Investigation of the Department of Corrections in relation to the transport of prisoners
The principle that persons in custody should be kept safe is reflected in international Conventions. Both Article 3 of the United Nations Universal Declaration of Human Rights and Article 9(1) of the International Convention on Civil and Political Rights (ICCPR) state, “Everyone has the right to … security of person.”
Furthermore, duties of care by the State towards prisoners arise under New Zealand civil law (common law and statute), and under New Zealand criminal law insofar as the necessaries of life must be provided. Any failure to comply with these duties exposes the Department and the Crown to legal action by any prisoner who suffers as a result.
The tragedy of Liam Ashley aside, as Chief Ombudsman I had earlier become aware of certain complaints by prisoners in respect of road transport. These related to excess temperatures in prisoner transport vehicles, lack of adequate rest breaks, and other forms of discomfort that were said to be unreasonable in the context of sometimes lengthy journeys.
Conditions of discomfort could be sufficient to breach section 23(5) of the New Zealand Bill of Rights Act 1990 and Article 10(1) of the ICCPR, which state that all persons deprived of their liberty “shall be treated with humanity and with respect for the inherent dignity of the person”.
In all the circumstances, pursuant to section 13(3) of the Ombudsmen Act 1975, I decided to undertake an investigation of my own motion into prisoner transport by the Department. On 29 August 2006 I advised the Speaker of the House of Representatives, the Minister of Corrections, the Minister of Justice and the Department of my decision. A copy of the terms of reference is at Annex 1.
At an early stage of my investigation, former Ombudsman Mel Smith was re-appointed. In 2005, Mel Smith and I had jointly undertaken a general investigation of the Department, and provided to Parliament a Report entitled “Ombudsmen’s Investigation of the Department of Corrections in Relation to the Detention and Treatment of Prisoners”. Our investigation had not included examination of the transport of prisoners, but had been limited to conditions within prisons. I invited Mel Smith to participate also in the present investigation, and he agreed to do so. This Report is thus made in our joint names.
We emphasise that our investigation has been directed at general transport conditions for prisoners, and matters of broad and systemic impact that affect day to day movements of prisoners. The death of Liam Ashley in part prompted the investigation, but we have not revisited the detail of that matter. The Department has examined that incident through an investigation by a Prison Inspector whose report has been issued publicly. The circumstances were also the subject of the criminal investigation by the Police that led to the conviction of Liam’s murderer.
The Department has a project in train for addressing the issues raised directly and indirectly by the Liam Ashley report. This involves review of:
- the processes and procedures relating to prisoner escorts;
- the Prisoner Escort and Courtroom Custodial Services contract between the Department and Chubb; and
- prisoner transportation – safety and security of the vehicle fleet.
As a result of the project, a number of the concerns that we identify in this Report are already under consideration, or are listed for future consideration, by the Department. At Annex 2 we attach a list of issues being addressed by the Department as at 30 March 2007. Nevertheless, this attention by the Department does not in our view undermine the need for this Report. Indeed, we trust this Report will assist the Department and provide a platform for on-going action. We have prepared it to reflect prisoner transport as it operated at the time of our inquiries - and without assuming the Department’s future amendment of prisoner transport procedures as implied by Annex 2.
In commenting for the purpose of this Report, the Department has emphasised that safety in prisoner transport must have regard to three interest groups. Not only must the safety of the prisoners themselves be taken into account, but also that of the custodial staff who are at risk from violent prisoners, and that of the public who must be protected from harm that escaped prisoners might inflict.
We agree that safety is not something that should be considered only from prisoner viewpoints. However, there is no reason why safe and humane containment of prisoners should conflict with the safety of custodial staff and the public. We do not believe that the adoption of any recommendations that we have made will diminish the Department’s ability to maintain secure and appropriate containment.
Legislation provides that it is “the chief executive” of the Department who is responsible for undertaking numerous functions customarily associated with the Department. For convenience, for the most part we refer below simply to “the Department”.
The head office of the Public Prisons Service (PPS) division of the Department that issues general instructions to prisons is known as “National Office”, and we use this term in our Report.
Under a contractual power included in the now repealed Penal Institutions Act 1954 and currently contained in section 166 of the Corrections Act 2004, the Department may enter into contracts for the provision of prisoner escort and courtroom custodial services. The provider is defined as a “security contractor”.
Chubb New Zealand Ltd (Chubb) was appointed as a security contractor with effect from 1 October 1998, and has continued to be engaged by the Department. Its duties are (and were) to provide prisoner escort and courtroom custodial services in the Department’s PPS Northland Region. The first contract was for five years, and this was extended by nine months pending tenders for a full new contract. A new five year contract was then awarded to Chubb with effect from 1 July 2004. The current contract includes delivery and collection of prisoners between courts, prisons, and forensic psychiatric facilities.
The contract commencing 1 July 2004 was agreed prior to the commencement of the Corrections Act 2004 and the Corrections Regulations 2005. By the latter stages of our investigation, steps were being taken to update the contract specifically to reflect present legislation. We understand that the trigger for this was Liam Ashley’s death.
The services Chubb is required to provide are set out in detail in the security contract. However, the contract empowers the Department to change the terms of that service delivery (with a commensurate adjustment of fee to Chubb in the event of a change that substantially increases or reduces the burden of the contract on Chubb).
The initial preparation of this Report was undertaken on the basis of the security contract as it stood at the commencement of the investigation. We prepared a draft Report for comment by the Department and Chubb on 18 April 2007. However, on 28 April 2007 the Department and Chubb agreed a significant contractual variation by deleting a Schedule entitled “Service Description”, and substituting a new Schedule “Description and Scope of Services” (also referred to as “Scope and Description of Services”). We were advised of the terms of this variation two days before the deadline that we had given to the Department and Chubb for responding to our draft Report. Two earlier contractual variations were already in place prior to our investigation, and in the text of this Report we refer to the new terms as “Variation No.3”.
This Report does not analyse and compare the contractual terms before and after Variation No. 3. We did not consider that this would contribute significantly to our conclusions and recommendations, and we did not wish to delay presentation of this Report unnecessarily. Nevertheless, we do make a few references to the Variation where its terms seem particularly pertinent.
Chubb has considerable interaction with prisoners. It counts the “tasks” that it undertakes by its contract. A single journey for a prisoner is one task, as is any occasion when Chubb has custody of a prisoner during a court hearing. In the year ending 30 June 2006, Chubb undertook 46,813 tasks.
Liam Ashley was being transported by Chubb at the time he suffered his fatal injuries.
No other security contractor has ever been engaged by the Department.
By section 171 of the Corrections Act 2004, a security contractor must report regularly to the chief executive of the Department on various matters including the training of staff, complaints against the security contractor, disciplinary actions against staff, incidents of violence or self-harm by prisoners, use of force against prisoners and any other matter that the chief executive requests.
Furthermore, by section 172 of the Corrections Act 2004, the chief executive of the Department must appoint a "security monitor" for each security contractor. The duty of the security monitor is to assess and review the carrying out of the relevant security contract, and to report to the chief executive at regular intervals.
Section 175 of the Corrections Act 2004 states that security contractors (and their employees who are defined under the Act as “security officers”) are treated as employees of the Department for the purposes of the Ombudsmen Act 1975. To that extent, Chubb and its escort staff are subject to an Ombudsman’s jurisdiction.
Pursuant to section 11(1)(b) of the Corrections Act 2004, the Department employs staff who are entitled “Corrections Officers”. These persons have wider responsibilities than “security officers”, but their functions and powers are essentially the same in regard to the physical aspects of transporting prisoners.
By section 17 of the Corrections Act 2004, the Department may itself appoint “security officers” whose functions are restricted to courtroom and escort duties. No security officers have been employed directly by the Department.
In this Report, we use “departmental staff” to mean Corrections Officers and staff of the Department, and thus distinguish them from persons employed by Chubb.
Persons are transported in custody by the Police, as well as by, or on behalf of, the Department. The Police hold in custody (and transport) persons they have arrested, as well as “prisoners”. “Prisoners” in this sense means persons remanded or sentenced to custody by a court.
The Police are not subject to the Ombudsmen’s investigative jurisdiction in relation to their transport of persons in custody. This arises from section 13(7)(d) of the Ombudsmen Act 1975, which limits an Ombudsman’s jurisdiction over the Police.
Remanded and sentenced prisoners are transported both by the Police and the Department by agreement between the two agencies.
Section 38 of the Corrections Act 2004 provides for the legal custody of prisoners as between the Police and the Department. In the context of transport, the responsibility for custody lies on the agency carrying the prisoner for the time being. Thus, if a prisoner is collected by the Police from a prison, legal custody passes to the Police. If a prisoner is transferred from one agency’s vehicle to a vehicle of the other (as sometimes occurs), legal custody of the prisoner is also transferred.
Chubb may transport persons in the custody of the Police who have not yet been remanded or sentenced by a court. However, it does so as part of its security contract with the Department, and any “police” prisoners become subject to the regime of the Department and the Corrections Act 2004.
Substantial prisoner transportation is undertaken by the Police, and the content of this Report may well be of interest to them. However, for the jurisdictional reason explained above, our investigation has been restricted to prisoner transport by the Department (and Chubb as a security contractor to the Department).
We intend to forward a copy of this Report to the Police and to the Police Complaints Authority, following its tabling in Parliament.