Taylor v Chief Executive of the Department of Corrections [2015] NZHC 2196 (11 September 2015)

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UNDER THE	Judicature Amendment Act 1972, part 30 of the High Court Rules, the Declaratory Judgments Act 1908 and the common law
IN THE MATTER OF	an action for Judicial Review, and declarations
BETWEEN	ARTHUR WILLIAM TAYLOR Applicant
AND	THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Hearing:	15 May 2015
Counsel:	The applicant in person A M Powell for Respondent
Judgment:	11 September 2015
_Reissued:	_{15 September 2015}

This judgment was delivered by me on Friday 11 September 2015 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.

TAYLOR v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2015] NZHC 2196 [11

The legal matrix [7] The factual matrix [26] The security classification change and the proposed transition through Bravo Unit [30] The Ombudsman’s report [37] The complaints to the Prison Inspectorate and to the Visiting Justice [38] The Parole Board’s decision [47] Further proposal for transfer to Bravo Unit [48] The August security classification review [49] The STURP [61] The issues for determination [67] The change from “Good” to “Poor” [70] The override [88] Natural justice [101] Conclusions on reviewable error [105] Remedies and Mr Taylor's participation in the STURP [107]

[1] Mr Taylor is a serving prisoner. He seeks to impugn by way of judicial review a decision made in October 2014 assigning him a security classification of “High”. He says that the effect of that decision has been to impede his progress towards parole.

[2] Before turning to consider the substance of the application for review, however, it is necessary to say something about the way in which the claim progressed.

[3] Mr Taylor filed his claim in November 2014 and sought an urgent hearing. That was declined by Venning J on 4 February 2015, although his Honour considered that it should be afforded some priority. But by the time of the next conference in March, Mr Taylor had been assigned a new security classification of “Low-Medium” (which is the classification he said should have been assigned to him in 2014). Although counsel for the respondent suggested that the issues were therefore moot, Mr Taylor confirmed that he wished to pursue his claim on the basis that declarations of past illegality were sought which might be capable of founding some kind of retrospective relief.

[4] Progress was further slowed by interlocutory applications made by Mr Taylor by which he sought to join another prisoner to the proceeding and to cross-examine the key decision-maker, Ms Burns. Both those applications were, eventually, declined.¹There were also ongoing issues about discovery but these were largely resolved by consent.

[5] The substantive application was heard by me in May. Regrettably it has taken some time to complete this judgment.

[6] It is necessary to begin by setting out both the legal and factual background in some detail.

¹See the decision Taylor v Chief Executive of the Department of Corrections [2015] NZHC 902.

[7] Under s 47(1) of the Corrections Act 2004 (the Act) every prisoner serving a sentence of three months' imprisonment or more is required to be assigned a security classification. The section makes it clear that such classification is intended to reflect the level of risk posed by the particular prisoner both inside and outside prison, including the risk of escape and the risk that escape would pose to the public. The different security classifications are administratively rather than statutorily defined. At present, there are five: Maximum, High, Low-Medium, Low and

[8] Section 47(3) provides that the security classification of each prisoner must:

(i) at least once in every 6 months, unless an exemption from this requirement is prescribed; or

[9] Section 48(1) requires prisoners to be informed promptly and in writing of: (a) their classification and of any change to it; and

(b) the reasons for the assignment of that classification or, as the case may be, that changed classification.

[10] Section 48(2) confers on prisoners a right to apply to the chief executive for a reconsideration of their classification if they are dissatisfied with it and requires the chief executive to ensure that the reconsideration occurs promptly and in the prescribed manner. But subs (3) stipulates that a prisoner may not make an

_{application for such reconsideration if the security classification that
applies to the}

³The term “significant change in a prisoner's circumstances” is defined in subs (4).

prisoner has already been reconsidered (as a consequence of an earlier application)

[11] The “prescribed manner” in which ss 47(3) and 48(3) require that security classifications must be undertaken, reviewed and reconsidered can be found in regs 44 to 52 of the Corrections Regulations 2005. Regulation 44 sets out the general principles which guide and govern the classification process, as follows:

(1) A prisoner should be assigned the lowest level of security classification at which the prisoner can safely and securely be managed given the assessment of the level of risk posed by a prisoner.

(2) A prisoner who has been assigned a security classification must be placed and managed within a facility and regime that is consistent with his or her security classification, to the extent that it is practicable (having regard to the availability of accommodation and other resources).⁴

assessing a prisoner’s risk as part of the s 47 classification process as follows:

(a) the seriousness of the offence for which the prisoner is serving a sentence of imprisonment or, in the case of a prisoner serving sentences of imprisonment for 2 or more offences, the seriousness of the most serious of those offences:

⁴The link made in subs (2) between security classification and the particular prison in which a prisoner is housed is repeated in the Guidelines for accommodating security categories contained in the Prison Operations Manual (POM) which provides:

A prisoner who has been assigned a security classification must be placed and managed within a facility and regime that is consistent with his security classification to the extent that is practical (having regard to the availability of accommodation and other resources).

Facilities for accommodation should be matched to the level of risk indicated by the

(d) any history of violent behaviour by the prisoner: (e) any history of mental ill health:

(f) whether the prisoner is awaiting trial or sentencing on any further charges and, if so, the nature of those charges:

(g) any additional matter specified in writing by the chief executive as a matter to be taken into account in conducting a risk assessment under section 47(1) of the Act.

A security classification is assigned to a prisoner once all of the following steps have been completed:

(a) a risk assessment has been undertaken under section 47(1) of the Act in accordance with regulation 45; and

(b) the staff member undertaking the risk assessment has notified the chief executive or prison manager of the security classification that, in his or her opinion, ought to be assigned to the prisoner; and

(c) the chief executive or prison manager has decided whether the security classification recommended under paragraph (b) is appropriate and either—

(i) has approved that recommended classification as the security classification assigned to the prisoner; or

[14] Reviews are dealt with in regs 48 and 49. Regulation 48 provides that as well as the s 45 mandatory considerations, a reviewer must, when assessing the level of risk for review purposes, also take into account:

(a) the duration of the period that the prisoner has left to serve under his or her sentence:

(d) whether the prisoner has engaged in any misconduct while serving his or her sentence or has been involved in any reported incidents:

(i) displayed motivation to achieve the objectives set out in his or her management plan; and

(f) any additional matter specified in writing by the chief executive as a matter to be taken into account in conducting a review of a security classification under section 47(3) of the Act.

[15] Regulation 49 mirrors reg 46 in its definition of the steps that are required to be taken to complete the review process.

[16] Regulation 51 governs applications by prisoners for reconsideration made under s 48(2) of the Act. It requires the chief executive to—

(a) ensure that the process that was followed in assigning or most recently reviewing that classification as the case requires, is reviewed; and

(b) decide whether or not the prisoner's current security classification is appropriate and either—

[17] And reg 52 requires that any person charged with the assignment, review, or reconsideration of a security classification is to:

(b) take into account any relevant information in any form that is readily available to the person; and

[18] The last piece of the legislative backdrop takes the form of a document promulgated by the chief executive under s 196 of the Act entitled “Completing Male review security classification guidelines”. It forms part of the POM and offers guidance for those with responsibility for undertaking security reviews and is structured under headings and sub-headings, which broadly reflect the mandatory considerations specified in regs 45 and 48. There is an associated form using the same headings which the reviewers are required to complete by attributing “scores”

to each of the matters listed under each heading. Ms Burns explained the purpose and operation of the guidelines and the forms as follows:⁵

In order to assist corrections officers with their statutory review and assessment obligations, and to ensure consistency as far as possible the Department has devised a classification system that assigns a value to each of the matters relevant to an assessment or a review. The total accumulated points will then suggest one of the five security classifications. ... The actual assessments are undertaken on a computer linked to IOMS (integrated offender management system) the main computer system operated by the Department.

Some of the data for the completion of the form is pre-populated from the IOMS system, which stores information about the prisoner. The remaining information is completed by the corrections officer undertaking the assessment or review.

The items to which values are attached reflect the criteria set out in the relevant regulations, and approach the issue of risk to the public in terms of both internal risks and external risks. It is only where the internal risk factor is less than 19 that the external risk factor becomes important, reflecting the fact that lower security prisoners may have contact with people outside the prison.

[19] The guidelines and the forms contain two substantive parts, entitled “internal risk” and “external risk”. In both the guidelines and the form relating to reviews (as opposed to the initial security classification assessment) the factors relevant to the assessment of internal risk are grouped under five headings, namely:

⁵Ms Burns is the Regional Commissioner responsible for the Northern Region of the Corrections estate and was the staff member ultimately responsible for determining Mr Taylor’s reconsideration application.

⁶This heading applies to prisoners with convictions or charges laid against them under the

Terrorism Suppression Act 2002 or for a new serious assault against any other person.

[20] The last of these (Cooperation in unit, workplace, programmes) is, itself, divided into five headings:

(a) A.5.1: Number of incident reports in past six months; (b) A.5.2: Compliance with staff requests;

[21] The guidelines identify the sources of information that are relevant to the assessment of all of these factors, including information held on IOMS. And in relation to A.5.5 (Motivation to achieve Offender Plan activities) the guidelines note:

This section assesses how motivated the prisoner is in achieving the activities scheduled from and identified in their Sentence Plan over the last 6 months.

File notes are checked to confirm that the prisoner attended and completed the activities.

⁷_{An assessment of “poor” under this heading
results in an allocation of 6 points.}

⁸_{An assessment of “average” under this heading
results in an allocation of 3 points.}

⁹An assessment of “good” under this heading results in an allocation of 0 points.

[22] As I have said, individual scores are attributed to each of the factors listed. When those scores are totalled they are measured against the following “review

Part A Points (Internal Risk)	Part B Points (External Risk)	Classification
33+	N/A	Maximum
19-32	N/A	High
0-18	17+	Low-Medium
0-18	12-16	Low
0-18	0-11	Minimum

[23] The total points scored gives rise to the preliminary security classification, in accordance with this table. But the guidelines then state:

Any classification may be over-ridden to a higher or lower classification. A classification may not be overridden based on a factor that has already been incorporated in the assessment. For example, the offence type has already been incorporated, so overrides cannot be made based on this factor.

High profile prisoners can be overridden on the basis that their profile would pose a risk to themselves or the public if they were to escape. However, this should happen only rarely.

Manual overrides can also be undertaken where there is evidence that the prisoner would pose a threat to a specific individual in the community if they escaped.

Overrides on the grounds of high profile or risk to specific individuals need to be approved by the relevant Regional Operations Manager.

This section is primarily used to indicate if the officer believes the Security Classification is incorrect as a result of additional information not being accounted for in the assessment process.

The officer will summarise main reason for override and state where information can be found, or provide details to support override.

[24] Mr Taylor submitted, and I accept, that security classification has a profound impact on prisoners’ lives. That is because of its effect on the place and conditions of detention, their quality of life and, potentially, even the length of time they ultimately spend in prison. He said:

A prisoner’s classification also determines access to rehabilitative programmes, whether a prisoner does or does not receive contact visits and the length of their visits, the hours they are unlocked from their cell, whether they are eligible for work parole, whether they serve their sentence in a prison close to family or at the other end of the country, and a myriad of other things. It goes without saying that it is therefore of vital importance to a prisoner that they are classified correctly.

[25] Against the importance and effect of the classification on the day-to-day lives of individual prisoners, there are the practical realities of the process and the requirement for six-monthly reviews. Ms Burns deposed in February 2015 there were approximately 4,600 sentenced prisoners serving reviewable sentences of imprisonment. She said that the Department is thus required to conduct between

[26] Mr Taylor began serving a 16 and a half year sentence of imprisonment on 28

[27] Following an escape from custody and his conviction for drug offending committed while he was incarcerated, he was classified as a “Maximum Security” prisoner in March 2010.

[28] This classification resulted in Mr Taylor being housed in Auckland (East) Prison, Delta Unit (also known as D Block). Auckland (East) Prison is the only maximum security facility for male prisoners in the country. It comprises six Units or Blocks, whose population and purposes have been described as follows:¹⁰

A Block (voluntary protective segregated prisoners) classified High security (waitlisted for West Division Units 1 or 2) and Maximum security prisoners. Kept separate from all prisoners in East Division

B Block (known as the progressive Unit). Manages the most compliant prisoners in East Division (who have progressed from D & C Block)

¹⁰This summary is taken from the Prison Inspector’s Report dated 14 June 2014.

SNU – for any prisoner at Auckland Prison deemed “vulnerable” from either other prisoners and/or themselves ...

[29] It will be observed that all of Blocks 1 – 4 contain, or potentially contain, both Maximum and High Security prisoners.¹¹This means (or potentially means) that the High Security prisoners may be detained under more restrictive conditions than High Security prisoners who are not housed with Maximum Security prisoners.

The security classification change and the proposed transition through Bravo Unit

[30] Mr Taylor first became eligible for parole on 12 September 2012. As I understand it, from an early stage of his engagement with the Parole Board it was made clear that in order to be released he would need to undertake certain rehabilitative steps including, in particular, completing the Special Treatment Unit

_{Rehabilitation Programme (the STURP). The STURP is available only to
prisoners}

with a security classification of “Low-Medium” or below. More detail about the

[31] In April 2013 Mr Taylor had a classification review which resulted in no change to his Maximum Security status. He remained in Delta Unit. On

13 June 2013 Mr Taylor sought a reconsideration of this decision, as a result of which (in August 2013) he was reclassified as “High”. This reclassification meant that he became eligible to be moved from Auckland (East) Prison.¹²

In a multidisciplinary team (MDT Team) approach case Management, Psychologists, Prison Management, Residential Managers, Principle [sic] Corrections Officers, and Arthur [Taylor] collaborated on a progression plan transitioning him from Auckland Prison Delta unit to Auckland Prison Bravo unit, and then hopefully onwards to Auckland Prison West division, or another site. It is the expectation that such a move should provide Arthur with an opportunity to continue to lower his security classification, and provide opportunities for increased social integration with other prisoners, This plan would also move him closer to engagement with his identified rehabilitative programmes.

Arthur was initially engaged in this pathway however has since declined to be moved to Auckland Prison Bravo unit, and has chosen instead to work through the legal system to challenge this plan. One point of contention Arthur has with the proposed plan is the lack of contact visits in Auckland Prison Bravo unit. It has been documented in the IOMS case notes that should contact visits be made available to Arthur in Auckland Prison Bravo unit he would be willing to make the transition. However at the present time the MDT Team are still in discussion on whether this option is feasible to be included into the plan. ...

It should be noted that at the time of writing this plan has been in place for over one year to allow Arthur time to consider this pathway.¹³Although Arthur could be transferred to Auckland Prison Bravo unit against his wishes, the collective position of the MDT Team is still to provide him the opportunity to choose this pathway which is before him of his own free will.

Arthur is aware he needs to reduce his security class so he can undertake the identified STURP programme. Arthur wants to move to Rimutaka Prison to complete the STURP and to start his reintegration pathway.

¹²Mr Taylor’s statutory six-month classification review on 16 August 2013 confirmed his “High”

to change caused by his identified personality issues. This work is still ongoing.

... Arthur is to continue to work on his motivation to reduce his security classification so that he is able to undertake programmes to commence his reintegration pathway.

I will work with the Departmental psychologist and engage with individual treatment to assist me in reducing/addressing my reactive and aggressive behaviour, frustration and provocation.

Mr Taylor spent a very long time in Delta Unit. The conditions are the most restrictive in the prison estate because it is the most secure facility, set up to deal with maximum security prisoners and others with very high security needs. It was and is a key component of Mr Taylor’s management plan to get him re-integrated into the main prison population.

When a maximum security prisoner’s security classification drops to high security they can be removed from Auckland East, because all of the larger prisons, including Auckland West and Rimutaka (the prison Mr Taylor came from) can accommodate high security prisoners.

Experience suggests prisoners will struggle to adapt to being back in the mainstream prison environment if they have spent a long time in maximum security. In Delta Unit prisoners mix with no more than 6 other prisoners at a time and always under the direct supervision of corrections officers.

If a prisoner does not cope in the new environment one outcome is they may be involved in a disciplinary matter that results in their security classification returning to maximum, and requiring their return to Delta Unit.

The Auckland Prison Manager has achieved better outcomes for prisoners transitioning from Delta Unit when they are transferred first to Bravo Unit within Auckland East, where they will be able to mix with prisoners largely of the same security classification on one landing in a less restrictive environment but a step below what they would encounter if transferred to another prison. Prisoners who have gone through Bravo Unit have been less likely to return to maximum security.

[35] Mr Taylor’s reasons for not wishing to transition through Bravo Unit (or B Block) were that:

(a) he has a High Security classification and prisoners in Bravo Unit are subject to Maximum Security conditions;

(b) the conditions on the “progression landing” in Bravo Unit relating to visits and unlock time are in fact more restrictive than the conditions in Delta Unit;

(d) he had specific concerns for his safety in Bravo Unit due to his history with some of the other residents there.

[36] The evidence before the Court made it clear that until October 2014 (after the reconsideration decision that is the subject of these proceedings), the Department’s continued preference was for Mr Taylor to go to Bravo Unit voluntarily. There are “Offender notes” recording discussions with him about the issue throughout the six month period leading up to his review. He repeatedly voiced concerns of the kinds I have summarised in the preceding paragraph.¹⁴Importantly, there is no evidence that he was ever directed or ordered to go to Bravo Unit prior to 2 October 2014.

[37] During the period that Mr Taylor’s transfer to Bravo Unit was under “discussion”, the Ombudsman released a Special Investigation report as a result of complaints made by Mr Taylor about his treatment in Auckland East at an earlier time (between June 2011 and August 2012).¹⁵The Ombudsman’s report (which was released in January 2014) was concerned primarily with the prison’s decision to place Mr Taylor on “directed segregation” during this time. The investigation found

¹⁴_{Although there is no record of him having voiced
particular safety concerns.}

¹⁵The report states that a decision had been made not to notify the Department formally under s 22 of the Ombudsman Act 1975 but that Auckland Prison would be asked for comment on the report.

(b) although the initial decision to place him on directed segregation under s 58(1) of the Act was reasonable (because a cell phone and related items had been found in his cell), the following consequential actions were not in accordance with prison policy or practice:

(i) the provision of directed segregation paperwork to Mr Taylor prior to approval for the extension to that segregation being granted;

(ii) the number and type of restrictions placed on Mr Taylor’s minimum entitlements through the imposition of management plans;

(iii) the decision to house him in the High Care Unit cells which, at the time, were not suitable for housing prisoners; and

[38] As well as complaining to the Ombudsman about his earlier treatment, Mr Taylor laid complaints about the “Bravo Unit” issue with the Prison Inspectorate (on 10 September 2013) and, on 18 December 2013, with the Visiting Justice. In essence, the complaints involved the allegation that his continued detention in a maximum security unit breached reg 44(2) (set out at [7] above).

[39] In February 2014 the Visiting Justice, Mr Mount, decided that because his investigation and the Prison Inspectorate investigation had different focuses, they could proceed in tandem. The Prison Inspectorate’s investigation was concerned with the more general complaint that High Security prisoners at Auckland East

Division were being managed unlawfully because they were subjected to stricter (Maximum Security) regimes than High Security prisoners in other prisons. The focus of the Visiting Justice’s inquiry was on Mr Taylor’s own placement and management. Mr Mount determined that the completion of his own report should be delayed until completion of the Inspectorate report.

[40] On 16 June 2014 the Prison Inspector, Louise MacDonald, issued her report in relation to Mr Taylor’s complaint. Her conclusions were subsequently summarised by Mr Mount as follows:

Visits: “the management of private visitors for High Security prisoners at East Division ... is more restrictive than High Security prisoners in other sites.” At East Division, High Security prisoners do not receive contact visits but instead a maximum of one hour per week of non-contact visits. High security prisoners at all other prisons receive two hours per week of contact visits.

Unlock hours: High Security prisoners in East Division received similar unlock hours to High Security prisoners in other sites.” Currently there is a contradiction in the practice of the progressive Unit management in East Division with prisoners in D Block receiving on average more unlock time than those prisoners in C Block and B Block.” East Division operates a

0800-1700 hours unlock regime like other high security prisons. D Block prisoners average 3.3 hours of unlock per day. Prisoners on the progressive

D Block prisoners “are kept in the yards over the lunch period”. High Security prisoners nationally receive between 2.5 and 6 hours unlock per day.

Rehabilitative programmes/recreational activities: “High Security prisoners are not being treated unfairly or unreasonably in relation to access to rehabilitative programmes due to their placement in East Division ... compared to other High Security prisoners placed in other sites.” There is considerable variation between the programmes offered at different facilities housing High Security prisoners. West Division of Auckland Prison and Rimutaka Prison provide “the greatest number of programmes & recreational activities”; Christchurch Men’s Prison and East Division of Auckland Prison provide “the least amount of programmes”. Group programmes are not provided in East Division (except in B Block and the Special Needs Unit).

Ms MacDonald concluded that the restrictions preventing contact visits at East Division meant that Auckland Prison “may not be meeting the intentions and principles 6(1)(f) and (g) of the Corrections Act 2004 and the principles of regulation 44(1) & 2 of the Corrections Regulations 2004”. She recommends that Corrections ensures that “High Security prisoners are

[42] Mr Mount then noted that Corrections had concerns about this recommendation but was investigating whether a pilot trial could be introduced where High Security prisoners in East Division can be assessed for contact visits on a case-by-case basis.

[43] Mr Mount’s report was completed on 5 August 2014. In it, he said that he felt able to rely on Ms MacDonald’s report for the conclusions that:

Mr Taylor’s visiting arrangements (ie as to contact/non-contact visits and the hours of visits per week) are inferior to those of high security prisoners detained other than in East Division; and

Mr Taylor’s hours of unlock and ability to access educative and rehabilitative programmes are at the bottom end of the range compared with high security prisoners detained other than in East Division.

Although mindful that there will be other conditions of Mr Taylor’s management which are beyond the scope of my inquiry and that of Ms MacDonald’s, I am satisfied that, taken together, the conditions applying to Mr Taylor in relation to visits, unlock and programmes are not consistent with his security classification and therefore inconsistent with reg 44(2). This conclusion is reinforced by the statutory principles that guide the operation of the corrections system and which corrections staff must have regard to – see in particular s 6(1)(g), (h), (i) and (2).

In reaching this conclusion I do not seek to diminish the extent of the challenge faced by Corrections in managing the country’s highest risk prisoners. I accept that Corrections is motivated to rehabilitate and reintegrate Mr Taylor and that it regards the offer to him of a place on the B Block progression landing as a step towards this end. The practice of transitioning maximum security prisoners to West Division via the B Block landing may indeed be a sensible policy (and one may even regret that Mr Taylor has not accepted the offer of placement there). However, a move to the transition landing would in fact involve a greater departure from typical high security conditions than Mr Taylor currently experiences.

[45] Mr Mount recommended that the Department consider developing a policy specifying the way in which prisoners will ordinarily be detailed in accordance with each security classification. He said this would better promote fairness and consistency across the prison estate as required by s 6(1)(f)(i) of the Act.

[47] On 14 August 2014 Mr Taylor appeared before the Parole Board. In its decision, issued that day, the Board said:

Mr Taylor did not seek release today. He accepts that he needs to undertake and complete intensive rehabilitative and reintegrative interventions before [release] can be a possibility. His current focus is on undertaking the STURP programme. He accepts that to do so he needs to lower his security classification from high, which it has been since February this year. He believes that the prison are not assisting his rehabilitation, and two recently released reports, one from Louise MacDonald the Inspector of Corrections, and another, from Simon Mount, would seem to support his contention. ...

It is not the Board’s function to get involved in specific details concerning the management of prisoners. What we can say, however, is that we support Mr Taylor’s commitment to undertaking appropriate rehabilitative interventions ... We also support his reclassification to low/medium so that he can participate in the STURP programme.

We also support his reclassification to low/medium so that he can participate in the STURP programme, and expect that process to be facilitated by the Corrections Department.

[48] Notwithstanding Mr Powell’s advice that I have recorded at [46] above, Mr Taylor’s offender notes reveal that on 20 August 2014, Mr Taylor was offered contact visits and longer unlock time if he agreed to move to B Block. This offer no doubt reflected the findings of Ms MacDonald and Mr Mount. But Mr Taylor maintained his refusal to transfer there. Although not clear from the notes, his position before me was that this offer failed to recognise that he was unable to participate in the STURP programme in B Block and took no account of his safety concerns, the basis for which (he said) should have been obvious to the Department.

[49] On 25 August 2014 the six-monthly review of Mr Taylor's security classification was completed. An application of the “points” system which I have explained above yielded a total of 19 points, as a result of which his classification

remained at “High”. The form that was originally completed assigned him “internal risk” points under this system as follows:

(b) Most serious current offence 8 (c) Under “co-operation in unit, workplace, programmes”:

(ii) Compliance with staff requests 3 (iii) Positive interaction with staff and other prisoners 3 (iv) Compliance with prison rules 3

[50] This gave Mr Taylor a preliminary assessments total of 19 points, placing him (just) in the “High” security risk band. One point fewer (namely a total of 18) would, on its face, have resulted in a change to “Low-Medium” classification.

[51] Mr Taylor sought to have the review decision reconsidered under s 48 of the Act on two grounds. He said that mistakes had been made in assessing the date of his last escape and identifying his most serious current offence. Significantly, he had successfully challenged his security classification previously, on exactly the same grounds.

[52] The first stage of the reconsideration process resulted in Mr Taylor’s security classification being confirmed as High. It appears that this was because the dates entered into the IOMS about the date of his last escape and most serious offence were “pre-populated” and had not been corrected following his earlier challenge.

_{But on further analysis, both entries were again acknowledged to be in
error.}

¹⁶_{Two being the number of points assigned for an escape
between six and seven years ago.}

[53] Acceptance of these mistakes meant that Mr Taylor’s internal risk “points” score reduced points from 19 to 16, which placed him comfortably within the “Low- Medium” security band. But the officer conducting the first stage of the reconsideration exercise, Ms Rangi, nonetheless recommended an override that would see Mr Taylor placed back in the High Security bracket. She said:

It is also evidenced that Mr Taylor remains non-compliant in progressing along the structured pathway forward as endorsed by the Auckland Prison Management Team.

[55] The matter was referred to Ms Burns for final assessment and approval. She,

too, supported an “override”. She explained her thinking in her affidavit as follows:

Under the scoring system section A.5 of the form deals with co-operation in Unit, workplace, programmes and item A.5.5 is Motivation to achieve Offender Plan activities. On the original review in August 2014, the reviewing officer had made an assessment of “good” resulting in a score of 0 for that element.

At that time Mr Taylor was still in Delta Unit and refusing to be moved to Bravo Unit as the Prison Manager was directing him to do. I was familiar with this stand-off at that time because it was a potentially volatile situation and the sort I would expect on-going briefings on from the Prison Manager. I have regular meetings and telephone calls with Mr Sherlock about a range of subjects and in many of those conversations around this time I would have discussed Mr Taylor’s situation.

It is my usual practice to speak to the Prison Manager specifically when I am undertaking a re-consideration of a security classification decision and I did so in this case. Mr Sherlock confirmed his recommendation that high security was the appropriate classification for Mr Taylor at that time. I do not recall the specifics of the conversation but if Mr Sherlock had indicated any change of mind on his part, I would have noted that.

The behaviour of prisoners is noted in a section of IOMS called offender notes. Corrections Officers who have any interaction with a prisoner that requires monitoring will record a note here, including disciplinary matters. It provides an overview of the prisoner’s behaviour.

[56] Ms Burns annexed to her affidavit Mr Taylor’s Offender notes “for the relevant period”. She said that this was part of the supporting documentation that she was shown for the purpose of her reconsideration. She said:

The offender file notes recorded numerous instances where corrections officers had sought to encourage Mr Taylor to move to Bravo Unit and he had refused.

Mr Taylor’s refusal to move was frustrating an important part of his management plan, which was to get him out of Delta Unit and through the transitional landing at Bravo Unit with the intention he could then be further transferred out of Auckland East.

It appeared that Mr Taylor’s refusal to go was based in a belief on his part that he could not be obliged to accept detention in Bravo Unit because of the conditions of detention there. However the prison staff had determined it was an important move for his rehabilitation and it was not appropriate to describe his attitude as co-operative.

I was satisfied the recommendation for an over-ride from the Prison Manager was justified and I agreed with and accepted it. I also formed the view that the original reviewer was wrong to give item A.5.5 a value of 0. The proper assessment in my opinion for that item was “poor” and a value of

6 should have been given. Either way, I was well satisfied the appropriate security classification for Mr Taylor was high security, and I confirmed that

[57] Her letter to Mr Taylor (which was dated 30 September 2014) advised (inter alia):

For the purpose of deciding whether your current security classification is appropriate I note that you have been marked as “Good” under A.5.5 and I do not consider this rating accurately reflects your motivation to achieve Offender Plan activities. As you are aware, attempts have been made to house you in B Block at Auckland Prison to afford you the opportunity to participate in programmes. I consider that this placement is critical to your rehabilitation and your resistance to this is not consistent with a reduction in your security classification. Therefore I have changed this rating to “Poor” as per the criteria and acknowledge the error made by the staff completing this classification.

[58] It seems that two days later, on 2 October 2014, Mr Taylor was instructed to move to Bravo Unit by the Prison Manager. When he refused to do so he was moved there by force “and has not since returned to Delta Unit”.¹⁸

[59] In November 2014 Mr Taylor filed these proceedings seeking a judicial review of the reconsideration decision.

[60] In February this year, Mr Taylor's security classification was again reviewed (six months having passed since the August review) with the result that he was downgraded to “Low-Medium”. Although, as I have said, it has been suggested that this decision has rendered these proceedings moot, Mr Taylor disputes this. He says that the failure to reclassify him correctly in August 2014 has necessarily delayed his entry into the STURP programme and thereby prejudiced (delayed) his chance of parole.

[61] For reasons that will become evident it is necessary to address one last factual matter, namely the operation of the STURP and Mr Taylor’s potential participation in it. An affidavit was filed about those subjects by the Principal Case Manager at Auckland Prison, Ms Miller-Burgering.

[62] Ms Miller-Burgering deposes that the STURP is directed at prisoners who are assessed as having a high risk of serious reoffending, by reference to the RoC*RoI prediction tool.¹⁹She confirms that only those prisoners with a security classification of Low-Medium or below are eligible to participate in the STURP, which is delivered out of the Karaka Special Treatment Unit (STU) at Waikeria Prison. The Karaka STU has 80 beds and is required to accommodate STURP

[63] The STURP is a 9 to 10 month three phase programme which runs three to four days a week for up to three hours a day. Each group is made up of 10 participants and two programme facilitators.

[64] Ms Miller-Burgering confirmed that (since his reclassification as Low- Medium in February 2015) Mr Taylor is eligible to participate in this STURP. She explains however that due to the length of the waiting list it is necessary to prioritise

prisoners who are nearing their release dates. She advised that Mr Taylor has been placed on the wait list and was (at the time of her affidavit) to be assessed for the group which is to commence this month. She said, however, that if new prisoners appear on the wait list with earlier sentence end dates then he might have to move down the list. Equally, movement upwards was possible. Actual acceptance into the programme is not guaranteed and is dependent on the outcome of the pre-entry assessment. She says that “institutional conduct” is regarded as a key indicator of motivation to change and, therefore, success with completing the STURP.

[65] Significantly, Ms Miller-Burgering advised that the Department was willing to give Mr Taylor some priority in light of the Parole Board’s 2014 recommendation. She said that there was a proposal to move Mr Taylor from East Division to West Division where he would stay for a period of two to three months. If his co- operative behaviour then continued he could be moved to Waikeria where he could await the September STURP intake.

[66] A period of months elapsed between Ms Miller-Burgering swearing her affidavit and the hearing before me. Still further time has elapsed since the hearing and the release of this judgment. I am unaware of whether it has been possible to implement some or all of the Department’s proposal, although my recollection is that Mr Taylor was, indeed, being housed at West Division by the time of the hearing.

[67] In his amended statement of claim Mr Taylor pleads six overlapping causes of action based on the orthodox grounds of review, namely ultra vires, failure to take into account relevant considerations, improper purpose, unfairness/breach of natural justice and unreasonableness. He seeks:

(a) a declaration that the reconsideration decision was unlawful, invalid and of no effect;

(b) a declaration that his entry to the STURP programme needs to be facilitated at the earliest opportunity;

(c) a declaration that he should be placed, so far as it is possible, in the same position he would have been had he been correctly classified as “Low-Medium” in August 2014;

[68] Notwithstanding the breadth of pleading, however, I accept Mr Powell’s submission that it is open to the Court to address Mr Taylor’s application for review in a different way. Rather than analysing the case for review on a cause of action by cause of action basis I propose instead to focus on the principal, and in my view strongest, arguments as they developed before me. Thus my analysis will be structured by reference to the following questions:

(a) Was the decision to change from “Good” to “Poor” in relation to item A.5.5 (Motivation to achieve Offender Plan activities) made in breach of the Department’s published policy and/or Mr Taylor’s legitimate expectation that that policy would be applied?

(ii) for an improper purpose (namely in order to maintain Mr Taylor’s “High” security classification in order that he could be compelled to transfer to Bravo Unit)?

[70] Mr Taylor referred me to the decision in R (Lowe) v Governor of Liverpool Prison in which Judge Kay QC quashed decisions reclassifying Mr Lowe as a category B prisoner (when he had formerly had a lower security C classification) on the grounds of inconsistency and legitimate expectation.²⁰The decision is instructive in a number of respects.

On 3rd July 2006 Mr Lowe was recategorised to category C on his annual review. At that stage he was incarcerated in a category B prison. He remained in that prison. It was said that he did so in order to complete further offending behaviour work. It seems to be common ground that he did not complete any such further work, but he did undertake a number of vocational courses. Nevertheless, despite being a category C prisoner, he remained for some considerable period of time in a category B establishment.

His next annual review was in July 2007 and he remained a category C prisoner. On 13th November 2007 he was relocated to Risley prison which is a category C closed prison. It was at that stage that his categorisation and his location matched. On 14th December 2007, on what was described as a reassessment of allocation, Mr Lowe was upgraded back to a category B prisoner. This was not an annual review of his categorisation but seems to have been prompted by apparent concern over the allocation of the particular prison establishment. ...

As a result of that recategorisation, Mr Lowe was relocated to Liverpool prison as a category B prisoner. On 15th January 2008 Liverpool prison reviewed him again and assessed him as a category B prisoner. Mr Lowe caused judicial review proceedings to be issued in relation to the Risley and Liverpool prison decisions.

On 2nd May 2008 a consent order was made in this court quashing the decisions of the defendant and of the governor at Risley of December 2007 and January 2008 re-categorising Mr Lowe as a category B prisoner. The second defendant to those proceedings, which is the defendant in these proceedings, gave an undertaking to the court to reconsider the claimant's security categorisation on or before 27th May 2008 and to notify his solicitors in writing of the outcome and the reasons by 3rd June. In the meantime the claimant was to remain at Liverpool prison whilst that decision was taken. I note that no decision was in fact notified by 3rd June it was notified a few days later than that but no point is taken in relation to that.

It was therefore on 9th June that the decision was made to which I have already referred, and to which I will return later in this judgment, that Mr Lowe was recategorised as a category B prisoner and he was then transferred to HM Prison Garth on that basis. On 9th July 2008 this further application for judicial review was issued. ...

[72] It appears from Judge Kay’s decision that in the United Kingdom, security classification was (at that time)²²dealt with pursuant to directions made by the Secretary of State under the Prison Rules 1999. The directions took the form of a policy document known as Prison Service Order Number 0900. Judge Kay said:²³

The purpose of the policy is described at paragraphs 3 and 4 of the introduction. It states that assigning prisoners to the correct prisoner category:

“... helps to ensure that they do not escape or abscond or threaten the control of establishments. It also means that prisoners are not held in conditions of security higher than necessary.

... The correct categorisation ... balancing security issues and the needs of the prisoner, helps prisoners to use their sentences constructively, to tackle their offending behaviour and to prepare for release.”

It seems therefore that matters need to be looked at from both sides; both from the view of the State in ensuring that prisoners do not escape and do not disrupt a prison establishment, but also from the view point of the prisoner who wants to use his time in prison constructively and to prepare for his or her release.

The policy then goes on to deal in more detail with categorisation. A category B prisoner is defined as one for whom the very highest conditions of security are not necessary but for whom escape must be made very difficult. A category C prisoner is defined as one who cannot be trusted in open conditions, but who does not have the resources and will to make a determined escape attempt. Under the heading "The Principles of Categorisation" the policy provides that:

“Prisoners must be categorised objectively according to the likelihood that they will seek to escape and the risk that they would pose should they do so.”

It also provides that every prisoner must be placed in the lowest security category necessary for the needs of security and control.

[73] The reason given for reinstating Mr Lowe’s “B” categorisation appears to

(a) the view that the “C” categorisation was flawed, because he had not spent sufficient time as a “B” prisoner, given the length of his sentence (24 years’ imprisonment);

(b) an apparent link made between his “persistent efforts by litigation” to change his security classification and the existence of a “will to make a determined escape attempt”.

[74] As far as the matter at [73](a) was concerned the Judge noted that there was nothing in PSO 900 that indicated there should be any necessary relationship between those two matters. He said:²⁴

The point that I raised in argument was as to how the following situation is to be dealt with. Suppose there is within the prison service a honestly held difference of view between governors of prisons as to how long a prisoner should remain in a category B establishment before being considered for recategorisation downwards to category C? If Mr Sachdeva's submission is correct, then if a prisoner is transferred to a prison where a governor holds a different view about the length of time which should be served in a category B prison, a prisoner is liable to find himself, and indeed would find himself, recategorised by the new governor. That is because the submission to me was that a governor would have a duty to recategorise if he had a rational basis for thinking that the previous decision of recategorisation was wrong. It could not be said to be irrational if there were a range of perfectly respectable views on such a matter.

It seems to me that that cannot be the position. If it were, there would potentially be chaos within the prison system with prisoners being transferred backwards and forwards depending upon the particular view of a governor as to this factor. So what is the principle? It seems to me that, following on from the cases that have been referred to me by Mr Weatherby, there is here a principle of consistency and legitimate expectation. A policy has been produced which does emphasise that recategorisations should in all normal circumstances, or indeed in abnormal circumstances, occur when there is significant change in the circumstances of a prisoner. It does not provide, nor would one expect it to provide, that there would be a recategorisation based upon different professional judgments of different governors in different establishments. There is an expectation of prisoners that they will be reviewed annually, or less than annually, if there is a significant change in their circumstances. There is an expectation that they will be dealt with consistently and not dependent upon the differing views of different governors.

There is, of course, Mr Sachdeva's point: how is an error in a previous decision to be dealt with? It seems to me that recategorisation can take place if there has been a change in circumstances or there is some other substantial

reason for a recategorisation. One obvious circumstance would be a plain and simple error by a previous governor. That error could be pointed out and could be explained in reasons for the recategorisation. But it does not seem to me to be right that a substantial reason could simply be a differing view of a governor within a range of reasonable views as to how long a prisoner should stay in a particular category of establishment before his category can be reconsidered.

[75] As to the matter to which I have referred at [73](b), above, the Judge said:²⁵

... The decision maker seems to think that exercising a right to challenge categorisation evinces a will to make a determined escape attempt. That is set against a background in which Mr Lowe's efforts to have himself recategorised downwards have consistently been successful. If it was the case that he was threatening judicial review proceedings in 2006, it seems to me the only reasonable inference is that the governor at that stage accepted the argument that category C was the proper category for Mr Lowe. As regards his challenges to the decisions in December 2007 and January 2008, he was successful in those because those decisions were quashed by consent. It would be almost Kafkaesque to say that by successfully exercising a right to challenge your categorisation from category C to category B, you thereby increase the risk that you will escape and therefore you should be re- categorised back up from category C to category B.

[76] It is fair to say that there are some parallels between Mr Lowe’s case and that

[77] First, it can usefully be observed that, as under PSO 900 in the United Kingdom, the internal and external risks of escape are also the explicit (albeit inclusive) focus of s 44 of the New Zealand Act. Escape risk must therefore be one of the key drivers of the indigenous security classification regime as a whole.

[78] Secondly, it is not disputed that the principal point of the guidelines issued by the chief executive under s 196 (and the associated forms) is to ensure that the assessment of risk is performed as consistently and objectively as possible across the prison estate. The need for fairness is specifically underscored by the principle

the Corrections system must ensure that fair treatment of persons under control or supervision by –

(i) providing those persons with information about the rules, obligations, and entitlements that affect them; and

(ii) ensuring that decisions about those persons are taken in a fair and reasonable way and that those persons have access to an effective complaints procedure.

[79] Relatedly, and given the fairness obligation and the impact that security classification has on the lives of the prisoners concerned, both immediately and in the long-term, there seems to me to be a solid basis for a legitimate expectation that the s 196 guidelines will be followed and consistently applied. As Sedley J said in R v Secretary of State for the Home Department ex parte Urmaza:²⁷

... I would venture to formulate the modern approach to a departmental policy document, whether published or not, in this way:

(a) The legal principle of consistency in the exercise of public law powers ... creates a presumption that in the ordinary way the Secretary of State, through his officials, will follow his own policy. This presumption corresponds with the practical purpose of such an internal policy, which is precisely to secure consistency of approach ... If there is to be departure from the policy, there must be good reason for it ... I would add that the impact of such a departure in a case otherwise within this particular policy is almost certainly such as to demand that reasons be given.

[80] Turning now to Mr Taylor’s case, the starting point is that the change from “Good” to “Poor” in relation to the assessment of his “Motivation to achieve Offender Plan activities” was profound. I accept that there must be a margin of appreciation between individual reviewers as to the appropriate “points” to ascribe for any of the given matters in relation to a particular prisoner. But such a fundamental change could not fall within that margin. Absent some kind of factual error (of the sort raised by Mr Taylor in his application for reconsideration) there should be no real possibility of any significant (let alone determinative) divergence of view or conclusion on that topic.

A.5.5 is a relatively simple matter, which involves checking: (a) the IOMS Sentence Planning; and

in order to determine the extent to which the particular prisoner has completed his

Sentence Plan activities in the previous six months. A rating of “Poor” is given

_{when the prisoner has failed to attend and complete any Sentence Plan
activities}

²⁷R v Secretary of State for the Home Department ex parte Urmaza [1996] COD 479, QBD.

scheduled for the relevant period. It is difficult to see how the officer who conducted the original review in August 2014 could have checked the specified material and concluded that Mr Taylor had completed all of his Sentence Plan activities, but the officer who conducted the reconsideration exercise could check the same material and conclude that he had completed none of them. To accept that polar opposite conclusion based on the same facts (namely whatever was recorded in the file notes) could fall within a necessary margin of appreciation would be to ride roughshod over the fundamental purpose of the guidelines, namely consistency of approach and fairness.

[82] My conclusion that the reconsideration process misfired in this respect is borne out by Ms Rangi’s recommendations (which were accepted by Ms Burns) and in particular her statement that:

... we must take into consideration Mr Taylor’s negative behaviour during this review period, which is evidenced by his electronic file notes.

The electronic file notes to which she referred (and which were annexed to Ms Burns’ affidavit) were not IOMS Sentence Planning material or Sentence Plan file notes.²⁸Rather, they were notes which had, presumably, already been taken into account in relation to A.5.1, A.5.2, A.5.3 and A.5.4.

[83] And as far as Mr Taylor’s actual “Sentence Plan activity” is concerned, my understanding is that this comprises the “current activities” recorded in his Offender Plan” that was annexed to Ms Miller-Burgering’s affidavit. As noted at [33] above, these “activities” were:

(a) working with the Departmental psychologist and engaging with individual treatment to assist him in reducing/addressing reactive and aggressive behaviour, frustration and provocation; and

²⁸In fairness to Ms Rangi, it was Ms Burns who linked the other file notes to Mr Taylor’s

[84] The evidence before me was clear that during the review period Mr Taylor complied with the first, and could not complete the second, because the STURP was not available to him as a High Security prisoner in Auckland East.

[85] I acknowledge that the transfer to Bravo Unit was viewed by the Department as the first step towards Mr Taylor being able to participate in the STURP (although he would not be able to do so at Bravo Unit). But transfer was not an activity that was “scheduled” for Mr Taylor to complete within the relevant period. And notwithstanding that the Department had a clear view about the desirability of a transfer, it was made clear to Mr Taylor throughout the review period that it wished

[86] The short point is that I do not consider that Mr Taylor’s refusal to agree to a transfer to Bravo Unit can be a matter that properly fell for (re)consideration under A.5.5. Accordingly, I consider that grounds for review of this part of the reconsideration decision have been made out.

[87] In my view, the only relevance that his refusal to transfer voluntarily could have is as a matter of a quite separate kind, justifying an override. So it is that issue to which I now turn.

[88] It is tolerably clear that the override option exists precisely because filling out the review form and applying the points system is intended largely to be a mechanical (and therefore objective and consistent) exercise. The possibility of an override recognises the reality that the guidelines and the form may not capture all matters that are relevant to the risk assessment required by s 44 in relation to a particular prisoner. It contemplates that there may be a departure from policy but (in accordance with the principles referred to by Sedley J in the dicta quoted above) requires clear reasons for that to be given. The guidelines also make it clear that there cannot be a departure from policy (an override) simply because an application

_{of the points system does not result in adequate weight being given to
one of the}

²⁹As I understand it, Mr Taylor’s Sentence Plan was in fact annexed to Ms Miller-Burgering’s

matters expressly required to be considered.³⁰If that were not the case then consistency would be undermined.

[89] Accordingly the principal question in relation to the override is whether, in the circumstances of Mr Taylor’s case, his refusal to transfer voluntarily to Bravo Unit was a matter that justified a departure from policy.

[90] I immediately accept that a prisoner’s willingness to co-operate with staff and to participate in a rehabilitation pathway is relevant to the risk posed by him and, therefore, to his security classification. That is clear from reg 45. In an ordinary case, however, those are considerations that the policy and guidelines expressly require to be taken into account and, indeed, are reflected in A.5.2 and A.5.5 of the guidelines. An override would not therefore be permitted on those grounds.

[91] What arguably takes Mr Taylor’s circumstances outside the guidelines, however, is that transfer was presented to him as something he could choose to decline or accept. The Department was clearly of the view that transfer was in his best interests and that it was important for him to be able to recognise that. Thus the Department’s position had two aspects:

(a) it genuinely believed that transitioning back to a lower security facility through Bravo Unit led to better outcomes for prisoners and would lead to a better outcome for Mr Taylor; and

[92] Mr Taylor’s position was, of course, otherwise. He was of the view that detention of a High Security prisoner on the Progression Landing at Bravo Unit was unlawful. And by the time the reconsideration took place he had some authoritative support for that view. And he also regarded the proposed transition as an

_{impediment to his participation in the STURP and, therefore, his chances
of parole.}

³⁰So, for example, it cannot have been a matter that the Department considered warranted a higher (out of range) score under some other aspect of the points system (such as A.5.2 “Compliance with staff requests”).

[93] By the time of the review and the reconsideration decisions, the STURP issue had become something of a conundrum for the Department because if Mr Taylor was reclassified as Low-Medium security, he could not then be transferred to Bravo Unit.³¹It seems to me that the critical question therefore was (and is) whether the Department could properly say “Although you qualify under the policy, we will not reclassify you because you should earlier have acceded to the Department’s view that

a transfer was in your best interests, notwithstanding that you considered it would be unlawful”.

[94] I must confess I have found this issue difficult. But in the end I have formed the view that Mr Taylor’s past refusal to go to Bravo Unit could not properly form the basis of the Department’s override decision. That decision was based on an irrelevant consideration. I say this for the reasons that follow.

[95] First, the Department chose quite deliberately to permit Mr Taylor to decide for himself whether to acquiesce in the proposal to transfer to Bravo Unit. Having offered him that choice, what could reasonably be expected from Mr Taylor was a process of rational consideration which took into account both the Department’s reasons for promoting the transfer and any other germane matters.

[96] As it transpired, Mr Taylor had a number of concerns about whether housing him there was appropriate or lawful. By the time of the review decision those concerns had received support from both Ms MacDonald and Mr Mount. Their views must have been known to the Department at the time of the review, and certainly by the time of the reconsideration. Given that Mr Taylor’s refusal to transfer was central to the reconsideration decision, I consider their reports were plainly relevant, and the Department was required to take them into account, whether

³¹Mr Taylor could not simply say “I do not want to go to Bravo Unit because I want to participate in the STURP”, because he could not do so until he had been reclassified. But he could say “if you apply the review policy correctly, I should be reclassified, so you cannot send me to Bravo Unit”.

[97] Given the matters raised by Mr Taylor went directly to the conditions of his proposed detention at Bravo Unit he cannot properly be criticised for giving them more weight than the Department’s view of the benefits to him of the transfer. As the Chief Justice indicated in Taunoa v Attorney-General protests against unlawfulness cannot fairly or properly be put to one side as nothing more than

[98] Moreover, by the time of the review, transitioning through Bravo Unit conflicted with Mr Taylor’s understandable desire (supported by the Parole Board) to be given a Low-Medium security classification and thus to move towards completion of the STURP. Indeed, the closer his review date came, the less he could reasonably be expected to support the transfer.

[99] Had Mr Taylor’s refusal to transfer voluntarily merely been bloody-minded or perverse, in the face of a compelling case in favour of it, then it may well have been relevant to the classification decision. But in the circumstances just described, the decision to penalise him for that refusal by overriding his otherwise Low- Medium reclassification outcome seems difficult to justify. If an override was warranted on that ground then the choice offered to Mr Taylor was never real; why

[100] Accordingly, I consider that in the particular circumstances of this case, Mr Taylor’s refusal voluntarily to move to Bravo Unit was a consideration that was irrelevant to the issue of risk and therefore to his security classification. The override was therefore unjustified. The circumstances also, in my view, give rise to

_{a reasonable inference that the reconsideration decision was made with
the improper}

³²Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [97]. Taunoa was concerned with the treatment of five prisoners held under a particular programme operated in D Block between 1998 and 2004. The programme was called the “Behaviour Modification Regime” and, later, the “Behaviour Management Regime” (BMR). BMR was found in the High Court to have been applied to the prisoners in breach of s 23(5) of the New Zealand Bill of Rights Act 1990 because they were not treated with humanity and with respect for their inherent dignity.

³³Had such an order been issued, I accept Mr Powell’s submission that Mr Taylor would have been required to obey, notwithstanding his views on the lawfulness of his detention in Bravo Unit. And unless and until the lawfulness of the move was successfully challenged, Mr Taylor’s refusal to comply with an order would, inevitably, have counted against him under a routine application of the policy guidelines.

purpose of enabling the Department to require him to transfer there. Tellingly, it did exactly that, two days later.³⁴

[101] Mr Taylor exercised his right under s 48(2) to apply for reconsideration of the August 2014 classification decision on the basis of two specific alleged factual errors in the review. Ultimately both grounds of error were held to be well-founded. But then the original classification was confirmed on a quite new basis, which Mr Taylor was prevented from challenging because s 48(3) provides that only one application for reconsideration can be made in any given six month period. The question is whether he was denied natural justice.

[102] The reason for the six month rule is obvious and compelling. As noted earlier in this judgment, literally thousands of review decisions are made each year. There would be an intolerable strain on administrative resources if a prisoner could apply multiple times within each six month period for reconsideration of a particular review decision. Equally, the fact that reviews occur every six months in any event would ordinarily mean that no injustice arises from restricting the number of reconsideration applications. Accordingly it is my clear view that in any ordinary case the requirements of natural justice are met by the limited statutory reconsideration procedure.

[103] What is less clear, however, is whether the statutory procedure contemplates what has occurred here. In particular, the decision ultimately made on Mr Taylor’s classification was based on an override of the normal policy which he had had no opportunity to challenge. He had (as I have held) a legitimate expectation that the Department’s policy would be followed, absent special and particular reasons which would be given in writing. And possession of reasons is of little comfort to a prisoner who has had no opportunity to respond to or challenge them. A right of challenge or response to what is, in reality, an entirely new decision is especially important given the profound and substantive impact that a classification decision

[104] My inclination therefore is to conclude that there was a breach of natural justice here.³⁵Given that Mr Taylor was not able immediately to apply for a further reconsideration, the Department should have given him the opportunity to comment on the proposed override before effecting it.

[105] I appreciate that the circumstances surrounding Mr Taylor tend to be difficult and dealing with the issues he raises is time-consuming. There is some validity in the concern that he may end up receiving preferential treatment simply by virtue of his tenacity. Equally, however, there is also a risk that his tendency to advocate vociferously for himself and others has some negative effect on the conditions of his incarceration. I have, for example, already indicated some concern over the coincidence in timing between the reconsideration decision and his removal by force to Bravo Unit. There are, I think, other examples evident from the foregoing narrative.

[106] In the end, all the Court can and should do is its best to determine his claims on their merits. And on balance, I consider that reviewable error has been made out here. In particular, I consider that:

(a) Mr Taylor had a legitimate expectation that the Department’s Policy guidelines governing the review of security classifications would (absent an override on clearly articulated grounds) be applied and applied consistently;

(b) the difference between the Department’s position in relation to A.5.5 in the review and its position in relation to the same matter in the reconsideration exercise was so extreme that it could not possibly fall within any available margin of appreciation. The different position taken breached the obligation to apply the Policy consistently and Mr

³⁵Obviously (due to s 48(3)) Mr Taylor did not seek to have the reconsideration decision reconsidered, although he did ask the Prison Inspectorate to review the decision. That request was declined on jurisdictional grounds.

(d) the Department’s (alternative) decision to override the security classification that was yielded by an orthodox application of the Policy guidelines could not be justified on the grounds of Mr Taylor’s refusal voluntarily to move to Bravo Unit as, in all the circumstances of the case, that refusal was irrelevant to his security classification. More particularly:

(i) the Department had decided to give Mr Taylor a choice about whether to transfer to Bravo Unit;

(ii) unless Mr Taylor had no cogent reason for exercising that choice against a voluntary transfer it would be wrong in principle to regard his refusal as indicative of a security risk of a kind that warranted an override;

(iii) Mr Taylor’s reasons for refusal were cogent and, by the time the review and reconsideration decisions were made, had received authoritative independent support (of which the Department was or should have been aware);

(e) in all the circumstances of Mr Taylor’s case there is an inference to be drawn that the reconsideration decision was made for an improper purpose, namely the Department’s desire to force him to transfer to Bravo Unit;

(f) in circumstances where the Department proposes to determine an application for reconsideration of a security classification review decision on grounds that played no part in the original review decision it should give the prisoner an opportunity to comment prior to making that determination. Failure to do so in Mr Taylor’s case constituted a breach of natural justice.

[107] There remains the question of remedies and, in particular, of whether Mr Taylor is able to obtain declarations aimed at facilitating his participation in the STURP. He takes issue with (but has not yet had the opportunity to address) the facts disclosed in Ms Miller-Burgering's affidavit about that. As directed by me on

27 March there is to be a separate hearing to address those matters. Further evidence relating to developments subsequent to the May hearing may also be required. The Registry is, accordingly, to arrange a telephone conference between the parties and me in order that the scope of the hearing can be addressed and necessary directions can be made.

[108] Although Mr Taylor sought costs, such an award is far from usual in relation to self-represented litigants. That issue, too, can be addressed at the next hearing if necessary.

High Court of New Zealand Decisions

Taylor v Chief Executive of the Department of Corrections [2015] NZHC 2196 (11 September 2015)