Whichman v Attorney-General
[2025] NZHC 1329
•26 May 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-002554
[2025] NZHC 1329
UNDER the New Zealand Bill of Rights Act 1990 and the Judicial Review Procedure Act 2016 BETWEEN
GEORGE WHICHMAN
Plaintiff
AND
ATTORNEY-GENERAL ON BEHALF OF NEW ZEALAND POLICE
Defendant
Hearing: 6 March 2025 Appearances:
George Whichman in person
K D Grant and D M Karl for the Attorney-General
Judgment:
26 May 2025
JUDGMENT OF HARVEY J
This judgment is delivered by me on 26 May 2025 at 3,00 pm pursuant to r 11.5 of the High Court Rules
………………………………
Deputy Registrar
Solicitors:
Meredith Connell, Auckland
And to:
The Appellant
WHICHMAN v ATTORNEY-GENERAL [2025] NZHC 1329 [26 May 2025]
Introduction
[1] George Whichman regularly attends the Manukau District Court, where he is required by Police to remove any clothing items with cords in accordance with the Police’s “Cords Policy”. This includes, for example, shoelaces, watches, jewellery, hair ties, belts and drawstrings. Mr Whichman seeks to review the Cords Policy on the grounds that it is unlawful, unreasonable or both.1 He alleged the policy is discriminatory because it is only applied at the Manukau District Court, that it breaches relevant policy and legislative frameworks, and that it is enforced by the Police through intimidation, threats and actual violence. He also asserted that the policy infringes the New Zealand Bill of Rights Act 1990 (NZBORA), the Crimes Act 1961 and the Health and Safety at Work Act 2015 (HSWA).
[2] The Attorney-General opposes Mr Whichman’s application and submitted that the policy is both lawful and reasonable. She contended the policy does not infringe the NZBORA or, in the alternative, is a justified limitation under s 5.
[3] Following the hearing, and in response to my direction during the hearing, counsel for the Attorney-General filed a memorandum dated 16 April 2025 identifying which parts of Mr Whichman’s evidence were considered inadmissible. Mr Whichman filed an additional affidavit dated 24 April 2025 and a letter dated 5 May 2025 in support of his application. The Attorney-General then filed a further memorandum in response on 23 May 2025. These documents are considered at the end of this judgment.
The scope of the application
[4] Despite the finding of Blanchard J in his minute of 6 November 2024, there appeared to be an ongoing dispute about the scope of this application. Mr Whichman sought to discuss individual instances in which he alleged the policy had been applied with unreasonable and unlawful force. He referred to an incident on 5 June 2024 when he refused to comply with the Cords Policy. He was restrained, his shoes were removed and the drawstring to his pants was cut. On the other hand, the
1 Whichman v The New Zealand Police HC Auckland CIV-2024-404-2554, 6 November 2024 (Minute of Blanchard J) at [5].
Attorney-General sought to solely discuss the policy itself rather than particular instances where it had been enforced or applied. I will outline the parties’ submissions on this point, before confirming the application’s scope.
Mr Whichman’s submissions
[5] Mr Whichman submitted that the Police at the Manukau District Court use intimidation, threats and actual violence to implement the Cords Policy and to strip detained persons of their belongings. This is carried out, Mr Whichman claimed, to lower the detainees’ dignity, to cause them humiliation and harm, and to demonstrate that the Police are superior. He alleged that detainees have been attacked, dragged and manhandled to the Manukau Police Station via an underground tunnel, placed in a holding cell bloodied and bruised, and prevented from seeking medical help while the Police advise the Court that the detainee cannot appear. Mr Whichman contended that, in acting in this manner, the Police are breaching their own policy statement and principles, as well as their legal duty of care, by showing a complete disregard for the care, safety and security of detainees. He argued that he has been assaulted on numerous occasions spanning over a six-year period, with numerous pieces of his property being damaged.
Attorney-General’s submissions
[6] Ms Grant, for the Attorney-General, acknowledged the Court may review policy under its judicial review jurisdiction. However, counsel submitted that the present application for judicial review is not about the lawfulness or reasonableness of any particular incident during which the Cords Policy was applied or enforced.2 Rather, it only concerns the lawfulness or reasonableness of the policy itself. Ms Grant contended that the use of force is not a necessary ingredient of the policy and that this claim is an inappropriate vehicle in which to enquire into any particular incidents where force was used, which are contested factual issues.3 Moreover, counsel argued that particular allegations of wrongdoing are better ventilated in individual claims under the NZBORA brought by the affected person(s).
2 Although, counsel confirmed the Attorney-General denies Mr Whichman’s accounts of detainees being assaulted by the Manukau District Court Custody Unit.
3 See Geary v Psychologists’ Board [2009] NZCA 134, [2009] NZAR 338 at [22].
[7] Ms Grant submitted that the Court should be slow to interfere in the day-to-day decisions made by the Police and, in particular, with custodial staff members’ assessment (based on their evaluation of a prisoner and their experience managing difficult custodial situations) of the best way to carry out any given search and seizure. Instead, counsel contended the focus of this review must be on the Cords Policy itself.
Discussion
[8] I agree that the scope of this judicial review application must be limited to a review of the Cords Policy itself rather than its application in particular incidents. This is consistent with Blanchard J’s finding that:4
… it is agreed that the judicial review is limited to a challenge of NZ Police’s policy of removing shoelaces, belts, jewellery, and any clothing items with cords (the Cords Policy) on grounds of unlawfulness (for inconsistency with NZBORA) and unreasonableness.
[9] This also reflects the fact that Mr Whichman chose not to pursue his civil claim alleging particular breaches of the NZBORA.5 In addition, I consider there is merit to Ms Grant’s submission that the Court should not be drawn into speculation about how the Cords Policy has been applied in particular instances, or whether the force used in those instances was reasonable.6 This is not because such allegations would not be concerning to the Court, but simply because there is insufficient evidence before this Court in the current proceedings to determine the nature and veracity of the alleged incidents. I also agree that judicial review cases, such as the present application, are often inappropriate for the resolution of contested factual issues.
[10] For these reasons, I find that the scope of the present application is limited to the lawfulness and reasonableness of the Cords Policy itself, rather than the lawfulness and reasonableness of the policy’s application or enforcement on particular occasions.
Is the Cords Policy unlawful?
[11]Mr Whichman submitted the Cords Policy was unlawful because it breached:
4 Whichman v The New Zealand Police, above n 1, at [5].
5 Whichman v The New Zealand Police, above n 1, at [1].
6 For instance, whether it was in accordance with the Search and Surveillance Act 2012.
(a)its own policy and legislative framework;
(b)ss 9, 19, 21, 22, 23(5) and 25(a) of the NZBORA; and
(c)the Crimes Act 1961 and the Health and Safety at Work Act 2015.
The policy and legislative framework
[12] Mr Whichman submitted that the relevant portion of the “People in Police Custody Policy” (PPCP), which contains the Cords Policy, relates solely to the transportation and transfer of detainees. He highlighted that the paragraph preceding the Cords Policy states: “Prior to transport, you may conduct a search pursuant to s 11(3) of the Search and Surveillance Act 2012 …”. Mr Whichman contended that, given this context, the Cords Policy could only apply to searches of detainees prior to them being transported. Yet, in practice, he argued that Police and authorised officers are unlawfully applying the Cords Policy by conducting searches after detained persons are transported or transferred to the courts. This, he submitted, is in breach of the policy framework (namely, the PPCP) in which the Cords Policy sits.7
[13] Ms Grant argued that Mr Whichman misconstrues the Cords Policy. The policy is not a corollary to the preceding paragraph in the PPCP but is an independent aspect of ensuring that a detainee has been properly searched as part of a transfer. Ms Grant contended that where a person in the custody of Corrections is transferred to a courtroom custodial unit managed by Police, they could not conduct a search before transport. The Police can only ensure the removal of items in accordance with the Cords Policy once they have received the detainees into their legal custody.
[14] Counsel argued that this reading is consistent with the statutory powers of police to conduct a search of a detainee in custody. Under the Search and Surveillance Act 2012 (SSA), police can conduct a search after a person is detained (before and after a person is locked up) if there are reasonable grounds to believe they are in possession of anything that may be used to harm themselves or others.8 Counsel
7 Arguably, this also relates to the application of the Cords Policy rather than the policy itself. However, given it relates to the meaning of the policy (whether it is limited to searches prior to transport to the courts) I consider it falls within the scope of the present application.
8 Search and Surveillance Act 2012, s 11(3)(d).
further highlighted that, pursuant to the SSA, the Police may use reasonable force in order to conduct a search and may seize anything that is the subject of the search or may otherwise be lawfully seized.
[15] After careful consideration, I accept that the Police are not breaching the PPCP by implementing the Cords Policy after prisoners have arrived at the Manukau District Court. The section in which the Cords Policy is located is titled “Ensure the detainee has been properly searched”. Therefore, I agree that the Cords Policy is an independent aspect of ensuring the prisoner has been properly searched, rather than falling within the preceding paragraph’s focus on searches before transport. Moreover, I agree that this interpretation is consistent with the Police’s statutory power of search under s 11(3) of the SSA. Accordingly, I hold that the timing of when the Cords Policy is applied is not only reasonable and practicable (being when Police receive legal custody of the detainees) but is also consistent with the broader PPCP.
NZBORA — Section 9: Right not to be subjected to torture or cruel treatment
[16] Mr Whichman submitted that the Police have not been treating detainees humanely as they have been forcing them into subjugation and submission with the Cords Policy through intimidation, threats of violence and actual violence.
[17] Ms Grant contended that s 9 protects against “truly egregious” conduct.9 This refers to: the deliberate infliction of severe physical or mental suffering or distress, treatment that gravely humiliates and debases a person subjected to it, treatment so “disproportionately severe that it shocks the national conscious” and conduct “well beyond treatment that is manifestly excessive”.10 Counsel argued that the Cords Policy is intended to prevent detainees from harming themselves or others. It seeks to prevent severe physical suffering rather than to deliberately inflict it. In this regard, counsel submitted it is also an entirely sensible measure that would not shock the national conscious, invite national outrage nor be seen as excessive.
9 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [297] and [383].
10 See Taunoa, above n 9, at [81], [170]–[172], [282]–[289], [339]–[340] and [383].
[18] Ms Grant further submitted that even to the extent that the policy can be framed as a constraint on the clothing choices of those in custody, it falls far short of the s 9 threshold. Counsel cited the following observation by Williams J as to a judicial review challenging a Corrections’ regime requiring sentenced prisoners to wear prison-issued clothing when their cell is unlocked:11
… Controlling the issue and wearing of clothing in prison is not cruel nor does it amount to torture. Rather it is, as the UN Minimum Treatment Rules reflect, to be expected.
[19] I find that the Cords Policy falls short of the conduct covered by s 9. It is not manifestly excessive and does not involve, as a policy, the deliberate infliction of physical or mental suffering or distress. While those affected by it may feel a sense of humiliation or distress, this is not the purpose of the policy and the nature of what the policy requires can easily be distinguished from cruel treatment or torture, as seen in Mitchell.
NZBORA — Section 23(5): Right to be treated with humanity and with respect for the inherent dignity of the person
[20] Mr Whichman submitted that the concept of dignity must be read consistently with the normative use of the term in international human rights instruments and cited the case of Marshall.12 As above, Mr Whichman’s main argument is that the application and enforcement of the Cords Policy strips detainees of their dignity and respect, and degrades and humiliates them.
[21] For her part, Ms Grant contended that s 23(5) imposes a positive duty of humane treatment on the Crown that responds to the special vulnerability of prisoners, and which covers conduct regarded as unacceptable in contemporary New Zealand society. As above at [6], counsel argued that the removal of shoes and cutting of drawstrings are not an inherent part of the Cords Policy but are potential consequences where a person in custody refuses to comply. For example, the policy does not prescribe the removal of a prisoner’s shoes; rather, this decision was made because it
11 Mitchell v Chief Executive Officer, Dept of Corrections [2015] NZHC 347 at [95]. While the current challenge relates to a policy seeking to remove items from one’s person, rather than authorising what items to wear, counsel submitted the effect is the same: restricting what persons can or cannot wear while in custody.
12 Marshall v Idea Services Ltd [2020] NZHRRT 9, (2020) 12 HRNZ 567 at [74].
was the only practicable way to remove a shoelace from an uncooperative prisoner. Ms Grant referred to an observation of Williams J: “Ms Mitchell was, for the most part, the author of her own difficulties because she refused to comply with lawful prison directives both in relation to strip searches and clothing”13 and “[t]here can be no basis upon which the requirement to wear prison uniform can be said to be ‘inhuman’ in accordance with Taunoa.”14 Counsel also cited Scott v Police where Anderson J held that the removal of shoes from a detained person to remove the laces was not a breach of s 23(5) of the NZBORA.15
[22] In light of the cases cited, it is evident that the Cords Policy does not breach s 23(5). The impingement on the dignity of detained persons is minor and, as in Mitchell, it appears the indignity which Mr Whichman is most concerned with is the manner in which it is enforced where a detainee refuses to comply — as opposed to the indignity inherent to the requirements of the policy itself. Although the way in which the policy is enforced in particular instances could breach s 23(5) in serious cases, there is insufficient evidence to address such allegations in this application which is instead concerned with the Cords Policy itself (see above at [8]–[10]).
NZBORA — Section 19: Right to freedom from discrimination
[23] Mr Whichman submitted that police in the Manukau District Court have been discriminating against Māori and Pacific peoples. He contended that the order to enforce the Cords Policy is unlawful and unreasonable because it is targeted towards those ethnicities. He argued this is the case because the Manukau District Court is the only court in New Zealand that applies the Cords Policy, and because it is predominantly people of Māori and Pacific descent who live in the Manukau district.
[24] Mr Whichman further submitted that Senior Sergeant Anthony Fielding’s affidavit confirms that the Cords Policy applies only to the Manukau District Court, because it referred to the Manukau-specific Standard Operating Procedure (SOP).16
13 Mitchell, above n 11, at [108].
14 Mitchell, above n 11, at [95(f)], citing Taunoa, above n 9.
15 Scott v Police (1994) 12 CRNZ 207 (HC).
16 In his affidavit, Mr Whichman also sought a copy of the Manukau-specific SOP and the “General Instructions” under the High Court Rules 2016 and the Official information Act 1982. However, Mr Whichman has not clarified the basis on which he seeks these documents beyond citing the
He also contended that the Police continue to mislead the Court, knowing that their actions are inconsistent with the policy as their searches are conducted after transport, irrespective of reasonable grounds or suspicion and irrespective of specific risks of self-harm or harming others. The Cords Policy is applied irrespective of the health and safety of the detainee and irrespective of the Police’s duty of care.
[25] Ms Grant contended that Mr Whichman’s allegation of discrimination fails at the first limb of the test in Ministry of Health v Atkinson as there is no evidence of differential treatment.17 This is because the Cords Policy is a nationwide instruction contained in the Policy Manual that is designed to apply to all detainees in Police custody. The policy is therefore not discriminatory. In response to Mr Whichman’s submissions above at [24], counsel argued that the Manukau-specific SOP is no longer operative in Manukau and that, in any case, its instructions read “items such as laces, belts, jewellery etc are to be removed as per General Instructions”. This refers to the general instructions intended for nationwide application and which are therefore not Manukau-specific.18
[26] From the evidence, it appears that the Cords Policy is a nationwide policy. This is the natural meaning of Senior Sergeant Fielding’s evidence and the relevant portion of the former Manukau-specific SOP. I find that there is no evidence of discrimination as the evidence suggests the Cords Policy is not limited to the Manukau District Court. I also find that there is no evidence of differential treatment.
NZBORA — Section 21: Right to freedom from unreasonable search and seizure
[27] As above, Mr Whichman considers the Cords Policy to involve unreasonable searches of detained persons and the seizure of their personal belongings. He submitted this is a breach of s 21. Ms Grant referred to the Police’s statutory powers under the SSA to search persons who are arrested/detained before or after they are locked up. This includes where there are reasonable grounds to believe that the person has on them items that may be used to harm any person. Counsel submitted that the
names of these pieces of legislation, nor has he expanded on this request in his submissions. Accordingly, the Court is not in a position to consider these requests.
17 Ministry of Health v Atkinson [2012] NZCA 184, [2012] 3 NZLR 456 at [55] and [109].
18 Pursuant to the Police Commissioner’s powers under ss 28–30 of the Policing Act 2008.
Cords Policy essentially provides guidance as to the items considered by the Commissioner of Police (or his delegates) to have the potential to cause harm — in this case, cords.
[28] I find that the Cords Policy does not breach s 21 for the same reasons as below at [31]. As a policy it is not unreasonable, and I agree that it may be necessary and desirable in order for the Police to fulfil their duty of care towards people in their custody. Further, it essentially falls within the statutory power of search conferred by s 11(3)(d) of the SSA.
NZBORA — Sections 22 and 25(a)
[29] Mr Whichman submitted that because the Cords Policy does not treat detainees humanely nor comply with related legislation, the policy also breaches ss 22 and 25(a). However, Ms Grant submitted that s 22 protects against arbitrary arrest and detention and is not relevant to this proceeding. Likewise, counsel contended that s 25(a) (which refers to the right to a fair and public hearing) is not impacted by the Cords Policy.19 I agree with Ms Grant that neither ss 22 nor 25(a) are relevant to this proceeding. The Cords Policy does not relate to issues of arrest and detention, nor to the right of a fair and public hearing. As noted previously, particular applications of the policy are not within the scope of this application.
NZBORA — Section 5 analysis
[30] In the event the Court considers the Cords Policy infringes on protected rights under the NZBORA, Ms Grant argued the Cords Policy is a justified limitation under s 5. Applying the criteria from Hansen, counsel submitted:20
(a)The purpose of the policy is to prevent self-harm and harm to others, which is particularly important given the special vulnerability of those in custody.
19 In this respect, Ms Grant argued that Mr Whichman’s non-appearance in Court is a separate matter for custodial staff and the Manukau District Court, on which there is no information before this Court.
20 Attorney-General v Chisnall [2024] NZSC 178, [2024] 1 NZLR 768 at [195], citing R v Hansen
[2007] NZSC 7, [2007] 3 NZLR 1 at [64] and [104].
(b)The limiting measure is rationally connected with its purpose (cords are removed to ensure they are not used as ligatures).
(c)It is difficult to envisage a less rights-intrusive way to remove the ligature risk.
(d)The limit is in due proportion to the objective. Although it is no doubt irritating, there is no real harm to those in custody from spending several hours without cords or jewellery or both.
[31] While not strictly necessary to decide given my finding that the Cords Policy does not breach relevant rights under the NZBORA, I also consider the Cords Policy would, in the alternative, be a justified limitation under s 5. Put simply, it is the sort of measure that can reasonably be expected in a custodial environment. It serves an important and protective purpose, is proportionate to the risks it seeks to mitigate, and it is difficult to envisage a less intrusive solution to the ligature risk. Further, Williams J’s observation is notable that the control of detainees’ clothing is the type of measure that one can expect, as reflected in the UN Minimum Treatment Rules.21
Crimes Act 1961 and Health and Safety at Work Act 2015
[32] The parties agreed that Police owe a duty of care to detainees in their custody under the Crimes Act 1961 and the HSWA. Mr Whichman submitted that the Police are putting the health and safety of detainees at risk and are posing a danger and hazard to those appearing before the Manukau District Court by intimidating detainees when they arrive and forcing them to remove their personal belongings containing cords. Mr Whichman referred to the use of stand over tactics, threats and violence. Ms Grant contended that the Cords Policy is a routine and sensible precaution to lower the risk of self-harm and harm to others. She argued it was one of the ways the Police discharge their duty of care towards those in their custody. Counsel submitted that not enforcing the Cords Policy would be less consistent with the Police’s obligations under the NZBORA, Crimes Act and HSWA.
[33] For the reasons discussed above in relation to the other claims put forward by Mr Whichman, I find that the Cords Policy is not a breach of the Police’s duty of care
21 Mitchell, above n 11, at [95].
under either the Crimes Act or the HSWA. Again, I consider it to be the kind of policy which the relevant duty of care, in fact, requires the Police to implement for the benefit and safety of detainees in their care, and in respect of their own staff.
Is the Cords Policy unreasonable?
Mr Whichman’s submissions
[34] Mr Whichman argued that the Cords Policy is unreasonable because it is applied regardless of whether the person is arrested or detained, female or male, at risk of self-harm, or whether the Police have reasonable grounds to suspect or believe the person may be in possession of something which may be used to harm someone. Instead, it is applied to everyone held at the Manukau District Courts in Police custody. He also referenced international research showing that there is a real risk of cords, belts and clothing items being used as ligatures for hanging, yet he argued that there are no ligature points from which to hang oneself in court cells (in contrast to prison cells) so this risk was minimal. He submitted the same was true of the risk of harming others. Essentially, Mr Whichman contended that the risks identified by the Police are not genuine possibilities and so the Cords Policy is unreasonable.
[35] Moreover, he opposed the argument that the policy could be justified on the grounds that Police deal with remand prisoners who by the nature of their experiences at Court (which Senior Sergeant Fielding claimed can have a serious impact on their mental state) are at higher risk of self-harm. Mr Whichman submitted that removing cords from detainees through intimidation, threats and violence can also have a major impact on their mental state.
Attorney-General’s submissions
[36] Ms Grant submitted that unreasonableness is a high threshold in judicial review proceedings. A decision may be unreasonable where it is an insupportable or clearly untenable conclusion — namely where:22
(a)the determination is not supported by any evidence;
22 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [26].
(b)the evidence is inconsistent with or contradictory of the determination; or
(c)the only reasonable conclusion contradicts the determination.
[37] Against these criteria, counsel contended the Cords Policy cannot be described as unreasonable as it is supported by New Zealand specific evidence that highlights the use of ligatures as a mechanism for harm in cases where individuals are detained. Ms Grant discussed the rationale for the Cords Policy and provided research, including from the World Health Organisation and the Department of Corrections, demonstrating the prevalence of suicide (or suicide attempts) by hanging or self-strangulation in prisons. Counsel also referred to research confirming that remand prisoners are particularly at risk of self-harm. She also argued that there is a risk of using cords to harm other people.
Discussion
[38] Considering the evidence, I hold the Cords Policy is not unreasonable. As noted by Ms Grant, the threshold for unreasonableness in judicial review is high. Here, the Attorney-General has supported the policy with international and New Zealand-specific research outlining the risk of suicide by hanging and self-strangulation within the prison population, and the risks to remand prisoners in particular. Although there is less evidence to this effect, I accept there may also be a risk of using cords as weapons to assault other detainees or Police staff. In this context, I find that none of the conditions for unreasonableness outlined above at [36(a)–(c)] are satisfied.
[39] As mentioned, Mr Whichman filed additional documents well after the close of the hearing on 24 April and 5 May 2025 and the Attorney-General replied on 23 May 2025. Mr Whichman’s affidavit annexed survey forms completed by persons in custody as to their experiences in Manukau District Court. In summary, counsel for the Attorney-General submitted that the documents are irrelevant to the issues before the Court, are inadmissible hearsay and that, contrary to his assertion, Mr Whichman is not an expert and cannot be regarded as such. I agree with the reasons set out in the Attorney-General’s memorandum and, accordingly, have not considered Mr Whichman’s further memoranda.
Decision
[40] The Cords Policy is neither unlawful nor unreasonable. Mr Whichman’s application for judicial review is declined.
[41] My preliminary inclination, without having heard from the parties, is that costs should lie where they fall. If the parties are unable to agree on costs, counsel for the Attorney-General are to file a memorandum on costs of no more than five pages within 10 working days of this judgment. Mr Whichman will then have a further 10 working days to file a memorandum on costs of no more than five pages. Costs will then be decided on the papers.
Harvey J
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