Unlawful search — scanner search — rub down — strip search — Corrections Act 2004, ss 3, 6, 12, 33, 74, 89, 90, 94 & 99 — New Zealand Bill of Rights Act 1990, s 21 — Prison Operations Manual — Mitchell v Attorney-General [2017] NZHC 2089 — Taunoa v Attorney-General [2007] NZSC 70; [2008] 1 NZLR 429 — Forrest v Attorney-General [2012] NZCA 125; [2012] NZAR 798 — Van Essen v Attorney-General [2015] NZCA 22; (2015) 10 HRNZ 155 — Taylor v Attorney-General [2018] NZHC 2557. The plaintiff, a barrister, had been required by the defendant, a prison, through its staff to remove his clothing before being allowed entry into the prison to see his clients. On one occasion he was forced to remove his braces in front of several corrections officers (COs), including a CO of the opposite sex, and had to go to another room to get redressed. On a second occasion he was told he would have to remove his shoes. He did not consent; so could not see his client for the scheduled visit. On a third occasion he was told to remove his shoes but was eventually let through without doing so. The plaintiff submitted the requirements were a breach of the Corrections Act (the CA), in terms of the wording of the statute and obligations to treat people with sensitivity and the greatest degree of privacy and dignity. It was also submitted the searches were a breach of s 21 of the New Zealand Bill of Rights Act 1990 (BORA) in that he was not treated with dignity. He sought damages in the sum of $10,000 for this breach and a further sum of $9,000 to emphasise the affirmed rights and to deter further breaches of those rights. The defendant submitted that none of the searches breached s 21 of BORA as unlawful searches are not unreasonable “where the breach is minor or technical, or where the person carrying out that search had a reasonable but erroneous belief of acting lawfully.” The Judge determined that the searches did breach the CA and the Prisons Operation manual; they were unreasonable and unlawful under s 21. The plaintiff pointing out the braces and undergoing a hand-held scanner search and/or a visual inspection, was sufficient and reasonable. The plaintiff only removed his braces because he had to see his client to get a signature, and put his duty to his client before his own rights. In terms of the requirements to remove his shoes, a directive to prison staff that this must happen was unlawful as it contradicted the CA and policy that removal of shoes must be voluntary. The requirement was unlawful as it was conducted in the context of a scanner and an x-ray search. Further, the consistency of staff training was called into question as one CO had refused the plaintiff entry if he did not take off his shoes and another had exercised discretion in allowing the plaintiff in without the removal of shoes. The Judge found the requirement for the removal of braces and shoes was unlawful. Both requirements breached s 21 of BORA and were an unreasonable search of the person. Damages of $750 were awarded for the requirement to remove the braces and $150 for the shoes. The Judge did not consider this to be a case where it was appropriate to award exemplary damages. Judgment Date: 7 October 2019.