A.09.03 Temporary Removal

Purpose

Guideline: The purpose of PPM A.09.03 Temporary Removal is to outline the:

• Provisions for all prisoners temporarily removed from prison, hereafter known as temporary removals.
• Approved purposes of temporary removals.
• Procedure to apply for temporary removals.
• Requirements to document and report on the processes and procedures.
• legislative provisions regarding temporary removals and additionally constitutes Chief Executive’s guidelines in accordance with section 196(1)(a) of the Corrections Act 2004.

Defining the term ‘temporary removal’

Sections 62 and 64; regs. 28-29: A temporary removal occurs when a prisoner is temporarily removed from prison while remaining in custody under the control or supervision of an officer, staff member, or probation officer during the period of removal.

The temporary removal must be for a purpose and objective as defined in, and otherwise in accordance with sections 62 and 64 of the Corrections Act 2004, regulations 28 and 29 of the Corrections Regulations 2005, and PPM A.09.03.

Note: Work gangs / work parties do not come within the actual or intended meaning of sections 62, 64 and regulation 29.

Sections 62 and 64, and regulation 29 set out the nature and extent of temporary removals from prison.

While regulation 29(a) does allow a temporary removal of a prisoner from prison for the purposes of seeking a job, it does not cover a prisoner working on a job.

A review of the rest of regulation 29 and the relevant parts of the PPM would seem to indicate that a temporary removal for the purposes of working could not be implied into these provisions either (e.g. the PPM refers to temporary removals as "escorted outings" and all the specified purposes for these outings relate to visits or short term events which are not consistent with a prisoner working in an on-going way in any form of employment).

It is clear from section 66 of the Act that prisoners can be employed in work and section 66(1)(a) expressly allows prisoners to be employed outside the prison.

The provisions of section 66 refer on a number of occasions to the "Prison Manager" on a number of occasions and it would seem that it was intended that the Prison Manager would be responsible for managing prisoners working inside and outside the prison under this provision (compare temporary releases and temporary removals both of which expressly require authorisation from the Chief Executive).

It is therefore the view that the management of prisoners working in work gangs, both inside and outside the wire, and supervised and unsupervised, is a matter for the Prison Manager to manage under section 66 as part of their custodial and managerial responsibilities.

Approving a temporary removal outside one of the grounds in regulation 29 is ultra vires - outside our powers as public servants. When we act outside our powers we act outside the law.

Objective of temporary removals

Section 62(2)(a) and (b): The Chief Executive may authorise any temporary removal for any of the above purposes under section 62(2)(a) if he or she considers it will facilitate the achievement of one or more of the following objectives:

• The prisoner’s rehabilitation and their successful reintegration into the community.
• The compassionate or humane treatment of the prisoner or their family.
• Furthering the interests of justice.

Under section 62(2)(b) a prisoner may also be temporarily removed in any circumstances that are, in the Chief Executive’s opinion exceptional, and that will facilitate the achievement of one or more of the foregoing objectives.

Legal custody

Section 38(1) and (3): Prisoners remain in the legal custody of the Chief Executive throughout their temporary removal.

Section 64(a): Temporary removals must be approved for a period fixed by the Chief Executive or by persons to whom this power has been lawfully delegated.

As the prisoner remains in legal custody the Chief Executive (or his delegate) may at any time direct the return to a prison of a prisoner who is on a temporary removal.

Eligibility of prisoners

Regulation 28 of the Corrections Regulations 2005 specifies the following classes of prisoners who may be temporarily removed under section 62:

1. Every prisoner sentenced to imprisonment.
2. Every prisoner on remand.
3. Every prisoner detained under an order that is not a sentence of imprisonment.

Policy Standard

• Other than in an emergency a temporary removal is managed as part of a prisoner's sentence plan, and in accordance with statutory requirements and Policy and Procedures Manual.

Performance Standards

1. Sufficient and accurate information is provided on a prisoner's temporary removal application to enable an accurate decision to be made on whether or not the application should be approved.
2. A prisoner's temporary removal application must be responded to promptly and managed in a way that reflects the urgency of the application.
3. When considering any application for temporary removal the approving authority shall refer to the matters specified in PPM A.09.03.R2.
4. Requests for Regional Office Approval must be made on Temporary Removal Request for Regional Office Approval (A.09.03.F3) and Temporary Removal Checklist for Request for Regional Office Approval (A.09.03.F4).
5. Before approving a temporary removal application for any high profile prisoner Service Support / Operations must be consulted.
6. The prisoner is advised of any reasons for the decline, approval or any variation from their temporary removal application.
7. Every effort is made to ensure that the prisoner is aware of and understands the conditions attached to any approved application.
8. The supervision of temporary removals is the Prisoner Manager's responsibility. The level of security and supervision imposed must reflect the prisoner's security classification as well as his or her prison record and history.
9. In considering security measures for temporary removals, Prison Managers should consider the security risk posed by the prisoner and the public's general perception of prisoner control and security where staff and prisoners move through the public areas.
10. The appropriate IOMS procedure Prisoner Transportation menu / tab) shall be completed for all temporary removal.
11. A copy of the completed application form, including the decision reached with reasons provided, is placed on the prisoner's file along with any reports provided to assist consideration of the application.
12. The escorting staff is notified in writing (Temporary Removal Transit Conditions) of any arrangements and conditions of the temporary removal and what action to take if the prisoner's behaviour gives cause for concern.
13. Two copies of the Temporary Removal Transit Conditions form are printed and the escorting Officer in Charge signs both copies to acknowledge that he or she is aware of the instructions for the escort.
14. One copy of the signed Temporary Removal Transit Conditions forms is carried by the Officer in Charge of the escort throughout the temporary removal, and one copy is kept in the Control Room / Gate House until the escort is completed.
15. Escorting officers, staff members or probation officers having control or supervision of prisoners on temporary removal must be briefed and given detailed written instructions, including any special security conditions such as the use of handcuffs, prior to each temporary removal been undertaken.
    1. Under section 87(1) of the Corrections Act 2004 a probation officer may not use handcuffs on a prisoner, but a staff member is authorised to do so.
    2. Staff members (other than custodial staff) and probation officers may only supervise prisoners on temporary removal when the Prison Manager of the prison has approved that person to perform supervision duties.
16. In the event of a prisoner's admission to hospital the Prison Manager must inform a person nominated by the prisoner as a contact person or, if the prisoner has not nominated any such person, the prisoner's next of kin; and if the prisoner is a service prisoner, the prisoner's commanding officer.
17. Every officer, staff member and probation officer must exercise the utmost care and vigilance in the control and supervision of any prisoner on temporary removal.
18. No officer, staff member, or probation officer may relinquish the control of a prisoner when outside the prison except if authorised as required by an enactment or orders by handling control of the prisoner over to another officer, staff member, probation officer, or member of the police.
19. Any officer, staff member or probation officer who is carrying out escort duties for a temporary must ensure:
    • The safety and security of the prisoner(s) being escorted.
    • That male and female prisoners are escorted separately.
    • That all documents related to the prisoner are held in a covered folder or satchel within the possession or control of staff.
    • That the prisoner(s) being escorted are exposed to public view as little as possible, and as far as practicable in the circumstances, do not communicate with the public.
      • Note that under section 38(b) of the Corrections Act 2004 a probation officer has the powers of an officer to give any lawful order to a prisoner, and is an officer for the purpose of a number of specified provisions.
      • However there is no equivalent of section 38(6) for "staff members".
20. Procedures are in place to record the departure, return and any incidents relating to a prisoner on a temporary removal.
21. The prisoner must return to prison immediately if the person supervising him / her on a temporary removal becomes ill or incapacitated, or that supervision ceases for any other reason.
22. If the prisoner fails without reasonable excuse (the proof of which lies with the prisoner) to return, he / she is deemed to have escaped from lawful custody and are liable accordingly.
23. Complaints by prisoners, about a decision of the Chief Executive (or his delegate) on a temporary removal application, may be made directly to an Inspector of Corrections.
24. Complaints received from prisoner by prison staff, must be forwarded to an Inspector of Corrections within 7 calendar days. This complaint process does not restrict a prisoner's right to make a complaint directly to the Office of the Ombudsmen.

Costs

The family or the prisoner must agree to meet the expenses arising from any Compassionate Temporary Removal. Where more than one escorting officer is considered necessary, only the cost of one officer is charged.

The charges which must be met are:

• The fares of the prisoner and one escorting officer;
• Travelling allowances and expenses, taxis and other expenses for one officer;
• One officer's salary and overtime to the nearest hour from time of departure to time of return at grade equivalent to Custodial Officer is charged irrespective of the officer's actual grading. This should include overtime rates if an officer has to be called back on a rostered day off.

The actual cost is to be assessed in each individual case. The family or the prisoner is then to be advised of the sum and the basis of the charge and informed that the deposit of money prior to the escort is necessary for it to proceed and that deposit of the money constitutes an agreement to pay the charges.