TAYLOR V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS HC AK CIV 2009-404-7339

TAYLOR V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS HC AK CIV 2009-404- 7339 8 March 2010IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2009-404-7339UNDER the Judicature Amendment Act 1972 AND UNDER the Declaratory Judgments Act 1908 IN THE MATTER OF an application for Judicial Review and Interim Relief BETWEEN ARTHUR WILLIAM TAYLOR Plaintiff AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent Hearing: 9 February 2010 Counsel: A W Taylor, Plaintiff in person V E Casey for Respondent Judgment: 8 March 2010JUDGMENT OF HEATH JThis judgment was delivered by me on 8 March 2010 at 2.00pm pursuant to Rule 11.5 of the High Court Rules Registrar/Deputy RegistrarSolicitors: Crown Law, PO Box 2858, Wellington Copy to: A W Taylor, c/- Auckland Prison, Paremoremo Road Extension, ParemoremoIntroduction[1] Mr Taylor is a serving prisoner at Auckland Prison (Paremoremo). He has filed judicial review proceedings to challenge a decision of the prison manager to terminate visits, involving physical contact, by his daughter. Mr Taylor's daughter is now two years old. [2] Interim relief is sought to require the Chief Executive of the Department of Corrections (in broad terms) to ensure that Mr Taylor has continued contact visits from his daughter, on the same terms to which he was previously entitled, pending determination of the substantive proceeding. I shall use the term "contact visits" to describe visits to a prison, during which prisoners are permitted to have physical contact with the visitor. [3] Mr Taylor is housed in the East Division of Paremoremo. That wing holds prisoners with the highest security ratings in New Zealand. Mr Taylor is classified as CB, the highest of those ratings. [4] The substantive proceeding raises two issues: a) Is a general policy of non-contact visits to prisoners in the East Division at Paremoremo lawful? b) Was the specific decision to terminate contact visits by Mr Taylor's daughter unlawful? [5] The substantive proceeding raises an important point at the interface of family and penal law. The conflict can be illustrated by reference to provisions in the Care of Children Act 2004 and the Corrections Act 2004. On the one hand, ss 4(5) and 5(c) and (d) of the Care of Children Act make it clear that preservation and strengthening of links between a child and his or her parents and guardians is generally regarded as in the best interests of a child. On the other hand, s 6(1)(a) of the Corrections Act identifies "the maintenance of public safety" as the paramountconsideration in decisions about the management of prisoners. To what extent is this Court entitled, on a judicial review application, to interfere with decisions made by a Prison Manager in respect of a prisoner's ability to interact physically with a child? 1[6] Mr Taylor's daughter was born in June 2007. She was conceived while Mr Taylor was in prison and her mother was awaiting sentence on charges relating to her part in an earlier escape from custody by Mr Taylor. Mrs Taylor was imprisoned on 18 December 2006 for a period of 20 months. However, an additional sentence was imposed on 23 March 2007 on drug related charges. She has since been released from custody. [7] Shortly after her birth, the daughter was removed from her mother's care and placed under the guardianship of the High Court. Pending finalisation of those proceedings, she was the subject of an interim custody order made under s 78 of the Children Young Persons, and Their Families Act 1989. On 17 December 2008, the Family Court at Manukau made a declaration that the daughter was in need of care and protection. That decision was upheld on appeal: see AT v Chief Executive of Ministry of Social Development. 2[8] While the term "contact" is used in the Care of Children Act to describe rights of interaction conferred (by order or agreement) in favour of a parent who does not have day-to-day care of a child, I use the term "access" in this judgment, to differentiate that type of contact from the contact visits to the prison with which this proceeding is concerned. [9] During the period between August 2008 and 15 September 2009, Mr Taylor enjoyed access to his daughter through contact visits made to Paremoremo. His daughter was transported to and from the prison by a contractor appointed by the Chief Executive of the Ministry of Social Development. A representative of the contractor was present during the access visits.1 A similar issue has arisen in the context of immigration law: see, for instance, Ye v Minister of Immigration [2010] 1 NZLR 104 (SC) at [24] and [25], per Blanchard, Tipping, McGrath and Anderson JJ, with whom (on this point) Elias CJ was in agreement.2 HC Auckland CIV 2009-404-1523, 4 September 2009.[10] There is a general policy in force within the East Division of Paremoremo prohibiting contact visits. That policy is premised on the need for close management of prisoners who pose a high security risk. I was told at the hearing that there are about 230 prisoners who are subject to that policy. [11] Section 73 of the Corrections Act defines a prisoner's "entitlement" to "private visits". A prisoner is entitled to at least one visitor per week, of not less than 30 minutes, subject to any regulations made under that Act. Regulation 112 of the Corrections Regulations 2005 deals with the supervision of such visits:112 Visits to prisoners must be supervised(1) All visits to prisoners must be supervised in a way that balances the following needs: (a) the needs of prisoners and their visitors for reasonable privacy: (b) the need to maintain the safety of any person in the prison: (c) the need to ensure the security and order of the prison: (d) the need to prevent the transfer of unauthorised items between visitors and prisoners. (2) Subclause (1) is subject to regulations 89(3), 94(3), and 107(1), and to section 74 of the Act.As a matter of practice, a non-contact visitor is separated by a perspex shield from the prisoner. Communications between the prisoner and the visitor are purely verbal, in nature. [12] Between 24 and 27 September 2009, Mr Taylor was involved in a number of incidents at the prison, during the course of which he is alleged to have damaged property. Among other items, a sprinkler was damaged, causing flooding in a cell and a landing. The incidents are regarded as serious because they are said to have imposed health and safety risks to the staff and other prisoners, as well as involving serious property damage. Criminal charges have been laid. Mr Taylor's alleged offending is regarded as too serious to be processed through the internal prisoner disciplinary system. Following those incidents, Mr Puohotaua, the Prison Manager, determined that it would not be in the interests of prisoner safety for contact visitsfrom Mr Taylor's daughter to continue. That decision was communicated to a social worker on 28 September 2009. Mr Taylor was not informed until later. [13] Mr Taylor is subject to an individual management plan. The plan was devised in February 2008, after Mr Taylor had been relocated within the prison, under a directed protective custody order. At that time Mr Taylor was facing charges, resulting from a Police and Customs operation which (allegedly) detected Mr Taylor's involvement (while in prison) in an organised criminal enterprise involving the manufacture and supply of Methamphetamine, operating outside the prison walls. Those charges have not yet been heard, though Mr Taylor has been committed for trial in this Court. [14] The management plan recorded that Mr Taylor... has organised access visits with his child and these are currently held monthly on the third Tuesday of each month. Each visit is individually organised between the Unit Manager and Pamela Putland from CYFs, however agreement has been approved by a Court order for monthly visits. All other visits are at the discretion of the Unit Manager on an individual basis and are only to be conducted in the secure interview booth or the glasshouse.[15] Mr Puohotaua has produced copies of email communications between a CYFs social worker and a prison officer requesting contact visits. The first request from the social worker was made on 13 August 2007, about two months after the daughter's birth. Visits subsequently took place. Mr Puohotaua described the arrangements that were followed routinely during those contact visits:10.1 A contact visiting room (usually used for visits from legal counsel or police interviews etc, or for compassionate reasons as I detail below) was set aside on a monthly basis. This is a small room with only basic furniture (two chairs and a table); 10.2 The IOSIS carer would remain in the room with [Mr Taylor's daughter]; 10.3 A prison staff member would supervise the hour-long visit from the other side of a glass frontage; 10.4 [Mr Taylor's daughter's] caregiver and pushchair were searched prior to entry to the visiting room; 10.5 [Mr Taylor's daughter] herself was not searched; and10.6 No toys or other items were permitted to be taken in to the visit room, but Prisoner Taylor was allowed to take in some basic items such as a pencil and paper for [Mr Taylor's daughter] to draw with, or a bag of chips and a drink.[16] Mr Puohotaua explained the basis of his decision to cancel contact visits from Mr Taylor's daughter:11. No other prisoner in the East Division is allowed contact visits of this nature nor, regular visits during the week outside of usual visiting times on the weekend, except on rare occasions involving compassionate grounds (for example, if there had been a death in the family). 12. I understand that the arrangement described above was simply left to continue without any real basis for it (except as noted, on the mistaken understanding that developed that these arrangements were in accordance with a Court order). However, events with Prisoner Taylor's conduct in the prison in September 2009 caused a review of this arrangements. 13. Annexed and marked "C" are the nine Incident Information Reports relating to Prisoner Taylor that cover the period of 24-27 September 2009, which record those incidents. 14. These matters have been referred to the Police, as they are considered too serious to be dealt with by way of the prison's internal disciplinary system. 15. Prisoner Taylor was placed on directed segregation for 14 days as a result of these incidents. As there was a prospect that this could continue through to the next visit date with [Mr Taylor's child] on 20 October, and it was understood that arrangements for these visits take some time to put in place, prison staff contacted CYF to alert them to the possibility that the visit would not go ahead. We then reviewed the status of these visits, and I formed the view that they should not continue. 16. One of the reasons for ceasing the visits was that using a staff member to arrange Prisoner Taylor's contact visits reduced the number of staff available to meet security requirements and maintain the good order of the Unit and the prison. 17. It was also considered appropriate, in terms of managing this prisoner and in terms of the good management and discipline in the prison, that Prisoner Taylor has only the same visiting arrangements as other prisoners in East Division. 18. As part of bringing Prisoner Taylor's visiting arrangements into line with other prisoners, I understand that the Department of Corrections received confirmation from Ms Putland of Child, Youth and Family Services that there was no particular reason relating to the best interests of the child that the Department of Corrections shouldconsider in relation to the special visiting arrangements, and in fact Ms Putland noted that a lower frequency of visits may be appropriate. A copy of the email dated 28 October 2009 from Ms Putland is annexed and marked "D".[17] The email from Ms Putland, to which Mr Puohotaua refers in paragraph 18 of his affidavit, states:Re CYFS view about future access: The specialist report recommends access only 3-4 times per year. CYFS supports access being determined in the best interest of [Mr Taylor's daughter] and given the other matters mentioned in the report about the anxiety and disruption to [Mr Taylor's daughter] it may be that an even lower frequency will be appropriate, however that is a matter to be determined by the Court.[18] I interpret Mr Puohotaua's evidence as asserting the following reasons for terminating the contact visits previously permitted: a) There was a need to be consistent, in the approval of contact visits, among all prisoners housed in the East Division: paras 11 and 17 b) The original contact visit arrangements had been approved in error; prison authorities believing that they had been sanctioned by an order of the Family Court: para 12 c) Mr Taylor had been involved in incidents that triggered a review of the arrangements, in light of the prison manager's obligation to manage the prison for public safety purposes: paras 12-14 d) The need to use the staff member who arranged Mr Taylor's contact visits for other security requirements and to maintain the good order of the Unit and the prison: para 16. [19] It is common ground that no security concerns arose during the course of any of the contact visits by Mr Taylor's daughter. Nevertheless, security is an issue on which the prison authorities rely. Particular concerns are set out in an affidavit from Ms Urwin, the Manager, Service Support of the Department of Corrections in Wellington. Her primary function is to oversee the daily operation of the 20 prisonsoperating in New Zealand. In particular, she has oversight of issues involving security and public safety. Ms Urwin explained the basis on which family contact visits are permitted in prisons throughout New Zealand:4. All prisons apart from Auckland Prison's East Division have arrangements in place to allow regular contact visits. Usually family friendly facilities are provided, such as a play area. Prisoners and visitors sit at the same table, and rules around physical contact are usually relaxed where children are involved. 5. Prisoners on low security classifications also have the opportunity to participate in family days two or three times a year and especially around Christmas time. Family days are set up to provide extended contact for prisoners with their families in a more 'normal' environment. These visits can include the prisoner's partner and children, and events such as a sausage sizzle or clown performances can take place. I attach marked B a copy of PPM A.02 – the national policy on Family/Whanau Relationship Maintenance & enhancement. The second part of PPM A.02 relates to those family days. 6. In addition to the above, minimum security prisoners can apply for limited releases from prison to spend time with their family. 7. Auckland Prison's East Division is New Zealand's maximum security prison, and as such has very restricted visiting conditions. In particular, with very limited exceptions, no contact visits are allowed at East Division. All visits are non contact, where the prisoner and the visitor sit on either side of a perspex screen, with a mesh divider from the top of the screen to the ceiling.8. There are multiple risks with allowing contact visits between maximum security prisoners and the public. The most obvious is the risk of contraband being smuggled into prison. The most common items would be drugs or cell phones. However, there are also other risks. High security prisoners can be violent, and one of our concerns is to minimise the risk to the public, for example by preventing any risk of hostage taking by prisoners. This is a particular concern with children visiting.9. Prisoner Taylor has a history of hostage taking as part of an attempted escape. He also has a history of having unauthorised items in prison. There is a recognised risk that he could target [Mr Taylor daughter's] carers to bring in contraband through his contacts outside the prison. I understand that there was a particular concern with this issue when [Mr Taylor's daughter] was regularly visiting her mother,[Mrs Taylor], at Auckland Women's Prison.(my emphasis)[20] Mr Puohotaua addressed the general policy against contact visits to prisoners in the East Division:19. With the rare exception of contact visits being allowed in the prison Chapel, the standard visiting conditions for all prisoners at East Division, Auckland Prison are as follows: 19.1 All visits are non-contact. They are either in a visit room with a perspex and mesh screen between the prisoner and the visitor, or in a visitor's booth. Booth visits are required for prisoners with an IDU (identified drug user) status, or on directed segregation. 19.2 All visitors aged 16 and over must be registered visitors, and children under 16 must be accompanied by a registered visitor. 19.3 Visits are on a Saturday or Sunday only subject to special approval for exceptional circumstances. 19.4 Visits are for 1 hour, or 30 minutes if held in a booth. 20. The reason for requiring the Prison Manager's specific approval for contact visits at East Division is obvious. The risk of contraband being brought into the prison and passed to prisoners is too high to allow such visits to occur on a regular basis. 21. This was a concern with [Mr Taylor's daughter's] visits to Prisoner Taylor, even with an IOSIS transporter. Prisoner Taylor is known to have contacts outside the prison and there was always the risk that pressure could be placed on the transporter (who was identified and known to be visiting the prison at a set day and time) to bring in contraband. I understand that Prisoner Taylor has recently made threats to the safety of a staff member through the use of his connections outside the prison. An email from PCO Paul Dickenson to various prison staff recording the details of that threat, dated 28 September 2009, is attached and marked "E".[21] The email of 28 September 2009, to which Mr Puohotaua refers in para 21 of his affidavit, states:Hi all The fact around this threat from Prisoner Taylor are as follows: On Friday afternoon at approx 1430 to 1530 prisoner Taylor was given a phone call using the Prisoner Pay Phone. During this call I heard him say "the staff I am talking about are Bruce, Dickenson and Whatuira" He seemed to be making reference to the way he was being treated and these staff were responsible for it. He also made comments about the regime that he was on and that it was "back to the BMR days". On Saturday afternoon at approx 1315 I was talking to Prisoner Taylor in the rec area in Charlie Block. He clearly made specific threats to the safety of an officer. He stated "If that fucking Vern (Whatuira) thinks he is a tuff cunt then lets see how tuff he is on the outside" I immediately questioned hisstatement and got him to repeat his threat. He then said "I know someone who will pay him a visit and then lets see how tuff he is" He was informed that this sort of behaviour was unacceptable and was to stop immediately. He then seemed to calm down and was more rational, however I still deemed this to be a serious threat to one of my staff. The Prison manager has been informed of this and has asked me to put it in writing to you all.[22] In support of his argument that his situation should be addressed on an individual basis, Mr Taylor has deposed that he is the only prisoner at Paremoremo who has a young child in the Chief Executive's custody, in circumstances where CYFs agreed that he should have contact access with his child and agreed to accept responsibility to provide transport to, and supervision of, such access visits. Mr Taylor contends that given his unique circumstances, no issue of consistency of treatment arises.Jurisdiction to grant interim relief[23] The application for interim relief is made in reliance on s 8 of the Judicature Amendment Act 1972. The authorities make it plain that before an interim order may be made, the Court must be satisfied that the order sought is reasonably necessary to preserve an applicant's position. Once that threshold requirement is satisfied, the Court has a wide discretion to consider all circumstances of the case: generally, see Carlton and United Breweries Ltd v Minister of Customs3 at 430, 431 and 433 and Minister of Fisheries v Antons Trawling Co Ltd4 at [3]. [24] In Carlton and United Breweries Ltd v Minister of Customs,5 Cooke J expressed the test as follows:Of course I am not suggesting that there should be any general rule that a prima facie case is necessary before interim relief can be granted under s 8. In general the Court must be satisfied that the order sought is necessary to preserve the position of the applicant for interim relief — which must mean reasonably necessary. If that condition is satisfied, as the chief Justice was entitled to find that it was here, the court has a wide discretion to consider all the circumstances of the case, including the apparent strength or weakness of3 [1986] 1 NZLR 423 (CA).4 [2007] NZSC 101, (2007) 18 PRNZ 754.5 [1986] 1 NZLR 423 (CA) at 430.the claim of the applicant for review, and all the repercussions, public or private, of granting interim relief. ...Although four other members of the Court gave separate judgments, Cooke J's remarks have been applied consistently as the appropriate test. 6[25] Ms Casey, for the Chief Executive of the Department of Corrections, has raised two jurisdictional issues: a) The prohibition, in s 8(2), of coercive interim orders against the Crown. However, she acknowledges that the Court has jurisdiction to make an interim declaration. b) The absence of any power, under s 8, for the Court to make an order for interim relief requiring a Crown entity to take positive steps to comply with the order: see McBride v Christchurch College of Education7 and Skilton v Fitzgibbon.8[26] Ms Casey relied on s 8(1) of the Judicature Amendment Act 1972, McBride v Christchurch College of Education and Skilton v Fitzgibbon9 to support her proposition that an interim declaration could not be made in mandatory terms. [27] Section 8(1) provides:8 Interim orders(1) Subject to subsection (2) of this section, at any time before the final determination of an application for review, and on the application of any party, the Court may, if in its opinion it is necessary to do so for the purpose of preserving the position of the applicant, make an interim order for all or any of the following purposes: (a) Prohibiting any respondent to the application for review from taking any further action that is or would be consequential on the exercise of the statutory power:6 most recently, by the Supreme Court in Minister of Fisheries v Antons Trawling Co Ltd [2007] NZSC 101 at para [3]; (2007) 18 PRNZ 754 at para [3], .7 (1994) 7 PRNZ 662 (HC).8 (1998) 12 PRNZ 58 (HC).9 Ibid at [59].(b) Prohibiting or staying any proceedings, civil or criminal, in connection with any matter to which the application for review relates: (c) Declaring any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by effluxion of time before the final determination of the application for review, to continue and, where necessary, to be deemed to have continued in force.[28] Different rules apply where the Crown is a respondent to the application for judicial review. Section 8(2) provides:8 Interim orders... (2) Where the Crown is the respondent (or one of the respondents) to the application for review the Court shall not have power to make any order against the Crown under paragraph (a) or paragraph (b) of this section; but, instead, in any such case the Court may, by interim order,— (a) Declare that the Crown ought not to take any further action that is or would be consequential on the exercise of the statutory power: (b) Declare that the Crown ought not to institute or continue with any proceedings, civil or criminal, in connection with any matter to which the application for review relates.[29] The Crown's position is based on the wording of both s 8(1) and (2). Ms Casey submits that interim declarations against the Crown are restricted to those matters set out in s 8(2)(a) and (b) and s 8(1)(c). [30] In McBride, Williamson J considered that a positive or mandatory order fell outside the scope of s 8. His Honour, at 665, opined that only orders a) prohibiting a respondent from taking further action that is or would be consequential on the exercise of the statutory power, or b) prohibiting or staying any civil or criminal proceedings in connection with any matter to which the application for review relates, or c) declaring, in respect of licences that have been revoked or suspended in the exercise of the statutory power or which will be revoked orsuspended before final determination of the judicial review application, could be made under s 8. [31] Mr Taylor seeks an order in these terms:... pending the determination of his Application for judicial review, or further order of the Court [the Chief Executive of the Department of Corrections] must allow [Mr Taylor] to have contact visitation with [his daughter] on the same terms and under the same conditions as existed prior to the Manager of Auckland Prison cancelling that contact on or about 28 September 2009.[32] The terms in which Mr Taylor's interim relief application is couched offends s 8(2) because it places a mandatory obligation on the named official to do something. However, the essence of Mr Taylor's claim is that the position that pertained prior to the decision of 28 September 2009 should be restored. In that sense, what Mr Taylor seeks is a declaration that the status quo involving contact visits continue pending determination of the present case. Is there jurisdiction to make such an order? [33] The judgments of Williamson and Laurenson JJ in McBride and Skiltonrespectively, were given orally. There is little analysis of the precise terms of s 8(1). In particular, no consideration seems to have been given to the possibility that s 8(1) was not exhaustive in its terms, given that the orders to which Williamson J referred in McBride are preceded by "the Court, may, make an interim order for all or any of the following purposes: ..." The type of relief listed in s 8(1)(a)-(c) are examples of "purposes" rather than a restrictive list of orders that the Court may make. [34] In 2001, the Law Commission considered the vexed topic of mandatory relief against the Crown. 10 The Commission recognised limitations in the wording of s 8, particularly in the context of an apparent ability, both under the prerogative writs and the judicial review procedure, to make orders in the nature of mandamus against the Crown.11 Notwithstanding that inconsistency, Parliament has not seen fit to legislate10 Mandatory Orders Against the Crown and Tidying Judicial Review (NZLC SP10, 2001).11 M v Home Office [1994] AC 377 (HL), in which the House of Lords held that the Home Secretary, though not personally at fault, was guilty in his official capacity of contempt of Court for defiance byto provide the same type of interim relief as would be available after a final hearing. In my view, this is fatal to Mr Taylor's claim. An order declaring that the Crown ought not to do any particular thing or take further action cannot restore the status quo, before 28 September 2009, in respect of contact visits by his daughter. For that narrow jurisdictional reason, the application for interim relief must fail.What should happen?[35] Had jurisdiction existed to make a mandatory interim order, I would have held that there was a serious question to be tried. It is clear from the evidence of Ms Urwin that contact visits are regarded, in most prisons, as an appropriate means of enhancing family and whanau relationships. Further, some of the reasons given by Mr Puohotaua for terminating the contact visits are distinctly contestable. For example, there did not seem to be any problem in using the relevant staff member to supervise the contact visits, and not attend to other security requirements, while the contact visits were in place. Also, it seems difficult to accept that the prison authorities would not have taken steps to verify the existence of any Court order, had one been put in place; 12 particularly for a high security prisoner such as Mr Taylor. [36] I say no more than that because there are security issues arising out of the incidents in late September 2009 that may well have a significant effect on the validity of the decisions made. The impact of those incidents on security concerns cannot be assessed without the evidence being tested adequately. [37] In my view, this proceeding must be dealt with promptly. In saying that, I acknowledge that Ms Casey has consistently submitted that a prompt hearing was preferable to an application for interim relief. That has proved to be the case.Result[38] The application for interim relief is dismissed. Costs are reserved.one of his officials of a mandatory injunction made against him, requiring return of a deportee. The House of Lords held that an injunction had, originally, been issued validly.12 See para [18](d) and (b) above.[39] The Registrar is directed to set the proceeding down for a case management conference before a Judge on the first available date after 5 March 2010. At that time, any issues relating to cross-examination and the likely duration of the hearing will need to be discussed, as will the need for any further affidavits in support of or in opposition to the substantive application. [40] My view is that the hearing should be afforded some urgency. The Registrar is directed to obtain some indication as to the feasibility of that from the Civil List Judge, Lang J; preferably before the case management conference is held. ____________________________ P R Heath J Delivered at 2.00pm on 8 March 2010