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High Court of New Zealand Decisions |
Last Updated: 29 July 2019
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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
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CIV-2018-485-409
[2019] NZHC 1727 |
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UNDER THE
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Judicial Review Procedure Act 2016
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BETWEEN
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PETER JOHN HARTLEY
Applicant
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AND
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THE ATTORNEY-GENERAL SUED IN RESPECT OF THE DEPARTMENT OF CORRECTIONS
First Respondent
THE PRISON DIRECTOR OF RIMUTAKA PRISON
Second Respondent
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Hearing:
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29 April 2019
30 May 2019 – further submissions for the Respondents 7 June 2019
– submissions in reply for the Applicant
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Appearances:
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Applicant self-represented via AVL from Christchurch Prison R S May for
First and Second Respondents
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Judgment:
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22 July 2019
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JUDGMENT OF CULL J
[1] Mr Hartley, the applicant, is currently a prisoner at Christchurch Men’s Prison. He applies for judicial review of the Department of Corrections’ decisions denying him access to certain litigation facilities, both historically and currently. Mr Hartley seeks directions from the Court for access to computer facilities which will enable him to work safely and protect his data.
HARTLEY v ATTORNEY-GENERAL SUED IN RESPECT OF THE DEPARTMENT OF CORRECTIONS [2019] NZHC 1727 [22 July 2019]
Background
[2] Mr Hartley was convicted of 18 counts of sexual offending against six teenage complainants and one count of making an intimate video recording.1 Mr Hartley appealed his convictions and his sentence of preventive detention. The Court of Appeal upheld his convictions but allowed his sentence appeal, substituting the preventive detention sentence with a sentence of 14 years’ imprisonment with a minimum period of imprisonment of 50 percent.2 Mr Hartley intends to appeal that decision to the Supreme Court. Before that, he intends to apply to seek leave from the Court of Appeal to adduce fresh evidence in respect of his convictions and raise further appeal grounds in the Court of Appeal.
[3] Over the course of his incarceration at Christchurch Men’s Prison and previously at Rimutaka Prison, Mr Hartley has made several requests to prison managers for access to certain litigation facilities and has been denied them. To understand the background of this claim, I will canvass Mr Hartley’s access to litigation facilities, first at Rimutaka Prison and secondly at Christchurch Men’s Prison.
Mr Hartley’s Access to Litigation Facilities
[4] While a sentenced prisoner at Rimutaka Prison, Mr Hartley made an application to the Department of Corrections (Corrections) for access to a computer to assist with litigation. At the time, he was a defendant in three High Court trials and had lodged an appeal in relation to his criminal convictions and sentence. Mr Hartley’s application was declined by the Prison Director on the basis that an electric typewriter was adequate to meet his needs, and that access to a computer would not be consistent with the maintenance of the safety and security of the prison.
1 R v Hartley HC Wellington CRI-2010-085-4305, 29 March 2012.
2 Hartley v R [2014] NZCA 162.
[5] Mr Hartley lodged a complaint with the Ombudsman on 14 May 2012 requesting an investigation into the reasonableness of Corrections’ decision to decline his request for access to a computer.
[6] Mr Hartley and the respondents agree that the best overview of his requests and the respondents’ responses to them is found in the two Ombudsman reports, which both relate to Mr Hartley’s time at Rimutaka Prison. The first report,3 the December 2015 report, covers the period from May 2012 to December 2015 and the second,4 the April 2017 report, covers the period from February 2016 to April 2017.
[7] In the December 2015 report, the Chief Ombudsman concluded that Corrections’ decision to decline Mr Hartley’s application for access to a computer was administratively unreasonable. The Chief Ombudsman considered that adequate facilities in Mr Hartley’s case would require that he have access to a computer. The Ombudsman did not accept that Corrections could demonstrate any real barriers to providing Mr Hartley with access to a computer, particularly in light of the fact that Mr Hartley had previously been granted the use of a computer. In the Ombudsman’s view, in declining a request for access to adequate facilities Corrections ought to be able to demonstrate, with tangible evidence relevant to the particular individual, that there is a security risk in allowing that individual to have computer access.5
[8] Mr Hartley lodged a further complaint with the Ombudsman on 8 February 2016, after the Prison Director declined his application for access to a computer for litigation purposes. It was declined on the basis that it was not practical; it was Mr Hartley’s third application; all personal computers are connected to the server and are internet capable; and an electronic typewriter is available and sufficient if Mr Hartley requires it for typing.
[9] In the April 2017 report, the Chief Ombudsman highlighted again that Mr Hartley’s past use of a computer suggested that he would not impose an undue risk in
5 At [149].
terms of safety and security in the future.6 At the time of the second Ombudsman’s report, access for voluntary segregated prisoners to a Secure Online Learning (SOL) suite was under consideration. The Chief Ombudsman’s provisional opinion was that Mr Hartley’s application for access to the SOL suite be reconsidered and that Corrections review the criteria for eligibility to the SOL suite.
[10] On 29 March 2017, Corrections wrote to the Chief Ombudsman, accepting his opinion that it was unreasonable to deny Mr Hartley computer access to assist with litigation. The Chief Ombudsman then issued his final opinion in the April 2017 report, noting that because Corrections had advised it will take steps to address the findings in his provisional opinion, no formal recommendations were going to be made in this instance. The Chief Ombudsman recorded Corrections’ agreement to:7
(a) reconsider Mr Hartley’s application for access to the SOL;
(b) review the criteria for eligibility to SOL, so that a tangible and evidenced link between a prisoner’s offending and the risk arising from the use of SOL is required; and
(c) review its computer facilities at Rimutaka Prison to ensure that computers are available to prisoners who meet the criteria for assistance with litigation.
[11] In a letter dated 27 April 2017, Corrections acknowledged the Chief Ombudsman’s final report of 12 April and advised the Chief Ombudsman that Mr Hartley has had access to the SOL suite at Rimutaka Prison from 7 April 2017. However, because Mr Hartley’s appeal has now been heard, access is no longer required. The letter also advised that Corrections is exploring options for amending its policy and ensuring access to SOL suites to assist prisoners preparing for litigation.
[12] Following the second Ombudsman’s report, the Prison Director issued a letter dated 13 July 2017 to Mr Hartley. The letter advised Mr Hartley that the Prison
6 Peter Boshier, above n 4, at [56].
7 At [75].
Director had given fresh consideration to his requests for access to litigation facilities and he approved Mr Hartley’s request for direct access to a computer. However, this access is restricted to the SOL suite and if Mr Hartley is not satisfied with this approval the Director advised that he could pay for typing could be done. Mr Hartley was offered access to the SOL suite four times a week. The request for a personal computer to be issued to Mr Hartley or to be kept by him as authorised property was declined. Authorisation was also given for indirect access to scanning facilities, printing and photocopying facilities.
[13] Mr Hartley declined to use the SOL suite because it was not sufficiently private for his requirements. He did however use the suite to photocopy documents.
At Christchurch Men’s Prison
[14] Since issuing these proceedings, Mr Hartley has been transferred to Christchurch Men’s Prison, on 19 July 2018. The Acting Prison Director of Christchurch Men’s Prison, advised Mr Hartley, by letter dated 6 November 2018, that she declined his request for direct access to a computer, word processor programme, A4 colour document scanner, A4 laser colour printer, full sized keyboard and a USB backup memory drive. The Director authorised Mr Hartley instead to have indirect access to a photocopier, direct access to an electronic typewriter to be used during unlock hours, indirect access to scanning facilities and indirect access to a printer. Mr Hartley was further authorised to have access to legal research materials at his own cost, depending on the circumstances.
[15] The reasons given for her decision were:
(a) The items requested are unable to be issued as authorised property;
(b) The Prison does not have the space to provide a private room for Mr Hartley’s use, or the resources to provide staff to supervise Mr Hartley and monitor his computer use;
(c) There is also a realistic prospect that providing Mr Hartley access to a computer unmonitored might enable him to connect to the internet, with the risk he may contact his victims or potential victims.
[16] At the time, the Director acknowledged that there were currently no computer facilities available to prisoners with voluntary segregation custody status, as Mr Hartley had. By the time of this hearing that position had changed, as voluntary protective custody prisoners now have access to the SOL suite following the repurposing of an existing unit at the prison.
The Judicial Review Proceeding
[17] Mr Hartley filed these judicial review proceedings in May 2018 under regulation 193 of the Corrections Regulations 2005 (Regulations) and ss 24(d) and 25(b) and (h) of the New Zealand Bill of Rights Act 1990 (NZBORA) for access to adequate litigation facilities and time to prepare his appeal.
[18] Mr Hartley seeks a direction from this Court that Corrections provide him with:
(a) hardware or software, without any connectivity, to enable him to operate:
(b) access to the computer for six hours per day, seven days per week, in a private area not accessible by other prisoners.
[19] Mr Hartley has agreed to fund the costs of the above without any claim of personal ownership or possession and requests that these facilities should be available until the end of his appeal litigation.8
[20] The respondents oppose Mr Hartley’s application for review and the relief he seeks. They say that Mr Hartley has alternative facilities available to him, namely a typewriter and writing materials, which are adequate for the purposes of allowing him to participate in the proceedings. They say further that Mr Hartley’s request for computer equipment for his personal and unsupervised use would amount to the issue of property to the applicant. Property can be issued to prisoners only if it is declared to be authorised property by the Chief Executive.
Legislative Framework: The Prison System
[21] The legislative framework under the Corrections Act 2004 (the Act) and the Regulations govern the administration of Mr Hartley’s sentence of imprisonment. There are three aspects of the framework which are relevant to this proceeding: the maintenance of public safety and access to or the issuing of authorised property and access to litigation facilities.
Public safety
[22] One of the principles guiding the system of Corrections is that the maintenance of public safety is the paramount consideration in decisions about the management of persons under the control or supervision of Corrections.9 In Taylor v Chief Executive of the Department of Corrections, the Court of Appeal, in considering an appeal by Mr Taylor against a refusal to grant interim orders ensuring continued contact with his daughter, canvassed the purpose and principles of the Corrections’ system.10 The Court of Appeal said:
[28] The operation and control of prisons is provided for in the Corrections Act 2004 and regulations made under its authority. The purpose of the corrections system, as stated in s 5(1) of the Corrections Act, is to “improve public safety and contribute to the maintenance of a just society”. Section 6(1)(a) provides that the “paramount consideration” in decisions about the management of persons under control or supervision is that public safety is maintained. While a prisoner is not wholly deprived of the rights available to other citizens, the particular need in prisons to maintain order and discipline has been recognised in a number of decisions.
for Corrections’ future decision-making. Mr Hartley no longer pursues access to and possession of his legal documentation as that issue had been resolved.
9 Corrections Act 2004, s 6(1)(a).
[23] The Court of Appeal said further that a court will hesitate before making any order affecting the discretion of a prison manager to control visits, and that hesitation will be even greater when the proposed orders have a mandatory quality in the sense of directing positive action.11 The Court continued:12
A court imposition of such positive duties on the prison manager might require the prison manager to use prison resources in a manner which may compromise that public safety (which is the “paramount consideration” as described ...).
Authorised property
[24] Section 45A of the Act places an obligation on the Chief Executive to make rules declaring the items of property that prisoners may be issued with or allowed to keep and any conditions that may attach to such an item of property.
[25] On 10 March 2016, under s 45A of the Act, the Chief Executive amended the authorised property rules by way of declaration.13 Personal computers, which had previously been considered an authorised electrical item under schedule 3 of the rules, were removed from the “authorised electrical items” category. In a recommendation report to the National Commissioner of Corrections, it was said the computers should be removed due to safety concerns. The recommendation stated:
This change would significantly reduce the risks to public safety outside the prison and the maintenance or security and good order within the prison associated with prisoners accessing their own personal computers.
Any detrimental effect on prisoners will be mitigated as a result of the Department’s programme of introducing additional computers and related resources to increase support for prisoners’ rehabilitation and reintegration into the community.
Access to litigation facilities
[26] Regulation 193, on which Mr Hartley’s application is based in part, provides that prisoners are entitled to adequate facilities to prepare for certain stipulated proceedings, so far as is reasonably practicable in the circumstances and to the extent
11 Taylor, above n 10, at [29].
12 At [29].
that this is consistent with the maintenance of safety and security requirements.14 The regulation applies to any prisoner who is appealing or applying for leave to appeal against any conviction, order, or sentence.15
[27] During the course of Mr Hartley’s incarceration at Christchurch Men’s Prison and previously at Rimutaka Prison, he has made requests to prison managers for access to litigation facilities under Policy F.07 of the Prison Operations Manual. Policy F.07 records that the obligation in reg 193 applies only to criminal and immigration proceedings, but states that prisoners engaged in other types of litigation may also be provided with access to facilities at the discretion of the Prison Director. Policy F.07 also provides that stationery supplies should generally be available on request; access to legal research material is more problematic because of resourcing and consideration should be given to whether the prisoner can reasonably access that material by other means; and access to computer facilities raises significant concerns with the maintenance of safety and security requirements. The Policy states:
Access to computer facilities should only be provided where there are sufficient resources available to provide such access (bearing in mind also the fair treatment of other prisoners and the need for consistency in access to such facilities).
Access to computer facilities should only be considered where there is a demonstrated need for such facilities, and where the desirability of meeting that need outweighs the risks of providing the requested access to the particular prisoner in the circumstances.
Consideration should also be given to whether the demonstrated need can be met in other ways.
[28] Of relevance to this proceeding, the Policy also states:
A prisoner who requires access to a computer for the purposes of managing extensive documentary disclosure may be able to use other devices for that purpose, or may be provided with a modified computer with all external ports sealed off. Specialist IT advice may be required to determine the appropriate options available to reduce identified risks.
14 Corrections Regulations 2005, reg 193(2).
15 Regulation 193(1).
NZBORA claims
[29] Mr Hartley also relies on NZBORA, namely s 24(d) which provides that everyone who is charged with an offence has the right to adequate time and facilities to prepare a defence, and s 25(h) which provides that everyone, if convicted of an offence, has the right to appeal to a higher court against the conviction or the sentence or against both.
Analysis
[30] There are a number of cases which have traversed the place of the s 24(d) NZBORA right to “adequate time and facilities to prepare a defence” and reg 193. In Taylor v District Court at North Shore, White J held that the adjective “adequate” significantly limits the nature of the “facilities” which are contemplated.16 Drawing on the Court of Appeal’s decision in Attorney-General v Otahuhu District Court which noted that s 24(d) is not a new right, it “is in aid of the primary right to a fair trial” and it is a restricted right,17 White J observed that the Court of Appeal has subsequently held that adequate facilities today will include access to a computer.18
[31] In R v Greer, the Court of Appeal held that Mr Greer’s lack of access to a computer had not resulted in a miscarriage of justice but observed that it may be time for the regulations relating to computers in cells to be revisited. The Court said:19
[39] We comment that it may be open to doubt in the twenty first century that the provision of writing materials only to an inmate, could in all cases be regarded as adequate facilities with which to prepare that defence, particularly if the inmate plans to conduct his or her own defence. It may therefore be time for the regulations relating to computers in cells to be revisited or at least for prisons to ensure that access to computers is provided in another manner to those who may need them to prepare their defence.
[32] However, the courts have stopped short of making directions to Corrections to provide specific facilities. The Court of Appeal has cautioned courts to be hesitant
16 Taylor v District Court at North Shore HC Auckland CIV-2009-404-2350, 24 March 2010 at [73].
17 Attorney-General v Otahuhu District Court [2001] NZCA 187; [2001] 3 NZLR 740 (CA) at [47]–[49].
19 R v Greer CA 197/01, above n 18.
when making orders affecting the discretion of a prison manager, particularly when the proposed orders have a mandatory quality in the sense of directing positive action.
[33] The respondents submit that Mr Hartley’s application “for a directive” that Corrections provide him with computer facilities is a request for an order in the nature of mandamus. They point to a number of decisions where the courts have declined to direct access to a computer. In Taylor v District Court at North Shore, Mr Taylor was declined declaratory relief as to litigation facilities, with White J stating there was no reason to conclude that Mr Taylor would not obtain access to adequate facilities to prepare his defence.20 Subsequently, Allen J declined Mr Taylor an interim order relating to computer access, accepting that “it is not seriously arguable that the Court could make a final order requiring the Prison Manager to provide computer and work room facilities on a permanent basis.”21 Similarly, in R v Greer, Mr Greer was declined relief directing access to computer facilities, with MacKenzie J stating “[i]t is not appropriate for the Court to become involved in issues of prison security and prison discipline. It is not for the Court to direct how the Department of Corrections is to fulfil its obligations under ref 193 of the Regulations”.22 Again, in 2018, Cooke J declined to make an interim order that Mr Greer have access to a computer, noting the importance of not overriding a prison manager’s ongoing assessment of what is properly required for the safe and secure management of the prison.23
[34] The respondents submit that the courts have consistently emphasised that questions of safety and security are matters for Corrections. The Supreme Court held in Condon v R that rights under s 24 of NZBORA are a “constituent element” of a right of a fair trial under s 25(a).24 The respondents say that there are a number of ways in which the courts can respond to a prisoner’s rights under s 24(d) without granting a remedy that may affect prison safety and security.
20 Taylor v District Court at North Shore, above n 16, at [87].
21 Taylor v Chief Executive of the Department of Corrections (No 2) HC Auckland CIV-2011-404- 3227, 5 August 2011 at [65] and [68], although that decision was made in the context of interim orders.
22 R v Greer [2014] NZHC 358 at [28].
23 Greer v Chief Executive Department of Corrections [2018] NZHC 1240 at [34]–[35].
24 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [76].
[35] The respondents also draw attention to the fact that Mr Hartley’s application in these proceedings is directed at his criminal convictions for historical sexual offending only. His core submission is that Corrections’ failure to provide litigation facilities and Corrections’ mistreatment of his documentation resulted in his initial convictions and his unsuccessful appeal.
[36] The respondents therefore submit that Mr Hartley’s proposed appeal proceedings are stale. The Court of Appeal in 2014 undertook “an extensive review of the evidence at trial, and evidence in this Court about what happened in the High Court and the conduct of counsel there,” and recorded that the applicant’s appeal “left no ground untraversed”.25 The Court of Appeal heard evidence from a senior Department of Corrections officer, Mr Portland, on how Mr Hartley stored his documents and the photocopying arrangements between Mr Hartley and his lawyer during the High Court trial. Because of that, and the Court of Appeal’s thorough decision declining Mr Hartley’s appeal against his convictions, the respondents submit the High Court should be extremely reluctant to analyse the respondent’s conduct prior to the Court of Appeal’s decision.
[37] In any event, the respondents submit that an application for leave to appeal to the Supreme Court is confined to written submissions not exceeding 10 pages.26 The respondents say this highlights the adequacy of the litigation facilities currently available to Mr Hartley because of the limits imposed on him to bring such an appeal.
[38] Mr Hartley initially thought he would seek leave to appeal the Court of Appeal decision to the Supreme Court, although it was out of time. However, Mr Hartley intends to seek leave from the Court of Appeal to adduce further evidence in relation to his convictions and apply for a new appeal in the Court of Appeal on that basis. He maintains that he was impeded in addressing the historical nature of the sexual abuse allegations during his High Court trial because of his inability to access adequate litigation facilities and provide adequate instructions to his counsel. He has also made enquiries and undertaken further investigation of evidence which is now available and,
25 Hartley v R [2014] NZCA 162 at [2].
26 Supreme Court Rules 2004, r 20.
he says, is relevant to the findings against him, both in the High Court and the Court of Appeal.
[39] Before he can obtain legal representation, Mr Hartley has been advised he will need to provide the full details of the background facts. Because there are numerous grounds of appeal, each of which will need to be carefully presented and supported, the material will be voluminous. The High Court trial lasted three weeks and the material required to prepare for his appeal and instruct counsel he estimates will amount to at least 2,000 pages. He estimates that will take 1,400 hours of computer access, taking him a full year to prepare for his appeal, provided he uses a computer and has access to it for six hours a day, seven days a week.
Is Mr Hartley’s access to litigation facilities adequate?
[40] Following the release of the Ombudsman’s provisional report in March 2017, Mr Hartley submits he was summonsed to a meeting with PCO Harrison where he was advised that Corrections had decided to provide Mr Hartley with access to a dumb- terminal computer word processor, a document scanner, a printer and two flash drives. Mr Hartley submits Corrections agreed that this equipment would be stored in a work area set aside for his use. However, because of “difficulties” sourcing the equipment, Corrections advised Mr Hartley that he was to be given access to a typewriter and a room, where all the litigation was to be prepared. Mr Hartley submits that the Corrections’ decision in March 2017 was appropriate, as it would have provided him with an adequate facility to prepare his appeal litigation.
[41] In this hearing, Corrections has accepted the Chief Ombudsman’s provisional opinion that prisoners should be granted access to computers as a litigation facility. Further, Corrections confirmed that, at the time of this hearing, voluntary protective custody prisoners can now have access to the SOL suite. That accords with the views of the Chief Ombudsman.
[42] However, that is not an end to this matter. Mr Hartley submits that access to the SOL suite is not an adequate facility for two reasons:
- (a) There is a lack of database security and backup facility provided in the SOL suite. The SOL suite is available for voluntary segregated prisoners who can read his documentation on the screen or have access to the documents Mr Hartley is working on. Nor is there an ability to save documents on the computers in the SOL suite or protection for documents being deleted. Third parties, Mr Hartley says, can access his documents remotely, so there is no data protection or privacy.
(b) He fears for his personal safety in the SOL suite, because the SOL suite has no privacy. As a convicted sex offender, Mr Hartley considers he would be a target for other prisoners accessing the SOL suite, particularly as prisoners can access the suite in groups.
[43] In summary, Mr Hartley seeks data security and personal privacy and safety. During the course of the hearing Mr May for the respondents sought leave to respond to Mr Hartley’s reasons for declining to access the SOL suite. I granted leave for Mr May to present either further submissions or evidence and gave Mr Hartley an opportunity to reply.
[44] The respondents’ position in reply is that both data protection and personal safety are secured in the current SOL suite arrangement. Concerning data protection, prisoners using the SOL suite are provided with their own electronic workspace in which documents can be created and saved. Access is by means of a biometric system and a security code; a prisoner scans his fingerprints and then enters a four-digit pin to authenticate his identity.
[45] In relation to concerns about backing-up documents created in the SOL suite, Corrections say that prisoners’ documents are stored on a central server, which is backed up daily. If Mr Hartley is concerned about the possibility of losing his work due to any inadequacies of the central back-up system, the respondents submit he could print the pages he has written at the end of each session in the SOL suite.
[46] Concerning his personal safety, the respondents replied that if Mr Hartley were to use the SOL suite, it would only be in the company of the other segregated prisoners
with whom he shares his unit. While custodial staff are not always present in the SOL suites, a tutor is present at all times, and has with them a radio alarm to alert custodial staff to any concerns about physical safety. Custodial staff are able to respond to an alert in around one minute. Further, the SOL suite is covered by security cameras monitored from the Kotutu Unit, which is connected to the SOL suite.
[47] In his subsequent response to Corrections’ submissions, Mr Hartley says the fingerprint scan is highly unreliable, and the loss of SOL users’ files is a common occurrence. He still has concerns about third parties accessing his files and documents remotely through the network, particularly parties in the litigation he is involved in, such as Corrections.
[48] Mr Hartley still claims that there is a lack of any custodial staff to monitor the SOL suite and that there will be occasions when the tutor and, therefore, the alarm will not be present. He fears that this will create the opportunity for him to be assaulted, as has happened previously during his incarceration. The cameras monitoring the availability of the radio alarms and the purported rapid response time of the guards in the neighbouring unit are not sufficient protection for his safety. Mr Hartley submits it is for these reasons that he cannot undertake litigation preparation of a sexual nature in a SOL suite, with material both viewable and accessible by other prisoners from other units.
Decision
[49] Mr Hartley’s allegations of inadequate access to litigation facilities have been the subject of two Chief Ombudsmen reports, which found that the Corrections’ responses were unreasonable and recommended, albeit informally, that Corrections reviews its policy on computer access by prisoners for litigation purposes. Mr Hartley was then given access to the general SOL suite in July 2017. Because of Mr Hartley’s concerns, he did not access it and I do not consider anything turns on this point.
[50] Corrections have taken steps to fulfil its obligations under reg 193 and have made available a SOL suite for the purposes of low risk and voluntary segregated prisoners, like Mr Hartley, who can access computer facilities for litigation purposes. If such facilities are available to prisoners to create litigation documents, it follows
that there needs to be some means taken to ensure that the prisoners’ data is protected and that the prisoners can attend the SOL suite without fear for their personal safety. It follows that if those protections are not in place, the provision of such a facility is meaningless.
[51] I do not consider this is such a situation. Mr Hartley’s safety concern is that prisoners outside his unit will be able to access the SOL suite at the same time as him. Corrections have confirmed that is not the case: Mr Hartley will share the SOL suite with other segregated prisoners from his unit only. I accept this submission and find therefore that the SOL suite provides “adequate facilities”. The use of partitions or screens, monitors and other removable room dividers may be a further means for Corrections to address the issue of prisoners’ privacy, if required.
[52] Further, I consider there are adequate measures in place to protect Mr Hartley’s data, including back-ups. As noted, access to the systems in the suite is by way of a biometric system and a security code; a prisoner scans his fingerprints and enters a four-digit pin to authenticate his identity. Mr Hartley is concerned about the reliability of such scanning devices, submitting at times he is unable to scan in to access his documents. As this does not speak to a breach of his data protection, but to the IT abilities on hand at the prison, I put it to one side.
[53] Finally, I deal with Mr Hartley’s concerns that Corrections may be able to access his litigation files and documents remotely, which will be prejudicial to his case. The Crown, as a party to Mr Hartley’s proceedings, has an obligation to conduct itself as a model litigant and any such action undertaken by any member of staff at Corrections would be contrary to its legal obligations and repugnant to the interests of justice in the circumstances. In any event, the Court will normally decline to issue a declaration in cases where there is a hypothetical question or a prediction of future events.27
[54] In reaching my conclusions on each of the matters raised, I am cognisant of the long-standing authority that it is not the role of the courts to direct prison managers or
27 Omaha Beach Residents’ Society (Inc) v Townsend Brooker Ltd [2010] NZCA 413; [2011] NZRMA 1 (CA) at [46].
Corrections as to how they allocate their resources, or to direct the positive action of a Prison Manager.
[55] On the information provided to this Court, I am satisfied that Mr Hartley has “adequate facilities” to prepare for his litigation. This is by way of his access to the SOL suite, which will be shared only with other segregated prisoners from his unit, thus ensuring Mr Hartley’s personal safety and privacy, and where the data in Mr Hartley’s documents is secured.
Result
[56] The application for review is declined.
Cull J
Luke, Cunningham & Clere, Wellington for the Respondents
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