1 August & 5 September Dame Beverley Wakem DNZM, CBE Chief Ombudsman National Preventive Mechanism

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1 Report on an unannounced inspection of Corrections Services Mount Eden Corrections Facility (Serco) At Risk Unit/Transit Unit Under the Crimes of Torture Act August & 5 September 2013 Dame Beverley Wakem DNZM, CBE Chief Ombudsman National Preventive Mechanism

2 P a g e 2 Executive Summary Background 1. In 2007, the Ombudsman was designated one of the National Preventive Mechanisms (NPMs) under the Crimes of Torture Act (COTA), with responsibility for examining and monitoring the general conditions and treatment of detainees in New Zealand prisons. 2. On 1 August 2013, Inspectors Greg Price and Jacki Jones (to whom I have delegated authority to carry out visits of places of detention under COTA) visited Mount Eden Corrections Facility (the Prison). Inspector Jones also spent some time in the Prison on 5 September. The inspection focussed on the At Risk Unit/Transit Unit (the Unit). Findings 3. There were two areas of concern that needed addressing: Whilst there was no evidence that any prisoners had been subject to anything that could be described as torture or degrading treatment in the six months preceding the visit, denying prisoners access to at least one hour of suitable exercise in the open air daily could potentially amount to cruel or inhuman treatment. Not all prisoners get the opportunity to associate with others of a similar category. Recommendations The Director should take immediate steps to ensure that all prisoners are offered the daily opportunity to take at least one hour in the open air. If they decline, this needs to be documented, accordingly. Suitable equipment in the yards should be provided and should include, as a minimum, some form of seating. Unless a prisoner is on directed segregation, all detainees of a similar category, including young persons, should be allowed to associate. House keeping The graffiti in the exercise yard needs removing. If a prisoner makes a complaint/allegation of assault against an officer they should receive a written response of the outcome of the investigation of that complaint. Furthermore, they should be given the opportunity to make a formal complaint to the Police, if they choose.

3 P a g e 3 Consultation 4. A draft copy of this report was forwarded to Corrections Services National Office and Serco for comment as to fact, finding or omission prior to finalisation and distribution. Comments have been included below. Corrections Services comments Thank you for the opportunity to provide a response to the findings from your unannounced visit to the Mount Eden Corrections Facility s (MECF) At Risk Unit and Transit Unit on 1 August and 5 September I am pleased to note the positive findings you make in your report, including that no evidence was found that any prisoner had been subject to torture or degrading treatment in the six months preceding your visit. s 9(2)(a) Please find attached the response to your report from, Prison Director, Mount Eden Corrections Facility. I am happy with the remedial actions that have been taken by the prison management to address the concerns raised in your report. The Department wishes to extend its appreciation for your considered findings and associated recommendations. Serco Comments Thank you for the opportunity to provide a response to the findings from your unannounced Ombudsman visit to the Mount Eden Corrections Facility s (MECF) At Risk Unit and Transit Unit on 1 August and 5 September I note that a number of positive findings were identified during the visit. I also note that there was no evidence that any prisoner had been subject to torture or degrading treatment in the six months preceding the visit. The Ombudsman s report makes two recommendations and two housekeeping points. These are detailed below. Recommendations (a) The report recommends that the Director should take immediate steps to ensure that all prisoners are offered the daily opportunity to take at least one hour in the open air. If they decline, this needs to be documented, accordingly. Suitable equipment in the yards should be provided and should include, as a minimum, some form of seating. The Management and Reintegration Unit (MRU) staff now keep a daily exercise routine in the unit log book. The staff record all offers of exercise and any refusals. A similar process is also being implemented on the Transit Unit and will be established and embedded by

4 P a g e 4 October Table and chairs have been successfully trialled on the exercise yards and a full roll out has commenced. (b) The report recommends that unless a prisoner is on directed segregation, all detainees of a similar category, including young persons, should be allowed to associate. We can confirm that all detainees of a similar category, including young persons, are currently allowed to associate at MECF. House Keeping Points (c) The graffiti in the exercise yard needs removing We can advise that significant improvements have been made in removing the graffiti in the exercise yard through staff and prisoner painting parties and the whole of the central area will have been repainted by 31 December As a result of the improved fabric, MECF has been able to introduce a zero tolerance to graffiti campaign and are developing a number of additional strategies to address this issue. One of the initiatives in development is the introduction of a prisoner graffiti team. All sightings of graffiti are reported through a graffiti address and these are picked up daily and provided to the team for action on a daily basis. (d) If a prisoner makes a complaint/allegation of assault against an officer they should receive a written response of the outcome of the investigation of that complaint. Furthermore, they should be given the opportunity to make a formal complaint to the Police, if they choose. We can confirm that any complaints concerning staff assault are forwarded to the Department of Corrections National Office and to the Officer of the Inspector/Ombudsman using an internal notification form (IR07). This form provides a brief description of the complaint, the relevant prisoner details and the reporting staff member. We also provide the prisoners with the opportunity to have Police involvement in all circumstances, including allegations against staff. All complaints received by MECF are also entered into the IOMS system and once resolved, the prisoner will receive a printout from IOMS of the complaint and the resolution. The prisoner will also receive separate and additional correspondence from other agencies which they have selected to involve. Thanks again for the opportunity to comment on this report and we trust that this information is helpful.

5 P a g e 5 Mount Eden Fact page Mount Eden Corrections Facility (the Prison) is in the central Auckland suburb of Mount Eden. It is the main reception prison for newly remanded male prisoners in the Auckland region. The new buildings were opened in March They were built to replace the 120 year old Mount Eden Prison which was emptied of prisoners and closed in mid It was specifically designed for remand prisoners. Remand offenders generally spend a short period of time in prison, so there is a high turnover of prisoners. The accommodation units allow prisoners to be segregated into manageable groups. The buildings previously know as Auckland Central Remand Prison (ACRP) opened in July 2000, and were incorporated into Mount Eden Correctional Facility on 1 May The day to day management of the prison is carried out by global service provision company Serco under contract to Corrections Services 1. Region The Prison is part of the Corrections Services Northern region. Operating capacity 966 Last inspection Unannounced inspection August 2013 ARU/Transit Unit only Unannounced inspection May 2013 (MECF) - Management Unit & CSI only Announced inspection November 2008 (Mount Eden) Announced inspection November 2008 (ACRP) 1 Corrections website.

6 P a g e 6 The Visit 1. Mount Eden Corrections Facility (the Prison) was visited on 1 August The visit was conducted by Inspectors Greg Price and Jacki Jones. 2 Inspector Jones also spent some time in the Prison on 5 September. The focus of the visit was the ARU/Transit Unit (the Unit). Visit methodology 2. The Inspectors requested that some information be made available during or after the visit. This included: A list of prisoners in the Unit on the day of the inspections Daily diary entries for the months of June and July Use of force incidents for the previous three months Number and breakdown of complaints for the previous three months Number of incidents in the Unit for the previous three months Restraint training status for staff in the Unit. 3. The Inspectors were unable to meet with either the Director or Deputy Director before the visit but were escorted to the Unit by a staff member. 4. Whilst it is not always possible for the Inspectors to examine all aspects of detention during the visit, the following areas were examined on this occasion. 3 Treatment Torture, or cruel, inhuman or degrading treatment Outdoor exercise Use of force Protective measures Prisoner interviews Complaints process Separation of categories Material conditions Accommodation 2 Acting under delegation of the National Preventive Mechanism (NPM) Chief Ombudsman Dame Beverley Wakem and Ombudsman Professor Ron Paterson. 3 Our inspection methodology is informed by the Association for the Prevention of Torture s Practical Guide to Monitoring Places of Detention (2004) Geneva, available at

7 P a g e 7 Treatment Torture or cruel, inhuman or degrading treatment 5. There was no evidence that any prisoners had been subject to anything that could be described as torture or degrading treatment in the six months preceding the visit. However, denying prisoners access to at least one hour of suitable exercise in the open air daily could potentially amount to cruel or inhuman treatment. Outdoor exercise 6. The Unit is split into two areas; a six bed At Risk Unit (ARU) and an 18 bed Transit Unit. The ARU has three dry cells on the ground floor (empty cells used to house prisoners suspected of concealing illicit substances or those threatening to self harm) and three ordinary cells on the first floor (see photographs below). 7. There were a total of 21 prisoners in the Unit on 1 August and 16 prisoners in the Unit on 5 September. Dry cell ARU/Transit cell 8. The Unit has an enclosed concrete exercise area (see photograph over page) with mesh wiring partially obstructing the view of the sky. There is no seating or appropriate exercise equipment and the walls are heavily tagged (graffiti). 9. When asked, most prisoners claimed they could have daily access to the yard but seldom received an hour because of the different regimes running in the Unit (there were five regimes running on the days visited). The two prisoners in dry cells claimed they had not been able to access the yards since arriving in the Unit (six days previously). 10. Staff and supervisors confirmed that not all prisoners received their minimum entitlement to one hour fresh air, daily. Furthermore, they were unable to demonstrate

8 P a g e 8 when prisoners go out for exercise or if they decline. They confirmed that prisoners located in dry cells do not always receive yard time. Exercise yard 11. Section 69 of the Corrections Act states that every prisoner has minimum entitlements to physical exercise as provided for in section 70. Section 70 provides that every prisoner (other than a prisoner who is engaged in outdoor work) may, on a daily basis, take at least 1 hour of physical exercise; and this exercise may be taken in the open air if the weather permits. 12. The use of the word may in this context appears to mean is entitled to. It does not import any element of discretion in relation to prisoners minimum entitlements to physical exercise (see Union Shipping NZ Ltd v Port Nelson Ltd [1990] 2 NZLR 662 at 689, which considered the distinction between entitle and may, albeit in a different legislative context). 13. The entitlement to physical exercise is also contained in the United Nations Standard Minimum Rules for the Treatment of Prisoners, on which the rules in the Corrections Act are based (section 5(1)(b) of the Corrections Act refers). Those rules similarly state that prisoners not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits. Furthermore, suitable equipment should be provided for the purpose of recreation. 14. After checking the Unit log book and speaking with prisoners and staff, I am not satisfied that prisoners in the Unit are receiving their daily minimum entitlement to one hour fresh air.

9 P a g e 9 Use of force 15. There were seven use of force incidents in the Unit for the period 23 May 13 August Two resulted in the prisoners being removed to the management unit, three prisoners were moved to a dry cell and two prisoners remained in the Unit. The paperwork observed appeared to be of an acceptable standard. 16. Only one staff member is not up to date with their restraint training refresher, however, they are booked on the next training course. Recommendation Treatment The Director should take immediate steps to ensure that all prisoners are offered the daily opportunity to take at least one hour in the open air. If they decline, this needs to be documented, accordingly. Suitable equipment in the yards should be provided and should include, as a minimum, some form of seating. House keeping - Treatment The graffiti in the exercise yard needs removing. Protective measures Prisoner interviews 17. The Inspectors spoke with several prisoners during the visit including the two in dry cells. Generally, they felt they were treated with respect by most staff in the Unit and were able to approach them if they had a problem. 18. Prisoners were aware of the complaints process and felt they could request a complaint form if required. They also had telephone access to the Prison Inspectorate and Ombudsman s Office upon request. 19. Prisoners were observed using the telephone and when asked claimed they could access it whenever they were unlocked. 20. Prisoners stated they had access to cell cleaning materials and clean bedding and clothing. All prisoners have access to daily showers (in cells). 21. Prisoners said they had no problems accessing medical staff and made their own appointments using the Unit kiosk.

10 P a g e Most prisoners complained that there was little to do in the Unit and for those locked on the top landing, even less. Our observations support their comments with no constructive activity taking place on the days visited. 23. There were no complaints about the food. Prisoners and staff confirmed breakfast is served around 8.15am and the evening meal just after 4pm. On the day of the visit the lunch time meal was observed and appeared to be well presented and sufficient in quantity. Prisoners informed us they receive a hot meal in the evening and sandwiches for lunch. Complaints process 24. There were 13 complaints lodged in the Unit for the period 1 June 23 August Seven of the complaints related to three prisoners. Complaints can be broken down into the following categories; 4 Prisoner communications/correspondence 4 Prisoner welfare 1 Recreation, exercise and sport 1 Prisoner employment 1 Prisoner transfer 1 Staff conduct/ allegation of assault by staff 1 Other 25. The complaint relating to recreation and sport referred to a prisoner who claimed he was being denied access to the yard and telephone because he was on 24 hour lock down. Staff confirmed that he was not on 24 hour lock down and that he was offered exercise but declined, reinforcing the need to record when prisoners receive their minimum entitlements and if they refuse. 26. The complaint alleging an assault by a staff member was investigated, internally. What is not clear from the paperwork is whether the prisoner was given a written response on the outcome of the investigation of his complaint. Neither is there any evidence that the prisoner was given the opportunity to make a formal complaint to the Police. Separation of categories 27. The Transit Unit, as well as being an extension of the ARU, caters for the more vulnerable prisoners on the site and those requiring closer observations. All young persons (under 17 years) pass through this Unit as part of the reception process. Some young persons stay in the Unit while others move through to Bravo Unit. There were two young persons in the Unit on 1 August as well as eight sentenced, seven remand

11 P a g e 11 accused (two in dry cells), and four remand convicted adult prisoners; a total of 21 prisoners and five separate regimes (including the two prisoners in dry cells). 28. On 5 September there were nine sentenced prisoners, five remand accused, two remand convicted and a young person; a total of 16 prisoners (including one prisoner in a dry cell). 29. Nine of the prisoners in the Unit on 21 August were still in the Unit on 5 September (just under 43 per cent). One prisoner has been in the Unit since March and another one since April. 30. On 1 August there were two young persons in the Unit and three in Bravo wing. We managed to speak with the youngsters in Bravo wing who were happy with their treatment since arriving in the Prison. We were informed that the two youngsters in the Transit Unit would move over to Bravo wing once they had been seen by medical making a total of five young persons in the Prison. 31. On 5 September there were four young persons in Bravo wing and one in the ARU. The youngster in the ARU had been in the Unit for several days having been transferred from Waikeria Prison. When asked why he could not mix with the youngsters in Bravo wing the Inspector was told it was because of his behaviour. Given that the youngster was not on any observations or directed segregation, his placement in the ARU was not appropriate. He was moved to Bravo wing and allowed to associate with the other young person s following the visit. Recommendations Protective measures Unless a prisoner is on directed segregation, all detainees of a similar category, including young persons, should be allowed to associate. House keeping Protective measures If a prisoner makes a complaint/allegation of assault against an officer they should receive a written response of the outcome of the investigation of that complaint. Furthermore, they should be given the opportunity to make a formal complaint to the Police. Material conditions Accommodation 32. Cells were of a reasonable size and have en-suite facilities. There are two narrow windows which allow minimal natural light (most windows are opaque) but no fresh air.

12 P a g e 12 Whilst this is not ideal, prisoners can and do spend sufficient time out of their cells, albeit with limited access to activities, to mitigate the lack of fresh air. 33. The top landing is caged off from the ground floor allowing more than one group of prisoners to associate at any one time (see photograph below). Again, this is not ideal as the top landing has no association area and prisoners only have access to the landing and stairs. However, staff do try and alternate access to the ground floor to accommodate meals being taken at the dining tables. 34. The cells and Unit were generally clean and tidy. For those prisoners preferring to stay in the Unit (as opposed to moving to mainstream) they can and do personalise their cells including prison T.Vs. Recommendations Material conditions Transit Unit - communal area I have no recommendations to make.

13 P a g e 13 Acknowledgement 35. I appreciate the full co-operation extended by the Director and staff to the Inspectors during their visits to the Prison. I also acknowledge the work that would have been involved in collating the information sought by the Inspectors. Dame Beverley Wakem DNZM, CBE Chief Ombudsman National Preventive Mechanism

14 P a g e 14 Appendix 1: Overview of OPCAT Prisons 1. In 2007 the New Zealand Government ratified a United Nations convention called the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). The objective of OPCAT is to establish a system of regular visits undertaken by an independent national body to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment. 2. The Crimes of Torture Act 1989 (COTA) was amended by the Crimes of Torture Amendment Act 2006 to enable New Zealand to meet its international obligations under OPCAT. Section 16 of COTA defines a place of detention as: any place in New Zealand where persons are or may be deprived of liberty, including, for example, detention or custody in (a) (c) a prison a court cell. 3. Pursuant to section 26 of COTA, an Ombudsman holding office under the Ombudsmen Act 1975 was designated a National Preventive Mechanism (NPM) for certain places of detention, including prisons and court cells. 4. Under section 27 of COTA, an NPM s functions, in respect of places of detention, include: to examine the conditions of detention applying to detainees and the treatment of detainees; and to make any recommendations it considers appropriate to the person in charge of a place of detention: for improving the conditions of detention applying to detainees; for improving the treatment of detainees; for preventing torture and other cruel, inhuman or degrading treatment or punishment in places of detention. 5. To facilitate the exercise of their NPM functions, the Ombudsmen have delegated their powers to inspect places of detention to Inspectors (COTA). This is to ensure that there is a separation between the Ombudsmen s preventive monitoring function under OPCAT and the Ombudsmen s investigation function under the Ombudsmen Act by using separate visits and staff for each function.