TAYLOR v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2016] NZHC 1805 [10 August 2016]

TAYLOR v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2016] NZHC 1805 [10 August 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2014-404-3127[2016] NZHC 1805UNDER THE Judicature Amendment Act 1972, part 30of the High Court Rules, the DeclaratoryJudgments Act 1908 and the common lawIN THE MATTER OF an action for Judicial Review, anddeclarationsBETWEEN ARTHUR WILLIAM TAYLORApplicantAND THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 4 April 2016Counsel: Applicant in personA M Powell for RespondentJudgment: 10 August 2016RESERVED JUDGMENT OF ELLIS JI direct that the delivery time of this judgment is2.45 pm on the 10th day of August 2016Table of contentsThe evidence [5]Mr Taylor's late evidence [26]Mr Taylor's claim [29]The Corrections Act 2004 [34]Analysis [40]Does delaying Mr Taylor's participation in the STURP engageMr Taylor's right not to be arbitrarily detained? [42]Did the decision to remove Mr Taylor from the STURP fail to take into account a relevant consideration? [55]Did the decision to delay his entry to and then remove him from the STURP take into account an irrelevant consideration or was it made for an improper purpose? [64]Was the decision unreasonable? [70]Summary [71]Remedy [72][1] Nearly 40 years ago this Court broke new jurisprudential ground when it held that prisoners could judicially review disciplinary decisions taken against them by prison authorities.1 Prior to that, the orthodoxy had been that correctional statutes, regulations and rules were neither intended to confer nor capable of conferring enforceable rights upon prisoners.[2] McMullin J's seminal decision in Daemar v Hall was expressly approved the following year by Megaw LJ the English Court of Appeal.2 Since that time, the tideof reviewability has moved slowly but inexorably forward. The Court's supervisoryjurisdiction has since been exercised over many aspects of prisoner life. The tension between the need for prisons to function effectively and efficiently, and the rights of prisoners who have neither the personal autonomy nor the social capital to act in protection of their own interests has, by and large, been satisfactorily resolved on a case by case basis.[3] For that reason it seems to me that it is no longer helpful to view the question of when the Courts should or should not refrain from intervening in the operation of the corrections system as one of justiciability, which merely invites futile attempts at line-drawing. Rather, as Lord Bridge said in R v Deputy Governor of Parkhurst Prison ex parte Hague:3 the availability of judicial review as a means of questioning the legality of action purportedly taken in pursuance of the prison rules is a beneficial and necessary jurisdiction which cannot properly be circumscribed by considerations of policy or expediency in relation to prison administration. Those considerations only come into play when the court has to consider, as a matter of discretion, how the jurisdiction should be exercised.[4] The issue in the present case is whether this Court can and should intervenein Arthur Taylor's ongoing dispute with the prison authorities about the prerequisites to his participation in a rehabilitative programme which is said to be critical to his release on parole. The Corrections Department accept that Mr Taylor is now eligible1 Daemar v Hall [1978] 2 NZLR 594 (SC).2 R v Board of Visitors of Hull Prison, ex parte St Germain [1979] 1 QB 425 at 449. In that case the Court of Appeal sought to limit the scope of judicial supervision of prison management by holding that a wide class of administrative decisions, such as transfers, classification and involuntary segregation should remain beyond judicial review. St Germain was later approved by the House of Lords in Leech v Deputy Governor of Parkhurst Prison [1988] AC 533.3 R v Deputy Governor of Parkhurst Prison, ex parte Hague [1992] AC 58, 155.to participate in the programme and, in principle, that he should be enrolled in it. The dispute is centred on whether or not he will have to transfer through another prison before doing so.The evidence[5] Mr Taylor is a long serving prisoner. He has for some time been incarcerated in the East Division of Auckland Prison, which is also known as Paremoremo.4Mr Taylor's release date is October 2022 but he became eligible for parole inSeptember 2012. The Parole Board has made it clear that his satisfactory completion of the Special Treatment Unit Rehabilitation Programme (STURP) is effectively a precondition to the grant of parole. It is not in dispute that in order to participate in the STURP Mr Taylor was required, first, to reduce his security classification to"Low-Medium" and, secondly, then to be transferred from Auckland Prison to one of the Low-Medium security prisons that offer the programme.[6] Mr Taylor's road to the STURP first hit a stumbling block when a review ofhis security classification in mid 2014 resulted in it remaining at "High". InSeptember last year I issued a judgment holding that that decision was unlawful because (inter alia) it was wrongly based on his refusal to transfer voluntarily from D Unit to B Unit at Auckland East Division and was made with the improper purpose of compelling him to agree to transfer.5 In fact, however, Mr Taylor'sclassification had already been reduced to Low-Medium, as a consequence of the next six monthly review, before his judicial review was heard.6[7] In the meantime, however, on 2 October 2014 (which was also prior to the hearing of that earlier application for review) Mr Taylor had been moved by force to B Unit. But on his arrival there he immediately flooded his cell and activated the4 Auckland Prison comprises three physically separate parts: (1) East Division, with 261 beds divided into Units known as Alpha, Bravo, Charlie and Delta Units, a Special needs Unit, a Management Unit and an At Risk Unit; (2) West Division which has five units and 240 beds and (3) Three satellite 60 bed units. East Division is the only prison in New Zealand that is set up to house and manage maximum security prisoners and the Division is managed in a way that reflects the particular risks posed by the prisoners who are housed there. The level of security required necessarily means that rehabilitative programmes such as the STURP cannot be offered at Auckland East.5 Taylor v Chief Executive of the Department of Corrections [2015] NZHC 2196.6 I discussed the issue of mootness in passing at [3] and [60] of my earlier judgment.sprinkler system. He was removed that same day and placed in the Management Unit and then in the Special Needs Unit (SNU).[8] On 22 October Mr Taylor was moved from the SNU to A Unit, which is mainly used for segregated prisoners. Mr Taylor agreed to be segregated voluntarily and he was housed on a landing where he was able to mix with eleven other prisoners. It is said that he developed a good rapport with one of the Principal Corrections Officers there and he also continued to have more-or-less fortnightly appointments with a Corrections psychologist, Dr Wilson. These visits were also regarded by the Department and the Parole Board as playing an important part in his rehabilitation. There were no further incidents involving Mr Taylor.[9] In December 2014, and in anticipation of the reduction in Mr Taylor'ssecurity classification, there were discussions between the Prison Director, Mr Sherlock, and Dr Wilson about Mr Taylor's potential participation in the STURP.Initially, Dr Wilson and Mr Sherlock appear to have been agreed that once Mr Taylor's security classification had come down it would be (in Mr Sherlock'swords): preferable for Mr Taylor to move from Alpha Unit to a mainstream low medium unit at another prison when his security classification reduced, rather than waiting at Alpha Unit for a place to come up.[10] In January 2015, after Dr Wilson had made inquiries about the available STURP options for Mr Taylor he formed the clinical judgment that the program offered at the Karaka Unit at Waikeria Prison was the most suitable. His inquiries revealed that the Karaka Unit could accommodate Mr Taylor in any of the April, July or September 2015 intakes. As a result of his inquiries Dr Wilson changed his mind about the need for Mr Taylor to transition through a Low-Medium security unit. That was reflected in an email he sent to Mr Sherlock on 19 January 2015 in which he said:7Finally, since my last meeting with Mr Taylor I have spoken with the Principal Psychologist for Karaka unit at Waikeria Prison. He has convinced me that my initial plan for Mr Taylor to go firstly to a mainstream unit at7 For reasons which escape me, Dr Wilson's identity as the writer of this email was redacted in thecopy that was provided to Mr Taylor. The email is, however, indisputably authored by him.Waikeria to settle him and then onward to the STURP is not the best option. He recommended that Mr Taylor would be better off going straight from A Block to Karaka once he was waitlisted for the programme. Therationale for going straight to Karaka was Mr Taylor's effective engagementwith myself in treatment and his age and social skills would see him fit in rapidly and that he does not have the violence behavioural issues that would require further observation in a low-medium mainstream unit prior to moving to Karaka.[11] Consistent with this email are the notes of Dr Wilson's therapy session withMr Taylor in February 2015. The notes show that the session focussed on what support would be required to support Mr Taylor's move to Karaka. And in a furtheremail dated 20 February Dr Wilson again confirmed that:8The plan in place is that once Arthur is reclassified as low security and thus able to attend a STURP programme (as per his sentence plan and the Parole Board direction) and he is able and willing to attend Karaka unit at Waikeria. Karaka unit have been consulted and are happy to have him move there once he is able to. I am working on transitioning him to Karaka once his classification is completed.[12] The day before this email was sent there had been a scheduled meeting between Mr Taylor, Mr Sherlock and Dr Wilson to discuss Mr Taylor'srehabilitation plan. But Dr Wilson was unwell and was unable to attend. It seems that it was at this meeting that Mr Sherlock first raised with Mr Taylor the idea that he should transition through Auckland West and then participate in the September intake of the STURP. Mr Taylor was unenthusiastic, to say the least. His concerns were subsequently conveyed to Mr Sherlock by Dr Wilson.[13] Mr Taylor was reclassified as Low-Medium very shortly afterwards. He was, from that point, formally eligible for the STURP.[14] The affidavit filed by Mr Sherlock in these proceedings confirms that his view at this time was that it was in Mr Taylor's interests to transition through a "mainstream low medium unit" rather than waiting at A Unit, before moving toWaikeria. He said:Following on from my discussion with Dr Wilson in December 2014, I remained of the view that transferring Mr Taylor directly from the Alpha Unit at Auckland East where he mixed with 11 other prisoners to an STU8 The email is written to someone at head office whose name has, for some reason, been redacted.like the Karaka Unit which he would share with 79 other prisoners including some undergoing a drug treatment program was not a good idea. That was also the view of the HCN Panel.9 A suggestion was made, which I agreed with that the best course would be to shift him first to a unit at Auckland West where he would be mixing with 47 other prisoners.There had been an improvement in Mr Taylor's attitude to the authority of corrections officers and he seemed to have adjusted well to the less restrictive environment on the Alpha Unit landing. I took that into account. On the other hand, he had only been in Alpha Unit for a relatively short period and his response to the forced move had involved misconduct. Also, while less restrictive than Delta Unit, Alpha Unit is a segregation Unit and therefore not really like the mainstream Low Security environment Mr Taylor would be going to if transferred to an STU.Rehabilitation programmes are a central part of prisoner management. They are specifically mentioned in the Corrections Act 2004. Participation in those programmes is only going to be of assistance to a prisoner if they are effective and can be completed and that depends on how ready the prisoner is to undertake them. Here [sic] a prisoner goes into a program too early or without the necessary skills, it can result in failure which will inhibit the success of future programs.Also I must keep in mind the wider interests of rehabilitation. If Mr Taylor attends a popular program like STURP for which there is a waiting list and he is not ready to do it, he will be taking a place that could have been provided to another prisoner who would have gained from it.[15] Nowhere in Mr Sherlock's affidavit does he refer to the email he receivedfrom Dr Wilson, which I have set out at [10] above.[16] Mr Sherlock's statement that his view at this time was shared by the HCNPanel seems at odds with the Panel's meeting minutes of 29 January. They merely note that although Mr Taylor had historically expressed a preference for participation in the STURP at Rimutaka he had recently said to his Case Manager that he wasopen to other locations "as long as it progresses him closer to his identifiedrehabilitative programmes". The minutes then record that Mr Sherlock was directedto present to the Panel "a proposal that is supported by [Dr] Nick Wilson, Regional Commissioner and ARP HIP Team".[17] Mr Sherlock also deposed that on 24 February the HCN Panel decided that Mr Taylor would be moved to Auckland West and be "tested" before being moved9 The High and Complex Needs (HCN) Panel is a national level ("head office") committee whichis designed to give prison directors like Mr Sherlock expert advice about the management of certain prisoners like Mr Taylor who are perceived as having high and complex needs.to Waikeria. Contrary to that evidence, however, this decision is not reflected in thePanel's minutes which are annexed to his affidavit.10 Indeed the annexed minutes suggest the opposite. They record (as had the January minutes):Plans were discussed to send Taylor to Chch but unsuitable. Hasclassification review soon and will come out as 'low'. Plan now is to sendhim to Waikeria Prison to eventually participate in STURP.[18] The minutes also note that Mr Taylor is reported as "mixing well with others"(on his landing at A Unit).[19] A member of the secretariat to the HCN Panel, Ms Watkins, deposed that the need for Mr Taylor to transition through Auckland West was, in fact, raised by Mr Sherlock with the Panel in May 2015. She said:At the HCN meeting in May 2015, Prison Director Tom Sherlock advised that the usual process was for offenders coming out of Auckland East to have a transition period in a mainstream prison environment before transferring to another prison. This was in order to test their behaviour in a more open environment prior to transfer, particularly for offenders going to be placed on programmes at their new prison.The discussion topic was whether there should be any departure from that practice for Mr Taylor. Mr Sherlock's view was that there should not andthere was general agreement that there was no reason to treat Mr Taylor any differently to any other prisoners when it came to that decision.[20] There is no evidence that suggests that Dr Wilson's viewpoint was put to the Panel or considered by it. Nor (it seems) was there reference to the Panel's directionthat any proposal be supported by Dr Wilson.[21] It does appear that at various points from March to the beginning of July 2015 there were further discussions with Mr Taylor about transferring to Auckland West prior to moving to Karaka. Those discussions did not involve Dr Wilson. On 22 June Mr Sherlock recorded that Mr Taylor had acquiesced to the Auckland West proposal. The following day advice was received from Dr Wilson that Mr Taylor was confirmed as a participant in the September STURP intake at Karaka. But it seems that Mr Taylor subsequently withdrew his consent to the Auckland West transfer and a week later (on 30 June) he was advised that he had10 The annexed minutes appear to relate to a January HCN Panel meeting. No February minutes are annexed.1been withdrawn from the September intake. As I understand it, he has remained at Auckland East ever since.[22] On 7 July Mr Taylor appeared before the Parole Board again. The Board noted the recent events I have just recorded but said that the issues were for Mr Taylor and Corrections to resolve. It reiterated its strong support for Mr Taylor'sparticipation in the STURP.[23] On 27 July 2015 Dr Wilson completed a Psychological Treatment Report about Mr Taylor. The report strikes me as the insightful result of the 27 treatment sessions which had, by then, occurred between Dr Wilson and Mr Taylor. Dr Wilson notes that, while he was preparing his report, he was advised that Mr Taylor had been withdrawn from the September STURP intake. Dr Wilson records Mr Taylor's response as follows:Mr Taylor reported that he did not believe he needed to spend several months in a unit at Auckland West prior to attending treatment if the rational[e] for this move was to address concerns over his socialization skills. He pointed to his current open placement in A Block as providing evidence of his social skills with him mixing with larger groups of other offenders without problems and that the change in unit population provided a range of social interactions. Mr Taylor commented that he would have been open to moving units if he could see it as valid but instead saw the proposal as an obstruction to his treatment and a placement that could expose him to risk from prisoners who were not engaged in rehabilitation.[24] The report concluded:The writer supports the recommendation that Mr Taylor attend specialist treatment in a STURP programme as soon as practicable to build on the gains he has achieved in his individual treatment. No group socialisation issues have been identified that would be barriers to his engagement in a STURP programme. However, his transition from his current placement in A Block will need to be carefully managed to address his anxiety. In this regard it is recommended that Mr Taylor receive a limited number of individual sessions with a psychologist to assist his transition into therapy at a STURP.[25] Mr Sherlock has deposed that this was the first time Dr Wilson had expressed the view that Mr Taylor should move straight from A Unit to the STURP. Thatevidence is, however, contradicted by the email he received from Dr Wilson some six months earlier, in January 2015.11Mr Taylor's late evidence[26] Just prior to the hearing of the present application for review Mr Taylor sought leave to file a further affidavit in which he deposed that he had just learned that the Unit at West Division to which Corrections wished him to transfer was a High security unit, not a Low-Medium security unit. He said that although there are some Low-Medium security prisoners in that unit, they were subject to the High security regime, and were not kept separate from the High security prisoners (whichhe said is contrary to Corrections' policy).[27] The respondent opposed the admission of this affidavit. But later, Mr Powell filed a memorandum in which he acknowledged that there had been an error in therespondent's submissions, and that Units 2 and 3 at West Division (where it had beenproposed to place Mr Taylor) were, indeed, High, rather than Low-Medium security.The memorandum advised that "Due to muster pressure low medium prisoners are sometimes also housed there while awaiting placement elsewhere."[28] In my view Mr Taylor's new evidence was fresh in the sense that it had only just been made available to Mr Taylor, whose present circumstances do not make obtaining such information easy. I also accept the evidence is cogent. I say that not because it might justify in retrospect Mr Taylor's refusal to transfer but because it arguably undermines the reasons given by Mr Sherlock for requiring the transfer in the first place. I therefore take it into account, where relevant, below.Mr Taylor's claim[29] Mr Taylor's claim for review is based on the following undisputed facts:(a) he did not agree or want to move to Auckland West;11 Dr Wilson does not refer to that email in his affidavit, either. It is, however, consistent with the conclusions he recorded in July.(b) at all material times he was a Low-Medium security prisoner and eligible to participate in the STURP;(c) the Parole Board recorded its view that he should participate in the STURP as soon as possible and that his completion of the programme was, in effect, a prerequisite to serious consideration for parole;(d) there were placements available for him to attend the April, July and September 2015 STURP courses at Karaka Unit;(e) his psychologist supported his move directly from Auckland East to Karaka; and(f) he was placed in, but later removed from, the September 2015 STURP intake because he refused to transition through Auckland West.[30] As to the reason given by Corrections for requiring him to move to Auckland West before going to Karaka Unit, Mr Taylor says:(a) apart from what he describes as a small "clique" at national office,there was unanimous support for him to commence the STURP without any need to transition via Auckland West;(b) there is no evidence that he requires "group socialisation", and this isconfirmed by Dr Wilson;(c) the requirement to move to Auckland West is a pretext which has been"conjured up" to delay and impede his rehabilitation pathway andultimate release from prison;(d) Auckland South Corrections Facility (ASCF) would, in any event, be a more logical choice than Auckland West, as it has a similar mix of prisoners who associate together in the same or larger numbers, but isfocused on rehabilitation and the prisoners are more "pro-social", sohe would be exposed to less risk; and(e) transition via Auckland West would have no benefit to him, and as the majority of the prisoners there are not engaged in rehabilitation, he could get drawn into their more anti-social activities, and thereby undo the progress he has made from his treatment with Dr Wilson.[31] And Mr Taylor says that in making the decision to remove him from theSeptember course because of a concern that he might not be "ready" for it,Mr Sherlock ignored:(a) the fact that the lengthy period spent by Mr Taylor in D Unit resultedfrom a misclassification as "maximum" rather than "high" security;(b) his successful engagement in counselling sessions with Dr Wilson;(c) his successful transition from D Unit to A Unit;(d) the fact that there had been no misconduct issues since his transition to A Unit, and good reports in every area of behaviour; and(e) that his sentence plan did not include any activity or programme that he needed to go to Auckland West to undertake.[32] Mr Taylor also says that:(a) there was no review or reconsideration of the refusal to allow him to attend the STURP programme following Dr Wilson's report of 27 July2015 and the Parole Board decision of 7 July, both of which reiterated the importance of the programme;(b) it was illogical/irrational to ensure that he would not complete STURP by refusing to allow him to participate on the pretext that he might not succeed unless he first went to Auckland West; and(c) the effective failure to permit him to participate in the STURP constituted an arbitrary detention contrary to the New Zealand Bill of Rights Act 1990 (the NZBORA).[33] Before turning to consider the merits of Mr Taylor's claims, however, it isnecessary to say something about the statutory context.The Corrections Act 2004[34] The purposes of the corrections system set out in s 5 of the Corrections Act 2004 (the CA) refer to the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules) and, specifically, to rehabilitation. In particular, s 5(1)(c) provides that:(1) The purpose of the corrections system is to improve public safety and contribute to the maintenance of a just society by—(c) assisting in the rehabilitation of offenders and their reintegration into 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;[35] Section 6 requires persons exercising powers and duties under the Act to take into account the principles set out in that section, including (most relevantly12):(a) the s 6(1)(f) principle that decisions about prisoners are taken in a fair and reasonable way;(b) the principle that sentences are not to be administered more restrictively than is reasonably necessary (s 6(1)(g)).(c) the s 6(1)(h) principle 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 into the community:12 Mr Taylor also relied on subs 6(1)(a) and (c) but I do not regard them as particularly material.[36] Section 8(1)(a) provides that it is the chief executive's function to ensure thatthe corrections system operates in accordance with the s 5 purposes and the s 6 principles.[37] Section 50 requires that the chief executive must ensure that, as far as is practicable, every prisoner is provided with an opportunity to make constructive use of his or her time in prison. Section 51 provides that management plans are required for every prisoner who is sentenced to imprisonment for a term of more than two months and that they must be revised at regular intervals. And in terms of content, subs (4) provides that each plan must (inter alia):(c) outline how the prisoner can make constructive use of his or her time in the prison (including, in the case of a person sentenced to imprisonment, ways of addressing offending behaviour and preventing reoffending); and(d) outline how the prisoner may be prepared for eventual release from the prison and successful reintegration into the community; and(f) be consistent with the resources available to the chief executive to manage the prisoner.[38] Section 52 deals specifically with rehabilitative programmes in terms which reflect s 5(1)(c):The chief executive must ensure that, to the extent consistent with the resources available and any prescribed requirements or instructions issued under section 196, rehabilitative programmes are provided to those prisoners sentenced to imprisonment who, in the opinion of the chief executive, will benefit from those programmes.[39] For completeness, I record that ss 53 – 56 of the CA deal with the transfer of prisoners from one prison to another. There are specific, defined, grounds uponwhich transfer can be ordered, including in order to assist in facilitating a prisoner'srehabilitation. That is no doubt the basis upon which Mr Taylor's transfer toWaikeria would occur. Mr Taylor did not seek to argue that those provisions are engaged in the present case; the transfer with which he takes issue is from onedivision of Auckland Prison to another (East to West) not a transfer from Auckland to another prison.13Analysis[40] Mr Taylor's pleading can, I think, be distilled into the following basic contentions:(a) failure to provide Mr Taylor with timely access to the rehabilitative programmes he needs in order to have a chance of obtaining parole renders his detention arbitrary and unlawful;(b) the decision to remove him from the STURP:(i) failed to take into account a relevant consideration (Dr Wilson's view);(ii) took account of an irrelevant consideration or was made for an improper purpose (his refusal to transfer to Auckland West); or(iii) was unreasonable in the Wednesbury sense.[41] I deal with each in turn.Does delaying Mr Taylor's participation in the STURP engage Mr Taylor's right notto be arbitrarily detained?[42] Mr Taylor's contention that the continued denial of access by him to the STURP constituted an arbitrary detention was based, in particular, on certain decisions of the English Courts and the European Court of Human Rights (ECtHR). Those decisions have held that a formerly lawful detention can become arbitrary and contrary to art 5 of the European Convention on Human Rights (ECHR) if a prisoner is not given the rehabilitative facilities to enable him to progress towards release.13 The power to transfer prisoners has been held, in principle, to be reviewable; see for exampleR v Home Secretary, ex p. MacAvoy [1984] 1 W.L.R. 1408.[43] Article 5 relevantly provides:1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:(a) the lawful detention of a person after conviction by a competent court;4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.[44] The provisions of ss 22 and 23 of the NZBORA are broadly analogous.14[45] It suffices to refer to:(a) the judgment of the ECtHR in James, Lee and Wells v United Kingdom15 (James v UK) in which the ECtHR disagreed with the decision of the House of Lords in R (James, Lee and Wells) v Secretary of State for Justice16 (R (James)). The House of Lords inR (James) held that no breach of art 5(1) of the ECHR was involved in a failure properly to progress prisoners towards post-tariff release; and(b) the subsequent judgment in R (Haney & Ors) v Secretary of State for Justice17 (R (Haney)) in which the UK Supreme Court revised the approach taken in R (James).[46] These cases (and the others to which Mr Taylor referred me) were brought by prisoners who had been sentenced to indeterminate sentences. In essence the14 For reasons that will become evident, I do not need in this judgment to consider whether there are material differences between the NZBORA and the equivalent international instruments.15 James, Lee and Wells v United Kingdom (2013) 56 EHRR 399.16 R (James, Lee and Wells) v Secretary of State for Justice [2009] UKHL 22; [2010] 1 AC 553.17 R (Haney & Ors) v Secretary of State for Justice [2014] UKSC 66, [2015] AC 1344.prisoners contended that they had not been sufficiently progressed towards release(offered rehabilitation) on or after the expiry of their "tariff" periods.[47] At the time of the decisions in question there were two forms of indeterminate sentence in England and Wales: a sentence of life imprisonment and a sentence of Imprisonment for Public Protection (IPP). An IPP was available (and was, initially, in some cases mandatory) for a much wider range of offences and led to a catastrophic increase in the prison muster.18[48] Both kinds of indeterminate sentence were conceptually regarded as being composed of two parts. The first part was the minimum term, fixed by the sentencing court according to the gravity of the offence and the circumstances of the offender. This constituted what is known as the "tariff". The second part was theindefinite term beyond that minimum, in which period the prisoner could be released, not unconditionally but on licence, if he was judged by the Parole Board no longer to present an unacceptable risk to the public. The rehabilitative steps taken by such prisoners were of course an essential part of the necessary release pathway for them; if rehabilitation was not available, they would remain in jail.[49] It is unnecessary to review the cases in great detail here. It suffices to note that in R (Haney) the Supreme Court:(a) did not agree with the ECtHR in James v UK that a failure to provide appropriate opportunities to prisoners serving indeterminate sentencesto progress towards release after the expiry of their "tariff" periodconstituted arbitrary detention under art 5(1). The principal reason for this was that the logical consequence of the ECtHR position was that such prisoners would then be required to be released before the Parole Board was satisfied that their detention was no longer required for the protection of the public;18 The IPP sentence has since been abolished.(b) agreed with the ECtHR in James v UK (and disagreed with the House of Lords in R (James)) that rehabilitation is included in the purposes of a life sentence or an IPP sentence;19(c) agreed with the ECtHR in James v UK that it is implicit in the scheme of art 5 that the state is under a duty to provide a reasonable opportunity for such a prisoner to rehabilitate himself and to demonstrate that he no longer presents an unacceptable danger to the public;(d) did not agree with the ECtHR in James v UK that that duty can be found in the express language of art 5(1) (for the reasons to which I have referred to in (a)) and said, rather, that it was a duty which was ancillary to the right contained in art 5(4); and(e) held that the breach of that ancillary duty did not affect the lawfulnessof the detention but sounded in damages "for legitimate frustrationand anxiety, where such can properly be inferred to have beenoccasioned" and said:20Except in the rarest cases it will not be possible to say what might have been the outcome of an opportunity by way of a prison programme which was not provided or was provided late. It will thus not, except in the rarest cases, be possible to establish any prolongation of detention.[50] In terms of the content of this ancillary duty, the Supreme Court said:21 the question arises in what precise terms and in particular at what preciselevel the duty should be put. As a matter of domestic public law, complaint may be made in respect of any systemic failure, any failure to make reasonable provision for an individual prisoner so egregious as to satisfy theWednesbury standard of unreasonableness or any failure to apply established policy. The question is whether liability for breach of article 5 is similarly limited. In our opinion, it is not. The express rights conferred by article 5 are individual rights. The ancillary right which we identify as existing under19 The view expressed by the House of Lords had been based on the fact that, at that time, reform and rehabilitation were not express purposes of the relevant sentencing process. In New Zealand, s 7(h) of the Sentencing Act 2002 makes rehabilitation a purpose of all sentences.20 At [39]. These dicta are reflected in the quantum of damages (around the £500 mark) awarded in Haney itself.21 R (Haney & Ors), above n 17, at [41]–[42] (citations omitted).article 5 is also a right in favour of each individual prisoner and its satisfaction or otherwise depends upon the particular circumstances of the individual case. Although the European court was concerned in James v United Kingdom with circumstances in which there had been systemic failures in the United Kingdom, the decision was based on a careful individual analysis of each applicant's prison history.The ECtHR does not however insist at the international level on standards of perfection that would be unrealistic, bearing in mind the numbers of prisoners involved and the limits on courses, facilities and resources in the prison system. Nor should domestic courts do so.[51] Interesting as this decision is, however, it has no application in Mr Taylor'scase. That is because its dicta are entirely predicated upon the existence of an indeterminate sentence. In my view they have no application to prisoners such as Mr Taylor, whose sentence, though lengthy, is finite.[52] The reason for this was articulated by Lord Hope in R (Giles) v Parole Boardas follows:22 Where the prisoner has been lawfully detained within the meaning of article 5(1)(a) following the imposition of a determinate sentence after his conviction by a competent court, the review which article 5(4) requires is incorporated in the original sentence passed by the sentencing court. Once the appeal process has been exhausted there is no right to have the lawfulness of the detention under that sentence reviewed by another court. The principle which underlies these propositions is that detention in accordance with a lawful sentence passed after conviction by a competent court cannot be described as arbitrary. The cases where the basic rule has been departed from are cases where decisions as to the length of the detention have passed from the court to the executive and there is a risk that the factors which informed the original decision will change with the passage of time. In those cases the review which article 5(4) requires cannot be said to be incorporated in the original decision by the court. A further review in judicial proceedings is needed at reasonable intervals if the detention is not to be at risk of becoming arbitrary.[53] In other words, the total length of Mr Taylor's sentence has been fixed by thesentencing Court. It is for this reason that, even if he is never granted parole and remains in prison for the whole of that sentence, his detention will not become arbitrary or unlawful. By contrast with prisoners serving indeterminate sentences (here, either life or preventive detention) no part of his sentence (as opposed to his early release) is left for later decision by the executive (the Parole Board). Accordingly any indigenous equivalent to the art 5(4) right to test the legality of his22 R (Giles) v Parole Board [2003] UKHL 42, [2004] 1 AC 1, at [51].continued detention cannot apply.23 Nor can any duty that is ancillary to such a right.[54] For completeness, I record that Mr Taylor relied on the decision in A (Victim) v New Zealand Parole Board for the proposition that the "punishment" part of adeterminate sentence is limited to that portion of it that must be served before parole eligibility arises.24 However to the extent that this decision does suggest that such a juridical distinction can be drawn in New Zealand (and I am far from certain that it does) I respectfully disagree with it.Did the decision to remove Mr Taylor from the STURP fail to take into account a relevant consideration?[55] As Mr Powell submitted, the provisions of the CA which deal with rehabilitation are both aspirational and contingent in nature. So although s 52 is expressed as a duty (requiring the chief executive to ensure that rehabilitative programmes are provided), that duty is expressly stated to be subject to:(a) available resources;(b) any prescribed requirements or instructions; and(c) the chief executive's judgment about who will benefit from suchprogrammes.[56] Putting to one side those prisoners who are subject to indeterminate sentences (discussed above) there can, therefore, be no absolute right to access rehabilitative programmes of a particular kind at a particular time. There can, in my view, be no question of s 52 imposing either a private or public law duty to offer rehabilitative programmes to a particular prisoner; the most that can be said is that the chief executive (and his delegates) have a discretion in that regard.25 None of the other23 Section 23(1)(c) of the NZBORA is probably the most direct equivalent.24 A (Victim) v New Zealand Parole Board [2008] NZAR 703 (HC).25 Equally, however, it seems to me that s 52 (and the CA as a whole) would not permit the chief executive to make no provision for rehabilitative programmes at all. I note that in R v Toia[2014] NZHC 867 Brewer J said that the similarly expressed s 50 obligation to provide prisoners with an opportunity to make constructive use of their time in prison meant that prisoners couldnot be forced to "vegetate".references to rehabilitation in the CA (or s 7(1)(h) of the Sentencing Act 2002) alters that position.[57] In light of the wider statutory context, however, I am prepared to proceed on the basis that s 52 constitutes (or gives rise to) a statutory power of decision, namely the power to decide whether to permit a particular prisoner to engage in a particular rehabilitative programme.[58] The starting point in terms of any application for review of the exercise of that power is that whether or not Mr Taylor or any other prisoner should be permitted to participate in a programme such as the STURP is inherently a matter forevaluation and judgment. The Court's supervisory jurisdiction does not generally permit it to engage in a rehearing of the merits of an impugned decision. The mere fact that the Court might consider that a better decision could have been made on the facts does not mean that the application for review should succeed. Failure by a decision-maker to consider a relevant consideration is only fatal if the consideration can be said to be expressly or impliedly mandatory. It is trite that the unreasonableness threshold is a very high one. And in the present case care is also required because Mr Sherlock was not cross-examined on his evidence.26[59] An unusual aspect of this case, however, is that it cannot be disputed that the s 52 contingencies were met here; it is not disputed that there was a STURP programme available to Mr Taylor (he had, after all, been accepted in the September 2015 STURP intake) or that it was thought that he would benefit from the STURP. The preconditions for the exercise of the power were met; there were no real issues around resources, the muster or risks which precluded it.[60] Mr Sherlock was plainly of the view, however, that a prior and mandatory transfer through Auckland West was desirable, for the reasons he gave in his evidence and which I have summarised above. While Mr Sherlock did not exercise his power forcibly to move Mr Taylor to Auckland West, that was the effect of his stance. He required Mr Taylor choose either to transfer "voluntarily" (as a stepping26 No application for cross-examination was made by Mr Taylor, no doubt because of his past absence of success in that area.stone to Waikeria) or to face the prospect of remaining at Auckland East for the foreseeable future, with no prospect of access there to the STURP.[61] The first issue in the present case arises because Mr Sherlock's contentionthat Mr Taylor required to transition through West Division essentially for socialisation purposes was contradicted by Dr Wilson's view about that. I confess that I find Mr Sherlock's failure to confront Dr Wilson's advice either at the time orsubsequently (by omitting reference to his January email from his affidavit) is troubling.[62] I have found this issue to be a difficult one. I accept that it is reasonable to expect that, when making a decision about whether a particular prisoner should be permitted to participate in (or withdrawn from) a rehabilitative programme the chief executive (or his delegate) will take into account all the relevant information that is available to him. The "one size fits all" approach apparently adopted by Mr Sherlock is suggestive of an over-rigid (and possibly discretion fettering) approach. That approach seems particularly inapt when dealing with a prisoner who has long been recognised as having high and complex needs, such as Mr Taylor. Mr Taylor attended nearly 30 one-on-one sessions with Dr Wilson as part of his rehabilitation pathway. The HCN Panel directed that Dr Wilson's input, and support,should be obtained. And Dr Wilson expressed the view (both in January 2015 and then in July) that the linkage between what he had achieved and what was to happen next was important, required management and would best be achieved by transferring Mr Taylor straight to Waikeria.27[63] But although I regard Dr Wilson's opinion about Mr Taylor's placement was relevant to the decision made by Mr Sherlock I am unable to find that it was a mandatory consideration here. There is no express requirement that such a view be sought and I can see no basis for implying one. As the discussion in the previous paragraph shows, to hold that Mr Sherlock was required (as a matter of law) to seekout Dr Wilson's view or to take into account he was, necessarily invites entry into of the merits of the impugned decision. So while I consider that Mr Sherlock should,27 I accept entirely that it would have been open to Mr Sherlock to consider Dr Wilson's opinionand then to choose to follow another course. But there is no evidence that this is what occurred.ideally, have taken Dr Wilson's views into account, his failure to do so does notconstitute a vitiating error.Did the decision to delay his entry to and then remove him from the STURP take into account an irrelevant consideration or was it made for an improper purpose?[64] As I have said, it was agreed that the STURP was available to Mr Taylor and that he would benefit from it. The question that therefore arises is whether the decision to remove him from the September intake was made for a collateral and improper reason, namely to make Mr Taylor accept direction (or to punish him for not taking it). That question is, of course, very similar to the one that was the central subject of my earlier decision in these proceedings.[65] The starting point is that there can be no doubt that the transfer issue arose against the pre-existing contentious background of Mr Taylor's securityclassification and his refusal "voluntarily" to transfer to B Unit at Auckland East.Corrections' desire to get Mr Taylor voluntarily to "take direction" as to hisplacement was at the forefront of that dispute. In my earlier judgment I found that that desire had wrongly played a part in the decision about his security classification.[66] As well as that general background there are two further matters that suggest that the same irrelevant consideration was at play here. Mr Sherlock justified the decision effectively to require Mr Taylor to transition through Auckland West on thebasis that transition through a "mainstream low security prison" would make it morelikely that Mr Taylor would complete, and benefit from, the STURP. But that view was, as I have said:(a) contrary to the expert view of Dr Wilson (which was effectively ignored); and(b) belied by the fact that it now seems that the Auckland West Units to which it was proposed to transfer Mr Taylor were not Low-Medium security at all.[67] I accept that a prisoner's ability to "take direction" might be relevant to adecision about whether he is ready for a particular rehabilitation programme. Moreparticularly, a prisoner's "institutional conduct" (which might include "taking direction") can be indicative of that prisoner's motivation to change and therefore hislikely success in such a programme.28 The difficulty here, however, is that Mr Sherlock did not rely on that as justifying his removal decision.29[68] Accordingly, and in light of these matters, it seems to me that there is a clear inference to be drawn that the decision removing Mr Taylor from the STURP was (again) principally motivated by a desire to make Mr Taylor accept direction at all costs. I regard that as irrelevant to the decision to remove him from the STURP and find that it was wrongly taken into account.[69] I necessarily have some hesitation in coming to this conclusion given that Mr Sherlock was not cross-examined on his evidence. But the omissions from his evidence of the two matters referred to at [66](a) above are, ultimately, telling.Was the decision unreasonable?[70] In light of the conclusion just expressed it is unnecessary to consider this ground of review further.Summary[71] In summary, and based on the circumstances outlined above, I have formed the view that removing Mr Taylor from the STURP was made on the basis of an irrelevant consideration, namely that he was (again) refusing to "take direction" as tohis place of incarceration.28 At [64] of my earlier judgment I set out evidence that had been given to that effect by the Principal Case Manager at Auckland Prison, Ms Miller-Burgering. She was not, however, the relevant decision-maker here.29 As I have said, he said his decision was made because the transition was regarded as desirable for socialisation reasons and because it was considered that Mr Taylor should not be treated differently from any other prisoner.Remedy[72] Mr Taylor submitted that he should, in fact, have been placed in the April 2015 STURP course, which he would have completed in January 2016. That (he said) would mean he would almost certainly now be in a self-care facility and would have had a very good chance of being released on parole following the hearing in June 2016. Mr Taylor invited the Court to craft an "effective remedy"accordingly.[73] I am unable to indulge in any kind of speculative approach in terms of the relief (if any) that I grant. I am not willing to proceed on the basis that Mr Taylor"should" have been accommodated in an earlier STURP intake. Given the waitinglists and competing demands from other prisoners, the decision to put him in the September intake appears to me to be unimpeachable. And while Mr Taylor may well have successfully completed the September STURP programme by now (had matters taken a different turn in mid-2015) equally, however, he might not have.[74] It is also impossible to ignore the fact that, despite the conclusion I have reached above Mr Taylor's choice to challenge that decision through the Courts hasnecessarily caused further delay. There is necessarily a sense that his victory in this case is a Pyrrhic one.[75] So in terms of my discretion to grant relief, all I am prepared to do is to record the conclusions I have articulated above. What the Parole Board makes of those conclusions will be a matter for them. There can be no question of directing the removal decision to be made again because the September 2015 STURP intake is history. Nor can I direct that Mr Taylor be immediately enrolled in the next available STURP intake and I do not do so. There are far too many extraneous, operational, factors at play about which the Court has no knowledge and with which it should not engage.[76] In my view what now needs to occur is for Mr Taylor's participation in theSTURP to be considered afresh, in light of this (and my previous) judgment, and updated advice about an appropriate pathway from Dr Wilson or some other suitably qualified person. I say no more than that.[77] In formal terms, therefore, the application for review is granted to the extent that I consider that the decision to remove Mr Taylor from the STURP was based on an irrelevant consideration. All other grounds of review are dismissed.[78] I make no remedial orders, for the reasons I have given."Rebecca Ellis J"Solicitors: Crown Law, Wellington, for RespondentCopy to: Mr Taylor