Smith v Chief Executive of the Department of Corrections
[2020] NZHC 1597
•7 July 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2020-485-150
[2020] NZHC 1597
UNDER Judicial Review Procedure Act 2016 IN THEMATTER
of a judicial review of the Department of Corrections Child Protection Policy
BETWEEN
MICHAEL RICHARD SMITH
Plaintiff
AND
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Defendant
Hearing: 5 June 2020 (VMR) Counsel:
Plaintiff in person
S B McCusker for Defendant
Judgment:
7 July 2020
JUDGMENT OF SIMON FRANCE J
[1] Mr Smith is subject to a sentence of imprisonment in relation to offences of theft and obtaining by deception. In this proceeding he challenges the lawfulness of the defendant’s Child Protection Policy (CPP).1 This is the policy that governs the contact prisoners may have with persons 17 years of age and under.
[2] Mr Smith has mainly served his sentence at the Auckland South Corrections Facility, which is a contract prison operated by Serco New Zealand Ltd. Earlier in the management of these proceedings it was raised with Mr Smith by both the defendant
1 Judicial Review Procedure Act 2016.
SMITH v CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS [2020] NZHC 1597 [7 JULY 2020]
and the Court that he ought to join Serco as a defendant.2 Mr Smith had been at a Department of Corrections facility, the Spring Hill Corrections Facility, for only a short time. Otherwise, all decisions under the CPP specific to Mr Smith were taken by Serco. Mr Smith refused to join Serco. The consequence is the challenge is essentially limited to the CPP itself rather than any decisions made under it.
The authority for the policy
[3] Section 196(1)(a) and (b) of the Corrections Act 2004 (the Act) authorises the Chief Executive to issue guidelines and instructions on procedures to be followed and standards to be met, and concerning the exercise of powers available under the Act and the Corrections Regulations 2005 (the Regulations). Relevant to the formulation and implementation of policies, s 6 of the Act sets out a number of principles. Particularly in play in the present case are principle 6(1)(a), which makes the maintenance of public safety the paramount consideration, and principle 6(1)(i), which states that contact between prisoners and their families is to be encouraged and supported. This latter principle is qualified by the observation that such support and encouragement must be reasonable, practicable and consistent with the maintenance of safety.
The development of the policy
[4] Work on what was to become the CPP started in November 2012.3 At that point children under 16 could visit prisoners if accompanied by a responsible adult who obviously themselves had to be an approved visitor. The lack of procedures around these visits, including knowledge of the relationship between child and responsible adult, and child and prisoner, was one of the reasons for a review of the procedures. The initial protocol document was prepared in collaboration with a non- governmental agency, Child Matters.
2 Smith v Chief Executive of the Department of Corrections HC Wellington CIV-2020-485-150, 1 May 2020.
3 This narrative is taken from evidence filed on behalf of the defendant from Ms Keane, the Manager of Design and Implementation within Corrections.
[5] The protocol was approved in December 2013. It has been modified several times since. The defendant notes the enactment of the Vulnerable Children Act 20144 which mandated various state services to have a child protection policy. While Corrections is not a prescribed entity, it took steps to align its language and processes to promote consistency with other parts of the public sector and in 2015 the protocol was renamed the Child Protection Policy – the CPP.
[6] The CPP covers contact with children under 18 years of age.5 Contact is defined widely to include face-to-face visits, booth visits, Audio Visual Link visits, written communications, telephone communications, whānau days, and presence in the visitors’ room at times when visits from children are permitted. The base position is that no contact with children under 16 is allowed, and that visits by children under 18 must be approved by the Prison Manager having received advice from an advisory panel.
[7] The threshold criterion for application of the CPP to a prisoner is any prisoner who has a conviction for violent or sexual offending against a child, or who faces such charges. A prisoner who falls within the threshold has an alert attached to their prison file. Contact with children is not permitted other than with the approval of the Prison Manager. Obviously, different levels and forms of contact can be approved. The alerts remain unless the convictions are quashed or the active charges dismissed. Included within the process is a multi-disciplinary advisory panel who, as their name suggests, provide advice to the Prison Manager about applications under the CPP.6
[8] The CPP applies to Mr Smith because during his imprisonment, he was convicted (and discharged) in respect of a historical charge of assault with a weapon against one of his children.7 A CPP alert has been attached to his prison file.
4 Now called the Children’s Act 2014.
5 Recent amendments to the Corrections Regulations 2005 increase the age of visitors who must be accompanied by a parent or guardian to those under the age of 18.
6 The panel members, or sub-groups thereof, provide advice on a range of decisions in addition to CPP decisions.
7 R v Smith [2019] NZDC 25134.
Assessment
[9] Corrections is authorised to have a child protection policy and it would be deficient if it did not do so. The CPP on its face is an orthodox and structured policy informed by legitimate purposes, and plainly authorised by statute.8 The empowering provision is broadly worded, and the context supports an approach that allows for safe management of prisons.9 It is preferable, therefore, to address this proceeding through the specific challenges raised by Mr Smith.
(a) The threshold test is too broad
[10] Mr Smith submits it is unreasonable to capture all persons with convictions for violent offending against children regardless of the age of the conviction, the seriousness of the offending as reflected in the penalty, and any comments made at the time of sentencing by the Court.
[11] Mr Smith’s submission places insufficient weight on the role of the definition of those to whom the CPP applies. It is in effect an alert system which is followed by a detailed individual assessment that allows ample scope for individual differences. There is certainty to the threshold test, and it is far from over-broad, being limited to active charges and convictions. It does not extend, for example, to family harm incidents or the numerous other circumstances that might equally raise a flag.
[12] Mr Smith focused on some statistics which he said pointed to the capture being unduly wide. First, it is noted that 42 per cent of persons with a CPP flag have never made an application.10 The difficulty with this focus is that it cannot be known at the time of attaching an alert whether a particular prisoner is intending to have contact with young persons. It is not being flippant to observe that equally for those 42 per cent the alert has not been in any way a limit on them. The 42 per cent does not represent a cohort that could be sensibly captured by a definition so as to initially exclude the CPP applying to them.
8 Corrections Act 2004, s 196(1).
9 Section 6(1)(a). See also Taylor v Chief Executive of the Department of Corrections [2010] NZCA 371, [2011] 1 NZLR 112 at [28]-[29].
10 It is unclear where this 42 per cent figure comes from, however for present purposes I have assumed it is correct.
[13] The second statistic also said to show the definition is too broad is that around 75 per cent of CPP prisoners who made applications were subsequently allowed some form of contact. I disagree this points to a problem, and rather consider it is a comforting figure that highlights the application of the CPP to a prisoner is indeed only an initial flag, and that individual circumstances are thereafter considered. Further, without knowledge of what conditions were imposed on the 75 per cent, it is a misleading statistic. It may well be the case that the alert has done its job by allowing modified conditions that meet the interests of the prisoner and safety.
[14] Related to this point is Mr Smith’s challenge to the procedural propriety of the advisory panel. As noted, all applications for child visitors for CPP prisoners go before an advisory panel who make recommendations to the Prison Manager. Mr Smith submits the panel’s workload is too high because of the large number of CPP prisoners, and this compromises the quality of the decision-making process. His concern is that the panel members do not meet in person but rather make their recommendations on a workflow manager screen.
[15] The workflow manager was introduced in June 2018. In a memorandum to the National Commissioner approving its introduction, the relevant team noted it would enable prison visit decisions to be made more efficiently, free up resource time by reducing the number of in person panels required and support robust decision-making through data capture and reporting capabilities. It was a policy and resourcing decision made by Corrections on how to best implement the CPP. After the panel members have entered their recommendations on the workflow manager, it is still the Prison Manager who is required to make a decision, which may be to refer the application to an in person panel. There is therefore the ability for a more thorough assessment if required.
[16] Mr Smith also challenged the fact that the CPP covered charges as well as convictions, an issue which also falls under this heading of an unreasonably broad threshold. Again, however, it is to be recalled it is only an initial assessment that is the product of applying fixed criteria. The fact that a matter is still at the stage of unproven allegations will be a relevant consideration as part of the individualised
assessment, but the system would be deficient if it was unable to consider the matter because there were only charges regardless of what the underlying context might show.
[17] Finally under this topic of unreasonably broad, I record Mr Smith’s challenge to the fact that the CPP will be triggered by convictions that may be quite historical. The response is the same. The dated nature of the conviction will certainly be a relevant consideration in deciding how to apply the policy to individual prisoners and applications. I doubt there is research that shows that after a certain period of time such a conviction is necessarily and always irrelevant to present risk assessment. Further, any time limit-based exclusion, as well as risking excluding cases that should be captured, will inevitably produce arbitrary results. Mr Smith’s situation provides an example. His qualifying conviction is recent; the underlying conduct is historical. Whatever time limit was chosen it is likely his conviction would still be caught even though the underlying conduct may fall outside the time limit. At the threshold stage, there are sound reasons for fixed general criteria with individualised assessments to follow.
(b) Usurping the role of the courts
[18] Mr Smith next submits the CPP system is an unauthorised usurpation of the role of the courts. The submission is best illustrated by two aspects of Mr Smith’s case. At one point there was a protection order against Mr Smith and in favour of his former wife who is the mother of his children. The protection order in effect prevented visits by the children since the mother would be the accompanying adult. Accordingly, the parents jointly applied to the Court for its removal and this was consented to in 2017.
[19] Then, at the time of sentencing for the historical offences of violence against his children, for the second time the need for a protection order was rejected.11 It must be observed however the Court’s reasoning was that the children were adults and could make up their own mind.
11 R v Smith, above n 7, at [8].
[20] Mr Smith submitted that on two occasions now a District Court Judge has rejected the need for a protection order in relation to his children. Therefore, the CPP system should not allow Corrections to second guess a court’s assessment.
[21] There is general relevance in the point to the extent that such decisions represent relevant assessments by a court to which regard should be had by a prison manager when determining an application for a child to have contact with a CPP prisoner. But I accept Mr McCusker’s submission that Corrections has its own separate duty of care and must ensure it has processes to address that. The legislation governing the defendant allows it to have policies, and if overlap occurs between the polices and a court’s decision, that does not make the policy unlawful. The reality is also that the context in which the decision is being taken is very different.
(c) The charges are laid subsequent to Mr Smith being sentenced to prison
[22] The statement of claim raises the issue that the relevant charges of assault against a child were laid subsequent to Mr Smith’s incarceration. It is submitted the CPP should only apply if the prisoner is already subject to a relevant conviction or charge, that being the reason for the prisoner’s incarceration. Where the prisoner is not incarcerated by reason of being convicted or charged with a relevant offence, Mr Smith submits Corrections has “no jurisdiction” to apply the CPP to that prisoner. Related to this is a submission of retrospectivity because the conduct in issue occurred before the CPP came into operation.
[23] In relation to the first point, Mr Smith has a conviction for assault against a child and prior to that was subject to active charges. The CPP applies to prisoners that have “any convictions or face active charges” for relevant offending. The CPP therefore applies to Mr Smith, regardless of when the events leading to the charges occurred or whether these charges led to his incarceration or not. Concerning the related point, there is no retrospectivity. What is being assessed is present risk while an inmate. Any assessment of risk is always informed by past conduct, and it is no different here.
(d) Breach of natural justice
[24] Mr Smith submits there was a breach of natural justice in two aspects – the lack of consultation when the CPP was developed and then made operative, and the lack of notice when a CPP flag was put against his name. Related to the lack of notice is the inability to challenge the flag.
[25] Concerning the former, there is no obligation on Corrections to consult with prisoners when formulating national policy on how to discharge its obligation to keep children safe. No source of such an obligation was suggested.
[26] The lack of notice concerning the alert is a different matter requiring more detail. Mr Smith only became aware of the CPP alert against him some time after its imposition. It did not come to his attention in the course of any application by him or a child wanting to visit him, but its effect came about in a less obvious way. For some time Mr Smith was visited regularly by the same person who could only attend the prison during the Sunday afternoon visitor slot. Since the implementation of the CPP, that slot was also approved for child visits and so once the flag was in place, Mr Smith could not access the visiting room at the relevant time. This effect is unfortunate but the decision of the Prison Manager not to allow Mr Smith access at that visiting time was reviewed and upheld by the Prison Inspectorate.
[27] More generally, it is not a fatal flaw of the CPP that it does not require that an inmate be advised at the time a CPP alert is placed against their name. Whether they are told of the applicability of the policy at the time (which for most affected prisoners will be at the time of admission because it will relate to a conviction already entered) or later when an application is made would seem of little significance. The same process will then apply, and prior to an application being made there is little utility in discussing it. The timing of notice is, I consider, a matter of assessment for the authorities as to what works best in the environment.
[28] Finally on this point, the inability to challenge the CPP flag on a prisoner’s file does not raise any cause for concern when it is considered in context. The CPP flag prima facie prevents a prisoner from having contact with children. However, an application may be made to nevertheless allow contact with children or the use of the
child visitor hours slots, and a decision-making process is in place. There is also the ability to review any decision made on such an application. Therefore although there is no ability to review or challenge the CPP flag itself, there are processes in place to allow prisoners to challenge any effect the flag might have. This indicates the initial or threshold nature of the flag. It is an indication to Corrections staff of the risk a prisoner might present, but, on application by the prisoner, a full individualised assessment will be made.
(e) The matters to be considered by the prison directors
[29] Corrections has issued guidance for prison directors on the matters to be taken into account when considering an application by a prisoner affected by the CPP for a visit by a child under 18. The document therefore relates to only one form of contact covered by the CPP, namely visits. The policy guidance:
(a)directs that any visit must be consistent with known court orders;
(b)identifies situations where the application must be declined and then some situations where it may be declined;12 and
(c)sets out some matters to be considered.
[30] Mr Smith notes the absence, as identified relevant considerations, of the wishes of the child and tikanga Māori. He refers to statutory provisions in the Oranga Tamariki Act 1989, the Vulnerable Children Act 2014 (now named the Children’s Act 2014) and the Family Violence Act 2018 as reinforcing the importance of these considerations.
[31] Again the point is not without merit and it could be argued the list of matters to consider might be strengthened by specific references to other matters. However, from the viewpoint of a legality challenge, it is plain these considerations are not excluded. The list of identified considerations is expressly noted to be not exhaustive. Indeed, the only rule in this regard is that the decision maker must take account of all
12 This distinction is more readily available in the prison operation manual than the policy guidance itself, which only refers to situations in which the application may be declined.
relevant and available information, a requirement that emphasises the guidance factors are not exhaustive. This type of judicial review is not an occasion for the Court to consider whether the document in issue is the best version it could be. That is for the authors, and in this case the defendant. The points raised by Mr Smith do not establish the CPP is unlawful, unauthorised or unreasonable.
(f) Visitor forms
[32] Mr Smith criticised the absence of any reference on visitor application forms to the CPP. These are forms that are completed not by the prisoner but by the person wanting to visit. They are forms that are not limited to visitors of CPP prisoners, and it is not apparent why the form should be cluttered by detail of the CPP.
[33] Related to this is a complaint that the form does not set out detail of the review process available to the prisoner, but for the same reason I consider the criticism is misdirected. The CPP prisoner will be made aware of the process when an application to visit them is made.
[34] This concludes the analysis of the challenges to the CPP. I consider it has not been shown the policy is unauthorised or unreasonable. For completeness, however, and out of courtesy to Mr Smith’s submissions, I comment on matters particular to his situation that he has raised.
(g) Individual matters
[35] A difficulty confronting Mr Smith is that as regards his own children, there is no relevant CPP decision that affects his situation. Although the CPP came into effect in 2014, it did not then apply to Mr Smith. That only occurred once he was charged in June 2018 with the offences against his children. From that point it could be that the CPP was a potential obstacle but, as it happens, Mr Smith obtained bail on those charges.13 A condition of his bail was that he was not to have contact with his children. This position pertained until his sentencing on 10 December 2019. Until that time therefore the CPP did not affect Mr Smith as regards access to his children. Further,
13 Obviously the bail was of no effect while Mr Smith was otherwise in prison, but it could have been operative had he been released.
at the time these proceedings were filed there still had been no application for contact. At the hearing the Court was advised there is an application process now under way.
[36] Mr Smith’s status as a prisoner affected by the CPP has however impacted on him in the manner already identified, namely the ability of his regular visitor to visit. The situation is unfortunate. There are visiting times set aside for what are termed adult or no-children visits. Mr Smith advises his regular visitor has other commitments that prevent him attending at these times.
[37] Mr Smith makes complaints about the handling of his correspondence on this matter. The Prison Manager has filed an affidavit in reply stating that the occasions when he did not respond to Mr Smith were because he never received the correspondence. This, in turn, was because Mr Smith did not follow the complaint pathways that he needed to, and which are known to him. As noted, I record this so as to make plain I have read the material but it is not a matter for the determination of this Court on review, and I do not comment on it.
Conclusion
[38]The application for review is declined.
Simon France J
Solicitors:
Crown Solicitor’s Office, Wellington for Defendant
0
1
0