VALENT v DEPARTMENT OF CORRECTIONS [2022] NZHC 3194

VALENT v DEPARTMENT OF CORRECTIONS [2022] NZHC 3194 [1 December 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV 2021-404-1748[2022] NZHC 3194UNDER THE Judicial Review Procedure Act 2016; and theNew Zealand Bill of Rights Act 1990; andthe Corrections Act 2004 and the CorrectionsRegulations 2005BETWEEN XAVIER LUCIAN VALENTApplicantAND THE NEW ZEALAND DEPARTMENT OFCORRECTIONSRespondentHearing: 3 February 2022Appearances: Applicant in PersonJ K Williams and V McCall for RespondentJudgment: 1 December 2022JUDGMENT OF DUFFY JThis judgment was delivered by me on 1 December 2022 at 10am pursuant toRule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarSolicitors:Crown Law, WellingtonAnd to:The Applicant[1] Mr Xavier Valent seeks judicial review of a decision by the Department ofCorrections (Corrections) to refuse to supply hairdressing scissors and a haircutperformed by another person.[2] Mr Valent is on remand in directed segregation in the Prisoners of ExtremeRisk Unit (PERU). He has a non-association direction due to the risk of harm fromother prisoners, the risk he may influence others to carry out acts of violence, and therisk he may coordinate an escape attempt. His alleged offending is related totransnational drug crime but he has no history of violence.[3] Corrections supplied Mr Valent with electric hair clippers (that are availableon request) and states that all cells have mirrors. On 11 January 2022, Correctionsoffered Mr Valent a "bespoke" solution whereby he may access hairdressing scissorsin a controlled environment (but without the assistance of another person). Mr Valenthas neither accepted nor rejected this offer in light of these proceedings.Grounds of review[4] The applicant is self-represented and as such his submissions do not squarelyaddress established grounds of judicial review.[5] Broadly, the applicant claims that (among other matters):(a) the decision fails to meet the requirements found in the CorrectionsAct2004 and Corrections Regulations 2005;(b) the decision is in breach of his rights under the New Zealand Bill ofRights Act 1990 (NZBORA);(c) the decision is contrary to natural law and the right to a fair trial.[6] The respondent addresses Mr Valent's arguments under the grounds ofunreasonableness, error of law, irrationality, consideration of irrelevant factors orfailure to consider relevant factors, procedural unfairness or impropriety, unfairness,and improper purpose. They also address a range of other allegations separately.Applicant's submissions[7] The applicant submits that the hair clippers are "manifestly insufficient" toeffect a haircut. This leaves Mr Valent with no options but to shave his head, cut hishair short to a length of 25 mm, let it grow uncontrollably or "succumb to the anomie"of attempting to cut his hair properly with clippers. This scenario means Mr Valent isnot able to have the haircut of his choice.Requirements under the Corrections Act 2004 and Corrections Regulations 2005[8] Regulation 70 of the Corrections Regulations 2005 (authorised by s 203 of theCorrections Act 2004) states that a prisoner may (save for any health concerns) "keepor adopt the hairstyle of the prisoner's choice". Regulation 188 states that (save forany health and safety concerns) "the hairstyle and facial hairstyle of a prisonerawaiting trial or during trial may be cut or shaved only to the extent necessary topreserve the appearance of that prisoner at the time of his or her reception to theprison". Mr Valent submits the hairstyle of his choice, being the one he had at hisreception to prison, cannot be achieved with the use of hair clippers by himself.Forcing him to have a short or shaved hairstyle would violate regulation 188.[9] Mr Valent also references Rule 18 of the United Nations Standard MinimumRules for the Treatment of Prisoners (UNMRTP) which stipulates that " in orderthat prisoners may maintain a good appearance compatible with their self-respect,facilities should be provided for the proper care of the hair and beard ". TheUNMRTP form part of the basis for the Corrections Act 2004, according to s 5.[10] Section 6(2) of the Corrections Act 2004 states that:Persons who exercise powers and duties under this Act or any regulationsmade under this Act must take into account those principles set out insubsection (1) that are applicable (if any), so far as is practicable in thecircumstances.Section 6(1)(g) states that sentences and orders must not be administered morerestrictively than is reasonably necessary to ensure the maintenance of the law and thesafety of the public, corrections staff, and persons under control or supervision. MrValent submits that the conditions are more restrictive than necessary.[11] Section 80 requires appropriate provision to be made, so far as reasonable andpracticable, for various cultural needs. Mr Valent submits that it is "a fundamentaland prevalent custom" of New Zealand European/ English culture "to receive a haircutexecuted by another competent individual".[12] Under reg 62 of the Corrections Regulations 2005, segregation conditions mustbe, as far as practicable and if not inconsistent with the prisoner's directions, the sameconditions as if the prisoner were not under segregation. Mr Valent claims that otherprisoners are able to access haircuts in the manner he desires and was himself able toaccess this at other prisons. He submits it is practicable and not inconsistent with hissegregation direction to receive a haircut.[13] Under reg 77, prisoners may obtain treatment from a health service provider ifit can be obtained consistently with security requirements. Mr Valent submits thisincludes a haircut.Breach of New Zealand Bill of Rights Act 1990 (NZBORA)[14] Mr Valent submits that the decision is in breach of ss 9, 13 and 23 of NZBORA.Section 9 provides:Right not to be subjected to torture or cruel treatmentEveryone has the right not to be subjected to torture or to cruel, degrading, ordisproportionately severe treatment or punishment.[15] Section 13 provides:Freedom of thought, conscience, and religionEveryone has the right to freedom of thought, conscience, religion, and belief,including the right to adopt and to hold opinions without interference.[16] Section 23(5) provides: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.[17] With respect to s 9, Mr Valent submits that his status as an untried person andhis lack of violent history make the refusal to give him a haircut cruel and degradingtreatment.[18] With respect to s 13, Mr Valent claims this is breached because he is"prevent[ed] from retaining his personal image".[19] With respect to s 23(5), Mr Valent submits he has not been treated withhumanity nor respect for his human dignity. A hairstyle is part of a person'spersonality and self-determination. Compelling an inmate to a shaved head, shortcropped hairstyle, letting it grow unmaintained, or self-administered haircut serves todistance them from societal mores and results in unnecessary ostracism. Mr Valentsubmits he has endured feelings of humiliation and debasement.[20] Mr Valent also advances a number of submissions relating to international lawthat overlap with these claims or relate to general principle.Breach of natural law[21] Mr Valent submits that the opportunity for untried inmates to undergo a fulland proper haircut falls within the interests of a fair trial as denying this can lead toprejudice.[22] Mr Valent submits that under natural law the deprivation of liberty is the solepurpose of imprisonment, and other civil liberties that are not lost as a directconsequence of this must be maintained. He submits that his haircut request is feasiblewith regard to the safety, security and good order of the prison.[23] Mr Valent puts forward a number of other claims of only general relevance.Respondent's submissions[24] The thrust of the respondent's case is that scissors are not provided to prisonersfor safety reasons (they are a ready-made weapon) and another person cannot performa haircut due to Mr Valent's segregation status. Access to hair clippers is the samehaircutting facilities generally available to prisoners, especially in maximum securityenvironments. Fulfilling Mr Valent's request would compromise the security of theprison.[25] Additionally, the respondent submits that the Courts have traditionally beenslow to interfere with the day-to-day management of prisons and have been reticent toinvolve themselves in decisions in relation to the security and good order of prisons.1The claim relates squarely to that area in which the Court should be slow to interferefor those same reasons.Illegality[26] The respondent submits access to scissors and a hairdresser are not part ofprisoners' minimum entitlements under s 69 of the Corrections Act 2004. Thefacilities offered are in line with the statutory scheme, the Prison Operations Manual,the PERU desk file, and general practice across prisons.[27] Regulations 70 and 188 (relating to prisoners' hairstyle choice) are subject tothe overriding purpose and principles of the Corrections Act 2004. The regulations donot provide a right for a prisoner to choose any hairstyle effected by any means withoutregard to what can reasonably be provided for in a prison environment in light ofconsiderations of safety and security and the allocation of resources.[28] Similarly, any NZBORA rights are subject to reasonable limitations. In amaximum-security environment, subject to directed segregation, safety and securityconcerns place justifiable limits on a range of rights affirmed in the NZBORA(including those that might be invoked in support of a particular haircut).[29] Mr Valent alleges that a haircut falls under his health care right, but haircutsare distinguished in the regulations as they fall under the sections on grooming(regs 68–70) rather than healthcare (regs 71–81).1 Mitchell v Attorney-General on behalf of the Chief Executive of the Department of Corrections[2021] NZHC 2946, citing: Bennett v Superintendent Rimutaka Prison [2002] 1 NZLR 616 (CA)at [81]; Taylor v Chief Executive of the Department of Corrections [2015] NZHC 2196 at [2], [24]and [103]; and Smith v Attorney-General on behalf of the Chief Executive of the Department ofCorrections [2017] NZHC 136 at [8].[30] The respondent submits that the provision of relatively basic haircuttingfacilities does not rise to the level of torture or cruel and degrading treatment, nor doesit amount to a failure to treat the applicant with humanity and respect for his dignity.There is no "unacceptable and serious departure from the standard of care expected ofa reasonable person in the position of the detaining authority".2[31] Additionally, the applicant has failed to establish a cultural need for a particulartype of haircut, and nonetheless the cultural need provisions are subject topracticability.Irrationality[32] The respondent submits that the decision is not unreasonable because there ismore than one reasonable outcome available to the decision-maker in thesecircumstances and the haircut facilities offered to Mr Valent are reasonable in thecircumstances.[33] It is neither irrational nor arbitrary to treat the applicant in accordance with hisdirected segregation with non-association status, or to decline access to scissors on thebasis of safety and security concerns.[34] In response to Mr Valent's allegation that he is not being held under the sameconditions as non-segregated prisoners, Corrections notes that almost all prisoners donot have access to a haircut on the terms Mr Valent seeks (excluding some limitedexceptions for low-security and women's prisons). This is also the respondent'sanswer to a potential ground of unfairness.Impropriety[35] The respondent submits that there is no suggestion that any decision maker hador has a conflict of interest, or that the process by which the decision was arrived atdisadvantaged the applicant and led to a different outcome than would have been thecase had a different process been followed.2 S v Attorney-General [2017] NZHC 2629 at [245(h)].[36] The absence of an available third person to perform a haircut is not unfair, or"additional punishment" as the applicant submits, but rather inherent in the non-association status which the applicant has not previously or directly challenged.Analysis[37] The decision to restrict scissors and other persons cutting Mr Valent's hair is anecessary consequence of his security conditions and is therefore within Corrections'scope of power.[38] While proper hair care touches the issue of dignity under NZBORA s 23(5),Mr Valent's circumstances likely do not prevent him from attaining proper hair care.Corrections' scope of power[39] Corrections has the power to place prisoners along a spectrum of securityconditions based on their discretionary assessment of risk.3 Decisions that follow asa necessary consequence of that placement are within the discretion and power ofCorrections. As noted by the respondents, the inability to fulfil Mr Valent's requeststems directly from his non-association order, which means he cannot have contactwith other prisoners to cut his hair, and the security measures of PERU, which meanan external hairdresser cannot come in and he cannot be provided scissors.4 Therefore,any ground resting on Corrections acting ultra vires cannot succeed.[40] Regulation 188 provides Mr Valent's strongest case for illegality. It states that"the hairstyle of a prisoner awaiting trial or during trial may be cut or shaved onlyto the extent necessary to preserve the appearance of that prisoner at the time of his orher reception to the prison". However, close interpretation of this provisiondemonstrates that it is not an enabling provision that gives Mr Valent a right to preservehis appearance, rather it is a restriction on Corrections staff from forcing a prisonerawaiting trial to shave their head or adopt a very short hairstyle if they did notpreviously sport one.3 Corrections Act 2004, s 47. See also regs 44–52 (security classification of prisoners) and 52A-52N (prisoner placement system).4 However, Corrections has now offered Mr Valent the use of scissors under supervised conditions.[41] The options available likely do not amount to Corrections forcing Mr Valent toshave his head or adopt a very short hairstyle. Affidavit evidence from Jeanette Burnsnotes that Mr Valent has access to a comb in conjunction with the hair clippers andthat other prisoners in PERU use the clippers to cut their hair to varying lengths. Whilehe may not have the skills to achieve his exact pre-prison haircut, it may not be theall-or-nothing scenario Mr Valent paints in his submissions.[42] Regulation 70 states that prisoners may keep or adopt the hairstyle of theirchoice. It does not specifically apply to prisoners awaiting trial. Nonetheless,Mr Valent could expect to access the same rights as other prisoners if not a higherstandard of treatment.5 That equal treatment must of course be subject to securityissues.6[43] Mr Valent claims the haircutting conditions are stricter than reasonablynecessary to maintain safety and security. However, Corrections has laid out why ahaircut on the terms he desires is not available. There is merit to Corrections'submission that they are the best body to assess whether the measures are reasonablynecessary, and the Court should not interfere in matters of safety and good order ofprisons.Dignity[44] Under s 23(5) of NZBORA, everyone deprived of liberty shall be treated withhumanity and respect for the inherent dignity of the person. In Taunoa v Attorney-General, the Supreme Court analysed s 23(5) alongside s 9 of NZBORA andinternational instruments.7 The Court noted that s 23(5) imposed a positive obligationon the state in relation to persons deprived of liberty. Treatment of a lesser order thans 9 that is unacceptable in society but is not considered outrageous is inconsistent withs 23(5).8 In Vogel v Attorney General, the Court of Appeal found that the cellconfinement of the applicant amounted to a breach of s 23(5) as it had the consequencethat he was not treated with humanity and respect for his inherent dignity.9 The Court5 See regs 185 (treatment of accused prisoners) and 62 (treatment of segregated prisoners).6 Reg 185(2)(a).7 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429.8 At [170] per Blanchard J.9 Vogel v Attorney General [2013] NZCA 545 at [75].of Appeal in Attorney General v Udompun also upheld the High Court's finding thatnot providing the applicant with sanitary products after she requested them nor anyfood while she was detained fell below the standard guaranteed by s 23(5).10[45] Section 23(5) is echoed in the United Nations Minimum Standard Rules for theTreatment of Prisoners (the UN Standards), rule 5:The prison regime should seek to minimize any differences between prisonlife and life at liberty that tend to lessen the responsibility of the prisoners orthe respect due to their dignity as human beings.[46] The purpose of the Corrections Act 2004 requires the UN Standards to be takeninto account. Section 5 provides:(1) The purpose of the corrections system is to improve public safety andcontribute to the maintenance of a just society by—(b) providing for corrections facilities to be operated in accordancewith rules set out in this Act and regulations made under this Act thatare based, amongst other matters, on the United Nations StandardMinimum Rules for the Treatment of Prisoners(emphasis added)[47] Observance of the UN Standards is directly relevant to compliance with theinternational law equivalent of s 23(5), the International Covenant on Civil andPolitical Rights, art 10.11[48] In Smith v Attorney-General on behalf of Department of Corrections, Wylie Jfound that NZBORA is a mandatory consideration in Corrections decision making.12This point was not addressed on appeal.13[49] Hair and hairstyles are elements that relate closely to a person's sense ofidentity and self-respect and could have bearing on humanity and inherent dignity.10 Attorney-General v Udompun [2005] 3 NZLR 204 (CA) at [148].11 Taunoa v Attorney-General, above n 7, at [31] per Elias CJ.12 Smith v Attorney-General on behalf of Department of Corrections [2017] NZHC 463, [2017]2 NZLR 704 at [72]-[74].13 Attorney-General v Smith [2018] NZCA 24; and Smith v Attorney-General [2018] NZSC 40.[50] Rule 18(2) of the UN Standards states that:In order that prisoners may maintain a good appearance compatible with theirself-respect, facilities shall be provided for the proper care of the hair andbeard, and men shall be able to shave regularly.[51] There is therefore merit in the claim that facilities for proper care of the hair isan element of a prisoner's right to human dignity that Corrections must either take intoaccount or give effect to. However, it is not clear on the facts that Mr Valent does nothave "facilities for proper care" of his hair.[52] On one hand, Mr Valent claims that with clippers he can only effect essentiallya "buzz cut", which would be demeaning to him and could project a negative imagefor his trial. If he attempts to cut his own hair, with either the clippers or scissors, hisamateur skill may result in an embarrassing result. Outside of segregation, otherinmates often informally cut one another's hair.[53] On the other hand, Corrections has offered Mr Valent a bespoke solution ofsupervised use of hairdressing scissors as electric hair clippers are no longer suitableto address the length his hair has grown to. Electric hair clippers are standard forPERU and most prison environments. There is also the obvious parallel with COVIDrestrictions that have prevented many members of society from accessing haircutsperformed by other people.[54] When Mr Valent appeared before me by audio-visual link it was obvious hishair had not been cut for some time. He showed me a photograph of himself with ahaircut he approved of.[55] Mr Valent may have subjective and personal preferences of his self-image thathe cannot meet with his own hairdressing skills. He has not however showed me howhis hair would appear if cut under the present conditions. All I know from him is thathe anticipates that if he cuts it himself with the facilities provided by Corrections thecut will not be up to the standard he would want for his hair. However, there is noauthority to support the assessment of "facilities for proper care" being a purelysubjective exercise.[56] Case law that discusses s 23(5) demonstrate that it is not assessed based on anapplicant's subjective feelings but is based on the facts. For example, in Scott v Police,the defendant objected to the removal of her shoes while she was in custody under ss9 and 23(5) of the NZBORA and the UN Standards. It was found that removing hershoes was necessary in that case otherwise there would have been reasonableassertions that the police officers had been derelict in their duty to a distressedprisoner.14 In B v Waitemata District Health Board, one of the claims made by theapplicant was that the non-smoking policy that banned smoking in any buildings,vehicles or offices owned or leased by the Waitemata District Health Board breacheds 23(5).15 The Court of Appeal said "whether the Smoke-free Policy involves anyinhumane treatment that breaches this standard is a factual question".16 It agreed withAsher J's assessment in the High Court that the long term benefits and nicotinereplacement and other therapies available to assuage the effects of withdrawal meantthat the administration of the policy was done with humanity. This was upheld by theSupreme Court.17[57] I consider the assessment of whether Mr Valent can presently provide for the"proper care" of his hair is something that should engage an objective standard. Whatis reasonable facilities for proper care should therefore involve an assessment basedon what is a reasonable standard of proper hair care for someone in Mr Valent'scircumstances. This should take account of a prisoner's religion and culture, and anyother considerations personal to him. But the assessment must be an objective one. Isee no basis for allowing the assessment of facilities for proper hair care merely to turnon the personal subjective opinion of an individual prisoner.[58] Mr Valent has the facilities to cut his hair to the length of his choice. This maynot be in the style of his choice due to his skill, but there is no evidence the resultingcut would be unreasonable.[59] Accordingly, I find that s 23(5) is therefore not breached. If I am wrong in thatregard, I find in the alternative that any breach of s 23(5) is a reasonable justification14 Scott v Police (1994) 12 CRNZ 207 (HC).15 B v Waitemata District Health Board [2016] NZCA 184, [2016] 3 NZLR 569.16 At [71].17 B v Waitemata District Health Board [2017] NZSC 88, [2017] 1 NZLR 823 at [74] and [87].given the limitations of Mr Valent's security conditions. Corrections did not appear todirectly address the implications of their decision on this right in their decision-makingprocess. However, their decision to offer Mr Valent the use of scissors demonstratesCorrections is attempting to give effect to rule 18 of the UN Standards and giveMr Valent facilities to provide for the proper care of his hair.Conclusion and observations[60] I am satisfied the present application should be dismissed. I observe that thepathway to Mr Valent being able to enjoy better access to hair care than he currentlyenjoys is more likely to lie in him questioning whether his present security status iswarranted. There is no evidence he has been physically violent. In suchcircumstances, an adjustment of his current status that would enable him to have hishair cut by a third party should solve his present concerns. Whether there are groundsfor challenging his present security status is not something that I can address in thecontext of this judicial review.[61] Mr Valent's appearance at trial may require more attention to his hair style thanwhile on remand in custody. There is arguable a difference between the day-to-dayproper hair care of a defendant on remand in custody and the proper hair care he isentitled to receive when appearing before a jury.[62] However, neither of the above issues can presently be considered because thecase Mr Valent brings is not framed in a way that allows them to be ventilated. Thereis no pleading or evidence that would enable the Court to form a view on them.[63] During the hearing Mr Valent submitted a "buzz cut" done by himself wouldnot permit him to present himself in a good light before a jury. But until evidence ofwhat a self-styled buzz cut would do for Mr Valent's appearance is before the Court,it cannot reach a view on whether this would adversely affect his appearance beforethe jury. Without evidence, the answer to this question is speculative. The questionof whether Mr Valent's present inability to have someone else cut his hair is somethingthat could adversely affect the presentation of his defence at trial (and for this reasonbetter hair styling should be available for him) is a separate issue to be addressed onanother occasion.Result[64] The judicial review is dismissed.[65] Leave is reserved for the parties to file memoranda on costs.Duffy J