TAYLOR v ATTORNEY-GENERAL [2018] NZHC 2557

TAYLOR v ATTORNEY-GENERAL [2018] NZHC 2557 [28 September 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-797[2018] NZHC 2557UNDER the New Zealand Bill of Rights Act 1990 andthe Declaratory Judgments Act 1908IN THE MATTER of unreasonable search and public lawcompensation in the manner of BaigentdamagesBETWEEN ARTHUR WILLIAM TAYLORFirst PlaintiffPHILLIP JOHN SMITHSecond PlaintiffAND THE ATTORNEY-GENERAL ON BEHALFOF THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSDefendantHearing: 19 – 21 March 2018Appearances: First and Second Plaintiffs in person with Ms T Hartman asMcKenzie Friend for First PlaintiffP J Gunn and K Laurenson for DefendantJudgment: 28 September 2018JUDGMENT OF PETERS JThis judgment was delivered by Justice Peters on 28 September 2018 at 4 pmpursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: ...................................Solicitors: Crown Law Office, WellingtonCopy for: First and Second PlaintiffsIntroduction[1] On 21 October 2016, the plaintiffs, both serving prisoners then housed in Eastdivision at Auckland Prison ("division" and "prison"), were "strip searched". Theircase is that the strip searches were unlawful; unreasonable and so in breach of s 21New Zealand Bill of Rights Act 1990 ("NZBORA"); and inhumane or undignified,and so in breach of s 23(5) NZBORA. They seek declarations accordingly, andcompensation of $10,000 each.Background[2] The prison is New Zealand's only "maximum security" facility and as suchhouses many, if not all, of the country's most violent and dangerous offenders.[3] On 19 October 2016, four prisoners in C block of the division attacked prisonofficers ("assault"). An officer brought items requested by a prisoner to a grille thatseparated prisoners from officers. As the officer opened the grille, three otherprisoners appeared and forced open the grille. The four prisoners began attacking theofficers present, fighting and kicking them. Two prisoners had "home-made"weapons, referred to as "shanks", which they used to stab officers.[4] Other officers ran to the scene and eventually brought the situation undercontrol. In all, four officers were injured, one of whom required hospital treatment.1[5] Staff recovered three weapons from the prisoners. An important point forpresent purposes is that one or more appeared to have been fashioned from a metalbracket within the "standard issue", and intended to be tamper proof, televisionavailable to prisoners.2 The brackets are one of just a handful of metal items in theTVs which are cased in clear plastic.1 Evidence of R T Sherlock, Notes of Evidence ("NoE") at 64–65.2 At 64.[6] One officer thought two of the prisoners appeared drunk.3 Officers laterlocated a plastic bag containing fruit and liquid, and suspected that the prisoners hadbeen drinking "homebrew". This suspicion was never confirmed, however, and thecontents of the bag were not tested for alcohol.4[7] After the assault, Mr Robert Sherlock, the then prison manager, ordered thedivision into "lockdown", meaning that each prisoner was confined to his cell. Therewas an immediate meeting of senior management to take stock of the situation, and afurther meeting the following morning, on 20 October 2016.[8] Mr Sherlock and senior staff of the prison, including Mr Solomon Nui, the"residential manager" of the four blocks (A, B, C and D) in the division, attended themeeting on 20 October 2016. Also present were representatives of the prison's localand regional intelligence groups, and Ms Jeanette Burns, the Northern RegionalCommissioner of Corrections. Ms Burns had gone to the prison the previous afternoonwhen she learned of the assault.[9] In the course of this meeting and having heard from those present, Mr Sherlockdecided that every prisoner in the four blocks and in the Special Needs unit should bestrip searched, and their cells and all common areas also searched. Mr Sherlock'sevidence was that the search was to be "for weapons, homebrew and the items neededto make homebrew".5 Mr Sherlock excluded prisoners in the Management andAt Risk units on the grounds that the regime to which they were subject made it mostunlikely they would have any unauthorised item in their possession.[10] This decision made, the searches commenced. Searches of the prisoners inC block, where the assault took place, were completed that day.[11] The remainder of the searches, including those of the plaintiffs, werecompleted the next day. There was a further meeting on 21 October 2016 before thesearches recommenced.3 Brief of Evidence of M E Beukes dated 9 October 2017 at [3].4 Evidence of S T A Nui, NoE at 187–188.5 Brief of Evidence of R T Sherlock dated 9 October 2017, at [12].Reasons for the strip searches[12] Mr Sherlock gave evidence that his decision to order the strip searchesreflected several matters.[13] First, Mr Sherlock wished to ensure that any weapons held by prisoners wereseized, whether those weapons had been made from TV brackets or anything else.From a "health and safety perspective", Mr Sherlock did not consider the search couldor should be confined to C block.6 The shanks used in the assault were not the first oftheir kind to be discovered and it was possible that other prisoners might haveextracted a bracket from their TV for the same purposes.[14] Mr Nui's evidence was that it would not be sufficient just to inspect TVs andsearch cells. That was because it was not always immediately obvious that a bracketfrom a TV had been removed, as the prisoner concerned might, for instance, havesubstituted coloured or tin foil covered cardboard.7[15] Secondly, Mr Sherlock said that it was rare for staff to discover homebrew, ifthat is what it was. If it was homebrew, Mr Sherlock doubted that it would be confinedto those particular prisoners and would be likely to be elsewhere.8 Mr Sherlock'sevidence was that these risks, being the presence of weapons and homebrew, or theingredients to make homebrew, required as comprehensive a search as possible, thatis of cells, common areas and prisoners by way of strip searches.9[16] Homebrew can be made from fruit, sugar and a starter containing yeast.Although yeast and yeast based products, such as Marmite, are banned on the prisonestate, a prisoner receives a daily allowance of sugar and is allowed up to nine piecesof fruit in his cell. Given this, Mr Taylor and Mr Smith submitted that it is mostunlikely that a strip search would ever be necessary to detect the presence of fruit orsugar, as there would be little point in a prisoner concealing such items on their person– and rather obvious in the case of the quantity of fruit required for homebrew.6 Evidence of R T Sherlock, above n 1, at 76–77.7 Evidence of S T A Nui, above n 4, at 188.8 Evidence of R T Sherlock, above n 1, at 134.9 At 134.Regardless, Mr Sherlock, supported by Mr Nui, considered that the possibility ofmanufacture of homebrew was another reason pointing to the need for a strip search.[17] Thirdly, Mr Sherlock stated that it was understood that the assault had a "gangaspect" as three of the prisoners involved were from one gang and the fourth fromanother.10 Mr Nui confirmed that the possibility of gang involvement was a concern.[18] However, this concern of gang involvement was not held by the prison'sintelligence group. In fact, Mr Nui acknowledged that, at the meeting on 21 October2016, an intelligence officer said that no information was available to support thepossibility of gang involvement in the assault. Asked why the strip searches in A, Band D blocks continued despite this, Mr Nui replied "because the risks still existedthat it was gang related", and that the intelligence officer's statement was made in thecourse of an oral briefing and was not contained in a written report.11 This was not aconvincing response, given it is the intelligence group's role to be informed of suchmatters.[19] Mr Sherlock also gave evidence that time was of the essence if staff were tolimit the potential for prisoners to dispose of contraband and the possibility of disposalalso made it necessary to strip search the prisoners. Mr Sherlock was not satisfied thatany of the other, less intrusive searches to which I refer below would be sufficient.12Mr Sherlock's evidence was "I wanted to do the best I could to lower risk andconsidered strip searches necessary to do that".13Other evidence[20] Ms Burns' and Mr Nui's evidence was not materially different fromMr Sherlock's. Ms Burns' evidence was that she agreed with Mr Sherlock's decisionto conduct the various searches to which I have referred, although the decision wasone for Mr Sherlock to make as manager of the prison.10 Brief of Evidence of R T Sherlock, above n 5, at [7].11 Evidence of S T A Nui, above n 4, at 210.12 Brief of Evidence of R T Sherlock, above n 5, at [15].13 At [15].[21] Mr Sherlock did not take legal advice as to whether he had power to order amass strip search, and nor did he consult the Prison Officers Manual issued by theChief Executive of Corrections.14 Nor did Ms Burns or Mr Nui take any of these steps.[22] In all, the gist of the evidence for the Department was that all of the searches –cells, common areas and of prisoners – were intended to eliminate or minimise risk,whether of the presence of weapons or homebrew or the ingredients to make the same.Evidence regarding the plaintiffs[23] Mr Taylor and Mr Smith were situated in A block. The assault took place inC block. There is no suggestion that either Mr Taylor or Mr Smith was involved inthe assault.[24] Each block is physically removed from the other and the prisoners from oneblock do not come into contact with prisoners from another. Although Mr Sherlockreferred to the possibility of contraband moving around the prison, there was noevidence that this happened frequently or was a factor in the present case.[25] To the extent generalisations can be made, C block houses maximum-securityprisoners, being those considered to pose the greatest risk.15 Prisoners in A blockgenerally have lower security classifications and so are considered to pose less risk.[26] At the time of the assault, Mr Taylor was a low-medium security prisoner andMr Smith high security.16 Neither has a history of violence. Neither has ever beenfound to be in possession of a weapon. Neither has ever been associated with a gang.Mr Smith has no recollection of ever being found with contraband on his person or inhis cell.17 Two or so years before the assault, Mr Taylor was found in possession ofcurry powder or pepper which had been taken from the kitchen.1814 Corrections Act 2004, s 196(1).15 Brief of Evidence of R T Sherlock, above n 5, at [3].16 Brief of Evidence of A W Taylor dated 22 August 2017 at 1; and Brief of Evidence of P J Smithdated 22 August 2017 at [6].17 Brief of Evidence of P J Smith at [20].18 Evidence of S T A Nui, above n 4, at 193.[27] Mr Taylor questioned Mr Sherlock as to what precisely was known or believedas regards the plaintiffs on 20 and 21 October 2016:19Q. At the time you ordered the search of both Mr Smith and myself, thestrip search, not the search of ourselves the strip search of our person,you had no information whatsoever that suggested we were inpossession of any weapons or items that could be used to makeweapons?A. No.Q. At the time you ordered the strip search of myself and Mr Smith didyou have any information whatsoever that Mr Smith or myself werein possession of any unauthorised items?A. No.Q. Did you give any consideration, whatsoever ... as to myself andMr Smith's individual circumstances before you ordered that stripsearch of us?A. As individuals, no.[28] Mr Smith asked Mr Sherlock whether he, Mr Sherlock, knew whether theplaintiffs had the ingredients required to make homebrew. Mr Sherlock replied:20A. I didn't know whether you had or not. Likewise for all the otherprisoners that we gave instruction to be searched. That was the cruxof it, because we'd identified the, if you like, the insecure nature ofthese particular televisions and the ability to remove items that couldbe made into shanks. And the fact that homebrew had been used inthis particular incident, we didn't know how far that extended acrossthe East Division in terms of prisoner's abilities or their possession of.Search[29] In total 209 prisoners were strip searched. None of these strip searches yieldedanything of consequence, although searches of some of the cells did. As a result ofinformation supplied to me after the hearing, it appears two shanks were found in cells,although not in A block; a blade from a pair of scissors in a common area in A block;and a container of what was believed to be homebrew in a common area elsewhere.19 Evidence of R T Sherlock, above n 1, at 94–95.20 At 93.[30] The strip searches of the plaintiffs were conducted in accordance with theformal requirements of the Act, that is in private and by male officers.21 Each searchtook no more than a couple of minutes. Thereafter there was a "scanner" search ofeach prisoner and a search of each cell. No complaint is made as to these latter twosearches.Were the searches lawful?[31] The plaintiffs contend the searches were unlawful on the grounds that theywere in breach of ss 6(1)(f)(ii) and (g), 98 and 102 of the Act. I shall start with s 98,which is the most significant provision in this case.Section 98[32] Section 98 of the Act provides for a scanner, rub-down, strip and x-ray search.Each of these searches has its limitations. A scanner search is conducted with a"wand", of the type commonly seen at airport security checks. A scanner search willdetect metal but nothing else. A strip search requires the prisoner to remove his or herclothes, in this case top half followed by bottom half, and thereafter to followinstructions that will enable the officer to see all parts of the body. A strip search willnot reveal anything concealed internally. An officer carrying out a rub down searchmay run or pat his or her hand over the body of the person being searched, or inserthis or her hand inside any pocket or pouch in the clothing, other than underclothing.[33] The material parts of s 98 are:98 Search of prisoners and cells(1) An officer may, at any time, for the purpose of detecting anyunauthorised item, conduct—(a) a scanner search of any prisoner:(b) a rub-down search of any prisoner:(c) a search of any cell in a prison.21 Corrections Act 2004, s 94.(2) Nothing in subsection (1)(c) limits or affects any power or authorityto search or inspect any cell in any prison for any purpose relating tothe security of the prison.(3) An officer may conduct a strip search of a prisoner—(a) if the officer—(i) has reasonable grounds for believing that the prisonerhas in his or her possession an unauthorised item; and(ii) has obtained the manager's approval to the conduct ofa strip search; or(b) in the situations referred to in subsection (6).(4) Despite subsection (3)(a)(ii), it is not necessary to obtain the approvalof a prison manager for the conduct of a strip search under subsection(3) if the delay involved in obtaining that approval would endangerthe health or safety of any person or prejudice the maintenance ofsecurity at the prison.(5) The power to conduct a strip search of a prisoner under subsection (3)may only be exercised—(a) for the purpose of detecting any unauthorised item; and(b) if a strip search is necessary in the circumstances for thepurpose of detecting an unauthorised item.(6) The situations referred to in subsection (3)(b) are as follows:(9) An officer may conduct an x-ray search of a prisoner Section 98(3)(a) and (5)[34] It was common ground between the plaintiffs and Crown counsel, Mr Gunn,that the strip searches of the plaintiffs would be lawful only if the requirements ofs 98(3)(a)(i) and (5) were met. The real issue between the parties was whats 98(3)(a)(i) does require. Before I address those provisions, I note that s 98(3)(b)refers to "situations referred to in subsection (6)". Those situations cover particularoccurrences such as a prisoner's temporary release from custody, his or her return toprison, or the prisoner's transfer to another prison. Nothing of that nature arises in thiscase.[35] The plaintiffs submitted that the effect of s 98(3)(a)(i) is that a strip search willbe lawful only if the officer conducting the strip search believes that the particularprisoner to be searched has an unauthorised item in his or her possession, and hasreasonable grounds for that belief.22[36] The plaintiffs contend the search was unlawful because there was no belief thateither had an unauthorised item in their possession, let alone a belief held onreasonable grounds. Each of Mr Sherlock, Ms Burns and Mr Nui accepted in evidencethat they did not turn their minds to Mr Taylor or Mr Smith individually. Mr Beukes,who searched Mr Smith, gave evidence that at the time the searches were conductedhe did not have any "specific intelligence or other information that there washomebrew, homebrew ingredients or weapons on any of the prisoners" in A block, orB or D blocks or the Special Needs unit for that matter.23[37] The plaintiffs also addressed the alternative methods of search that might havebeen employed to detect a weapon or homebrew or its ingredients and submitted thata strip search was not "necessary" in the sense of s 98(5). I do not propose to addressthis submission, because it is unnecessary to do so.[38] Mr Gunn acknowledged that the decision to strip search was made withoutconsidering either Mr Taylor's or Mr Smith's individual circumstances and whethereither might have a weapon or homebrew in their possession. Mr Gunn did not accept,however, that rendered the searches of them unlawful. Mr Gunn's submission wasthat the assault and the use of weapons, and the prospect that prisoners were makinghomebrew, gave rise to a health and safety issue for prisoners and staff alike. Inaddition, the weapons used in the assault had derived from the TV that virtually everyprisoner, including the plaintiffs, had in his cell. Mr Gunn submitted that thecombination of these circumstances gave rise to reasonable grounds to believe allprisoners who were searched, including Mr Taylor and Mr Smith, had an unauthoriseditem in their possession.22 Given that all searches followed the order or direction given by Mr Sherlock, no issue arises as to"approval" under s 98(3)(a)(ii) or (4).23 Evidence of M E Beukes, NoE at 246.[39] However, this submission does not confront the words of s 98(3)(a)(i) and, inparticular, the reference to "the prisoner" (being the prisoner to be searched) and "has"in his or her possession. I consider s 98(3)(a)(i) permits an officer to strip searchMr Taylor or Mr Smith if the officer has reasonable grounds to believe Mr Taylor orMr Smith has in his possession an unauthorised item and not otherwise.[40] The fact that two or three other prisoners had converted an authorised item(fruit or a TV with a bracket in it) to an unauthorised item (homebrew or a bracketoutside of a TV and able to be used as a weapon) and that the plaintiffs might dolikewise, did not permit of a strip search of the plaintiffs.[41] Given that, it is unnecessary for me to address the other arguments the plaintiffsmade as to the proper construction of s 98(3), being whether anything is to be drawnfrom the order of the two limbs of s 98(3)(a), that is reasonable grounds first, approvalsecond, and the significance of s 98(5) to s 98(3)(a)(i). In any event, the Court ofAppeal addressed this latter point in Forrest v Attorney General, to which I referbelow.24Authorities[42] This is not the first case in which the Court has considered s 98 or for thatmatter possible consequential breaches of ss 21 and 23(5) NZBORA. Other relevantauthorities on s 98 are as follows.[43] Mitchell v Attorney-General, which was argued after the strip searches in thepresent case had taken place, is a similar case as it required consideration ofs 98(3)(a)(i).25 Prisoner A told prisoner B that there was cannabis in a wing of ArohataPrison. Prisoner B relayed this information to the prison manager who ordered animmediate strip search of the 16 prisoners in the wing. The search took place within20 minutes or so thereafter. Fifteen of the prisoners in the wing complied, Ms Mitchellrefused.24 Forrest v Attorney-General [2012] NZCA 125, [2012] NZAR 798.25 Mitchell v Attorney-General [2017] NZHC 2089, [2017] NZAR 1538.[44] Ms Mitchell sought, and Thomas J granted, a declaration that the strip searchof the 15 was unlawful. Thomas J said:[15] It is clear that, contrary to s 98(3), the Corrections officers conductingthe searches did not have reasonable grounds to believe Ms Mitchell or anyother individual prisoner was in possession of an unauthorised item. ThePrison Manager should not have approved (or decided to approve) the stripsearch in those circumstances. The information received did not identify anyindividual as being in possession of cannabis or any other illegal drug. [45] It is clear from this passage that Thomas J considered that s 98(3)(a)(i)permitted a strip search of Ms Mitchell only if there were reasonable grounds tobelieve that she was in possession of an unauthorised item.[46] Mr Gunn sought to distinguish this case on the following factual matters.Thomas J described the information as to the presence of cannabis in the wing as"vague" and sourced from a prisoner, and the decision to search in the Mitchell case,and the search itself, took place very quickly. Mr Gunn submitted that there was no"vagueness" in the present case, it was a known fact that weapons had been used inthe assault and that similar weapons could be made from any television. Mr Gunnalso referred to Mr Sherlock's evidence that the meeting on 20 October 2016 lastedsome 45 minutes, so the decision to search was not rushed or hasty.[47] However, these matters of fact do not detract from the point Thomas J wasmaking, namely that the search was unlawful because the information conveyed to theauthorities did not identify a particular prisoner and there is no power to conduct amass search.[48] Forrest v Attorney General is also very relevant. Officers strip searchedMr Forrest twice in one day as they moved him between blocks. In the High Court,Chisholm J determined that the first search was unlawful and the second lawful.26Mr Forrest appealed the finding on the second search.2726 Forrest v Attorney-General of New Zealand HC Christchurch CIV-2009-409-2373, l November2010.27 Forrest v Attorney-General, above n 24.[49] The issues on appeal were whether s 98(3)(b)/(6) applied and, if so,whether the search was "necessary" in the sense of s 98(5). The Court of Appealexpressed reservations as to the first issue but in any event determined that the searchwas not necessary. In passing, the Court also responded to evidence that there was ablanket policy of strip searching every prisoner on admission to a particular block ofthe prison, saying that any such policy would be unlawful if it existed. The Court said:[13] the second strip search was not carried out for the specifiedstatutory purpose set out in subs (5) [14] Whether "a strip search [was] necessary in the circumstances" will bea very fact-specific inquiry. For example, if a scanner search or a rub-downsearch was likely to detect the particular unauthorised item the prisoner wassuspected of carrying, then a strip search would be less likely to be found tobe "necessary in the circumstances". Where the prisoner had recently been(for instance, a prison kitchen) might be relevant in an assessment of necessity.The history of the particular prisoner would generally be a very relevantcircumstance: a strip search may well be considered "necessary" if theprisoner has a history of secreting unauthorised items in body orifices.[16] The officers in the present case did not undertake the sort of analysisimplicit in s 98(5). [T]wo justifications for the strip search emerged [fromthe evidence]. One of the officers involved said it was conducted because notlong before there had been "a control and restraint incident involving threatsto staff". That was a reference to what had happened in the interview room. Asecond explanation was proffered by the same officer in cross-examination.He said it was always the practice to strip search inmates on entry to J Block.Another officer who gave evidence confirmed this was the practice.[17] Neither explanation justified the strip search. None of the threeofficers said he thought Mr Forrest was carrying an unauthorised item or couldpoint to evidence justifying an inference he might be. Some of the evidencewould suggest that the prison was running an informal blanket policy of stripsearching every prisoner on his admission to J Block. We make no finding onthat, as it is unnecessary to do so. Were there such an informal policy, ofcourse, it would have been unlawful [50] What appears from these passages is, first, that there must be a suspicion (or abelief on reasonable grounds) that the prisoner is carrying an unauthorised item;secondly, a determination of whether a strip search, as opposed to some other search,is necessary to retrieve it, with that determination to be made having regard to the itemand the particular prisoner; and, thirdly, that any policy of routine strip searching isunlawful.[51] In Reekie v Attorney-General, Wylie J determined several complaints byMr Reekie in respect of events between late 2002 and early to mid-2003.28 One ofMr Reekie's complaints was that he had been "routinely strip searched, between twoand six times per day, even when he was constantly with staff, or in a pre-searchedarea", and that the same was not permitted by s 21K of the Penal Institutions Act 1954,the predecessor provision to s 98(3) of the Act.29[52] The Judge accepted this evidence and held the searches were unlawful, saying:[265] Having considered all of the evidence which was presented to me, Iaccept the evidence that Mr Reekie was routinely strip searched. Inmates,including Mr Reekie, were strip searched to ensure that they had not obtainedand hidden on their person any item that they could use to self-harm whenthey were placed in their cell. However, the necessity for a strip searchshould have been considered on an inmate by inmate basis and on eachoccasion. There is no evidence that staff considered the necessity of thesearches or what alternatives might have been available.(Emphasis added)[53] I have not referred to the litigation in Taunoa v Attorney-General because thefacts of that case are far removed from the present.30 It is fair to say, however, that ateach instance – High Court, Court of Appeal and Supreme Court – the Court washighly critical of the manner in which prisoners were subjected to routine, gratuitousand frequent strip searches.[54] To conclude, s 98(3)(a)(i) permits a strip search of a prisoner only if it isbelieved, on reasonable grounds, that prisoner has an unauthorised item in his or herpossession. The search in this case was unlawful because no such belief was held.Section 102[55] The plaintiffs also contend that the strip searches were unlawful for breach ofs 102. It is common ground that the defendant did not comply with s 102 which, tothe extent relevant, provides:28 Reekie v Attorney-General [2012] NZHC 1867.29 At [259].30 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429; Attorney-General v Taunoa[2006] 2 NZLR 457 (CA); and Taunoa v Attorney-General (2004) 7 HRNZ 379 (HC).102 Reporting of unauthorised items discovered, certain searches, andplacement in dry cells(2) Every officer who conducts a strip search of any person in thecircumstances described in section 98(3)(a) (whether or not theapproval of a prison manager is required to undertake that search) must, promptly after the search [report the details of the search to theprison manager or the supervisor as the case may be].(4) Every report under subsection (2) must contain—(a) the reasons for the search; and(b) the details of any unauthorised item discovered as a result ofthe search.(5) Every person to whom a report is made under subsection (2) must ensure that a record of that report is made and kept.[56] The evidence before me was that the prevailing practice was to keep a recordof a strip search if an unauthorised item were found, but not otherwise. All concernedaccepted that the provisions of s 102 apply to every strip search to which it refers, andMs Burns' evidence was that additional training has since been given to ensure futurecompliance. Nothing turns on the non-compliance in this case. Nor do I consider thatnon-compliance could render unlawful an otherwise lawful strip search. The breachof s 102 is not material in this case.Section 6[57] Lastly, the plaintiffs also contend that the strip searches were unlawful forbreach of s 6. Section 6 is concerned with principles governing the operation of thecorrections system, such as the need to treat those under control fairly and reasonablyand to avoid administering an order more restrictively than necessary. Theseprinciples are to be taken into account if applicable and to the extent practicable. InForrest, the Court of Appeal referred expressly to the principles of s 6 as guiding anydecisions made under s 98. However, it is unnecessary for me to consider the isolatedissue of whether there was a breach of s 6, as it adds nothing to the plaintiffs' case. Inthose circumstances, it is best to put that matter to one side for present purposes.Conclusion on Corrections Act 2004[58] The strip searches of Mr Taylor and Mr Smith were not authorised by s 98 andwere unlawful.New Zealand Bill of Rights Act 1990[59] The plaintiffs also submit that the strip searches breached their rights underss 21 and 23(5) NZBORA, which provide:21 Unreasonable search and seizureEveryone has the right to be secure against unreasonable search orseizure, whether of the person, property, or correspondence orotherwise.23 Rights of persons arrested or detained(5) Everyone deprived of liberty shall be treated with humanity and withrespect for the inherent dignity of the person.Section 21[60] Mr Gunn accepted that the strip search in this case would be unreasonablewithin the meaning of s 21 if the search was unlawful for want of compliance withs 98(3)(a)(i). This was a proper concession.31Section 23(5)[61] Mr Taylor and Mr Smith made four submissions as regards their contentionthat the effect of the strip search was to breach s 23(5) NZBORA.[62] The first was that the search was undertaken without reasonable grounds andwithout considering whether it was necessary.31 Forrest v Attorney-General, above n 24, at [18].[63] Secondly, the 209 prisoners searched included a teenager, a transgenderprisoner and some who were elderly. The plaintiffs were embarrassed and humiliated,and Mr David Obiaga, another prisoner in A Block and who gave evidence, likewise.32[64] The third submission was based on Taunoa, to the effect that an unlawful andunreasonable strip search diminishes dignity and engenders feelings of anguish andinferiority. However, that statement in Taunoa was made in the context of routine stripsearches, not apropos of a single instance, as in this case.[65] Fourthly, the plaintiffs submitted they had a reasonable expectation of personalfreedom and dignity and to be free of arbitrary state intrusion.[66] The gist of Mr Gunn's submission on this was that this was a single instanceof strip searching (unlawfully as it turned out) and did not constitute conductencompassed by s 23(5). I accept that submission for the reasons given below.Discussion[67] The issue of whether the plaintiffs were treated with humanity and with respectfor their inherent dignity is an evaluative exercise.[68] The matters relevant to this case are as follows.[69] First, a breach of the Corrections Act, even one that causes embarrassment ordistress, such as a strip search, will not inevitably constitute a breach of s 23(5). TheSupreme Court said as much in Taunoa.33 In Forrest, Chisholm J in the High Courtheld that the single unlawful strip search he had identified did not constitute a breachof s 23(5).34 Mr Forrest did not appeal that finding to the Court of Appeal. And inReekie, Wylie J said:35The Courts in Taunoa appear to have accepted that a breach of the minimumlegislative requirements applicable to prisoners does not automatically lead to32 Brief of Evidence of D I Obiaga dated 23 August 2017 at [7].33 Taunoa v Attorney-General, above n 30, at [31] per Elias CJ, at [181] per Blanchard J, at [296] perTipping J, at [386] per Henry J.34 Forrest v Attorney-General of New Zealand, above n 26, at [66].35 Reekie v Attorney-General, above n 28, at [94] (citations omitted).a breach of s 9 or s 23(5). A Judge considering s 23(5) must undertake anevaluative exercise ...[70] Secondly, the conduct complained of was short lived. The Court haspreviously held that s 23(5) has not been breached by instances of short lived conduct.[71] For instance, in Toia v Prison Manager, Auckland Prison, this Court held thatthe de-facto segregation of a prisoner was unlawful but not a breach of s 23(5).36Officers believed the prisoner was at risk of suicide and placed him in an at-risk unitfor two periods of up to 11 days in total. Pans were provided as a substitute for a toilet.Amongst other things, Brewer J found that segregation was brief, caused no harm tothe prisoner and that the prisoner had been the creator of his own (unsanitary)conditions. The Court of Appeal agreed.37[72] Thirdly, and in contrast, it was held in Taunoa and Reekie that the right ins 23(5) was breached because of the numerous and ongoing deficiencies in theprisoner's or prisoners' treatment over significant periods of time.[73] The prisoners in Taunoa were subjected to the unlawful regime for periods ofbetween six and a half weeks in the case of Mr Gunbie, to more than two years in thecase of Mr Taunoa.38 Amongst other things, they were unlawfully and routinely stripsearched; unlawfully segregated for lengthy periods in conditions of poor cell hygiene;and they were given inadequate opportunities for exercise.39[74] In Reekie, the High Court held that officers had breached the prisoner's rightunder s 23(5) by routinely and frequently strip searching him without considering oneach occasion whether it was necessary.40[75] Likewise in Vogel v Attorney-General.41 The Court of Appeal found there wasa breach of 23(5) because the prisoner, known to be vulnerable and addicted to drugs,36 Toia v Prison Manager, Auckland Prison [2014] NZHC 867 at [72], [83].37 Toia v Prison Manager, Auckland Prison [2015] NZCA 624 at [29].38 Taunoa v Attorney-General, above n 30, at [130], [269] per Blanchard J39 Taunoa v Attorney-General (2004) 7 HRNZ 379 (HC) at [276]; Attorney-General v Taunoa [2006]2 NZLR 457 (CA) at [147]; and Taunoa v Attorney-General, above n 30, at [6] per Elias CJ; at[215] per Blanchard J; at [276] per Tipping J; at [353], [362] per McGrath J.40 Reekie v Attorney-General [2012] NZHC 1867 at [265].41 Vogel v Attorney-General [2013] NZCA 545, [2014] NZAR 67.was placed in solitary confinement for 21 days, a period exceeding the maximumallowed by statute.[76] As Mr Gunn submitted, however, this case comprised a single strip search. Itwas conducted in the manner the Act requires, that is male officers and in private. Thesearches were brief and resulted in no significant or ongoing harm to the plaintiffs. Inmy view, what occurred falls short of a breach of s 23(5).[77] Lastly on this point, I record that Mr Taylor referred me to two Canadiandecisions, R v Golden and Vancouver (City) v Ward.42 I accept Mr Gunn's submissionthat it is unnecessary to refer to those cases given the significant body of authority inNew Zealand.Conclusion on NZBORA[78] The strip searches of the plaintiffs were unreasonable, in breach of s 21NZBORA, but were not in breach of s 23(5) NZBORA.Relief[79] As prisoners, the plaintiffs' claim for compensation (of $10,000 each) is a"specified claim" within the meaning of the Prisoners' and Victims' Claims Act 2005("PVC"). The PVC is legislation intended "to restrict and guide the awarding ofcompensation ... to help to ensure ... compensation is reserved for exceptional casesand used only if, and only to the extent that, it is necessary to provide effectiveredress".43[80] I may not award compensation to the plaintiffs unless the requirements ofs 13(1)(a) and (b) PVC are met. Section 13 provides:13 Restriction on awarding of compensation(1) No court ... may ... award any compensation ... unless satisfied that—42 R v Golden 2001 SCC 83, [2001] 3 SCR 679; Vancouver (City) v Ward 2010 SCC 27, [2010] 2SCR 28.43 Prisoners' and Victims' Claims Act 2005, s 3(1).(a) the plaintiff has made reasonable use of all of the specifiedinternal and external complaints mechanisms reasonablyavailable to him or her to complain about the act or omissionon which the claim is based, but has not obtained ... redressthat the court ... considers effective; and(b) another remedy, or a combination of other remedies, cannotprovide ... redress that the court ... considers effective.(2) ... reasonable use of a complaints mechanism means the use that thecourt ... considers it reasonable for the plaintiff to have made in thecircumstances.[81] As to s 13(1)(a), there was no dispute at trial that the plaintiffs had madereasonable use of the internal complaints mechanisms available to them, and obtainedno redress.44 I am also satisfied that they made reasonable use of external mechanismsreasonably available to them. They, and others, complained to the Ombudsman, aswas appropriate. The Ombudsman's response was that he did not propose toinvestigate the matter as it was before the Court. Given this response, I am satisfiedthat the plaintiffs have satisfied s 13(1)(a).[82] Section 13(1)(b) requires me to consider whether a remedy or combination ofremedies, other than compensation, could provide effective redress, a matter which isto be considered having regard to the matters specified in s 14(2).45[83] Section 14 provides:14 Guiding considerations for awarding of compensation(1) A court or tribunal must take into account the matters specified insubsection (2) in determining, in proceedings to which this subpartapplies,—(a) whether compensation is required to provide effectiveredress; and (if it is)(b) the quantum of an award of compensation required to provideeffective redress.(2) The matters referred to in subsection (1) are—(a) the extent (if any) to which the plaintiff, the defendant, or bothtook, within a reasonable time, all reasonably practicable44 Defendant's closing written submissions at [91].45 Forrest v Attorney-General, above n 24, at [32].steps to mitigate loss or damage arising from the act oromission on which the claim is based; and(b) whether the defendant's breach of, or interference with, theright concerned was deliberate or in bad faith; and(c) the relevant conduct of the plaintiff; and(d) the consequences for the plaintiff of the breach of, orinterference with, the right concerned; and(e) the freedoms, interests, liberties, principles, or valuesrecognised and protected by the right concerned; and(f) any need to emphasise the importance of, or deter otherbreaches of or other interferences with, the right concerned;and(g) the extent (if any) to which effective redress in relation to thatact or omission has been, or could be, provided otherwise thanby compensation; and(h) any other matters the court or Tribunal considers relevant.(3) ...[84] As to (2)(a), the Crown has not suggested that there was anything the plaintiffscould do to mitigate the consequences of the search.[85] As to (b) and (f), Mr Gunn submitted that the searches were motivated by agenuine desire to ensure the health and safety of prisoners and staff. The plaintiffssubmitted this was implausible and, in any event, did not excuse the failure to heedthe Taunoa, Forrest and Reekie decisions.[86] I accept Mr Gunn's submission that the searches in this case were carried outfor reasons of health and safety but at the very least the decision to search was madecarelessly, given the failure to consult the Department's manual or its legal staff eventhough there was time to do so and particularly before the searches on 21 October2016.[87] I also accept the plaintiffs' submission as to the failure to heed the prior Courtdecisions to which I have referred.[88] Neither Mr Sherlock, Ms Burns nor Mr Nui seem to have understood whats 98(3) required, whether in October 2016 or when they appeared before me, by whichtime Mitchell had been decided. The gist of their evidence was that there were"reasonable grounds to search".[89] Turning now to s 14(2)(c), nothing in the plaintiffs' conduct warranted thesearch. As to (d), the indignity the plaintiffs suffered was short lived and as to (e), aswas said in Forrest, the liberties protected by the right against an unreasonable searchare very important.46[90] As to (g) and s 13(1)(b), Mr Gunn submitted that a declaration would provideeffective redress. I am not able to accept that submission given the matters to which Ihave referred to in [86] to [88] above. I do not consider a remedy other thancompensation will provide effective redress.Section 14(2) PVC[91] The matters listed in s 14(2) are also to be considered in determining thequantum of any award, the purpose of which is to provide "effective redress".[92] The plaintiffs seek $10,000 each. That is vastly more than is required toprovide effective redress in the circumstances of this case. Mr Gunn submitted thatany award should be less than the $600 awarded in Forrest, on the ground thatMr Forrest was subjected to two strip searches in one day.[93] I do not consider that it matters particularly whether there was one or twounlawful strip searches in the day and I would award each plaintiff the same $600awarded to Mr Forrest if all the circumstances of the case were the same. However,"effective" redress requires an increase in the sum awarded, to bring home to theDepartment the importance of compliance with the legislation and of heeding what theCourts have now said regarding s 98 on several occasions. To this end, I propose toincrease the amount, and award $1,000 to each of the plaintiffs.46 Forrest v Attorney-General, above n 24, at [37].[94] I mention two more points for the sake of completeness.[95] First, Mr Taylor and Mr Smith emphasised that 209 prisoners were searched.I do not consider this affects the outcome. It was open to those prisoners to join thisproceeding if they wished. Given they did not, the plaintiffs' case stands or falls onthe strip searches of them.[96] Secondly, and as in Forrest, I do not know whether the plaintiffs will receiveany of the $1,000. In the first instance, the compensation is paid to the Secretary forJustice, who disburses the funds in accordance with the provisions and procedures inthe PVC. In accordance with that regime, the plaintiffs' victims may well lodge aclaim for the money.47 The plaintiffs benefit if any sum remains thereafter.48Result[97] I make a declaration that the strip searches of Mr Taylor and Mr Smith on21 October 2016 were unlawful and unreasonable, in breach of s 21 of theNew Zealand Bill of Rights Act 1990.[98] Pursuant to the Prisoners' and Victims' Claims Act 2005, I order theAttorney-General to pay to Mr Taylor and Mr Smith compensation in the sum of$1,000 each.Costs and disbursements[99] The plaintiffs seek costs and disbursements. As litigants in person, theplaintiffs are only entitled to recover costs in exceptional circumstances. This case isnot exceptional. However, I do award reasonable disbursements. I expect these willbe agreed but any dispute is to be determined by the Registrar.Peters J47 Prisoners' and Victims' Claims Act 2005, pt 2, sub-pt 2.48 Sections 32, 49, 52.