Taunoa v Attorney-General
[2007] NZSC 70
•31 August 2007
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IN THE SUPREME COURT OF NEW ZEALAND
SC 6/2006
[2007] NZSC 70
BETWEENCHRISTOPHER HAPIMANA BEN MARK TAUNOA AND ORS
Appellants
ANDTHE ATTORNEY-GENERAL AND ANOR
Respondents
Hearing:9, 10 August and 1, 2 November 2006
Court:Elias CJ, Blanchard, Tipping, McGrath and Henry JJ
Counsel:T Ellis, D La Hood and A C Wills for Appellants
C Gwyn, D J Boldt and B Keith for Respondents
Judgment:31 August 2007
JUDGMENT OF THE COURT
A The appeals are dismissed.
B The cross-appeals are allowed to the following extent:
1.The damages awarded to Mr Taunoa are reduced to $35,000.
2.The damages awarded to Mr Robinson are reduced to $20,000.
3.The damages awarded to Mr Kidman are reduced to $4,000.
CThe cross-appeal in relation to Mr Gunbie is dismissed.
DCosts are reserved. If any question of costs arises counsel may file memoranda.
REASONS
Para No
Elias CJ [1]
Blanchard J [121]
Tipping J [275]
McGrath J [336]
Henry J [382]
ELIAS CJ
The appeals and cross-appeals
[1] The appeals and cross-appeals are concerned with the treatment of five prisoners held under a programme operated in Auckland Prison by the Department of Corrections between 1998 and 2004. The programme was called the “Behaviour Modification Regime” and, later, the “Behaviour Management Regime”. I refer to it throughout as “BMR”. BMR was found in the High Court to have been applied to the prisoners in breach of s 23(5) of the New Zealand Bill of Rights Act 1990 because they were not treated with humanity and with respect for their inherent dignity.[1] The Court of Appeal confirmed the finding of breach of s 23(5) in respect of all prisoners and held further that the placement on the regime of Lesley Frederick Tofts constituted disproportionately severe treatment contrary to s 9 of the New Zealand Bill of Rights Act.[2] These conclusions as to breaches of ss 23(5) and 9 have been accepted by the Attorney-General. In the High Court, the five prisoners were granted declaratory relief and were awarded damages,[3] in application of Simpson v Attorney-General [Baigent’s Case].[4] The Court of Appeal upheld that relief.
[1]Taunoa v Attorney-General (2004) 7 HRNZ 379 (Ronald Young J) (the liability judgment) at para [276].
[2]Attorney-General v Taunoa [2006] 2 NZLR 457 (Anderson P, Glazebrook, Hammond, William Young and O’Regan JJ) (the Court of Appeal judgment) at paras [135] – [148].
[3] Taunoa v Attorney-General (2004) 8 HRNZ 53 (Ronald Young J) (the relief judgment).
[4][1994] 3 NZLR 667 (CA).
[2] The appellants Christopher Hapimana Ben Mark Taunoa, Alistair Wayne Robinson and Matthew George Kidman appeal against the rejection by the High Court and Court of Appeal of their claim that their treatment while on BMR also amounted to “cruel, degrading, or disproportionately severe treatment or punishment”, in breach of s 9 of the New Zealand Bill of Rights Act. Taunoa, Robinson, Kidman and Tofts also appeal against the damages awarded to them on the grounds that they were too low to constitute an effective remedy for the breaches of their rights. In addition, they seek declarations that their rights to the observance of natural justice under s 27(1) of the New Zealand Bill of Rights Act were denied by their placement on BMR (because they were not given opportunities to be heard on the placement and its continued application to them). They also seek a direction from the Court that the Attorney-General conduct an independent investigation into their treatment while on BMR, a claim for substantive relief which the High Court declined to accept since it was made too late.[5]
[5] See para [104] below.
[3] Steven Brent Gunbie, the fifth prisoner, was unable because of his mental state to complete his evidence in the High Court as to his own particular experiences when on BMR. While he succeeded in obtaining a declaration in the same terms as the other prisoners and was awarded what the Judge described as “nominal” damages for breaches of s 23(5), the award to him was not augmented to reflect any personal impact of the breaches. Mr Gunbie has effectively taken no role in relation to the appeals but is a respondent in the cross-appeal by the Attorney-General and counsel for the appellants have proceeded on the basis that a finding of breach of s 9 and s 27(1) should properly have been made in respect of him too.
[4] In this Court, the Attorney-General does not argue that Baigent’s Case should be revisited and accepts that damages may be awarded where they are necessary to provide an effective remedy for breach of the New Zealand Bill of Rights Act. He cross-appeals on the basis that declarations of breach of s 23(5) (and, in respect of Mr Tofts, s 9) were here sufficient remedy and that no award of damages was appropriate for any of the prisoners, apart from Mr Tofts. Alternatively, the Attorney-General contends, in respect of all prisoners apart from Mr Tofts, that the awards made in the High Court and confirmed in the Court of Appeal were too high. As confirmed by the Court of Appeal,[6] the amounts awarded as damages to each of the prisoners were: Taunoa, $65,000; Robinson, $40,000; Tofts, $25,000; Kidman, $8,000; Gunbie, $2,000. The damages in respect of the breaches of s 23(5) were calculated roughly on the basis of a rate of $2,500 per month spent on the regime: 32 months for Mr Taunoa (in two separate admissions lasting, respectively, eight months and 24 months); 12 months for Mr Robinson;[7] three months for Mr Kidman; 6½ weeks for Mr Gunbie. The damages awarded to Mr Tofts were set at $25,000 for the three months he spent on BMR, in part to reflect the seriousness of a breach of s 9 and in part to remedy the clear harm to him and the aggravating culpability of the Department, given its knowledge of his vulnerability and the risks in subjecting him to BMR.
[6] At paras [178] – [179].
[7]As described in para [115] below, the Judge added $10,000 to the damages assessed by the formula adopted to compensate Mr Robinson for the fact that there was no basis for his retention on BMR after the first few months.
[5] I am of the view, for reasons developed below at paras [70] to [80], that ss 9 and 23(5) are not simply different points of seriousness on a continuum but identify distinct, though overlapping, rights. That is the view taken in the White Paper which preceded enactment of the New Zealand Bill of Rights Act.[8] It is also, I think, indicated by the texts of ss 9 and 23(5) and arts 7 and 10(1) of the International Covenant on Civil and Political Rights, upon which the provisions of the New Zealand Bill of Rights Act are based.
[8]A Bill of Rights for New Zealand: A White Paper (1985), paras [10.102] and [10.162].
[6] The prisoners held under BMR were not treated with humanity and respect for their inherent dignity, as Ronald Young J found and as is now acknowledged by the Attorney-General. The Judge found that “most of the breaches identified applied to most of the applicant inmates most of the time” (although he found that the longer periods spent on BMR by Mr Taunoa and Mr Robinson meant that the impact on them was more severe than on other prisoners). Ronald Young J did not find breach of s 9 on the basis, found to be erroneous by the Court of Appeal, that s 9 required deliberate infliction of suffering.[9] The Court of Appeal did not consider the cumulative effect of the conditions the prisoners were subjected to,[10] as I think it was bound to do having found that Ronald Young J had erred in considering that s 9 required intention to inflict suffering. For reasons given at paras [95] to [102], I come to the conclusion that the cumulative conditions on BMR amounted to cruel, degrading or disproportionately severe treatment in respect of all prisoners, in breach of s 9.
[9]Ronald Young J was addressing cruel treatment only, but (as indicated below at para [63]) the Court of Appeal inferred from the lack of other discussion of s 9 that he considered any s 9 breach required deliberate infliction of suffering.
[10]This may be a result of the way the case was argued. See description of the argument in the Court of Appeal judgment at para [184].
[7] Indeed, the finding by the Judge that “this was collectively treatment that fell well below standards that befits a human being including one who is in prison and who has behaved badly in prison” should, in my view, have led him to a finding of breach of s 9. For reasons I enlarge upon below, I consider that the requirement of s 23(5) that prisoners be treated “with humanity” imposes a positive duty of humane treatment. “Inhumane” treatment is a breach of s 23(5). Treatment properly characterised as “inhuman” is, however, in my view in breach of s 9. In any event, whether or not the Judge intended to conclude that the treatment was “inhuman”, I am of the view that inhumane treatment by design is properly characterised as inhuman. BMR was treatment, now accepted to have been inhumane, which was adopted as a policy of inmate management. Although I come to the conclusion that the cumulative conditions of BMR in themselves amounted to cruel, degrading or disproportionately severe treatment, I would also have been prepared to reach that conclusion on the basis that it is inhuman (and in breach of s 9) to adopt a policy of coercing good behaviour through inhumane treatment.
[8] If not of the view that the cumulative conditions on BMR in themselves constituted treatment in breach of s 9 in respect of all prisoners, I would have agreed, for the reasons Blanchard J gives, that the treatment of Mr Taunoa was in any event in breach of s 9. That is because of the extraordinary length of time he spent on BMR, which in itself greatly exacerbated the severity of the conditions on BMR.
[9] I agree with Blanchard J that the claim for a declaration of breach of s 27(1) adds little to the finding that BMR was unlawful. But the failure to observe proper processes for segregation and loss of conditions meant that statutory safeguards to ensure procedural fairness and humane treatment were avoided. The regime stripped people who were already vulnerable and powerless of that dignity, conferred by law. The deprivation of the right to natural justice contributed to the severity of the treatment.
[10] I agree with the reasons given by Blanchard J in rejecting the principal argument on the cross-appeals by the Attorney-General that damages were not called for here. In my view an award of damages to the appellants is necessary to provide an effective remedy for the breaches of ss 9 and 23(5). As Ronald Young J found, the deprivations affected the daily lives of the appellants while they were on the regime.[11] In the case of Mr Taunoa and Mr Robinson he was prepared to accept that they inevitably suffered harm, “if only the modest exacerbation of existing disabilities”: “A combination of isolation, poor conditions and length of stay would have affected the strongest person.”[12] I do not agree with other members of the Court in their views that the damages awarded were excessive. I would not disturb the awards made in the High Court and confirmed by the Court of Appeal, which I conclude are appropriate to remedy breaches of s 9. I agree that, when considering redress for breach of the New Zealand Bill of Rights Act, analogies with awards of damages for other wrongs need to be viewed with care. They may, however, be broadly illustrative for comparative purposes. I do not consider that Ronald Young J was wrong to conclude that a rough measure of $2,500 for each month of subjection to BMR was appropriate, and I would affirm the awards he made, as adjusted by the Court of Appeal for an error in calculation in respect of Mr Taunoa. Although all other members of the Court would allow the cross-appeals and substitute lower damages than were awarded in the Courts below, Blanchard J and McGrath J would set the damages for Taunoa and Robinson at a higher level than Tipping J and Henry J. There is therefore a majority view that those damages should be no lower than as assessed by Blanchard J and McGrath J. On the basis that the greater awards I would confirm include their lesser assessments, the orders made by the Court are as proposed by Blanchard J and McGrath J.
[11]Relief judgment at para [18].
[12]Relief judgment at para [27].
[11] While the legality of BMR may not be determinative of whether there is a breach of provisions of the New Zealand Bill of Rights Act, I am of the view that the minimum standards of treatment provided for by the Penal Institutions Act 1954 and the Regulations made under it were properly emphasised in the Courts below. The legislative standards make it clear that the conditions of imprisonment on BMR were not inherent in the sentences of imprisonment. In significant respects those conditions constituted additional punishment, unlawfully imposed. The legislative standards are perhaps the best guide to what is unacceptable in contemporary New Zealand. As such, they are highly significant in assessing whether the treatment of the prisoners conforms with ss 9 and 23(5) of the New Zealand Bill of Rights Act.
[12] The Penal Institutions Act 1954 and the Regulations have now been replaced by the Corrections Act 2004 and new Regulations made under that Act. Since the former legislation was in force throughout the events which are the subject of the appeals, it is unnecessary to refer to the current legislation. All references I make to the legislative standards are to the Penal Institutions Act 1954 and the Penal Institutions Regulations 2000.[13]
The Behaviour Management Regime
[13]I refer throughout to the Penal Institutions Regulations 2000. During the period BMR was in place, the regulations in force under the Penal Institutions Act 1954 were the Penal Institutions Regulations 1961 (until 1 July 1999), the Penal Institutions Regulations 1999 (from 1 July 1999 to 1 July 2000) and the Penal Institutions Regulations 2000 (from 1 July 2000). There is no material difference for present purposes between the Penal Institutions Regulations 1999 and the Penal Institutions Regulations 2000. Only Mr Taunoa was held on BMR while the Penal Institutions Regulations 1961 were in force. The provisions under the 1961 Regulations are not in many respects directly comparable to the later regulations. They do not make provision for segregation in isolation cells except for the purposes of punishment, suggesting that prisoners segregated for other purposes remained entitled to the conditions available to other prisoners. Under the 1961 Regulations prisoners segregated for punishment had to be visited once a day by the Superintendent and were to be paid special attention by the medical officer. Prisoners confined for punishment purposes were entitled to one hour’s exercise a day. The 1961 Regulations did not provide for inmate management plans, but reg 62 required discipline and order to be maintained with “fairness” and through “willing cooperation” and with regard “to the aim of the reintegration into the community and the encouragement of self-respect and a sense of personal responsibility”.
[13] BMR was found by Ronald Young J in the High Court to be unlawful because it was treatment which was not authorised by the Penal Institutions Act and was in important respects contrary to the provisions of that Act and the Regulations made under it. BMR was found to have imposed penalties otherwise than in accordance with ss 33 and 34 of the Act. Section 7(1) of the Act, which was initially relied upon by Corrections in running BMR, did not authorise segregation of the BMR prisoners. Section 7(1A), which was later invoked, did not authorise the reduction of conditions which was applied to BMR prisoners, and such reduction was contrary to reg 155.
[14] The High Court findings of fact as to the conditions on BMR were upheld by the Court of Appeal with a few minor exceptions, not material to the conclusions reached, after close examination on appeal.[14] I summarise the facts to indicate the design of the system and its overall impact, which I think are more important than many of the individual elements of complaint. My summary is drawn principally from the concurrent findings in the Courts below, supplemented by some of the Corrections evidence. I do not traverse the allegations not upheld in the High Court, which are covered in the history given by Blanchard J.
[14]Court of Appeal judgment at para [78]. The Court of Appeal differed from the findings in the High Court in three respects only. First, it held that, contrary to an assumption made by Ronald Young J, screens for the toilet were not provided to other maximum security prisoners in D Block and therefore their absence did not constitute a reduction in conditions for BMR prisoners (although the Court of Appeal noted that the absence of such screens for the BMR prisoners was “relevant to the assessment of a regime which confined prisoners to their cells for 23 hours a day”. Secondly, the Court of Appeal did not think the Judge was entitled to conclude that prisoners were “often” left naked in their cells after control and restraint (C&R) procedures had been used. The Court of Appeal accepted that standard procedure was to provide them with a towel. Only Mr Taunoa and Mr Kidman complained about abuse of C&R. Thirdly, the Court of Appeal, while agreeing that routine strip searching was used, considered that one incident involving Mr Kidman and used as an example by Ronald Young J was based on information the Corrections officers were entitled to treat as reason to search.
[15] BMR was adopted by Corrections in 1998 to deal with extremely disruptive prisoners and to discourage the culture in which admission to D Block at Auckland Prison was seen as desirable by some.[15] Initially called the “Behaviour Modification Regime”, the name was changed because it came to be recognised that the regime did not conform with accepted theories in psychology about behaviour modification. It was thought better not to use a term with such technical “baggage”.[16] The regime continued, with modifications (some introduced after a critical report from the Ombudsman in 2001), until the decision of the High Court in 2004 in the present case. BMR was only abandoned after the High Court had held that the regime was in breach of the Penal Institutions Act and the Regulations made under it and was in breach of s 23(5) of the Bill of Rights Act.
[15]In part because up until that time the prison management had apparently been reluctant to provoke difficult prisoners and so had acquiesced in a lax regime in order to maintain peace, and in part because serving time on D Block was seen by some prisoners as a mark of distinction in the prison culture.
[16]This was the explanation of the General Manager of the Public Prison Service, Mr McCarthy (notes of evidence, pp 546 – 547).
[16] Prisoners on the regime were subjected to a highly controlled system based on degrees of segregation. Segregation was, as Ronald Young J put it, “at the heart of BMR”.[17] As designed and operated throughout, the regime entailed segregation from the main prison body and the substantial isolation of each prisoner in a separate cell for all but one or two hours of the day, with loss of conditions. The extent of isolation and restrictions on conditions were determined in accordance with prisoners’ progression through a number of distinct phases. Initially, the system contained six phases. It was dropped back to four phases when it was appreciated that phases 5 and 6 were essentially equivalent to the conditions on which maximum security prisoners were held. All phases originally took nine months to complete. That was reduced to six months partly as a result of concerns expressed by the Ombudsmen in 2001.[18]
[17]Liability judgment at para [37].
[18]The Ombudsman’s report expressed concern about lack of any external approval for placement on BMR, lack of approval for continuation of detention on BMR, and what was seen as the excessively long minimum period of nine months for the programme: liability judgment at para [17].
[17] Each phase had a minimum period that prisoners were to serve, after which they either progressed if they had behaved satisfactorily or regressed if they had not.[19] Regression was based largely on grades maintained daily by the prison officers, apparently with very little supervision or formality and without any safeguards for natural justice.[20] The results of disciplinary proceedings where charges were brought against prisoners, often in situations that would not have resulted in charges were the prisoners not on BMR, were also taken into account.[21] The minimum periods for the four phases were 14 days, six weeks, two months and two months respectively. At least in design, they were originally intended to be maximum periods. In fact, regression resulted in prisoners usually spending longer than the minimum period on each phase. Mr Howe, the Principal Corrections Officer in D Block from October 1998 to mid 2003, was aware of only one inmate who served the minimum period on BMR.
[19]Liability judgment at paras [41] and [82].
[20]Evidence of the process was given by Mr McCarthy (notes of evidence, p 565).
[21]Brief of Evidence of Mr Taylor, Case on Appeal, p 670.
[18] The form of confinement was treated by the Courts below as entailing effective segregation by solitary confinement, a conclusion which is not challenged on appeal.[22] Prisoners in the first phase were denied any association with other prisoners (except such as could be achieved by speaking between the cells to other prisoners who could not be seen). They had one hour out of their cells per day, and no ability to take exercise in the yard. In the second phase they could associate with one other prisoner during the one hour of unlock permitted and were entitled to two “yards”[23] of one hour per week, taken within the unlock periods. The third phase entitled prisoners to two hours unlock per day and two yards of two hours per week. During the fourth and last phase, prisoners remained entitled to two yards of two hours per week.
[22]It also accords with the view expressed by Lord Steyn in Higgs v Minister of National Security [2000] 2 AC 228 about similar conditions of confinement, where he described cells opening on a corridor where the prisoners could communicate but not see each other and where the hours of unlock were limited to 1–2 a day as “virtual solitary”. Lord Steyn dissented in the result, the majority deciding that the conditions did not make a lawfully imposed sentence of death inhuman or degrading punishment.
[23]Exercise out of doors in a prison yard.
[19] Throughout the four phases movements of each prisoner required the presence of three staff members. In all phases of the regime meals were taken in cells, no smoking was permitted and personal clothes (other than shoes) could not be worn. In phase 1, toiletries could not be retained in cells. Television and hobbies were not permitted until phase 4, four months into the programme if no regression occurred. Although prisoners were able to have books from the library brought to their cells, Ronald Young J found that in reality access to books was severely limited.[24] No personal radios or stereos were permitted in phases 1 and 2. There was a built-in radio system in the cells with pre-set channels. It was turned off at midnight and until 8 am. Sometimes the system failed. Distance education programmes could not be accessed until the second phase (and then were realistically available only to those particularly motivated and with the capacity to undertake them). Other education programmes, including rehabilitative programmes regarded as “core” within New Zealand penal institutions, were not available to prisoners on BMR throughout the phases of the regime. Use of telephones was limited to two ten minute calls per week in phases 1 and 2, and two 15 minute calls per week in phase 3. Watches were not allowed in the early phases of BMR but could be returned as a reward for good behaviour. (Prisoners could find out the time by listening to the radio or asking Corrections officers.) The items able to be purchased by prisoners were increased as prisoners progressed. Mr Taylor, senior Corrections officer and then Principal Corrections Officer in D Block from September 1997 to June 2001, decided to limit toilet paper to two rolls per week “to provide a proper incentive to inmates to use it properly”.[25]
[24]Liability judgment at para [161].
[25]Brief of Evidence, Case on Appeal, p 676.
[20] The day-to-day operation of the regime was described in evidence by Mr Taylor. He participated in formulating the proposals which led to the introduction of BMR and worked with the Unit Manager in refining the programme during its life. He explained how the requirement that each prisoner be escorted in all movements by three staff members placed real constraints on the operation of the system. It was necessary to draw up a detailed timetable for movements each day.[26]
[26] Brief of Evidence, Case on Appeal, p 671.
[21] In the High Court it was acknowledged on behalf of Corrections that BMR imposed the most stringent conditions to be found in the New Zealand prison system. Prisoners on the regime were more restricted than those with maximum security classifications not on BMR. It seems to have been appreciated that the conditions made the programme unsuitable for unstable prisoners or those at risk of self-harm, although no screening by a medical officer for suitability preceded admission to BMR or was a feature of the ongoing assessment of inmates subject to it. Since Mr Tofts was suffering from psychiatric disability resulting from head injury, his admission to the programme was quite wrong and resulted, as might have been predicted, in deterioration in his condition. The fact that the programme was known to be too risky for those who were vulnerable in this way is itself an indication of its known stringency. Even a prisoner as intractable as Mr Taunoa was accepted by the Judge to have suffered exacerbation of his psychological problems when on the programme.[27] That is perhaps not surprising since the regime was designed to achieve behavioural change in difficult prisoners and a cultural shift within the prisons so that other prisoners no longer aspired to be admitted to D Block at Auckland.[28] Those admitted to the programme in its early stages were given a sheet of paper indicating in outline the regime and telling them that their inclusion in it was “the price you pay for stuffing up in prison”.
[27]Relief judgment at para [34].
[28]Seen by some as a badge of honour and by others as an opportunity to be in a part of the institution that had given up on them and left them alone.
[22] Ronald Young J found that prisoners on BMR were given inadequate information about BMR and the reasons they were on the regime. Mr Howe acknowledged that the written material given to prisoners was not adequate to explain BMR to them. Senior Corrections officers would, he said, explain the processes. There was however no checklist for such staff to follow in the process of induction and the Prison Manual did not cover the regime. Training for Corrections officers seems to have been limited.[29]
[29]Mr Howe received no training before starting his job on BMR (notes of evidence, p 730).
[23] The inadequacy Ronald Young J found in the provision of information to the prisoners on BMR may have reflected a degree of vagueness in the programme; certainly some of the senior officers who gave evidence seemed less than clear about the details of the regime. Mr McCarthy, the General Manager of the Public Prison Service of the Department of Corrections since 1995, indicated in his evidence that the original idea was a regional initiative, proposed by Auckland Prison and approved by the head office of Corrections. There was no single document setting out the regime; it was based on initial proposals and a subsequent review, but its parameters were never captured in the Prison Manual. Mr McCarthy, who was responsible for approving each three-month placement of prisoners on BMR (following the initial 14-day approval given by the Superintendent to cover phase 1),[30] was unable to give details of the restrictions on the different phases of the regime or to explain how the system of regression operated, except in the general sense that regression and promotion through the phases was based on a “locally” run grading system,[31] as described above. He was also unsure whether prisoners could be regressed by more than one phase, although the evidence of Mr Sweet, the Unit Manager between 1999 and 1 July 2003, indicates that such regression did in fact occur. Mr Sweet described how on one occasion prisoners were regressed more than one phase to ensure that rival gang members would not be on the same phase.[32]
[30]That system of approval was introduced only after the Ombudsman’s report (before then Corrections took the view that phase 1 could be authorised by the Superintendent and that the subsequent phases were not subject to the segregation requirements of the legislation because in each of them there was some contact with other prisoners). Thereafter placements were made in purported reliance on s 7A.
[31]Evidence of Mr McCarthy, notes of evidence, p 565.
[32]Notes of evidence, p 1020.
[24] The weekly meetings at which the progress of prisoners was discussed with a view to their progression or regression were initially relatively informal. They included the senior Corrections officers and one or two Corrections officers, as well as Mr Howe. Later, after the Ombudsman had raised concerns about lack of external oversight, the meetings were formalised “a little” as the “BMR Progression Committee” and the site manager joined the committee. Prisoners placed on BMR were not however given any opportunity to be heard on their placement on BMR or the subsequent decisions about their promotion or regression through the stages.[33] They were not invited to make representations to the committee. The BMR assessment sheets, which were of principal importance in determining progress and regression, were not disclosed to them.
[33]Confirmed by evidence of Mr Howe, notes of evidence, p 659.
[25] The wide discretion left to the prison officers is evident in the experiences of Mr Taunoa and Mr Robinson. These prisoners complained that BMR was illegal and complained also about the lack of system for making complaints. They
encouraged other prisoners to complain also. Mr Taylor gave evidence that Mr Taunoa had disrupted life on BMR by “his habit of lodging regular formal complaints”.[34] The Corrections officers moved Mr Taunoa and Mr Robinson from cell to cell regularly in order to deny them “a foothold among other inmates”. These cell movements themselves were the reason for many complaints made by Mr Taunoa.
[34]Brief of Evidence, Case on Appeal, p 677.
[26] The process of regression and progression carried evident risks. The decisions turned substantially on the subjective assessments of front-line staff. Mr Howe said that if a prisoner was showing a consistently poor attitude or was causing trouble, then regression would be considered.[35] Yet front-line staff who made these assessments had to bear the brunt of interaction with difficult prisoners. It risked breach of the spirit if not the letter of reg 140(3), which prevents an officer taking retaliatory disciplinary action against an inmate. As the scroll book entries indicated,[36] it was unrealistic to expect that Corrections officers would act dispassionately in their assessment of prisoners at all times. The consequence of regression was extension of a regime found to be punitive in effect. It is difficult to see such extension as other than itself constituting a penalty. But the requirement of the Regulations that no penalty be imposed without a disciplinary hearing was not observed in relation to regression.
[35]Notes of evidence, p 667.
[36]Liability judgment at para [167].
[27] Ronald Young J found that the combination of segregation of prisoners under s 7(1A) of the Act and loss of their usual conditions made the regime punitive in effect and that its imposition without disciplinary proceedings was therefore unlawful. After describing BMR, Ronald Young J concluded:[37]
This combination of circumstances convinces me that inmates on BMR were not treated with the humanity, and with respect to the inherent dignity that they were entitled to as human beings. While inmates may not have been treated deliberately cruelly, this was collectively treatment that fell well below standards that befits a human being including one who is in prison and who has behaved badly in prison. Unlawful and difficult behaviour by prisoners can never justify unlawful conduct by their jailors.
[37]Liability judgment at para [277].
The relevance of the breaches of the Act and Regulations in assessing breaches of the New Zealand Bill of Rights Act
[28] The New Zealand Bill of Rights Act was enacted to affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights. Section 9, which gives everyone “the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment”, gives effect in New Zealand domestic law to art 7 of the Covenant. Section 23(5), which requires that everyone deprived of liberty be “treated with humanity and respect for the inherent dignity of the person”, gives effect to art 10(1) of the Covenant.
[29] In New Zealand’s periodic reports to the United Nations on its compliance with the Covenant, it has relied upon the Act and Regulations as fulfilling the obligations under art 7 and art 10(1). Indeed, the White Paper, which preceded enactment of the New Zealand Bill of Rights Act and which explains its provisions, referred at length to the New Zealand report of January 1982[38] and its explanation that the standards set by the Act and Regulations fulfil the obligations under art 7 and art 10(1). In para [90] of the 1982 Report, dealing with art 7, it refers to the treatment of prisoners:
The treatment of prisoners in New Zealand conforms to the United Nations Standard Minimum Rules for the Treatment of Prisoners. The position is described in detail in comments on Art 10.
[38]The annotations to the draft Bill of Rights contained in the commentary published in the White Paper contain numerous references to the 1982 Report. The introductory note to the commentary describes it as containing “much detailed information on the relevant New Zealand law and practice”. The Report was published as UN Document CCPR/C/10/Add.6, and republished by the Ministry of Foreign Affairs in Information Bulletin No 6, Human Rights in New Zealand (1984).
[30] In connection with art 10(1), the White Paper referred to paras [112] – [129] of the 1982 Report, which say that “New Zealand law and administrative practice is in accordance with the general principle of this Article”:
112.New Zealand’s penal policy is based on the concept that where prison or other forms of detention are necessary the aim of such detention should be the rehabilitation of the prisoner and the encouragement of self respect and a sense of personal responsibility.
113.Prisons in New Zealand are administered under the authority of the Penal Institutions Act 1954 and Regulations made thereunder. The administration of every penal institution is controlled by a Superintendent who is responsible to the Minister of Justice who in turn is responsible to Parliament. In addition to the normal administrative duties required of a person in control of an official institution, the Superintendent has special duties towards the prisoners. He must see each one as soon as possible after admission making sure the rules, privileges and procedures for making complaints are known. He is required to pay special attention to those who are sick or under restraint or confined to a cell.
…
116.In the treatment of prisoners New Zealand conforms with the United Nations Standard Minimum Rules for the Treatment of Prisoners. Each institution has a medical officer, a dental officer and a psychiatrist. Regulations prescribe rules to ensure that the conditions for prisoners are satisfactory in such aspects as physical exercise, accommodation, bedding and clothing, food and personal hygiene (Regulations 147 to 153). …
…
127.Every prisoner confined to a cell must be kept in a cell by himself. He does not work unless work which can be done in his cell is available. He is given one hour’s exercise per day unless the Medical Officer otherwise directs. He is not permitted to receive visitors in the normal way. He must be visited by the Superintendent once a day and at intervals of not more than three hours during the day by an officer appointed for the purpose.
…
128.Provisions regarding the searching of inmates are set out in Regulations 69 to 72. Prisoners may be searched at any time, but the searching must be conducted in as seemly a manner as is consistent with the necessity of discovering any concealed articles.
[Emphasis added for matters relevant to the present appeal.]
[31] The reference in para [90] of the White Paper to the 1982 Report makes it clear that the observance of the United Nations Standard Minimum Rules is directly relevant to compliance with art 7 as well as art 10(1).[39] Such conformity is said in respect of both articles to be achieved through the standards set in the legislation and regulations. Subsequent periodic reports by New Zealand continue to rely on the legislative standards.[40] While their breach does not inevitably indicate a breach of ss 9 and 23(5) (and the articles upon which they are based), such reliance suggests that non-compliance with the legislative standards bears very heavily indeed on assessment of breach. The High Court and Court of Appeal were right to emphasise the unlawfulness of BMR. Non-compliance with the legislative standards was not mere technical legal deficiency; the legislative standards were an appropriate measure (perhaps the most valid measure available) against which compliance with the New Zealand Bill of Rights Act provisions was to be assessed.
Segregation
[39]More recently still Parliament has made specific reference to the United Nations Standard Minimum Rules in s 5(1)(b) of the Corrections Act 2004.
[40]Fourth periodic report, New Zealand (15 May 2001), para [137] (re art 10(1)).
[32] Segregation of prisoners, including through confinement in cells and restrictions on association with others, is authorised in New Zealand prisons only on grounds specified in the Act and Regulations.[41] What constitutes “isolation” is not defined. It appears that Corrections did not initially consider that BMR constituted confinement in isolation cells. Ronald Young J however treated the segregation imposed as entailing confinement in isolation. He was clearly right to do so and the Attorney-General did not seek to argue otherwise on the appeals.
[41]Ronald Young J rejected a suggestion (not formally argued on behalf of the Attorney-General) that only phase 1 of BMR required approval under s 7(1A) because in phases 2–4 some limited association with others was allowed. At para [31] he pointed out that s 7(1A) is concerned not just with denial of association but also with restriction of association.
[33] The only grounds for confinement in isolation cells were set out in reg 147. An inmate could be isolated on nine grounds:
· if confinement was imposed as a penalty under s 33 or s 34 of the Penal Institutions Act after a disciplinary hearing (under which the maximum periods of isolation able to be imposed were 15 days, if imposed by a Visiting Justice,[42] and seven days, if imposed by the Superintendent);[43]
· if the physical health of an inmate required his isolation from others for his own sake or their protection (in which case the approval of a medical officer was required for confinement longer than 12 hours and the confinement was required to end as soon as a medical officer gave a direction to that effect);[44]
· if the mental health of an inmate required his confinement for his own health or the protection of others (in which case, similarly, the approval of a medical officer was required for confinement longer than 12 hours and the confinement was required to end as soon as a medical officer gave a direction to that effect);[45]
· if the inmate was assessed as being at risk of self-harm (in which case constant medical monitoring was required and the confinement was required to end on medical direction);[46]
· for temporary purposes to enable restoration or maintenance of the security and order of the institution (in which case the confinement could not be for more than 24 hours);[47]
· if the Superintendent gave a direction under s 7(1A) of the Act;
· on the grounds of insufficient accommodation;
· if there were reasonable grounds to believe the inmate had concealed internally an unauthorised item (in which case confinement had to end as soon as a medical officer took the view that further internal concealment was no longer possible);[48]
· if the inmate had requested isolation (in which case the isolation was required to end promptly as soon as the inmate asked for it to end).[49]
The isolation under BMR was not imposed as a penalty under s 33 or s 34 of the Penal Institutions Act. The more specific grounds designed to meet particular needs for segregation were not applicable. Consistently with reg 147, non-voluntary isolation could only have been lawfully imposed under s 7(1A) direction.
[42]Section 33(3)(g).
[43]Section 34(3)(g).
[44]Regulation 156(1).
[45]Ibid.
[46]Regulation 157(1).
[47]Regulation 155(5).
[48]Regulation 155(6).
[49]Regulation 155(7).
[34] Corrections did not however rely on s 7(1A) in setting up BMR. No direction under s 7(1A) was given because Corrections considered it had independent statutory authority to segregate prisoners under s 7(1) of the Penal Institutions Act, without complying with the requirements of ss 7(1A) to 7(1C).
[35] Section 7 provides for the general administration of a penal institution by its Superintendent:
7Superintendent to be charged with general administration of institution
(1) Subject to the provisions of this Act and to the control of the Secretary, every Superintendent of an institution shall be charged with the general administration of the institution, and, with the prior approval in writing of the Secretary, may make rules, not inconsistent with this Act or with any regulations made under this Act or with any operational standards, for the management of the institution and for the conduct and safe custody of the inmates.
(1A) Without limiting the generality of subsection (1) of this section, if a Superintendent is satisfied that—
(a) The safety of an inmate or of any other person, or the security of the institution, would otherwise be endangered; or
(b) Directions to be given under this subsection are in the interests of an inmate and the inmate consents to or requests the giving of the directions; or
(c) Failure to give the directions would be seriously prejudicial to the good order and discipline of the institution,—
he may in the discharge of his responsibility for the general administration of the institution give directions that the opportunity of the inmate to associate with other inmates be restricted or denied for a period.
(1B) Every Superintendent giving directions under subsection (1A) of this section shall as soon as practicable send a report on the circumstances to the Secretary who may at any time revoke the directions, in whole or in part.
(1C) No directions given under subsection (1A) of this section shall remain in force for more than 14 days, unless the Secretary so authorises, in which case their continuance shall be reviewed by him at intervals not exceeding 3 months.
...
[36] Whether the assumption that s 7(1) provided sufficient authority for the setting up of BMR was correct was of some importance because there is no suggestion that subss 7(1A) to 7(1C) were complied with until September 2001. The Ombudsman in 2001 did not feel able to express a concluded view as to whether segregation required compliance with s 7(1A). The question of the legality of reliance on s 7(1) was not resolved until the first judgment of Ronald Young J found that placement on BMR was not authorised by s 7(1). In coming to that conclusion, which has not since been challenged, the Judge relied not only on the language of s 7, read as a whole, but also on its legislative history. That legislative history made it clear that the purpose of the amendments contained in subss (1A) to (1C) was to define all circumstances in which segregation could be imposed on a prisoner for the purposes of the administration of a penal institution. The amendments which introduced subss (1A) to (1C) were designed to provide protections against abuse of the power. In introducing the Bill in 1975, the Hon Dr Martin Finlay QC, the Minister of Justice, also made it clear that segregation under s 7(1A) could not be imposed by a Superintendent for the purposes of punishment.[50]
[50](24 September 1974) 394 NZPD 4472.
[37] Although the legality of reliance on s 7(1) had not been resolved, from September 2001 the regime was redesigned to require the admission of prisoners to BMR to be by direction of the Superintendent in purported exercise of his powers under s 7(1A). Retention of prisoners on BMR (after their initial placement for 14 days) was authorised by the Unit Manager, as the delegate of the chief executive of the Department of Corrections,[51] for each subsequent three-month period, in reliance on s 7(1C). Of the five prisoners whose cases are before the Court, only Mr Taunoa (in respect of his first admission of eight months and in respect of 18 months of his second admission) and Mr Robinson (who was on BMR for one year) were segregated unlawfully in mistaken reliance on s 7(1).
[51]Section 2 of the Penal Institutions Act provides that the references to the “Secretary” in s 7 are to the chief executive.
[38] In the High Court, Ronald Young J considered that the segregation imposed in respect of BMR after September 2001 fell within the scope of s 7(1A). That
question was effectively overtaken by his conclusion that BMR was nevertheless unlawful because the loss of conditions which accompanied segregation was contrary to reg 155 and because the loss of conditions meant that BMR amounted to a penalty not authorised by s 7(1A). The Court of Appeal expressed more general doubt about the lawfulness of BMR in terms of the statutory criteria in s 7(1A). That is a doubt I share. Similarly, I doubt whether the length of confinement under BMR conformed with the legislative scheme under s 7 and reg 147. It is not evident to me that s 7(1A) segregation “for a period” could be used to confine for months in substantial isolation prisoners who had been difficult to manage, when such confinement, if imposed by the Superintendent for offences against prison regulations, could not have exceeded seven days.[52] These points are not however directly before this Court because of the way that the case and the appeals have developed.
[52]Segregation under s 7(1A), it should be noted, covers any restriction on association as well as denial of association.
[39] In the end, whether the segregation in itself was lawful is not determinative of whether there was breach of the New Zealand Bill of Rights Act. The nature and length of the segregation were instead important context against which the severity of the conditions on BMR fall to be assessed. As the Committee for the Prevention of Torture has pointed out,[53] the welfare of prisoners requires that better conditions for exercise and activities will often be necessary for those prisoners closely confined, to compensate for the deprivations entailed in such confinement. The same point has been made judicially.[54] The prisoners on BMR were locked up in solitary cells each day for between 22 and 23 hours a day, with some on the regime for considerable periods of time. Their confinement was accompanied not by enhanced opportunities for exercise and other activities but by further restriction of their minimum entitlements, in order to provide “incentives” for modification of their behaviour.
Conditions on BMR
[53]Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), Gen Rep 2 (1991), paras [47] and [56]. See Morgan and Evans, Protecting Prisoners: The Standards of the European Committee for the Prevention of Torture in Context (1999), pp 72 – 73.
[54]See the cases discussed in para [90] below.
[40] Segregated prisoners are vulnerable, as the scheme of protection in the Regulations clearly recognised. Those closely confined are particularly vulnerable. Regulation 155 made specific provision for the treatment of those prisoners confined to isolation cells:
155Treatment of confined inmates
(1) Subject to subclauses (2) and (3) and regulation 157(3), an inmate confined in an isolation cell retains the minimum entitlements referred to in regulation 42(1).
(2) An inmate confined in an isolation cell on the penalty ground may be denied the minimum entitlements set out in regulations 82 [visits] and 107 [mail] for the period of his or her confinement.
(3) An inmate confined in an isolation cell on the mental health ground, the physical health ground, the section 7(1A) direction ground, the accommodation ground, or the request ground must be confined, so far as is practicable in the circumstances and if it is not inconsistent with the ground for confinement, under the same conditions as if he or she were in his or her usual accommodation.
(4) An inmate referred to in subclause (3) must not be denied access to activities consistent with the fulfilment of his or her inmate management plan, or to his or her authorised property, simply because he or she is confined in an isolation cell.
(5) No inmate confined in an isolation cell on the temporary removal ground may be confined in that cell for more than 24 hours.
(6) The confinement of an inmate in an isolation cell on the concealment ground must end as soon as a medical officer believes on reasonable grounds that it is no longer possible for the inmate to conceal an unauthorised item internally.
(7) The confinement of an inmate in an isolation cell on the request ground must end promptly after the inmate asks for the confinement to end.
[41] Ronald Young J found that BMR was in breach of reg 155(3). A BMR prisoner was not confined “under the same conditions as if he or she were in his or her usual accommodation”. Nor did BMR comply with reg 155(1), which preserves for those who are confined the “minimum entitlements” set for all prisoners under reg 42(1). So far as is relevant, reg 42(1) provides:
(1) Every inmate has the following minimum entitlements:
(a) physical exercise as provided for in regulation 49:
(b) a bed, mattress, and bedding as provided for in regulation 53:
(c) food and drink as provided for in regulation 56:
(d) access to private visitors as provided for in regulation 82:
(e) access to legal advisers as provided for in regulation 85:
(f) the right to receive medical treatment, if reasonably necessary:
(g) access to statutory visitors and specified visitors:
(h) the right to make outgoing telephone calls as provided for in regulation 107.
(2) An inmate may be denied for a period of time that is reasonable in the circumstances, any of the minimum entitlements set out in subclause (1) if—
(a)there is an emergency in the institution; or
(b)the security of the institution is threatened; or
(c)the health or safety of any person is threatened.
[42] There were some breaches of the minimum standards set by reg 42(1)(b) in respect of the laundering of bedding “as often as necessary to maintain cleanliness” as required by reg 53. But the most serious infringement of the minimum standards set by reg 42, and preserved for confined prisoners by reg 155(1), was in respect of the entitlements to exercise set by reg 42(1)(a) by reference to reg 49.[55] Nor was reg 155(4) complied with. Access to activities consistent with fulfilment of inmate management plans (required under reg 44 so that an inmate could “make constructive use of his or her time in the institution”) were effectively suspended during BMR. Other standards compromised included those set by regs 50 and 55. The breach of some of these standards from time to time may have been less important than the message their non-observance conveyed about the status of the prisoners on BMR.
(i) Cell accommodation
[55]See below at para [49].
[43] Under reg 50, inmate accommodation was required to provide for the “safe, secure, and humane containment of inmates”. Under Schedule 1 of the Regulations the basic minimum for cells required artificial lighting, natural lighting from a window, and ventilation. The cells in which the prisoners on BMR were housed were found by Ronald Young J to have been deficient in a number of respects, some of them contrary to the standards required by the Regulations.
[44] The cells were about 5.6 m2. By comparison, the Committee for the Prevention of Torture has taken the view that single cells of 6 m2 are “rather small” but acceptable if prisoners spend a significant part of the day out of them.[56] All cells opened onto a corridor. The cells themselves did not contain windows. The windows across the corridor provided poor natural lighting. There was no compensation for the low levels of natural light in the cells by, for example, providing further opportunity for out of cell time. The size of the cells and the low levels of natural light made opportunity for exercise in the yard even more important.
[56]CPT, Report to the Swedish Government on the visit carried out from 5–14 May 1991 (published 12 March 1992), paras [46] and [73], referred to in Morgan and Evans, p 57.
[45] Ventilation was in practice deficient. The windows across the corridor from the cells were kept closed for extended periods of time as a policy for preventing prisoners throwing contraband through the windows between floors on string lines. Although there was some fresh air from windows at the ends of the corridors, Ronald Young J accepted that more could have been done by Corrections to develop ways to keep the windows open.
[46] Isolation cells (except for those at risk of self-harm) are required to contain screens for the toilets “so far as is practicable in the circumstances”.[57] There were no screens in BMR (although it appears that there were no such screens in any of the maximum security cells in the part of Auckland Prison where the BMR prisoners were held). Each prisoner was required to clean his cell with a bucket of water and a cloth which were passed from cell to cell in a way the High Court found to be unhygienic.
[57]Regulation 151(1)(b).
[47] Ronald Young J expressed the views that the lack of effort in fixing the problem of poor ventilation reflected “the low tolerance approach of Corrections to inmates on BMR” and that the approach to hygiene and cell cleanliness “was something of a message from Corrections to BMR prisoners about their status in the system”.[58] These conclusions were upheld by the Court of Appeal. The same message seems also to have been conveyed in other aspects of the implementation of BMR, including those which involved reduction in the conditions available to maximum security prisoners.
[58]Liability judgment at para [146].
[48] A number of other more petty violations (combined with the deficiencies already mentioned – unhygienic cell-cleaning, inadequate ventilation, and lack of toilet screens) also sent a message that was undermining of the dignity of these prisoners. Prisoners who had been subjected to restraint were routinely left naked in their cells, with only a towel to wrap around them. Laundry entitlements were not complied with, with prisoners denied laundry bags and bedding sometimes not changed for some weeks. Control over the availability of toilet paper was described by the Judge as “pointlessly punitive”.[59]
(ii) Exercise
[59]Liability judgment at para [276].
[49] The “minimum entitlement” to physical exercise under reg 49 (available even to those on penalty isolation) was not available to prisoners on BMR. Regulation 49 provides:
49 Exercise
(1) Inmates (other than an inmate who is engaged in full-time work outside the institution) may, on a daily basis, take at least 1 hour of physical exercise outside their cell.
(2) If practicable in the circumstances, physical exercise may be taken outdoors.
[50] As already discussed, in phase 1 of BMR no yard exercise at all was permitted and the prisoners were unlocked only for one hour per day. In that hour they had access to the smaller exercise cell, but Ronald Young J found it barely adequate for exercise purposes.[60] In phase 2, two yards of one hour were permitted per week and indoor exercise could theoretically be undertaken in the one hour unlock per day. In phases 3 and 4 two-hour yards could be taken twice a week and the unlock hours were two hours per day. In no phase of BMR did the exercise permitted fulfil the minimum entitlement under the Regulations, although in the unlock periods there was opportunity for indoor exercise in two rooms (the smaller no larger than an ordinary cell). No exercise equipment was provided in the yard or in the exercise cells. Yards were not available on Saturdays, Sundays or Wednesdays.[61] In fact, even the theoretical entitlement under BMR was further restricted in practice. The availability of yards was limited by lack of staffing and maintenance problems. Ronald Young J found that, for significant periods, prisoners who wished to have exercise in the yard were not able to do so. During his second term of approximately 730 days in BMR, Mr Taunoa was able to exercise in the yard on only 21 occasions. Mr Robinson had exercise in the yard only 29 times in 357 days on BMR. Ronald Young J concluded that the other prisoners, too, probably received inadequate opportunity to exercise, particularly in the yard.[62]
[60]Liability judgment at paras [121] – [122].
[61]Evidence of Mr Taylor, Case on Appeal, p 1614.
[62]Liability judgment at para [122].
[51] In addition to non-compliance with the minimum entitlement under the Regulations, the exercise component of the regime fell far short of that required by the United Nations Standard Minimum Rules for the Treatment of Prisoners.[63] These are the standards which New Zealand, in its reports to the United Nations Human Rights Committee, has said are observed by New Zealand legislation and regulations. Rule 21 of the standards sets as a minimum requirement “one hour of suitable exercise in the open air daily if the weather permits”, in which the able-bodied shall receive “physical and recreational training” with suitable equipment. The importance of outdoor exercise for prisoner well-being is emphasised by the Committee for the Prevention of Torture in the 1991 report cited by Blanchard J at para [194]. And as the Court of Appeal in the present case commented of the minimum entitlement:[64]
It should not be underestimated how important such an entitlement would be to someone confined for 22 or 23 hours per day in a cell.
[63]Adopted by the United Nations on 30 August 1955 and amended in 1957 and 1977.
[64]At para [108].
(iii) General treatment while on BMR
[52] Restrictions on telephone access, though not below the minimum entitlement under the Regulations, were a reduction in the conditions available to maximum security prisoners, and therefore contrary to reg 155 for prisoners isolated under s 7(1A). This was a restriction which impacted most on those transferred away from prisons closer to their homes for placement on BMR.
[53] While Ronald Young J found that there was no campaign of denigration of prisoners by Corrections officers, such denigration was sufficiently common to be of concern. Inappropriately derogatory remarks (several said by the Judge to be “seriously abusive” of prisoners)[65] were recorded in one scroll book (the book in which Corrections officers noted matters of interest on their shift for the benefit of officers on later shifts). It was the only scroll book put in evidence; all other books were missing. Since the Corrections officers had effective day-to-day control over prisoners on BMR and graded them for the purposes of advancement or regression through the BMR phases, such attitudes are worrying.
[65]Liability judgment at para [167].
[54] Most seriously, routine strip searching was undertaken, in breach of the requirements of s 21K(4) of the Act. Inmates on BMR were usually strip searched after visits, even though the booth arrangements were such as to permit no contact between prisoner and visitor. Prisoners were often strip searched when they returned to the landing on which they were housed after leaving it for some purpose, even though each prisoner had been continuously in the company of three officers for such movements. Most strip searches were conducted in a cross-passage, with little regard for privacy and dignity. Ronald Young J took into account these searches in considering whether, overall, there had been a breach of s 23(5). The Court of Appeal, though in general agreement with the Judge’s findings, regarded the matter even more unfavourably, recording the view that:[66]
the undertaking of routine strip-searches in clear breach of the requirements of the PIA comes very close to degrading treatment in terms of s 9 of the Bill of Rights.
[66]At para [127].
(iv) Programmes for inmates
[55] While inmates were on BMR, their “management plan” was effectively the BMR regime, as Mr Howe acknowledged.[67] Inmate management plans, as required by reg 44 for all inmates, were effectively suspended while prisoners were on BMR, in breach of reg 155(4). Certainly no rehabilitative programmes were provided. That was, according to Mr Howe, because of lack of resources. Apart from the 3‑channel radio, the limited access to books and the availability of long-distance learning, no programmes or facilities for “constructive use of time”[68] were provided on BMR.
[67]Notes of evidence, p 716.
[68]Regulation 44(2)(a).
[56] The importance of satisfactory programmes of activity for the welfare of prisoners has been stressed by the Committee for the Prevention of Torture in its second general report.[69] It considered that high security prisoners should be given increased choice about activities in order to compensate for their closer confinement.
(v) Deprivation of stimulation
[69]See footnote 53 above; and the Committee’s Report to the Dutch Government on the visit carried out from 30 August to September 1992 (published 15 July 1993), para [90]. See Morgan and Evans, pp 72 – 73.
[57] A matter of significance in assessing compliance with the New Zealand Bill of Rights Act is the tedium to which the design of BMR consigned prisoners. This matter was not greatly emphasised in the judgments below, perhaps because some of the matters of criticism, such as deprivation of television, were not in breach of minimum requirements of the Regulations. (The absence of such standards apart from those relating to programmes and exercise may itself be a pointer that non-voluntary isolation under s 7(1A) for substantial periods under such stringency was not envisaged by the legislation.) One of the reasons why Mr Tofts was damaged by his time on BMR was the removal of any means to use the distraction techniques he had learned to cope with his psychiatric disability.[70] BMR withheld most things, such as hobbies, which could have provided distraction or interest in the 22–23 hours of lock-up per day for the four months which, apparently with one or two exceptions,[71] was the minimum period of phases 1–3 of the regime.
Failure to provide institutional safeguards for fair and safe treatment
[70]Liability judgment at para [247].
[71]Liability judgment at para [49].
[58] In addition to these minimum conditions, the prisoners subject to BMR were deprived of important safeguards. Regulation 149 provides safeguards for confinement of prisoners in isolation cells. It provides:
(1) An inmate confined in an isolation cell for more than 8 hours must, as soon as possible, be told of the ground on which he or she is being confined in the cell.
(2) An inmate confined in an isolation cell for more than 24 hours must, no later than 24 hours after first being confined in the cell, be given notice in writing of the ground on which he or she is being confined in the cell.
(3) An inmate confined in an isolation cell for more than 1 week may, once a week, ask for written notice of the ground on which he or she is being confined in the cell.
(4) Reasonably promptly after an inmate is confined in an isolation cell, the superintendent and a medical officer of the institution must be notified of the confinement.
(5) The superintendent, or an officer authorised by the superintendent for the purpose, must at least once a day visit an inmate confined in an isolation cell.
(6) The Secretary must be notified of—
(a)the confinement of an inmate in an isolation cell for more than 2 weeks; and
(b)the ground on which the inmate is being confined.
[59] No visits were made by the Superintendent or his nominee to those on BMR as required under reg 149(5) for all in isolation cells. In the Court of Appeal, counsel for the Attorney-General accepted that the regulations requiring Superintendent visits had been breached and that this had the potential to deprive inmates of a forum for complaints. It was suggested, however, that no one had been shown to be disadvantaged in advancing any complaint by the lack of that particular forum. The Court of Appeal rejected the implication that lack of visits did not matter, treating it as significant that protections for the benefit of confined prisoners had been wrongly withheld.[72] It was clearly right to take that view. The deprivation removed the dignity of access to a senior official, provided by law to those who were otherwise deprived of much personal authority. It was an important right which underscored their humanity and the requirement that they be treated humanely. And the requirement in s 149(5) was treated as indicative of compliance with s 9 in New Zealand’s reports to the Human Rights Committee.[73]
[72]At para [133].
[73]See above para [31].
[60] Prisoners on BMR were deprived of other important institutional safeguards. They were not given the notice in writing required by reg 149(2) and they do not appear to have been advised of the right conferred by reg 149(3). Ronald Young J found that they were given inadequate information to fairly inform them about BMR.[74] Natural justice was not observed in the placement of prisoners on BMR or in the decisions about their promotion or regression under it. The design of the system was fundamentally flawed. In this respect it seems to have been adopted with a casualness that is hard to understand. BMR resulted from essentially pragmatic management proposals by those involved with the administration of D Block. It is not clear that the proposals were appraised against legislative requirements and standards for humane treatment. The details of the regime were not tied down in the Prison Manual or other written instructions, leaving the regime to evolve on the ground (as the changes to maximum periods, grading and regression, and the management responses indicated by Mr Taylor illustrate). As a result of such looseness, there were serious violations both of minimum standards under the Regulations and of fundamental natural justice, recognised as a human right by s 27(1) of the New Zealand Bill of Rights Act.
Medical supervision
[74]Liability judgment at para [82].
[61] Mr McCarthy confirmed that no psychological assessment preceded placement on BMR. Nor was the obligation under reg 149(4) to notify a medical officer of the institution of confinements observed in relation to prisoners placed on BMR. Without such notification, the requirement under reg 63 that the medical officer of the institution ensure that special attention is paid to inmates confined in isolation cells could not realistically be fulfilled. The placement of prisoners on BMR without screening by the medical officer and the failure of the medical officer to monitor the health of prisoners on the regime were also inconsistent with the United Nations Standard Minimum Rules. Rule 32 requires the certificate of a medical practitioner before prisoners are confined for punishment purposes and daily visits to check that they can safely be kept on the regime.
[62] Ronald Young J accepted that there had been no proper screening to enable the suitability of prisoners to be placed on such a regime and that there was inadequate ongoing assessment of their mental health, exacerbated by failures to comply with the Regulations as to notification of placements on confinement. Mr Tofts may have been able to show actual psychiatric damage as a result, but all prisoners (whether or not under psychiatric or psychological disabilities) were inevitably affected at the time by the stringency of the regime, as the Judge accepted.[75]
The findings in the High Court and Court of Appeal as to s 9
[75]Relief judgment at paras [18] and [27].
[63] Ronald Young J took the view that there was “clearly a hierarchy of conduct inherent within ss 9 and 23(5)”.[76] After torture, he considered that:
Cruel treatment seems to be at the top of this hierarchy. Section 9 governs the right not to be treated cruelly, s 23 the right to be treated humanely.
The Judge accepted that “in this case consideration of what happened on BMR is naturally a better fit with s 23 than s 9”:[77]
Section 9 with respect to cruel behaviour is again in my view concerned with the intentional imposition of severe suffering. The Courts are likely to require conduct similar to torture but without the additional element of purpose before cruel treatment is established.
[76]Liability judgment at para [272].
[77]Liability judgment at para [274].
Since Ronald Young J had concluded that suffering was not “intentionally inflicted”, he held that allegations of cruel treatment were not established. The Judge acknowledged that there was a clear overlap between “degrading treatment” (proscribed by s 9) and treatment lacking humanity (proscribed by s 23(5)). But it seems from his reference to a dictionary definition indicating that “inhumane” does not suggest “active cruelty” and from the lack of further consideration of degradation that the Judge considered intentional infliction of suffering was necessary in respect of all aspects of s 9. Certainly, in the Court of Appeal the High Court judgment was taken to require an intention to inflict suffering for breach of s 9.
[64] In the Court of Appeal the requirement of intention to cause suffering was accepted to have been wrong. The Court of Appeal held that intentional infliction of harm was required only for a finding of torture. “Cruel, degrading or disproportionately severe” treatment is objectively assessed. For “cruel” treatment, the Court of Appeal adopted the standard that the treatment must “shock the community conscience”.[78] It considered that “degrading treatment” involved “some form of gross humiliation or debasement”, and that “disproportionately severe treatment” was such as to “outrage standards of decency”.[79]
[78]At paras [144] and [255].
[79]At para [255].
[65] The Court of Appeal rejected an argument that isolation could not lawfully have been imposed, on the basis that it would require reading down of s 7(1A). It noted that the segregation imposed here did not deny prisoners all association with others; they had limited association in the periods when they were unlocked and they
could communicate with others from their cells. Nevertheless, the Court repeated its reservations about the lawfulness of BMR under s 7(1A) “given its apparently punitive characteristics”.[80] On the associated point that the length of the period spent on BMR should itself have led to a finding of breach of s 9, it seems that the emphasis in the argument was on the minimum periods at each stage. The Court of Appeal simply commented that there was “no factual basis for the argument” because:[81]
The Judge was clear in his finding at [49] that the discretion which had to be exercised under s 7(1C) was not overridden by these minimum periods and that there was evidence that some BMR inmates were released at the time of their first review (after three months) notwithstanding the six months minimum.
[80]Court of Appeal judgment at para [205].
[81]At para [227].
[66] Similarly, the Court of Appeal did not consider that the lack of medical assessment before and during the programme was in breach of s 9. The Court was influenced in that conclusion by the Judge’s findings that general medical treatment was adequate and that it made the “practical impact” of the lack of screening and on-going mental health assessment “of limited significance in the present case”. In particular the Court held:[82]
In our view it would be wrong to make a finding of degrading treatment where the failings of Corrections in relation to medical monitoring did not have an adverse impact on the respondents in practice.
[82]At para [211].
[67] Isolation and failure to provide for medical assessments were the only topics addressed by the Court of Appeal in considering whether BMR constituted breach of s 9. The discussion was relatively brief. The Court did not consider whether, cumulatively, the conditions of treatment on BMR amounted to a breach of s 9. The rest of the Court’s analysis of s 9 was directed to the impact on Mr Tofts. It held that s 9 had been breached in relation to Mr Tofts because, although his treatment did not amount to torture or to cruel or degrading treatment, it was disproportionately severe measured by the standard of outrage to standards of decency. The factual basis upon which this conclusion was made were the findings:[83]
(a) Corrections knew of the risks of placing inmates who had psychiatric vulnerabilities on BMR, and had access to international literature which would have reinforced that knowledge;
(b) Corrections knew of Tofts’ psychiatric vulnerability;
(c) Corrections did not put in place an adequate screening process for inmates who were proposed to be admitted to BMR; Mr Tofts was therefore admitted to BMR when he ought not to have been;
(d) The conditions on BMR, particularly the withdrawal of access to a television set, removed one of the coping mechanisms available to Mr Tofts to deal with his psychiatric disability;
(e) Mr Tofts’ time on BMR exacerbated his pre-existing psychiatric and psychological difficulties.
[83]At para [223].
[68] These features were said by the Court of Appeal to have distinguished Mr Tofts’ position from that of the other prisoners. The distinction from the other prisoners was therefore that Mr Tofts had particular known vulnerabilities (which should have precluded his placement on BMR) and could show resulting damage. Except for its rejection of the need to show intent to inflict suffering, the Court of Appeal did not express disagreement with the approach taken by Ronald Young J to s 9. Consistently with its own approach in considering the failure to provide medical supervision, the Court seems to have proceeded on the basis that s 9 breach required potential for resulting harm.[84] It did not examine the general conditions on BMR to determine whether individually or cumulatively they amounted objectively to cruel, degrading or disproportionately severe treatment. Although the Court accepted that intention could be relevant to a breach of s 9, it did not consider whether the deliberate adoption by Corrections of a regime found to amount to inhumane treatment itself constituted cruel, degrading or disproportionately severe treatment. That may have been for the reason given by Ronald Young J (with which the Court of Appeal did not express disagreement), that s 23(5) was the better “fit” with what had transpired.
[84]In para [200] the Court emphasised the findings of the Judge that the conditions of confinement were only deleterious to the mental health of Mr Tofts. The absence of the potential for damage was a reason why the Court distinguished the factual findings made in McCann v R (1975) 29 CCC (2d) 337.
[69] I agree with the Court of Appeal that whether conditions of imprisonment are in breach of s 9 does not depend on an intention to cause suffering. The assessment under s 9 is objective. That, I think, is made clear by use of the word “treatment” in s 9.[85] I do not think it necessary for such treatment to result in physical or mental damage. As explained further below, I am of the view that the conditions imposed through BMR cumulatively amounted to cruel, degrading or disproportionately severe treatment. I reach that conclusion on my assessment of the conditions. I also think it relevant that these very harsh and substantially illegal conditions were imposed systematically, with the aim of modifying behaviour. If with such purpose severe suffering had been inflicted, the treatment would have amounted to torture. Here the suffering was of a lower level than that required for torture, but the serious privations imposed were not inadvertent. They were imposed with the conscious aim of overcoming the resistance of the prisoners. Even if of the view that the conditions viewed cumulatively amounted to no more than a failure to treat the prisoners with humanity, I would have been of the view that conscious use of inhumane treatment would amount to breach of s 9.
The relationship between section 9 and section 23(5)
[85]The confinement of the Eighth Amendment to the Constitution of the United States to “punishments” is a reason why intention may be an element of an Eighth Amendment violation arising out of prison conditions. In Wilson v Seiter 501 US 294 at pp 297 – 298 (1991) the majority held that, since “punishment” cannot be inadvertent, “deliberate indifference” must be shown before systematic prison conditions can amount to cruel and unusual punishment. (The minority in the same case would have treated systematic conditions of imprisonment as part of the punishment imposed by sentence, and thus would have assessed objectively whether the conditions of imprisonment are cruel and unusual without any further requirement of intent.) On the point of “deliberate indifference” see also Estelle v Gamble 429 US 97 at p 106 (1976); Wilson at pp 302 – 304; Rhodes v Chapman 452 US 337 at p 347 (1981).
[361] The regime was a misguided attempt at behaviour modification, undertaken in the belief that the programme was permitted by the law. While it had the same effects as punishment of prisoners, that was not the purpose. In relation to the degree of harshness of the treatment, it is relevant that the behaviour of the State officials involved was of a less arbitrary character than the behaviour in a number of the cases cited to us.
[362] In the end a judicial assessment of where particular instances of mistreatment lie on the scale of what Professor Nowak has referred to as “the intensity of disregard for human dignity” is a matter of general impression, having considered all of the circumstances.[424] It is not disputed by the Crown that the three aspects of the harsh treatment of Mr Taunoa that I have discussed were significant departures from standards necessary to maintain the proper standard of dignity and respect for the humanity of imprisoned persons in the New Zealand context. The conduct was deplorable, particularly because it involved persons who were especially vulnerable to the mistreatment. While the harm caused was intangible, the anxiety, frustration and general suffering of Mr Taunoa was real. In his case, although the treatment continued for a very long time, it involved none of the wider elements of brutality or added cruelty by prison officials that would certainly, in the New Zealand context, elevate its character above the threshold. The conclusion I have reached is that, even when the three aspects are considered cumulatively, along with the time he spent on the regime, the overall gravity of his mistreatment does not reach the level of harshness required to amount to cruel, degrading or disproportionately severe treatment or punishment under s 9. Its proper classification is that the treatment of Mr Taunoa breached his rights to be treated with dignity and humanity under s 23(5) of the Bill of Rights Act. In that category, having particular regard to the duration of the mistreatment of Mr Taunoa, it was a very serious case of its kind.
Public law remedies for breaches of fundamental rights
[424]Nowak, UN Covenant on Civil and Political Rights (2nd rev ed, 2005), p 245.
[363] All parties have appealed against the awards of compensation made in the lower Courts. The arguments in this Court require us to address the basis of awards of compensation for breaches of fundamental rights and to consider whether the amounts of compensation awarded to each appellant (except Mr Tofts, whose award is not challenged by the Crown) were appropriately fixed.
[364] Whenever a court finds that State power has been exercised in breach of a person’s protected rights, the court must go on to consider the question of an appropriate remedy. Under the ICCPR:[425]
Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights and freedoms as herein recognised are violated shall have an effective remedy ...
[425]Article 2(3).
[365] This international obligation to give an effective remedy was held to be part of New Zealand’s domestic law in the judgment of Cooke P in Simpson v
Attorney‑General [Baigent’s Case].[426] The pleading in that case was that the police officers who had entered the plaintiff’s property realised, or should have realised, that the warrant probably contained the wrong address. Cooke P invoked s 3 of the Bill of Rights Act and said:[427]
The Act is binding on us, and we would fail in our duty if we did not give an effective remedy to a person whose legislatively affirmed rights have been infringed.
[426][1994] 3 NZLR 667 (CA).
[427]At p 676.
[366] It is now established in New Zealand that the remedy for breach of protected rights is a public law one.[428] In determining the appropriate remedy in cases of breach, the court’s focus must be on the fundamental nature of those rights in New Zealand’s democracy and the need for their affirmation, promotion and protection in accordance with the principles of the Bill of Rights Act. The court’s principal objective must be to vindicate the right in the sense of upholding it in the face of the State’s infringement. Selection of the appropriate remedy from those available will involve the making of a principled choice in the exercise of judicial judgment. An important concern will be to ensure that the rule of law is reinstated through cessation of any continuing breach and securing the future respect of the State for the right concerned.
[428]Baigent’s Case at p 677 per Cooke P.
[367] This rights-centred approach recognises, as Professor Dinah Shelton has put it, that “society as well as the individual victim is injured when human rights are violated”.[429] It looks to repair the social harm caused by the breach. In general the chosen remedy should do this by marking the breach and redressing it wholly or in part. The remedy should be proportionate to the breach but also have regard to other aspects of the public interest. The remedy must also be directed to the values underlying the right.[430]
[429]Shelton, Remedies in International Human Rights Law (2nd ed, 2005), p 99.
[430]Martin v Tauranga District Court [1995] 2 NZLR 419 at p 428 (CA) per Richardson J.
[368] The court’s finding of a breach of rights and a declaration to that effect will often not only be appropriate relief but may also in itself be a sufficient remedy in the circumstances to vindicate a plaintiff’s right. That will often be the case where no damage has been suffered that would give rise to a claim under private causes of action and, in the circumstances, if there is no need to deter persons in the position of the public officials from behaving in a similar way in the future. If in all the circumstances the court’s pronouncement that there has been a breach of rights is a sufficiently appropriate remedy to vindicate the right and afford redress then, subject to any questions of costs, that will be sufficient to meet the primary remedial objective.
[369] The focus on rights in the determination of appropriate remedies for their breach does not, however, exclude from the court’s consideration other remedial objectives, including, where necessary, that of ensuring future compliance by public officials with protected rights. The courts have responded to breaches of protected rights in relation to search, arrest and detention by developing the common law rule of exclusion of evidence.[431] Evidence obtained consequential on conduct in breach of such rights may be excluded following a balancing exercise undertaken by the court, in which appropriate and significant weight is given to the fact that there has been a breach of a protected right, but also taking account of wider considerations of public interest.[432] This approach to remedies in the criminal law sphere seeks to safeguard rights through a deterrent impact, where protection against future infringement is necessary for the right to be upheld and the remedy to be an effective one. An incidental, but significant, effect of the remedy of exclusion of evidence is, of course, redress through the benefit derived by the party aggrieved.
[431]Under ss 21, 22, 23 and 24 of the Bill of Rights Act.
[432]R v Shaheed [2002] 2 NZLR 377 (CA); s 30 Evidence Act 2006.
[370] Where a breach of rights is of a serious nature, and the case is not one where exclusion of evidence is a practicable remedy, an award of public law compensation will be appropriate in order to uphold the right while also affording a measure of redress for intangible harm. The amount of compensation should be assessed by reference to what is appropriate in the New Zealand social, historical and legal context in order to vindicate the right in all the circumstances.[433]
[433]R v Jefferies [1994] 1 NZLR 290 at pp 299 – 300 (CA) per Richardson J; Tortell, Monetary Remedies for Breach of Human Rights (2006), p 153.
[371] The present case is one in which no damage has been suffered by the appellants which would give rise to private law claims for damages. Nor are the circumstances such as to call for a remedy which deters future illegal conduct by public officers. The cause of the breaches of rights was an institutional one, which was addressed in the course of the proceedings. It would be astonishing if the circumstances giving rise to it were ever to recur. The breaches were, however, serious ones.
[372] A rights-centred approach does not necessarily require compensation to be part of the remedy.[434] Nevertheless, the circumstances in the present case are such that I am satisfied that a simple pronouncement that a breach had occurred would clearly be inadequate to vindicate the rights of the appellants that have been infringed. That is not because of a need for punishment or discipline of those who were responsible. Rather the degree of suffering, anxiety and frustration caused by the unlawful conduct, although intangible, and the vulnerability of the appellants to mistreatment in the course of incarceration by the State, together make this a serious case of breach of rights and in Mr Taunoa’s case, a particularly serious one. This case therefore calls for a further remedy in addition to a declaration of breach in order adequately to uphold the rights. Compensation should be seen both as complementary to the Court’s formal pronouncement that the appellants’ rights have been breached and as a necessary element of an effective remedy in a case such as the present.
[434]Baigent’s Case at p 703 (per Hardie Boys J).
[373] The same considerations are important in setting the amount of the compensation awarded to the appellants. In that respect I am in general agreement with the approach proposed for determining public law compensation by Blanchard J in his reasons for judgment.[435] I also agree with the application of that approach in those reasons and the consequential adjustments being made to the awards to Mr Kidman and Mr Robinson.[436] I see no basis for increasing the award to Mr Tofts for what is now accepted was a breach of his rights under s 9. Nor would I alter the award to Mr Gunbie.
[435]At paras [258] – [266].
[436]At paras [270] – [272].
[374] My main point of difference in relation to Mr Taunoa arises as a result of my conclusion that the breaches of Mr Taunoa’s rights related to s 23(5) and not s 9 of the Bill of Rights Act. I have, however, made plain that I regard the harshness of his treatment as making this a very serious case. The duration of the mistreatment and its likely impact on Mr Taunoa’s psychological state are also relevant to assessment of the sum that is necessary to uphold his rights. Overall, while considering that it is a very high award for a breach of s 23(5), I have concluded that $35,000, the figure proposed by Blanchard J, is the correct amount of compensation for Mr Taunoa.
The breach of natural justice ground
[375] The appellants also sought a declaration that their rights to natural justice under s 27(1) of the Bill of Rights Act had been breached. No such declaration was made by the lower Courts. Section 27(1) provides:
Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.
[376] The 1985 White Paper is not specific as to what constitutes a “determination in respect of [a] person’s rights, obligations, or interests protected or recognised by law”. The commentary does, however, make a number of general observations about the clause that is now s 27(1). One is that the principles of natural justice will have “varying application in differing circumstances” so that “a personal hearing … will not always be required”. The commentary recognises that for more serious matters the procedures required will be of a standard equivalent to that for persons charged in the criminal process.[437] This approach to the content of the rules of natural justice is in accordance with the common law and should be applied to s 27(1).
[437]White Paper, para [10.168].
[377] I accept the submission of Mr La Hood for the appellants that the decision to put an inmate on the BMR regime was of a nature that invoked a high standard of natural justice. Mr Keith argued that s 27(1) did not apply, at least to the extent of requiring a hearing. He submitted that the decisions were of an administrative character and became illegal only because they reduced inmates’ conditions. I am, however, satisfied that the nature of treatment under the BMR regime was such as to attract a full measure of natural justice protections during the initial placement.
[378] Both the High Court, implicitly, and the Court of Appeal, expressly, correctly recognised that the process by which decisions on the application of the BMR regime to prisoners were taken by the Department of Corrections involved a breach of s 27(1). This is not, of course, to say that there will be a right to a hearing under s 27(1) in the case of every management decision taken by prison authorities. The key feature of the BMR regime in this respect was that it had elements that were akin to those in a disciplinary process. Neither Court made a formal declaration that s 27(1) had been breached.
[379] I do not accept Mr La Hood’s submission that the lack of daily visits to inmates on the BMR regime by the Superintendent of the prison, and of regular visits by medical practitioners, amounted to a breach of s 27(1). While the purpose of these requirements under regulations provided an independent check on the well-being of inmates, I do not regard the nature of such ongoing functions as giving rise to determinations which would lead to a right to a hearing under s 27(1).
[380] Where there has been a breach of s 27(1) a formal declaration will usually serve an important purpose in bringing home to government officials that in certain circumstances s 27(1) may impose separate duties which are additional to the requirements for exercise of powers under specific statutes. Here, however, each Court appears to have considered, as Mr Keith suggested, that the breach of natural justice was subsumed in their respective findings of unlawfulness. I agree that a declaration is unnecessary in this case where the judgments of the Courts below are clear that there was a breach of s 27(1) and that finding is encompassed in a general declaration of the illegality of the BMR regime.
Conclusion
[381] For these reasons I would dismiss the appeals and allow the cross-appeals with the consequential adjustments to the awards of damages proposed by Blanchard J.
HENRY J
[382] The background to these appeals has been set out in Blanchard J’s comprehensive reasons. The appeals require particular consideration of four issues. The first is the approach the courts should take when determining whether, in the circumstances of a case, s 9 of the New Zealand Bill of Rights Act 1990 has been breached. The second is whether s 9 was breached in respect of the prisoners or any of them. The third is the approach the courts should take regarding an award of damages for a Bill of Rights Act breach. The fourth is whether the awards made here were appropriate.
[383] As to the first issue, I am in general agreement with the substance of the views expressed by Tipping J. There is nothing I can usefully add to his discussion and conclusions.
[384] As to the second issue, I am not persuaded that in any individual case the conduct complained of can properly be classed as coming within that contemplated by s 9. As regards Mr Taunoa, I am content to respectfully adopt the reasons of Tipping J.
[385] As to the third issue, I am in general agreement with both Blanchard J and Tipping J. I would only add that in my view it is important to keep in mind that, when tortious conduct is involved, the Bill of Rights Act claim does not take on the character of a claim in tort. The two are not interchangeable. The respective remedies given by tort law and by the Bill of Rights Act serve different purposes, and because the impugned conduct also constitutes a tort does not mean the measure of damages will equate to those available under the common law.
[386] As to the fourth issue, I agree that an award of damages to these prisoners was appropriate but I consider the awards made to Mr Kidman, Mr Robinson and Mr Taunoa are excessive and must be reduced. I would adopt the assessments made by Tipping J. In my view the High Court erred in applying a formula derived from Manga v Attorney-General.[438] I also think both Courts below were in error in the weight given to the fact that the Behaviour Management Regime was unlawful when deciding that s 23(5) was breached, particularly in respect of segregation and removal of statutory conditions or privileges. Unlawful treatment of a prisoner arising from an absence of, or a conflict with, legislative authority does not necessarily of itself result in a Bill of Rights Act breach. It is to be expected that the minimum standards of treatment required by legislative provisions would be significantly higher than those mandated by s 23(5), and certainly by s 9. I suspect this emphasis may have unduly influenced the assessments of damages. What must be considered when determining whether there was a breach as well as the appropriateness of an award and its quantum is the particular conduct which constitutes the breach.
[438][2000] 2 NZLR 65 (HC).
[387] I also agree that the claim under section 27(1) for a declaration of breach of natural justice has not been made out.
[388] For the above reasons, I would dismiss the appeals, and allow the cross‑appeals to the extent expressed by Tipping J.
Solicitors:
N B Dunning, Wellington for Appellants
Crown Law Office, Wellington
…
(4) The situations referred to in subsection (3) of this section are as follows:
(a) Where the officer has reasonable grounds for believing that the inmate has in his or her possession an unauthorised item:
(b) Immediately before the inmate is locked in a cell under report or punishment, or for observation:
(c) On the return of the inmate to the institution:
(d) On the return of the inmate from work or from a part of the institution that is not supervised:
(e) Immediately before the inmate leaves the institution:
(f) At any time while the inmate is being transferred to another institution:
(g) At any time while the inmate is outside the institution in the custody of an officer:
(h) Immediately before the inmate is brought before—
(i) A Visiting Justice for the purposes of any hearing or examination under section 33 of this Act, or any appeal under section 35 of this Act:
(ii) Any officer of the institution for the purposes of any hearing or examination under section 34 of this Act:
(i) Immediately before any person visits the inmate:
(j) Immediately after any person has visited the inmate.
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