Valent v Department of Corrections
[2022] NZHC 3194
•1 December 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2021-404-1748
[2022] NZHC 3194
UNDER THE Judicial Review Procedure Act 2016; and the New Zealand Bill of Rights Act 1990; and
the Corrections Act 2004 and the Corrections Regulations 2005BETWEEN
XAVIER LUCIAN VALENT
Applicant
AND
THE NEW ZEALAND DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 3 February 2022 Appearances:
Applicant in Person
J K Williams and V McCall for Respondent
Judgment:
1 December 2022
JUDGMENT OF DUFFY J
This judgment was delivered by me on 1 December 2022 at 10am pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors:
Crown Law, Wellington
And to:
The Applicant
VALENT v DEPARTMENT OF CORRECTIONS [2022] NZHC 3194 [1 December 2022]
[1] Mr Xavier Valent seeks judicial review of a decision by the Department of Corrections (Corrections) to refuse to supply hairdressing scissors and a haircut performed by another person.
[2] Mr Valent is on remand in directed segregation in the Prisoners of Extreme Risk Unit (PERU). He has a non-association direction due to the risk of harm from other prisoners, the risk he may influence others to carry out acts of violence, and the risk he may coordinate an escape attempt. His alleged offending is related to transnational drug crime but he has no history of violence.
[3] Corrections supplied Mr Valent with electric hair clippers (that are available on request) and states that all cells have mirrors. On 11 January 2022, Corrections offered Mr Valent a “bespoke” solution whereby he may access hairdressing scissors in a controlled environment (but without the assistance of another person). Mr Valent has neither accepted nor rejected this offer in light of these proceedings.
Grounds of review
[4] The applicant is self-represented and as such his submissions do not squarely address established grounds of judicial review.
[5]Broadly, the applicant claims that (among other matters):
(a)the decision fails to meet the requirements found in the Corrections Act2004 and Corrections Regulations 2005;
(b)the decision is in breach of his rights under the New Zealand Bill of Rights Act 1990 (NZBORA);
(c)the decision is contrary to natural law and the right to a fair trial.
[6] The respondent addresses Mr Valent’s arguments under the grounds of unreasonableness, error of law, irrationality, consideration of irrelevant factors or failure to consider relevant factors, procedural unfairness or impropriety, unfairness, and improper purpose. They also address a range of other allegations separately.
Applicant’s submissions
[7] The applicant submits that the hair clippers are “manifestly insufficient” to effect a haircut. This leaves Mr Valent with no options but to shave his head, cut his hair short to a length of 25 mm, let it grow uncontrollably or “succumb to the anomie” of attempting to cut his hair properly with clippers. This scenario means Mr Valent is not able to have the haircut of his choice.
Requirements under the Corrections Act 2004 and Corrections Regulations 2005
[8] Regulation 70 of the Corrections Regulations 2005 (authorised by s 203 of the Corrections Act 2004) states that a prisoner may (save for any health concerns) “keep or adopt the hairstyle of the prisoner’s choice”. Regulation 188 states that (save for any health and safety concerns) “the hairstyle and facial hairstyle of a prisoner awaiting trial or during trial may be cut or shaved only to the extent necessary to preserve the appearance of that prisoner at the time of his or her reception to the prison”. Mr Valent submits the hairstyle of his choice, being the one he had at his reception to prison, cannot be achieved with the use of hair clippers by himself. Forcing him to have a short or shaved hairstyle would violate regulation 188.
[9] Mr Valent also references Rule 18 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (UNMRTP) which stipulates that “… in order that prisoners may maintain a good appearance compatible with their self-respect, facilities should be provided for the proper care of the hair and beard …”. The UNMRTP form part of the basis for the Corrections Act 2004, according to s 5.
[10]Section 6(2) of the Corrections Act 2004 states that:
Persons who exercise powers and duties under this Act or any regulations made under this Act must take into account those principles set out in subsection (1) that are applicable (if any), so far as is practicable in the circumstances.
Section 6(1)(g) states that sentences and orders must not be 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. Mr Valent submits that the conditions are more restrictive than necessary.
[11] Section 80 requires appropriate provision to be made, so far as reasonable and practicable, for various cultural needs. Mr Valent submits that it is “a fundamental and prevalent custom” of New Zealand European/ English culture “to receive a haircut executed by another competent individual”.
[12] Under reg 62 of the Corrections Regulations 2005, segregation conditions must be, as far as practicable and if not inconsistent with the prisoner’s directions, the same conditions as if the prisoner were not under segregation. Mr Valent claims that other prisoners are able to access haircuts in the manner he desires and was himself able to access this at other prisons. He submits it is practicable and not inconsistent with his segregation direction to receive a haircut.
[13] Under reg 77, prisoners may obtain treatment from a health service provider if it can be obtained consistently with security requirements. Mr Valent submits this includes a haircut.
Breach of New Zealand Bill of Rights Act 1990 (NZBORA)
[14] Mr Valent submits that the decision is in breach of ss 9, 13 and 23 of NZBORA. Section 9 provides:
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.
[15]Section 13 provides:
Freedom of thought, conscience, and religion
Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.
[16]Section 23(5) provides:
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.
[17] With respect to s 9, Mr Valent submits that his status as an untried person and his lack of violent history make the refusal to give him a haircut cruel and degrading treatment.
[18] With respect to s 13, Mr Valent claims this is breached because he is “prevent[ed] from retaining his personal image”.
[19] With respect to s 23(5), Mr Valent submits he has not been treated with humanity nor respect for his human dignity. A hairstyle is part of a person’s personality and self-determination. Compelling an inmate to a shaved head, short cropped hairstyle, letting it grow unmaintained, or self-administered haircut serves to distance them from societal mores and results in unnecessary ostracism. Mr Valent submits he has endured feelings of humiliation and debasement.
[20] Mr Valent also advances a number of submissions relating to international law that overlap with these claims or relate to general principle.
Breach of natural law
[21] Mr Valent submits that the opportunity for untried inmates to undergo a full and proper haircut falls within the interests of a fair trial as denying this can lead to prejudice.
[22] Mr Valent submits that under natural law the deprivation of liberty is the sole purpose of imprisonment, and other civil liberties that are not lost as a direct consequence of this must be maintained. He submits that his haircut request is feasible with regard to the safety, security and good order of the prison.
[23]Mr Valent puts forward a number of other claims of only general relevance.
Respondent’s submissions
[24] The thrust of the respondent’s case is that scissors are not provided to prisoners for safety reasons (they are a ready-made weapon) and another person cannot perform a haircut due to Mr Valent’s segregation status. Access to hair clippers is the same
haircutting facilities generally available to prisoners, especially in maximum security environments. Fulfilling Mr Valent’s request would compromise the security of the prison.
[25] Additionally, the respondent submits that the Courts have traditionally been slow to interfere with the day-to-day management of prisons and have been reticent to involve themselves in decisions in relation to the security and good order of prisons.1 The claim relates squarely to that area in which the Court should be slow to interfere for those same reasons.
Illegality
[26] The respondent submits access to scissors and a hairdresser are not part of prisoners’ minimum entitlements under s 69 of the Corrections Act 2004. The facilities offered are in line with the statutory scheme, the Prison Operations Manual, the PERU desk file, and general practice across prisons.
[27] Regulations 70 and 188 (relating to prisoners’ hairstyle choice) are subject to the overriding purpose and principles of the Corrections Act 2004. The regulations do not provide a right for a prisoner to choose any hairstyle effected by any means without regard to what can reasonably be provided for in a prison environment in light of considerations of safety and security and the allocation of resources.
[28] Similarly, any NZBORA rights are subject to reasonable limitations. In a maximum-security environment, subject to directed segregation, safety and security concerns place justifiable limits on a range of rights affirmed in the NZBORA (including those that might be invoked in support of a particular haircut).
[29] Mr Valent alleges that a haircut falls under his health care right, but haircuts are distinguished in the regulations as they fall under the sections on grooming (regs 68–70) rather than healthcare (regs 71–81).
1 Mitchell v Attorney-General on behalf of the Chief Executive of the Department of Corrections [2021] NZHC 2946, citing: Bennett v Superintendent Rimutaka Prison [2002] 1 NZLR 616 (CA) at [81]; Taylor v Chief Executive of the Department of Corrections [2015] NZHC 2196 at [2], [24] and [103]; and Smith v Attorney-General on behalf of the Chief Executive of the Department of Corrections [2017] NZHC 136 at [8].
[30] The respondent submits that the provision of relatively basic haircutting facilities does not rise to the level of torture or cruel and degrading treatment, nor does it amount to a failure to treat the applicant with humanity and respect for his dignity. There is no “unacceptable and serious departure from the standard of care expected of a reasonable person in the position of the detaining authority”.2
[31] Additionally, the applicant has failed to establish a cultural need for a particular type of haircut, and nonetheless the cultural need provisions are subject to practicability.
Irrationality
[32] The respondent submits that the decision is not unreasonable because there is more than one reasonable outcome available to the decision-maker in these circumstances and the haircut facilities offered to Mr Valent are reasonable in the circumstances.
[33] It is neither irrational nor arbitrary to treat the applicant in accordance with his directed segregation with non-association status, or to decline access to scissors on the basis of safety and security concerns.
[34] In response to Mr Valent’s allegation that he is not being held under the same conditions as non-segregated prisoners, Corrections notes that almost all prisoners do not have access to a haircut on the terms Mr Valent seeks (excluding some limited exceptions for low-security and women’s prisons). This is also the respondent’s answer to a potential ground of unfairness.
Impropriety
[35] The respondent submits that there is no suggestion that any decision maker had or has a conflict of interest, or that the process by which the decision was arrived at disadvantaged the applicant and led to a different outcome than would have been the case had a different process been followed.
2 S v Attorney-General [2017] NZHC 2629 at [245(h)].
[36] The absence of an available third person to perform a haircut is not unfair, or “additional punishment” as the applicant submits, but rather inherent in the non- association status which the applicant has not previously or directly challenged.
Analysis
[37] The decision to restrict scissors and other persons cutting Mr Valent’s hair is a necessary consequence of his security conditions and is therefore within Corrections’ scope of power.
[38] While proper hair care touches the issue of dignity under NZBORA s 23(5), Mr Valent’s circumstances likely do not prevent him from attaining proper hair care.
Corrections’ scope of power
[39] Corrections has the power to place prisoners along a spectrum of security conditions based on their discretionary assessment of risk.3 Decisions that follow as a necessary consequence of that placement are within the discretion and power of Corrections. As noted by the respondents, the inability to fulfil Mr Valent’s request stems directly from his non-association order, which means he cannot have contact with other prisoners to cut his hair, and the security measures of PERU, which mean an external hairdresser cannot come in and he cannot be provided scissors.4 Therefore, any ground resting on Corrections acting ultra vires cannot succeed.
[40] Regulation 188 provides Mr Valent’s strongest case for illegality. It states that “the hairstyle … of a prisoner awaiting trial or during trial may be cut or shaved only to the extent necessary to preserve the appearance of that prisoner at the time of his or her reception to the prison”. However, close interpretation of this provision demonstrates that it is not an enabling provision that gives Mr Valent a right to preserve his appearance, rather it is a restriction on Corrections staff from forcing a prisoner awaiting trial to shave their head or adopt a very short hairstyle if they did not previously sport one.
3 Corrections Act 2004, s 47. See also regs 44–52 (security classification of prisoners) and 52A- 52N (prisoner placement system).
4 However, Corrections has now offered Mr Valent the use of scissors under supervised conditions.
[41] The options available likely do not amount to Corrections forcing Mr Valent to shave his head or adopt a very short hairstyle. Affidavit evidence from Jeanette Burns notes that Mr Valent has access to a comb in conjunction with the hair clippers and that other prisoners in PERU use the clippers to cut their hair to varying lengths. While he may not have the skills to achieve his exact pre-prison haircut, it may not be the all-or-nothing scenario Mr Valent paints in his submissions.
[42] Regulation 70 states that prisoners may keep or adopt the hairstyle of their choice. It does not specifically apply to prisoners awaiting trial. Nonetheless, Mr Valent could expect to access the same rights as other prisoners if not a higher standard of treatment.5 That equal treatment must of course be subject to security issues.6
[43] Mr Valent claims the haircutting conditions are stricter than reasonably necessary to maintain safety and security. However, Corrections has laid out why a haircut on the terms he desires is not available. There is merit to Corrections’ submission that they are the best body to assess whether the measures are reasonably necessary, and the Court should not interfere in matters of safety and good order of prisons.
Dignity
[44] Under s 23(5) of NZBORA, everyone deprived of liberty shall be treated with humanity and respect for the inherent dignity of the person. In Taunoa v Attorney- General, the Supreme Court analysed s 23(5) alongside s 9 of NZBORA and international instruments.7 The Court noted that s 23(5) imposed a positive obligation on the state in relation to persons deprived of liberty. Treatment of a lesser order than s 9 that is unacceptable in society but is not considered outrageous is inconsistent with s 23(5).8 In Vogel v Attorney General, the Court of Appeal found that the cell confinement of the applicant amounted to a breach of s 23(5) as it had the consequence that he was not treated with humanity and respect for his inherent dignity.9 The Court
5 See regs 185 (treatment of accused prisoners) and 62 (treatment of segregated prisoners).
6 Reg 185(2)(a).
7 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429.
8 At [170] per Blanchard J.
9 Vogel v Attorney General [2013] NZCA 545 at [75].
of Appeal in Attorney General v Udompun also upheld the High Court’s finding that not providing the applicant with sanitary products after she requested them nor any food while she was detained fell below the standard guaranteed by s 23(5).10
[45] Section 23(5) is echoed in the United Nations Minimum Standard Rules for the Treatment of Prisoners (the UN Standards), rule 5:
The prison regime should seek to minimize any differences between prison life and life at liberty that tend to lessen the responsibility of the prisoners or the respect due to their dignity as human beings.
[46] The purpose of the Corrections Act 2004 requires the UN Standards to be taken into account. Section 5 provides:
(1)The purpose of the corrections system is to improve public safety and contribute to the maintenance of a just society by—
…
(b) providing for corrections facilities to be operated in accordance with rules set out in this Act and regulations made under this Act that are based, amongst other matters, on the United Nations Standard Minimum Rules for the Treatment of Prisoners
(emphasis added)
[47] Observance of the UN Standards is directly relevant to compliance with the international law equivalent of s 23(5), the International Covenant on Civil and Political Rights, art 10.11
[48] In Smith v Attorney-General on behalf of Department of Corrections, Wylie J found that NZBORA is a mandatory consideration in Corrections decision making.12 This point was not addressed on appeal.13
[49] Hair and hairstyles are elements that relate closely to a person’s sense of identity and self-respect and could have bearing on humanity and inherent dignity.
10 Attorney-General v Udompun [2005] 3 NZLR 204 (CA) at [148].
11 Taunoa v Attorney-General, above n 7, at [31] per Elias CJ.
12 Smith v Attorney-General on behalf of Department of Corrections [2017] NZHC 463, [2017] 2 NZLR 704 at [72]-[74].
13 Attorney-General v Smith [2018] NZCA 24; and Smith v Attorney-General [2018] NZSC 40.
[50]Rule 18(2) of the UN Standards states that:
In order that prisoners may maintain a good appearance compatible with their self-respect, facilities shall be provided for the proper care of the hair and beard, and men shall be able to shave regularly.
[51] There is therefore merit in the claim that facilities for proper care of the hair is an element of a prisoner’s right to human dignity that Corrections must either take into account or give effect to. However, it is not clear on the facts that Mr Valent does not have “facilities for proper care” of his hair.
[52] On one hand, Mr Valent claims that with clippers he can only effect essentially a “buzz cut”, which would be demeaning to him and could project a negative image for his trial. If he attempts to cut his own hair, with either the clippers or scissors, his amateur skill may result in an embarrassing result. Outside of segregation, other inmates often informally cut one another’s hair.
[53] On the other hand, Corrections has offered Mr Valent a bespoke solution of supervised use of hairdressing scissors as electric hair clippers are no longer suitable to address the length his hair has grown to. Electric hair clippers are standard for PERU and most prison environments. There is also the obvious parallel with COVID restrictions that have prevented many members of society from accessing haircuts performed by other people.
[54] When Mr Valent appeared before me by audio-visual link it was obvious his hair had not been cut for some time. He showed me a photograph of himself with a haircut he approved of.
[55] Mr Valent may have subjective and personal preferences of his self-image that he cannot meet with his own hairdressing skills. He has not however showed me how his hair would appear if cut under the present conditions. All I know from him is that he anticipates that if he cuts it himself with the facilities provided by Corrections the cut will not be up to the standard he would want for his hair. However, there is no authority to support the assessment of “facilities for proper care” being a purely subjective exercise.
[56] Case law that discusses s 23(5) demonstrate that it is not assessed based on an applicant’s subjective feelings but is based on the facts. For example, in Scott v Police, the defendant objected to the removal of her shoes while she was in custody under ss 9 and 23(5) of the NZBORA and the UN Standards. It was found that removing her shoes was necessary in that case otherwise there would have been reasonable assertions that the police officers had been derelict in their duty to a distressed prisoner.14 In B v Waitemata District Health Board, one of the claims made by the applicant was that the non-smoking policy that banned smoking in any buildings, vehicles or offices owned or leased by the Waitemata District Health Board breached s 23(5).15 The Court of Appeal said “whether the Smoke-free Policy involves any inhumane treatment that breaches this standard is a factual question”.16 It agreed with Asher J’s assessment in the High Court that the long term benefits and nicotine replacement and other therapies available to assuage the effects of withdrawal meant that the administration of the policy was done with humanity. This was upheld by the Supreme Court.17
[57] I consider the assessment of whether Mr Valent can presently provide for the “proper care” of his hair is something that should engage an objective standard. What is reasonable facilities for proper care should therefore involve an assessment based on what is a reasonable standard of proper hair care for someone in Mr Valent’s circumstances. This should take account of a prisoner’s religion and culture, and any other considerations personal to him. But the assessment must be an objective one. I see no basis for allowing the assessment of facilities for proper hair care merely to turn on the personal subjective opinion of an individual prisoner.
[58] Mr Valent has the facilities to cut his hair to the length of his choice. This may not be in the style of his choice due to his skill, but there is no evidence the resulting cut would be unreasonable.
[59] Accordingly, I find that s 23(5) is therefore not breached. If I am wrong in that regard, I find in the alternative that any breach of s 23(5) is a reasonable justification
14 Scott v Police (1994) 12 CRNZ 207 (HC).
15 B v Waitemata District Health Board [2016] NZCA 184, [2016] 3 NZLR 569.
16 At [71].
17 B v Waitemata District Health Board [2017] NZSC 88, [2017] 1 NZLR 823 at [74] and [87].
given the limitations of Mr Valent’s security conditions. Corrections did not appear to directly address the implications of their decision on this right in their decision-making process. However, their decision to offer Mr Valent the use of scissors demonstrates Corrections is attempting to give effect to rule 18 of the UN Standards and give Mr Valent facilities to provide for the proper care of his hair.
Conclusion and observations
[60] I am satisfied the present application should be dismissed. I observe that the pathway to Mr Valent being able to enjoy better access to hair care than he currently enjoys is more likely to lie in him questioning whether his present security status is warranted. There is no evidence he has been physically violent. In such circumstances, an adjustment of his current status that would enable him to have his hair cut by a third party should solve his present concerns. Whether there are grounds for challenging his present security status is not something that I can address in the context of this judicial review.
[61] Mr Valent’s appearance at trial may require more attention to his hair style than while on remand in custody. There is arguable a difference between the day-to-day proper hair care of a defendant on remand in custody and the proper hair care he is entitled to receive when appearing before a jury.
[62] However, neither of the above issues can presently be considered because the case Mr Valent brings is not framed in a way that allows them to be ventilated. There is no pleading or evidence that would enable the Court to form a view on them.
[63] During the hearing Mr Valent submitted a “buzz cut” done by himself would not permit him to present himself in a good light before a jury. But until evidence of what a self-styled buzz cut would do for Mr Valent’s appearance is before the Court, it cannot reach a view on whether this would adversely affect his appearance before the jury. Without evidence, the answer to this question is speculative. The question of whether Mr Valent’s present inability to have someone else cut his hair is something that could adversely affect the presentation of his defence at trial (and for this reason better hair styling should be available for him) is a separate issue to be addressed on another occasion.
Result
[64]The judicial review is dismissed.
[65]Leave is reserved for the parties to file memoranda on costs.
Duffy J
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