Home | Databases | WorldLII | Search | Feedback New Zealand Legal Aid Review Panel

Legal Aid Review Panel Decision No 403/10 [2010] NZLARP 174 (25 August 2010)

Last Updated: 20 November 2015

LARP NOs. 402/10 & 403/10

Summary:

Declined to grant aid for prisoners to pursue Bill of Rights claim under s25(3) and 9 of the NZBORA.


THE PANEL'S DECISION

Introduction

[1] Two aided people ("Applicant A" and "Applicant B" (the "Applicants")) have applied for a review of decisions of the Legal Services Agency (the "Agency") dated 19 May 2010. By those decisions the Agency refused grants of legal aid to the Applicants.

Grounds of the Application

[2] A decision by the Agency may be reviewed on the grounds that it is either manifestly unreasonable or wrong in law.

[3] In the applications for review the Applicants submit that the Agency's decisions were "manifestly unreasonable".

The Facts

[4] On 8 March 2010 Applicant A applied to the Agency for legal aid.

[5] On 21 April 2009 Applicant B applied to the Agency for legal aid.

[6] In April 2009, the Applicants, who were serving prison sentences for aggravated robbery, were charged with being accessories to murder while serving time in the prison.

[7] From that time, the Applicants were put under 23 hour lockdown and, in November, instances of 24 hour lockdown: 21, 22 and 24 November 2009.

[8] The Applicants require grants of legal aid to investigate the matter, obtain information from the Department of Corrections and report to the Agency on prospects of success.

The Applicants' Submissions

[9] Applicant A and Applicant B submit that the Agency's decisions were manifestly unreasonable because:

(a) The instances where they have been in 24 hour lockdown are breaches of sections 9 and 23(5) of the New Zealand Bill of Rights Act 1990 ("NZBORA").
(b) The obligation imposed by section 23(5) NZBORA is to treat a person deprived of his liberty "with humanity" and "with respect to the inherent dignity" of that person: see Taunoa v Attorney-General (2004) 7 HRNZ 379, a decision upheld by the Supreme Court in relation to this statutory provision.
(c) Pursuant to section 9 of the NZBORA they may have claims for breaches of the right not to be subjected to torture or cruel treatment.
(d) A breach of the NZBORA is a strict liability offence. Once a breach is established, the issue becomes the quantum of damages.
(e) Their lack of access to justice if aid is not granted should be given more weight when considering the applications for aid.
(f) There are reasonable prospects of success for their claims.
(g) Non-pecuniary benefits should be given more weight in these circumstances.
(h) The regime could be considered a type of double jeopardy.
(i) These 24 hour lockdown periods have affected their mental and physical health.

The Agency's Submissions

[10] The Agency submits that its decisions were not manifestly unreasonable because:

(a) The proposed claims do not have reasonable prospects of success: section 9(4)(d)(i) of the Legal Services Act 2000 (the "Act").
(b) If they do have reasonable prospects of success, in the alternative the potential monetary gain to the Applicants does not justify the amount of aid sought as an investigative grant: see section 9(4)(d)(ii) of the Act.
(c) The Applicants have not been arbitrarily detained. All procedures are in line with the regulations as set out in full in the Supreme Court decision in Taunoa v Attorney-General [2007] NZSC 70; [2008] 1 NZLR 429.
(d) In Taunoa the claimants were awarded modest damages.
(e) Prisoners are able to be locked down for 23 hours per day. These claims each comprise three extra hours of detention over the three days of 24 hour detention. Even if it could be established that there was no reason for this detention, the damages awarded would be nominal at best. Aid should not be granted for this purpose.
(f) The Applicants have not been subjected to double jeopardy.

The Issue

[11] The issue before the Panel is whether the Agency's decisions not to grant legal aid to Applicant A and Applicant B were manifestly unreasonable.

The Law

[12] A decision is "manifestly unreasonable" if it is shown "clearly and unmistakably" that the Agency's decision "went beyond what was reasonable or was irrational or logically flawed" (Legal Services Agency v Fainu (2002) 17 PRNZ 433).

[13] In Legal Services Agency v A and O (2003) 17 PRNZ 443 John Hansen J said at paragraph 11 that manifestly unreasonable meant "something different from what is "wrong in law"", and would be made out "where it is shown, clearly and unmistakably, that the decision made by the Agency went beyond what was reasonable, or was irrational or logically flawed". His Honour also said that "manifestly unreasonable" required "not only that the decision be found to be unreasonable but that LARP forms the view that the decision is so clearly unreasonable that the intervention of the Panel is called for". His Honour added that "the determination of what is "manifestly unreasonable" is to be made objectively by the members of LARP applying their judgment to the matter in accordance with the principles stated" and that it was "not for LARP to substitute its view of what the decision should have been for that of the Agency".

[14] In Timmins v Legal Aid Review Panel [2004] 1 NZLR 708 Wild J stated that the test to be applied in respect of section 9(4)(d)(i) of the Act:

"[33] 'Prospects of success' in my view, refers to the prospects of achieving a successful outcome. Those prospects need to be assessed in a pragmatic way and, somewhat obviously, in the circumstances of the particular case. After all, no two cases are the same. The assessment invited by the words in s 9(4)(d)(i) 'sufficient to justify the grant of aid', involves weighing up the likely benefits against the likely costs. While the benefits in some cases will be measurable mainly, and perhaps even wholly, in dollar terms, in other situations that will not be so. Examples might include obtaining an injunction restraining the destruction of an area of native bush, or the closing of a road or access track or some other facility, or a judgment upholding the reputation of a person or a product ( even if unaccompanied by significant damages) or vindicating some important point of principle.
[34] Because assessing 'prospects of success' may involve assessing non-pecuniary benefits, the assessment for a particular plaintiff or claimant can obviously be difficult.
[35] I agree with Mr Taylor's suggestion that inquiring what a person funding him or herself would do may be helpful. The question might be framed thus: what, if any, legal action would the applicant (assuming that they were a reasonable individual) take in the circumstances if paying their own legal costs."

Discussion

[15] It is clear that civil cases involving the NZBORA do not fall into a unique class that would ordinarily justify a grant of aid: Legal Services Agency v Brown (2005) 17 PRNZ 523; Reekie v Legal Services Agency (High Court, Auckland, CIV-2008-404-6451, 6 March 2009, Asher J).

[16] Therefore the Agency was charged in the normal sense of deciding pursuant to section 9(4)(d)(i) of the Act whether the Applicants' prospects of success were not sufficient to justify a grant.

[17] As noted in Timmins any such decision involves weighing up the likely benefits against the likely costs. As assessing 'prospects of success' may involve assessing non-pecuniary benefits, the assessment for a particular plaintiff or claimant can obviously be difficult.

[18] The following extract in LARP 109/02 (25 October 2002) is helpful:

"Each case must be determined on its own facts. The Agency clearly has a statutory obligation to determine whether or not to make taxpayer's money available for the purpose sought. However, the Agency must be careful not to set the threshold so high as to effectively predetermine the matter."

[19] Both the Agency and the Applicants refer to the Supreme Court's decision in Taunoa v Attorney-General. Very briefly this 97 page judgment dismisses appeals by prison inmates alleging that the Crown breached section 9 of the NZBORA for their treatment under a Behaviour Modification/Management Regime ("BMR") that involved solitary confinement for 22 to 23 hours per day, removal of exercise rights, and routine strip searching. Nonetheless, the Court of Appeal upheld the High Court decision that this treatment did breach section 23(5) of the NZBORA, and for one prisoner, section 9 of the Act. These conclusions were accepted by the Attorney-General. In the Supreme Court proceedings, the appellant prisoners also claimed that the damages awarded by the Court of Appeal were too low. The Attorney-General cross-appealed on the damages ground.

[20] Given this litigation, in all three courts, the Agency's reasons for refusing aid on the ground that the Applicants' prospects of success were not sufficient to justify the grant appear superficial. The Agency's reasons are brief and little attention has been paid to the repeated occasions of the 24 hour lock down treatment.

[21] It is not for the Panel to substitute its view of what the decision should have been for that of the Agency. The Panel is however able to form a view that the Agency's decision is so clearly unreasonable that the Panel should intervene. It is clear that if the Agency is minded to refuse aid under section 9(4)(d)(i) of the Act, on the authority of Legal Services Agency v Hosseini (2006) 17 PRNZ 932, it has to show that it has really understood the substantive claim and why it considers that the prospects of success are insufficient to justify aid.

[22] While the Agency is not required to predict exactly the reasoning of a court or tribunal, it does have the duty to give an overall assessment of the likely outcome made on reasoned grounds. The Panel does not consider that the Agency has performed this task.

[23] In Timmins it was suggested that a sensible benchmark question would be to consider what, if any, legal action would the applicant (assuming that they were a reasonable individual) take in the circumstances if paying their own legal costs. While the circumstances of this case are far from the norm, the Panel notes the comment in the Applicants' submissions that their pursuit for legal action is not simply about compensation or damages for their losses. Rather "non-pecuniary benefits, such as the change in behavior management regime, will be more important ?".

[24] Thus, it is fair to predict that a reasonable individual might pursue such a claim at his or her cost.

[25] The Agency also submits that were the proposed claims to have sufficient prospects of success, the potential monetary gain to the Applicants would not justify the amount of aid sought. It cited the modest amounts of compensation awarded in Taunoa. This conclusion ignores the nature of a bill of rights claim. In Simpson v Attorney-General (Baigent's Case) [1994] 3 NZLR 667 Cooke J emphasized the need to provide an effective remedy for a Bill of rights breach. His Honour observed that the gravity of the breach and the need to emphasise the importance of the affirmed rights and to deter breaches were also proper considerations.

[26] There is a wealth of case law from other jurisdictions affirming that damages for human rights are a subsidiary remedy and are not awarded in the same way as in private claims. Therefore the narrow focus of the Agency on pure monetary awards was manifestly unreasonable. In Taunoa, the Supreme Court at paragraph [253] that:

"[t]he court must provide an effective remedy. The primary task is to find overall a remedy or set of remedies which is sufficient to deter any repetition by agents of the State and to vindicate the breach of the right in question."

Decision

[27] For the reasons set out above, the Agency's decisions of 19 May 2010 are reversed.


Dated this 25th day of August 2010

(original signed by)
__________________________
Andrew Beck
Convenor