(i) The award of compensation to Mr Taunoa is increased by $10,000 to correct an error in the calculation of the amount awarded to him in the High Court;

(ii) The finding in the High Court that there was no breach of s 9 of the New Zealand Bill of Rights Act 1990 in relation to the treatment of Mr Tofts is quashed, and a declaration that Mr Tofts’ detention on BMR was in breach of that section is made.

In all other respects the cross-appeal is dismissed.

The respondents are awarded costs equal to the total costs incurred and paid by the Legal Services Agency in relation to the appeal, as well as usual disbursements.

REASONS

Anderson P, Glazebrook, William Young and O’Regan JJ [1]

Hammond J (dissenting in part) [287]

ANDERSON P, GLAZEBROOK, WILLIAM YOUNG AND O’REGAN JJ

(Given by O’Regan J)

Table of Contents

Para No

Introduction [1]
Background [6]
The High Court judgment [25]
THE APPEAL [49]
Ground one: Was there a breach of s 23(5) of the Bill of Rights? [53]
Ground two: Was compensation the appropriate remedy? [149]
Ground three: Was the level of compensation too high? [154]
Conclusion: Appeal [180]
THE CROSS-APPEAL [181]
Section 9 of the Bill of Rights [183]
Section 27 of Bill of Rights [229]
Specific grounds of cross-appeal [241]
Conclusion: Cross-appeal [285]
Costs [286]

Introduction

[1] This appeal raises a number of issues relating to the legality of the manner in which the Department of Corrections (Corrections) treated the respondents as inmates in New Zealand prisons.
[2] The respondents commenced proceedings in the High Court alleging breaches of the Penal Institutions Act 1954 (PIA), the Penal Institutions Regulations 2000 (the Regulations), the New Zealand Bill of Rights Act 1990 (Bill of Rights), the Crimes Act 1961, the Standard Minimum Rules for the Treatment of Prisoners 1955 (Standard Minimum Rules), the Bill of Rights 1688 (Imp), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture).
[3] The case was heard in the High Court before Ronald Young J over some 36 hearing days and, in a reserved judgment (HC WN CIV-2002-485-742 7 April 2004, recalled and reissued 2 September 2004), he found that there had been breaches by Corrections of the PIA, the Regulations and s 23(5) of the Bill of Rights. He made certain declarations in favour of individual respondents, and adjourned the matter for a further hearing on remedies. After that further hearing, the Judge issued another judgment dated 2 September 2004 in which he determined that Bill of Rights compensation should be paid to five of the respondents, but declined to make compensation awards to the others. The Judge’s first judgment (in its original form prior to recall) is reported at (2004) 7 HRNZ 379.
[4] We now have before us an appeal by the appellants challenging both the liability findings and the awards of compensation, and a cross-appeal by the respondents challenging a number of aspects of the Judge’s decision.
[5] In view of the very large number of issues dealt with in the two High Court judgments and the broad-ranging nature of the points on appeal and cross-appeal, we will set out the findings of the High Court Judge on a particular topic as we deal with the point of appeal or cross-appeal relating to that topic. In order to provide some context, however, we will first summarise the background to the litigation and set out a general summary of the High Court Judge’s findings.

Background

[6] The case concerns the segregation of the respondents in a regime which Corrections referred to at various times as the Behaviour Modification Regime and the Behaviour Management Regime (BMR), or another form of segregation known as administrative segregation. Five of the respondents, Messrs Taunoa, Robinson, Tofts, Kidman and Gunbie were subject to BMR. All of the respondents other than Mr Taunoa were placed on administrative segregation.
[7] The main focus of the High Court decision was on BMR, and we will describe that first. Our description is closely based on that of Ronald Young J in his first judgment.

BMR

[8] In the late 1990s, Corrections became concerned at the situation that had developed in the country’s only dedicated maximum security facility at Auckland Prison, the east division. Problems had developed in dealing with the most difficult prisoners in the east division: it was thought that there had been an unacceptable relaxation of the rules and an inadequate measure of control exercised over the inmates which compromised the safety of inmates and staff. Also, the east division, especially D Block within that division, was seen by some prisoners as an attractive place to be.
[9] In response to these problems, Corrections began to develop a six phase programme for the prisoners within D Block to encourage the most difficult prisoners out of D Block and into the mainstream prison population. After serious riots at Auckland Prison in 1998, the prison authorities decided to introduce what was initially termed a “Behaviour Modification Regime” throughout the east division, including Blocks A-D. The most restrictive regime was to be in D Block.
[10] Later in 1998, a review was undertaken of prison management in the east division. The purpose of that review was to formalise the series of decisions and implementation actions that had been taken in respect of the east division, and mould them into a workable model. The review said that the “behaviour modification” model best suited the purposes of the regime that had been introduced and its underlying needs.
[11] The regime that followed involved the introduction of a highly controlled environment that could become less restrictive for an inmate depending on his behaviour. The regime originally was to consist of six phases, each phase characterised by a certain level of restriction. Restrictive elements included restrictions on association, unlock hours, movements and activities. The regime was to be based on the principles of behaviour modification: desired behaviour would be identified and targeted at every phase, principles of reinforcement would be applied to shape and maintain appropriate behaviour, and this would involve social reinforcement and the gradual improvement of privileges. Serious misconduct would lead to a summary relegation to a lower programme phase, characterised by more restrictions. Each phase was to have a minimum and maximum duration, to ensure continuous movement through the system. The review stressed that the scheme was to use recognised behaviour modification methods: it was to have a deterrent effect that reinforced desirable behaviour and reduced undesirable behaviour. The intention was to have a highly controlled environment in D Block, with less control in Blocks A-C.
[12] By April 1999, phases 5 to 6 of the regime were dropped on the basis they were essentially the same conditions as “ordinary” maximum security classification. Ronald Young J summarised the principal conditions and restrictions on the remaining four phases in the following table:

PHASE	1	2	3	4
Duration	14 days	Min = 6 weeks	Min = 2 months	Min = 2 months
Unlock hours per day	1 hour	1 hour	2 hours	2 hours
Association	No association	1 other	3 others	5 others
Movements	Restricted 3 (staff) – 1 (inmate)	Restricted 3 (staff) – 1	3-1	3-1
Meals	In cell	In cell	In cell	In cell
Visits	30 min booth per week	30 min booth per week	30 min booth per week	30 min booth per week
Personal Kits	No, except own shoes	No, except own shoes	No, except own shoes	No, except own shoes
Hobbies	None	None	None	As approved by UM/PCO
Cultural Activities	No	Individual visits only	Individual visits only	Individual visits only
Toiletries	Issued on request. Not retained	Retain in cell except razor	Retain in cell except razor	Retain in cell
Phones	2x10 min per week pre-arranged	2x10 min per week pre-arranged	2x15 min per week pre-arranged	Daily access to phones at discretion of staff
Smoking	No	No	No	No
P119 Purchases	As approved	As approved	As approved	As approved
TV	No	No	No	Yes
Stereo	No	No	Walkman	Walkman
PROGRAMMES
Chapel	No, but individual visit is OK	No, but individual visit is OK	No, but individual visit is OK	No, but individual visit is OK
Education	No	Approved distance education	Approved distance education	Approved distance education
Core Programmes	No	No	No	No
Library	Books brought to cell	Books brought to cell	Books brought to cell	Books brought to cell
PARS (Prisoner Assistance Rehabilitation Service), Kaumatuas etc	As approved by UM/PCO	As approved by UM/PCO	As approved by UM/PCO	As approved by UM/PCO
Employment	Limited Cleaning	Limited cleaning	Limited cleaning	Any available
Recreation	No	Yards 2x per week x1 hour	Yards 2x per week x2 hours	Yards 2x per week x2 hours
TARGETED BEHAVIOUR	1	2	3	4
	As per the unit’s list of targeted behaviour	As per the unit’s list of targeted behaviour	As per the unit’s list of targeted behaviour	As per the unit’s list of targeted behaviour

[UM/PCO refers to the Unit Manager/Principal Corrections Officer]

[13] Inmates placed on the regime would start at phase 1, and progress through the phases as their behaviour improved: at each phase more and more of the inmates’ privileges were returned. Inmates could also be regressed one or more phases if their behaviour showed a consistent deterioration.
[14] At the end of 1998, Corrections undertook a further review of the regime. A circular dated May 1999 from the General Manager Prisons followed, which explained from Corrections’ point of view how BMR was to function in relation to the national prison system. The review involved two psychologists: Mr Van Rensburg and Mr Wales. The review observed that the regime had been successful in its basic aim of reducing disruptive behaviour, but that while suitable for emotionally stable inmates, BMR was not suitable for unstable inmates or those who had a tendency for self-harm.
[15] In a further report of January 1999, Mr Wales said that the regime differed from what would be considered best practice behaviour modification in a number of specified ways. He recommended that the name of the programme be changed to Behaviour Management Regime, as opposed to Behaviour Modification Regime. Corrections accepted that recommendation and accordingly changed the name. Ronald Young J observed (quoting the General Manager Prisons) that, by that time, there was no real doubt that BMR was aimed primarily at maintaining good order and behaviour and not at rehabilitation.
[16] In practical terms, inmates were assessed for inclusion in the BMR regime in the following way:

(a) Before being able to be transferred to Auckland Prison an inmate had to be classified as a maximum security prisoner. That classification was done at the inmate’s then existing prison.

(b) The inmate arrived at Auckland Prison with a recommendation that he be considered for the BMR.
(c) The inmate was interviewed by a prison nurse (not necessarily having a specialist background in psychiatric nursing) and the Principal Corrections Officer (PCO) for D Block.
(d) The inmate’s prison file was generally seen by the PCO, while the inmate’s medical file was available to the nurse.
(e) The nurse and PCO asked a set of pre-set questions and recorded the inmate’s responses.
(f) The PCO discussed each case with a Senior Corrections Officer, and if agreed, a recommendation would be made to the Superintendent who had the final say in admission.
[17] Ronald Young J recorded that, in the vast majority of cases, an inmate who had been recommended for BMR would be assessed as suitable and commence the programme.
[18] In 2001, the Ombudsman assessed BMR and expressed three areas of concern:

(a) Lack of external approval for placement on BMR.

(b) Lack of approval for continuation of detention on BMR.
(c) Excessively long minimum period of 9 months for the four stages.
[19] Prior to the review, Corrections had taken the view that s 7(1) of the PIA was the authority required for placing an inmate on BMR. That subsection gives a Superintendent a general power to make rules for the management of the prison. Corrections considered the prison Superintendent had power to segregate prisoners under that section, in addition to the specific power contained in s 7(1A). Section 7(1A) provides a specific power to restrict or deny an inmate’s opportunity to associate with other inmates in certain circumstances.
[20] The Ombudsman considered that the proposition that s 7(1) applied might have been arguable in law but that approvals for detention on BMR should be dealt with in terms of s 7(1A). Following the Ombudsman’s review, s 7(1A) was invoked and the General Manager Prisons undertook all s 7(1A) approvals for placement on BMR himself. Further, on the Ombudsman’s recommendation, the minimum period on BMR was reduced from 9 months to 6 months.
[21] Further modifications were made later: inmates at the assessment stage were interviewed by a doctor and screened for potential psychological effects of BMR and a departmental psychologist was part of a fortnightly review team that considered all inmates.
[22] BMR was disestablished after Ronald Young J’s first judgment.

Administrative segregation

[23] The other aspect of the case concerns administrative segregation, which is a form of non-voluntary segregation from other prisoners imposed under s 7(1A) of the PIA. Unlike BMR, administrative segregation was not part of a behaviour management regime and conditions were not as spartan: the normal entitlements and privileges of maximum security prisoners applied. A number of the respondents made claims under the legislation and international covenants referred to at [2] above in relation to administrative segregation, but these allegations were largely unsuccessful in the High Court, and Ronald Young J made no awards of compensation in respect of them.
[24] In particular, the High Court Judge rejected the contentions that this form of segregation breached the Bill of Rights.

The High Court judgment

[25] In this section, we summarise briefly the general findings made by Ronald Young J, and the rulings made by the Judge in relation to each of the respondents.

Lawfulness of BMR

[26] The Judge found that s 7(1) did not authorise the placement of inmates on BMR. As that section had been used to authorise the first placement of Mr Taunoa on BMR and Mr Robinson’s placement on BMR, both of those placements were unlawful. The second placement of Mr Taunoa on BMR and the placement of Messrs Tofts, Kidman and Gunbie on BMR relied on s 7(1A). The Judge held that they were not unlawful in that respect.
[27] The Judge did, however, find that placements on BMR breached the PIA to the extent that BMR inmates had reduced conditions from those which applied to normal maximum security prisoners, because this amounted to a penalty, but the appropriate misconduct process had not been followed.
[28] The Judge also found that there was a breach of reg 155(3) of the Regulations because BMR inmates were not held under the same conditions as they would have been held if they had been in their usual (maximum security) accommodation.

Specific aspects of BMR

[29] The Judge then considered a number of specific aspects of the conditions applying to BMR inmates and found:

(a) Security classification: There was some confusion about how the separate decisions classifying an inmate as maximum security and placing the inmate on BMR were to be made, but the maximum security classifications for Messrs Taunoa, Robinson, Kidman and Tofts were justified. However, Mr Taunoa’s security classification in March 2001 was unlawfully assessed.

(b) Placement on BMR before decision: Inmates were placed on BMR-type conditions while being considered for BMR, and this was unlawful.
(c) Rubber-stamping: The contention that the Superintendent “rubber stamped” the views of officers who interviewed the inmate and read the inmate’s file prior to the inmate’s placement on BMR was rejected: the Judge found there was independent decision making by the Superintendent.
(d) Inadequate psychiatric assessment: There was no proper screening for psychiatric vulnerability of inmates who were being considered for placement on BMR. There was evidence to support the proposition that Corrections had breached reg 48 of the Regulations (requiring institutions to have a healthy environment) because of this failure.
(e) Unclear and inadequate information: Inmates were given unclear and inadequate information about BMR throughout the operation of the regime.
(f) Natural justice: There were undue delays in providing reasons for the first 14 day segregation on BMR which precluded challenge to the placement and prevented inmates having access to the Courts to challenge the decision to place them on BMR.
(g) Privacy: There was no effective privacy in BMR cells (in common with other maximum security cells) and Corrections was required by the Regulations to provide a modesty screen, which it failed to do. The Judge accepted there may be reasons to remove modesty screens but no attempt had been made to justify the absence of a modesty screen on a case by case basis.
(h) Windows: Windows were left closed for extended periods of time to prevent the use of string lines (used to send contraband between landings) but some fresh air was still available to inmates. However more could have been done to develop ways to keep windows open while still combating the use of string lines, given that inmates were confined to their cells for 22-23 hours per day which meant fresh air was important.
(i) Natural light: Natural lighting to the BMR cells was poor, and that might need to be factored into the decision as to the availability of other opportunities for an inmate to experience natural light in order to ensure a healthy environment. There was no evidence that this had been done.
(j) Artificial lighting: The complaints which inmates made about lights being left on all night disrupting their sleep were found by the Judge to have been seriously exaggerated. He found the use of artificial lighting could be justifiable where security concerns required it.
(k) Exercise: Mr Taunoa and Mr Robinson, and probably other BMR inmates, received an inadequate opportunity to exercise, and particularly to exercise outdoors during their time on BMR. This fell below the standards set by reg 49 of the Regulations.
(l) Control and restraint: The Judge rejected the contention that Corrections used control and constraint (C&R), a system for rendering inmates incapable of resistance, as a form of control over BMR inmates. However, he was concerned at the treatment of inmates after C&R, particularly at the fact that, in some cases, inmates were left naked in their cells without a towel.
(m) Laundry: Inmates’ entitlements in relation to changes of clothing and bedding were not met and other aspects of the laundry conditions were unacceptable and in breach of the PIA and the Regulations.
(n) Cell searches and confiscation: The Judge rejected the contention that cell searches were undertaken to disrupt and humiliate inmates, but found there were isolated instances of improper seizure of items during cell searches.
(o) Cell cleaning: The conditions in cells fell well short of the proper standards of hygiene required for a person living in one place for 22-23 hours per day.
(p) Strip searches: There were routine strip searches which were not authorised by s 21K(4) of the PIA and the Judge questioned the justification for other strip searching practices. He also noted that strip searches took place in cross landings where there was limited privacy which was inappropriate.
(q) Possessions in cells: The Judge rejected criticisms in relation to calendars, diaries and clocks in cells, but found that the radios in cells sometimes failed and criticised the limit on access to books and deprival of a television set in the first three stages of BMR. However, apart from the objection based on a reduction of conditions for BMR inmates (reg 155(3) of the Regulations), there was no breach of any statutory provision.
(r) Toilet paper: The Judge rejected the contention that toilet paper was deliberately withheld from inmates, but said there was an unnecessarily controlling aspect to Corrections’ approach.
(s) Heating and ventilation: Prisoners were provided with adequate heating and ventilation.
(t) Shaving and showering: There was no substance to complaints about the time provided for shaving and showering.
(u) General treatment of inmates: The Judge was not convinced that verbal abuse of inmates by Corrections officers was widespread, but said it was sufficiently common to be a cause for concern and noted that the scroll books which would have supported Corrections’ evidence were missing.
(v) Medical treatment: Complaints about lack of access to doctors and nurses were exaggerated, and no breach of reg 48 of the Regulations occurred.
(w) Telephone and lawyer access: BMR inmates were permitted only one $10 telephone card per week in contrast to maximum security prisoners who could purchase a $50 card. This was an unlawful reduction in conditions. There was a breach of regs 109 and 110 in relation to access to telephones for inmates to contact lawyers when proceedings were pending. But there was no direct evidence that this affected any individual inmate. The Judge noted one instance where a Corrections officer confiscated and copied a privileged legal communication, but found there was no widespread obstruction of inmates’ rights of access to lawyers.
(x) Education and rehabilitation: There were no rehabilitation programmes available to those on BMR which failed to meet the standard required by reg 44 of the Regulations.
(y) Internal charges: The Judge was not satisfied that disciplinary proceedings on BMR were used as a form of oppression of BMR inmates.
(z) Advice to medical officers: There was a failure to advise the Superintendent and a medical officer about the placement of an inmate on BMR, which was in breach of reg 149 of the Regulations.
(aa) Daily visit by Superintendent: There was also a failure by the Superintendent (or his delegate) to visit each BMR prisoner each day as required by reg 149(5).
(bb) Mental health care: The Judge accepted that the failure to notify medical officers of BMR placements meant that BMR inmates did not get access to medical officers to the extent to which they were entitled. He also found there was inadequate regular and ongoing assessment of prisoners’ mental health, notwithstanding the vulnerability of segregated prisoners, which was in breach of the Regulations and conflicted with good practice. However, once an inmate was identified as needing psychiatric assistance, the Judge was satisfied that all was done as could reasonably be expected.

Individual complaints

[30] The Judge then turned to individual complaints by Mr Taunoa and Mr Kidman. He rejected Mr Taunoa’s proposition that there was a pattern of laying trivial disciplinary charges against him. He also rejected Mr Taunoa’s criticism of a particular instance of C&R. Similarly, the Judge rejected criticism of an instance of C&R on Mr Kidman, finding that it was a volatile situation and that Corrections could not have been said to be clearly wrong in using C&R.

BMR and mental health

[31] The Judge then considered the effect of BMR on the mental health of the BMR respondents and largely rejected the respondents’ contentions, except those in relation to Mr Tofts. He found that Mr Tofts was a vulnerable inmate both physically and psychologically and should not have been placed on BMR. He found his psychiatric disabilities were aggravated by his time on BMR.

Overall assessment

[32] The Judge then turned to the overall assessment of BMR. He found:

(a) The claims of breaches of the Bill of Rights 1688, the Standard Minimum Rules, the ICCPR and the Convention Against Torture were mirrored in the complaints of breaches of the PIA, the Regulations and the Bill of Rights and did not need to be dealt with separately.

(b) There was no breach of s 10 of the Bill of Rights (medical or scientific experimentation).
(c) There was no breach of s 17 of the Crimes Act, which prohibits Courts from imposing a sentence of solitary confinement.
(d) There was no arbitrary detention of BMR inmates.
(e) BMR did not amount to torture or cruel, degrading or disproportionately severe treatment or punishment, and was therefore not in breach of s 9 of the Bill of Rights.
[33] However, in view of the unlawfulness of aspects of the BMR and the factors referred to in [29] above, the Judge held that there was a breach of s 23(5) of the Bill of Rights: Corrections failed to treat prisoners on BMR with humanity and with the inherent dignity due to every person.
[34] The Judge largely rejected complaints about the security classification system adopted by Corrections. However, he was critical of some aspects of the system, and found that there was a lack of appreciation that the classification of a prisoner was a separate decision from the decision to place him or her on BMR. In particular he found that Mr Taunoa’s security classification in March 2001 was unlawfully assessed because the two decisions were conflated.
[35] The Judge found that the removal of conditions for BMR inmates ought not to have happened without a proper disciplinary process. However, he found that, where segregation was lawfully undertaken under s 7(1A) without loss of conditions (as occurred for administrative segregation), no such breach arose.
[36] The Judge rejected the contention that solitary confinement of any kind breached s 9 or s 23(5) of the Bill of Rights or the international covenants. Accordingly administrative segregation was not, of itself, in breach of the Bill of Rights, decisions to impose administrative segregation were not unreasonable, there was no breach of s 17 of the Crimes Act, and no breach of natural justice. The Judge did, however, find some aspects of the administrative segregation of individual respondents were deficient.
[37] The Judge rejected the submission that habeas corpus was an appropriate remedy, applying the decision of this Court in Bennett v Superintendent, Rimutaka Prison [2001] NZCA 286; [2002] 1 NZLR 616 and because none of the respondents remained on BMR at the time of the High Court decision.
[38] In his second judgment, the Judge addressed the question of remedies and determined that it was appropriate in this case that the BMR respondents should be awarded Bill of Rights compensation.

The position of each respondent

[39] We now summarise the findings made and remedies provided to each of the respondents.

Mr Taunoa

[40] Mr Taunoa was serving a life sentence for murder. He spent about two years eight months in BMR, in two separate periods, the first from about November 1998 to July 1999 and the second from March 2000 to March 2002. He spent other periods in voluntary segregation but was not subject to non-BMR administrative segregation. The Judge found that he was entitled to declarations that:

(a) His first segregation on BMR (which relied on s 7(1) of the PIA) was unlawful;

(b) His conditions of segregation during his time on BMR fell below those ordinarily enjoyed by maximum security inmates in Auckland Prison and that was unlawful under reg 155(3) of the Regulations;
(c) His detention on BMR was in breach of s 23(5) of the Bill of Rights;
(d) Corrections’ security classification system as it applied to him until March 2002 was in breach of s 17A of the PIA;
(e) He was entitled to Bill of Rights compensation of $55,000.

Mr Robinson

[41] Mr Robinson was in prison for 17 years for aggravated robbery. He spent about 51 weeks on BMR and a total of about three years over a number of separate periods on administrative segregation. The Judge found he was entitled to the same declarations as Mr Taunoa and awarded him Bill of Rights compensation of $40,000.

Mr Tofts and Mr Kidman

[42] Mr Tofts was serving a term of five years imprisonment for wilful damage, endangering life and assault. He spent about three months in BMR and nearly seven months in administrative segregation. Mr Kidman was serving a term of six years three months for aggravated robbery. He also spent about three months in BMR and nearly seven months in administrative segregation. The Judge found that Mr Tofts and Mr Kidman were entitled to the declarations noted in paras (b), (c) and (d) of [40] above. Mr Kidman was awarded compensation of $8,000. However, Mr Tofts was awarded greater compensation, $25,000, because of his psychiatric vulnerability. This was such that the failure to properly assess his psychiatric condition meant that he was inappropriately placed on BMR and suffered psychological harm as a result of his BMR placement.

Mr Gunbie

[43] Mr Gunbie was serving a term of three years nine months for receiving and dangerous driving. He spent about six and a half weeks in BMR and a further three months in administrative segregation. Mr Gunbie’s psychiatric state was such that he could not complete his evidence in the High Court but it was agreed he was entitled to the benefit of the Judge’s general findings about BMR. Mr Gunbie was entitled to the declarations noted in (b), (c) and (d) of [40] above and was awarded nominal compensation of $2,000 to mark the fact that some form of compensation for the short period he spent on BMR was appropriate.

Mr Karaitiana

[44] Mr Karaitiana was serving a term of nine years imprisonment for rape. He spent a total of about two and half months over two separate periods on administrative segregation, but was not subject to BMR. The Judge found no substantive unlawfulness in relation to his administrative segregation although there was undue delay in obtaining the Superintendent’s authorisation for his second segregation, and no breach of the Bill of Rights. He made no declarations or other orders and awarded no compensation.

Mr Rimene

[45] Mr Rimene was serving a term of imprisonment of six years and ten months for offences involving violence. He spent a period of about three months over two separate periods in administrative segregation, but was not subject to BMR. The Judge found problems with Mr Rimene’s treatment but no illegality. The problems were undue delay in replying to requests by him and his lawyers as to the reasons for his continued detention, a failure by Corrections to arrange for medical or Superintendent visits to him and a failure to allow him access to his lawyer which should not have occurred, but was not significant. The Judge made no finding of unlawfulness or breach of the Bill of Rights, made no declaration and awarded no compensation.

Mr Paku

[46] Mr Paku was serving a sentence of four years imprisonment for dangerous driving causing death and refusing to give a blood sample. He spent a period of about two months on administrative segregation, but was not subject to BMR. He was also detained for a few days at Manawatu Prison in conditions similar to those on administrative segregation. The Judge found his initial segregation was lawful but there was an inappropriate delay in giving him reasons for the segregation and the report recommending segregation was inappropriately withheld from his counsel. However his detention for the period from 2 May 2002 to 14 June 2002 was unlawful because the necessary approval from head office under s 7(1C) was provided too late. The Judge made a declaration as to that unlawfulness but found there was no breach of the Bill of Rights and ordered no compensation.
[47] In relation to Mr Paku’s later segregation at Manawatu Prison, the Judge concluded that, despite some shortcomings in the manner with which he was treated by the management of the Prison, he did not suffer any unlawful deprivation of conditions or unlawful punishment when segregated.

Ms Tui

[48] Ms Tui was serving a sentence of four years and three months for offences of violence. She spent a period of about seven days in administrative segregation. The Judge observed that her segregation was probably two or three days longer than strictly necessary, but made no declarations or orders and awarded no compensation.

THE APPEAL

[49] We propose to deal with the appeal first, before addressing the points raised in the cross-appeal.
[50] The appellants challenged the Judge’s finding that there was a breach of s 23(5) of the Bill of Rights in relation to those respondents who were detained on BMR. Should they not succeed on that argument, they argued that the breach of the Bill of Rights which occurred in this case did not call for an award of public law compensation (except in Mr Tofts’ case). They said the appropriate remedy in relation to each respondent was a declaration of breach of the Bill of Rights. As a further alternative, the appellants argued that, if public law compensation was an appropriate remedy, then the quantum of compensation awarded by the High Court Judge was excessive.
[51] We will deal with the above grounds of appeal in the order in which they are identified above.
[52] The appellants also argued that the Judge ought not to have declared that the Security Classification Operational Standard was a breach of s 17A of the PIA until March 2002. However, this point was not pursued in the appellants’ submissions and we say no more about it.

Ground one: Was there a breach of s 23(5) of the Bill of Rights?

[53] Ronald Young J approached this issue by first considering whether BMR breached the PIA and the Regulations, then considering a large number of specific aspects of BMR and the conditions to which the inmates in that regime were subjected. Having done that, he concluded that the combination of the breaches of the PIA and the Regulations and the aspects of the regime which he found were properly subject to criticism justified a finding that, overall, a breach of s 23(5) of the Bill of Rights had occurred.
[54] This finding was strongly contested by the appellants. They accepted that there had been some breaches of the PIA, contested the Judge’s conclusion of breaches of the Regulations and argued that the specific aspects of BMR which the Judge criticised did not, in themselves, justify a conclusion that s 23(5) had been breached. In that regard, they said that the threshold for breach of s 23(5) was considerably higher than that which the Judge had applied. They relied on international authorities particularly from Europe, the United Kingdom and Canada to support that contention.

PIA

[55] Ronald Young J found that BMR breached s 7 of the PIA. The relevant provisions of this section provide:

7 Superintendent to be charged with general administration of institution

(1) Subject to the provisions of this Act and to the control of the Secretary, every Superintendent of an institution shall be charged with the general administration of the institution, and, with the prior approval in writing of the Secretary, may make rules, not inconsistent with this Act or with any regulations made under this Act or with any operational standards, for the management of the institution and for the conduct and safe custody of the inmates.

(1A) Without limiting the generality of subsection (1) of this section, if a Superintendent is satisfied that—

(a) The safety of an inmate or of any other person, or the security of the institution, would otherwise be endangered; or

(b) Directions to be given under this subsection are in the interests of an inmate and the inmate consents to or requests the giving of the directions; or

he may in the discharge of his responsibility for the general administration of the institution give directions that the opportunity of the inmate to associate with other inmates be restricted or denied for a period.

(1B) Every Superintendent giving directions under subsection (1A) of this section shall as soon as practicable send a report on the circumstances to the Secretary who may at any time revoke the directions, in whole or in part.

(1C) No directions given under subsection (1A) of this section shall remain in force for more than 14 days, unless the Secretary so authorises, in which case their continuance shall be reviewed by him at intervals not exceeding 3 months.

[56] When BMR was first established, Corrections believed that it was authorised under the general management power in s 7(1). As noted above, the Ombudsman contested this, and after receipt of the recommendations of the Ombudsman in 2001, Corrections accepted that BMR could be authorised only under s 7(1A), and subject to the safeguards in s 7(1B) and (1C).
[57] This meant that the initial detention of Mr Taunoa on BMR and Mr Robinson’s detention on BMR were unlawful, because they were initiated under s 7(1) and no attempt had been made to comply with s 7(1A), (1B) and (1C). The appellants accepted that this finding of the Judge was correct and that those detentions were, therefore, in breach of s 7. However the appellants contended that the breach, at least in relation to Mr Taunoa, was of limited practical effect because, once Corrections realised that s 7(1) did not provide authority for BMR, Mr Taunoa’s placement on BMR was reviewed in accordance with s 7(1C) in August and December 2000 and in March 2002 and his continued detention was approved. The High Court Judge accepted that Mr Taunoa would have been on some form of isolation regime because of the nature of his behaviour. Thus the appellants argued that the failure to invoke the regime in s 7(1A)-(1C) was unlikely to have had any practical effect on him.
[58] The appellants did, however, accept that Mr Robinson may have derived some benefit from scrutiny under s 7(1C) because his good behaviour while on BMR may have led to his being removed from the programme had he benefited from a review of the type contemplated by s 7(1C).
[59] The position is, therefore, that the appellants accept there was a breach of s 7 in relation to Mr Taunoa and Mr Robinson, but that, at least in relation to Mr Taunoa, it ought not to be taken into account in the s 23(5) analysis. We do not accept that submission. As the appellants accept, the breach may have led to Mr Robinson being on BMR longer than otherwise would have been the case, and in relation to both Mr Taunoa and Mr Robinson it meant that they were subjected to a regime which was akin to a disciplinary regime without proper procedural safeguards. Parliament has set down clear requirements in the PIA which are designed to provide minimum safeguards for prisoners and to ensure compliance by New Zealand with its international human rights obligations. The implementation of BMR without a proper statutory authority was a significant failing by Corrections which ought not to have occurred.
[60] Once Corrections realised that the only authority for the imposition of a segregation regime on inmates was s 7(1A), it took steps to comply with that provision, so that the second BMR confinement of Mr Taunoa and the BMR confinements of Messrs Tofts, Kidman and Gunbie were made in reliance on s 7(1A).
[61] The respondents argued in the High Court that the minimum time periods provided for in each of the phases of BMR amounted to an unlawful fetter on the discretion of the Superintendent (in the exercise of his power to order segregation for “not more than 14 days” under s 7(1C)) and the Secretary (in authorising segregation for longer than 14 days and after each three monthly review under s 7(1C)). The High Court Judge rejected that contention, and found that there was nothing wrong with having minimum periods of segregation under BMR, so long as continued segregation was subject to a proper three monthly review based on the statutory criteria. He found that some inmates on BMR had been released after review before they had completed the minimum BMR periods, and that there had not, in fact, been a fetter as the respondents alleged.
[62] Accordingly, the High Court findings in relation to the PIA were that the detentions authorised under s 7(1) were unlawful under the PIA, but those authorised under s 7(1A) were not (subject to the later finding in relation to reg 155(3), which we deal with next). The appellants did not contest those findings. We have some doubt about the finding of lawfulness under s 7(1A): it could be argued that BMR, with its apparent resemblance to a punitive sanction, was not a good fit with the statutory criteria in s 7(1A). However, the Judge’s finding that BMR was unlawful because of non-compliance with reg 155(3), and his overall conclusion in relation to s 23(5) make this of no practical significance, so we do not take the matter further.

Punishment and BMR: The PIA and the Regulations

[63] The respondents argued in the High Court that BMR was unlawful because it was a punishment regime which was not authorised by the PIA. They said that the loss of conditions imposed under BMR was unlawful. The appellants argued that BMR was simply a lawful programme to assist inmates out of seriously disruptive behaviour.
[64] Regulation 147 of the Regulations authorises the confinement of an inmate to an “isolation cell” in a number of circumstances, including where the Superintendent gives a direction under s 7(1A) of the PIA: reg 147(f). The Judge found that this was the only power which the Superintendent had to place inmates on BMR in isolation cells. Isolation cells are defined as cells where one or more inmates are confined by themselves so they are segregated from the inmates who are not being kept in isolation: reg 3. Under reg 155(3), an inmate confined in an isolation cell as a result of a direction from the Superintendent under s 7(1A) must be confined “so far as is practicable in the circumstances and if it is not inconsistent with the ground for confinement, under the same conditions as if he or she were in his or her usual accommodation”. It was accepted that inmates on BMR did not have the same conditions as they would have had in the normal maximum security regime. The same requirement applies where an inmate is confined to an isolation cell on mental health grounds or physical health grounds. On the other hand, where segregation is intended to be a punishment, this protection does not apply.
[65] It was common ground that those on BMR lost a number of privileges enjoyed by ordinary maximum security inmates. The Judge found that this was unlawful: loss of privileges could occur only where there had been an appropriate misconduct process.
[66] Accordingly the Judge concluded that it was contrary to the PIA and the Regulations that the usual conditions applicable to maximum security prisoners in Auckland Prison were reduced when Messrs Taunoa, Robinson, Kidman and Tofts were placed in segregation and in isolation cells on BMR (and by analogy, the same finding would apply to Mr Gunbie).
[67] On behalf of the appellants, the Solicitor-General, Mr Arnold QC, argued that the finding of a breach of reg 155(3) was wrong in the following respects:

(a) The Judge did not consider the words “if it is not inconsistent with the ground for confinement” in reg 155(3), which Mr Arnold described as a “proviso”;

(b) The Judge was wrong to characterise the scaling back of conditions as part of a behaviour improvement programme as punishment;
(c) In any event, the Judge was wrong to reason that, because BMR inmates had fewer privileges than maximum mainstream inmates, a breach of s 23(5) of the Bill of Rights occurred.
[68] We will consider these in turn.

The proviso

[69] Mr Arnold argued that reg 155(3) contemplated that there would be cases in which the reasons for an inmate’s confinement under s 7(1A) would make it appropriate for the withdrawal of some conditions. He said in the present case the reason for segregation was the need to address ongoing behavioural problems, and that it was consistent with that objective to withdraw some privileges.
[70] Mr Ellis said that Corrections had never previously relied on the proviso in reg 155, and that, in any event, it needed to be considered in the light of other provisions in the Regulations and the PIA, particularly s 7 of the PIA and reg 5 of the Regulations, which provides that an institution must be operated in a manner that provides for the “fair, safe, secure, orderly, and humane management of its inmates so as to facilitate their rehabilitation...”. He said that there may, for example, be cases where special measures were necessary because of concerns as to the safety of an inmate (s 7(1A)(a)) and it was eventualities of that kind which the proviso sought to deal with. He said that when read in its context and with an appropriate recognition of the requirements of the Bill of Rights, the proviso could not be interpreted as justifying punitive measures.
[71] We do not think that the proviso can properly be read as authorising withdrawal of entitlements because an inmate has behaved badly and the Superintendent wishes to change that behaviour. In our view, where a prisoner has been segregated under s 7(1A), that prisoner must have the same conditions as he or she would have if in the normal maximum security prison, unless the reduction in conditions is consistent with one of the grounds for confinement specified in s 7(1A)(a), (b) or (c). As Ronald Young J said at [68], the PIA and the Regulations carefully separate punishment (i.e. reduction and usual conditions) from s 7(1A) segregation. This makes it clear that s 7(1A) should not be used as a form of punishment. We therefore see no reason to depart from the High Court Judge’s finding that a breach of reg 155(3) occurred in this case.

Punishment

[72] Mr Arnold said it was inappropriate to describe removal of non-essential items such as televisions from BMR inmates as punishment. He said that the Regulations provide for minimum privileges and cell fixtures to which all inmates are entitled, and that there is then provision for additional items such as television, stereo, electric razor or hair dryer to be permitted in cells: reg 113. But he said the presence of these items in a cell will always be a matter for the Superintendent’s discretion and inmates who are permitted to have such items are being granted a privilege. It does not follow therefore that those who are not entitled to such a privilege are being punished. He said that BMR inmates retained their minimum entitlements throughout.
[73] We reject that submission for essentially the same reason as we rejected the Solicitor-General’s submission in relation to the proviso. Where the conditions in which an inmate are held are substantially reduced in circumstances where the inmate is confined to a single cell for 22 or 23 hours a day, the Judge’s conclusion that this was unlawful in the absence of a proper misconduct process being conducted, and the withdrawal of privileges being found to be an appropriate punishment, is unsurprising. There is no basis for us to interfere with it. Regulation 155(3) clearly contemplates that segregation for non-punishment purposes will involve no other loss of privileges. That was breached in the present case for a significant period of time.

Regulation 155 and s 23(5)

[74] The Judge found that the breach of reg 155(3) was a serious failure in Corrections’ obligations for the purposes of his analysis of s 23(5) of the Bill of Rights. Mr Arnold said that this meant that the Judge had effectively allowed mainstream maximum conditions to provide the touchstone by which “humane” conditions were measured, instead of using the minimum conditions provided for in the Regulations. He said that it did not follow that, because some maximum security inmates received more than their strict entitlement, those who receive only the strict entitlement suffer inhumane treatment.
[75] As a general proposition, we accept the validity of that submission. But we think that the Solicitor-General has mis-characterised the Judge’s finding in relation to s 23(5). That finding was based on an assessment of all aspects of BMR, with reg 155(3) being one of them. We will return to that subject later in this judgment.

Conclusion: The PIA and the Regulations

[76] In conclusion, we would uphold the High Court Judge’s findings in relation to the unlawfulness of BMR under the PIA and the Regulations.
[77] We now turn to the other aspect of the High Court Judge’s finding of a breach of s 23(5): the specific conditions applying to inmates subject to BMR.

Conditions of BMR

[78] In the High Court, the respondents’ case that BMR amounted to a breach of the Bill of Rights (and other legislation and international covenants) relied not only on illegality under the PIA and the Regulations, but also the conditions on BMR. The Judge heard very extensive evidence on all aspects of the conditions to which inmates were subjected when on BMR, and his assessment covers over 40 pages of his judgment. Counsel for the appellants said that they did not dispute the Judge’s factual findings, with two exceptions, namely the findings that inmates were often left naked after C&R and that conditions on BMR led to inmates contracting skin rashes. We will revert to those issues later. However, the appellants strongly contested the conclusions which the Judge drew from his factual findings. In doing so, they did, in fact, take issue with a number of the Judge’s other findings of fact.
[79] Mr Boldt, who argued this part of the appeal for the appellants, suggested that the Judge had treated this aspect of the case as if he were conducting a commission of inquiry, when he ought to have focused on the specific incidents relating to specific inmates. He said the Judge should not have taken into account specific aspects of BMR in the absence of evidence of their having had an adverse impact on the individual respondents. He said that the appellants’ concern in this regard had been conveyed to the Judge, but had not been heeded.
[80] We do not think this is a valid criticism of the Judge’s approach. The nature of the case required the Judge to make an overall assessment of BMR from both a legal and practical point of view, so that he could make a judgment as to whether it breached either s 23(5) or s 9 of the Bill of Rights (or both). He was entitled to make that assessment by taking a broad overview of the conditions which inmates placed on BMR faced.
[81] The factual findings which the Judge made resulted from his having seen and heard witnesses over an eight week hearing, which allowed him to reach a fully informed view on each aspect of the BMR regime and to make an informed overall assessment. We made it clear to Mr Boldt in the course of argument that he faced a significant hurdle in disturbing the Judge’s factual findings, but this did not deter him from pursuing the matter in minute detail.
[82] Not surprisingly, junior counsel for the respondents, Mr La Hood, responded in equal detail. Mr La Hood argued that the Judge’s approach of looking at the conditions attaching to BMR in the round was the appropriate one, because the challenge by the respondents was to the totality of conditions, which required the Judge to look at the accumulation of conditions, significant and insignificant, and take a view of their legality when considered against the norms required under the Bill of Rights. He said the lack of any proof of lasting effects on those of the respondents who were subject to BMR may go to the seriousness of the breach of the Bill of Rights, but could not go to the fact of the breach. We observe that it may also be relevant to the assessment of damages.
[83] The scope of the complaints about conditions attaching to BMR in the High Court was broad, and the Judge did not accept the respondents’ claims in relation to a number of them. We will deal only with the findings of the Judge which were the subject of challenge in this Court, either as to the finding itself or the significance which the Judge attached to the finding. We will deal with these one by one.

(i) Inadequate assessment of psychiatric risk

[84] Ronald Young J found that Corrections had failed to take proper account of literature indicating that isolating inmates from one another for extended periods could cause psychiatric harm, when it was designing and implementing BMR. He found that the psychiatric vulnerability of inmates was not adequately assessed when they were considered for BMR, and that monitoring of their mental health while they were on the programme was inadequate and in breach of reg 48 of the Regulations. Regulation 48 requires the Superintendent to take all reasonable steps to ensure that the prison “provides an environment in which the health of inmates may be maintained to a satisfactory standard”.
[85] In this Court the appellants accepted that there was room for improvement in the way in which the mental health of BMR inmates was managed. But they argued that there is no evidence that the risks to mental health associated with BMR were more significant than for incarceration in general, and that there was no evidence of damage to Messrs Taunoa, Kidman or Robinson from these failings. It was accepted that Mr Tofts should never have been on the programme because of psychiatric illnesses, and it is clear that Mr Gunbie now has significant mental health problems.
[86] In response, Mr La Hood submitted that a lack of lasting effect on particular inmates went to the seriousness of the breach of s 23(5) but not to the fact of breach.
[87] We see no reason to differ from the conclusion reached by the High Court Judge on this point. It was unrealistic of the appellants to expect the Court to require the respondents to prove that every aspect of BMR adversely affected each respondent in a particular way. The allegation against Corrections was that the programme it had implemented was deficient in a number of respects, and the Judge was entitled to find deficiency in relation to psychiatric health monitoring. We do, however, accept that there was no evidence of any significant adverse consequence of this breach on the BMR respondents other than Mr Tofts.
(ii) Inadequate information for inmates
[88] The Judge found that inmates on BMR were given inadequate and contradictory information about being on BMR. He said that the programme was meant to be about incentives, but it was hard to see how inmates could accurately work out what they had to do in advance because of the confusing information provided to them. He said BMR, the material surrounding it and the way it was run seemed ad hoc and poorly organised even though BMR was the harshest regime for prisoners in any New Zealand prison.
[89] Counsel for the appellants said the appellants did not criticise the Judge’s finding that the material provided to inmates was contradictory, inadequate and incomplete. But they said that none of the respondents claimed to have genuinely misunderstood any aspect of the programme, and that this factor was a general criticism of BMR but did not detrimentally impact on the respondents.
[90] We accept that the only respondent who indicated confusion was Mr Robinson, and there were some measures taken to deal with that. But that does not diminish the Judge’s observation that, when implementing a major new initiative which involved imposing the harshest conditions available in New Zealand prisons, Corrections ought to have properly informed inmates about what they could expect on BMR. That was particularly important because of the incentives which BMR was intended to provide for inmates to improve their behaviour: one would expect that these would have been clearly communicated to ensure maximum effectiveness.
[91] In evaluating s 23(5) the Judge considered all of the aspects of BMR which informed his overall assessment of the programme. This did not require him to address the impact of each individual factor on each individual respondent. We reject the appellants’ suggestion that it did.
(iii) Privacy in cells
[92] The Judge concluded that Corrections was obliged by the Regulations to provide modesty screens to BMR inmates, given that their toilet was part of the cell, and that it failed to do this.
[93] The Judge’s finding was based on reg 52(2)(b), which provides that cells must, “so far as is practical in the circumstances”, contain items specified in Part C of Schedule 1. One of the items specified in that part of the schedule is a “modesty screen”.
[94] Mr Boldt said that the Judge had ignored the words “so far as is practicable in the circumstances”. He pointed to evidence from a senior Corrections official, Mr Taylor, to the effect that it was necessary to be able to check on disruptive and difficult inmates 24 hours a day, and for that reason there were no modesty screens for the toilets in any of the cells in the east division of Auckland Prison. Mr Boldt said that the evidence showed that the east division had been designed and built on the assumption that staff should be able to check maximum security inmates at all times and was designed to safeguard the security of the institution and safety of staff and other inmates. Thus the Judge was wrong to treat the lack of privacy in cells as being a factor in his s 23(5) assessment.
[95] The Judge’s assessment of this factor does appear to proceed on an assumption that maximum security inmates in the east division were required to have modesty screens, and that the failure to provide such screens to BMR inmates was a reduction in their conditions. It appears that, as no inmates in the east division had modesty screens, there was no difference in this regard for BMR prisoners. However, it was relevant to the assessment of a regime which confined prisoners to their cells for 23 hours a day that no provision was made for the screening of the toilet in the cell. While there may be practical reasons justifying this (we are not in a position to determine that on the basis of the evidence before us) it is still a factor relevant to the assessment of the overall impact of BMR on inmates.
(iv) Windows
[96] Ronald Young J made the following findings in respect of windows:

(a) Windows were left closed for extended periods of time in an attempt to prevent the use of “string lines” (which were used to send contraband between landings on different floors and within landings).

(b) When the windows were closed some fresh air was still available to inmates from open windows at each end of the landing.
(c) More could have been done by Corrections to develop ways to keep the windows open and combat the use of string lines.
(d) The significance of the failure of Corrections to do more was that prisoners on BMR were confined to their cells for 22 to 23 hours per day, sometimes without access to outside air for weeks on end. As BMR inmates had very restrictive conditions, any loss of an attractive feature of their prison environment would be significant for them.
[97] Mr Boldt said that Corrections accepted the Judge’s finding, but said that this could not have contributed to a breach of s 23(5). In fact, the Judge’s conclusion on the s 23(5) issue at [276] does not mention this factor. If he did take it into account, it would not have been a significant matter. But we cannot see why the Judge ought to have ignored it altogether, given its significance for those confined to windowless cells for very long periods at a time. In that regard it is relevant that the Regulations require cells have “natural lighting (window)”, something which is not a feature of the design of Auckland Prison.
(v) Natural lighting
[98] Ronald Young J recorded the evidence of a lighting expert that at times the natural light in the cells occupied by BMR inmates fell below certain standards for dwellinghouses. Those readings were taken in summer, and it was recorded that the light levels would be lower in winter. He also recorded the expert’s observations regarding the importance of natural light to human health.
[99] Ronald Young J said that the authorities were essentially stuck with the design of Auckland Prison, and that any redesign was unlikely to make much difference to light levels. The Judge said that if inadequate natural light is a health issue, then the low levels for natural light in the east wing may need to be factored into inmates’ other daily opportunities to experience natural light. The Judge noted that reg 48 of the Regulations requires all reasonable steps to be taken to provide an environment which ensures inmate’s health is maintained to a reasonable standard. The Judge held that there was no evidence that the prison management at Auckland Prison made any effort to take into account low levels of natural light provided in the cells when they considered what further out of cell time might be appropriate for inmates on BMR.
[100] The Judge’s finding was strongly challenged by the appellants. Mr Boldt said that the Judge’s conclusion that low levels of natural light in cells contributed to a breach of s 23(5) could not be sustained. Again he made the point that there was no evidence of any actual detrimental impact on any inmate as a result of the lighting levels experienced on BMR. Again, we make the same response: the Judge was entitled to consider the programme in the round, and was not required to make an individual assessment of every factor on each BMR inmate.
[101] Mr Boldt also challenged the expert’s evidence, and the Judge’s interpretation of it. He said that the Judge focused on the level of “lux” (the illuminance in either a vertical or horizontal plane at a particular point) but should have given greater weight to the “daylight factor”, which measures the contrast between interior and exterior lighting and which was a more sophisticated and appropriate measure of internal natural light.
[102] We do not think this criticism is justified. The evidence on the daylight factor was equivocal: the expert estimated that it varied between 1% and 2.7%, and the recommendations of British research establishments for habitable areas in homes was 1.5-2%. The expert accepted that some of his readings met the British standard, but commented that the readings were arbitrary and not exact. In those circumstances the Judge was entitled not to give them much weight. There was no other evidence before him of the daylight factor readings in the cells.
[103] We can see no proper basis to depart from the Judge’s finds that natural light levels were low, and that, in the context of a regime requiring an inmate to stay in his cell for 22 or 23 hours per day, this was a factor which was relevant to the s 23(5) analysis.
(vi) Exercise
[104] Because of various management failures involving staff or equipment maintenance, the BMR inmates did not receive their entitlement to periods of exercise in outside yards. As the chart at [12] above indicates, inmates on phases 2,3 and 4 were entitled to two “yards” per week of two hours each. The Judge found that, for significant periods inmates who wanted a yard were not able to have one despite a regular entitlement.
[105] The appellants accepted that the criticisms made by the respondents about the lack of availability of outdoor exercise had substance.
[106] Mr Boldt acknowledged that Mr Taunoa had received only 21 yard sessions in the two years he spent on his second BMR confinement, and that Mr Robinson had only 29 yard sessions in his period on BMR of a little under a year. However, he said that sometimes the weather did not permit yards to be run, and sometimes inmates declined to take their exercise outside in the yard when it was offered. He accepted this did not detract from the validity of the criticism about lack of availability of yards. However, Mr Boldt suggested the lack of availability of yards did not, either in itself or in combination with other factors, amount to a breach of s 23(5). He pointed to reg 49 of the Regulations, which provides that inmates may take at least one hour of physical exercise outside their cell, and that, if practicable in the circumstances, physical exercise may be taken outdoors. He said that Corrections had promised to ensure that D Block inmates have access to yards as a result of the present case, but that the Regulations clearly allowed for the possibility that exercise would not be provided outdoors, in situations where there was a lack of resource or other problems.
[107] We find it difficult to follow the appellants’ complaint on this topic. Having accepted the Judge’s criticism we cannot see how they can expect the Judge not to take it into account the making of the s 23(5) assessment. Regulation 49 clearly requires that physical exercise be allowed to be taken outdoors if practicable, yet inmates on phase 1 would be denied that possibility whether it was practicable or not. Once inmates had graduated past phase 1, in response to the “incentives” it provided, they became entitled to outdoor exercise but, because of acknowledged failings on the part of Corrections, this entitlement was not honoured.
[108] It should not be underestimated how important such an entitlement would be to someone confined for 22 or 23 hours per day in a cell. We agree with the Judge’s conclusion that Messrs Taunoa and Robinson and probably other applicants, received an inadequate opportunity to exercise and particularly to exercise outdoors during their time on BMR. Similarly, we agree with his conclusion that the opportunity for such exercise fell below the standards set by the Regulations for such prisoners. It was clearly a matter which was relevant to s 23(5). We therefore reject the appellants’ criticism of the Judge in this regard.
(vii) C&R
[109] C&R is a system designed to render inmates incapable of resistance when circumstances demand. It was introduced into the New Zealand prison system in the 1990s when it was identified that, when force was required to subdue a violent inmate, both the inmate and the prison officers were often injured. C&R was designed to make an inmate safe for staff to relocate, but to cause no injury to the inmate, nor even discomfort when the holds are released.
[110] Ronald Young J did not accept a complaint made on behalf of the respondents that C&R was used and threatened as a form of control over them. The Judge rejected specific complaints from Messrs Taunoa and Kidman relating to occasions on which they were subject to C&R. However, he did express concern about the way BMR inmates were treated after C&R. This involved taking the inmate to a C&R cell, where they were stripped of all their clothing to enable a search. A nurse inspected them for injury from outside the cell. This was said to have been an unnecessary humiliation of the inmate.
[111] The Judge found that inmates were often left naked in the cells and not provided with a towel to protect their modesty, and he also accepted that provision of clothes was often delayed for several hours. The Judge found that there was no medical or security reason why prisoners who were stripped after C&R should not immediately have been provided with replacement clothes. He found that the fact that replacement clothes were not provided immediately added to the force of the argument that this failure was part of a process to treat BMR prisoners as having fewer rights or entitlements than other prisoners.
[112] The appellants challenged the Judge’s factual findings in this regard. They said the evidence disclosed that only a small number of prisoners were affected and those who happened to be on BMR were not treated any differently from other prisoners.
[113] The Judge had before him evidence of the application of C&R to Mr Taunoa and to Mr Kidman. In the case of Mr Taunoa, the evidence was that he was not given his clothes for 40 minutes after being stripped, and Mr Kidman was also left naked for a period before being given a towel, after which he was left without his clothes for about an hour. A Corrections nurse gave evidence of prisoners being naked when examined after C&R on not more than five occasions. There was also evidence from Corrections witnesses that leaving an inmate with only a towel after C&R was standard practice. That appears to have been a variation from the intended practice of providing the inmate with overalls.
[114] However, it was not the same as leaving the inmate naked. Although there was evidence that this did occur, we do not think the Judge was entitled to reach the view that inmates were “often” left naked without a towel after C&R, and that there was an inappropriate casualness by Corrections officers in providing the adequate cover for inmates. We also accept the appellants’ contention that the only BMR respondents who made allegations of inappropriate treatment after C&R were Mr Taunoa and Mr Kidman. In the absence of complaints by other BMR respondents, we also accept the appellants’ argument that C&R would not have adversely affected the other BMR respondents, given the Judge’s finding that C&R was not threatened as a form of control over inmates.
(viii) Laundry
[115] Ronald Young J held that, despite the inmates’ entitlement to a full change of clothes and bedding each week while in BMR, this often did not happen. There were many instances of bedding changes being delayed for several weeks. In addition, the Judge found that there were no laundry bags provided to BMR inmates, although those outside BMR were provided with their own bags. The Judge said that this could not be justified. He said that this reduced the conditions below those applicable to maximum security inmates, and that it could be seen as wholly punitive and certainly in breach of the conditions for inmates isolated pursuant to s 7(1A) of the PIA. He found that delays in providing clean clothes and bedding and a failure to provide personal laundry bags were breaches of the Regulations.
[116] The particular aspect of the Judge’s finding which was criticised by the appellants was this statement, made at [136] of his judgment:

When one considers inmates are housed in a 10 ft by 6 ft room for 22 or 23 hours per day, the need for hygiene is clearly accentuated. Prison nurses described a high incidence of skin rashes and similar problems amongst such inmates.

[117] Mr Boldt said that the evidence did not establish a link between laundry problems and skin rashes, which were no worse for BMR inmates than for other inmates in Auckland Prison. But that does not detract from the finding that prisoners confined to a cell for 22 to 23 hours per day had special hygiene needs, which were not met.
[118] Mr Boldt also challenged the Judge’s criticism that BMR inmates were not permitted an individual laundry bag with their own individual clothing. He said the Judge was wrong to criticise this because BMR was an “unashamedly austere regime and many of the non-essential items that other inmates took for granted... were not available to BMR inmates”. He said personal kit bags were not something to which inmates had a legal entitlement. Again, this seems to us to be a pin-pricking criticism. The evidence was that other inmates in Auckland Prison including maximum security inmates had their own kit bags, while those on BMR did not. The Judge’s finding that the failure to provide kit bags reduced the conditions on BMR below those for typical maximum security inmates was therefore correct. He was entitled to see that as having a punitive purpose. We therefore reject the appellants’ criticisms of the Judge’s findings in relation to laundry.
(ix) Cell cleaning
[119] Each inmate is required to clean his cell each day. A bucket full of water, detergent and a clean cloth was provided. The complaints of the inmates were that the water had no or minimal detergent, the water was not changed between cells and was therefore dirty, and the same cloth had to be used to clean the floor, the toilet, and the hand basin in each cell. The Judge accepted that the system operating to clean cells was unhygienic. He noted reg 48 regarding a healthy prison environment, and observed that living in one place 22 to 23 hours a day obviously required a high standard of hygiene to protect the health of inmates and staff. The system for cleaning fell well short of a proper standard of hygiene. The Judge concluded his discussion of cell cleaning with the following statement at [146]:

It is difficult to avoid a conclusion that this approach to hygiene and cell cleanliness was something of a message from Corrections to BMR prisoners about their status in the system.

[120] Mr Boldt mounted a detailed and concerted attack on the Judge’s findings about cell cleaning. He said inmates on phases 1 and 2 of BMR were not provided with mops to clean their cell floors for safety reasons, and that the practice of shared use of one cloth was discontinued in 2001. He said the incidence of skin rashes for BMR prisoners was no worse than elsewhere in Auckland Prison.
[121] Mr La Hood said the Judge was entitled to reject evidence that there was a safety issue with mops: inmates on later phases of BMR had mops, and Mr Kidman was required to use a mop to clean the cell landing floor when on phase 2, but still not allowed to use it to clean his cell. He said the Corrections officers’ contentions about separate cloths for each inmate were not put to the respondents in cross-examination.
[122] We have carefully considered the evidence on all of these points and the submissions made in reply by Mr La Hood, and we can find no basis for disturbing the Judge’s findings on these matters. We are not persuaded that the Judge was wrong to conclude that the cleaning regime was unhygienic, and that that was intended as a message to BMR prisoners about their status in the system. We do not think the Judge made any finding that the incidence of skin rashes was higher for BMR inmates than other inmates. Rather, he noted that nurses reported a high incidence of skin rashes among segregated inmates. That emphasised the importance of maintaining proper standards of hygiene.
(x) Strip searches
[123] The respondents complained that they were subjected to strip searches which were designed to humiliate them, were often unnecessary, and were not legally justified. Ronald Young J made a number of specific findings, namely:

(a) A strip search register was kept on each floor. That register disclosed that there was a category of strip searchers called “routine” strip searches. However, there is no such category in s 21K(4) of the PIA, which lists the situations in which an inmate may be strip searched.

(b) Officers in charge of BMR inmates, if not invariably then typically strip searched prisoners after booth visits. Given there was no possibility of contact between a visitor and an inmate during such visits, the Judge said that it was difficult to understand the reason for a strip search in those circumstances.
(c) Officers also took the view that whenever inmates left or returned to the landing, they would be searched and often strip searched – even if they had been continuously in the company of three officers. This was also outside s 21K(4).
(d) The Judge concluded that many strip searches of the inmates would not have been in compliance with s 21K of the PIA which deals with the search of inmates in cells.
(e) Most of the strip searches were conducted in the cross-passage in the area between blocks. The Judge said that this area had limited privacy, and had a public aspect about it. Other officers could enter the cross passage area when a search was being undertaken, though when an officer not involved in the search arrived in the cross passage area, he or she was asked to wait until the search was over. The Judge said there was no good reason why the searches could not be done in an inmate’s cell or another cell: that would provide the appropriate and necessary level of privacy and would be consistent with human dignity. The Judge held that conducting a search in the passage did not afford the inmates being searched the “greatest degree of privacy and dignity consistent with the purposes of the search” as required by s 21G(2) of the PIA.
[124] The appellants accepted the Judge’s finding that many strip searches would not have been in compliance with s 21K of the PIA. However, they said that the motivation for strip searching inmates was to maintain safety within the unit and not to demean or belittle inmates.
[125] Despite accepting the Judge’s finding, the appellants criticised the Judge’s finding in relation to the use of the cross passage to conduct strip searches, arguing that it was not clear how an inmate’s dignity or privacy was compromised. We can see no reason to take issue with the High Court Judge’s conclusion on this issue, given the public aspect of the cross passage and the alternative possibility of undertaking such searches in a cell.
[126] Ronald Young J observed that prison officers in charge of BMR inmates had a poor appreciation of the requirements of s 21(4)(a), which authorises strip searching where an officer “has reasonable grounds for believing that the inmate has in his or her possession an unauthorised item”. While we take no issue with that conclusion, we do take a different view from that of the Judge on the particular example he gave to exemplify this point. That example was a strip search of Mr Kidman which followed an inmate advising a Corrections officer that Mr Kidman might be “tooled up”. The Judge said that this information could not give reasonable cause for belief, because it was no more than a suspicion by another prisoner communicated to the officer, and needed to be further inquired into and checked out before reasonable cause to believe existed. While further checking would obviously be desirable if practical, we think it needs to be acknowledged that there may well be circumstances where such further checking is not practicable, and in those circumstances we believe that a prison officer responsible for an area housing hardened and potentially dangerous prisoners would be entitled to rely on such information as providing reasonable cause for belief that an unauthorised item may be held by the prisoner concerned.
[127] The Judge’s evaluation of strip searching was in the context of his consideration of conditions which went to his overall assessment of the allegation of a breach of s 23(5). While we are in general agreement with the Judge’s findings, we record that, in our view, the undertaking of routine strip searches in clear breach of the requirements of the PIA comes very close to degrading treatment in terms of s 9 of the Bill of Rights.

(xi) Toilet paper

[128] The Judge found that there was an unnecessary controlling aspect to Corrections’ approach to the provision of toilet paper to BMR inmates. He said that the blanket restriction on the amount of toilet paper provided to inmates was unnecessary, and that the confiscation of toilet paper from inmates was heavy-handed. But he accepted the appellants’ contention that this was not a matter of concern to the respondents during their time in prison, given the absence of complaint from any of them. However, in making his s 23(5) assessment, the Judge described the control over toilet paper as “pointlessly punitive”, and Mr Boldt took strong issue with that. It is obvious that this was not a significant issue for any party, including the Judge, but having considered the evidence of the inmates and of the Corrections personnel, we are not persuaded that the observation made by the Judge was wrong.

(xii) Telephone access

[129] BMR inmates were allowed two 10 minute phone calls per week on phases 1 and 2, two 15 minute calls per week on phase 3 and daily access to phones in phase 4. However, inmates had to pay for their calls and BMR inmates were restricted to only one $10 telephone card per week (in contrast to other maximum security prisoners who were entitled to a $50 telephone card per week). For those whose relatives lived at a significant distance from the prison, the $10 telephone card would be insufficient for 20 to 30 minutes of toll calls per week. The Judge found that reducing inmates conditions from a $50 phone card to a $10 phone card was unlawful (because it was a reduction in the conditions to which they would otherwise have been entitled but for being on BMR) but he noted that the minimum entitlement for phone calls was five minutes per week under reg 107 of the Regulations
[130] Mr Boldt said that the Judge had no basis for construing the $10 limitation as inhumane in terms of s 23(5). But that was not what the Judge did: rather, he took this unlawful reduction in conditions as being a factor relevant to his overall assessment under s 23(5).

(xiii) Superintendent visits

[131] Regulation 149(5) of the Regulations required the Superintendent or his nominee to visit all inmates who had been placed in isolation cells. The Judge held that this obligation implied that the Superintendent or his nominee must actually make contact with the inmate, as some form of independent check. The Judge held that the protection of a Superintendent visit was not given to BMR inmates on a regular basis, and that there was therefore a breach of reg 149(5).
[132] The appellants accepted that the Judge was correct in that regard. It appears that Corrections did not understand that BMR cells were “isolation cells” as defined in the Regulations, and therefore failed to meet this requirement. The appellants also accepted that the breach of reg 149(5) had the potential to deprive BMR inmates of a forum for making complaints. But Mr Boldt argued that no detriment was caused to the respondents, and that there was no evidence that any of the respondents who had been placed on BMR was prevented from pursuing any complaint that he had.
[133] Mr La Hood said that it was impossible to know whether a particular inmate would have continued to be detained on BMR if proper checks had been done by the Superintendent: the fact is they lost the opportunity to challenge their detention on BMR. We agree. Again, this was simply a component of the Judge’s analysis and it was not necessary for the respondents to prove that the breach of the Regulations had led to their having been detained too long or otherwise suffering detriment. Rather, they established that protections for their benefit were not provided and that this was in breach of the specific requirements in that regard of the Regulations.

Conclusion: specific criticisms of BMR

[134] In conclusion, we find that, notwithstanding the detailed submissions to the contrary, the Judge’s findings about conditions on BMR were, with only minor exceptions (which we have identified above) based on properly made factual findings. We have not been persuaded that those findings were wrong.

Assessment of s 23(5)

[135] We now turn to the Judge’s conclusion that a breach of s 23(5) occurred in this case. Apart from the attack on the Judge’s factual findings, with which we have now dealt, the appellants also argued that the Judge had applied the wrong legal test to the analysis of s 23(5), and that this had led him into error.
[136] The starting point for discussion is the wording of s 23(5) itself. It provides:

Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.

[137] The wording is closely based on that of art 10(1) of the ICCPR, which is in almost identical terms.
[138] The appellants referred us to a number of communications of the Human Rights Committee of the United Nations (HRC) interpreting art 10(1) of the ICCPR, decisions of the European Court of Human Rights and the United Kingdom domestic courts in relation to art 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the European Convention), which deals with inhuman and degrading treatment, and Canadian decisions on s 12 of the Canadian Charter of Rights and Freedoms, which deals with cruel or unusual punishment or treatment. Counsel placed particular reliance on a communication of the HRC and two cases which we will consider in turn.
[139] The HRC communication was Chadee v Trinidad and Tobago: HRC Communication No. 813/1998, which involved consideration by the HRC of a number of complaints by prisoners on death row. One of those complaints was that their conditions of incarceration were in breach of art 10(1). The State Party, Trinidad and Tobago, denied the claims and submitted that the conditions of detention did not violate the standard set out in the ICCPR. The HRC concluded that, on the basis of the information before it, it was not in a position to make a finding of violation of art 10. We do not see that as a positive finding that no breach occurred, as the appellants asked us to do.
[140] The first case was Lorsé v Netherlands [2003] ECHR 59; (2003) 37 EHRR 3. In that case, the prisoner had been subjected to very stringent security measures because he was considered extremely likely to attempt to escape, and he would be an unacceptable risk to society in terms of again committing serious violent crimes if he did so. He was unable to associate with more than three other inmates at a time and was strip searched before and after visits and after medical sessions, and was also subjected to a weekly strip search when his cell was searched.
[141] The European Court of Human Rights considered that the regime to which Mr Lorsé was subject, which involved segregation, limited time out of the cell, limited exercise time and limited visits, as well as the strip searching regime already referred to, all taken together, breached art 3. The Court said that the removal of a prisoner from association with other prisoners for security, disciplinary or protective reasons did not in itself amount to inhuman treatment or degrading punishment. It said its task required it to have regard to the particular conditions, or the stringency of the measure, the duration and the objective pursuit of its effect on the person concerned.
[142] Thus the question as to whether Mr Lorsé was subjected to inhuman or degrading treatment depended on an assessment of the extent to which he was personally affected. The appellants said that the Court in this case held that weekly searches were not justified and a breach of art 3, but that the Court did not find a breach in respect of the other conditions. In fact, the finding of the Court was (at [74]):

Accordingly, the Court concludes that the combination of routine strip-searching with the other stringent security measures in the EBI amounted to inhuman or degrading treatment in violation of Art.3 of the Convention. There has thus been a breach of this provision.

[143] Accordingly, we do not think that this authority should be seen as necessarily supporting the appellants’ case: rather, it emphasises the need to deal with each case on its facts.
[144] The second case was Munoz v Alberta 2004 ABQB 769, a decision of the Court of Queens Bench of Alberta which considered segregation of inmates with only one hour per day outside the cells, limited access to recreation and the use of shackles during exercise time. The Court found there was no breach of s 12 of the Canadian Charter of Rights and Freedoms, which protects Canadian citizens from being subjected to any cruel or unusual treatment or punishment. The Judge found that the treatment came close to breaching that provision, particularly the use of shackles even during exercise alone in a yard, but that this treatment would not “shock the community conscience”. The difficulty with applying that decision in the present case is that the regime for administrative segregation to which the inmates were subject in that case was lawful in that it was prescribed and expressly authorised by statute and regulation, and the Judge was considering a Charter provision which appears to have a higher threshold than s 23(5), which does not require a finding that treatment would shock the community conscience.
[145] None of the authorities presented to us by the appellants leads us to conclude that Ronald Young J was wrong in the way he assessed s 23(5) in this case. We do not think that the words of the section need any embellishment: the use of synonyms does not assist interpretation. Rather, a Judge considering s 23(5) must undertake an evaluative exercise having regard to the conditions under which inmates are held, the extent to which these diverge from the conditions which ought to have applied if there had been compliance with legal requirements and, in some circumstances, the extent to which those legal requirements are insufficient to meet the s 23(5) standard. That is exactly what Ronald Young J did in the present case.
[146] Nor do we believe that his focus on BMR as a regime, rather than on the individual circumstances of each respondent, led him astray. In our view, it was clear from the evidence before the Court that the imposition of BMR was unlawful in respect of all of the appellants. In relation to Mr Taunoa (first detention) and Mr Robinson, that was because no attempt was made to comply with s 7(1A). In relation to the other respondents (and in respect of Mr Taunoa’s second detention), the breach was the failure to meet the requirements of reg 155(3). The unlawfulness of the regime is an important component of the finding under s 23(5). Parliament has imposed requirements for the treatment of prisoners on Corrections and these were clearly breached in the present case. Indeed, as we indicated earlier, there may be a case for saying that BMR was not authorised by s 7(1A) at all.
[147] But the other incidents of BMR compounded this fundamental unlawfulness, and when taken in aggregate fully justified a finding of a breach of s 23(5) in this case. We have dealt with the appellants’ detailed criticisms of Ronald Young J’s assessment of these matters, and have found almost all of them to be unjustified. In our view, the conclusion which the Judge reached in [276] of this judgment has not been shown to be wrong. We can see no reason to interfere with it.
[148] Accordingly we would reject the appellants’ first ground of appeal.

Ground two: Was compensation the appropriate remedy?

[149] In his second judgment, Ronald Young J determined that it was appropriate that an award of compensation for Bill of Rights breaches be made to the respondents who had been subject to BMR. It was suggested to him on behalf of Corrections that the issue which needed to be determined was what remedy, or combination of remedies, would provide sufficient vindication to the respondents for the proven breaches of their rights. The Judge answered that question at [18] as follows:

Without, again, detailing the failures which gave rise to my conclusions, the finding that these applicants, while on BMR, were not treated with humanity or with the inherent dignity due every person inevitably means effects were suffered by individual applicants. Thus, in a case such as this, where the breach has ultimately affected the daily lives of some of the applicants in significant ways a declaration alone is not, in my view, adequate relief. I am satisfied, therefore as a general proposition that an award of compensation for Bill of Rights breaches here is appropriate.

[150] On behalf of the appellants, Mr Arnold submitted that the appropriate remedy in the case of Messrs Taunoa, Robinson, Tofts and Gunbie was a declaration, and that the only respondent to whom an award of compensation ought to have been made was Mr Tofts. He said that a declaration was a sufficient remedy in the case of the other BMR respondents because:

(a) The Bill of Rights breach was not motivated by malice, but occurred in good faith;

(b) The breach of the Bill of Rights identified by the Judge was not serious;
(c) Corrections’ response to the substantive judgment in the High Court was immediate and respectful of the decision: BMR was indefinitely suspended;
(d) Each of the respondents was lawfully in jail so that the breaches identified by the Judge related to conditions of incarceration, not the fact of incarceration itself;
(e) In a parallel common law case, compensation would not be available for the injury that the respondents suffered: R v Deputy Governor of Parkurst Prison ex parte Hague [1992] 1 AC 58 at 172;
(f) Each of the successful BMR respondents would have been in a situation of long term segregation, even if they had not been on BMR;
(g) The Judge approached the case as one of systemic breach, so the issue of remedies should also have been approached at a systemic level (other than in the case of Mr Tofts);
(h) The nature of the breach was essentially a series of administrative law errors which would normally be remedied only by recourse to the usual range of non-compensatory public law remedies (other than in exceptional situations such as false imprisonment).
[151] On behalf of the respondents, Mr Ellis submitted that compensation was the appropriate remedy in this case, and was necessary to vindicate the rights of the respondents. He pointed to the recent decision of this Court in Attorney-General v Udompun CA244/03 26 May 2005 where an award of $4,000 was made to Mrs Udompun in relation to a s 23(5) breach.
[152] It is clear that the Judge properly directed himself as to the legal position in this case. He referred to the decision of this Court in Simpson v Attorney-General (Baigent's Case) [1994] 3 NZLR 667, in which it was established that compensation was an available remedy for a breach of the Bill of Rights, and the decision of this Court in P F Sugrue Limited v Attorney-General [2003] NZCA 204; [2004] 1 NZLR 207, in which it was confirmed that compensation in a public law case such as the present case is discretionary. He considered whether the declarations which he had made in relation to the BMR respondents constituted a sufficient remedy. In that regard, a declaration was an important remedy. He accepted that Corrections had taken the declarations seriously, and, indeed had discontinued BMR. However, he was not satisfied that the declarations, on their own, would sufficiently vindicate the rights of the respondents.
[153] We do not believe the Judge was wrong to exercise his discretion in favour of making awards of compensation in this case. It is true, as Mr Arnold suggested, that the respondents were lawfully imprisoned, and would have been subject to some restrictive regime given their bad behaviour, even if Corrections had not acted in breach of s 23(5). But we cannot accept the submission that the breach identified by the Judge was not serious. BMR was established on an unlawful footing, apparently without legal advice, and the respondents were subjected to this unlawful regime with the practical consequences outlined by the Judge for significant periods of time. While we agree with the Judge that declarations are an important remedy, we also agree with his conclusion that an award of compensation was necessary in this case to vindicate the rights of Messrs Taunoa, Robinson, Kidman and Gunbie, as well as those of Mr Tofts, and to compensate them for the impact that the unlawful conduct of Corrections had on them.

Ground three: Was the level of compensation too high?

[154] In his second judgment, the Judge considered the comments of this Court in Baigent’s Case and in Dunlea v Attorney-General [2000] NZCA 84; [2000] 3 NZLR 136 as to the compensatory rather than punitive nature of Bill of Rights compensation.
[155] The Judge noted the significance of the fact that this was not a case of false imprisonment, but rather a case of lawful imprisonment where the conditions had fallen below the standard required by s 23(5). He took into account the fact that some of the respondents would have been and could have been legitimately segregated given their behaviour, the time they spent on unlawful segregation, any proven harm to them either physically or psychologically, and the fact that loss of conditions in an already deprived environment may fall more harshly on individuals.
[156] The Judge referred to the decision of Hammond J in Manga v Attorney-General [2000] 2 NZLR 65, where a plaintiff who had been unlawfully detained in prison after his release date was awarded compensation calculated on the basis of $10,000 per month. The Judge observed that if that case were taken as a guide, then compensation in this case would need to be a significantly lesser sum because the prisoners here had been legitimately imprisoned, but in unlawful conditions. He concluded that, while it was in part arbitrary, the sum of $2,500 per month set a reasonable benchmark for the general loss of conditions suffered by the BMR respondents in this case.
[157] The Judge then calculated compensation for each of the BMR respondents taking into account their respective personal circumstances, including their own behaviour while in prison, and awarded the compensation referred to in [40]-[43] above.
[158] Mr Arnold said that the awards were clearly excessive in this case. He said that the Judge had been wrong to use the Manga decision as any form of benchmark, because it was a totally different case where Mr Manga had been unlawfully deprived of his liberty for eight to nine months. He said this bore no comparison with the present case where the BMR respondents were lawfully imprisoned and where the principal errors relied on to justify the finding of a breach of s 23(5) were essentially administrative law errors.
[159] Mr Arnold said it was hard to justify an award of $55,000 to Mr Taunoa and $40,000 to Mr Robinson, in the light of the award of $60,000 to Mr Manga who was falsely imprisoned for over eight months.
[160] The appellants suggested that a further source of control or check was the approach taken to exemplary damages, and set out a schedule of exemplary damages awards which they said indicated the need for greater restraint by the Judge in this case. A more comprehensive schedule of exemplary damages cases appears in the decision of this Court in McDermott v Wallace [2005] NZCA 144; [2005] 3 NZLR 661 at [97] - [98].
[161] Mr Arnold suggested that the appropriate damages for the BMR respondents other than Mr Tofts would be in the region of $200 to $250 per month, and that an appropriate award for Mr Tofts, given his uniquely psychologically vulnerable state was in the region of $5,000-$10,000. He said that no award should have been made in favour of Mr Gunbie because it was not possible to make any findings regarding Mr Gunbie’s own experience on BMR and therefore there was no foundation for a finding of distress, anxiety or otherwise in this case. He said that a declaration was the only proper remedy for Mr Gunbie.
[162] Mr Ellis suggested that the present awards should be maintained or even increased: he suggested that it would be appropriate to double them. He said that the recent decision of this Court in Udompun, where $4,000 compensation was awarded for a breach of s 23(5) which was confined to a period of about 48 hours, suggested that higher awards in the present case were justified.
[163] The quantification of compensation in this case was a difficult task. In many Bill of Rights cases, State action which breaches the Bill of Rights will also amount to a tort, and a damages award will be available under that head. That is not the case here.
[164] The Judge properly considered the need to keep awards to a modest level, while recognising the need to vindicate the rights of the respondents which had been breached and the tangible personal consequences for them, sometimes over quite prolonged periods, that had resulted.
[165] The need to keep awards at a modest level is supported by a comparison with awards under comparable provisions in other jurisdictions, and in damages awarded for non-pecuniary loss in other areas of the law.
[166] In the former case, the modesty of awards made by the European Court of Human Rights was recently noted by Lord Bingham in R (Greenfield) v Secretary of State for the Home Department [2005] UKHL 14; [2005] 1 WLR 673 at [17], though that comment was directed towards cases involving a breach of art 6 of the European Convention, rather than art 3. The decision of the European Court of Human Rights in Van Der Ven v Netherlands Application 50901/99, 4 February 2003 exemplifies this. In that case the Court found that the treatment of the applicant in prison violated art 3 of the European Convention. He claimed compensation of 34.03 euros per day for the time he spent in the maximum security wing of the prison, making a total claim of 43,528.87 euros. The Court said it considered that the applicant had suffered some non-pecuniary damages as a result of the treatment to which he had been subjected in the maximum security wing and awarded him 3,000 euros “on an equitable basis under this head”.
[167] Overall, however, little guidance can be taken from the European decisions because the European Court of Human Rights has not yet identified principles to be applied in the assessment of compensation, a point noted by Lord Woolf in “The Human Rights Act 1998 and Remedies” in M Andenas and D Fairgrieve (eds) Judicial Review in International Perspective (2000) Vol II, 429 at 432. Lord Woolf himself suggested some principles to be applied in relation to compensation under the UK Human Rights Act 1998 at 434. In summary these are:

(a) Any other available remedies should be granted initially, and damages should be granted in addition only if necessary to afford just satisfaction;

(b) There should be no exemplary or aggravated damages;

(d) The quantum of the award should be “moderate” and “normally on the low side by comparison to tortious awards”;

(e) The award should be restricted to compensating the victim for what happened so far as unlawful conduct exceeds what could lawfully happen;

(f) Failure by the claimant to take preventative or remedial action will reduce the amount of damages;

(g) There is no reason to distinguish between pecuniary and non-pecuniary loss. What matters is the loss should be real and clearly caused by the conduct contrary to the Act.

[168] The modesty of awards in other jurisdictions is apparent from the survey of awards in foreign jurisdictions carried out for the Law Commission by Paul Rishworth and Grant Huscroft in 1995 – 1996, to which reference was made in the judgment of Keith J in Dunlea v Attorney General at [39] – [42].
[169] As to the experience in other areas of the law, we make the following observations with regard to general damages awards and awards made in employment law cases, where Courts have had to confront a similar issue to that which arises in this case, namely how to calculate damages where the loss suffered is non-pecuniary in character:

(a) General damages: The authors of Todd (ed) The Law of Torts (40 ed, 2005) describe awards of general damages as an adjunct to special damages in cases of damage to property as tending “to be on the low side” (at 26.3.02(2)). A similar point was made by Williams J in X v Attorney-General [1997] 2 NZLR 623 at 639 where, having undertaken a survey of general damages awards in New Zealand cases he concluded that New Zealand Courts “have adopted a cautious and conservative approach to the assessment of general damages”. However, larger awards have been made in cases involving personal (including mental) injuries such as L v Robinson [2000] 3 NZLR 499 ($50,000 damages for psychological and emotional trauma following sexual misconduct by a psychiatrist) and Brickell v Attorney-General [2000] 2 ERNZ 529 ($75,000 for a Police videographer who suffered post traumatic stress disorder after prolonged exposure to horrific material);

(b) Employment law: In the employment context, awards have also been modest where claims have been made for non-pecuniary loss. It was noted in the judgment of this Court in Telecom New Zealand Limited v Nutter [2004] NZCA 154; [2004] 1 ERNZ 315 at [85] that awards for non-economic loss in employment disputes are normally modest (awards in excess of $10,000 were made in only 10% of cases as at 1999) but the Court noted that awards were not necessarily to be confined to that level. There have been cases in the employment context where much higher awards have been made, notably Ogilvy & Mather (New Zealand) Limited v Turner [1995] NZCA 248; [1996] 1 NZLR 641 ($50,000 for emotional distress of a dismissed Chief Executive) and, more recently, Staykov v Cap Gemini Ernst & Young New Zealand Limited Emp C AC18/05 20 April 2005 Judge Travis ($30,000 for loss of dignity, humiliation and distress following dismissal). It should be noted, however, that the award in Ogilvy & Mather was described in a later case, Carter Holt Harvey Limited v Pirie [1997] ERNZ 648 at 652 as being “the high-water mark in cases of its kind”.

[170] It is also worth reflecting on the level of lump sum compensation available to personal injury victims under the Injury Prevention, Rehabilitation, and Compensation Act 2001. Lump sum payments available under that legislation are determined by reference to the American Medical Association Guide to the Evaluation of Permanent Impairment (4ed). Such payments are in addition to earnings–related compensation payable to personal injury victims. Examples given by the Accident Compensation Corporation of lump sums available under the 2001 Act are:

10% impairment – e.g. severe damage to the ligaments of the knee, would provide an entitlement of $2,602.76.

32% impairment – e.g. amputation of a leg below the knee, would provide an entitlement of $13,959.99.

80% or more impairment – e.g. paraplegia, would provide the maximum entitlement of $104,109.06.

[171] There is no compensation scheme for victims of crime in New Zealand.
[172] It is perhaps also instructive, in order to provide some context for the assessment of these amounts, to note that recent data available from Statistics New Zealand indicates that the average weekly gross income for all people from all sources was $586.00 in the June 2005 quarter. That equates with a yearly gross income of just under $30,500.00.
[173] This illustrates that the awards made in the High Court were substantial sums when compared to awards made for non-pecuniary losses in other areas, the lump sum compensation available under the ACC scheme and income expectations in the community.
[174] We recognise that in the area of public law damages, there are the added dimensions of vindication of the right which has been violated and deterrence of further breaches. In that regard we note the approach taken by the Judicial Committee of the Privy Council in Attorney-General of Trinidad & Tobago v Ramanoop [2005] UKPC 15; [2005] 2 WLR 1324 at [19] (quoted in the judgment of Hammond J at [302]) and Merson v Cartwright and the Attorney-General [2005] UKPC 61 at [18]. Those added dimensions must be borne in mind when making comparisons with purely compensatory awards in other contexts, but this should not lead to awards that are too much out of line with those in other cases.
[175] Turning to the present case, we have some reservations about the Judge’s attempt to establish a relativity with the level of compensation in Manga, given the very different nature of the breach which occurred in Manga. But we also recognise the need for the Judge to establish a basis on which to establish relativity among the awards to each BMR respondent.
[176] In determining this aspect of the appeal, we are cognisant of the developing nature of the law and the absence of clear principles, as well as the essentially evaluative exercise which needs to be made even when the principles are clear. In that regard, we adopt the approach taken by Tipping J in Bronlund v Thames Coromandel District Council CA190/98 26 August 1999 in the context of an appeal against an award of $20,000 damages for “stress, hardship and uncertainties” following the negligent issue of a building permit by a territorial local authority. In that case, Tipping J said at [62]:

Fixing general damages in circumstances such as these is not an exact science. Minds can reasonably differ over what is an appropriate sum. General consistency is desirable, albeit not easy to achieve when the facts of individual cases can vary so much and similar events can have markedly different impacts on different people. The award in the present case could in my view have been somewhat higher without being open to criticism. But I am not persuaded it was at a level which requires intervention by this Court. It does not strike me as being a wholly erroneous figure.

[177] Earlier, Tipping J had noted that it was not a function of this Court to substitute its own assessment of general damages for that of the trial Judge, and that a different award would be made on appeal only if the Court was satisfied “that the trial Judge’s award was so low (or so high) as to amount to a wholly erroneous figure”, citing Stieller v Porirua City Council [1986] 1 NZLR 84 at 97.
[178] In the present case, we believe that the awards could have been lower, and perhaps should have been lower, given the factors to which we have already referred. But we would not describe them as being “wholly erroneous”, and therefore not in the category demanding intervention by an appellate Court.
[179] Accordingly we conclude that there is no basis to disturb the compensation awards made by the Judge and would therefore reject this ground of appeal. We note, however, that the award to Mr Taunoa was said to have been miscalculated, because the Judge did not fully take into account his second period of detention under BMR conditions. We will deal with this in the context of the cross-appeal.

Conclusion: Appeal

[180] For the above reasons we would dismiss the appeal.

THE CROSS-APPEAL

[181] Although counsel for the respondents supported the High Court judgment, the respondents’ cross-appeal challenged almost every aspect of that decision.
[182] The principal contentions made by the respondents concerned the Judge’s conclusions that there was no breach of s 9 of the Bill of Rights in relation to both BMR and administrative segregation, and no separate breach of s 27 of the Bill of Rights. A number of the grounds of appeal deal with aspects of those broad contentions, and it is convenient to deal with each at the outset, before turning to the remaining grounds of cross-appeal. The respondents did not cross-appeal against the Judge’s finding that there was no breach of s 23(5) of the Bill of Rights in relation to administrative segregation.

Section 9 of the Bill of Rights

[183] The respondents argued that there should have been a finding of breach of s 9 of the Bill of Rights, which provides:

Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment

[184] Their arguments relating to s 9 touched on the following issues:

(a) the need to prove intention to establish cruel, degrading or disproportionately severe punishment or treatment;

(b) solitary confinement;

(d) Mr Tofts’ detention on BMR and administrative segregation.

Intention

[185] When considering s 9 of the Bill of Rights, Ronald Young J observed at [274] that:

Section 9 with respect to cruel behaviour is again in my view concerned with the intentional imposition of severe suffering. The Courts are likely to require conduct similar to torture but without the additional element of purpose before cruel treatment is established.

[186] Mr Ellis said that he accepted that intention was an ingredient of the definition of torture, but that it was not required to establish “cruel, degrading, or disproportionately severe treatment or punishment” for the purposes of s 9.
[187] Mr Boldt referred us to the discussion of intention in this context in the leading texts Joseph, Schultz and Castan The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (2ed 2004) at 209-210 and Nowak UN Covenant on Civil and Political Rights: CCPR Commentary (1993) at 130 and 133 and the decision of the European Court of Human Rights in T and V v United Kingdom [1999] ECHR 171; (1999) 30 EHRR 121 at [71] where the Court observed that the absence of a purpose of humiliating or debasing a victim “cannot conclusively rule out a finding of a violation of Article 3 [of the European Convention]”. He accepted that, while cruel degrading or disproportionately severe treatment or punishment generally involves intention, the absence of intention did not conclusively preclude a finding of a breach of s 9. However he argued that intention was a relevant factor in determining whether a breach of s 9 had occurred, particularly where an allegation of degrading treatment is concerned.
[188] In our view, the appellants’ concession in relation to intention in the context of s 9 was rightly made. We also agree that intention may be a relevant factor in the s 9 analysis. That accords with European practice in the context of art 3 of the European Convention: Keenan v United Kingdom [2001] ECHR 242; (2001) 33 EHRR 38 at [109].
[189] The other aspect of this ground of cross-appeal was the contention by Mr Ellis that Ronald Young J was wrong to conclude that detentions in BMR and administrative segregation were not “punishment” in [59] – [68] of his judgment. We are puzzled by this contention, at least insofar as it relates to BMR. The Judge’s conclusion in those paragraphs was that the reduction in conditions inherent in the BMR was unlawful because reduction in conditions was not permitted in relation to the segregation under s 7. In other words, the Judge said that the reduction in conditions had a punitive aspect to it which was the very reason it was in breach of reg 155. We accept that no such finding was made in relation to administrative segregation, but that was understandable given the terms of s 7(1A) and the fact that administrative segregation did not involve a reduction in conditions in the same way that BMR did.

Solitary confinement

[190] Mr Ellis submitted that Ronald Young J had wrongly failed to classify either BMR or administrative segregation or both as solitary confinement, and a breach of s 9 of the Bill of Rights. Much of the discussion in the High Court centred on the definition of the term “torture” in s 9, but the focus of argument in this Court was on the second limb of s 9, cruel, degrading, or disproportionately severe treatment or punishment.
[191] Mr Ellis argued that the Judge ought to have classified administrative segregation (and, presumably, BMR) as solitary confinement, since one of the hallmarks of administrative segregation was that the inmate was denied association with other inmates for 22 or 23 hours per day. At [266] of his judgment, Ronald Young J observed that it was impossible to say in a general sense what was or was not solitary confinement. He added:

Rather than anguish about the definition of solitary confinement, it is far better in my view to concentrate on the particular facts of the case and analyse how these facts fit with the definition of torture. The answer, therefore, to the proposition that solitary confinement per se is torture is that it depends on the facts established; in some cases it might be, in others it will not be.

[192] Later, at [313]-[314], the Judge noted the varying descriptions of solitary confinement. Sometimes the term was defined as a lack of association with others, and denial of an entitlement to pursue certain activities. Other definitions required significant sensory deprivation of light, sound, diet and intellectual stimulation. The Judge concluded that some forms of solitary confinement may be objectionable in human rights terms, while others may be legitimate means of controlling difficult prisoners. He therefore rejected the submission that any solitary confinement regime in New Zealand would necessarily be in breach of the Bill of Rights.
[193] Mr Ellis relied on authorities from Australia, Canada and the United States in support of his submission that any form of solitary confinement was in breach of s 9. The Judge did not accept the relevance of these authorities, but we were urged to reconsider them and apply them.
[194] The first of these was Sandery v South Australia (1987) 48 SASR 500, a decision of the Supreme Court of South Australia. In that case Mr Sandery was a difficult prisoner who was perceived by the authorities to be unmanageable and a disruptive influence on the prison. He was transferred from the normal prison cells to a holding area where he was confined in a small cell, isolated from all other inmates, and with his daily exercise also being undertaken in isolation from other prisoners. Later he was moved from this holding cell to a specially made isolation cell which was completely segregated from the main part of the prison. The cell had a small window, no washbasin or running water, a toilet which could not be flushed from within the cell and limited light.
[195] Olsson J noted that solitary confinement had been abolished in South Australia. However the prison authorities argued that the general power of the permanent head of the Department of Corrections to determine the correctional institution in which a prisoner would be imprisoned authorised the imprisonment of Mr Sandery in the segregated cell. However that general power was read subject to a later provision which dealt specifically with segregation of prisoners and which imposed strict conditions, including a time limit and a requirement that any renewal of the segregation past that time limit could be approved only by a visiting tribunal.
[196] Olsson J concluded at 513 that it was not open to the prison authorities to impose segregation or separate confinement or a similar form of detention on a prisoner otherwise than under the latter provision and in accordance with its requirements. Thus Mr Sandery was unlawfully detained.
[197] Ronald Young J took the view that this case depended on its own facts and the statutory context on which it was decided, and did not assist in interpreting s 9 of the Bill of Rights. We agree with that assessment. We do not think that the decision is authority for a proposition that any form of solitary confinement is cruel, degrading or disproportionately severe punishment. Rather, the case was an exercise in interpreting the relevant South Australian legislation, similar to the exercise which Ronald Young J undertook in relation to the PIA in this case. It is authority for the proposition that segregation of prisoners must be undertaken in accordance with the relevant statutory requirements, but that was exactly the decision reached by the High Court in the present case.
[198] The next case relied on by Mr Ellis was McCann v The Queen (1975) 29 CCC (2d) 337, a decision of the Canadian Federal Court, Trial Division. That case concerned inmates who had been subject to “dissociation” in a British Columbian penitentiary. Each of these inmates was confined to a small cell with a light that was left on 24 hours a day. They were permitted to leave their cells only for meals and for a half hour of exercise each day in the corridor. Inmates were required to sleep with their heads next to the toilet and subjected to strip searches in the open. They alleged that guards pointed guns at them while they were getting meals and that gas was thrown into their cells for no reason. The Court heard expert evidence to the effect that this sort of confinement would have significant adverse psychological and psychiatric effects on the inmates. The experts classified the conditions as the worst they had seen in Canada or the United States.
[199] Heald J found that this form of confinement was contrary to the provision in the Canadian Bill of Rights prohibiting cruel and unusual punishment or treatment. He said that the confinement of the inmates was not in accord with public standards of decency or propriety. It was unnecessary because of adequate alternatives: the cruel and unusual aspects of solitary confinement could have been removed while retaining the necessary security aspects of dissociation. The punishment was unusual because it was considerably more severe than in other Canadian institutions.
[200] The factual findings made in McCann distinguish it from the present case because of the particularly severe nature of the solitary confinement regime and the expert evidence before the Court as to the potentially damaging effect the regime would have on prisoners. In the present case, the Judge found that, with the exception of Mr Tofts, the conditions in which the respondents were held was not deleterious to their mental health, and it is apparent that the conditions were not as draconian in the present case. We do not think that McCann can be read as a general authority for the proposition that any regime involving solitary confinement is cruel and unusual treatment or punishment. We agree with Ronald Young J that, rather than using the label “solitary confinement”, the better approach is to consider each case on its own facts.
[201] Mr Ellis also suggested that the 1996 Report of the Arbour Inquiry (L Arbour Commissioner, Commission of Inquiry into Certain Events at Prison for Women in Kingston Ottawa: Queen’s Printer, April 1996) should have been taken into account by the Judge. In the report, Madame Justice Arbour found that administrative segregation at the Kingston women’s prison was not operating in accordance with the principles of fundamental justice. The report recommended a number of changes to the way in which administrative segregation was administered in Canadian prisons, with provision for review by an independent adjudicator in many situations. Mr Ellis described the report as the latest authoritative review of a system similar to administrative segregation in New Zealand. Whether that is the case or not, it does not provide particular assistance to the Court in determining whether the facts of the present case fall within the statutory criteria of s 9 of the Bill of Rights.
[202] Mr Ellis also referred us to the decision of the United States District Court, California, in Madrid v Gomez 889 F. Supp. 1146 (1995). This case concerned the operation of the security housing unit at Pelican Bay Prison in California. Inmates of this unit remained isolated in windowless cells for 22.5 hours per day, and were denied access to group exercise yards. They had no communal dining or exercise, no work opportunities and no communal religious services. The Court held that the conditions of the confinement in the unit which included “extreme isolation and environmental deprivation” did not inflict on inmates cruel and unusual punishment in terms of the Eighth Amendment to the US Constitution, though they did impose cruel and unusual punishment on mentally ill prisoners.
[203] It does not seem to us that this case provides any support for the respondent’s contention that there was a breach of s 9 in the present case.
[204] Mr Ellis argued that there was no statutory or other authority permitting solitary confinement (either BMR or administrative segregation) in New Zealand. He argued that s 7(1A) of the PIA, when read in the light of the Bill of Rights, the Convention Against Torture and the ICCPR, authorised only non-solitary segregation. He said the only exception to this was solitary confinement as punishment for a disciplinary offence as contemplated by s 17(3) of the Crimes Act or otherwise in cases of “urgent necessity”. He took the term “urgent necessity” from observations made by the HRC in a report on Denmark (CCPR/CO/70/DMK 31 October 2000) to the effect that Denmark should reconsider the practice of solitary confinement and ensure that it is used only in urgent necessity.
[205] We do not accept that s 7(1A) should be read down in a way which means that it does not authorise segregation of the nature imposed on the respondents in this case. Section 7(1A) authorises the Superintendent of a prison to give directions that the opportunity of an inmate to associate with other inmates may be restricted or denied for a period. The term “denied” cannot sensibly be interpreted other than as authorising the detention of an inmate in circumstances where any association with other inmates is prohibited completely. In fact, neither BMR nor administrative segregation as applied to the respondents denied all association between inmates, as the table at [12] above shows. Segregated inmates were kept in cells on the same landing which permitted at least verbal contact between them. We do, however, repeat our reservation (at [62] above) about the lawfulness of BMR under s 7(1A), given its apparently punitive characteristics.

Medical visits

[206] Mr Ellis suggested that the lack of medical assessment and medical visits to inmates on BMR and in administrative segregation was sufficient in itself to justify a finding of a breach of s 9. Ronald Young J found that the failure of medical staff to visit inmates on BMR or in administrative segregation was a breach of reg 149(4) of the Regulations, and this finding was not challenged on appeal by the appellants. The Judge also found inadequate initial checking and monitoring of mental health in BMR which was one of the reasons he gave for concluding that a breach of s 23(5) of the Bill of Rights had occurred.
[207] Mr Ellis supported his submission by reference to r 32(3) of the Standard Minimum Rules, which requires regular medical monitoring of those subject to “close confinement” and the decision of the European Court of Human Rights in Keenan v United Kingdom. In Keenan, the Court found that there was a lack of effective monitoring of Mr Keenan’s condition and a lack of informed psychiatric input into his assessment and treatment, which it described as “significant defects” in the medical care provided to Mr Keenan, who was mentally ill and known to be a suicide risk. While the United Kingdom Government maintained there had been daily medical visits to Mr Keenan while he was in segregation, the Court found that the absence of entries in his medical notes undermined the effectiveness of any monitoring or supervision process. The Court found that this lack of care, and the imposition of serious disciplinary punishment only nine days prior to his expected release date was not compatible with the standard of treatment required in respect of a mentally ill person. It therefore made a finding that, in view of Mr Keenan’s particular vulnerability, this treatment was inhuman and degrading treatment and punishment within the meaning of art 3 of the European Convention.
[208] Mr Ellis said that the situation for BMR inmates raised similar issues as were under consideration in Keenan. He noted the Judge’s finding that there was inadequate monitoring of inmates’ mental health, no adequate check at entry onto the BMR programme of inmates’ mental health, and a lack of adequate checks during the programme unless complaint was made (at [276](iv)).
[209] Mr Boldt said those findings needed to be balanced against the Judge’s finding at [173] that the inmates’ complaints about access to doctors and nurses and medical treatment were exaggerated, and that they had received attentive medical care at least to the standard present in the community. He said this meant there was no factual basis for Mr Ellis’ contention.
[210] In addition, Mr Boldt argued that Keenan v United Kingdom did not establish that there was a general obligation to undertake initial certification or daily medical visits as advanced by the respondents in order to avoid treatment being characterised as degrading. He said that Keenan was an extreme case given the fact that Mr Keenan was suffering from mental illness and was a known suicide risk, which meant that he had a special vulnerability which was not the case in relation to the respondents. He noted that r 32 of the Standard Minimum Rules was not binding on states parties and that there was no endorsement of that rule by either the HRC or the United Nations Committee Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[211] We accept the appellants’ contention that the facts in this case are quite dissimilar to those in Keenan v United Kingdom, and that that case does not establish that a failure to provide proper medical screening and daily visits constitutes degrading treatment. While the failures identified by the Judge were serious, the factual finding that inmates received proper medical care makes their practical impact of limited significance in the present case. In our view it would be wrong to make a finding of degrading treatment where the failings of Corrections in relation to medical monitoring did not have an adverse impact on the respondents in practice.

Mr Tofts

[212] Notwithstanding those views on the general issue of medical visits, we take a different view in relation to the treatment of Mr Tofts.
[213] Mr Ellis submitted that Ronald Young J ought to have made a finding that the detention of Mr Tofts in BMR and in administrative segregation was either cruel or otherwise in breach of s 9 of the Bill of Rights, relying on Keenan v United Kingdom. The evaluation of that contention requires consideration of the evidence and findings relating to Mr Tofts’ treatment both at Rimutaka Prison and at Auckland Prison.
[214] As indicated earlier, Mr Tofts was held in administrative segregation at Rimutaka Prison, and also spent nearly three months at Auckland Prison, for almost all of which he was on BMR.
[215] Mr Tofts’ administrative segregation at Rimutaka Prison followed his transfer to that prison from Mount Crawford Prison, where he had been involved in an incident involving an assault on a prison officer, in which Mr Kidman was also involved. This led to his re-assessment as maximum security, and his placement in the capital cells at Rimutaka Prison. He remained there from September 2001 to March 2002, at which point he was transferred to Auckland Prison. His transfer followed a serious incident at Rimutaka Prison involving an assault on a prison officer and a nurse during an attempt to escape. Mr Kidman was also involved in this and was also transferred to Auckland Prison.
[216] The High Court Judge found that the treatment of Mr Tofts (and Mr Kidman) at Rimutaka Prison did not involve cruel or inhumane conduct: the segregations were lawful, there was no breach of regulations relating to isolation cells, their cells allowed them to go outside at any time they chose into their own exercise yard, there was no deliberate infliction of mental suffering and no evidence of actual severe mental suffering.
[217] The Judge did, however, note that Mr Tofts had mental health problems which resulted from an incident that occurred prior to his imprisonment in which he received a severe skull fracture requiring neurological surgery and the insertion of titanium plates into his skull. This led to a number of medical and psychiatric problems.
[218] After his transfer to Auckland, Mr Tofts was placed on BMR. We have described the screening process undertaken before an inmate was included in the BMR regime at [16]. In the case of Mr Tofts, this process failed to identify that Mr Tofts’ psychiatric problems made him an inappropriate candidate for BMR. As noted earlier, the appellants acknowledged in this Court that Mr Tofts should never have been placed on BMR because of these psychiatric problems.
[219] The High Court Judge found that Corrections failed to take proper account of literature indicating that isolating inmates from one another for extended periods could cause psychiatric harm when it was deciding and implementing BMR. He also found that the psychiatric vulnerability of inmates was inadequately assessed when they were considered for BMR. We have rejected the challenge to those findings (see [84]-[87] above).
[220] The Judge noted at [6] that the initial project brief for BMR had contained a warning about the adverse affects of intense periods in solitary confinement for extended periods. He also noted at [12] that the review of BMR undertaken in 1998 by two psychologists, Mr Van Rensburg and Mr Wales, contained an observation that BMR was not suitable for unstable inmates or those having a tendency for self harm. Later, at [81], the Judge said:

Corrections had been warned by their own psychologists of potential risk to inmates on BMR and as Professor Barrett [a psychologist who was a witness for the respondents] observed they could have discovered by reasonable research scientific data regarding potential risk to inmates. Armed with this information a “reasonable step” to ensure inmate health might have been a proper screening of inmates.

[221] In the light of this information, the admission of Mr Tofts to BMR in circumstances where his psychiatric condition made it inappropriate was a particularly serious matter. Given the known dangers of BMR for mentally unstable persons, and Mr Tofts’ obvious physical and mental vulnerability, he should not have been placed on BMR. The Judge noted at [247] that an important part of the way Mr Tofts had been taught to cope with his mental and physical disabilities was through distraction, and the removal of access to a television while he was placed on BMR posed considerable difficulties for that strategy. The Judge also noted that Mr Tofts was seen by a Dr Seth some three weeks after he had been placed on BMR, and that Dr Seth had arranged for weekly counselling sessions with a psychologist. However the Judge said it was not clear whether Dr Seth had ever been made aware of the BMR regime and its conditions and that he was never asked whether harm could be done to Mr Tofts as a result of placing him on BMR.
[222] The impact of BMR on Mr Tofts was the subject of conflicting evidence from experts. The respondents’ expert, Dr Crawshaw, said that BMR could have been predicted to intensify Mr Tofts’ pre-existing difficulties and had done precisely that. The appellants’ expert, Dr Chaplow, agreed with much of Dr Crawshaw’s report, but took a slightly different view on the impact of BMR on Mr Tofts. In particular, Dr Chaplow agreed with Dr Crawshaw’s criticism of the “poor fit between Tofts’ ability to cope and with the rather rigid manner in which the BMR program is applied”. But he said that Mr Tofts’ claims of psychological and psychiatric trauma resulting from BMR were unlikely to be imputed to the effects of prison as the symptoms were pre-existent to his segregation in the BMR program. Dr Chaplow did, however, agree that his brain injury deficits would have made him more vulnerable to adapting to a harsher environment and concluded that his incarceration was not causative of his problems but possibly aggravated them. The Judge accepted that the inappropriate placement of Mr Tofts on BMR had aggravated his psychiatric difficulties (in his second judgment at [31]).
[223] In summary, therefore, the evaluation of the possible breach of s 9 in relation to the treatment of Mr Tofts proceeds against the following factual background:

(a) Corrections knew of the risks of placing inmates who were psychiatrically vulnerable on BMR, and had access to international literature which would have reinforced that knowledge;

(b) Corrections knew of Mr Tofts’ psychiatric vulnerability;

(d) Mr Tofts was therefore admitted to BMR when he ought not to have been;

(e) The conditions on BMR, particularly the withdrawal of access to a television set, removed one of the coping mechanisms available to Mr Tofts to deal with his psychiatric disability;

(f) Mr Tofts’ time on BMR exacerbated his pre-existing psychiatric and psychological difficulties.

[224] The High Court Judge recognised these factors, which distinguished Mr Tofts’ position from that of other BMR respondents, by a higher award of damages than would otherwise have been made for the breach by Corrections of s 23(5) of the Bill of Rights. In other words, he saw this as a factor aggravating the breach of s 23(5), but not as of sufficient significance to justify a finding that there had been a breach of s 9.
[225] In our view, the combination of factors outlined above justifies a finding of breach of s 9 of the Bill of Rights in relation to Mr Tofts. In summary:

(a) We are satisfied that there was no intentional infliction of harm on Mr Tofts, and therefore no torture in terms of s 9;

(b) We do not consider that his treatment could be classified as “cruel” adopting the test that this requires treatment which shocks community conscience: see [144] above;

(c) We do not consider his treatment was degrading treatment, which involves some form of gross humiliation or debasement;

(d) But in our view, the treatment of Mr Tofts does cross the threshold for disproportionately severe treatment. In Puli’uvea v Removal Review Authority (1996) 2 HRNZ 510 at 523, this Court referred to the “high threshold” for disproportionately severe treatment, and continued: “The cases here and elsewhere expand on such constitutional guarantees by using expressions such as ‘treatment that is so excessive as to outrage standards of decency’”. A fair evaluation of the treatment of Mr Tofts against that threshold leads to a conclusion that the threshold was crossed in this instance.

[226] Accordingly, we would allow this ground of cross-appeal, find that there was a breach of s 9 in relation to the treatment of Mr Tofts, and make a declaration to that effect, in addition to the declarations made in the High Court.

Other s 9 issues

[227] Mr Ellis also said that the Judge had been wrong not to find a breach of s 9 in relation to the period which inmates spent on BMR. The focus of this argument was on the minimum period of each of the phases of BMR: it was assumed that a BMR inmate would spend six months on the programme. We do not think that there is any particular legal issue arising here. The Judge was clear in his finding at [49] that the discretion which had to be exercised under s 7(1C) was not overridden by these minimum periods and that there was evidence that some BMR inmates were released at the time of their first review (after three months) notwithstanding the six months minimum. That means there is no factual basis for the argument.
[228] Mr Ellis said that the Judge’s finding of a breach of the Bill of Rights in relation to BMR ought to have also applied to administrative segregation. He noted that the Judge’s finding that BMR breached s 23(5) was based on the fact that some inmates were segregated for lengthy periods unlawfully and because there was an unlawful reduction in conditions. He said that the first of these applied also to administrative segregation because it was used as a substitute for formal punishment in the cases of Messrs Robinson, Tofts and Kidman. There is, however, no finding of fact to that effect in the judgment. Mr Ellis took us to no evidence to substantiate that assertion.

Section 27 of the Bill of Rights

[229] The respondents argued that Ronald Young J erred in failing to find a breach of the rights of natural justice under s 27(1) of the Bill of Rights. Their arguments encompassed a number of discrete areas, namely:

(a) The failure to allow an ex post facto hearing of the decision to put an inmate in BMR or administrative segregation, or any subsequent review;

(b) The failure to undertake Superintendent visits or medical visits for inmates on BMR or administrative segregation;
(c) The non-compliance with statutory requirements relating to BMR and administrative segregation (this was not a point of cross-appeal, but was argued before us).

Ex post facto hearing or review

[230] Mr Ellis said that prisoners who were segregated either on BMR or on administrative segregation should have been given written reasons, an opportunity to express views, and to have a review at least three monthly. He said this submission reflected the recommendation made by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in relation to a similar segregation regime applying in a United Kingdom prison. He said that, in addition, the absence of access to a lawyer, advice as to who the decision maker would be and any right to a hearing or to make written submissions was a denial of natural justice. He said that this amounted to denial of access to the Courts, citing R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532 which recognised the principle that inmates continue to have a right to communicate with a lawyer when incarcerated and R v Secretary of State for the Home Department ex parte Simms [1999] UKHL 33; [2000] 2 AC 115, which was authority for the proposition that inmates retain their civil rights except where expressly or inevitably removed.
[231] Ronald Young J found that segregation on BMR, with the resulting loss of conditions which applied to non-BMR prisoners required Corrections to follow the disciplinary process of the PIA or the Regulations, and that this required notification of the allegation and the right to a fair trial by an impartial Tribunal. He found that Corrections had failed to do this which, although not expressly stated, would have amounted to a breach of s 27 of the Bill of Rights. However, when considering administrative segregation, the Judge determined that, in the absence of the withdrawal of any existing conditions from inmates (as occurred with BMR), there was no requirement to engage the disciplinary process. In relation to administrative segregation, the Judge said that the natural justice considerations did not go beyond identification of the grounds of segregation, the reasons for segregation and the facilitation of access to lawyers post-segregation (at [305]). In that regard, he relied on the decision of this Court in Bennett v Superintendent, Rimutaka Prison and Drew v Attorney-General [2001] NZCA 207; [2002] 1 NZLR 58.
[232] We see no reason to differ from the conclusions of Ronald Young J on this point. We think it is clear that the position of segregation on BMR required a disciplinary process. But in relation to administrative segregation, the same considerations did not arise because, as the Judge correctly found, administrative segregation is not a disciplinary process and does not involve a removal of normal conditions. As long as the requirements identified by this Court in Bennett v Superintendent, Rimutaka Prison at [81] are met, and a prisoner is entitled to access to a lawyer, we do not believe that a breach of s 27(1) occurs.
[233] The Judge found that there were instances where inmates had not been provided adequate access to lawyers, but concluded at [181] that there was no evidence of a widespread obstruction of inmates’ rights of access to lawyers. In the light of that conclusion, we are not satisfied that any breach of s 27(1) occurred in relation to the placing of inmates on administrative segregation.
[234] We do not believe that there was any requirement for Corrections to conduct any form of ex post facto hearing or review of decisions to segregate inmates on administrative segregation: as this Court found in Bennett v Superintendent, Rimutaka Prison, the appropriate method of challenge for such a decision is an application for judicial review, which, of course, is why it is necessary to ensure that inmates have access to lawyers.

Superintendent’s visits and medical visits

[235] Mr Ellis suggested that the failure to provide medical visits or Superintendent’s visits to prisoners on segregation justified the making of a declaration that all such segregations (BMR and administrative segregation) breach both s 9 and s 27, and warrant the award of public law compensation. We deal with the s 27 aspect of this submission here.
[236] Ronald Young J found that there was a breach of reg 149(5) of the Regulations, which requires that the Superintendent, or an officer authorised by the Superintendent, must visit an inmate confined in an isolation cell at least once a day.
[237] The Judge also found that Corrections failed to comply with the requirements of the Regulations that medical officers be notified of those who were placed in isolation, and that this meant that inmates on BMR did not get the access to medical officers that they were entitled to (at [200]). The Judge characterised the requirement for a visit by the Superintendent (or delegate of the Superintendent) as an intended “independent” check on the inmate beyond the day to day contact with familiar prison guards, which provided a complaint outlet independent of the inmates’ immediate jailers. He described this as an “important right” for an inmate in isolation (at [194]).
[238] Mr La Hood argued that the failure to provide for this “important right” was such that there should have been a declaration that a breach of s 27 of the Bill of Rights occurred. He said that the right to visits by the Superintendent was encompassed within s 27 and in the decision of this Court in Bennett v Superintendent, Rimutaka Prison. He said the Court should not only have made a declaration that there had been such a breach but also awarded compensation.
[239] We do not believe that the failure to provide for visits by the Superintendent and for medical visits engages s 27(1). Prison inmates have available to them formal processes in relation to the prison inspectorate and the Ombudsman, and, as this Court noted in Bennett v Superintendent, Rimutaka Prison, judicial review is a potential line of challenge to a decision to segregate an inmate under s 7(1A). While the failure to provide for visits by the Superintendent and medical officers were breaches of the Regulations, and were components in the Judge’s finding that BMR breached s 23(5), we do not think that they amounted to a breach of s 27(1) of the Bill of Rights. Neither the Superintendent nor the medical officers had any adjudicative function in relation to the segregation of an inmate to which s 27(1) could relate.

Non-compliance with statutory requirements

[240] The last aspect of the complaint in s 27 was the submission made by Mr La Hood that the right to have prison authorities comply with all statutory requirements when segregating an inmate can be seen as encapsulated by the right to natural justice provided s 27 of the Bill of Rights. He said this was analogous to the way this Court analysed the right to legal advice as being encompassed within the right to natural justice in Drew v Attorney-General. We do not accept that submission. In our view, the failure to observe the procedural requirements of the PIA and the Regulations are more appropriately recognised in the analysis of the legality of BMR (and administrative segregation) in terms of s 23(5) of the Bill of Rights (and, where engaged, s 9 of the Bill of Rights). That does not in any way diminish the importance of these procedural requirements: rather, it recognises that their importance lies in the assessment of the lawfulness of detention, rather than in the intricacies of the process by which detention occurs.

Specific grounds of cross-appeal

[241] We now turn to the specific grounds of cross-appeal raised by the respondents which have not been considered as part of the discussion of s 9 and s 27 above.

Refusal to allow amendment of pleadings

[242] On the opening day of the High Court trial, the respondents sought leave to file an amended statement of claim alleging breaches by the Attorney-General of arts 10, 11, 12 and 13 of the Convention Against Torture and art 7 of the ICCPR. Of particular significance were two allegations. The first was that the respondents were entitled to a prompt and impartial investigation of the complaints in accordance with art 12 of the Convention Against Torture and art 7 of the ICCPR. The second was that the Attorney-General had failed to ensure compliance with art 10 of the Convention Against Torture in relation to training and education of officials in the Corrections system on the prohibition of torture and to keep methods and practices of the treatment of inmates under systematic review. Mr Ellis argued that a failure to hold an inquiry is itself evidence of a breach of s 9 of the Bill of Rights and of the Convention Against Torture, relying on the decision of the European Court of Human Rights in Krastanov v Bulgaria Application No. 50222/99 30 September 2004 at [55] – [61].
[243] We think this point needs to be seen in context. The Judge was faced with a proposed amendment to the pleadings which would have expanded the scope of the trial and required the present appellants to gather relevant evidence to respond to the allegations. The Judge was satisfied that the new pleadings could have been, and should have been included in an amended pleading filed some two months before the trial. He noted that there was nothing to stop the respondents from filing further proceedings if they considered it appropriate to do so. In those circumstances, he declined leave to amend the pleadings.
[244] In our view, the decision of the Judge in this regard was an orthodox exercise of the discretion of a trial Judge, faced with a last minute application for an amendment to pleadings. There is no proper basis for us to interfere with that exercise of the Judge’s discretion, nor would there be any point to it. All that could be done if we were to allow the amendment would be for there to be a new trial on the allegations which the respondents wish to make. Exactly the same result could have been achieved by the filing of new proceedings by the respondents.

Inquiry

[245] Mr Ellis suggested that if no inquiry were to be directed by this Court, then the New Zealand legal system would be affording the New Zealand Government the opportunity to commit human rights breaches with impunity. He said that the High Court did not even allow an amendment to the pleadings to incorporate a complaint in relation to a lack of investigation. However, as already stated, the decision of the High Court expressly states that it is open to the respondents to file further proceedings if they wish to pursue these allegations against the appellants.
[246] Mr Ellis also suggested that a declaration of a breach of s 9 of the Bill of Rights should be made because no inquiry has been held, even without any amendment to the pleadings. It is not open to the Court to do so in the present circumstances. The refusal of leave to amend the pleadings was, at least in part, because the appellants had signalled the need to respond to the allegations by evidence. Since the allegations were not pursued as a result of the Judge’s ruling, that evidence is not before the Court.
[247] Mr La Hood suggested that the failure of the appellants to discover certain information after the initial High Court trial and the late discovery of other information during the trial supported the proposition that the failure to hold an inquiry prejudiced the respondents and was unlawful. Even if that were so, the Court cannot make a finding of unlawfulness in relation to a matter which is not properly before it in circumstances where potentially relevant evidence to the contrary is not before it.

Classification system

[248] Mr Ellis argued that Ronald Young J was wrong to conclude that detentions on BMR after March 2002 and detentions on administrative segregation were not in breach of the PIA. He said this was because detentions on BMR, and the detentions on administrative segregation of Messrs Robinson, Tofts and Kidman, were used as an effective super maximum security classification for difficult prisoners. He said that this classification had not been undertaken in accordance with the requirements of s 17A of the PIA. In support of this submission he referred to correspondence in which a Corrections official had referred to a proposed “supermax” facility (it appears that this proposal was not implemented).
[249] Mr Boldt said the matter was not pleaded, and that it was understandable that the Judge had not therefore dealt with it. In addition, he pointed out that the system of security classification which must be promulgated under s 17A(1) is concerned with the level of security risk posed by inmates and the corresponding requirements for their supervision and security containment. This did not extend to conditions of detention for inmates who had been segregated under s 7(1A).
[250] We accept the appellants’ submission. In the absence of a pleading to the effect that BMR or administrative segregation amounted to a new security classification, there was no requirement for the Judge to deal with the issue. And, in any event, we are unable to see how the detention of specific inmates on BMR or administrative segregation engages s 17A.

Seizure of legal papers

[251] The Judge found there was a particular incident in which a Corrections officer improperly seized legal papers belonging to Mr Robinson (at [180]) and that from time to time other instances of improper seizure of items in inmates’ cells occurred during the searching of cells. However, he concluded that there was nothing to support an allegation of an institutional effort to deprive inmates of their legal papers (at [139]) and that there was no systematic breach of the Regulations in that regard (at [142]).
[252] Mr Ellis submitted that the Judge’s finding minimised the fundamental right of confidentiality of legal papers, and that a declaration ought to have been made in relation the seizure of such papers.
[253] The Judge’s finding of fact that the seizure of papers was not systematic or institutional was not challenged, and in the light of that finding we do not believe that there was any call for the Judge to make a declaration. The appellants rightly accepted that it was unlawful for Corrections staff to remove privileged material from inmates’ cells. There being no dispute as to the legal point raised by the respondents, we make no further comment about it.

Strip searches

[254] Mr Ellis said that the Judge ought to have made a declaration that the policy of routine strip searches was unlawful. The Judge noted that routine strip searches are not provided for in the PIA or the Regulations, and indeed s 21K of the PIA makes it clear that no routine strip searches are permitted. Having made that finding, we do not think there was any reason for the Judge to make a declaration of unlawfulness, in the absence of any specific pleading seeking such a declaration. As the appellants pointed out, the pleading relating to strip searches at para 27.27 of the statement of claim was a pleading as to one of the conditions of BMR, and supported the contention in the statement of claim that BMR was unlawful, which was upheld by the Judge.

International covenants and the Standard Minimum Rules

[255] The Judge noted at [280] the complaints made by the respondents under the Standard Minimum Rules, Bill of Rights 1688, the ICCPR and the Convention Against Torture were essentially mirrored in the complaints of breaches of the PIA, the Regulations and the Bill of Rights. He said that the PIA, the Regulations and the Bill of Rights created obligations similar to those imposed by the international covenants and rules referred to above. He said that the Standard Minimum Rules were neither a Treaty nor a binding instrument of international law, but rather a set of recommended regulations adopted by many countries and that the Regulations and the PIA incorporated many of those standard conditions. However, he said the lawfulness or otherwise of the treatment of prisoners in New Zealand was to be judged by applying New Zealand legislation, not the Standard Minimum Rules, to the facts of the case.
[256] Mr Ellis said the Judge made an error of law in concluding that the ICCPR and the Convention Against Torture were part of New Zealand law and then failing to take cognisance of the international jurisprudence. But that is not what the Judge said. What he said was that the provisions of the ICCPR and the Convention Against Torture had been incorporated into New Zealand legislation, particularly ss 9 and 23(5) of the Bill of Rights. We agree with the Judge’s conclusion in that regard.
[257] Mr Ellis also argued that the Judge was wrong to find that the Standard Minimum Rules, particularly r 32, were not part of customary international law. Rule 32 provides that punishment by close confinement should not be inflicted unless a medical officer has examined the prisoner and certified that he is fit to sustain it, and also requires daily visits to prisoners undergoing such confinement by a medical officer.
[258] In support of this submission, Mr Ellis said that the HRC had observed in Potter v New Zealand: HRC Communication No. 632/1995 18 August 1997 at [6.3] that the Standard Minimum Rules constituted: “valuable guidelines for the interpretation of the [ICCPR]”. We do not believe that the observation of the HRC in Potter compels a finding that rr 31 and 32 of the Standard Minimum Rules are part of customary international law. We were referred to no authority that the Standard Minimum Rules are customary international law (i.e. that States all comply with them because they have a generally held belief that to act in that way is required by law). The HRC did not say anything of that kind in Potter.
[259] The Standard Minimum Rules are neither a treaty nor a binding international instrument and, as para 1 of the Preamble to the Standard Minimum Rules notes, they seek to set out “what is generally accepted as being good principle and practice in the treatment of prisoners and the management of institutions”.
[260] Mr Ellis said that the status of the Standard Minimum Rules had also been recognised in s 5(1)(b) of the Corrections Act 2004 (which has replaced the PIA since the events which led to these proceedings). Section 5(1)(b) provides that the purpose of the corrections system is to improve public safety and contribute to the maintenance of a just society by providing for corrections facilities operated in accordance with rules set out in the Act and regulations made under the Act that are based “amongst other matters, on the United Nations Standard Minimum Rules for the Treatment of Prisoners”. This does not mean the Standard Minimum Rules (or r 32 of the Standard Minimum Rules) have been adopted into New Zealand domestic law. Of course, the PIA and the Regulations (and the Corrections Act and Corrections Regulations which have replaced them) impose many requirements which are similar to, or the same as, requirements of the Standard Minimum Rules. That is different from the adoption of the Standard Minimum Rules themselves into domestic law.
[261] In our view, the Judge was correct to focus on the domestic legislation and regulations applying to the treatment of prisoners, rather than on the Standard Minimum Rules.

Disciplinary charges: Mr Taunoa

[262] Mr Taunoa alleged that an analysis of the disciplinary charges which he faced while on BMR illustrated a pattern of trivial charging. This was rejected by the Judge who found that, with one exception, the misconduct charges were serious. He rejected the proposition that those charges showed a pattern of unfair charging.
[263] Mr Ellis said that the Judge was wrong to conclude that the sentences imposed for these charges were not cruel punishments or some other breach of s 9 of the Bill of Rights, but the Judge appears to have made no such conclusion. Mr Ellis also said that the Judge was wrong to observe that the case was not an appeal from the disciplinary penalties as he did at [205]. The Judge went on to say that even if judicial review principles applied, and the decisions could be challenged, there was insufficient factual material on which to make any adequately informed judgment on the penalties for individual offences.
[264] Again we can see no reason to criticise that the Judge. He did not have before him an application for judicial review of any of the individual disciplinary hearings or the results of those hearings. The statement of claim sought a declaration that the punishments imposed on Mr Taunoa for the disciplinary offences described in para 54 of the statement of claim (this appears to have been a mistaken cross reference to para 51, which refers to three instances in which Taunoa was found guilty by a visiting justice of an offence and sentenced to penalties available under the PIA) were unlawful, and an order in the nature of certiorari quashing those decisions. It was clear that the penalties were not unlawful, in that they had been imposed after the process required by the PIA, and in accordance with the Regulations. In our view the approach taken by the Judge to this issue at [205] was appropriate.

Arbitrary detention

[265] Mr Ellis said that Ronald Young J was wrong not to conclude that the respondents had been the subject of arbitrary detention, and were entitled if still detained in those conditions to all the rights in s 23 of the Bill of Rights. He accepted that Ronald Young J followed the decision of this Court in Bennett v Superintendent, Rimutuka Prison, but suggested that that case was wrongly decided on the question as to whether detention under s 7(1A) was a fresh detention for the purposes of the Bill of Rights. However, Mr Ellis did not pursue this argument before us. In the absence of any argument before us to substantiate a claim that Bennett v Superintendent, Rimutaka Prison was wrongly decided, we follow the decision in that case.

Mr Tofts and Mr Kidman: Detention under s 7(1A)

[266] Mr Ellis said the Judge was wrong to find that Mr Tofts and Mr Kidman were detained pursuant to s 7(1A) of the PIA. He said there was no approval for the continuation of the detention of either of them from Corrections head office for the period after three and a half months. They were released after interlocutory orders were sought, without the order needing to be argued for, and were not placed back on BMR. He said that the Judge ought to have issued a declaration accordingly.
[267] We are unclear as to the exact nature of the complaint raised on this point of appeal, and it was not elaborated upon in oral submissions. The factual position appears to be that Mr Tofts and Mr Kidman were initially approved for placement on BMR by the Superintendent on 2 April 2002, which authorised their segregation pursuant to s 7(1C) until 15 April 2002. Head office approval for their placements on BMR was given on 9 April 2002, which provided for detention on BMR until 1 July 2002. A further approval was not sought from head office before 1 July 2002, so their detention after that date was not authorised. This was realised and they were removed from BMR on 4 July 2002. Accordingly their detention between 2 July 2002 and 4 July 2002 was not authorised as required under s 7(1C). However, none of this appears to indicate any error made on the part of the Judge, and, in the absence of any explanation as to the nature of what the respondents seek we say no more about this ground of appeal.

Award of compensation to Mr Gunbie

[268] Mr Ellis said that the award of compensation to Mr Gunbie was not proportionate to the awards made in favour of Mr Tofts and Mr Kidman. He said Mr Gunbie spent half as long on BMR as Mr Tofts and Mr Kidman yet received only a quarter of the amount of compensation they received. He suggested that the award to Mr Gunbie should be half that awarded to Messrs Tofts and Kidman. This was not a point of cross-appeal but was raised in submissions. We have dealt earlier with the method of calculation of compensation. There was no strict mathematical formula. The unusual circumstances relating to Mr Gunbie made it necessary for the Judge to deal with his situation on a broad brush basis. The Judge described the award as “nominal”. We see no reason to interfere with his decision.

Awards of compensation to all parties

[269] Mr Ellis suggested that the awards of compensation should be doubled, particularly if there were a finding of a breach of s 9. We have made such a finding in relation to Mr Tofts, but not in relation to any of the other BMR respondents. In relation to the BMR respondents other than Mr Tofts, we have already dealt with the basis on which compensation was calculated earlier in this judgment and need say no more about it.
[270] In relation to Mr Tofts, we do not see a need to revisit the level of compensation payable to him. As we noted at [224], the level of compensation awarded to him in the High Court was increased to reflect the seriousness of the breach of s 23(5) in his case. The factors that led Ronald Young J to that course of action are essentially the same as the factors which led us to find a breach of s 9. We are not satisfied that the existing award to Mr Tofts is insufficient to vindicate the breaches of both s 9 and s 23(5) and to compensate him for the impact of those breaches on him, having regard to the factors to which we referred at [165]-[175] above.

Mr Karaitiana

[271] The Judge found that Mr Karaitiana’s administrative segregation was lawful in terms of s 7(1A). However he noted that the approval form which had to be signed by the Superintendent was signed four days after the actual segregation occurred, and that this was “unreasonably lengthy” (at [338]). The Judge concluded that there was, however, sufficient material to justify Mr Karaitiana’s segregation, so that the breach was technical rather than substantive.
[272] Mr La Hood argued that, although this was a technical matter, it was nevertheless significant. He noted the comment by this Court in Bennett v Superintendent, Rimutaka Prison at [81] that administrative segregation under s 7(1A) is a “serious matter for a prisoner” and that he should be enabled to obtain legal assistance. He said in the light of this finding the Judge should have marked the breach by a declaration that there had been a breach of the Bill of Rights and awarded public law compensation. He suggested that the breach of the Bill of Rights which had occurred was a breach of s 27. We disagree for the reasons discussed at [232] above. Alternatively, he suggested that there was a breach of s 17 of the Bill of Rights, which provides a guarantee of freedom of association. Again, we reject that contention: the Judge found that Mr Karaitiana was rightly segregated from his fellow prisoners and no breach of s 17 therefore occurred.

Mr Rimene

[273] Ronald Young J found that Corrections had been too slow in responding to a request by Mr Rimene and his lawyers for information as to why he had been placed on administrative segregation. The Judge had earlier observed that delays of this magnitude had the effect of precluding challenges to placements on administrative segregation and prevented inmates having effective access to the Courts to challenge decision-making (at [88]).
[274] The Judge also recorded that Corrections accepted it had failed to respond adequately to a request for medical treatment by Mr Rimene, though we were told by counsel for the appellants that this occurred prior to Mr Rimene’s placement on administrative segregation. The Judge also found that when Mr Rimene was charged with threatening a Corrections officer in October 2002 he was kept in a punishment cell for two days (because of the unavailability of any alternative cell) and was not allowed access to his lawyer during that two day period. The Judge said that neither of these events should have happened but did not consider the two day delay as significant.
[275] Mr La Hood accepted that all of these breaches were “technical” in that they did not effect the legality of the segregations, but said that they indicated that Mr Rimene was treated unlawfully and that declarations and an award of public law compensation should have been made to mark the breaches, vindicate the rights and compensate for the affront caused.
[276] In our view the Judge was correct in the assessment of the relatively minor nature of the breaches in the case of Mr Rimene. His decision not to make any formal declarations or award compensation were matters of discretion in respect of which the Judge has not been shown to be wrong.

Mr Paku

[277] Mr La Hood said that the breaches found by the Judge in relation to Mr Paku also merited the making of declarations and an award of compensation. Again, we conclude that the Judge’s decision not to do so was properly within his discretion.

Ms Tui

[278] Mr La Hood made a similar submission in relation to Ms Tui, and we reject it for the same reasons.

Additional ground of appeal: Mr Taunoa’s compensation

[279] During the course of argument, Mr La Hood raised an additional matter which had not been referred to in the points of cross-appeal filed by the respondents. This was the apparent error made by the Judge in calculating the compensation for Mr Taunoa. Mr La Hood sought leave to amend the cross-appeal to deal with this point. Given that the argument was brief and referred to what was an apparent error on the face of the High Court judgment, we can see no prejudice to the appellants in having to respond to this issue at short notice, and therefore grant leave.
[280] In assessing the amount of compensation payable to Mr Taunoa, the Judge noted (at [34] of his second judgment) that Mr Taunoa had been on BMR for 26 months. In fact, Mr Taunoa had two separate periods on BMR, the first being a period of about eight months (from November 1998 to July 1999), and the second being for two years (from March 2000 to March 2002). Thus the Judge’s statement that Mr Taunoa was on BMR for 26 months was incorrect, and the total period on which he was on BMR was, in fact, about 32 months.
[281] Mr Ellis suggested that the Judge’s assessment had clearly overlooked Mr Taunoa’s first period on BMR, and that the amount of compensation should be increased by a sum calculated by multiplying the Judge’s indicative monthly benchmark of $2,500 by seven, reflecting the seven month period of the first detention on BMR. Mr Boldt suggested that any adjustments to the compensation awarded to Mr Taunoa needed to reflect the fact that Mr Taunoa’s first period on BMR had been considerably less stressful for him than his second period, and that a calculation of a monthly rate as suggested by Mr Ellis was too simplistic. He suggested that, if the Court were disposed to allow an adjustment, the matter should be remitted to the High Court for calculation of the appropriate amount.
[282] In our view, neither of these approaches is appropriate. If we were to take the mathematical approach suggested by Mr Ellis, the appropriate multiplier would be six, to reflect the six month difference between the period which the Judge said Mr Taunoa spent on BMR (26 months), and the period which he actually spent on BMR (32 months). Given the relatively small amount involved, we reject Mr Boldt’s submission that we should remit the matter to the High Court for decision.
[283] In view of our assessment that the awards made in the High Court were high, we have considered whether we should leave the amount awarded to Mr Taunoa undisturbed. We have decided that it would be unjust to do so, given the factual error made by the Judge. It seems clear that if he had been aware of the correct facts, he would have made a higher award.
[284] The Judge’s award of $55,000 to Mr Taunoa assuming a 26 month period on BMR, reflected an indicative monthly rate of about $2,100. That, in turn, reflected Mr Taunoa’s own conduct during his second period on BMR. We take into account that the first period Mr Taunoa spent on BMR was less stressful for him (he was not regressed as occurred on his second period on BMR, and he did not engage in the same “battle of wills” as he did during his second period on BMR). Given that the extent of the Judge’s error was about six months, we believe that it is appropriate to increase the damages awarded to Mr Taunoa by $10,000, increasing the overall figure from $55,000 to $65,000.

Conclusion: cross-appeal

[285] We would therefore allow the cross-appeal in two respects only. We would increase the compensation payable to Mr Taunoa by $10,000 to correct the error made by the Judge in his calculation. We would quash the High Court Judge’s finding that there was no breach of s 9 of the Bill of Rights in relation to the treatment of Mr Tofts, and make a declaration that his detention on BMR was in breach of that section. We would dismiss the cross-appeal in all other respects.

Costs

[286] The respondents are entitled to costs. Mr Ellis sought costs equal to the total costs incurred and paid by the Legal Services Agency, which was the basis on which costs were awarded in the High Court. Mr Boldt asked that costs issues be reserved and that counsel be provided with an opportunity to file memoranda. We are satisfied that this is not necessary in this case. In our view, the approach taken in the High Court is equally appropriate in this Court. Accordingly, we would award to the respondents costs equal to the total costs incurred and paid by the Legal Services Agency in relation to the appeal, as well as usual disbursements.

HAMMOND J

[287] I agree that there have been breaches of the New Zealand Bill of Rights Act 1990 (BORA) with respect to the cases which are before us, and that the relief should be as confirmed in the judgment of O’Regan J, with respect to all the claimants save Mr Tofts. In my view, his award should be increased, on the cross-appeal, for the reasons which follow in this judgment.
[288] It is necessary first to articulate the basis for an award of damages in a BORA context, and then to apply that law to Mr Tofts’ case.
[289] In light of what I have to say hereafter, I record that in my view the consideration of the damages awards by Ronald Young J in the High Court was too narrow: the reference to tortious analogies was an appropriate consideration, but not the only or a determinative point of reference. However, even when considered in the broader frame of reference which I will endeavour to articulate in this judgment, those awards (apart from Mr Tofts’) should stand.

The nature of damages under BORA

[290] Historically, unlawful administration by public bodies or administrators has not entitled an injured party to compensation (de Smith, Woolf and Jowell, Judicial Review of Administrative Action (5^th ed, 1995) at para 19-003). Nevertheless, increasingly the view has been expressed by jurists and law reform agencies throughout the common law world that the time is right for a review of the ability to award damages against state agencies. The reasons for this are complex, though the main outlines of the argument are easily discernible: the state should be seen as “just another citizen”, albeit a rather important one; “justice” concerns; and concerns about the effectiveness of other remedies (“money talks” is thought to have real force).
[291] The first issue is of course whether damages should be available at all under the BORA. If they are, how such damages or compensation are to be approached is then a matter of both conceptual and practical importance.
[292] Senior appellate courts have had little difficulty in rejecting the argument that damages under legislation of this character should be characterised as damages for a breach of statutory duty in the conventional sense. Once that approach is put to one side, the alternative approaches have been to characterise such damages as stemming from either an entirely new public law remedy, or from what, conceptually, would amount to a constitutional tort.
[293] The argument for the first approach is that, where the right breached is contained in a constitutional instrument, the damages awarded should be regarded as a stand-alone public remedy of constitutional damages.
[294] This was the approach taken by the Privy Council in Maharaj v Attorney-General of Trinidad and Tobago (No 2) [1978] UKPC 3; [1979] AC 385. There, where a barrister was wrongly committed for contempt, his constitutional right not to be deprived of his liberty without due process of law was not defeated by a public policy rule that a Judge cannot be liable for anything done in the purported exercise of his judicial function. Lord Diplock said:

The claim for redress under section 6(1) for what has been done by a judge is a claim against the state for what has been done in the exercise of the judicial power of the state. This is not vicarious liability; it is a liability of the state itself. It is not a liability in tort at all; it is a liability in the public law of the state, not of the Judge himself ... (at 399).

[295] In Simpson v Attorney-General (Baigent’s Case) [1994] 3 NZLR 667 this Court reached the same conclusion after concluding that a remedy in damages was available, despite the absence of a remedies provision in the BORA. The Court took the view that the BORA implied that effective remedies should be available for its breach and held that the action in damages is a public law action directly against the state for which the state is primarily liable.
[296] In Manga v Attorney-General [2000] 2 NZLR 65, I said:

Cases based upon violations of the Bill of Rights are about the vindication of statutory policies which are not “just” private: they have over-arching, public dimensions. The context of such a proceeding necessarily changes, in at least three ways. First, the case is not a winner takes all kind of case. Damages are an economic concept. Bill of Rights cases routinely involve a rearrangement of the social relations between the parties, and sometimes with third parties. The object is to promote mutual justice, and to protect the weak from the strong. Secondly, the future consequences of such a case are every bit as important as the past, and the particular transgression. Thirdly, there is a distinct interface with public administration, and indeed, the governance of a given jurisdiction (at [126]).

[297] An alternative conceptual approach is more akin to a “private law” approach, and involves treating incursions on human rights as breaches of a constitutional tort. This is essentially the United States’ approach. In the United States, damages for a breach of constitutional rights can be awarded either under a tortious cause of action created by the Civil Rights Act 1871 (now 42 United States Code § 1983), or, in some cases, directly under the Constitution. But the United States Supreme Court has stressed that unless actual damage is proved, there will be only nominal damages. For instance, in the well-known case of Carey v Piphus [1978] USSC 41; (1978) 435 US 247 two students suspended from school in breach of due process rights were awarded $1. Or even more emphatically, in Memphis Community School District v Stachura [1986] USSC 147; (1986) 477 US 299, Powell J (writing for the Court) stated that there was no room for “non-compensatory damages measured by the jury’s perception of the abstract “importance” of a constitutional right” (at 309-310), and that damages were not necessary to vindicate the constitutional rights that § 1983 protects. The United States Supreme Court has also fashioned a damages remedy against federal officials under the US Bill of Rights itself in another well-known case - Bivens v Six Unknown Agents of the Federal Bureau of Narcotics [1971] USSC 133; (1971) 403 US 388. There it was held that there was power to provide a remedy to compensate for an unlawful search and assault, although the Fourth Amendment made no express provision for damages. Bivens has since been extended to areas such as sex discrimination and a failure to provide proper medical care in prison (Carlson v Green [1980] USSC 67; (1980) 446 US 14).
[298] Some difficulty arises in hybrid situations where there is wrong-doing which is both actionable in tort, and a breach of BORA. In Manga I adopted essentially a “top-up” approach on this issue: the tort damages should be calculated first, and then “topped up” if they would not otherwise reach an acceptable measure for BORA purposes. In Dunlea v The Attorney-General [2000] NZCA 84; [2000] 3 NZLR 136 this Court was confronted with a case in which damages were claimed for unreasonable searches under BORA, in addition to compensation for the torts of assault, false imprisonment, and trespass to the person and property. The Court expressly declined to treat the case as an opportunity to resolve the question of whether a different approach should be adopted towards fixing compensation under BORA compared to fixing damages for tort arising out of essentially the same facts. Nevertheless, the view was expressed (obiter) that there are strong reasons for not adopting a different approach. This was because, first, in most cases of a BORA breach, the plaintiff also has a right to damages in tort. Secondly, an extensive survey conducted by the Law Commission concluded (see Dunlea at [39]) that the number of cases where damages are awarded is not high and that the Courts draw on tort principles when calculating damages. Thirdly, in any event, the tort award of damages requires an assessment to be made of the particular circumstances of the unlawful act, including the value of the right infringed, both generally and to the individual.
[299] Without rehearsing them, in the interests of brevity, some academic and professional concerns were expressed that Dunlea may well have heralded a retreat from the “public law remedy” established in Baigent’s Case. But as a matter of precedent, Baigent’s Case has not been over-ruled; and it is consistent with the Privy Council jurisprudence.
[300] That said, I add these considerations. To move to a “tort-based” approach raises its own kinds of conceptual and practical difficulties. Damages in tort are generally recoverable as of right, whereas public law remedies are traditionally “discretionary”. Common law principles such as causation, remoteness, and mitigation may not fit well with cases where fundamental rights have been breached; neither do the old common law distinctions between compensatory, aggravated and exemplary damages. As I put it in Attorney-General v Udompun [2005] NZCA 128; [2005] 3 NZLR 204 “the private law tail should not be permitted to wag the public law dog” at [206]). I consider that if damages under the BORA are regarded as a form of public law remedy the Court can be more flexible: common law distinctions could be applied where suitable or by analogy but a different approach could be taken where cases require it. To take two simple illustrations, a claimant should not recover for loss which could have been avoided; and a claimant’s own “wrong-doing” or provocative conduct (see Lane v Holloway [1967] EWCA Civ 1; [1968] 1 QB 379) could be taken into account - although as I cautioned in Udompun at [215] there is danger in pressing these “contributory” or “personal factor” concerns too far.
[301] In short, this is pre-eminently an area in which the compensation should be tailored to the particular interest protected; in the particular contextual setting - including giving “full and proper recognition ... to the “public” dimensions of the breach of rights” (Udompun at [214]). The heavy hand of the older common law principles should not operate restrictively; but neither should the sort of guidance hard won over centuries of adjudication in those cases lightly be put to one side.
[302] Finally, this kind of approach appears to have been supported by the Judicial Committee of the Privy Council. In Attorney-General of Trinidad and Tobago v Ramanoop [2005] UKPC 15; [2005] 2 WLR 1324 (a case involving “quite appalling misbehaviour by a police officer”) Lord Nicholls of Birkenhead said:

When exercising this constitutional jurisdiction the court is concerned to uphold, or vindicate, the constitutional right which has been contravened. A declaration by the court will articulate the fact of the violation, but in most cases more will be required than words. If the person wronged has suffered damage, the court may award him compensation. The comparable common law measure of damages will often be a useful guide in assessing the amount of this compensation. But this measure is no more than a guide because the award of compensation under section 14 is discretionary and, moreover, the violation of the constitutional right will not always be co-terminous with the cause of action at law.

An award of compensation will go some distance towards vindicating the infringed constitutional right. How far it goes will depend on the circumstances, but in principle it may well not suffice. The fact that the right violated was a constitutional right adds an extra dimension to the wrong. An additional award, not necessarily of substantial size, may be needed to reflect the sense of public outrage, emphasise the importance of the constitutional right and the gravity of the breach, and deter further breaches. All these elements have a place in this additional award. “Redress” in section 14 is apt to encompass such an award if the court considers it is required having regard to all the circumstances. Although such an award, where called for, is likely in most cases to cover much the same ground in financial terms as would an award by way of punishment in the strict sense of retribution, punishment in the latter sense is not its object. Accordingly, the expressions “punitive damages” or “exemplary damages” are better avoided as descriptions of this type of additional award.

For these reasons their Lordships are unable to accept the Attorney General’s basic submission that a monetary award under section 14 is confined to an award of compensatory damages in the traditional sense. ... (at [18], [19] and [20]).

[303] That view was reaffirmed very recently by the Judicial Committee of the Privy Council in Merson v Cartwright and the Attorney-General [2005] UKPC 38.

Mr Tofts

[304] I turn now to the specific case of Mr Tofts.
[305] O’Regan J has helpfully dealt with the factual context of Mr Tofts at [212] of his judgment, and following. I am content to adopt O’Regan J’s summary of the facts, save that in my view the suggestion of “conflicting evidence” from the experts as to the position of Mr Tofts in [222] is too strong. I agree with the summary in [223].
[306] The short point is that Mr Tofts - a man with known mental problems arising out of a prior physical injury, which had generated distinct medical and psychiatric problems - was foolishly put into BMR, with the consequential difficulties for him which have been noted.
[307] I accept that there was a clear breach of s 23(5) of the BORA, and indeed the Crown does not contend otherwise. I also agree that s 9 of the BORA was here transgressed, in that what occurred here amounted to (at least) “disproportionately severe treatment”.
[308] As Conor Gearty rightly says in his Principles of Human Rights Adjudication (2004) at 96, “gone are the days (if they ever existed) when [even the equivalent of s 23(5), namely Article 3] was a mere long stop against unthinkably appalling systematic state violence”. And after discussing the authorities Gearty, again in my view rightly, notes:

It is in our treatment of prisoners and asylum seekers that we are most likely to be tempted to gloss over our human rights obligations. When it comes to interpreting Article 3 [s 23(5)] it would seem that the judiciary is wavering between, on the one hand, accepting the moral imperative to accord all persons before them this most basic of human rights [human dignity], and on the other hand an appreciation that the Convention cannot and should not be used to restructure Britain’s penal and immigration policies, matters that clearly belong in the political domain and are indeed highly controversial within it.

[309] I come at it this way. I accept at once Beyleveld and Brownsword’s general observation that “the concept of human dignity ... is something of a loose cannon open to abuse and misinterpretation” (“Human Dignity, Human Rights and Human Genetics” (1998) 61 MLR 661 at 662). In law, context is all and it is how something operates “on the ground” which is so distinctly important.
[310] That said, this is an easy case which does not raise the difficulties of cultural dependence, consensus, or infinite malleability which are so troublesome in the area of what “human dignity” entails. The literature on incarceration is overwhelmingly critical of the effect of the disproportionately severe infliction of mental harm on incarcerated persons, who are almost inevitably not in a position to respond. The mentally afflicted are thereby doubly accursed.
[311] For those reasons, I agree with my colleagues that it is entirely appropriate to make a declaration that s 9 was breached with respect to Mr Tofts. But once the s 9 threshold is crossed, to my mind the case takes on a different hue again. When Mr Tofts (as here) is a successful s 9 plaintiff, he is an exemplar of state wrongdoing. He comes much closer to a plaintiff who should, were they available, have exemplary damages. I acknowledge that in Dunlea v The Attorney-General [2003] 3 NZLR 136 Keith J at p 148 left open the question as to whether exemplary damages could be awarded under BORA. See also Thomas J at pp 158 - 160. For my part, I share that caution.
[312] Here, what the Judge did was to proceed as if Mr Tofts case was a “top-end” s 23(5) plaintiff. He was clearly right, with respect, to go that far. But once the importance of the additional breach is recognised, then I think the award should be distinctly adjusted, upwards. I would award Mr Tofts $40,000 damages.

Solicitors:
Crown Law Office, Wellington for Appellants
N B Dunning, Wellington for Respondents

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