Forrest v Attorney-General  NZCA 125 (2 April 2012)
The New Zealand Court of Appeal has awarded $600 in compensation to a prisoner who experienced two unlawful strip searches in the same day.
The plaintiff was moved to the highest security block of the Christchurch Prison after threatening prison staff. Two days after the plaintiff was transferred to the block, all of the prisoners within the block were strip-searched. Later that same day prison authorities attempted to move the plaintiff back to the lower security block. During this process the plaintiff was left unaccompanied in an area called the “the sally port”, which was a reasonably small room adjacent to an interview room into which the plaintiff was then taken.
In the course of his interview, the plaintiff threatened authorities and had to be restrained. It was decided that the plaintiff was to remain in the high security block. Upon arrival back at the highest security block, the plaintiff was restrained and strip-searched a second time.
The plaintiff made a complaint using the internal complaint system. He also made a complaint to the Ombudsman. Dissatisfied with the outcome, he then brought an action against the Attorney-General contending that both strip searches were unlawful and amounted to a breach of section 21 of the New Zealand Bill of Rights Act 1990 (NZ), which protects against unreasonable search or seizure.
The Court at first instance held that only the first strip search was unlawful and found that no compensation was appropriate in the circumstances. On appeal, the Court of Appeal considered:
- whether the judge erred in finding that the second strip search was lawful; and
- if the second strip search was unlawful, whether compensation should be awarded.
Was the strip search unlawful?
Having regard to the facts, the Court of Appeal stated that the strip search would only be lawful under the New Zealand Corrections Act if: (a) the officers had reasonable grounds for believing that the prisoner had in his possession an unauthorised item; (b) the strip search was for the purpose of detecting an unauthorised item; (c) the strip search was necessary in the circumstances for the purpose of detecting an unauthorised item; and (d) the prisoner had returned from a part of the prison that was not supervised.
At first instance, the trial judge found that all four of the above requirements were met. The trial judge focused on point (d) above, agreeing with the Attorney General’s proposition that the sally port was a part of the prison that was not supervised.
However, in overturning the decision the Court of Appeal considered that the sally port was supervised because the sally port was: immediately outside the interview room; located such that officers were frequently passing through it; covered by a security camera; and in a position where officers in an adjacent recreation area could see into it.
Moreover, the Court of Appeal held that the judge at first instance had erred in failing to adequately consider point (c) above, i.e. whether the officers considered the search necessary in the circumstances to detect an unauthorised item. The Court of Appeal outlined a number of factors that the officers should have taken into account when deciding whether a strip search was necessary in the circumstances, namely:
- whether a scanner or rub-down search was likely to detect the unauthorised item (in which case a strip search is less likely to be necessary in the circumstances);
- where the prisoner had been prior to the search (the prison kitchen was used as an example);
- the history of the particular person (a strip search being more likely if the prisoner has a history of secreting unauthorised items in body orifices); and
- the two fundamental principles guiding the correction system, namely the need for: (a) fair treatment of persons under control or supervision; and (b) decisions about those persons to be taken in a fair and reasonable way.
The Court of Appeal stated that on the evidence, “none of the three officers said that they thought the plaintiff was carrying an unauthorised item or could point to evidence justifying an inference that he might be”, thus failing to meet the lawful requirements for the second strip search. Moreover, the Court of Appeal felt that “some of the evidence would suggest that the prison was running an informal blanket policy of strip searching every prisoner on his admission [or entry] to J Block”, which would have been unlawful.
Consequently, the Court of Appeal found that the strip search was not lawful on two grounds. First, the officers had not considered whether the strip search was necessary in the circumstances for the purpose of detecting an unauthorised item, and secondly, the prisoner had not returned from a part of the prison that was not supervised.
The plaintiff did not appeal the trial judge’s decision not to award compensation for the first unlawful strip search. However, he sought compensation with respect to the second strip search.
The Court of Appeal acknowledged that in accordance with the Prisoners’ and Victims’ Claims Act 2005 (NZ), compensation can only be awarded in “exceptional cases and used only if, and only to the extent that, it is necessary to provide effective redress” (section 3(1)). Before compensation may be awarded, the Court must be satisfied that: (a) the plaintiff has made reasonable use of all the specified internal and external complaints mechanisms reasonably and has not received redress that the Court considers effective; and (b) another remedy or combination of other remedies cannot provide redress that the Court considers effective, which must be decided after reviewing the mandatory considerations under section 14(2).
In relation to (a) above, the Court of Appeal held that by appealing to the Ombudsman and making a complaint via the internal complaints system, the plaintiff had made reasonable use of all of the specified internal and external complaints mechanisms. The Court of Appeal also found that the plaintiff had not received an effective redress because “neither investigator turned his mind to whether the strip search was lawful” and both appeared to reject the plaintiff’s account on the basis that it was not “conclusive” without interviewing prison staff or reviewing other evidence.
In determining that compensation was the best remedy in the circumstances, the Court of Appeal considered the factors required by section 14(2) as follows:
- there was nothing the plaintiff could do to mitigate the loss or damage he suffered from the unlawful strip search save to complain, which he did, and no one turned their mind to whether the strip search was lawful in the first place;
- the officers did not deliberately set out to breach the plaintiff’s rights or act in bad faith, but they do not appear to have considered whether the search was lawful or necessary in the circumstances;
- despite being threatening earlier, the plaintiff did not appear to have done anything at the time of the strip search to have rendered it necessary (he was entitled to resist the strip search because it was unlawful);
- the consequences to the plaintiff have not been significant – he suffered short-lived indignity that was only witnessed by four officers; an ankle injury sustained during resistance was minor and occurred “accidentally”;
- the liberties protected by the right against unreasonable searches are very important, however, against that “there must be an air of reality about life in prison”;
- there appears “to be a need to deter unlawful strip searches, as the evidence in this case suggests other prisoners have been strip searched on occasions where such searches may not have been lawful”; and
- two unlawful strip searches in the same day is a very relevant “other matter” to be considered (particular emphasis was placed on this point).
In light of the above, the Court of Appeal held that this was an exceptional case requiring an award of compensation. In quantifying the compensation at $600, they placed emphasis on the fact that the period of the strip search was brief, the strip search was only witnessed by the officers conducting it, that there were no ongoing consequences to the plaintiff, and that the facts were far less serious than the prisoners’ complaints in Taunoa v Attorney-General  NZSC 70.
Relevance to the Victorian Charter
This decision demonstrates the need for prison officers to understand and consider their human rights obligations when dealing with prisoners. It indicates that strip searches are to be conducted only as a last resort and should be carefully deliberated.
Unlike section 21 of the New Zealand Bill of Rights Act 1990, there is no specific provision in the Victorian Charter that relates to unreasonable search or seizure. Nor is there a provision that entitles a person to damages because of a breach of the Charter rights (section 39(3)). On the other hand, section 22(1) of the Charter requires that all persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person, and the Corrections Regulations 2009 (Vic) contain similar strip search provisions to those in the New Zealand Corrections Act 2004. Consequently, this decision will provide useful guidance to a Victorian court when considering similar issues.
This decision is available online at: http://www.nzlii.org/nz/cases/NZCA/2012/125.html
Megan Evetts is a Law Graduate in the King & Wood Mallesons Human Rights Law Group.