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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
Civil Case Number 573-05
JOHN ROSS AND OTHERS
V
THE ATTORNEY-GENERAL
Date of Hearing: 20th March 2006
Date of Judgement: 21st November 2006
S. Drumgold for the Applicants
N. Moshinsky Q.C. and F. Waleanisia for the Respondent
Palmer CJ.:
This is an application by prisoners (hereinafter referred to as "the Applicants") at the Central Prison, Rove, some of who have been convicted and are serving sentences in prison. Others are on remand awaiting their trial. The Applicants complain about numerous decisions and actions imposed by the Prison Authorities, which they say impinge upon their rights as protected by the Prison Regulations. They say that:
(i) The conditions of their imprisonment as implemented by the Controller of Prisons were unlawful and contrary to the provisions of the Prison Regulations.
(ii) The decision to deprive them of privileges were unreasonable, unlawful and in breach of principles of natural justice.
(iii) The decision to segregate prisoners and continue their segregation was ultra vires, unreasonable and in breach of natural justice.
(iv) The decision to remove their mail of a client/lawyer nature and other legal documentation such as depositions, pleadings and otherwise is protected by legal privilege and not subject to relevant regulations. They also complain about undue delay in passing correspondence to prisoners.
(v) The decision to allow entry or acquiesce to entry by RSIP or PPF/RAMSI personnel into the prison on 14th October 2005 by the Controller of Prisons and searches and other actions by such personnel was ultral vires, unlawful and unreasonable.
(vi) The food rations currently given to the Applicants fail to meet the minimum standards as prescribed by the relevant Regulations.
I will now address each issue which arises from the matters raised above.
Are the Conditions of Imprisonment implemented by the Controller of Prisons unlawful and contrary to the provisions of the Prison Regulations?
The Applicants make reference to a "Custody Management Plan" alleged to have been introduced at the behest of investigating officers from the Regional Assistance Mission to Solomon Islands (RAMSI). The Applicants say it is ultra vires and unlawful as it breaches the regulations as regards "Convicted" and "Unconvicted" prisoners and "Young Persons". They object to the segregation of prisoners in their cells for long periods of day and keeping them alone in their cells for such lengthy periods. They allege they spend most of their day in "lock up" and are in their cells for some 21 to 23 hours of the day with only 40 minutes allocated to exercise and 20 minutes to clean up and showering.
Mr. Moshinsky for the Attorney-General denies the existence of any "Custody Management Plan". I have not sighted any such plan produced in court. It appears that this was a reference to the arrangements complained of as contained in the Central Prison Security and Control Procedure No. 1-13 Management Units ("Prison Procedures"), where prisoners may be separated and placed in the Special Management Unit ("SMU"). In the affidavit of George Samuel filed 16 March 2006 a copy of that document is attached. It is signed by the General Manager and dated 21st February 2005. It refers to sections 20 and 45 of the Prisons Act and regulations 53, 55, 86, 105, 106 and 107 of the Prison Regulations as the basis for that document. Paragraph 1.1 of the Prison Procedures sets out two broad reasons for separation as follows:
(i) where the separation is necessary for the safety of the prisoner or other persons, or the security, good order or management of the prison; and
(ii) where separation is carried out only because there is risk to the safety of the prisoner or other persons or risk to the security, good order or management of the prison.
Paragraph 1.3 identifies three categories of separation:
(i) Loss of privilege;
(ii) Management (pending investigation); and
(iii) Medical supervision.
Category (i) permits only a total of 30 days to be imposed with no further extensions. Under category (ii), the first period is 8 days with an additional 30 days and subsequent periods of 30 days with the written approval of the General Manager. The third category relates to someone under medical supervision.
Is what was set out in the Prison Procedures unlawful and contrary to the Prison Regulations?
Although I have reservations about the separation of a prisoner for up to thirty days under the first category, I am not satisfied the conditions[1] imposed are unlawful or contrary to the Prison Regulations, for regulation 107(3) does provide that the Officer in Charge may make such order if it is desirable for the good order and discipline of the prison for such period he may consider necessary. Those conditions fall within that broad discretionary power. My concern is that it is tantamount to a punishment regime and therefore should be used sparingly and only in exceptional cases. Otherwise there is likelihood of it being used for an improper purpose. If a person is to be penalised for a major prison offence then the procedures set out in the regulations should be used and not the category for "loss of privilege". To subject a prisoner to such confinement periods with only 2 hours out of cell per day for a maximum period of thirty days is quite harsh.
Apart from that the minimum security requirements imposed under paragraph 1.5 and 1.6 of the Prison Procedures (supra) cannot be described as ultra vires, unlawful or unreasonable. They have been set up to assist in managing the segregation of prisoners on the grounds set out in paragraph 1.1 (supra) of the Prison Procedures and is consistent with the general broad powers of the Officer in Charge as set out in regulation 107(3) of the Prison Regulations.
Is the "lock up" regime complained of by the Applicants which occurred immediately after the disturbing riots at Rove prison on 14th October 2005 involving some 178 or so prisoners unlawful, unreasonable or contrary to Prison regulations?
Apart from the other Applicants, two prisoners John Ome ("Ome") and John Ross ("Ross") complained of excessive periods of confinements. Ome says he was subjected to a "lock up" regime of up to 133 days. Ross says he was locked up to a period of 158 days. The others were equally subjected to a lock-up regime immediately after the October riots but that this was then eased as the situation improved.
The Controller of Prisons relies on regulation 107(3) of the Prison Regulations for the segregation of the Applicants in this instance. That provision provides that the Officer in Charge ("the Officer") may order the segregation of a prisoner for such period as he considers necessary, if it appears desirable for the good order and discipline of the prison. Paragraph 107(3) does not specify the period or impose any conditions. The period of restriction is to be that which the Officer may consider necessary. However, in so exercising his discretion, he is obliged to act responsibly, reasonably and humanely, for it must not be used as a means of imposing a penalty, for that would be an improper purpose. This is consistent with what was said in an Australian authority by Justice Moynihan in Farr & Ors v. Queensland Corrective Services Commission [1999] QSC 86:
"...the use of a power to segregate a prisoner based on security considerations, for example, as a means of imposing a penalty would be an improper purpose."
It is important to make a clear distinction between a punishment regime and where the discretionary power of the Officer is exercised for the good order and discipline of the prison. Where a discretionary power is exercised, it should be clearly defined to avoid the possibility of abuse.
The evidence adduced before this court showed that on the evening of the riot on 14th October 2005, all the Applicants were located in Block 1 of Rove prison. When a proclamation was read to all yards to remove themselves from the area, all those in Block 1 complied. The Applicants therefore should not have been subjected to any disciplinary action. Why they have been subjected to the "lock-up" regime for disciplinary reasons together with those who participated in the prison disturbance is not clear. There is also no evidence of any management issue pending investigation which would warrant the segregation of the Applicants apart from Ross and Ome.
Apart from the "Management (Pending Investigation)" category, which entitles subsequent separation periods of thirty days, there is no other category under the Prison Procedures for continuous separation periods of thirty days. There are two further sub-categories to this category described in paragraphs, 1.5 and 1.6 as follows:
"1.5 Separation for security, public interest or management:
And, 1.6 Separation for management (pending investigation) or security (pending investigation):
The evidence adduced alleged that the Applicants had been subjected unlawfully to a punishment regime and that the lock-up regime imposed was inconsistent with the minimum requirements set out in paragraphs 1.5 and 1.6 of the Prison Procedures. In his response, Mr. Samuel, Acting General Manager of Central Prison, Rove, did concede that initially immediately after the riots of 14 October 2005, a "lock down" regime was imposed right across the board where prisoners were restricted to 1 hour per day to bring things to normalcy. On 18th November 2005, the time out of the cell was increased to 4 hours and then 5 hours after 25 November, 9 hours after 1st December 2005 and 12 hours after 16 December 2005. He also deposed that prisoners were allowed to attend church services as they responded to supervision and the overall security situation in the prison.
This evidence has not been challenged. The lock-up regime complained of therefore according to the evidence before me was for a particular period only after the riots to bring the disturbance at the prison back under control and normalcy. Whether the period from 14th October to 18th November is justifiable I cannot say for the prison authorities would be in a better position to decide. I am not satisfied however, that the inclusion of those who were not involved in the riots was justifiable. They should have been separated out from the rest of those who had been involved. Their inclusion only breeds resentment and contempt for the institution incarcerating them and the administration of prison rules and practices. Having said so however, I need to qualify those criticisms by saying that I do not know in the light of what had transpired whether the prison authorities and the prison had the capacity in any event to separate the Applicants from those who were involved. It is possible resources may have been stretched to the point that it was not practicable to treat those who were not involved separately. No evidence has been led that this was feasible in the light of what had transpired. That benefit of the doubt therefore must go in favour of the Prison Authorities who would have been in the better position to determine what was desirable for the good order and discipline including security matters, of the prison at that time. And if it was the decision at that time to treat everyone the same, even if it was unfair and unreasonable, it was a power they were entitled to exercise at that particular time and therefore not unlawful. Such powers however must be sparingly used and reduced or removed at the first available opportunity, a fortiori in the circumstances of these Applicants.
Is the continued detention of Ome and Ross in isolation ultra vires, unlawful, unreasonable and in breach of natural justice?
The copy of an order for separation of Ross and Ome submitted to the court showed they were separated pending investigations by management for breaches within prison of a significant nature and for security reasons.
Once normalcy returned to the prison after the riots, principles of natural justice must apply again to the circumstances of each prisoner, where the regime for separation under any of the categories listed in the Prison Procedures continued to be exercised. A prisoner is entitled to be informed of the reasons for his segregation and given opportunity to be heard in his defence before any penalties are imposed whether in terms of the categories set out in the Prison Procedures or as a form of punishment. The orders for segregation created under the Prison Procedures entail restriction of prison liberties and rights and thus attract rules of natural justice.
I understand their continued detention in the SMU was based on the category spelled out in paragraphs 1.5 or 1.6 of the Prison Procedures. I am unable however to find that their continued detention for 133 days and 158 days pursuant to the regimes stipulated therein were unlawful or ultra vires the powers of the Officer in Charge, for the reason that the restrictions imposed fall short of a confinement punishment as set out in the Prison Regulations. Not only is regulation 107(3) wide enough, but the restrictions imposed under paragraphs 1.5 and 1.6 are reasonable and humane.
Search and Seizure of Mail
The complaint raised pertains to the removal of legal and privileged documents in the possession of the Applicants. No explanation has been provided for this, but that would be clearly wrong and improper if it was done with the purpose of reading the legal documents of the Applicants. This court had made clear in its ruling[2], that legal correspondence was privileged and ought not to be read. Where any prison officer, member of the Participating Police Force, or Solomon Islands Police Force, may have intentionally read such document or correspondence they become subject to privilege requirements over them. Their removal to that extent therefore would not have been of any benefit in anyway at all.
The evidence adduced also does not say whether those legal papers were actually read or not; merely removed. I understand those legal documents have been returned. Apart from that there is no other evidence to suggest that the prisoner’s civil rights in terms of court proceedings, access to a lawyer or access to the courts have been impeded. If there was, it was only for a short time.
As to questions of delay in terms of receipt of mail etc., that is a matter which the internal management can address and rectify, if there is any truth to it, that it causes inconvenience and may prejudice the rights of the prisoners.
Powers of Search of the Prison
The events complained of occurred on the day of the riots at the prison. The Solomon Islands Police Force ("the Force") and the Participating Police Force ("PPF") had been engaged pursuant to a Memorandum of Understanding ("MOU") executed between the Force and the Solomon Islands Prison Service on 11th February 2005. That MOU provided for the engagement of the Force in the event of a major disturbance at the Central Prison and spells out clear operational guidelines to be adopted in such an event. This is commendable for it demonstrates an appreciation of the separation of roles and functions between the two bodies.
The first important point to note is that no issue has been taken as to the validity of the MOU.
Secondly, it is based on the provisions of section 8(2) of the Prison Regulations, which provides that where in any event the number of subordinate officers employed is insufficient to secure the good management and government of any prison, the Superintendent of Prisons (Controller of Prisons) may engage on a temporary basis such police officers, including special constables of or below the rank of Inspector as is necessary to perform the duties of subordinate officers in such prisons.
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 PPF 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.
The searches and entry were conducted during and immediately after the riot purposely to secure the prison and to prevent any further immediate uprising from taking place. Any items which were considered dangerous or not approved were withheld by the prison authorities. I find nothing wrong, improper or unlawful about this.
Having considered the affidavit evidence adduced in support of this ground, I am not satisfied on the balance of probabilities that any breaches of the Prison Regulations had been committed on this occasion and this submission must fail.
Insufficient Prison Diet
The minimum requirements in prisoners’ diets are fixed by regulation. Anything below that is a breach. The onus of proof however lies with the Applicants to show that the prison authorities have not complied with their minimum diets.
In relation to meat or fish provisions, the minimum requirement stipulated is 4 ounces (113 gms) of meat or fish per prisoner per day. Although no figures are provided as to the total weight for meat or fish per day, the information provided as to the meals per day shows that at least for lunch and dinner prisoners had either fish whether fresh or canned or chicken or beef whether canned or not. The information provided is that prisoners had meat or fish at least once if not twice a day.
Regulation 51 makes it mandatory on the Gaoler to ensure that each prisoner is given the minimum requirement. I quote:
" 51.—(1) The Gaoler shall from time to time personally inspect and superintend the issuing of prisoners' meals and shall weigh the rations supplied to the prison; and a record shall be made of every such inspection and weighing in a book to be kept for that purpose.
(2) The Gaoler shall take care that every article of food supplied for the use of prisoners is sound and of good quality and shall take such measures as may be necessary to have unsatisfactory food exchanged by the supplier before it is issued for prisoners' use.
(3) The Gaoler shall take care to see that the rations issued are strictly in accordance with the prescribed scales of diet and that every prisoner receives the diet to which he is entitled.
(4) The Gaoler shall take action to ensure that the scales, weights and measures used for weighing prisoners' rations are in good order and accurate."
It cannot be assumed because they were given meat or fish twice a day that the minimum requirements were complied with. In the absence of proof in the form of figures to support their claim that the Applicants were being given the necessary meat or fish per day, they must be entitled to their declaration that this particular provision was not complied with.
This brings me to the next question whether fresh vegetables and fruit are being provided as required? The Prison Regulations state "Fresh vegetables and Fruit - as required". This must be given a common sense meaning and to arrive at that the views of Medical Health Officers or Dieticians would require to be obtained. Questions like, what is the minimum requirement of intake which is essential to a person’s health, need to be answered. Is having vegetables and fruit on a daily basis the minimum requirement or is that the ideal position and that the least expected is once a week or once every third day? I do not have the material before me on this but I would be hesitant to accept once a week as adequate.
The affidavit evidence adduced clearly shows that fresh vegetables were being provided on a daily basis, but not so with fruit. Whilst in the months of October and November 2005 fruit was provided more regularly, in the months of December and January 2006 that was not the case. In December 2005 alone, the only fruit provided was melon and only on six occasions. In January 2006 it was provided on only two occasions. In his oral evidence before this court however Mr. Carl Gill, Prison Advisor responsible for Catering at Rove Central Prison stated that as far as he was aware, fresh fruits were being delivered at least twice a week. No evidence in rebuttal of this has been adduced. Mr. Drumgold for the Applicants submits that even this is in breach of the minimum requirements. Unfortunately I am not able to accept his submission on this point. There are many factors to be taken into account regarding the supply of fruits in Honiara where much of the supply relied on is from local farmers selling their produce at the markets. Supply is not consistent as perhaps in other countries where farming is done on a commercial basis. Most of the farmers around Honiara are subsistence farmers and so to maintain or source consistent and constant supply can be difficult at times, not to mention the prices that may be charged.
I am not satisfied therefore it has been established on the balance of probabilities that the minimum requirement regarding the provision of fresh fruit has not been complied with. This submission must also be dismissed.
Orders of the Court:
The Court.
[1] - Out of cell two (2) hours per day separate from other prisoners not also serving loss of privileges. No access to recreation facilities;
- One cubicle visit per week of 30 minutes duration;
- Access to programs personnel; and
- Access to legal;
[2] Benedict Indu and Ors v. Attorney-General Civil Case Number 37 of 2004 4th August 2004, at page 12
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