BELL v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021] NZHC 413

BELL v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021] NZHC 413 [8 March2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-000112[2021] NZHC 413UNDER the Judicial Review Procedure Act 2016 andNew Zealand Bill of Rights Act 1990IN THE MATTER of an application for judicial reviewBETWEEN WILLIAM DWANE BELLApplicantAND THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 2 and 3 December 2020Appearances: Applicant in personH Carrad and C Wrightson for the RespondentH M Z Lanham and J K Grimmer as counsel assistingJudgment: 8 March 2021Reissued: 11 March 2021JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Monday, 8 March 2021 at 2:00 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors: Crown Law (H Carrad and C Wrightson), WellingtonCopy to: Applicant[1] This is an application for judicial review. The applicant, William Dwane Bell,is a prisoner in Auckland Prison. He challenges the decision of the respondent, theChief Executive of the Department of Corrections, to increase his securityclassification from low medium to maximum following receipt of information,including from another prisoner that Mr Bell was planning to take a female staffmember hostage as part of an escape attempt.[2] Mr Bell raises eight causes of action alleging various breaches of theNew Zealand Bill of Rights Act 1990 (NZBORA) and errors of law reviewable underthe Judicial Review Procedure Act 2016. The respondent, in opposing the application,maintains that the decision to reclassify Mr Bell and the process by which that decisionwas reached were fair, lawful, reasonable and proportionate in all the circumstances.The respondent further submits that the courts should be slow to interfere inoperational prison decision-making, especially where it involves assessment ofsecurity risks.[3] Mr Bell is unrepresented by counsel and appeared in person. By a minute dated20 August 2020, Palmer J appointed Ms Lanham to "assist the Court by providing anindependent view of the legal and evidential issues that arise. The role of counsel willbe to assist the Court, not to be Mr Bell's counsel."1Security classification regimeGeneral background[4] By way of context, a prisoner's assessed level of security risk dictates thedegree of freedom the prisoner has within the prison and his or her access to servicesand opportunities. This Court has previously recognised that "[s]ecurity classificationdecisions have a major impact on the day to day lives of inmates".21 Bell v Chief Executive of the Department of Corrections HC Auckland CIV-2020-404-112,20 August 2020 (Minute No 4) at [1].2 Genge v Chief Executive of the Department of Corrections [2018] NZHC 1302 at [33]. See alsoSmith v Attorney-General [2016] NZHC 136, [2017] NZAR 331 at [8].[5] Solomon Tuato Alosio Nui, the former Residential Manager of Unit 13 atAuckland Prison where Mr Bell was housed, gives evidence for the respondent as tothe effect that different security classifications have on prisoners:6. At Maximum security, prisoners are unlocked from their cells for onehour a day. At any time when they are moved, they are escorted by three staffand are regularly searched. For interviews, e.g. with a case manager, they aresupervised by three staff. If there are privacy issues associated with theinterview it will be in a non-contact booth but supervised from outside bythree staff. Maximum security prisoners do not have jobs.7. At High security, prisoners have more time out of their cells.Prisoners in Unit 13 generally have two unlock sessions, one in the morningand one in the afternoon. Low Medium and High security prisoners haveaccess to both unlock sessions. High security prisoners are generallysupervised with two staff at any one time and are unable to be leftunsupervised. For interviews, High security prisoners are supervised by twostaff, but staff can supervise from outside the room and interviews involvingprivacy issues do not need to be in a non-contact booth. There is a riskassessment completed about whether they can move alone, meaning whethera staff member must accompany the prisoner down a corridor or whether theycan be sent and received by officers at each end of the corridor. High securityprisoners can have certain jobs such as preparing meals in the kitchen.8. At Low Medium security, prisoners can be supervised by one officerand can be left unsupervised for short periods, for example, the meal deliveryto the units in the main building are done unsupervised or prisoners can be leftalone to clean in an area unsupervised while the officer does "rounds" to dochecks (meaning prisoners are left in areas and instead of standing andwatching them the officer wanders around the areas checking on them). Theycan move between areas of the prison without being escorted by a prisonofficer. They can hold a bigger variety of jobs including serving meals andcoffees in the staff canteen as well as running the transactions.Corrections Act 2004[6] Security classification reviews are governed by the Corrections Act 2004.Section 5 of that Act provides that the purpose of the corrections system is to "improvepublic safety and contribute to the maintenance of a just society". Section 6 thenprovides guiding principles for persons exercising powers and duties under the Act:(a) the maintenance of public safety is the paramount consideration indecisions about the management of persons under control orsupervision:(f) the corrections system must ensure the fair treatment of persons undercontrol or supervision by—(i) providing those persons with information about the rules,obligations, and entitlements that affect them; and(ii) ensuring that decisions about those persons are taken in a fairand reasonable way that those persons have access to aneffective complaints procedure:(g) sentences and orders must not be administered more restrictively thanis reasonably necessary to ensure the maintenance of the law and thesafety of the public, corrections staff, and persons under control orsupervision [7] As to the security classification regime, s 47 provides that:(1) The chief executive must ensure that every prisoner who is subject toa sentence of imprisonment for a term exceeding 3 months is assigneda security classification that reflects the level of risk posed by thatprisoner while inside or outside prison, including the risk of escapeand the risk that escape would pose to the public.(3) The security classification of each prisoner must —(a) be undertaken and reviewed in the prescribed manner; and(b) be reviewed—(i) at least once every 6 months, unless an exemptionfrom this requirement is prescribed [time-basedreview]; or(ii) whenever there is a significant change in theprisoner's circumstances [event-based review].(4) For the purposes of subsection (3)(b)(ii), there is a significant changein a prisoner's circumstances if—(d) in the opinion of the prison manager, there is an event, or achange in the prisoner's circumstances or behaviour, thatindicates that the prisoner's present security classificationmay be inappropriate.[8] Section 48 further provides that:(1) If a security classification is assigned to a prisoner, or the securityclassification assigned to a prisoner is changed, the manager of theprison in which the prisoner is detained must ensure that the prisoneris promptly informed in writing of—(a) that classification or, as the case may be, that changedclassification; and(b) the reasons for the assignment of that classification or, as thecase may be, that changed classification.(2) A prisoner who is dissatisfied with the security classification for thetime being assigned to that prisoner may apply to the chief executivefor a reconsideration of that classification, and the chief executivemust ensure that the security classification is reconsidered promptlyin the prescribed manner.Corrections Regulations 2005[9] Part 5 of the Corrections Regulations 2005 is also relevant to the securityclassification of prisoners. Regulation 44(1) sets out the general principle that aprisoner should be assigned the lowest level of security classification at which theprisoner can safely and securely be managed given the assessment of the level of riskposed by that prisoner. Regulation 44(2) provides that a prisoner who has beenassigned a security classification must be placed and managed within a facility andregime that is consistent with his or her security classification, to the extent that ispracticable.[10] Regulation 45 then provides mandatory considerations when determining thelevel of risk posed by a prisoner under s 47(1) of the Corrections Act:(a) the seriousness of the offence for which the prisoner is serving asentence of imprisonment or, in the case of a prisoner servingsentences of imprisonment for 2 or more offences, the seriousness ofthe most serious of those offences:(b) the duration of the sentence or sentences being served by the prisoner:(c) any history of escapes or attempted escapes from custody by theprisoner:(d) any history of violent behaviour by the prisoner:(e) any history of mental ill health:(f) whether the prisoner is awaiting trial or sentencing on any furthercharges and, if so, the nature of those charges:(g) any additionally matter specified in writing by the chief executive asa matter to be taken into account in conducting a risk assessment undersection 47(1) of the Act.[11] Regulation 48 specifies additional requirements for security classificationreviews conducted under s 47(3) of the Corrections Act. A reviewer must also takeinto account:(a) the duration of the period that the prisoner has left to serve under hisor her sentence:(b) the current state of the prisoner's mental health:(c) whether the prisoner has co-operated with staff members whileserving his or her sentence:(d) whether the prisoner has engaged in any misconduct while serving hisor her sentence o has been involved in any reported incidents:(e) whether the prisoner has—(i) displayed motivation to achieve the objectives set out in hisor her management plan; and(ii) achieved those objectives.(f) any additional matter specified in writing by the chief executive as amatter to be taken into account in conducting a review of a securityclassification under s 47(3) of the Act.[12] Regulation 49 provides that a security classification review is complete once:(a) a risk assessment has been undertaken under section 47(1) of the Acttaking into account the matters specified in regulation 45 andregulation 48; and(b) the staff member undertaking the risk assessment has notified thechief executive or prison manager that in his or her opinion, either theexisting security classification ought to be retained or another securityclassification recommended by that staff member ought to beassigned; and(c) the chief executive or prison manager has decided whether thesecurity classification recommended under paragraph (b) (whether theexisting security classification or another) is appropriate and either—(i) has approved the recommended classification as the securityclassification assigned to the prisoner; or(ii) has assigned a security classification to the prisoner that isdifferent from the recommended classification.[13] Regulation 52 sets out that any person undertaking the assignment, review orreconsideration of a prisoner's classification must:(a) be given access to the prisoner's file kept by the department; and(b) take into account any relevant information in any form that is readilyavailable to the person; and(c) record in writing the person's recommendation or decision and thereasons for it.The Guidelines — Prison Operations Manual[14] Finally, the respondent says the security classification levels are specified inguidelines issued by the Chief Executive of the Department of Corrections in thePrison Operations Manual (Guidelines). The security classification process managesinternal and external risk, which are defined as follows:Internal risk is "the risk posed by a prisoner to the safety, security and goodorder of the prison while the prisoner is inside the prison secure perimeter. Itindicates the risk of escape posed by the prisoner."External risk is the risk posed when outside the prison perimeter whereauthorised or as a result of escape.[15] The Guidelines explain that the procedures for responding to a sudden increasein risk of escape depend on the prisoner's risk classification and the circumstancesmotivating the risk of escape. Where a prisoner has a low level of external risk andwhere increased risk is temporary and related to external circumstances, the risk maybe managed without recourse to a security classification review. By contrast, where aprisoner has a high level of external risk, increased risk of escape is more properlymanaged by review of the prisoner's security classification.[16] Three officers are involved in the security classification assessment process:an assessing/initiating officer, a recommending officer and an approving officer. Toassist the review process and ensure consistency, a reviewer assigns points to each ofthe relevant matters. The accumulated points will suggest one of the five securityclassifications: maximum, high, low-medium, low or minimum. The classificationresulting from the score can, however, be overridden if the officer believes the securityclassification is incorrect as a result of additional information not being accounted forin the assessment process. Clear reasons must be given for the override.Factual background[17] Mr Bell is currently serving a term of life imprisonment for murder with aminimum non-parole period of 30 years. He is in custody at Auckland Prison(Paremoremo), a maximum-security prison. In 2016, he was classified as a low-medium security risk. He maintained this classification until August 2019. The re-classification occurred as a result of four different events.[18] The first incident occurred on March 2019, when prison staff found a notebookbelonging to Mr Bell in the prison kitchen where he worked. The respondent says thenotebook contained records of the registration number of trucks making deliveries tothe prison, names and addresses of former prisoners, bank account details of anotherprisoner who had escaped, and reference to a remote-controlled helicopter. Thisinformation led prison staff to conclude that Mr Bell may be planning an escape.Mr Bell was subsequently stood down from his job in the prison kitchen. Therespondent notes that an oversight meant that no event-based security classificationreview was completed at the time. Mr Bell explains that he kept a notebook as hetakes comfort in writing in it and that he "imagine[s] things to entertain [himself] andmake prison life just a tad more bearable". As to the registration numbers, those werefor trucks that delivered food to the kitchen, so he could identify them. As to theremote-controlled helicopter, he says, the "helicopter would face some difficultiesferrying me out through the mesh roof I am 130kgs". Ms Lanham observes that itis difficult to see how these disparate notebook entries amount to evidence of an escapeplan, especially in the absence of further investigation.[19] The second incident occurred on 27 April 2019 when prison staff received ananonymous letter alleging that Mr Bell was looking to obtain cleaningproducts/chemicals from the kitchen with the intention of using them to poison othersin the unit or staff. The information was not confirmed by other sources and there isno evidence of Mr Bell being in possession of such chemicals or prisoners deliveringsuch chemicals to him.[20] On 3 July 2019, before the third incident occurred, a time-based securityclassification review was initiated for Mr Bell. While the matter was initiated inJuly 2019, the actual assessment only took place on 2 August 2019. Based on theassessment, it was recommended that Mr Bell be classified as low-medium. Theapproving officer approved the recommendation of low-medium.[21] Due to an oversight, however, the time-based review did not take into accountthe intelligence received about the risk of escape and/or harm to others arising fromthe first and second incidents. Once this omission became apparent, an event-basedreview was initiated for Mr Bell on 6 August 2019. In that event-based review, thepreliminary classification of low-medium was overridden to high in response to thefirst and second incidents. The respondent did not consider that the concerns raisedby those incidents (March and April 2019) were stale.[22] The third and fourth incidents occurred in August 2019, when an anonymousinformant called the Crime Stoppers 0800 number claiming that Mr Bell was planningto take a female staff member hostage in the prison laundry where Mr Bell wasworking. The informant also alleged that Mr Bell was passing drugs and notes throughhis position in the laundry and was asking other prisoners for shanks. Prison staffreviewed CCTV footage. It showed Mr Bell removed something from his pants andputting it in an envelope before passing it to another prisoner who, according to therespondent, is known to make weapons. The respondent considered the risk of Mr Belltaking a staff member hostage real and Mr Bell's employment at the laundry wasterminated. The female prison staff were also directed not to work in Mr Bell's unit.[23] The informant was subsequently identified as a fellow prisoner.[24] In a note dated 27 August 2019, Peter Phelan, the former Reception andMovements Manager at Auckland Prison, queried the credibility of the informant, butnevertheless recommended that Mr Bell be upgraded to the maximum securityclassification.[25] In a memorandum dated 25 October 2019 and prepared for the application forreconsideration filed by Mr Bell after his upgrade to the maximum classification, theSenior Adviser to the Acting National Commissioner recorded:26. The Senior Adviser also specifically queried others' views on thevalidity of the anonymous information received from another personin our care regarding Mr Bell's plans to take a staff member hostage.They noted that, while the informant can at times be unreliable in theirclaims, they have in the past also provided reliable information to theDepartment about other events.[26] As to the passing of the envelope, Mr Bell explains that he provided theprisoner with a phone number and that passing notes was common. Ms Lanhamobserves that no contraband items were found following a search.[27] As a consequence of the allegations forming the third and fourth incidents, afurther event-based review was initiated on 26 August 2019. The assessor proposedan override of Mr Bell's high security classification to a maximum securityclassification based on "recent incidents. One involving breaches of prison rules, andthe other a serious safety concern for the safety and well-being of staff." The actingCustodial Systems Manager, Mr Phelan, ultimately supported the maximum securityclassification, saying:Bell has been the subject of an allegation via a confidential Crimestopperdisclosure, from another prisoner claiming that BELL plans to take a femalestaff hostage. Further CCTV evidence Is BELL was observed breachingsecurity putting [a] envelope? Into another prisoners cell. Given his highprofile and offending history and the information provided, an event reviewof his classification is justified. While he clearly warrants "High" securityclassification and retention in his current unit. He should be removed fromhis employment outside his unit. Based on information regards the individualbehind the allegation? the CCTV evidence on its own, it is difficult to supportoverriding Bell to Maximum security classification. However, from a publicsafety perspective and our reputational risk he is considered one of our mostdangerous prisoners and should always be regarded as such, thereforeMaximum security is supported.[28] On 13 September 2019, Mr Bell applied for reconsideration of the increase ofhis security classification to maximum. In his application, he challenged some of thescores assigned and requested that his classification "be replaced back to Low Mediumor High Medium". The Senior Adviser to the Acting National Commissioner prepareda report and recommendations. He concluded that four questions had been incorrectlyscored but the new score did not change the preliminary classification of low-medium.[29] Turning to review the override decision, the Senior Adviser considered thenature and source of the allegations, spoke to others about them (who noted that theinformant could be unreliable but had also provided reliable information in the past),and discussed the override decision with the Residential Manager overseeingMr Bell's management and the Regional Intelligence Manager in the Northern Region.Both advised that they strongly considered Mr Bell to be a significant risk of escapeor harm to staff. The Senior Adviser also noted that Corrections had been able tosuccessfully manage Mr Bell at a low-medium or high security classification byhousing him in a high security unit and maintaining close oversight. After consideringthe Senior Adviser's report and recommendations, Andrew Milne, the Acting NationalCommissioner, decided that Mr Bell could safely be managed at high security. On29 October 2019, Mr Milne wrote to Mr Bell explaining his reconsideration anddecrease to high security. Mr Bell was reclassified back to high security on6 November 2019. Following a time-based review on 1 January 2020, Mr Bell'ssecurity classification was further decreased to low-medium.Causes of action[30] Mr Bell pleads eight causes of action in judicial review and under theNZBORA:3Discrimination:(a) First, the decision was in breach of s 19 of the NZBORA, whichprovides that everyone has the right to freedom from discrimination onthe grounds of discrimination in the Human Rights Act 1993. He saysthe Corrections officers discriminated against him on the basis ofunconscious bias against his "Maori heritage and criminal offending",and "Corrections have not actively sought to rehabilitate Mr Bell oreven provide him with the tools and support necessary to address hisemotional and intellectual difficulties."Human dignity:3 Given the overlap in part as to the law and facts, I have adopted the grouping/categorising of theeight causes of action as suggested by the counsel assisting as amici curiae.(b) Secondly, the decision was in breach of s 23(5) of the NZBORA, whichprovides that everyone deprived of liberty shall be treated withhumanity and with respect for the inherent dignity of the person.Mr Bell says s 23(5) was breached by the arbitrary imposition ofrestrictions against him. He says he was "subjected to three separatesecurity classification reviews within a one month period despite nomarked change in his circumstances, behaviour or actual risk. It wasbased on a historic allegation (notebook) and an unsubstantiated one(hostage), which resulted in an arbitrary increase".Procedural fairness/natural justice(c) Thirdly, the decision was in breach of s 27 of the NZBORA, whichprovides that every person has the right to the observance of theprinciples of natural justice by any public authority which has thepower to make a determination in respect of that person's rights,obligations or interests protected or recognised by law. Mr Bell sayshe should have been heard before his security classification wasincreased. He says "[t]he review process is not the only tool availableto officers for the management of prisoners There are othermanagement tools in the Corrections' arsenal available for staff tomitigate any perceived risk. A simple dialogue between the prisonerand an experienced staff member could have ascertained the veracityof the perceived risk."(d) Fourthly, the decision was in breach of s 6(1)(f)(ii) of the CorrectionsAct, which provides that the corrections system must ensure the fairtreatment of persons under control or supervision by ensuring thatdecisions about those persons are taken in a fair and reasonable wayand that they have access to an effective complaints procedure. Mr Bellsays the allegations about his plan to take a female staff memberhostage were made by a prisoner known to be vexatious, theCorrections staff did not undertake due diligence, and the complaintsprocess was inefficient. He further says that "the decision to kickstartthe Maximum security review was unfair, and unreasonable, in thecircumstances, because no other options to mitigate those risks wereevidently explored. The review, as opposed to being a last resort,was utilised as the first and only option."Error of law(e) Fifthly, there was an error of law in that the decision-maker failed toconsider relevant considerations. Mr Bell says the following shouldhave been taken into account: the veracity of the allegations; whetherthe complainant was credible; whether the nature of the allegations wascredible in the maximum security prison context; whether the decisionwas overly restrictive; whether other management tools were available;and whether the allegations were serious enough to warrant amisconduct investigation to ensure transparency and natural justice.(f) Sixthly, there was an error of law in that the decision-maker took intoaccount irrelevant considerations. He says the fact that he was a high-profile prisoner is irrelevant: "Infamy is an irrelevant factor". Further,he says the decision-maker's consideration of the consequence ofMr Bell's escape and the detriment to Corrections' reputation and thesafety of the community is irrelevant because he was already held inthe maximum security wing of the maximum security prison. Mr Bellsays the contents of the notebook are also irrelevant due to the "failureto properly investigate the incident to ascertain the truth of the matter".(g) Seventhly, there was an error of law in that the decision-maker actedunreasonably. Mr Bell says the decision to reclassify was unreasonablebecause no misconduct charges had been proven or alleged during thematerial time or in the past three years; there was no clear purposebecause the allegations of a plan to escape were "stale informationwithout ascertainment of credibility"; the applicant was alreadyresiding in the maximum security wing and classification did not serveany purpose other than to terminate his employment in the laundrywhich could have been done without reclassification; and the increaseto the maximum security classification was contrary to reg 44 of theCorrections Regulations.Legality of material considered(h) Eighthly, the decision-maker acted ultra vires — "A file note isessentially hearsay evidence that does not require evidential facts tocorroborate. It can also be labelled as an incident report, and containallegations of breach of prison rules without the applicant being awareof its existence. Yet it is an admissible factor when considering anincrease of classifications in security classification reviews. Thepractice is unfair, unreasonable and thus ultra vires to the policies andthe Corrections Act."[31] Mr Bell challenges three decisions relating to his security classification:(a) the first event-based review dated 6 to 7 August 2019 following whichhis security classification was increased from low-medium to high;(b) the second event-based review dated 29 August 2019 following whichhis security classification was increased to maximum; and(c) following a request for reconsideration, the decision on29 October 2019 to decrease his security classification from maximumto high, rather than to low-medium.[32] As a result, Mr Bell seeks a declaration of inconsistency and Baigent4 damagesin an amount that the Court deems reasonable and fair. Mr Bell acknowledges that thePrisoners' and Victims' Claims Act 2005 applies to any specific damages disbursed tohim but seeks to pursue them anyway.4 Simpson v Attorney-General [1994] 3 NZLR 667 (CA) [Baigent's case].DiscussionFirst cause of action — discrimination[33] Mr Bell claims he has been subject to discrimination based on his ethnicity(Māori) and disability (intellectual impairment). He compares his securityclassification to that of another well-known prisoner, Philip John Smith, who didescape and fled to South America, but still received a lower classification.[34] Ms Lanham accepts that Mr Bell harbours genuine concerns about histreatment, as well as the treatment of Māori and people with disabilities in prison moregenerally. The difficulty in the context of judicial review is that such a claim must besupported by sufficient evidence to find a breach of the right. Here, I agree withMs Lanham that the evidence presented does not establish that Mr Bell has beensubject to discrimination. There is no proven breach of s 19 of the NZBORA.Second cause of action — humanity and inherent dignity[35] The leading authority on s 23(5) of the NZBORA is the Supreme Court'sdecision in Taunoa v Attorney-General.5 Andrew Butler and Petra Butler summarisethe position as follows:6Section 23(5), by contrast [to s 9 of the NZBORA], is breached by stateconduct that is less reprehensible, but is still unacceptable in New Zealandsociety. It is conduct that does not rise to the level of outrageousness requiredto engage s 9. Section 23(5) captures conduct that lacks humanity, but fallsshort of cruelty, conduct that is demeaning, and/or conduct that is clearlyexcessive in the circumstances but not grossly so. Section 23(5) requiresan evaluative exercise, having regard to the conditions under which the inmateis held, the extent to which these diverge from the conditions which ought tohave applied if there had been compliance with the legal requirements, and, insome circumstances, the extent to which those legal requirements areinsufficient to meet the s 23(5) standard. That said, legislative standards arean appropriate standard by which to measure the humane treatment of adetainee. But equally technical breach of those standards may not amount toa breach of s 23(5).[36] The authors give the following examples of s 23(5) breaches in detention:lengthy unlawful segregation from other inmates; loss of ordinary inmate entitlements5 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429.6 Andrew Butler and Petra Butler "The New Zealand Bill of Rights Act: A Commentary" (2nd ed,LexisNexis, Wellington, 2015) at [20.12.5].while on segregation; poor cell hygiene; bedding and clothing that fell below thestandards established by prison regulations; inadequate monitoring of inmate mentalhealth; inadequate exercise conditions; some strip searches not complying with thelaw; detention for a period in a cell without windows or natural light; and detention oncell confinement in excess of the statutory maximum.7[37] In my view, unlike the above examples, an increase to the maximum securityclassification in accordance with the prescribed process does not constitute a breachof Mr Bell's right to be treated with humanity and respect for his inherent dignity.Counsel for the respondent points to the following factors:(a) The review followed an allegation that Mr Bell planned to take a femalestaff member hostage. Corrections officers had a duty to consider theallegation in order to meet their duty to safeguard the public, prisonstaff and other prisoners.(b) The review followed the prescribed process being considered by fourprison officers of increasing seniority and finally the Chief CustodialOfficer.(c) Eric Rangi, Principal Corrections Officer, met with Mr Bell to explainwhy his security classification would likely be increased and explainthe process.(d) On increase to Maximum Mr Bell had the usual entitlements whichapply to maximum security prisoners.(e) Mr Bell had the right to challenge the decision and successfully did sowith his security classification being decreased to high as a result.[38] Ms Lanham submits that it may be open for the Court to find that a breach ofs 23(5) occurred in this case if the Court determined that the decisions wereunreasonable or that an incorrect procedure was followed. For reasons given later, I7 At 1183–1184.have not determined that the decisions were unreasonable or that an incorrectprocedure was followed. There is, therefore, no breach of s 23(5) of the NZBORA.Third and Fourth causes of action — natural justice and procedural fairness[39] While breaches of both s 27 of the NZBORA and s 6(1)(f)(ii) of the CorrectionsAct are pleaded, these causes of action can be considered together because s 6(1)(f)(ii)imposes an obligation on the respondent to comply with the principles of naturaljustice,8 which is also the focus of s 27 of the NZBORA.[40] The requirements of natural justice, however, are context-specific.9 I agreewith counsel for the respondent that the requirements of natural justice in the contextof the security classification regime reflect the administrative nature of the power andthe context in which it is exercised. In particular, counsel points to:(a) The security classification of every prisoner imprisoned for more thanthree months must be reviewed every six months. Auckland Prisonoften deals with over 1,000 security classification reviews in a year.(b) The lifespan of a classification is six months. Given this lifespan, thereis a need for security classifications to be undertaken quickly.(c) Reconsideration of the classification is independent of the review andcannot be delegated to a staff member of the prison. This providesindependent scrutiny of a security classification.(d) The Act and Regulations provide for the prisoner to be advised inwriting of the classification decision and the reasons for it, but do notprovide a right to be heard. However, a prisoner has the right to seekreconsideration of the security classification and point to the aspects ofit with which he disagrees when doing so.8 McEwen v Spring Hill Corrections Facility Department of Corrections [2020] NZHC 724 at [68].9 Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at 141; and McEwen v SpringHill Corrections Facility Department of Corrections, above n 8, at [70].[41] In Mr Bell's case, Principal Corrections Officer Rangi explained to Mr Bell thereasons his security classification was likely to increase to maximum and Mr Bell hadan opportunity to explain his position. Mr Bell was given written notification of thesecurity classification review decision and the reasons for it. Mr Bell successfullysought reconsideration of the decision and identified aspects of the review with whichhe disagreed. His application was successful, with his security classification beingdecreased from maximum to high.[42] Ms Lanham lists the following procedural rights in respect of securityclassification decision-making, which the Courts have recognised to date:(a) Although a formal hearing is not required, a prisoner should have areasonable opportunity to respond (or make representations) before adecision is made to change their prison conditions.(b) The opportunity to respond to the underlying allegations leading to achange in prison conditions is not the same as an opportunity to respondto the proposed classification change itself. Both opportunities shouldbe afforded to a prisoner.(c) A prisoner should be sufficiently informed of the case being advancedso as to enable them to respond.(d) Reasons should be provided to a prisoner after a decision is made sothey can adequately decide whether to challenge the decision throughthe reclassification process. This is particularly important whereoverrides are involved.[43] Ms Lanham acknowledges that these previously recognised rights are notparticularly engaged on the facts of this case. She then submits that at issue is whetherthe respondent owes Mr Bell any further procedural obligations outside thoserecognised to date in the context of prisoner judicial review.[44] Mr Bell pleads, at [32] of the amended statement of claim, that his right tonatural justice was breached by the fact that no independent person determined theevent-based classifications. At [33] he pleads that s 6(1)(f)(ii) was breached by thefailure to verify the allegations made against him before undertaking the event-basedclassification.[45] As to the first alleged breach, I agree with van Bohemen J in McEwen v SpringHill Corrections Facility Department of Corrections that a prisoner has no right to aformal hearing in respect of a management decision concerning security and safety.10[46] As to the second alleged breach, I agree with Ms Lanham's submission thatwhere there are concerns as to the reliability or completeness of information before adecision-maker, there is authority for the proposition that natural justice can requirethe decision-maker to undertake inquiries. That position would be consistent with thecontextual nature of natural justice. Although it could be argued that furtherinvestigation should have been made if the individual events were being assessed ontheir own merits, it is important to bear in mind Mr Bell's history and to consider allof the events as a whole.[47] As to Mr Bell's history, Mr Phelan states:8. Mr Bell has had a recorded interest in escape since his imprisonmentin 2001. Corrections has received information on multiple occasionsabout Mr Bell discussing escape plans with other prisoners. An alerton the Integrated Offender Management System (IOMS) for risk ofescape was entered in 2007 and is still active. A copy of the IOMSrecord of Mr Bell's offender alerts, highlighting the risk of escapealert, is annexed and marked PMP-2.9. In February 2019, Corrections Intelligence considered what the riskswould be in moving Mr Bell to a lower security unit. Mr Bell wasclassified Low Medium at this time, but was being managed in Whitite Ra, a unit holding High and Maximum security prisoners.Corrections Intelligence assessed that it was likely Mr Bell wouldpose a risk of escape if moved to a lower security unit and it waspossible he would follow through with previous plans to take a staffmember hostage.10 McEwen v Spring Hill Corrections Facility Department of Corrections, above n 8, at [76]–[79].[48] It is important to view the four events alongside Mr Bell's recorded interest inescape and previous plans to take a staff member hostage. Mr Bell has discussedescape plans with other prisoners "on multiple occasions", according to Mr Phelan.The anonymous tip to Crime Stoppers that Mr Bell was planning to take a female staffmember hostage in the prison laundry where he worked to facilitate an escape was,therefore, consistent with Mr Bell's recorded interest in escape. The informant wasquickly identified as a fellow prisoner, who although not always reliable, had alsogiven reliable information in the past.[49] Although the informant's motivation for making the telephone call to CrimeStoppers was thought to be questionable, I cannot say that Corrections was wrong togive credence to the allegations. A direction was made at the time by John Small,Acting Deputy Prison Director, that female staff were not to work in Mr Bell's wingand interviews with female staff were to be in a non-contact booth.[50] There were also further investigations undertaken. The informant also said thatMr Bell was asking others for shanks and that he was passing drugs and notes throughhis position in the laundry. CCTV footage was therefore reviewed. It showed Mr Bellremoving something from his pants, putting it in an envelope and sliding it under adoor to another prisoner. Passing something unapproved to other prisoners, whilerelatively common, is against prison rules. The other prisoner was known to makeweapons, which is consistent with the informant's allegation that Mr Bell was askingothers for shanks. Searches of cells were then undertaken, which did not locate anyitems of concern.[51] Mr Bell was interviewed by Mr Rangi for an extended period of time over twodays — 27 and 28 August 2019. He was advised why it was likely he was to be movedup to maximum and the process was explained to him. Mr Bell acknowledged he haddone "little bits of bullshit" in his earlier days but denied being a staff hostage taker.When asked about the contraband or notes that he appeared to hand to a fellowprisoner, Mr Bell immediately said he gave him a phone number, nothing more.[52] Ms Lanham attaches some significance to the fact that the recommendation toincrease Mr Bell's security classification to maximum was on the basis that theupgrade was "pending investigation" and there was no evidence of what investigationswere undertaken, other than Mr Rangi speaking to Mr Bell on 27 and 28 August 2019.It is, however, important to look more closely at the process.[53] An event-based review of Mr Bell's security classification was initiated on6 August 2019, based on an information report dated 23 May 2019, relating to twoseparate incidents. The first concerned a notebook of Mr Bell's found in the kitchenon 27 March 2019. The second, a letter from a prisoner received on 27 April 2019.[54] Among other things, the notebook contained a list of vehicle number plates,including those of two food delivery trucks that delivered food to the main kitchen atAuckland Prison.[55] Mr Nui, the assessing officer, proposed an increase of Mr Bell's securityclassification from low-medium to high on the basis that:Intel information received indicated a potential escape risk. Although Bellexplains the information contained in his book an event based review has beenconducted to reflect the potential risk. It is recommended that Bells securityclassification be overridden to High Security based on the potential risk theinformation in the book contained.[56] A second officer, Mr Rangi, checked the form and recommended the securityclassification override. In approving the override and upgrade to high on7 August 2019, a third officer, Mr Phelan, recorded:Manual override of Event based review supported to reflect the informationreceived, which has caused us to reflect on Bell's current risk level andincrease his security rating accordingly to 'High".[57] The anonymous tip was received via Crime Stoppers two weeks later, on22 August 2019. It was the next day, 23 August 2019, Steven Parr, the Acting PrisonDirector, directed that Mr Bell was to be security classified as maximum "pending theresult of any investigation regarding the police complaints phone call have substance".The upgrade was said to be temporary until it was confirmed (or not).[58] Another event-based security classification review was therefore initiated on26 August 2019. On that date, the initial assessing officer, Lily McLean, proposedoverriding Mr Bell's low-medium classification to increase his classification tomaximum based on "recent incidents. One involving breaches of prison rules and theother a serious safety concern for the safety and well-being of staff".[59] Because an increase to the maximum security classification was recommendedby the security classification review, another decision-making process was initiatedusing a document titled "Maximum security initial assessment" but known as the SDF(Supported Decision-making Framework). The initial reviewing officer, Mr Rangi,did not recommend the maximum classification. The form was then sent to Mr Phelan,who recorded (as earlier noted):Bell has been the subject of an allegation via a confidential Crimestopperdisclosure, from another prisoner claiming that BELL plans to take a femalestaff hostage. Further CCTV evidence Is BELL was observed breachingsecurity putting [a] envelope? Into another prisoners cell. Given his highprofile and offending history and the information provided, an event reviewof his classification is justified. While he clearly warrants "High" securityclassification and retention in his current unit. He should be removed fromhis employment outside his unit. Based on information regards the individualbehind the allegation? the CCTV evidence on its own, it is difficult to supportoverriding Bell to Maximum security classification. However, from a publicsafety perspective and our reputational risk he is considered one of our mostdangerous prisoners and should always be regarded as such, thereforeMaximum security is supported.[60] The SDF was then signed off by Dave Pattinson, the Prison Manager, on27 August 2019 and Audrey Koti, the Chief Custodial Officer, on 29 August 2019.Ms Koti recorded:Approved as maximum security. Noted APD comment (S Parr)"[61] In light of the SDF being approved by the Chief Custodial Officer, Mr Phelansigned the event-based review off as approving officer on 9 September 2019. It wasonly four days later, on 13 September 2019, that Mr Bell lodged a request forreconsideration of his maximum security classification, as he was entitled to do unders 48(2) of the Corrections Act. Mr Bell's application for reconsideration wassuccessful and his security classification was decreased from maximum to high.[62] There were two major factors that led to Mr Bell's application forreconsideration being successful. First, it was acknowledged that reputational risk, asreferred to by Mr Phelan in his recorded comment, was not sufficient to justify anoverride to maximum in any case. Secondly, Mr Bell's risk of escape or harm for staffcould be managed, as it had been in the past, by housing Mr Bell in a high securityunit and maintaining close oversight of his management. An increase in his securityclassification to maximum was therefore unnecessary.[63] When Mr Parr directed that Mr Bell was to be classified as maximum securityon 23 August 2019, it was pending the result of any investigation into the substanceof the anonymous tip to Crime Stoppers. The two earlier events had already beeninvestigated and were the subject of an investigation report dated 23 May 2019. Onthe basis of that report a recommendation was made that Mr Bell's securityclassification be overridden and increased too high.[64] Investigations were undertaken following Mr Parr's direction on23 August 2019. It is obvious that CCTV footage was then reviewed. Although theinformation report analysing the CCTV footage is dated 9 September 2019, Mr Phelanmust have had access to the footage when he referred to "further CCTV evidence" inhis recorded comments dated 27 August 2019 in the SDF. Following review of theCCTV footage, cell searches were undertaken. In his submissions, Mr Bell suggestsit is unit officers who are better suited to make judgement calls on operational matters,and not senior management officers. This is said to be because unit officers are moreattuned to the daily dynamics of the prison sub-culture of which they have inexorablybecome a part. In the present case, senior management officers were aware of unitofficers' opinions. Mr Nui states:I am aware that some, but not all, staff in Unit 13 thought Mr Bell did not needto be increased to Maximum security. With all the factors in play, I consideredit was a reasonable decision to increase his security classification to Maximumsecurity given the importance of protecting the safety of prison staff and thegreater security which applies to Maximum security prisoners.[65] This Court has previously considered that the reconsideration procedure meetsthe requirements of natural justice in ordinary cases.11 Therefore, even if it could besaid that there was an error in increasing Mr Bell's security classification to maximum,11 Taylor v Chief Executive of the Department of Corrections [2015] NZHC 2196 at [102].I agree with counsel for the respondent that the error would, in any event, have beenameliorated by Mr Bell availing himself of the reconsideration process.12[66] Further, that Mr Bell was successful in having his security classificationreduced and the practice guidance in the Guidelines updated indicates thereconsideration process functioned as an "effective complaints procedure" for thepurposes of s 6(1)(f)(ii) of the Corrections Act.[67] In all the circumstances, there was no breach of s 27 of the NZBORA ors 6(1)(f)(ii) of the Corrections Act. Natural justice was observed and there was noprocedural unfairness.Fifth, Sixth and Seventh causes of action — relevant/irrelevant considerations andunreasonableness[68] Mr Bell pleads that there was an error of law in the process inasmuch as therespondent failed to consider relevant considerations, took into account irrelevantconsiderations or acted unreasonably. Properly approached, unreasonableness isfocused on a decision's outcome or merits. In the present case, however, Mr Bell'sunreasonableness claim largely appears to challenge the respondent's reasoningprocess leading to the reclassification decisions. It is therefore useful to considerMr Bell's unreasonableness claim together with his allegations about relevant andirrelevant considerations.[69] Mr Bell claims that the respondent failed to consider the following relevantconsiderations: the veracity of the allegations; whether the complaint was credible;whether the nature of the allegation was credible in the maximum security prisonenvironment; whether the decision was overly restrictive and whether othermanagement tools were available; and whether the allegations were serious enough towarrant a misconduct investigation to ensure transparency and natural justice.[70] Regulations 45 and 48 of the Corrections Regulations prescribe the factors thatmust be taken into account when undertaking an event-based review. These are12 Smith v Attorney-General, above n 2, at [26].mandatory relevant considerations. They are incorporated into the SecurityClassification Review form. The decisions at issue, however, concern thediscretionary override to change a security classification that otherwise results fromthe standard security classification review, which has taken the mandatory relevantconsideration into account.[71] In the case of maximum security prisoners there is a further step, whichinvolves the completion of a Maximum security initial assessment form. There are aseries of questions to create an evidence-based proposal for classification. Ms Lanhamsubmits that these questions therefore comprise mandatory relevant factors to beconsidered prior to making a decision to classify a prisoner as maximum. I am,however, not persuaded that these are mandatory relevant factors such that if onequestion is not answered or is answered incorrectly, the decision to classify a prisoneras maximum security is amenable to judicial review.[72] Ultimately, as to relevant considerations, the requirement of the CorrectionsAct and Corrections Regulations prevail, including ss 6(1)(a), 6(1)(g) and 47(1), andreg 44(1). Their general theme is that prisoner security classifications are to bedetermined based on the level of risk posed by the prisoner while inside or outsideprison, including the risk of escape and the risk that escape would pose to the public.The minimum classification necessary to meet that risk is to be imposed.[73] Without necessarily accepting that the factors referred to by Mr Bell can beconsidered mandatory relevant factors, I am of the view that they do not, in any event,provide a basis for successfully challenging the relevant decisions by way of judicialreview. The respondent did consider the veracity of the allegations and the credibilityof the complaint. Mr Phelan was aware that the informant was not always reliable. Inthe SDF form, Mr Phelan referred to "information regarding the individual behind theallegation" in his recorded notes. It is quite clear, therefore, that he took the veracityof the allegations and the credibility of the complaint into account. His knowledge ofthe informant led him to accord less weight to the allegations that he might otherwisehave done. He still recommended an increase to the maximum security classification.[74] As to whether the nature of the allegation was credible in a maximum securityprison environment, an attempt to escape is, of course, much less likely to besuccessful. An unsuccessful attempt involving the taking of a female staff memberhostage would, however, have the potential to be cause just as much, if not more, harm.[75] Whether the decision was overly restrictive and whether other managementtools were available was a matter of judgement for Corrections staff. The Court willbe slow to interfere with prison management decisions involving such judgementcalls.13 Where those decisions affect the safety and security of prisons and prisoners,courts have shown deference to the administrative decision-maker.14 Here, I agreewith the comments of Nicholas Davidson J in Genge v Chief Executive of theDepartment of Corrections:15 [w]hen Mr Genge says that security classification reviews should not beconducted in response to minor changes in risk that can be managed accordingto the guidelines, that is so obviously for prison management that this Courtwould never interfere with such a decision unless there was an egregiouselement of the decision making.[76] I am of the view that no such egregious element exists in this case.[77] Finally, the absence of misconduct charges against Mr Bell does not provide abasis for judicial review. The misconduct regime and security classification decisionsare separate matters. Charges of misconduct are subject to the prosecution and hearingregime specified in sch 7 of the Corrections Regulations. Misconduct must be provedbeyond reasonable doubt. In contrast, security classification decisions are inherentlyabout risk.16 I note Mr Milne's observation that it is often impossible to substantiatean allegation that someone plans to escape or take someone hostage before theyattempt to do so.[78] Mr Bell further claims that the respondent wrongly took into account thefollowing irrelevant considerations in the reclassification decision: that he was a high-13 Genge v Chief Executive of the Department of Corrections, above n 2, at [38].14 See, for example, Taylor v Chief Executive of the Department of Corrections [2010] NZCA 371,[2011] 1 NZLR 112.15 Genge v Chief Executive of the Department of Corrections, above n 2, at [38].16 This Court has previously noted the distinction between the disciplinary regime and securityclassification: Genge v Chief Executive of the Department of Corrections, above n 2, at [12].profile prisoner; and that he may or may not have secreted and passed an envelope toother prisoners in the yard.[79] Ms Koti has explained the fact that Mr Bell is a high-profile prisoner was nota guiding factor in her consideration of his security classification. Many of themaximum-security assessments she dealt with related to such prisoners. Ms Koti was,however, relying on the recommendation of Mr Phelan. Mr Phelan concluded it was"difficult to support" a reclassification of Mr Bell to maximum based on the evidencethey had. He instead supported an increase based on a "public safety perspective andour reputational risk".[80] Reliance on reputational risk is, however, irrelevant under the Act, Regulationsand Guidelines. This was recognised by the respondent in dealing with the applicationfor reconsideration filed by Mr Bell and was a factor in Mr Bell's decrease frommaximum to high. The Guidelines for completing male review security classificationhave now been amended to include the following guidance:A classification must not be overridden solely on the grounds that a personposes a reputational risk to the Department.[81] Mr Phelan was, however, not the Corrections Officer who made the finaldecision. That was Ms Koti and there is no evidence that she wrongly tookreputational risk into account. She says she was most concerned with the safety ofstaff and that she considered it appropriate to take such allegations seriously untilgiven reason not to. She specifically denies that Mr Bell's profile was a considerationfor her.[82] As to unreasonableness, Mr Bell claims the decision to reclassify him wasunreasonable because no misconduct charges had been proven or alleged during thematerial time or in the past three years; there was no clear purpose because theallegations of a plan to escape were "stale information without ascertainment ofcredibility"; he was already residing in the maximum security wing and classificationdid not serve any purpose other than to terminate his employment in the laundry, whichcould have been done without reclassification; and the increase to maximum wascontrary to reg 44.[83] Unreasonableness, as traditionally conceived, has a very high threshold — thatthe impugned decision is "so unreasonable that no reasonable authority could everhave come to it".17 This standard, however, may be attenuated to the particular contextand subject-matter.18[84] The approach to unreasonableness (both in terms of process and outcome) wasaddressed by Ellis J in Taylor v Chief Executive of the Department of Corrections, acase involving an application for judicial review of a decision declining admission toa prison rehabilitation programme.19The Court's supervisory jurisdiction does not generally permit it to engage ina rehearing of the merits of an impugned decision. The mere fact that theCourt might consider that a better decision could have been made on the factsdoes not mean that the application for review should succeed. Failure by adecision-maker to consider a relevant consideration is only fatal if theconsideration can be said to be expressly or impliedly mandatory. It is tritethat the unreasonableness threshold is a very high one.[85] The allegations of unreasonableness here overlap with the allegations therespondent took into account irrelevant considerations and did not take into accountrelevant considerations. To the extent they challenge the merits of the decision toincrease Mr Bell's classification to maximum, I am of the view that the decision wasnot unreasonable. As noted by Ellis J, the mere fact that the court might consider thata better decision could have been made on the facts does not mean that the applicationfor review should succeed.[86] Here, the fact that following Mr Bell's application for reconsideration and afterfurther reflection and discussion other measures were identified enabling a decreasein Mr Bell's security classification to high does not mean the earlier decision wasunreasonable. It shows the reconsideration process working well in an area wheredecision-makers weighing various factors can reasonably vary.17 Associated Provinicial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 at 229.18 Smith v Attorney-General, above n 2, at [116].19 Taylor v Chief Executive of the Department of Corrections [2016] NZHC 1805 at [58].Eighth cause of action — ultra vires[87] Mr Bell claims that the respondent's security classification platform, namely,the ability to award demerit points over "negative" file notes is ultra vires theCorrections Act and also inconsistent with rules of natural justice under the NZBORAand at common law. File notes reflect officers' untested viewpoints of events. Theypreclude prisoner input. The practice is unfair because it allows demerit points to beentered against a prisoner without the benefit of him being heard. A negative file noteis subjective and is "essentially hearsay evidence".[88] It seems that this cause of action reflects Mr Bell's concern with the way inwhich allegations of a security risk should be taken into account in reviewing asecurity classification. This appears to be another iteration of submissions madeearlier as to the requirements of natural justice and unreasonableness, which areaddressed in earlier causes of action.Result[89] None of the grounds of judicial review are made out. As a result, the questionwhether this Court should make declarations does not arise. Nor has any breach ofNZBORA been established. There is, therefore, no question of damages. Mr Bell'sclaim is dismissed._________________________Woolford J