision to exercise a statutory power when that decision has not been and will not be implemented. Where a decision to exercise a power of search is implemented, it is the act of the search rather than the decision which is appropriately reviewed. As suggested above, in my view this case is better considered as an “attempted” strip search of Ms Mitchell.
[62] This brings me to a further issue. In his submissions, Mr Allan sought a declaration the attempted strip search of Ms Mitchell was unreasonable under s 21 of NZBORA. That was not addressed by Mr May, understandably so, as this was not sought in the statement of claim.
Conclusion
[63] For these reasons, I am satisfied Ms Mitchell has standing to bring the proceedings.
[64] I do not, however, consider it appropriate to make a declaration in respect of the Decision. The real issue in this case is the exercise of the statutory power, that is, the act of the strip searching the women prisoners.
[65]While I have recognised Ms Mitchell’s standing to bring these proceedings,
the fact she was not subject to a strip search is a factor to be taken into account when
deciding whether she herself should be the subject of any declaration. A declaration is a discretionary relief.48 For the reasons set out above, I am not satisfied a declaration with respect to Ms Mitchell is warranted in her circumstances. Those who were subject to the strip search, however, underwent an invasive and degrading procedure. It was unlawful and unreasonable, and a declaration is justified.
[66] The result is therefore a rather unusual one. I am satisfied Ms Mitchell has standing to bring the proceedings but, given the circumstances as discussed in [61]–
[62] above, she will not be subject to the declaration. I am, however, satisfied a declaration is warranted. It is perhaps unsurprising that none of the women who were subject to the strip search sought to review the exercise of the power. Those who have completed their sentence of imprisonment no doubt wish to put their experience behind them and get on with their lives. Any who remain in prison are likely focused on completing their sentence. The women may well be unaware of the illegality of the search and that their rights were infringed. This emphasises the need for the declaration. It is important to hold Corrections to account and the making of a declaration is the appropriate way to do so.
Result
[67] For the reasons given, I make a declaration that the strip search of the women in the Fergusson Wing, Arohata Prison, Wellington on 15 July 2010 was unlawful and in breach of s 21 of the New Zealand Bill of Rights Act 1990.
Thomas J
Solicitors:
Luke Cunningham Clere, Wellington for Defendant
48 Declaratory Judgments Act 1908, s 10.
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