Ross v Attorney General [2007] SBCA 15; CA-CAC 30 of 2006 (1 November 2007)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Palmer CJ)
COURT FILE NUMBER:	Civil Appeal No 30 of 2006 (On Appeal from High Court Civil Case No 573 of 2005
DATE OF HEARING:	29 March 2007
DATE OF JUDGMENT:	1st November 2007 (Read by the Registrar of High Court)
THE COURT:	Lord Slynn of Hadley P, Adams JA Salmon JA.
PARTIES:	John Ross & Others Appellants -v- Attorney General Respondent
ADVOCATES:
Appellant: Respondent:	K Averre F Waleanesia
KEY WORDS:
RESERVED/DISMISSED:
PAGES:	1 – 10

JUDGMENT OF THE COURT

Introduction

1. This is an appeal from a judgment of the Chief Justice given on 21 November 2006 in which, subject to one exception, he refused declarations sought by prisoners who at the relevant time were detained at the Central Prison Rove. Some of the applicants were detained on remand waiting trial, others had been convicted and were serving their sentence. Put broadly, the applicants’ complaints related to steps taken by the prison authorities following civil disobedience at the prison on 14 October 2005. The Attorney General, representing the Controller of Prisons, says that the disobedience was of a serious character and called for emergency action; the steps taken were lawful within the Prisons Act, the Prison Regulations and prison procedures laid down and a Memorandum of Understanding between the Solomon Islands Prison Service and the Royal Solomon Islands Police Force dated 11 February 2005.
   

Facts

2. There are many issues of fact, raised in the affidavits of some of the prisoners, and of law but it seems to be clear that a substantial number of prisoners in Blocks 1 and 2 of the prison had indicated on 12 October and subsequently that they would refuse to be secured in their cells at night. George Samuel, the acting General Manager of the Prison, says that on 14 October 2005 he was informed that 178 prisoners were involved in this refusal and that "with a lot of them involved in serious crimes in the recent ethnic tension, I was treating the action as a serious matter at that stage." At 1940hrs the Central Prison Emergency Response Group supported by police officers of the Participating Police Force and the Royal Solomon Islands Police Force began to secure the prisoners in their cells: this process was completed by 0100hrs on 16 October 2005. The prison authorities searched the area, removed anything that could be used as a weapon and returned to the prisoners items that were approved for return. The prisoners’ exercise and reception of visitors were curtailed for a period.
   

The proceedings at first instance

3. That something had to be done in all the circumstances to secure good order in the prison seems clear. The Chief Justice, having received evidence and heard legal argument was satisfied that the steps taken were not in violation of the law and the prisoners’ rights. Mr, Averre on behalf of the appellants has forcefully contended that in a number of respects the steps taken were excessive, unjustified and contrary to the rules.
   
4. The Prison Regulations were made pursuant to section 61 of the Prisons Act, which empowers the making of regulations for "the better carrying into effect of the provisions and purposes of this Act" and in particular for "(ii) the maintenance and enforcement of discipline in the Service and among prisoners." By regulation 107. 3-(1) –
   

"These Regulations shall be applied, due allowance being made for the differences in character and respect for discipline of various types of prisoners in accordance with the following principles:-

(a) discipline and order shall be maintained with fairness and firmness, and with not more restriction than is required for safe custody and to ensure a well-ordered community life;"

By Regulation 107 –

(1) No prisoner shall be sentenced to be confined in a separate cell for an aggregate of more than ninety days in one year.

(2) In any case where a prisoner is sentenced to two periods of confinement in a separate cell the two sentences shall be separated by a period of not less than the longer of the two periods."

(3) Notwithstanding anything contained in this regulation, if it appears to the Officer in Charge that it is desirable for the good order and discipline of the prison for a prisoner to be segregated and not to work nor to be associated with other prisoners it shall be lawful for the Officer in Charge to order the segregation of that prisoner for such period as he may consider necessary."

5. There had to be a period of exercise for one hour each day; otherwise, segregated prisoners were locked in and lost certain other privileges.
   
6. It is clear that the power to impose restrictions and to remove privileges must be exercised within the limits of the rules which create the power and the rules and procedures must be adapted within the limits imposed by the Regulations and the Prisons Act. It is equally clear that, in interpreting these instruments, the purpose for which they are adopted must be borne in mind. The application of the rules must be reasonable and justified but that taking into account the circumstances of the case.
   
7. The Chief Justice was obviously concerned as to whether here the restrictions imposed had gone too far and had been used for an improper purpose, eg for punishment rather than security or management. He attached importance to the fact that prisoners who had not been involved in the riots were included in the lockout. He was not sure that it was justified to do so. All the prisoners in Block 1 of the prison, which included all the applicants, removed themselves from the area when a proclamation was read directing them to do so. Ultimately, however, he decided that the rules adopted were not ultra vires and that he could not say that the steps taken were excessive and unlawful.
   

Submissions in this Court

8. Mr Averre says, that section 1.1 of the Prison Procedures is unlawful because it does not require individual prisoners to be considered. Rather, it empowers a blanket order to be made. Moreover, there should have been a separate consideration of unconvicted prisoners and young persons and those who complied with the proclamation should have been excluded from the lock out decision. In addition, he argued, the power in section 107(3) could only be used to maintain the good order of the prison and the prison authorities did not sufficiently consider whether segregation was justified and necessary.
   

Discussion

9. Reference has been made to the Central Prison Security and Criminal Procedure Nos 1-13. The principles which these incorporated are to "ensure the protection of the community by minimising the risk of prisoners escaping [and] provide a secure working and living environment for staff, prisoners and visitors: "Prisoners placed in the Special Management Unit will be managed under the least restrictive conditions with the reasons for the placement."
   
10. Paragraph 1.1 provides –
    

"The General Manager in writing may order the separation of a prisoner from other prisoners for a specified term if:

the separation is necessary for the safety of the prisoner or other persons, or the security, good order or management of the prison, and

the prisoner is only separated from other prisoners while the safety of the prisoner or other persons, or the security, good order or management of the prison is at risk".

The length of the orders which may be made for "loss of privilege" and for "Management (Pending Investigation)" are set out.

11. The importance of recognising prisoners’ rights and balancing this against the security and good order of the prison is reflected in the various documents to which reference has been made. We have already stressed the importance of the prison authorities remaining within the limits of the powers and purposes prescribed. We must also bear in mind that situations arise in a prison when immediate action is required – action which may have to be firm though not high-handed and excessive.
    
12. What is the result here? Like the Chief Justice we have found this to be in some ways a borderline case. On the other hand, we do not accept that the various documents have to be read in an overly legalistic way. Their object and purpose and the circumstances in which they have to be applied must be borne in mind.
    
13. We do not accept that para 1.1 of the Procedure is ultra vires because it substitutes "or" for "and" in section 107(3) of the Prison Regulations. In the former it read "where it is necessary for the security, good order or management of the prison" in the latter "In the good order and discipline of the prison".
    
14. We accept, as Mr Averre contends, that an order should relate to the conduct or likely conduct of individuals but, if a number, even a large number of prisoners are behaving, or can reasonably be anticipated to behave in the same way, which it is necessary to control, we accept equally that an order can be made against all of them.
    
15. It is right to say, as Mr Averre does, that the prisoners should know why they were to be put into the High Profile Unit so they can make representations but to say that such an order cannot be made in a situation of civil unrest and possible conflict "until a fair hearing is provided to each prisoner" in relation to decisions to segregate them is going too far. It could well be sufficient that representatives of the prisoners knew or realised what was planned and had the chance to make representations. In view of the communication with prison authorities between 12 and 14 October and representations as to the prisoners’ complaints, we are not satisfied that there was no opportunity for the prisoners to know why they were being put into the Unit and for these representations to be made.
    
16. We accept that an immediate decision had to be taken on the evening of 14 October. The Chief Justice was entitled to consider that the officers on the ground had more knowledge of the problems and the conditions, not least the availability of resources to deal with this situation. He was right to stress, as we stress, the importance of acting within the powers conferred and of behaving with such restraint as the situation permitted (a matter to be borne in mind for the future by the prison authorities) but we cannot say that he erred in law in the conclusion to which became on this aspect of the case.
    
17. The appellants argue that it cannot have been desirable for the good order and discipline of the prison that those prisoners who complied with the proclamation to leave the area should be segregated. This superficially may sound attractive but it has to be remembered that there had already been damage to property (tables were broken) the prisoners were armed with table legs and prison officers were threatened and assaulted. In view of the number and type of prisoners involved and the risk of further action by the prisoners we cannot say that the assessment by the authorities that a return to normalcy required temporary segregation of all prisoners in Block 1 was unlawful.
    
18. It would have been preferable in ideal circumstances to consider the situation of young prisoners and unconvicted prisoners separately but the authorities were entitled on the facts to consider that action had to be taken quickly to avoid a dangerous situation developing. The human and other resources available had to be taken into account in deciding what steps should be taken for the "security, good order or management of the prison" in the circumstances prevailing and whether it was possible to consider each prisoner separately. (Prison Procedures section, 1.1, which we do not consider to be ultra vires or be beyond the scope of Regulation 107(3).)
    
19. Were the restrictions maintained for too long? We leave aside the cases of Ome and Ross. For the others, the prison authorities recognised that as things returned to "Control and normalcy" the restrictions had to be modified. So on 18 of November 2005 the time out of cell was increased to 4 hours, on 25 November to 5 hours, on 1 December to 9 hours and on 16 December to 12 hours. Whether or not these modifications could have been introduced more quickly we do not have the information to assess. It must depend to a large extent on the judgment of the prison authorities. We cannot say that on its face this programme was so unreasonable as to be unlawful.
    
20. We have considered anxiously whether what was done went too far, was an overreaction, was unlawful. It is easy with hindsight in considering the legal position to overlook the circumstances and the atmosphere in which the officers on the ground were required to operate. At the same time, it is the duty of the prison authorities to act within the procedures and regulations laid down and for the Court to monitor whether prisoners’ rights have been breached. In the present case, the Chief Justice had a difficult task in assessing the facts and then applying the law just as the prison authorities had a difficult task in balancing the rights of the prisons and the risks to security, good order and discipline. We do not consider that, in concluding as he did, the Chief Justice erred in law in regard to the generality of prisoners affected.
    
21. Prisoners Ome and Ross have to be considered separately. Ome remained in the Special Management Unit until March 2006, i.e. for 158 days and Ross until 23 February 2006, i.e. for 133 days. They were clearly considered as individuals and not merely covered by the "blanket" order to which objection is taken. The authorities have satisfied that each was not responsive to supervision and that Ome had made threats to staff.
    
22. We agree that restrictions can only be imposed for the purposes and within the limits laid down in the Act, the Regulations and Procedures. Restrictions permissible for maintaining good order and discipline of the prison cannot be used simply as a method of punishment. It is, however, clear that Regulation 107(3), despite the limits on segregation therein and elsewhere imposed, empowers the Officer in charge if it appears to him "that it is desirable for the good order and discipline of the prison for a prisoner to be segregated", to order the segregation of that prisoner for such period as he may consider necessary.
    
23. Mr Samuel in his affidavit says that "their continuous tenure of the Unit also depends on the outcome of the reviews that are done at the end of every month. The reviews involved the assessment of their response to supervision, behaviour, information participation". These were long periods of segregation but there is no evidence that these were imposed other than for the purpose prescribed by section 107(3) or that in the circumstances they were excessive and unlawful. It is initially and essentially for the Officer in Charge to assess the period necessary for the good order and discipline of the prison. Like the Chief Justice, we are not satisfied on the evidence that these periods were unlawful in the circumstances of this case.
    
24. The appellants further complained that legal and privileged documents in the possession of the applicants were removed. The Chief Justice finds that there were no evidence that the papers were read or used by the prison authorities, which he accepted would have been unlawful. Was it unlawful simply to remove them? There is affidavit evidence from some of the prisoners that these documents were taken. Mr Samuel says that this was when the cell was searched. There was no deliberate intention to keep such correspondence and it was returned to the prisoners. We do not read the evidence, as a whole, as indicating that the legal correspondence was particularly targeted. The cells were searched and personal items removed. Those that were capable of being used as weapons were retained: other items were returned to prisoners. In the circumstances we do not consider that to take prisoners’ belongings temporarily until the situation was under control can be regarded as an abuse of power.
    
25. Objection is also taken to the fact that police officers were called in by the prison authorities to deal with what they saw as a riot situation, an emergency. It is plain that in the ordinary way prison powers should be exercise by prison authorities but section 8(2) provides –
    

Where in any prison the number of subordinate officers employed is insufficient to secure the good management and government thereof it shall be lawful for the Superintendent of Prisons to employ temporarily such number of police officers, including special constables, of or below the rank of Inspector as he may consider necessary to perform the duties of subordinate officers in such prison."

The Chief Justice said –

"What confronted the Prison Service on 14th of October 2005 was an emergency situation. A large number of prisoners were refusing to return to their cells and by the time the decision was made to use force, those prisoners had already armed themselves with broken chair parts, wooden parts of tables, mosquito nets for use as sling shots and plastic bottles filled with stones. It was a life threatening and extremely dangerous situation. The PFF and the Force were then called in as a back up force to provide support as the Prison Officers moved in to quell the riot and to force prisoners back into their lock up cells."

It seems to us, though it is a power to be exercised with caution, that in the circumstances resort could be had to the provisions of section 8(2) and that calling in the police on this occasion was not unlawful.

Decision

26. The applicants obtained the declaration they sought that food rations in respect of the supply of meat and fish were not complied with and they do not challenge the Chief Justice’s refusal to declare that the food rations in respect of the supply of vegetables and fruit were not complied with.
    
27. The appellants’ appeal against the Chief Justice’s refusal to grant the other declarations sought is dismissed.
    

Lord Slynn of Hadley P
President of the Court of Appeal

Adams JA
Member of the Court of Appeal

Salmon JA
Member of the Court of Appeal