Taylor v Attorney General
[2022] NZCA 3170
•30 November 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE WHANGANUI-A-TARA ROHE
CIV-2017-485-802
[2022] NZHC 3170
BETWEEN ARTHUR WILLIAM TAYLOR
Plaintiff
AND
ATTORNEY-GENERAL
Defendant
Hearing: 28 February–1 March; 3–4 March; 7–10 March; 14–18 March;
21–25 March; 28 March–1 April; 4–5 April; 13–14 April 2022
Counsel:
Plaintiff in Person
S M Kinsler and D M A Wiseman for Defendant
Judgment:
30 November 2022
Re-issued: 5 December 2022
JUDGMENT (No 3) OF ISAC J
TAYLOR v ATTORNEY-GENERAL [2022] NZHC 3170 [30 November 2022]
TABLE OF CONTENTS
Para No
Introduction, Structure and Legal Framework[1] Chapter 1: Directed Segregation and Conditions of Detention[46] Chapter 2: Fires[447]
Chapter 3: The Truth Newspaper Ban[518]
Chapter 4: Rehabilitation and Parole [568]
Chapter 5: Transfer to Waikeria Prison[621]
Chapter 6: Strip Searches and Mechanical Restraints[788]
Conclusion and Summary of Results[835]
INTRODUCTION, STRUCTURE AND LEGAL FRAMEWORK
[1] Mr Arthur Taylor, the plaintiff, is a well-known former prisoner and prisoner rights advocate. He has made a significant contribution to the development of New Zealand’s constitutional law and brought numerous proceedings—many successful— for the benefit of others.
[2] This proceeding has a more personal focus. In it, Mr Taylor seeks public law damages against the Department of Corrections of $1.45 million relating to his treatment as an inmate. The claims are wide-ranging, spanning events from June 2011 until March 2018. Mr Taylor alleges serious mistreatment, designed to disrupt his legal work against Corrections and to prevent him assisting other prisoners to assert their basic rights. Except in one respect, the claims are advanced as breaches of rights and freedoms in the New Zealand Bill of Rights Act 1990.
[3] During the trial both parties referred to the different elements of Mr Taylor’s claims as “chapters”, and I have adopted the same term in this judgment. Each chapter represents a discrete aspect of Mr Taylor’s detention that could have been the subject of a separate judgment. As my consideration of the issues is consistent with the chapters identified by the parties, it is helpful to begin with a broad over-view:
(a)Chapter 1 relates to a period between 2011 and 2012 when Mr Taylor was placed on “directed segregation”. This had the effect of limiting his contact with other prisoners. Mr Taylor says the decisions and processes leading to his directed segregation were unlawful and for an improper purpose, and that the conditions and duration of his detention were such as to constitute both a breach of s 9 of the Bill of Rights, the prohibition on torture and cruel and inhuman treatment, and s 23(5), the positive duty to treat those in detention humanely and with respect (at [46] below).
(b)Chapter 2 relates to a series of three fires lit by another prisoner close to Mr Taylor’s cell in Auckland Prison in 2011 and 2012. Mr Taylor claims that acts or omissions of Corrections resulted both in a breach of
a duty of care in negligence, and a further breach of s 23(5) of the Bill of Rights (at [447] below).
(c)Chapter 3 addresses what became known at trial as the Truth newspaper ban. In 2011 a decision was made to ban the paper from the wing of the prison where Mr Taylor was held. He argues that the ban was unlawful and constituted a breach of his right to freedom of expression under s 14 of the Bill of Rights (at [518] below).
(d)Chapter 4 relates to a claim that Corrections failed in its obligation to provide Mr Taylor with rehabilitation between 2011 and 2014, and as a result he was denied earlier parole. This, too, is said to constitute a breach of s 23(5) (at [568] below).
(e)Chapter 5 concerns Mr Taylor’s claim that the decision to transfer him from Auckland Prison to Waikeria Prison in December 2017, and the use of force to effect that transfer, was unlawful and a breach of s 23(5) (at [621] below).
(f)Chapter 6 deals with a series of nine strip-searches and one occasion when handcuffs (or “mechanical restraints”) were used while transporting Mr Taylor from Auckland back to Waikeria following a court appearance. As there was no disagreement that the relevant conduct occurred, and that it was unlawful, the only issue requiring determination is whether Mr Taylor is entitled to a remedy and, if so, what that remedy should be (at [788] below).
[4] The background to each claim, and the issues requiring determination, are set out within the appropriate chapter.
Mr Taylor’s amended statement of claim
[5] Mr Taylor’s pleading sets out his general allegations marshalled broadly into the chapters identified above. Those allegations are then drawn into three causes of action:
(a)The first cause of action is based on a breach of s 9 of the Bill of Rights. An range of mistreatment is alleged to have constituted torture or cruel, degrading or disproportionately severe treatment or punishment.
(b)The second cause of action pleads that Mr Taylor’s treatment over the claim period amounted to a breach of s 23(5) of the Bill of Rights, as well as ss 14 (freedom of expression), 19 (freedom from discrimination), and 27(1) (the right to natural justice). The facts on which these claims are based are, as pleaded, nearly identical to those supporting the s 9 claim.
(c)The third cause of action is in negligence. Mr Taylor claims a breach of a duty of care, again based largely on the same conduct covered by the other parts of the claim.
[6] On the first two Bill of Rights causes of action, Mr Taylor seeks a host of declarations and public law and aggravated damages of $500,000 and $550,000 respectively. In relation to the claim in tort, Mr Taylor seeks a declaration, together with damages for psychological and emotional harm of $500,000. The total damages claimed comes to $1.45 million.1
[7] While the pleading suggests that all three causes of action relate to essentially the same underlying factual allegations, during the trial and by closing the causes of action were significantly refined. In summary:
(a)Mr Taylor’s claim under s 9 of the Bill of Rights was limited to a period of time he spent in Auckland Prison’s High Care Unit while on directed segregation. This is a subset of the claims dealt with in Chapter 1.
(b)Mr Taylor’s s 23(5) cause of action relates to the claims in all six chapters.
1 It is not entirely clear from the statement of claim whether the causes of action were intended to be in the alternative given the significant degree of overlap between them, but the case was advanced and understood by the defendant to be made on the basis that each was a separate, cumulative claim for damages.
(c)Mr Taylor’s claim under s 14 of the Bill of Rights (freedom of expression) is confined to the Truth newspaper ban considered in Chapter 3.
(d)The claim under s 27 of the Bill of Rights (breach of natural justice) forms part of the claims relating to directed segregation dealt with in Chapter 1.
(e)Mr Taylor’s claim for a breach of s 19 of the Bill of Rights (freedom from discrimination on the basis of gender) was abandoned.
(f)Mr Taylor’s claim in tort was limited to the three fires in Auckland Prison in 2011 and 2012, dealt with in Chapter 2.
[8] Other deficiencies in the Mr Taylor’s pleading were identified during the trial. By and large the defendant and his counsel were able to respond to the evolving case. By closing, only one pleading point was taken by the defendant.
The trial and pre-trial issues
[9] The trial was set down for six weeks commencing on 28 February 2022. Unfortunately, this timing coincided with the beginning and expected peak of the Omicron outbreak in New Zealand.
[10] Shortly before the trial commenced, Corrections raised a concern that some of its staff involved in the hearing as witnesses would likely be required to isolate during the trial or might be unwell. It sought a hybrid approach to taking the evidence, permitting witnesses to attend by audio-visual link as required. An added difficulty was that Mr Taylor was likely to encounter difficulties travelling from his home in the South Island to the Wellington High Court due to public health measures applicable at the time.
[11] This created the possibility of accommodating both an in person and virtual hearing, with added complications in terms of resourcing. Having heard from the parties, and given indications of likely case-numbers, I resolved to conduct the entire
hearing on Microsoft Teams. While an in-person hearing would have been preferable, Mr Taylor and counsel for the defendant are to be commended for their adaptability, and their efforts to ensure the trial was completed successfully. There were few interruptions as a result of technical issues.
[12] On 21 February 2022, a week before the trial was due to commence, the defendant filed two interlocutory applications. The first was for non-party discovery orders against the Capital and Coast District Health Board, relating to medical records from Mr Taylor’s admission to hospital in September 2005. The second application related to the admission as hearsay of a signed brief of evidence of one of the defendant’s witnesses, Mr Paul Burrow, who passed away shortly before the trial was due to commence. Mr Taylor opposed both applications. I was unable to hear or determine them in advance of the trial. As a result, I heard both matters on 28 February 2022 and issued a results judgment the following day.2 The trial proper then commenced with an oral opening from Mr Taylor on 1 March 2022.
[13] Mr Taylor called two witnesses: himself, and Dr James Freeman. Given the scope of Mr Taylor’s claims it is perhaps unsurprising that he was cross-examined for nine days.
[14] The defendant called a total of 33 witnesses. A significant proportion of them were nursing staff and corrections officers involved in Mr Taylor’s transfer to Waikeria Prison. Mr Taylor and his expert witness strongly criticised the nursing staff, and what was said to be a failure to make basic checks of Mr Taylor’s wellbeing. Given the professional consequences that might follow from an adverse finding, Corrections wished to meet Mr Taylor’s allegations firmly. As a result, an issue that was relatively narrow in the context of the entire claim took on a disproportionate significance.
[15] The evidence concluded on 5 April 2022. The trial was then adjourned to permit Mr Taylor time to prepare a written closing address. Closings were then delivered at an in-person hearing on 13 and 14 April 2022.
2 Taylor v Attorney-General [2022] NZHC 323. The reasons for my decision are contained in a separate judgment: Taylor v Attorney-General (No 2) [2022] NZHC 2846.
[16] At the conclusion of closing addresses Mr Taylor indicated he might wish to pursue an application for leave to post on his website some of the video footage discovered by the defendant during the course of the proceeding. The application came before me in June 2022, and following a hearing I declined Mr Taylor’s request in a judgment of 27 July 2022.3
Approach to the claims and evidence
[17] Although some of the claims required consideration of events over a decade ago, Corrections retained (with some notable exceptions) many contemporaneous prison records and associated documentation. In general, I have preferred the contemporaneous written record where it was at odds with the oral evidence I heard. This has particular importance to Mr Taylor’s case, which was largely reliant on his oral evidence.4 As will become apparent, Corrections also invited me to make adverse credibility findings on significant elements of Mr Taylor’s claims.
[18] It is also appropriate to record that Mr Taylor was self-represented throughout the trial. Given Mr Taylor’s many years of conducting High Court proceedings in his own name, that is no surprise. Mr Taylor was assisted throughout the trial by Ms Hazel Heal, who was present with Mr Taylor while he was appearing and giving evidence. To the extent it would not create unfairness, I endeavoured to provide Mr Taylor with as much latitude as possible in the conduct of his case. This included the delivery of an oral opening statement, which was surprising given the length and complexity of the trial. In addition, I provided Mr Taylor with an adjournment following the conclusion of the evidence so he would have additional time to prepare a detailed written closing address.
[19] As noted, Mr Taylor’s pleaded claims were subject to significant change during the trial. Aspects of Mr Taylor’s claim were defined for the first time in opening. One new claim was raised in his closing address. Because of this, I have endeavoured to
3 Taylor v Attorney-General (No 1) [2022] NZHC 1825.
4 A notable exception was Mr Taylor’s approach to directed segregation, dealt with in Chapter 1. This claim was primarily based on the findings set out in reports by the Ombudsman and by the Prison Inspectorate.
deal with Mr Taylor’s claims as he left them in closing, rather than as they were framed in the statement of claim or opening.
Relevant principles — Bill of Rights claims
[20] Mr Taylor’s primary cause of action is under s 23(5) of the New Zealand Bill of Rights Act 1990. Almost every claim alleges that s 23(5) has been breached in some way. A more limited aspect of the proceeding is focussed on an alleged breach of s 9. Given the prevalence of s 23(5) in Mr Taylor’s claims, and that provision’s connection with s 9, it is useful to begin with the principles informing these provisions.
[21]Section 9 of the Bill of Rights provides:
9 Right not to be subjected to torture or cruel treatment
Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.
[22]And s 23(5) provides:
23 Rights of persons arrested or detained
…
(5)Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.
Taunoa v Attorney-General
[23] The leading case on the treatment of prisoners in terms on ss 9 and 23(5) is the Supreme Court’s decision in Taunoa v Attorney-General.5 It concerned a challenge to the lawfulness of the so-called Behaviour Management Regime (BMR) at Auckland Prison.6 As Mr Taylor relies heavily on the conditions of detention in Taunoa as a comparison with his own, a brief description is useful.
5 Taunoa v Attorney General [2007] NZSC 70, [2008] 1 NZLR 429 [Taunoa (SC)] at [339].
6 Originally Corrections used the term Behaviour Modification Regime, but this was replaced following advice from psychologists suggesting that the BMR differed in a number of ways from what would be considered best practice behaviour modification. See Taunoa v Attorney-General (2004) 7 HRNZ 379 (HC) [Taunoa (HC)] at [13]–[14].
[24] The BMR was a regime employed by Corrections between 1998 and 2004 to improve prisoner behaviour through a system of punishment and reward. It involved a highly controlled environment which was more restrictive than maximum security conditions and imposed severe limitations on association as well as other basic conditions. Prisoners on the BMR were confined to their cell for 22–23 hours a day and had their ordinary entitlements and privileges significantly reduced or, in some cases, removed altogether. Restrictions on entitlements and association gradually eased as prisoners progressed through the different phases of the programme, provided Corrections considered their behaviour had improved. Compliance and good behaviour could result in faster progression, while bad behaviour could lead to regression.
[25] Importantly, the BMR had no statutory foundation whatsoever. It was a system invented by Corrections staff that sat outside the normal legislative safeguards for prisoner welfare. The Supreme Court identified the most troubling aspects of the regime as including:7
(a)cell conditions that fell well short of proper hygiene standards;
(b)the failure by officials and medical officers to adequately monitor the health and wellbeing of BMR prisoners, notwithstanding their vulnerability as segregated prisoners;
(c)inadequate opportunities to exercise, particularly outdoors;
(d)the failure to provide adequate privacy to BMR prisoners, and a clearly unlawful practice of routine strip searches (including searches done in a passageway with limited privacy);
(e)the lack of rehabilitative programmes available to BMR prisoners, and the unnecessary deprivation of access to books and television;
7 Taunoa (SC), above n 5, at [128] per Blanchard J.
(f)the provision of unclear and inadequate information about the operation of the BMR, including the reasons for placement and continuation on the regime; and
(g)isolated incidents of improper seizure of items during cell searches, as well as verbal abuse of prisoners by corrections officers that was sufficiently common to be concerning.
[26] In light of this, the Court concluded the conditions imposed by the BMR were unlawful and without statutory basis.8 The statutory scheme did not permit segregation to be used as punishment. The BMR was a punitive regime, designed to send a message to prisoners about their place in the corrections system.9 The majority of the Supreme Court held that these conditions collectively amounted to a breach of s 23(5), but not s 9.10
[27] One of the first questions the Court considered was the relationship between the two provisions. Elias CJ found that the two provisions create distinct though overlapping rights.11 While s 23(5) places an obligation on the State to treat its citizens “with humanity”, that is to be contrasted with the focus of s 9, which prevents “inhuman treatment”:12
On this view, s 23(5) is concerned to ensure that prisoners are treated “humanely” while s 9 is concerned with the prevention of treatment properly characterised as “inhuman”. The concepts are not the same, although they overlap because inhuman treatment will always be inhumane. Inhuman treatment is however different in quality. It amounts to a denial of humanity…
8 At [138]–[145] per Blanchard J.
9 At [47]–[48] per Elias CJ, [129] per Blanchard J, and [348] per McGrath J.
10 The exception was for one of the prisoners, Mr Tofts. The Court of Appeal found that Mr Tofts’ placement on the BMR amounted to disproportionately severe treatment in breach of s 9 due to his psychiatric vulnerabilities and psychological difficulties, and the fact that his time on the BMR exacerbated those issues: Attorney-General v Taunoa [2006] 2 NZLR 457 (CA). The Attorney- General did not appeal that finding.
11 Taunoa (SC), above n 5, at [5] and [70]–[80].
12 At [79].
[28] The majority of the Court were inclined to consider there is a continuum on which ss 9 and 23(5) rest and a hierarchy between the two provisions.13 The hierarchy could be described as covering “degrees of reprehensibility”.14
Section 9
[29] Section 9 captures the most reprehensible treatment and is reserved for “truly egregious cases”.15 A breach of s 9 will involve conduct “which is to be utterly condemned as outrageous and unacceptable in any circumstances”.16 Whereas s 23(5) requires prisoners to be treated with humanity, s 9 prohibits treatment that is “less than human”.17 The threshold is a high one.
[30] Conduct breaching s 9 will usually involve an intention to harm or conscious and reckless indifference to the causing of harm, as well as significant physical or mental suffering.18 The Court identified the conduct proscribed by s 9 in these terms:
(a)“torture” involves the deliberate infliction of severe physical or mental suffering for a purpose, such as obtaining information;19
(b)“cruel” treatment is treatment which deliberately inflicts suffering or results in severe suffering or distress;20
(c)“degrading” treatment is treatment which gravely humiliates and debases the person subjected to it;21 and
(d)“disproportionately severe” treatment is conduct which is so severe as to shock the national conscience, or so disproportionate as to cause
13 At [170] per Blanchard J, and [339] per McGrath J.
14 At [170] per Blanchard J.
15 At [297] per Tipping J.
16 At [170] per Blanchard J.
17 At [297] per Tipping J.
18 S v Attorney-General [2017] NZHC 2629 at [213].
19 Taunoa (SC), above n 5, at [81] per Elias CJ, and [171] per Blanchard J.
20 At [171] per Blanchard J, and [282]–[283] per Tipping J.
21 At [171] per Blanchard J.
shock and revulsion. It imports conduct which is well beyond treatment that is manifestly excessive.22
[31] In assessing whether there has been a breach of s 9, relevant factors may include the nature of the impugned conduct, the state of mind of the party responsible for the conduct, and the effect of the conduct on its victims.23
Section 23(5)
[32] The threshold for a breach of s 23(5), while high, is considerably lower than for s 9. Section 23(5) is engaged by conduct that is regarded as unacceptable in contemporary New Zealand society (though not rising to a level deserving to be called outrageous).24 It captures conduct “which lacks humanity, but falls short of being cruel; which demeans the person, but not to an extent which is degrading; or which is clearly excessive in the circumstances, but not grossly so”.25
[33] Section 23(5) responds to the special vulnerability of prisoners by imposing a positive duty on the Crown to treat them humanely.26 That positive duty is an objective baseline that must be met.27 Failure to meet this standard will be a breach, regardless of whether that failure was intentional or inadvertent.28 In other words, the Crown’s state of mind goes to the degree of its culpability but not liability.29
[34] To determine whether the impugned conduct amounts to a breach of s 23(5) requires an evaluative exercise that is highly contextual and fact specific.
[35] Breaches of minimum standards relating to prisoners will be highly relevant to a breach of s 23(5).30 As Elias CJ said in Taunoa, “legislative standards are perhaps the best guide to what is unacceptable in contemporary New Zealand” and are “highly
22 At [172] per Blanchard J, and [289] per Tipping J.
23 S v Attorney-General, above n 18, at [214], citing the Supreme Court in Taunoa at [291], [294] and [295] per Tipping J, and [353] and [360] per McGrath J.
24 Taunoa (SC), above n 5, at [11] per Elias CJ, and [170] per Blanchard J.
25 At [177] per Blanchard J.
26 At [78] per Elias CJ, [177] per Blanchard J, and [294] per Tipping J.
27 At [294] per Tipping J.
28 Pere v Attorney-General [2022] NZHC 1069, [2022] 2 NZLR 725 at [40].
29 At [40].
30 Taunoa (SC), above n 5, at [11] per Elias CJ, and [180] per Blanchard J.
significant” in assessing whether there has been a breach of ss 9 and 23(5).31 Likewise, a breach of relevant international standards, such as the United Nations Standard Minimum Rules for the Treatment of Prisoners (also known as the Mandela Rules),32 will be a strong indication of a breach.33
[36] Importantly, however, a breach of minimum requirements does not automatically lead to a breach of s 23(5).34 There is a severity threshold that must be met.35 In addition to being unlawful, the conduct must also be unacceptable. Purely technical breaches will not suffice. So, in Taunoa, McGrath J’s finding of a breach of s 23(5) turned primarily on an “assessment of the nature of treatment itself and its effects”, and less on the prison’s breaches of the regulations.36
[37] Equally, compliance with minimum standards does not preclude a breach of s 23(5). The content of fundamental rights is not defined by what Parliament or the Executive might prescribe as minimum standards of treatment from time to time, but rather the Bill of Rights itself. Were it not so, the content of the right could be defined indirectly through the promulgation of minimum standards. The Bill of Rights requires the Court’s assessment of the conduct or treatment, and whether it falls below a standard acceptable in contemporary New Zealand society.37 That threshold is the bottom line.
[38] The following factors are relevant in determining whether a failure to meet minimum standards of treatment is also a breach of s 23(5):
31 At [11].
32 United Nations Standard Minimum Rules for the Treatment of Prisoners GA res 70/175 (2015) [Mandela Rules].
33 As Ellis J explained in S v Attorney-General, above n 18, at [220(d)]: “Section 23(5) is based on art 10(1) of the ICCPR, and so the [Mandela Rules]… which are used by the Human Rights Committee as a tool for assessing art 10 ICCPR compliance, will influence New Zealand decisions on compliance with it.”
34 Taunoa (SC), above n 5, at [181] per Blanchard J.
35 S v Attorney-General, above n 18, at [245].
36 Taunoa (SC), above n 5, at [353].
37 In a different context, both the High Court and Court of Appeal have recently reinforced the importance of the Court’s constitutional duty to determine whether a limitation is demonstrably justified under s 5 without undue deference to Parliament or the Executive. See for example Yardley v Minister for Workplace Relations and Safety [2022] NZHC 291 at [61]–[63]; Four Aviation Security Service Employees v Minister of COVID-19 Response [2021] NZHC 3012; and Make It 16 Inc v Attorney-General [2021] NZCA 681 at [51]–[53]. This dichotomy is reflected, for instance, in the rare search and seizure cases where a lawful search is nevertheless found to be unreasonable in terms of s 21 of the Bill of Rights.
(a)The nature and severity of the treatment. This inquiry is directed at how the detainee was treated by the authorities, and how far that treatment deviated from the minimum standards required. Significant departures are likely to amount to a breach while merely technical failures will be insufficient.38
(b)The duration and frequency of the impugned conduct. While a one-off failure to meet the minimum requirements will generally not amount to a breach of s 23(5), the accumulation of multiple minor failings, or a failure repeated consistently over a period of time, may suffice.39
(c)The nature and extent of the impact on the detainee. The suffering of actual and serious negative effects, such as physical harm, mental trauma, embarrassment or humiliation, will be indicative of a breach.40 Mere annoyance or inconvenience on the other hand will usually not.
(d)Any particular vulnerability or condition of the detainee.41 In Taunoa, the placement of a prisoner on the BMR, whose physical and psychological conditions made him particularly vulnerable and unsuited to the regime, was held to constitute disproportionately severe treatment in terms of s 9.42
(e)The purpose of the treatment. Treatment which is not rationally connected to the purpose of the detention is likely to be found in breach of s 23(5), due to the absence of an obvious State interest in the acts or omissions in question.43
38 In Falwasser v Attorney-General [2010] NZAR 445 (HC), the use of excessive force and pepper spray by police on a detainee was found to be a clear breach of s 23(5).
39 The duration of time spent on the BMR was an aggravating factor in Mr Taunoa’s case: Taunoa (SC), above n 5, at [358] per McGrath J. In Reekie v Attorney-General [2012] NZHC 1867, routine strip searches over a 15-month period amounted to a breach of s 23(5).
40 In Attorney-General v Udompun [2005] 3 NZLR 204 (CA), the failure to provide sanitary products to an immigration detainee created hygiene issues and caused discomfort and personal embarrassment, and was found to constitute a breach of s 23(5).
41 S v Attorney-General, above n 18, at [246].
42 Taunoa (SC), above n 5, at [133] per Blanchard J.
43 S v Attorney-General, above n 18, at [247]. See also A v Capital Coast District Health Board
[2022] NZHC 2041 at [35] and [129], and B v Waitemata District Health Board [2016] NZCA
(f)The detainee’s own conduct. While the Supreme Court in Taunoa was careful to observe that a prisoner’s poor behaviour never justifies unlawful treatment, the majority noted that the alleged illegality cannot be considered in a vacuum, and the detainee’s behaviour could be relevant in some circumstances.44 Where a detainee’s own conduct necessitates certain conditions of confinement (for instance, segregation to protect others), that conduct must be relevant to determining whether there has been a breach of s 23(5).45 As s 23(5) is engaged by treatment that is “clearly excessive in the circumstances”, and is determined by reference to what is acceptable in New Zealand society, the plaintiff’s conduct is an important part of the factual matrix. The question will be whether the authority’s response to that behaviour was reasonable, proportionate and rationally connected to the purpose of the treatment.
Requirements for a breach of s 23(5) where there is no minimum entitlement
[39] Some of Mr Taylor’s claims involve an alleged breach of s 23(5) where there is no applicable minimum standard. One example is his claim in relation to fires in D Block in 2011 and 2012. Others include his claims relating to the transfer to Waikeria Prison, and the failure to provide him with adequate cutlery, sports equipment and refrigeration facilities.
[40] Recent decisions of the High Court have considered the approach to be adopted where there is no relevant prescribed standard. In S v Attorney-General, Ellis J observed that while many cases involving s 23(5) involve positive actions by a detaining authority:46
184, [2016] 3 NZLR 569 at [71], where the health and safety purposes behind restrictions to movement and access to smoking were considered relevant to whether there was a s 23(5) breach.
44 Taunoa (SC), above n 5, at [286]–[287] per Tipping J, and [357]–[358] per McGrath J.
45 McGrath J observed at [358] that Mr Taunoa, as a result of his own conduct, was at least partly responsible for the length of time he spent on the BMR. His conduct was therefore relevant, albeit to the s 9 inquiry, because it showed a lack of any deliberate intention by prison administrators to deny Mr Taunoa his rights. Ellis J drew a similar conclusion in A v Capital and Coast District Health Board, above n 43, at [108]–[110], finding that a mental health patient’s right under s 23(5) was not breached simply by dint of the time they were kept in a particular facility because their own conduct was the principal reason for that duration.
46 S v Attorney-General, above n 18, at [217].
… inaction, neglect or failure to take the necessary steps to ensure the humane treatment of a detainee have also been discussed by the courts, and positive duties recognised under s 23(5). There is no doubt … that s 23(5) requires the State not simply to refrain from inhumane conduct, but also to act to maintain minimum conditions of detention, as defined in the statute authorising the detention, subordinate legislation and/or any relevant standards.
[41] In cases of omission leading to a risk of harm, her Honour considered that a test based on the common law duty of detaining authorities to protect their charges from unnecessary harm can be applied to the positive State duty in s 23(5). Ellis J considered that in order to find a breach of any positive duty owed under s 23(5), there needs to be a clearer or more serious departure than is required to find a simple breach of the common law protective duty of care.47 She summarised the position in these terms:48
[Section] 23(5) also incorporates an obligation on a detaining authority to protect and keep detainees safe from harm. But absent any actual illegality, there must be an unacceptable and serious departure from the standard of care expected of a reasonable person in the position of the detaining authority in order to find that such a duty has been breached
[42] This principle is most apt to determine Mr Taylor’s claim under the Bill of Rights in relation to the fires lit by another inmate while he was held in D Block of Auckland Prison.
[43] S v Attorney-General required consideration of claims that there had been a failure to protect vulnerable in-patients from sexual assaults by other patients. That explains its focus on obligations of protection from harm and the standard applicable to cases involving a failure to take some positive action. While in the present case it might be considered that some of Mr Taylor’s claims involved the risk of mental distress or suffering, the nature of most of the alleged omissions are of a different quality to those in S. In the present case, in relation to claims where there is no relevant minimum standard prescribed and no question of immediate physical harm, I consider s 23(5) simply requires the broad contextual assessment noted at [37] above. This approach is consistent with that of the Court of Appeal in Attorney-General v
47 At [244].
48 At [245(h)].
Udompun, which involved consideration of conduct in the absence of a prescribed minimum standard, and the Supreme Court in Taunoa more generally.49
Burden and standard of proof
[44] The burden of proof in civil proceedings seeking to establish a breach of the Bill of Rights rests on the plaintiff.50 The standard of proof is proof on the balance of probabilities. In addition, proof to that standard:51
… must be commensurate with the seriousness of the allegation, but it is also to be remembered that in a case of this kind the Court is not concerned with the culpability of individual officials but with the protection of the rights of those who may have suffered from a breach, and with any necessary redress.
[45] Recently, the Court of Appeal in Wallace v Attorney-General has recognised the place of inference and shifting evidential burdens in a trial about human rights. Miller J observed:52
A court may also make robust and flexible use of evidential burdens in civil proceedings, effectively compelling a defendant to offer evidence to avoid inferences which would otherwise follow from an act or event. To the extent facts are within the State’s knowledge but not that of the plaintiff, an evidential burden may be consistent with effective enforcement of the right to life
49 Attorney-General v Udompun, above n 40, at [141]; and Taunoa (SC), above n 5, at [353] per McGrath J. See also Cripps v Attorney-General [2022] NZHC 1532 at [235]–[236].
50 Taunoa (SC), above n 5, at [182] per Blanchard J.
51 At [182].
52 Wallace v Attorney-General [2022] NZCA 375 at [104].
CHAPTER 1: DIRECTED SEGREGATION AND CONDITIONS OF DETENTION
Para No
Overview of the claim and the issues
Background in brief [46]
Mr Taylor’s claim and the defendant’s response [55]
Refinement of the claim and Mr Taylor’s case in closing [59]Legal framework of the corrections system [63] The common law and Bill of Rights protections for prisoners [64] The Corrections Act 2004 [65]
Security classifications, prisoner management plans and lawful orders [72] Internal protective mechanisms [75]
Directed segregation [80]
The Corrections Regulations 2005 [87]
The Prison Operations Manual [89]
Auckland Prison’s East Division in 2011 and 2012
The physical environment [90]
Making and implementing segregation decisions [102]
Part 1: Was Mr Taylor’s directed segregation unlawful?
Issues to be determined in this part [111] First issue: did Mr Taylor’s directed segregation amount to solitary confinement?
The evidence [112]
International consideration of solitary confinement [123]
Consideration [134]
Second issue: the first segregation period — 15 June to 28 June 2011
Mr Taylor’s claim [141]
Corrections’ account of the initial segregation decision [143] The National Office email to the Auckland Prison Manager [149] Mr Beales’ evidence [159]
Consideration [161]
The balance of Mr Taylor’s challenges to the initial period of segregation [170]
Third issue: subsequent segregation directions — 29 June 2011 to 7 September 2012
Overview and Mr Taylor’s case [179]
The Ombudsman’s report [181]
The Inspectorate of Corrections’ report [188]
The issues for consideration [192]
What risks did Mr Taylor present to the security and good order of the
prison? [194]Violence and threats to staff [199]
Contraband [204]
Flooding [207]Dirty protests [217]
Barricading and destruction of common property [219]
The frequency of Mr Taylor’s misconduct [225] Were Mr Taylor’s management plans tailored to his risk? [228] Did Mr Taylor understand the reasons for his directed segregation? [241]
Timing of supply of paperwork to Mr Taylor? [246]
Was the second segregation decision only supported by historical
incidents? [249]Cell confinement as well as directed segregation? [253] No reasons for a decision to deny rather than restrict association? [255] Was there a breach of regs 55 and 56? [260] Were the segregation decisions otherwise fair and reasonable? [267]
Overall conclusion on solitary confinement and the decisions to place
Mr Taylor on directed segregation [270]
Part 2: Was there an unlawful reduction in Mr Taylor’s conditions of
detention on directed segregation?
Mr Taylor’s claim [271]
The legal framework [277]
Minimum conditions of detention [278]
Physical requirements of Mr Taylor’s cells [282]
First issue: was there a failure to deliver Mr Taylor’s minimum
entitlement to recreation?
Recreation time between 15 June and 14 September 2011 [285]
Recreation time between 1 October 2011 and 30 May 2012 [293] The balance of Mr Taylor’s claim in relation to his recreation entitlement [309] Second issue: was there a breach of reg 62? [310] Third issue: are any of Mr Taylor’s specific claims made out? [317] Contact visits [322]
Exercise in the open air [325]
Access to direct sunlight [327]
No provision of exercise or sports equipment [330] Constructive use of time and access to TV, radio and books [332] Access to rehabilitative programmes [337]
Insufficient unlock time [343]
Hot meals and eating utensils [347]
Refrigeration of milk rations [351]
Phone calls [354]
Fourth issue: did Mr Taylor’s conditions of detention in the HCU
breach ss 9 or 23(5) of the Bill of Rights?
Overview [359]
The events leading up to and during Mr Taylor’s detention in the HCU [361] Summary of the Ombudsman’s findings in relation to the HCU [369] Were the conditions in the HCU in breach of ss 9 or 23(5)? [373]
Overall conclusion on Mr Taylor’s conditions of detention on directed segregation [386]
Part 3: Was there a breach of Mr Taylor’s right to natural justice? [390]
Part 4: Was there a breach of Mr Taylor’s right under s 23(5) of the Bill of Rights?
Summary of the findings so far [398]
The key arguments and issues to be determined [399]
Comparison with Taunoa [405]
Breach of s 23(5) of the Bill of Rights? [408]
Nature and severity of the treatment [413]
Duration of the conditions [418]
Nature and extent of impact on Mr Taylor and any vulnerability he
may have had [426]
Purpose of the treatment and Mr Taylor’s own conduct [429]
Overall conclusion on breach of s 23(5) [433]
Part 5: Relief [435]
Counsel:… they're saying essentially that they couldn’t give you your minimum entitlements because you'd barricaded yourself in your cell.
Mr Taylor: Well why do you think I was barricading myself in my cell? Because they weren’t giving me my minimum entitlements, so they're stopping me making calls that were necessary for my legal proceedings or stay in touch with my family or some other thing. Which came first, the chicken or the egg, you know, this is what they should’ve asked themselves. Any reasonable prison administrator would, otherwise this is just going to continue on and on and on and on.
Counsel: All right and so now we finally come to –
Mr Taylor. It’s a war of attrition, which is to nobody’s benefit…
OVERVIEW OF THE CLAIM AND THE ISSUES
Background in brief
[46] Mr Taylor’s first claim relates to a lengthy period he spent on “directed segregation” that began on 15 June 2011 and ended on 7 September 2012.
[47] Mr Taylor was sentenced to 12 years’ imprisonment on a range of serious offences in September 2006. In November 2006, he was transferred from Rimutaka Prison to the East Division of Auckland Prison, New Zealand’s only maximum security prison.
[48] Then, in June 2007, over a continuous 32-hour period police intercepted a number of communications between Mr Taylor and two other men in the form of calls and texts from a cellphone illegally in Mr Taylor’s possession in Auckland Prison.53 As a result, in September 2008, Mr Taylor was charged with conspiracy to supply methamphetamine and three charges of offering to supply the drug. He pleaded not guilty and elected trial by jury.
[49] On 15 March 2010, Mr Taylor was classified as a maximum security prisoner. He was transferred from C Block into D Block—the unit where the most challenging prisoners within the entire corrections system were managed.
53 Taylor v R [2012] NZCA 332 at [4].
[50] Mr Taylor was put on trial in February 2011. He was convicted on the charge of conspiracy and acquitted of the other charges. On 19 May 2011, just a month before the first period of directed segregation, Mr Taylor was sentenced by Wylie J to a further seven years’ imprisonment cumulative on his existing 12-year term.54 The net result for Mr Taylor was that he would be imprisoned until 12 October 2022 unless granted parole.
[51] Also relevant at this time was Corrections’ decision, announced in June 2010, to make New Zealand prisons smoke free from 1 July 2011. On 1 June 2011, the Chief Executive directed prison managers to introduce a rule prohibiting smoking in all areas of all prisons. Mr Taylor was not a smoker. However, he commenced proceedings in 2011 challenging what became known as the prison smoking ban. He successfully challenged the ban not once but twice.55
[52] Then, on 14 June 2011, prison officers carried out a targeted search of Mr Taylor’s cell. They found significant amounts of contraband, including a cellphone.
[53] The next day Mr Taylor was placed on directed segregation for 14 days pursuant to s 58(1)(a) of the Corrections Act, on the basis that the “security or good order of the prison would otherwise be endangered or prejudiced”. Had his segregation ended after just 14 days, matters may have worked out differently. However, the prison manager considered that continued segregation remained necessary because, in his view, Mr Taylor’s conduct continued to present a risk to the good order of the prison.
[54] If anything, Mr Taylor’s behaviour deteriorated. This was—at least in Mr Taylor’s eyes—legitimate protest against what he considered was unlawful treatment. As a result, Mr Taylor’s directed segregation was extended on seven further occasions.56 Within this period Mr Taylor spent two spells in an old at-risk unit— known as the High Care Unit or HCU—in a decommissioned area of the prison. In
54 R v Taylor HC Auckland CRI-2010-404-355, 19 May 2011. Following an appeal, that sentence was reduced to five and a half years’ imprisonment.
55 Taylor v Manager of Auckland Prison [2012] NZHC 3591; Taylor v Attorney-General [2013] NZHC 1659.
56 There were in fact subsequent segregation directions, but these were not put in issue by Mr Taylor in this proceeding.
total, Mr Taylor remained continuously on directed segregation for almost 15 months, until a Visiting Justice ordered that he be removed from segregation on 7 September 2012.
Mr Taylor’s claim and the defendant’s response
[55] In closing, Mr Taylor submitted that between 15 June 2011 and 7 September 2012, he was placed on directed segregation unlawfully, and that he was denied his minimum entitlements guaranteed by the Corrections Act and Regulations. He also submitted that, cumulatively, his conditions of detention gave rise to a breach of s 23(5) and, when he was housed in the HCU (for approximately 46 days), s 9 of the Bill of Rights. Specifically, he claimed:
(a)The directed segregation was unlawful because the requirements of the Act, the Corrections Regulations 2005 and the Prison Operations Manual were not complied with. He contends that his time on directed segregation amounted to a lengthy period of solitary confinement, given that his association and contact with other prisoners was proscribed.
(b)The reduction in his conditions of detention and the duration of directed segregation were a breach of the Bill of Rights, the Act, Regulations, Operations Manual and relevant international instruments.
(c)He claims he was denied his right to natural justice under s 27(1) of the Bill of Rights during his time on segregation on one occasion. He says Corrections failed to forward his submissions in August 2011 to the Visiting Justice reviewing a decision to extend his segregation.
[56] In response to Mr Taylor’s claims, Corrections argues that they are not borne out by the facts. The defendant says:
(a)The requirements of s 58 of the Act were complied with and, with the exception of a brief period between 15 June and 1 September 2011, Mr Taylor was provided with all of his minimum entitlements while on
directed segregation in accordance with the requirements of s 69.
(b)Mr Taylor’s conditions of detention do not approach the high threshold described in Taunoa for a breach of s 9 of the Bill of Rights, nor do they constitute a breach of the positive obligation in s 23(5). While Mr Taylor’s association with other prisoners was denied pursuant to a segregation direction, this did not amount to solitary confinement. To the extent there were breaches of the Act, and Regulations, the defendant submits these are isolated, minor in context, and have been remedied.
(c)Related to these specific points, Corrections argued that Mr Taylor’s credibility was in issue. It was said that Mr Taylor’s evidence was at odds with the contemporaneous prison records and with the evidence of prison officers. To the extent there was a difference of position, the defendant argued the Court should prefer the documentary record and the evidence of its witnesses.
[57]It follows that the issues I have to consider are:
(a)Were any of the decisions placing Mr Taylor on directed segregation unlawful?
(b)Beyond this, was there a reduction in Mr Taylor’s conditions of detention contrary to law?
(c)Was there a breach of natural justice by Corrections in failing to provide Mr Taylor’s submissions to a Visiting Justice?
(d)If I find for Mr Taylor on any of the preceding issues, does that amount to a breach of either ss 9 or 23(5) of the Bill of Rights Act?
(e)If so, what if any relief is appropriate?
[58] This chapter is structured in five parts to reflect these issues. Before turning to consider them, I begin with the refinements made by Mr Taylor to his claims during the trial, and the legal and physical setting in which they arise.
Refinement of the claim and Mr Taylor’s case in closing
[59] It will be remembered that after the trial began, Mr Taylor abandoned his claim of discrimination and narrowed his s 9 claim to his time in the HCU. By closing, the balance of his claims in this chapter were advanced under s 23(5) of the Bill of Rights.
[60] In addition, while Mr Taylor was subject to eleven discrete periods on directed segregation between 15 June 2011 and 26 November 2012, early in the trial he confined his claim to the first eight segregation periods, ending on 7 September 2012.57 He did so because those periods were the subject of investigation by both the Ombudsman and an Inspector of Corrections.
[61] While Mr Taylor pleaded in the amended statement of claim that the directed segregation decisions were unlawful because “the requirements of the Act, Regulations and Prison Operation Manual were not complied with”, the challenge was not really to the underlying merits of each segregation order. Rather, Mr Taylor’s focus was the process by which each decision was made, documented, or implemented. This aspect of the claim is wholly reliant on the findings of the Ombudsman and, to a much lesser extent, the Prison Inspectorate.
[62] Finally, while Mr Taylor opened the trial on the basis that he accepted the initial segregation decision (covering the period 15–28 June 2011) was lawful, that position changed by closing. No criticism can be made of this because the change of position arose from the discovery by the defendant of an important email chain during the course of the trial.
57 First period: 15 June to 28 June 2011 (decision of Prison Manager Beales); second period: 29 June to 14 July 2011 (decision of Prison Manager Beales); third period: 15 July to 14 August 2011 (decision of Prison Manager Beales); fourth period: 15 August to 14 September 2011 (decision of Acting Prison Manager Sherlock); fifth period: 15 September to 14 December 2011 (decision of Visiting Justice Greenbank); sixth period: 15 December 2011 to 13 March 2012 (decision of Visiting Justice Sage); seventh period: 13 March to 11 June 2012 (decision of Visiting Justice Sage); eighth period: 12 June to 7 September 2012 (decision of Visiting Justice Sage, who also revoked the segregation when Corrections sought approval for a further period).
Legal framework of the corrections system
[63] The corrections system operates under a legal framework that imposes obligations on prison staff in relation to decision-making, the conditions in which prisoners must be held, and the minimum entitlements they are to receive.
The common law and Bill of Rights protections for prisoners
[64] The starting point is ss 9 and 23(5) of the Bill of Rights. As noted already, these provisions are fundamental protections for people deprived of their liberty. In addition to these important constitutional protections, sentenced prisoners retain all civil rights which have not been removed by law.58 As Lord Steyn observed:59
A sentence of imprisonment is intended to restrict the rights and freedoms of a prisoner. Thus the prisoner’s liberty, personal autonomy, as well as his freedom of movement and association are limited. On the other hand, it is well established that “a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication”.
The Corrections Act 2004
[65] The purpose of the corrections system, and the principles guiding it, are set out in ss 5 and 6 of the Act. The purpose of the system is to improve public safety and contribute to the maintenance of a just society by:60
(a)ensuring that sentences imposed by the courts “are administered in a safe, secure, humane and effective manner”;
(b)requiring prisons to be operated in accordance with rules in the Act and Regulations. Those rules are explicitly said to be based, amongst other things, on the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules);61
(c)assisting in the rehabilitation of offenders and their reintegration into
58 Taunoa (SC), above n 5, at [97] per Ellis CJ, citing Raymond v Honey [1983] 1 AC 1 at p 10 per Lord Wilberforce; and Chief Executive v Department of Corrections v Smith [2020] NZCA 674 at [8].
59 R v Secretary of State for the Home Department ex parte Simms [2000] 2 AC 115 (HL) at 120.
60 Corrections Act 2004, s 5(1).
61 Mandela Rules, above n 32.
the community, where appropriate, and so far as is reasonable and practicable in the circumstances and within the resources available, through the provision of programmes and other interventions; and
(d)providing information to the courts and Parole Board to assist them in decision-making.
[66] The statutory principles guiding the operation of the corrections system include:
(a)that the maintenance of public safety is the paramount consideration in decisions about the management of prisoners;62
(b)the corrections system must ensure fair treatment of prisoners by providing them with information about the rules, obligations, and entitlements that affect them, and by ensuring that decisions about them are taken in a fair and reasonable way and that they have access to an effective complaints procedure;63
(c)that sentences are not administered more restrictively than is reasonably necessary to ensure the maintenance of the law and the safety of the public, corrections staff, and persons under control or supervision;64 and
(d)that offenders must “so far as is reasonable and practicable in the circumstances within the resources available”, be given access to activities that may contribute to their rehabilitation and reintegration.65
[67] In addition, under s 6(2), those exercising powers and duties under the Act— including the discretion to segregate prisoners under s 58—must take into account the applicable guiding principles “so far as is practicable in the circumstances”.
62 Corrections Act, s 6(1)(a).
63 Section 6(1)(f).
64 Section 6(1)(g).
65 Section 6(1)(h).
[68] The Act also provides that important statutory powers affecting prisoners are delegated to prison managers. The prison manager of each prison is appointed by the chief executive of the Department of Corrections.66 A prison manager’s functions under s 12 include ensuring that the prison operates in accordance with the purposes and principles in ss 5 and 6, making rules appropriate for the prison and for the conduct and safety of the prisoners under s 33, and ensuring the safe custody and welfare of the prisoners. The powers and functions of a prison manager (other than the power to make rules under s 33) may be delegated to an employee.67
[69] Judicial decisions, especially concerning judicial review of decisions by prison managers and prison staff, highlight two competing factors. On the one hand, a margin of appreciation is often afforded to institutional decision-makers reflecting that they, rather than a judge, are best placed to make decisions concerning a dynamic environment involving the allocation of resources (including staff) where those matters affect the security and good order of a prison.68 As Katz J observed:69
The courts have recognised a wide range of factors that are relevant to the administrative decisions made in the course of the day-to-day operation of a prison, and the judgment and experience of the prison manager in assessing and weighing those factors should be given considerable deference.
[70] On the other hand, recognising both the vulnerability of those deprived of liberty to abuses of power, and the importance of fundamental human rights, where intervention is warranted it is the duty of the Court to intervene.70
[71] In addition to the Act and Regulations, the chief executive of the Department of Corrections may issue staff members with guidelines on the exercise of powers
66 Section 11(1).
67 Section 13.
68 Smith v Attorney-General [2017] NZHC 136, [2017] NZAR 331 at [127]–[132]; Mitchell v Attorney-General [2013] NZHC 2836 at [35] and [39]; Wellington International Airport Ltd v Commerce Commission HC Wellington, CIV-2011-485-1031, 22 December 2011 at [54]; Genge v Visiting Justice at Christchurch Men's Prison [2017] NZHC 3168 at [86], citing Taylor v Chief Executive of the Dept of Corrections [2011] 1 NZLR 112 (CA); Greer v Prison Manager at Rimutaka Prison HC Wellington CIV-2008-485-1603, 18 December 2008 at [9]; and Hudson v Attorney-General [2020] NZHC 3231 at [43].
69 Smith v Attorney-General, above n 68, at [127].
70 Taylor v Chief Executive of Department of Corrections [2015] NZCA 477, [2015] NZAR 1648 [Taylor (Media interview judgment)] at [89]; Taylor v Chief Executive of Department of Corrections [2016] NZHC 1805 [Taylor (STURP judgment)] at [1]–[4]; and McEwen v Spring Hill Corrections Facility Department of Corrections [2020] NZHC 724 at [55]–[58], referring to McGrath J’s separate judgment in Drew v Attorney-General [2002] 1 NZLR 58 (CA) at [85]–[86].
under the Act, and prescribe procedures to be followed and standards which are to be met.71 These operational guidelines are contained in a document known as the Prison Operations Manual (commonly referred to as “POMS”, but in this judgment I will refer to it as the Operations Manual).
Security classifications, prisoner management plans and lawful orders
[72] Every prisoner serving a sentence of imprisonment of three months or more is assigned a security classification pursuant to s 47. That classification reflects the risk a prisoner poses while inside or outside the prison, including the risk of escape. There are five security classifications: maximum, high, low-medium, low and minimum.
[73] Pursuant to s 51, an individual “management plan” must be devised for every prisoner.72 Each plan must be prepared and revised at regular intervals and in accordance with the Operations Manual. In addition, each plan must:73
(a)be based on assessment of the prisoner’s needs, capacities, and disposition;
(b)make provision for the prisoner’s safe, secure and humane containment;
(c)outline how the prisoner can make constructive use of his or her time in prison;
(d)outline how the prisoner can be prepared for eventual release and reintegration into the community; and
(e)be consistent with the resources available to the chief executive to manage the prisoner.
[74] The Act also imposes obligations on prisoners. One important to the present case is that contained in s 40, which provides that prisoners must promptly obey every
71 Corrections Act, s 196(1).
72 At least for those serving a term of imprisonment of more than two months: s 51(1)(a).
73 Section 51(4)(a)–(f).
lawful order given to them by a corrections officer or staff member. It is a disciplinary offence to disobey such a direction.74
Internal protective mechanisms
[75] Reflecting New Zealand’s international obligations to treat those deprived of liberty with dignity and humanity, the Act contains a hierarchy of supervisory and protective measures.
[76] Every prison must have an internal complaints system for prisoners that allows complaints to be dealt with on a formal basis in a fair, timely and effective manner and without fear of adverse consequences.75 For decisions affecting prisoners within the appropriate scope of a prison manager’s discretion, the appropriate avenue of challenge is generally through internal complaint mechanisms.76
[77] Visiting Justices have a wide range of powers. These include visiting and inspecting the prison at their discretion, interviewing prisoners, examining the treatment and conduct of prisoners, inquiring into all alleged abuses within a prison, dealing with offences against discipline by prisoners, and reporting to the chief executive on any of these matters.77 As we will see, some important decisions affecting segregated prisoners must be made by a Visiting Justice rather than a prison manager.78 Section 19 provides that every District Court Judge is a Visiting Justice for every prison. In addition, the Governor-General may on the recommendation of the Minister of Justice appoint a Justice of the Peace or a Barrister and Solicitor of the High Court to be a Visiting Justice for every prison.
[78] In addition to Visiting Justices, inspectors of corrections are also appointed by the chief executive.79 Unlike Visiting Justices, inspectors are employees of the Department. Inspectors also have wide powers, which include inspecting any prison
74 Section 128(1)(a).
75 Sections 152 and 153.
76 Mitchell v Attorney-General, above n 68, at [39]. The prison complaints system is subject to oversight through the Prison Inspectorate (156) and the Office of the Ombudsman (s 153).
77 Corrections Act, s 19(4).
78 See below at [179]. In particular, while the initial decisions to segregate a prisoner for a total period of three months rests with a chief executive, once that time-limit has been reached, any further extension of directed segregation can only be made by a Visiting Justice.
79 Corrections Act, s 28.
at their discretion, interviewing any prisoner, examining the treatment and conduct of the prisoners and inquiring into all abuses or alleged abuses relating to the management of prisoners. Inspectors may also take evidence under oath and provide reports to the chief executive on any matters falling within their powers and functions.80
[79] Finally, the entire corrections system is also subject to the Ombudsman’s supervision. The chief executive and the Chief Ombudsman are required to enter into an agreement under s 160 to facilitate access by the Ombudsman’s office to complainant prisoners, their records, and prison sites and facilities. The Ombudsman also acts as the National Preventive Mechanism, which examines and monitors the treatment of persons detained in prisons for the purposes of the Crimes of Torture Act 1989. As part of this role, the Ombudsman regularly examines the conditions of detention at prisons and the treatment of prisoners.81 Ombudsmen also routinely make recommendations regarding the improvements of conditions and treatment of prisoners, and to ensure that prisoners’ treatment is in keeping with New Zealand’s international obligations.
Directed segregation
[80] Segregation of any kind involves the denial or restriction of direct physical access between prisoners. Simply put, it means two prisoners cannot occupy the same room or space together. Sections 58–60 of the Act provide for three types of segregation. Mr Taylor’s arose under s 58, which provides:
58 Segregation for purpose of security, good order, or safety
(1)The prison manager may direct that the opportunity of a prisoner to associate with other prisoners be restricted or denied if, in the opinion of the manager,—
(a)the security or good order of the prison would otherwise be endangered or prejudiced; or
…
80 Section 29(1).
81 Crimes and Torture Act 1989, s 27.
[81] Where a direction is made by the prison manager under s 58(1), the prisoner must be promptly given the reasons in writing, and the chief executive must be promptly informed of the direction and the reasons for it.82 Pursuant to s 58(3), further important procedural safeguards are put in place:
(a)First, any direction by a prison manager placing a prisoner on directed segregation must be revoked if there ceases to be any justification for continuing the order.83
(b)The order may be revoked at any time by the chief executive or a Visiting Justice.84 In Mitchell v Attorney-General, the Court recognised that a prisoner subject to directed segregation has a statutory right of review if they request it.85
(c)The order expires after 14 days unless, before it expires, the chief executive (or their delegate) directs that it continue in force.86
(d)If the order for directed segregation continues beyond 14 days, the order must:
(i)be reviewed by the chief executive at intervals of not more than one month; and
(ii)expire after three months unless a Visiting Justice directs that it continue in force.87
(e)Finally, where a period of directed segregation does not expire after three months, it must be reviewed by a Visiting Justice at intervals of not more than three months.88
82 Corrections Act, s 58(2).
83 Section 58(3)(a).
84 Section 58(3)(b).
85 Mitchell v Attorney-General [2015] NZHC 3295 at [18].
86 Corrections Act, 58(3)(c).
87 Section 58(3)(d)(i) and (ii).
88 Section 58(3)(e).
[82] It follows that the power to keep a prisoner in directed segregation under s 58 is removed from the chief executive and vested in a visiting justice once the order has continued for three months. It will also be evident that s 58 imports a broad subjective standard. What matters is the “opinion of the manager” on whether the security or good order of the prison would be endangered or prejudiced without a directed segregation order. Parliament’s use of a subjective standard confirms a policy choice between the need to ensure adequate protection against abuse of power while acknowledging prison managers and their staff are better placed to make decisions about the day-to-day management of a prison using limited resources.89
[83] While s 58 requires a chief executive to be properly informed of a directed segregation order and the reasons for it, in practice the function is delegated to another senior member of corrections management. In Mr Taylor’s case that was generally the Acting Assistant Regional Manager.
[84] A direction to restrict or deny association with other prisoners does not necessarily mean a physical removal of the prisoner away from other prisoners, or the movement of the prisoner into a new cell. Sometimes, a prisoner on directed segregation will remain in the cell they routinely occupy, but their time out of their cell (or “unlock” time) is managed around other prisoners. And, as noted, directed segregation is not a form of punishment. It is a prison management tool designed to enable the orderly management of prisons and to diffuse potential flashpoints.90
[85] In contrast, bad behaviour warranting a formal response is dealt with through a separate prison disciplinary process, itself prescribed in the Corrections Act.91 The Act defines a number of prison “offences” which may be committed by prisoners. They include disobeying a lawful order; offensive, threatening, abusive or intimidating conduct; communicating with any person outside prison without authority using a telephone; and possessing “contraband”.92 Minor or unintentional breaches of discipline are required to be dealt with by an officer informally, and usually involve
89 For a discussion of the principles applicable to subjective legislative powers, see the recent decision of the Court of Appeal in Idea Services Ltd v Attorney-General [2022] NZCA 470 at [51]–[54].
90 Mitchell v Attorney-General, above n 85, at [4].
91 Corrections Act, pt 2 subpart 5.92 Section 128(1)(a), (c), (d) and (f).
an instruction to the prisoner to correct their behaviour.93 However, more serious offences can be dealt with through more formal procedures. A “hearing adjudicator” may conduct a hearing in relation to a misconduct charge or, in the case of more serious matters, they may be referred to a Visiting Justice to be determined at a hearing.94 If a Visiting Justice finds an offence proved, they may impose a penalty known as “cell confinement” for a period not exceeding the 15 days. As we will see later, at least at Auckland Men’s Prison in 2011 and 2012, a sentence of cell confinement was usually served in “the pound”, a separate area of the prison specifically designed for prisoners undertaking punishment.
[86] Where a decision is made to deny rather than restrict a prisoner’s ability to associate with other prisoners, the health centre manager must be notified “reasonably promptly” after the prisoner is placed in a cell.95 The prison manager or an officer authorised by them must also visit every segregated prisoner at least once a day.96
The Corrections Regulations 2005
[87] In addition to the Act, the Corrections Regulations 2005 set out a number of requirements in relation to the treatment and conditions of detention of segregated prisoners.97 Generally speaking, the Regulations provide higher levels of detail which enable the high-level rules, rights and procedures in the Act to be given substance. For instance, the Regulations set out a range of mandatory items, features and standards that segregation cells must include.98
[88] An important aspect of Mr Taylor’s claim arises from reg 62(1). It requires that a prisoner subject to a segregation direction must be detained “so far as practicable in the circumstances and if it is not inconsistent with the purposes of the segregation direction” under the same conditions as if he or she “were not subject to a segregation direction”. Additionally, a prisoner under directed segregation must not be denied
93 Section 132(1).
94 Section 137.
95 Corrections Regulations 2005, reg 55.
96 Regulation 56.
97 Part 6.
98 Regulations 57–59, and sch 2 pts A and B.
access to activities consistent with the fulfilment of their prisoner management plan simply because they are subject to a segregation direction.99
The Prison Operations Manual
[89] The Operations Manuals, as noted, are guidelines issued by the chief executive under s 196 of the Corrections Act. The Manual applicable at the relevant time set out requirements for the making of segregation directions, as well as requirements for segregated prisoners. The requirements of the Manual understandably reflect the requirements of the Act and Regulations. While Mr Taylor referred to the Manual in his statement of claim and in opening, he spent relatively little time on the document in evidence or closing. To the extent I need to consider the requirements of the Manual, I do so when considering Mr Taylor’s specific claims.
Auckland Prison’s East Division in 2011 and 2012
The physical environment
[90] Throughout the period of Mr Taylor’s directed segregation claim he was accommodated in blocks and cells in the East Division of Auckland Prison. East Division was the only specialist maximum security facility for men in New Zealand. It was constructed in 1969 and remained operational until 2018, when construction of a new maximum security facility at Auckland Prison was completed.100
[91] The division was made up of four blocks: A, B, C, and D. Each block consisted of four landings, which each contained 12 individual cells. East Division also had three other blocks: the Special Needs Unit, which housed prisoners who had been treated by forensic mental health services or were otherwise vulnerable; the old High Care Unit (HCU); and the Detention Unit or “separates area”, known colloquially as “the pound”, where prisoners were relocated to serve sentences of cell confinement after they had been found guilty of a prison offence.
99 Regulation 62(2).
100 East Division is in the process of being demolished.
[92] When Mr Taylor was on directed segregation in 2011 and 2012, he was accommodated in his usual cell in D Block, but was occasionally relocated to the HCU or (for shorter periods) the Detention Unit.
[93] D Block housed mainly maximum security prisoners, as well as high security prisoners who were on the verge of becoming maximum security due to their behaviour in prison. The classification of a prisoner as “maximum” or “high” security relates to the risk the prisoner presents within the prison environment rather than a description of the facility in which they are accommodated. And while A, B, C and D Blocks were all in East Division, D Block housed the maximum security prisoners who posed the greatest security risks. In short, it held the most dangerous and difficult prisoners in the prison system, and those with the greatest management needs.
[94] Although the pathways into prison for those in D Block varied, many were violent and volatile. As the prison manager at the time, Mr Tom Sherlock, explained in evidence, it was this aspect of “volatility, their inability to control their anger” which meant there was a heightened risk which had to be managed. Maximum security prisoners required different and more resource-intensive management than prisoners with a “high” security classification. This included higher staff to prisoner ratios and more precautions in terms of prisoner movements and association with other prisoners. Mr Sherlock explained that the movement of maximum security prisoners involved a staff to prisoner ratio of at least three to one. This arose whenever a prisoner was moved from their cell to the yard, a workshop or for a phone call. This could be contrasted with the staff ratio for high security prisoners, where normally there would be three staff managing an entire wing of 12 prisoners in a yard.
[95] Given the behavioural issues of prisoners in D Block, many of them were on directed segregation at any one time. This complicated movements in the unit, as prisoners on directed segregation were required to be managed away from other prisoners. Another senior Corrections Officer, Mr Uila Kirifi, who worked in D Block during the relevant period, explained in evidence that the high staff ratios made unlocks, movements within the unit and the facilitation of minimum entitlements more complex:
[I]f you’ve got 12 prisoners on the landing with denied association, that’s 12 different unlocks we’ve gotta do… so that’s 12 rec rooms you know we’ve gotta schedule… but if you allowed for association of three prisoners, that’s only four unlocks… so it’s certainly makes our job easier in that regard, but again it’s just the risk factors that we sort of have to consider.
[96] Even for those prisoners who were not on segregation, the ordinary D Block conditions were of necessity very restrictive. Indeed, in closing Mr Taylor acknowledged this point:
… I had been in D Block since 15 March 2010. The “ordinary” D Block conditions were already very restrictive. The only significant way they differed from segregation was in the hours of unlock and that up to 6 prisoners could associate together [in the yard].
[97] While D Block held the highest risk prisoners, the aim was to improve a prisoner’s behaviour so they could reduce their security classification from maximum to high. This would permit them to progress from D Block into one of two “progression units”, being A or B Block. In these blocks prisoners could be managed with a lower staff ratio, and had greater access to one-on-one treatment, work, skills development and other opportunities. If a prisoner continued to cope with greater degrees of association with other prisoners and autonomy, they would ordinarily be moved to what was then the West Division. This division consisted of units opened up to 48 prisoners at a time, and which offered still greater opportunities for programmes, work and the possibility of time off-site.
[98] Apart from the high-risk prisoners held in D Block, the architecture of the unit itself also created risks for prisoners and Corrections officers. The division had four levels. Prisoners were detained in cells on the upper three floors, while the bottom floor contained recreation areas and workshops. Mr Taylor’s cell was on the top story.
[99] Prisoners (and their escorts) moving from their cell to yards or a recreation area were required to go down a single flight of stairs. An added difficulty presented by the multi-floor construction was that prisoners held on upper levels—like Mr Taylor— who were inclined to flood their cells could affect not only prisoners held on their own landing, but also those on floors below. Water could migrate freely out of the grill door of one cell into the landing, and from there flow to adjacent cells before eventually flowing downstairs onto other landings.
[100] Related to the risk of flooding was the difficulty that existed in turning water off to individual cells when a prisoner chose to flood their cell, and the apparent ease with which prisoners could also set-off the sprinkler in their cell.
[101] In addition, D Block cells did not have their own showers. That meant for prisoners to be able to attend to their basic daily hygiene they had to be unlocked to go to a shower area, creating an added demand on resources.101
Making and implementing segregation decisions
[102] The requirements of the Act, Regulations and Operations Manual in relation to segregation decisions were, in practice, met through a series of standardised forms produced by Corrections. Other than Mr Taylor’s first segregation decision, the first step in the decision-making process was the preparation of a memorandum by Auckland Prison’s residential manager (at first Mr Tony Queree, but in later periods Mr Kirifi) to the prison manager, recommending an extension of Mr Taylor’s directed segregation.
[103] The memoranda set out a summary of Mr Taylor’s behaviour and response to segregation, before ending with a recommendation for the Prison Manager. The memorandum would be reviewed by the Prison Manager and, where the recommendation for segregation was accepted, a series of forms prescribed by the Operations Manual recording the decision, its reasons and consequences would then be prepared. The forms also reflect multiple levels of consideration and approval.
[104] The initial decision to place a prisoner under directed segregation under s 58 was—in Mr Taylor’s case—recorded in a form with the somewhat inelegant title: M.01.03.Form.01 Initial segregation for purpose of security, good order, or safety form.
101 The evidence indicates that the physical impediments created by the former layout of East Division has now largely been addressed as a result of the new single-story maximum security prison which has been constructed. Behaviour such as flooding has less impact on the security and functioning of the unit, and on other prisoners and their access to minimum entitlements. The new prison also has cells with their own showers and sprinklers designed to make it more difficult for prisoners to set them off.
[105] The form contemplated supporting documentation would be attached to it, such as misconduct and incident reports recording the behaviour leading to the segregation direction. The form sets out first the decision to place a prisoner on directed segregation and, where the prison manager was not the first decision-maker, it also provided for review and approval of the decision by them.
[106] Two further forms were also required when a segregation direction was made. The first, M.01.03.Form.08 Prison manager’s notification to the prisoner of the prisoner’s placement on segregation or continuation of segregation, enabled the prisoner to be promptly given the reasons for their segregation, as required by s 58(2)(a).
Accordingly, the issues for consideration are whether there has been a breach of s 23(5), and the appropriate remedy.
Strip searches
What happened
In early 2018, Mr Taylor was required to undergo nine strip searches by prison officers. Six of the searches were carried out between January and February 2018 by staff in the Miro Unit at Waikeria Prison before and after prisoner visitations.
The other three strip searches occurred on 19, 20 and 21 March 2018, before Mr Taylor was transferred from Mount Eden Corrections Facility to the Auckland High Court. Ironically, he was travelling to Court to represent himself before Peters J in a civil claim against Corrections about an unlawful strip search of a large number of prisoners, in which he was ultimately successful.322 I return to that decision in more detail below.
Mr Taylor filed formal complaints about the strip searches in issue in this case which resulted in investigations by the Prison Inspectorate. On 13 March 2018, the Principal Prison Inspector, Andy Fitzharris, wrote to Mr Taylor recording that
The right to be secure against unreasonable search and seizure and the right of everyone deprived of liberty to be treated with humanity and with respect for the inherent dignity of the person.
Taylor v Attorney-General, above n 304.
Corrections accepted the searches at Waikeria Prison were unreasonable. He advised that as a result of the complaint, the Prisoner Director “has reviewed the strip search policy for Waikeria Prison and a new policy is now in place”. Mr Fitzharris also noted:
Mr Cronje has apologised to you on behalf of the Department and you have accepted this apology.
Mr Ekins [a Prison Inspector] informs me that during the AVL you accepted the Department's apology and stated that this would be an end to the matter.
On 13 June 2018, Mr Fitzharris wrote a further letter in relation to the complaints arising from Mr Taylor’s treatment by prison staff at Mount Eden. With regard to the three strip searches there, he said:
It is accepted that staff at MECF incorrectly interpreted Section 98 of the Corrections Act 2004 and the requirement to strip search you whilst being transferred from custody to court was not mandatory.
This issue has been addressed by the management team at MECF and all staff have received guidance on the correct interpretation of the strip search policy.
On 4 September 2018, the Prison Director at Mount Eden, Mr Dennis Goodin, wrote a letter to Mr Taylor acknowledging and apologising for the wrongful strip searches and use of handcuffs by Mount Eden staff. He concluded:
I apologise if the attitude and practices of the officers was humiliating and demeaning for you. That should never occur when staff interact with prisoners. I suspect that in your circumstances, being anxious to “do things by the book”, the officers became more officious than efficient and effective. I am sorry if that was the case. Renewed instructions have been published since the incident reiterating the obligations and responsibilities of staff.
Legal framework for conducting strip searches
Section 98 of the Corrections Act provides for scanner, rub-down, strip and x-ray searches. Strip searches are the most invasive form of search and require the prisoner to remove all their clothes and to follow instructions that will enable the officer to see all parts of their body.323
Section 94 imposes requirements on how strip searches must be conducted. Strip searches may only be carried out by a person of the same sex as the person being
At [32]; and s 90 of the Corrections Act.
searched and must be conducted “with decency and sensitivity and in a manner that affords to the person being searched the greatest degree of privacy and dignity consistent with the purpose of the search”. They must be conducted in the presence of another officer or constable and must not be carried out in view of any person of a different sex to the person being searched, or another prisoner.
Strip searches are either mandatory or discretionary. Mandatory strip searches are only required when a prisoner is first admitted to prison or transferred from another prison, and in specified circumstances for at-risk prisoners.324 In all other cases, the decision to conduct a strip search is discretionary. Under s 98(3), an officer may conduct a strip search:
(a)if they have reasonable grounds for believing that the prisoner has an unauthorised item and have obtained the manager’s approval;325 or
(b)in the situations listed in s 98(6) which include, relevantly, immediately before a prisoner is brought before a court, and immediately before or after a person visits a prisoner.326
Importantly, s 98(5) provides that the discretionary power to conduct a strip search may only be exercised for the purpose of detecting any unauthorised item and if it is necessary in the circumstances for that purpose.327
The Court of Appeal has explained that whether a search is “necessary in the circumstances” requires a “very fact-specific inquiry” which must involve consideration of whether a less invasive search, such as a scanner or rub-down search, would suffice.328 Further, any decision must be made in light of two fundamental principles guiding the corrections system: the need for the fair treatment of persons
324 Corrections Act, ss 98(7) and (7A).
325 Section 98(3). Although an officer need not obtain approval where the delay in doing so would endanger the health or safety of any person or prejudice the maintenance of security at the prison: s 98(4).
326 Section 98(6)(g), (h) and (i).
327Section 98(5). In contrast, there is no such “necessary in the circumstances” requirement for the less intrusive scanner and rub-down searches which may be conducted at any time for the purpose of detecting any unauthorised item: s 98(1).
328 Forrest v Attorney-General [2012] NZCA 125, [2012] NZAR 798 at [14]–[15].
under control or supervision, and the need for decisions about those persons to be taken in a fair and reasonable way.329
Mr Taylor alleges, and the defendant accepts, that it was the officers’ failure to consider whether each strip search was necessary in the circumstances that rendered the searches unlawful in terms of s 98 of the Corrections Act and unreasonable in terms of s 21 of the Bill of Rights.
Against that background, I turn to consider the first issue: whether the searches were also a breach of s 23(5) of the Bill of Rights.
Did the strip searches breach Mr Taylor’s right under s 23(5)?
A breach of the Corrections Act, including the requirements for conducting strip searches, or a breach of s 21 of the Bill of Rights, will not inevitably constitute a breach of s 23(5).330 As noted, determining whether a breach of s 23(5) has occurred requires a fact-specific evaluative exercise.331
For example, in Forrest v Attorney-General, Mr Forest was subjected, along with other prisoners, to a single random strip search for the purpose of finding contraband.332 Chisholm J held that the strip search was a breach of s 21, but not of s 23(5).333 Mr Forrest did not appeal that finding to the Court of Appeal.334
Likewise, in Taylor v Attorney-General, Peters J held that a one-off prison-wide strip search of 209 prisoners, for the purpose of finding weapons and contraband, was unlawful and in breach of s 21.335 However, her Honour held there was no breach of s 23(5), noting that it was a one-off and short-lived search, was otherwise conducted in
At [15].
Taunoa (SC) above n 5, at [31] per Elias CJ, at [181] per Blanchard J, at [296] per Tipping J, at
[386] per Henry J.
See the general discussion of s 23(5) above at [34]–[38].
Forrest v Attorney-General HC Christchurch CIV-2009-409-2373, l November 2010 at [7].
At [66].
On appeal, Mr Forrest successfully argued that a second strip search was also unlawful, but did not pursue the argument in relation to s 23(5): Forrest v Attorney-General (CA), above n 328.
Taylor v Attorney-General, above n 322, at [54] and [60].
accordance with the Act, and did not result in significant or ongoing harm to the plaintiffs .336
A breach of s 23(5) was found in Reekie v Attorney-General, where a prisoner was routinely strip searched over a 15-month period without consideration of whether a strip search was necessary on each occasion.337 Wylie J found that the strip searches were not part of a deliberate policy to reduce Mr Reekie’s resistance, or to dehumanise him, and that some might well have been necessary in the circumstances. Nevertheless, his Honour concluded:338
… the necessity for a strip search should have been considered on an inmate by inmate basis and on each occasion. There is no evidence that staff considered the necessity of the searches or what alternatives might have been available.
On the balance of probabilities, I accept that the routine strip searching which occurred was unlawful, and in breach of Mr Reekie's rights under s 23(5) of the New Zealand Bill of Rights Act.
Turning to the strip searches in issue, Mr Taylor argued that they were carried out pursuant to unlawful blanket strip search policies. He emphasised that Corrections’ repeated failure to comply with strip search requirements, despite numerous admonishments by the courts, is an aggravating factor that demonstrates its disregard for prisoners’ rights. As he put it, “Corrections seems incapable of learning from numerous prior cases where it has breached prisoner’s rights in the most fundamental way”. Such consistent failures, combined with the intrusive and demeaning nature of strip searches and the vulnerability of prisoners, indicate a lack of respect for the dignity of those subjected to the searches.
In response, Corrections denies there were blanket strip search policies. Instead, once the failures to comply with strip search requirements were brought to Corrections’ attention, it apologised and provided additional training and guidance to staff.
336 At [69]–[76].
337 Reekie v Attorney-General, above n 39, at [265]. The routine searches occurred while Mr Reekie was confined, at various times, in the High Care and Special Needs units at Auckland Prison and Auckland Central Remand Prison. Mr Reekie claimed he was strip searched between two and six times per day, even when he had been constantly with staff, or in a pre-searched area. Mr Reekie was at a significant risk of self-harm and the defendant’s evidence was that routine searches were considered necessary to prevent him from obtaining even the “most innocuous items”.
338 At [265]–[266].
In the present case, the strip searches might have been permissible under s 98(6) of the Corrections Act in that they were carried out immediately before and after Mr Taylor received visitors, and immediately before he left prison to attend court. The error was the failure to consider whether the searches were reasonably necessary in the circumstances, as required by s 98(5). I accept those failures rendered the searches in breach of s 21 of the Bill of Rights Act.
While Mr Taylor alleged that Corrections had a nationwide policy of strip searching all prisoners in the situations referred to in s 98(6) without regard to whether that was reasonably necessary in the circumstances, there is no evidence to support the claim.339
However, it is evident that there were fundamental misunderstandings about the requirements of the Corrections Act concerning strip searches among the staff at Waikeria and Auckland prisons. Those misunderstandings were not isolated given the consistency with which the strip searches occurred over a three-month period at two different institutions. I also agree with Mr Taylor that it is concerning that such basic failures have continued to persist despite longstanding guidance from the courts about the legal requirements.
I accept Corrections’ submission that the searches were not carried out for an improper purpose, such as demeaning or degrading Mr Taylor. I also accept that Mr Taylor’s sole complaint concerns the failure to consider the necessity of the searches under s 98(5). I also accept that once the errors were brought to the prisons’ attention, Corrections accepted the searches were unlawful and apologised to Mr Taylor. It also reviewed and amended its strip search policies, and provided additional training and guidance to its staff.
Despite these factors, the number and frequency of the searches point to a breach of s 23(5). This was not an isolated incident. The facts suggest the problem was more
339 Under cross-examination, Mr Watson, the Prisoner Director at Waikeria Prison denied that there was a policy of searching prisoners before visits, describing the problem as “a failure by those officers to follow the instructions that have been given”.
likely to be systemic than confined to one or two staff-members who lacked adequate training or who had made a one-off mistake.
Strip searches are inherently demeaning. They involve a loss of privacy and dignity on the part of the individual. They are carried out under compulsion. While Parliament has authorised their use, it has also imposed constraints on the exercise of the power. It is appropriate that those exercising such powers do so strictly within the limits provided to them, and that they are adequately trained on the requirements of law.
While the seriousness of the conduct is nothing like that encountered by Mr Reekie, I am satisfied that given nine unlawful searches were conducted over a three-month period involving the same prisoner, at two different institutions, the conduct is sufficient to constitute a failure to treat Mr Taylor with humanity and with respect for the inherent dignity of the person. To find otherwise would in my view trivialise the right in issue.
Remedy
Given this finding, the remaining issue is the appropriate remedies to vindicate the rights.
A declaration is the appropriate starting point. There will be a declaration that nine strip-searches carried out on Mr Taylor unlawfully between January and March 2018 were contrary to his rights to be free from unreasonable search and to be treated with humanity and with respect for the inherent dignity of the person contrary to ss 21 and 23(5) of the New Zealand Bill of Rights Act.
The more difficult question is whether any further remedy is necessary.
The ability to award compensation to sentenced prisoners is constrained by the Prisoners’ and Victims’ Claims Act. A detailed analysis of the relevant provisions is unnecessary given the defendant accepts that compensation is likely appropriate in this case. In any event, I have considered the requirements in ss 13 and 14 of the Act and I am satisfied that Mr Taylor made reasonable use of the complaint mechanisms available
to him and that monetary compensation is necessary to provide effective redress for the strip searches.
An earlier tariff case for unlawful strip searches was Forrest. There, the Court of Appeal awarded the plaintiff $600 for two unlawful strip searches that occurred on the same day.340
In Taylor v Attorney-General, Peters J considered that an increased award of
$1,000 per plaintiff was necessary to vindicate the unlawful one-off search, saying:341
… “effective” redress requires an increase in the sum awarded, to bring home to the Department the importance of compliance with the legislation and of heeding what the Courts have now said regarding s 98 on several occasions.
Mr Taylor submits that public law damages of more than $1,000 are required “to bring home to Corrections it can no longer remain indifferent to serious breaches of prisoners’ rights” and to account for inflation.
Given the strip searches in question occurred before the release of Peters J’s decision in Taylor, I do not consider that a further increase in the tariff is warranted by this case. Nor do I consider that any adjustment for inflation is necessary. As the Court of Appeal noted in Gardiner, an arithmetical adjustment for inflation would lend “a false air of precision to the exercise and risk producing an end result that is too high when compared to subsequent cases”.342
That said, I do not consider it is appropriate to view the breach as an arithmetical exercise limited to a breach of s 21. For the reasons above, I have found that the frequency of the searches is sufficient to breach Mr Taylor’s right under s 23(5). I consider that an award of $1,000 for each of the nine unlawful strip searches is appropriate to provide effective redress and vindicate the breaches of s 21. An uplift of
$3,000 is then required to reflect the cumulative impact of the illegality and additional breach of s 23(5). The total public law damages awarded is therefore $12,000. This
Forrest v Attorney-General, above n 328, at [41].
Taylor v Attorney-General, above n 304, at [93].
Chief Executive of the Department of Corrections v Gardiner [2017] NZCA 608 at [69].
award also acknowledges the steps taken by Corrections following the breach, including the apology to Mr Taylor and steps to change its policy and training.
Use of mechanical restraints
What happened
Following the conclusion of the civil proceeding before Peters J in the Auckland High Court on 21 March 2018, Mr Taylor had to be transferred in a prison van from Mount Eden back to Waikeria Prison. Mr Taylor was placed in handcuffs for the journey, which took approximately three hours. This was so despite his protests that handcuffs should not have been used given his low security classification.
Mr Taylor filed a complaint which led to an investigation by the Prison Inspectorate. Following that process, Corrections accepted that Mr Taylor should not have been placed in handcuffs given his security classification. The Operations Manual prohibits the use of mechanical restraints on minimum and low security prisoners travelling in single-cell vehicles.343
Once again, the investigation prompted a review of the prison’s practices. In a letter of 13 June 2018, the Principal Inspector noted that Mr Goodin, the Director at Mount Eden, “has addressed this issue with the movement’s coordinator and all staff have been instructed to review each individual’s transportation schedule requirements on an individual basis”.
Did the use of mechanical restraints breach Mr Taylor’s right under s 23(5)?
While Mr Taylor’s amended statement of claim made further allegations about the conditions of the transfer, by the time of closing, this aspect of his claim was confined to the use of handcuffs in breach of the requirements of the Operations Manual. Accordingly, the key issue is whether that conduct constituted inhumane treatment in breach of s 23(5).
Whereas the default position is that prisoners with higher security classifications must be handcuffed throughout a transfer unless the instructions state otherwise.
The reason handcuffs were used on Mr Taylor is evident from the form prepared by Corrections staff prior to the transfer titled ‘Instruction for Escorts for Inter Prison Transfer’. While the form recorded that Mr Taylor’s security classification was “low”, it also identified that he was an escape risk. The ‘active alerts’ section included that he “broke out of handcuffs during escort 05-10-05” and “presented firearms to staff while on escort”. As such, the form recorded that high security handcuffs should be applied to Mr Taylor for the entire route at all times and removed only for meal breaks and at arrival at the destination prison.
The existence of an escape risk appears to be based on Mr Taylor’s escape attempt in 2005, more than 12 years earlier. In my view, that incident was historical and it was not appropriate to rely on it as the basis on which to apply manacles to Mr Taylor a decade later.
As a result, Mr Taylor was unreasonably required to wear handcuffs during the transfer. That undoubtedly would have made the journey more uncomfortable for him. However, I am not satisfied that this was inhumane treatment.
This was a one-off error. The Inspectorate investigated and found that it should not have occurred. Mr Goodin wrote to Mr Taylor to explain why the handcuffs had been used and acknowledged that a mistake had been made. He apologised and noted that “renewed instructions have been published since the incident reiterating the obligations and responsibilities of staff”. While under cross-examination by Mr Taylor, Mr Goodin reiterated his apology, for both the strip searches and the use of mechanical restraints. Mr Taylor accepted the sincerity of his apology and thanked him for it. He was right to do so as it clearly was a genuine apology.
In my view, Corrections’ conduct and response to its mistake was consistent with its duty to treat Mr Taylor humanely and with respect for his inherent dignity. Accordingly, I consider the use of mechanical restraints on Mr Taylor was not a breach of s 23(5). Given that finding, there is no question of damages. And given the apology and the nature of the mistake, I do not consider a declaration is warranted.
Conclusion and relief
For the foregoing reasons, I conclude that:
(a)the strip searches did not comply with the requirements in s 98 of the Corrections Act and were unlawful;
(b)the use of handcuffs during Mr Taylor’s transfer from Mount Eden Corrections Facility to Waikeria Prison was in breach of the Operations Manual given Mr Taylor’s security classification;
(c)the strip searches were unreasonable and in breach of s 21 of the New Zealand Bill of Rights Act. I make a declaration accordingly;
(d)collectively, they also amounted to a breach of s 23(5) of the New Zealand Bill of Rights. I make a declaration accordingly;
(e)compensation of $1,000 for each unlawful strip search is necessary to vindicate the breach of the s 21 right. Total damages of $12,000 are awarded to vindicate Mr Taylor’s rights under both ss 21 and 23(5); and
(f)the use of mechanical restraints did not amount to a breach of s 23(5) of the Bill of Rights.
CONCLUSION AND SUMMARY OF RESULTS
In his statement of claim, and to a lesser extent in his closing, Mr Taylor sought to aggregate allegations from all six chapters to support the cause of action under s 23(5).
An assessment of whether impugned conduct amounts to a failure to treat a claimant humanely requires a consideration of the treatment in its context. It is not generally appropriate to aggregate isolated aspects of detention over a long period to ascertain whether there has been a breach of the Bill of Rights. Such an approach focuses on matters that may be unconnected in time or circumstances, rather than the significance of the impugned treatment within its context. It risks overlooking other treatment consistent with the right. And without context it is not possible to determine whether the impugned conduct amounts to a breach of the s 23(5) right.
Many of the allegations covered in the six chapters are remote from each other, separated by significant periods of time or different circumstances. Some arose in different prisons when Mr Taylor’s security classification, and the conditions of his detention, were very different. All were advanced as discrete claims—the chapters in this judgment—and defended as such. While the first three chapters concern claims that have some relationship to one another, there is no proper connection between them and the events with which chapters 4, 5 and 6 are concerned.
It follows that I would not be prepared to bolster any of Mr Taylor’s unsuccessful s 23(5) claims by aggregating them. Regardless, in light of the findings in this judgment I would not have found that collectively they support a breach of the Bill of Rights.
Summary of result and orders
In summary, I have found:
Chapter 1: Directed segregation and conditions of detention
The Department of Corrections’ failure to provide Mr Taylor with his minimum entitlement to daily exercise while on directed segregation in 2011 and 2012 was a
failure to treat him with humanity and with respect for the inherent dignity of the person contrary to s 23(5) of the New Zealand Bill of Rights Act 1990.
Accommodating Mr Taylor in a cell with an operating and monitored CCTV camera while in the High Care Unit of Auckland Prison for periods of time in 2011 and 2012 was also a failure to treat him with humanity and with respect for the inherent dignity of the person contrary to s 23(5) of the New Zealand Bill of Rights Act 1990.
Declarations to that effect are now made.
In order to provide effective redress, I also award damages of $6,000 to Mr Taylor. I make no order in relation to interest.
Chapter 2: Fires
Mr Taylor’s claim is dismissed.
Chapter 3: The Truth newspaper ban
The decision to prohibit the Truth newspaper in the East Division of Auckland Prison was an unjustified limit on Mr Taylor’s right to freedom of expression under s 14 of the New Zealand Bill of Rights Act 1990.
A declaration to that effect is made.
No further remedy is necessary to provide effective redress.
Chapter 4: Rehabilitation and parole
Mr Taylor’s claim is dismissed.
Chapter 5: Transfer to Waikeria Prison
Mr Taylor’s claim is dismissed.
Chapter 6: Strip searches and mechanical restraints
I declare that subjecting Mr Taylor to nine strip searches while in the defendant’s custody between January and March 2018 amounted to a breach of ss 21 and 23(5) of the New Zealand Bill of Rights Act 1990.
I award Mr Taylor damages of $12,000.
The balance of Mr Taylor’s claims under this chapter are dismissed.
Costs
Costs are reserved pending further consideration. While Mr Taylor has had a measure of success, in the context of the claims he made it is very limited. I have also found that critical aspects of his case were exaggerated or simply untrue. Mr Taylor is to file any memorandum in support of an application for costs within 15 working days. The defendant is to reply (whether seeking or opposing costs) 15 working days thereafter. Any reply from Mr Taylor is to be filed 10 working days thereafter.
I will then determine costs on the papers, unless I consider a hearing necessary.
Isac J
Solicitors:
Meredith Connell, Auckland for Defendant
Appendix
COR.002.00069 (OBC) 9:29:16 Fingers of right hand flex COR.002.00069 (OBC) 9:30:08 Fingers of right hand flex COR.002.00097 (OBC) 9:31:00 Left middle finger flexes then extends COR.002.00097 (OBC) 9:31:04 Left middle finger touches thumb 3 x in succession rapidly COR.002.00097 (OBC) 9:31:07 Right thumb extends COR.002.00097 (OBC) 9:31:13 Left index finger extends COR.002.00097 (OBC) 9:31:17 Left hand and index finger extends, left wrist extends COR.002.00097 (OBC) 9:31:21 Left index finger extends COR.002.00097 (OBC) 9:31:30 Left ring finger touches thumb 2-3 times in succession rapidly COR.002.00097 (OBC) 9:31:37 Left thumb flexes COR.002.00097 (OBC) 9:31:43 Fingers on left hand flex and extend COR.002.00063 (OBC) 9:32:00 Nurse stops doing BP right elbow pointing to the ceiling being held there
by CO holding his hand
COR.002.00097 (OBC) 9:32:25 Right ring finger touches thumb COR.002.00097 (OBC) 9:33:39 Head is unsupported and held in position COR.002.00064 (OBC) 9:33:49 His head is partially flexed but less so than I would expect if he was
unconscious and being lifted in this position, unsupported
COR.002.00064 (OBC) 9:33:57 Head appears in line with his torso despite being unsupported and him
being lifted prone off the ground
COR.002.00064 (OBC) 9:34:05 CO ask for assistance to “control the head” which is done with right arm,
unclear where it is placed. Mr Taylor’s head is still.
COR.002.00096 (OBC) 9:34:23 Head moves from right to left to right (as CO is talking to Mr Taylor asking
him if he understands)
COR.002.00096 (OBC) 9:34:49 Solitary forceful expiration through pursed lips COR.002.00096 (OBC) 9:36:28 3 soft snoring breaths, no paradoxical chest movement COR.002.00096 (OBC) 9:36:45 Right little finger extends at PIPJ COR.002.00096 (OBC) 9:37:14 Tongue protrudes (as CO addresses him by name and crouches by his
head)
COR.002.00096 (OBC) 9:37:22 Head moves from left to right to left to right - shaking (as CO is talking to
Mr Taylor asking him if he is alright) then tongue back inside mouth
COR.002.00096 (OBC) 9:38:08 Tongue protrudes twice and head moves slightly to right COR.002.00096 (OBC) 9:38:20 Head moves slight to left COR.002.00096 (OBC) 9:38:37 Tongue protrudes COR.002.00096 (OBC) 9:38:39 Upper lip moves slightly COR.002.00096 (OBC) 9:38:54 Tongue retracts COR.002.00096 (OBC) 9:38:56 Swallows COR.002.00096 (OBC) 9:39:26 Head moves slightly then swallows twice COR.002.00097 (OBC) 9:39:29 Torso moves right left right COR.002.00096 (OBC) 9:42:37 Left index finger moves COR.002.00096 (OBC) 9:42:57 Left index finger then other fingers of left hand extend then flex COR.002.00096 (OBC) 9:45:36 3 noisy rapid breaths COR.002.00064 (OBC) 9:45:38 3 noisy rapid breaths on arrival at holding cell COR.002.00097 (OBC) 9:46:26 After handcuffs removed is prone on stretcher, right arm remains in
position until nurse moves it to side of stretcher, taking 2 goes.
COR.002.00064 (OBC) 9:46:41 After handcuffs removed is prone on stretcher, right thumb flexes slightly COR.002.00064 (OBC) 9:46:49 Right thumb flexes COR.002.00064 (OBC) 9:46:52 Right thumb extends COR.002.00096 (OBC) 9:47:50 Tongue is protruding COR.002.00096 (OBC) 9:48:22 Right arm abducted at shoulder and flexed at elbow with hand in fist on
ground, held in this position independently against gravity
COR.002.00096 (OBC) 9:48:34 Right wrist and elbow flex (as BP cuff applied) COR.002.00096 (OBC) 9:48:56 Right hand fingers extend COR.002.00097 (OBC) 9:48:56 Right hand fingers extend COR.002.00096 (OBC) 9:49:14 Left thumb flexes COR.002.00096 (OBC) 9:49:46 Left thumb extends COR.002.00096 (OBC) 9:49:56 Left thumb extends COR.002.00096 (OBC) 9:50:12 Ulnar deviation of right wrist. Right arm and elbow held off floor in same
position as when BP being done
COR.002.00097 (OBC) 9:50:12 Right arm and elbow held off floor in same position as when BP being
done
COR.002.00097 (OBC) 9:50:21 Right elbow above wrist as nurse lifts wrist COR.002.00097 (OBC) 9:50:48 Right hand moves forward slightly from position nurse left it in. COR.002.00097 (OBC) 9:50:50 In the left lateral position with his right hand and wrist resting on the
floor. Right arm and elbow are held off the floor in the same position the nurse put them in to do his observations instead of flopping to the ground as they would if he was unconscious or asleep. This position is maintained
for 2 minutes and 52 seconds
COR.002.00096 (OBC) 9:51:03 Left index finger extends slowly over 10 seconds COR.002.00097 (OBC) 9:51:03 Left index finger extends slowly over 10 seconds then flexes back rapidly COR.002.00096 (OBC) 9:51:24 Left index finger flexes COR.002.00096 (OBC) 9:51:28 Swallows COR.002.00096 (OBC) 9:51:44 Swallows, tongue protrudes further then retracts COR.002.00097 (OBC) 9:51:48 Torso moves back and forth slightly 3 times, supported by his right arm in
the position it was in after the nurse left
COR.002.00096 (OBC) 9:52:44 Right shoulder and head move, turning slightly right then back twice COR.002.00097 (OBC) 9:52:45 Head and torso moves back and forth slightly, supported by his right arm
in the position the nurse left it in
COR.002.00096 (OBC) 9:52:47 Left wrist extends COR.002.00097 (OBC) 9:52:48 Left wrist deviates radially COR.002.00096 (OBC) 9:52:48 Swallows and his eyelids close slightly more, torso slightly to the left, left hand moves slightly, a noise like “uhhum” is heard then rolls slightly more
the right so that the left side of his mouth and nose are on his left arm.
COR.002.00097 (OBC) 9:52:52 Head and torso flex 3 times, then rolls slightly further over to the right, at
which point right elbow relaxes onto the floor
COR.002.00096 (OBC) 9:52:54 Fingers of his right hand extend slightly then a second later his right index
finger extends a bit more
COR.002.00096 (OBC) 9:54:37 Right eyelid closes slightly COR.002.00096 (OBC) 9:54:39 Torso moves left right left COR.002.00097 (OBC) 9:54:39 Torso moves left right left. After CO shakes right shoulder then stops,
neck flexes and extends twice (after the time shaking happened)
COR.002.00096 (OBC) 9:54:42 Swallows, tongue protrudes then retracts twice in 7 seconds COR.002.00097 (OBC) 9:54:48 Right cheek moves COR.002.00097 (OBC) 9:58:24 "mmm" noise and torso moves back and forth 5 times - stops when CO
puts a hand on his shoulder
COR.002.00097 (OBC) 9:58:40 Torso moves x 1 COR.002.00097 (OBC) 9:58:48 Torso rotates to right with a deep inspiration then expiration as torso
moves back to the left
COR.002.00098 (OBC) 10:00:08 In left lateral position. Torso moves to the right then left several times (5
times) over 10 seconds.
COR.002.00098 (OBC) 10:05:05 1 x deep breath and there is an inspiratory noise (while nurse doing BP).
Right cheek can be seen moving
COR.002.00098 (OBC) 10:07:21 Right hand is palm down on the floor with elbow flexed (point of elbow
pointing to the ceiling), unsupported
COR.002.00098 (OBC) 10!07!58 Torso moves twice rapidlv ‹o the right left right left with abdomen
protruding rapidly
COR.002.00098 (OBC) 10!09!28 Right cheek is moving (angle means can’t see his face properly as from
behind him and he is on his left side)
COR.002.00098 (OBC) 10!09!33 Torso and head moves right left right, his head flexes and he rolls his
torso more to the right
COR.002.00098 (OBC) 10'09'37 Left hand moves slightly in radial deviation then returns to position COR.002.00098 (OBC) 10!10!56 Torso and head turn to the right-left-right, his forearm and wrist also
move. His head then moves independently of his torso turning slight v left right left
COR.002.00098 (OBC) 10!11!28 Head starts moving slightly then turns more obviously to the left-right-
left-right (twice back and forth) then three further less marked turns left
right
COR.002.00098 (OBC) 10:12:34 CO asks Mr Taylor if he wants a drink. Head moves to the right then the
left and a soft grunt is heard. Torso/head turn to the left more, another soft grunt noise is heard. At the same time his left upper eye-lid closes
tighter then relaxes remaining shut
COR.002.00098 (OBC) 10:20:55
Note som footage a 15!04!36
Mr Taylors arm is moved forward his wrist extends. At this time the nurse
is moving her right hand from his forearm to behind his elbow, wrist moves from flexion to extension as the nurse shifts her hand position
* of the footage doesn’t have times. The minutes from the start of the
e presented.
Sitting upright motionless in a chair. His head is not flexed forwards or extended back. Rather it is turned slightly to the right.
COR.002.00102 (OBC) COR.002.00103 (OBC) 15!14!46 The CO pushes the wheelchair I ' •!v *° ward. Mr Taylors head does not
change position.
COR.002.00103 (OBC) 15!20!28 As the chair is lifted head moves slightly COR.002.00101
(CCTV)
1:45 Wheeled backwards into a room sitting up in a wheelchair, head neutral COR.002.00101
(CCTV)
1:54 Head position stays constant as wheeled around COR.002.00103 (OBC) 15!21!55 Lifted onto bed in supine position COR.002.00101
(CCTV)
2:46 Moved onto stretcher, head position stays constant: this corresponds to
15:21:55 on COR.002.00103 (OBC)
COR.002.00101
(CCTV)
16!54 Moves right arm up over his chest then his head, so it is resting on the
stretcher above his head
COR.002.00101
(CCTV)
19!32 Moves right hand to his face, then behind his head, then shuffles his body
slightly before putting his right arm onto the stretcher parallel to his body
COR.002.00101
(CCTV)
20!24 Shuffles over to left so right arm fully on stretcher COR.002.00101
(CCTV)
21!31 Bends right knee and externally rotates right leg COR.002.00101
(CCTV)
21!33 Bends right knee slightly more, dorsiflexes then plantar flexes right foot
and externally rotates left leg slightly
COR.002.00101
(CCTV)
22!34 Turns to the left slightly and straightens right leg, externally rotates and
abducts left leg
COR.002.00101
(CCTV)
29!02 Bends right knee and externally rotates right leg. Then abducts right leg
and flexes left knee.
COR.002.00101
(CCTV)
35!16 Flexes then extends right knee COR.002.00101
(CCTV)
38!05 Both hands up to his face then flexes head slightly before sitting forward
and to the right swinging his legs off the bed then standing up and turning to the left towards the wash basin
COR.002.00101
(CCTV)
38!32 Stumbles back sIight! v, catches balance COR.002.00101
(CCTV)
38:42 Drinking from a cup COR.002.00104 (OBC) 16!08!55 At the window of his cell telling the CO that he is an ordinary prisoner and should not be in an at-risk unit. This indicates he knows where he is.
Throughout the interaction Mr Tav is lucid and speaking n =•! v. albeit in a raised voice and making demands of the CO. Mr Taylor ignores the CO’s attempts to give him dinner
COR.002.00107 (OBC) 16!41!01 Informs CO that ”you might be able to get awav with this shit down here normally but you won’t while I’m here" COR.002.00107 (OBC) 16'42'06 CO informs Mr Taylor that he is in the at-risk unity as he was 'non
responsive in the RO’ Mr Taylor claims "if I hadn’t been knocked
unconscious by the power of your sta** •• vbe I wouldn’t have been”. He then goes on to ask to see the police to lay a complaint
COR.002.00107 (OBC) 16:43:09 Says he wants to go back to ’Pare’ “because I wanna see these screws
that knocked me unconscious...they’re gonna end up in court mate”
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