Taylor v Chief Executive of the Department of Corrections [2013] NZHC 2953 (8 November 2013)

Last Updated: 11 November 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-2062 [2013] NZHC 2953

BETWEEN ARTHUR WILLIAM TAYLOR Applicant

AND CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Hearing: 30 October 2013

Counsel: R K Francois for Applicant

A M Powell and S M Kinsler for Respondent

Judgment: 8 November 2013

_{JUDGMENT OF HEATH J}

This judgment was delivered by me on 8 November 2013 at 4.00pm pursuant to Rule

11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Crown Law, Wellington Warren Simpson, Papakura Counsel:

_{R K Francois, Auckland}

TAYLOR v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2013] NZHC 2953 [8

November 2013]

Contents

The application [1]

Mr Taylor’s challenges to the smoke-free policy [3] The prison environment [9] Mr Taylor’s history [19] TVNZ’s application to interview Mr Taylor [25] Mr Taylor’s application for judicial review [32] Analysis

(a) Legal principles [37]

(b) Was there a reviewable error? [49] (c) Alleged factual errors [57] Result [65]

The application

[1] Mr Taylor is a serving prisoner at Auckland Prison, commonly known as Paremoremo. Having previously been a “maximum security” prisoner, Mr Taylor is presently classified as “high security”. He seeks judicial review of a decision made by an authorised delegate of the Chief Executive of the Department of Corrections (the Chief Executive), by which a request from Television New Zealand (TVNZ) to interview Mr Taylor on a “face-to-face” basis was rejected.

[2] TVNZ’s request to interview Mr Taylor arose out of previous proceedings in this Court, in which Mr Taylor had successfully challenged the legality of steps taken to create a “smoke-free” environment in prisons throughout the country.¹ During his lengthy time in custody, Mr Taylor has honed skills in crafting and presenting legal arguments to promote prisoners’ rights.

Mr Taylor’s challenges to the smoke-free policy

[3] In June 2010, the Chief Executive announced a policy designed to make New Zealand prisons “smoke-free”, from 1 July 2011. He directed prison managers to introduce a rule prohibiting smoking in all areas of all prisons, in accordance with a template provided. The Chief Executive’s objective was “to implement the Department’s policy decision that except for designated smoking areas outside the secure prison perimeter, the prison estate would be smoke-free from 1 July 2011”. The rule was purportedly made under s 33 of the Corrections Act 2004 (the Act). Insofar as it deals with the Chief Executive’s powers, s 33 states:

33 Manager may make rules for prison

(1) The chief executive may, subject to subsection (6), authorise the manager of a corrections prison to make rules that the manager considers appropriate for the management of the prison and for the conduct and safe custody of the prisoners.

...

(3) An authorisation given by the chief executive ... under subsection (1)

... may be subject to—

(a) any conditions imposed by the chief executive ... ,

(b) any limitations placed on the scope or subject matter of the rules by the chief executive ...

(4) Any rules made under subsection (1) ... may be revoked at any time by the prison manager and,—

(a) in the case of rules made by the manager of a corrections prison, by the chief executive:

...

(5) Any rules made under subsection (1) ... must not be inconsistent with this Act, the Sentencing Act 2002, the Parole Act 2002, or any regulations made under any of those Acts.

(6) No rules may be made under this section that relate to matters for which rules must or may be made under section 45A.

[4] The manager of Auckland Prison made a rule to that effect. Mr Taylor challenged its validity. On an application for judicial review, Gilbert J upheld Mr Taylor’s challenge, in a judgment given on 20 December 2012.² The Judge declared that a rule that purported to ban smoking in all areas, including prison cells and open areas, “was unlawful, invalid and of no effect”.³ While accepting that s 6A of the Smoke-Free Environments Act 1990 had provided specifically for the regulation of smoking in prisons, Gilbert J concluded that the particular rule that the Chief Executive authorised prison managers to make fell outside of the powers conferred upon him by s 33.⁴

[5] Gilbert J heard the application for review on 7 August 2012. After he reserved judgment, but before it was delivered, an Order in Council was

² _{Taylor v Manager of Auckland Prison [2012] NZHC 3591.}

³ _{Ibid, at para [40].}

⁴ Ibid, at para [28]. Section 33 is set out at para [3] above.

promulgated (purportedly pursuant to regulation-making powers conferred by ss 200 and 201 of the Act), by which a new reg 32A of the Corrections Regulations 2005 (the Regulations) was enacted. That regulation purported to declare tobacco (and any equipment used for smoking it) to be an unauthorised item in a prison. If that regulation were valid, inmates could not have such items in their possession or use.

[6] Sections 200(1)(a)(i), (b)(i) and (d)(i) and 201(a) of the Act provide:

200 Regulations

(1) The Governor-General may, by Order in Council, make regulations—

(a) ensuring the good management of—

(i) prisons:

...

(b) prescribing the powers and functions of—

(i) staff members of prisons:

...

(d) providing for the management, care, treatment, well-being, and reintegration into the community of the following persons:

(i) prisoners:

...

201 Regulations relating to good management of corrections system

Regulations made under section 200(1)(a) may include (without limitation)

provisions—

(a) regulating the admission of prisoners to prisons and their discharge from prisons:

....

[7] On 7 January 2013, Mr Taylor issued a fresh proceeding in which he challenged reg 32A. That application also succeeded.⁵ In his judgment of 3 July

2013, Brewer J took the view that the regulation was not authorised by the relevant parts of ss 200 and 201 of the Act, and was not necessary to give effect to the

policies underlying the Smoke-Free Environments Act 1990. Section 6A(1) of that Act required a superintendent of a prison to ensure that a written policy on smoking in prison cells was in place “for the protection of the health of employees and inmates”.

[8] Both Gilbert and Brewer JJ took the view that the 1990 Act focussed (to use Brewer J’s words) “on reducing harm to those who do not smoke or who do not wish to smoke in prison” and while not conferring “a right to smoke” recognised that there was one.⁶

The prison environment

[9] The issues arising on the appeal involve the balance to be struck between the need to maintain order in a prison and the human rights of its inmates. To understand the circumstances in which the Chief Executive’s delegate made his decision, it is necessary to explain the nature of the relevant prison environment.

[10] Mr Sherlock is the Manager at Auckland Prison. While classified as a “minimum to maximum security facility”, it is “specifically designed to house the highest risk offenders in New Zealand”. The prison has a total capacity of 681 inmates. The muster, as at 9 October 2013,⁷ was 618.

[11] There are three separate parts to the prison, each physically separated from the other. They are:

(a) East Division: This contains 261 beds in four blocks (A–D), a special needs unit, a detention unit and an “at risk” unit. This division holds “maximum” and “high” security prisoners.

(b) West Division: This consists of five units with a total of 240 beds.

_{(c) Three satellite units, each containing 60 beds.}

⁶ _{Ibid, at para [30].}

⁷ The date on which Mr Sherlock swore his affidavit.

[12] Mr Taylor is housed in East Division. Mr Sherlock deposes:

East Division

5. ... East Division is designated to manage Maximum and High security classified prisoners. In general terms all male maximum security prisoners are placed in East Division but some can be held at other sites for short periods of time (for court cases or awaiting transfer). Reflecting the risk they pose to public safety, levels of non- compliance, and the tendency to exploit opportunities to circumvent security, the prisoners in East Division are subject to the highest level of control and restriction in the prison system. A significant number of the prisoners in East Division have committed violent offences. Approximately 60% have assaulted Corrections staff from around the country.

6. East Division houses a range of prisoner categories, from those on voluntary segregation, directed segregation (normally for assaulting staff or other prisoners), those with forensic needs prisoners at risk of self harm and those considered mainstream prisoners.

The facility

7. East Division is a tightly controlled environment. There is a higher staff to prisoner ratio than at other prisons throughout the country. Prisoner movements are highly restricted. To illustrate this, the norm throughout the country’s prisons would be to see one staff member per 12 prisoners. In East Division some prisoners may only be moved by three or more staff. Most of East Division also operates a “6:6 routine” where only six prisoners mix or associate with each other at a time for unlock, and only six are unlocked at a time, on each landing. (The exception to this is the Special Needs Unit and one landing in B Unit, where there is a more open environment operating and groups of twelve prisoners are allowed to mix or be unlocked at a time).

(Emphasis added)

[13] Because of its nature, there are a higher proportion of experienced staff in East Division than in other facilities. There are approximately 40 dedicated staff members who administer Blocks A–D. A custodial support unit escorts prisoners when they are required to move outside of the units, to areas such as medical and receiving offices.

[14] Eating arrangements in East Division are also tightly controlled, to reduce risk to staff and to limit ‘prisoner on prisoner’ confrontation. By way of illustration, while at all other prisons inmates will eat meals together in a dining room, at East Division breakfasts and lunches are delivered to prisoners in their cells by putting

them on trays into food slots, which are hatches attached to cell doors which can be locked and unlocked by padlock.

[15] Prisoners in East Division typically have two hours per day when they are unlocked from their cells. One hour of “unlocked” time is used for exercise in the outside yard. The other hour is spent on the landing (generally) cleaning that area, and for the inmates’ ablutions. Generally, only six prisoners are allowed to mix or associate with each other at any particular time.

[16] In the context of the request for a television interview, the arrangements for visits assume some importance. Mr Sherlock deposes:

11. Prisoners at East Division receive visitors but these visits are conducted on a non-contact basis. There are two options for handling visits. The first is in booths which have a barrier between the visitor and the prisoner. These are generally used for identified drug users or in special cases such as where lawyers wish to meet with a prisoner or where a visitor has a hearing difficulty. Because of their small size, they are only suitable for visits by a single person. The second option is in an open plan area where prisoners are separated from their visitors by a metal grille and a Perspex barrier. The barrier ensures there is no contact between the prisoners and the visitors and in particular that no items can be passed over. I attach a photograph of the visitor area as RTS-4.

12. All of these physical and staffing arrangements reflect the fact that there are heightened security risks when these prisoners are not locked in their cells.

[17] Mr Sherlock deposed that a filmed interview would not physically be possible in either the booths or the open plan visitor area. Most of the other rooms in East Division were too small to conduct the type of interview proposed. That was because of the need for at least three prison officers to be present with Mr Taylor at any one time, and the need for cameras and lighting to conduct the interview.

[18] Two larger rooms were identified as possible venues for the proposed interview. One was the prison chapel and the other the parole board room. Mr Sherlock continued:

15. The chapel is used for religious services for the various denominations of those prisoners who wish to worship. It has been used for other purposes as well, but this is more limited because the

room is not secure. An example of where the chapel has been used for contact visits would be where approved family members are allowed in for a memorial service in the event of a death in a prisoner’s family. There have been occasional incidents in the chapel over the years that have required the deployment of specialist control and restraint staff. Recently, two prisoners in the chapel became agitated and an assault occurred. The chaplain activated a radio alarm and a control and restraint team was deployed to regain control.

16. The parole board room is similar. Its primary use is for parole board hearings which today are increasingly conducted by video link. The room is fitted out with video equipment and a table and chairs. Prisoners are not allowed into the room by themselves. The room has seen a range of incidents over the years, as from time to time parole board hearings have the potential to create unrest when prisoners are unsatisfied with the hearing.

17. The safe management of high risk prisoners involves controlling the movements of the prisoner whenever they are outside their cell and reducing environmental risks as much as possible. There is significant scope for unpredictable behaviour in these larger rooms. Neither the Parole Board room nor the chapel has a barrier which is usually used to separate prisoners from visitors. These rooms contain furniture and items that may be used as a weapon. For the officers to remain out of the camera shot they would need to be at some distance from Mr Taylor and the interviewer.

Mr Taylor’s history

[19] It is fair to say that Mr Taylor is one of the more notorious prison inmates in New Zealand. Now aged 57 years, Mr Taylor has spent most of his adult life in prison, his first recorded convictions in the District Court having been entered as long ago as 1975. His statutory release date is in 2022.

[20] Mr Taylor’s criminal record is extensive. There are multiple convictions for aggravated robbery, firearms offences, burglary and receiving stolen property. He has also offended while in custody; that offending includes actual (and attempted) escapes. Two illustrations of offending while in prison, both within the last 10 years, are instructive.

[21] On 16 December 2004, police officers searched a storage unit at Auckland Prison that had been let to Mr Taylor. During the course of the search, cannabis oil, cannabis plant, morphine sulphate tablets, precursor substances for the manufacture of methamphetamine, a .22 calibre pen gun, a Browning .270 Winchester calibre

rifle, a Benelli semi-automatic shotgun, a pistol (being a cut-down semi-automatic Ruger .22 rifle), assorted ammunition, home-made pipe bombs, a stolen Hewlett Packard laptop computer and stolen Samsung and Nokia cellphones were located. Mr Taylor was convicted on charges that arose out of that search.⁸

[22] Mr Taylor was later tried on a separate charge of conspiracy to supply methamphetamine, arising out of events that occurred in 2007. Mr Taylor was found guilty by a jury. He was sentenced by Wylie J on 19 May 2011 to a term of imprisonment of seven years. Referring to sentences that Mr Taylor was, at that time serving, the Judge said:⁹

[64] You are currently subject to sentences imposed in 2007, 2008, and 2011. In 2007 you were sentenced to concurrent sentences, the longest being four years’ imprisonment for a range of firearms and drug charges. In 2008, you were subject to a cumulative sentence of four years imprisonment for escaping from custody and concurrent sentences of one year on three charges of kidnapping. On 27 April 2011, you were further sentenced to a concurrent sentence of five months for intentional damage.

[65] In my view, it is appropriate that the sentence I have passed on you should be imposed cumulatively on the determinate sentences which you are currently serving. The present offending is unrelated, and it was committed while you were serving sentences for further offending. ...

[23] Mr Sherlock describes Mr Taylor as a prisoner who “has frequently displayed unco-operative behaviour inside the prison”, and as someone whom authorities manage “on the basis that he will test boundaries and take any opportunity to circumvent restrictions and security”. Mr Sherlock considers that Mr Taylor is “a high security risk because of his unpredictability and volatility”. His “seniority” among other prisoners in East Division is regarded by Mr Sherlock as presenting “a risk of encouraging or inciting other prisoners to assist him from within the prison”. All of those factors have led to a “heightened security concern whenever Mr Taylor is out of his cell”. Mr Sherlock identifies a particular behavioural difficulty; namely

_{rapid changes in Mr Taylor’s mood. He says that Mr Taylor can present “as calm}

⁸ My summary is taken from the Court of Appeal’s judgment of 26 June 2007, in which it dismissed Mr Taylor’s appeals against convictions and sentences on subsequent charges of possessing controlled drugs and precursor substances, possession of firearms and ammunition and receiving the computer and cellphones. In all, there were 15 counts in the indictment; Mr Taylor was convicted on each. See R v Taylor [2007] NZCA 258 at paras [1] and [2].

⁹ R v Taylor HC Auckland CRI-2010-404-355, 19 May 2011 at paras [64] and [65].

and in control one minute then swing into disorderly, threatening, or violent

behaviour the next”.

[24] Although Mr Taylor disputes the nature of a “kidnapping” incident, Mr Sherlock gave evidence about his seven convictions for escaping from custody, the most recent of which was said to be “kidnapping two prison guards at apparent gunpoint while he was being transported to a Family Group conference relating to one of his children”.

TVNZ’s application to interview Mr Taylor

[25] By letter dated 20 March 2013, Ms Lisa Owen, a reporter for TVNZ, wrote to a representative of the Chief Executive to seek permission “to record a face to face on camera television interview with [Mr] Taylor”. Ms Owen advised that the interview was, principally, for TVNZ’s news programmes and Internet news service. She identified, as the focus of the interview, Mr Taylor’s involvement in litigation challenging rules instituted as part of the smoking bans in prison, and Gilbert J’s decision.

[26] In relation to the content of the proposed interview, Ms Owen said:

The focus of the interview would be around the legal challenges taken up by Mr Taylor and his reasons for pursuing these matters through the courts, his view of the Corrections Amendment Bill now enshrining the ban in law, the ban itself, the consequences of Justice Gilbert’s ruling and any subsequent declaratory judgments and his future plans in terms of compensation. An interview would also cover Mr Taylor’s self-education in the law over the past fifteen plus years.

Mr Taylor has as mentioned educated himself in the law while in prison and is regarded as a formidable courtroom opponent. Choosing the exercise legal options (above others) to challenge what one disagrees with and pursuing an education must be regarded as positive moves and messages.

Mr Taylor has been filmed numerous times over the years at various court appearances and therefore is likely to have been seen by his victims on the television.

As TVNZ is only requesting permission to interview Mr Taylor on camera, there should be no issues regarding the privacy of other prisoners.

[27] As required by reg 108(2) of the Corrections Regulations 2005¹⁰ (the

Regulations) Mr Taylor gave his consent to an interview. In doing so, he wrote:

Corrections allowed interviews with about 3 – 4 carefully selected prisoners (who espoused limited support for the ban) prior to it coming into force. Following Justice Gilbert’s judgment, Prisons General Manager Brendon Anstiss made claims in the media and on national television, including TVNZ news on 24 December 2012, that portrayed the ban as nothing but positive. Statements he made were misleading and contrary to the sworn evidence in both smoking ban cases and it is in the public interest that such coverage be balanced (the relevant standard in the Code of Broadcasting Standards requires this) and that both sides of the issue are placed before the public so they are properly informed.

I wish to exercise my right to freedom of expression (right to impart information and opinions of any kind in any form) as affirmed in section 14 of the NZ Bill of Rights Act 1990 and I request that Corrections authorise and facilitate an interview between myself and Television NZ reporter Lisa Owen (or someone else of her choice) in relation to the two smoking ban cases, the evidence that related to them and the issues they raise.

[28] Shortly after that correspondence, Mr Arbuckle,¹¹ acting as the Chief Executive’s delegate, declined the request. Mr Arbuckle said that he did not “believe that the exposure [Mr Taylor] would receive as a result of [the] interview would benefit his rehabilitation”.

[29] Mr Taylor’s Statement of Claim was filed on 19 April 2013, after Mr Arbuckle’s decision. At some point, the Chief Executive accepted an error in Mr Arbuckle’s approach to the original application, namely the absence of any consideration of the mandatory provisions of reg 109(3).¹² In late May 2013, TVNZ’s Editor Daily Programmes, Mr Gillespie, sought reconsideration of Mr Arbuckle’s decision. In doing so, he drew attention to reg 109. The Chief Executive agreed to reconsider.

[30] A number of Mr Taylor’s complaints were directed to the first decision. I have not had regard to them. The decision with which I am dealing was made as a result of TVNZ’s request for its application to be reconsidered, and an Amended

_{Statement of Claim directed at the decision that followed.}

¹⁰ _{Set out at para [35] below.}

¹¹ _{General Manager, Governance & Assurance (Acting), Department of Corrections.}

¹² Set out at para [35] below.

[31] On the second occasion, the Chief Executive delegated Mr Carruthers, Acting

Deputy Chief Executive (the decision-maker), to make the decision. On 11 June

2013, declining the request for the interview, he wrote:¹³

REQUEST FOR INTERVIEW WITH PRISONER ARTHUR TAYLOR

I have been asked to consider an application for a face to face interview with

Arthur Taylor by TV1.

I have read and considered all of the information provided regarding TV1’s application for an on camera interview with Mr Taylor, including submissions made by Mr Taylor to the Court giving his reasons for participating in the camera interview.

I make my decision fully cognisant of the right to freedom of expression. I must also have regard to regulation 109 of the Corrections Regulations which requires me to be satisfied that:

1. The interests of people other than the prisoner concerned are protected; and

2. The security and order of the Prison is maintained.

I note in particular that the request is for a face to face on camera interview requiring an interviewer, a cameraman and a field producer to be present in the Maximum Security Prison.

I also note the offending history of Mr Taylor whilst in custody and I

particularly note additional information on Mr Taylor’s latest incident on 2

June 2013 where Mr Taylor jammed the lock of his cell, flooded the landing and started a small fire.

In all the circumstances I am not satisfied that:

1. The interests of people other than the prisoner concerned are protected.

These concern the risks to the safety of the TV1 crew and the impact

on current and former staff directly affected by Mr Taylor’s actions.

2. The security and order of the Prison is maintained.

Mr Taylor is an unpredictable and manipulative Maximum Security Prisoner. His latest conduct clearly shows his volatility and unpredictability.

I have had regard to the submission of the Prison Manager of Auckland Prison and agree with his view that a face to face on camera interview would put at risk the good order of New Zealand’s Maximum Security Prison.

13. The reference to consideration of submissions made by Mr Taylor to the Court is to this proceeding, in its original form: see para [29] above.

My decision is that the application to allow a face to face on camera interview with Arthur Taylor by TV1 is declined.

(Emphasis added)

Mr Taylor’s application for judicial review

[32] The application has been brought by Mr Taylor, as a person affected by the decision not to allow the interview to take place. No point has been taken about his standing to do so. The actual applicant for the interview, TVNZ, has not sought judicial review of the decision. Nor has it attempted to intervene in the present proceeding. The issue has been framed as one involving prisoners’ rights, as opposed to those of the media. That is the context in which the tension between policies underlying freedom of expression and prison security must be considered.

[33] In the most general terms, Mr Taylor asserts that the decision-maker made material factual errors, overstated security concerns, and undervalued his right to freedom of expression.¹⁴ This, Mr Francois submitted on Mr Taylor’s behalf, made the decision “unreasonable” in an administrative law sense.

[34] Mr Powell, for the Chief Executive, contends that the decision was made on the basis of reg 109, the validity of which is not in issue.¹⁵ On the facts before him, Mr Powell submits that the decision-maker was entitled to reach the conclusion that he did.

[35] Relevantly, regs 108 and 109 of the Regulations state:

108 Restrictions on interviews and recordings

(1) Without first obtaining the written approval of both the chief executive and the prisoner concerned, no person may—

(a) interview a prisoner, for the purpose of—

(i) obtaining information and publishing or broadcasting it; or

¹⁴ _{New Zealand Bill of Rights Act 1990, s 14.}

¹⁵ Television New Zealand Ltd v Attorney-General [2004] NZCA 229; (2004) 8 HRNZ 45 (CA) at para [11]. This case involved the predecessor to reg 109 which was, in material terms, the same. See also, para [36] below.

(ii) publishing or broadcasting a transcript or description of the interview; or

(b) make a sound recording of a prisoner, or an interview with a prisoner, for the purpose of—

(i) broadcasting it; or

...

(c) make or take a film, photograph, videotape, or other visual recording of a prisoner, for the purpose of ... broadcasting it.

(2) Without first obtaining the written approval of both the chief executive and the prisoner concerned, no person to whom subclause (3) applies may—

(a) interview a prisoner; or

(b) make a sound recording of a prisoner, or an interview with a prisoner; or

(c) make or take a film, photograph, videotape, or other visual recording of a prisoner.

(3) This subclause applies to a person who is—

...

(b) a broadcaster or producer of radio or television programmes;

or

(c) a disseminator of news or opinion by electronic means; or

(d) a writer, a journalist (whether in electronic or print media), a radio or television broadcaster, or a producer of radio or television programmes; or

(e) an employee, contractor, or agent of a person described in any of paragraphs (a) to (d).

(4) In this regulation and regulation 109,—

(a) a reference to any film, information, interview, photograph, recording, transcript, or videotape includes a reference to any part of it:

(b) interview includes interview by telephone or electronic message:

....

109 Approvals

(1) The chief executive must, in deciding whether to give approval under regulation 108, have regard to the need to—

(a) protect the interests of people other than the prisoner concerned; and

(b) maintain the security and order of the prison concerned.

(2) The chief executive must not give that approval unless satisfied that the prisoner understands—

(a) the nature and purpose of the filming, interviewing, photographing, recording, or videotaping concerned; and

(b) the possible consequences to the prisoner and other people of the publication or broadcasting of the film, interview, photograph, recording, transcript, or videotape concerned.

(3) The chief executive may give that approval subject to any conditions reasonably necessary to—

(a) protect the interests of any person other than the prisoner; or

(b) maintain the security and order of the prison. (4) Subclause (1) is subject to subclause (2).

[36] I agree with Mr Powell that the validity of regs 108 and 109 is not in doubt. The predecessor of reg 109 was considered by the Court of Appeal in Television New Zealand Ltd v Attorney-General.¹⁶ The Court, in confirming their lawfulness, observed that there were sound policy reasons justifying limitations on news media interviews with serving prisoners McGrath J, for the Court, said:¹⁷

In a case in which an inmate who is fully informed of the implications of doing so desires to be interviewed, the inmate’s right to freedom of speech would support the application. In those situations the decision of the Chief Executive on an application for approval requires a balancing of that right against conflicting values. In the case of inmates who have been convicted of criminal offending the Chief Executive would have to take account of the interests of victims which is specifically addressed in reg 88(1)(a). It is also relevant that part of the effect of imprisonment as a punishment is curtailment of some freedoms including that of free speech. In a case in which an inmate who is fully informed of the implications of doing so desires to be interviewed, the inmate’s right to freedom of speech would support the application. In those situations the decision of the Chief Executive on an application for approval requires a balancing of that right against conflicting values. In the case of inmates who have been convicted of criminal offending the Chief Executive would have to take account of the interests of victims which is specifically addressed in reg 88(1)(a). It is also

¹⁶ _{Television New Zealand Ltd v Attorney-General [2004] NZCA 229; (2004) 8 HRNZ 45 (CA).}

¹⁷ Ibid, at para [16]. This case involved an application by TVNZ to interview Mr Ahmed Zaoui who was then detained under a warrant of commitment issued under Part 4 of the Immigration Act 1987.

relevant that part of the effect of imprisonment as a punishment is curtailment of some freedoms including that of free speech.

Analysis

(a) Legal principles

[37] The application for review falls to be determined on orthodox principles. It is important for me to approach the challenged decision of the Chief Executive’s delegate by putting myself in the same position in which he found himself when the decision was made and having regard only to information that was available to him. I must take care not to turn an assessment of the lawfulness and reasonableness of

the decision into an appeal on the merits, which does not exist.¹⁸ It is not for this

Court to second-guess prison officers’ assessment of the behaviour of a particular inmate, or the nature of any security threat he may pose. Such assessments are quintessentially for the officers engaged in management of the prison environment to make.

[38] Although Mr Francois put Mr Taylor’s case on a variety of legal bases, it

seems to me that to succeed he must establish that the decision-maker

(a) took into account irrelevant considerations;

(b) failed to take into account any relevant considerations;

(c) made some legal error in reaching the conclusion that an interview should not be permitted;

(d) proceeded on a misunderstanding of material facts; (e) was plainly wrong.

[39] From a legal point of view, the issue falls to be determined by reference to reg 109. That regulation confers a discretion on the Chief Executive to grant

_{(conditional or unconditional) permission for the interview to take place, or not to}

¹⁸ Compare with Townscape Akoranga Ltd v Auckland Council [2013] NZHC 2367 at para [49].

allow it at all. That discretion had to be exercised by reference to the Chief Executive’s primary obligation to ensure the maintenance of good order and security in the prison, a concept that embraces the need to protect the interests of persons other than the prisoner.¹⁹ The question is whether the decision-maker made any reviewable error.

[40] The existence of the reg 109(3) discretion necessarily means that the decision-maker must take into account other relevant factors (of which the right to freedom of expression is one), and balance them against the need for good order and security in the prison environment. In a finely balanced case, reg 109(3) makes it clear that the obligation to maintain good order and a secure environment prevails over the rights of individual prisoners.

[41] The type of situation in which an interview with a journalist might be permitted is illustrated by R v Secretary of State for the Home Department, ex parte Simms.²⁰ In that case, journalists wanted to interview two prisoners who had been convicted of murder but who continued to protest their innocence. Against the background of a number of miscarriages of justice that had come to light in the United Kingdom at a time proximate to its decision in 1999, the House of Lords

allowed an appeal and made declarations that the Home Secretary’s policy of refusing interviews and the Governors’ administrative decisions in consequence were both unlawful.

[42] The principal speech in the House of Lords was delivered by Lord Steyn.²¹

In the course of his judgment, Lord Steyn reviewed the nature of a sentence of imprisonment (the clear intention of which is to restrict the rights and freedoms of a prisoner, particularly those of freedom of movement and association), and the policies adopted by the Home Secretary designed to prevent interviews from taking

_{place, in the absence of exceptional circumstances.}²² _{His Lordship said that the issue}

¹⁹ _{Section 109 is set out at para [35] above.}

²⁰ _{R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 (HL).}

²¹ While other speeches were given, the one delivered by Lord Steyn is the most favourable to

_{Mr Taylor.}

²² R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 (HL) at 120–

121.

at stake was: “the rights of prisoners to be interviewed by journalists of the

prisoners’ choice”.²³

[43] Lord Steyn expressed the view that the starting point was the right of freedom of expression. He said that in “a democracy it is the primary right: without it an effective rule of law is not possible”. Nevertheless, his Lordship recognised that the right was not “absolute” and must sometimes “yield to other cogent social interests”.²⁴ Three broad objectives of the right were identified:²⁵

(a) to promote the self-fulfilment of individuals in society.

(b) to enable ideas to be expressed in a manner that enables them to be considered by a broader range of society. Lord Steyn expressly quoted what Holmes J had said in Abrams v United States: “the best test of truth is the power of the thought to get itself accepted in the competition of the market”.²⁶

(c) to act as the “lifeblood of democracy” by ensuring a free flow of information and ideas to inform political debate. It also acts “as a brake on the abuse of power by public officials” and “facilitates the exposure of errors in the governance and administration of justice”.

[44] Lord Steyn recognised that “not all types of speech have an equal value”. The need for an interview to take place was also to be informed by the fact that a sentence of imprisonment necessarily takes away certain human rights, notably those involving freedom of association and movement.²⁷ That circumstance means that there must be a particular focus on the qualitative nature of the free speech in issue.²⁸

[45] Lord Steyn approached the case before him with great emphasis on the nature of the specific issue in Simms; the prisoners’ desire to air their views on their

²³ _{Ibid, at 121.}

²⁴ _{Ibid, at 125.}

²⁵ _{Ibid, at 126–127.}

²⁶ _{Abrams v United States [1919] USSC 206; (1919) 250 US 616 (SC USA) at 630 per Holmes J (dissenting).}

²⁷ _{Compare with ss 17 and 18 of the New Zealand Bill of Rights Act 1990.}

28. R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 (HL) at 127, set out at para [45] below.

innocence publicly, in an attempt to gain support for reconsideration of the safety of their convictions.²⁹ His Lordship explained the reasons why a prisoner should not, ordinarily, be entitled to join public debate on wider issues of interest, saying:³⁰

In these respects the prisoners’ right to free speech is outweighed by deprivation of liberty by the sentence of a court, and the need for discipline and control in prisons. But the free speech at stake in the present cases is qualitatively of a very different order. The prisoners are in prison because they are presumed to have been properly convicted. They wish to challenge the safety of their convictions. In principle it is not easy to conceive of a more important function which free speech might fulfil.

[46] I detected (rightly or wrongly) a hint of reliance, in Mr Francois’ argument, on rights attaching to prisoners as a minority. That concept was considered recently by the Supreme Court of the United Kingdom, in the context of their ability to vote in general elections. In R (on the application of Chester) v Secretary for State for

Justice,³¹ in response to a submission directed to the rights of minorities,

Lord Sumption said:³²

The protection of minorities is a necessary concern of any democratic constitution. But the present issue has nothing whatever to do with the protection of minorities. Prisoners belong to a minority only in the banal and legally irrelevant sense that most people do not do the things which warrant imprisonment by due process of law.

[47] So, in considering whether the decision-maker made any reviewable error it is necessary to take those factors into account and to ascertain whether it was open to him to deny an interview. That issue involves consideration of reg 109, any relevant factors that ought to have been taken into account in exercising his discretion, and any irrelevant factors that the decision-maker may have relied upon in reaching his decision.

[48] I shall deal separately with a ground of review based on an allegation that the decision-maker made material errors of fact that vitiate his decision. The circumstances in which material error of fact may justify review may not yet be

_{settled. For present purposes, I apply what has been said in the Court of Appeal in}

²⁹ _{Ibid, at 127.}

³⁰ _Ibid.

³¹ _{R (on the application of Chester) v Secretary of State for Justice [2013] UKSC 63.}

³² Ibid, at para [112].

Daganayasi v Minister of Immigration³³ and by this Court, in Peters v Davison.³⁴ In those authorities, particularly in the judgment of Cooke J in Daganayasi, some support can be found for the proposition that when a decision-maker instructs another person to ascertain relevant facts and to report, he or she should bear responsibility if the report were misleading or inadequate.³⁵ I assume (without deciding) that the principle articulated by Cooke J in Daganayasi represents the current state of New Zealand law.

(b) Was there a reviewable error?

[49] I have set out at some length the context in which the decision-maker reached his decision. I did so because the way in which Mr Taylor has historically behaved in the prison environment and the unusual character of East Division were both weighty considerations in determining whether a decision to allow the interview to proceed could have been achieved consistently with good order and maintenance of security in the prison.³⁶

[50] The salient parts of the decision letter addressed the two factors to which reg 109(3) refers.³⁷ To recapitulate, the two reasons given for refusing the interview were:

(a) Concerns about the risks to the safety of the television crew and the impact on current and former staff who had been directly affected by Mr Taylor’s actions.

(b) Mr Taylor’s “unpredictable and manipulative behaviour” as a

maximum security prisoner.

[51] For the purposes of this part of my judgment, I assume that the factual bases on which the decision-maker proceeded were correct. Mr Taylor’s complaints about

_{the accuracy of some of the information on which the decision-maker appears to}

³³ _{Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA).}

³⁴ _{Peters v Davison [1999] 3 NZLR 744 (HC) (Anderson and Robertson JJ).}

³⁵ In particular, see Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at 145 and

_{149 (Cooke J), with Richmond P and Richardson J leaving the point open.}

³⁶ _{Corrections Regulations 2005, reg 109(3).}

³⁷ See para [31] above.

have relied will be addressed separately under that part of the claim that deals with alleged factual errors.³⁸

[52] The decision-maker requested (and received) information from other sources, both within and outside the Department of Corrections. That consisted of an internal memorandum from Mr Chris Wright (Principal Media Adviser), the letter from the Editor of Daily News programmes requesting a review of Mr Arbuckle’s decision, a copy of regs 108 and 109, a print-out of Mr Taylor’s criminal conviction history, Mr Taylor’s original Statement of Claim in this proceeding of 19 April 2013, Mr Taylor’s affidavit in support, a report from Mr Sherlock, a peer review of Mr Sherlock’s report by the Chief Custodial Officer, Mr Beales and advice from a National Intelligence Analyst.

[53] Assuming the factual information provided to the decision-maker was correct, I do not see any basis on which freedom of expression, in the form of an interview for a television programme about the smoke-free policy litigation, could outweigh concerns about the good order and security of the prison environment,

particularly in light of Mr Taylor’s criminal history.³⁹ Public debate on the “smoke-

free” policy issue has been informed by two reasoned judgments of this Court, both publicly available. In addition, both lawyers and academics specialising in human rights have been available to comment to media outlets on the public policy implications of the decisions. The addition of Mr Taylor’s voice to the debate would have added little, in the qualitative sense to which Lord Steyn referred in Simms.⁴⁰

[54] The limited areas in which an interview could have taken place, the number of prison officers that would have been required to allow the interview to take place safely, the inability of officers assigned to attend to Mr Taylor to respond promptly to any emergency calls within the prison while with him and Mr Taylor’s behavioural history all pointed to rejection of TVNZ’s request.

[55] My final point on this topic concerns the nature of a request under regs 108 and 109. A request for an interview by a representative of a news media outlet will

³⁸ _{See paras [57]–[64] below.}

³⁹ _{See in particular paras [20]–[23] above.}

⁴⁰ See paras [44] and [45] above.

necessarily require prompt attention, given the limited (so called) “news cycle”. It would be wrong in principle to require a decision-maker to obtain detailed information that may not be readily available. Delay is likely to prejudice a prisoner who wants to be interviewed. That is because it is likely to quell an immediate desire for information, within the relevant “news cycle”. The need for speedy consideration of information will necessarily be based on a degree of anecdotal evidence and prison officers’ assessments of the risks posed by a prospective interview of a particular prisoner. Such an approach is in the interests of the Chief Executive, the prisoner and the media.

[56] All that is required is for the decision-maker to address the mandatory considerations set out in reg 109(3) and to balance them against any countervailing interests, in this case freedom of expression. In this case, the decision-maker did consider freedom of expression in reaching his decision,⁴¹ so there is no question about failing to take account of a material relevant factor.

(c) Alleged factual errors

[57] Mr Francois submitted that the decision-maker made his decision of 11 June

2013 on the basis of four material factual errors:⁴²

(a) Mr Taylor did not, on 2 June 2013, (i) jam the lock of his cell,

(ii) flood the landing in the block in which he was housed and

(iii) start a small fire.

(b) Mr Taylor was not a maximum security prisoner at the time Mr

_{Carruthers made his decision, on 11 June 2013.}

⁴¹ _{See para [31] above.}

⁴² See the highlighted portions of Mr Carruthers’ decision, set out at para [31] above.

[58] Mr Francois also criticised one of the reports on which the decision-maker may have relied, in which it was stated that no prior interviews of this type had taken place within the relevant prison environment. In fact, as Mr Sherlock has subsequently accepted, television interviews were recorded in June 2011. On that occasion, two inmates were interviewed for the Campbell Live programme on TV3.

[59] This point can be dealt with briefly. The interviewees were chosen by prison authorities because they supported the smoke-free policy. The inmates were not named, giving their interviews anonymously. That being so, they were necessarily compliant and unlikely to cause disruption to prison order or security. Their situation was very different from Mr Taylor’s.

[60] Returning to the substantive criticisms of factual error,⁴³ Mr Francois contended that if correct information had been considered, the decision-maker’s concerns about prison security and order could not have been found to outweigh Mr Taylor’s right to freedom of expression.

[61] Dealing with each criticism in turn, Mr Powell submitted:

(a) At the time that the decision-maker made his decision, he had information in his possession that suggested that Mr Taylor had been responsible for jamming his cell door, flooding the landing and lighting a fire. The text message sent to a senior prison officer clearly came from within the prison environment, though there is no evidence about the identity of the source. While it is now acknowledged that the information was incorrect, it had no material bearing on the outcome because those incidents were used for the sole purpose of illustrating the type of behaviour of concern.

(b) So far as Mr Taylor’s security classification was concerned, the downgrading of Mr Taylor’s classification to “high security” did not take effect until 27 August 2013, after the date on which the decision to refuse an interview was made.

[62] There is substance in Mr Powell’s submissions. I am satisfied that the way in which the decision letter was written made it clear that the incidents in issue were illustrative of Mr Taylor’s past behaviour. Given the state of knowledge of Mr Taylor’s previous conduct in prison and his disciplinary record,⁴⁴ it is inevitable that the same conclusion about good order and maintenance of security would have been reached had the decision-maker relied only on correct reports from Mr Sherlock

and the intelligence analyst.

[63] In my view, there is no basis on which Mr Taylor can establish any reviewable error on the grounds of material error of fact, even on the assumed state of the law.

[64] It remains open for TVNZ (or any other media organisation) to make a fresh request for permission to interview based, among other things, on Mr Taylor’s change in security classification,⁴⁵ the fact that earlier interviews with other prisoners were held without incident in Auckland Prison,⁴⁶ and the possibility of conducting the interview in booths where prisoners are separated from visitors by a metal grill and a Perspex barrier.⁴⁷ Any such request would fall to be determined on its own merits at the time it is made.

Result

[65] Mr Taylor’s application for judicial review is dismissed.

[66] While there appears to be little point in making any order as to costs, I reserve the question. Any memorandum seeking costs shall be filed and served on or before 29 November 2013. If a memorandum were filed on behalf of the Chief Executive, the Registrar is directed to arrange a telephone conference before me, so

_{that further timetabling directions may be made.}

⁴⁴ _{See paras [20]–[24] above.}

⁴⁵ _{See para [61](b) above.}

⁴⁶ See para [58] above.

_{[67] I thank counsel for their assistance.}

_{P R Heath J}

Delivered at 4.00pm on 8 November 2013