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Stephen Thomas Hudson, who is serving a life sentence for killing Nicholas Pike in 2002, took the Attorney-General to the Court of Appeal in Wellington in June 2022 after a request to a friend to bring him copies of FHM and Ralph magazines was censored by a Corrections officer. An earlier appeal to the High Court had been dismissed.
In January 2018, Hudson submitted a property request form to a Corrections officer in Rimutaka Prison for vetting before the request was sent on to a friend of his in the community. In the request, he asked for an electric fan as well as the two magazines.
The officer who considered the request deleted the reference to the magazines before sending the request on.
When Hudson found out what had happened, he laid a complaint and was told the magazines he requested were banned from the prison.
Stephen Thomas Hudson is serving a life sentence for killing Nicholas Pike in 2002.
FHM and Ralph are men’s lifestyle magazines known for devoting much of their pages to pictures of bikini-clad women and sexually-charged articles such as “best butts” and “steamy foreplay secrets”.
While it had been established the Corrections officer’s decision to censor Hudson’s request was unlawful, Corrections sought to maintain the right to restrict access to “lad mags”, the Court of Appeal said in its decision, released today.
“It says, among other things, that these magazines might interfere with the rehabilitation of prisoners, and could become a form of currency in prison, with associated risks,” the decision said.
Hudson argued restricting access to the magazines was a breach of his freedom of expression, but the High Court ruled it was a justified limit on his rights.
In the further appeal, prison director Vivien Whelan said the availability of the magazines could lead to possible violence, standover tactics, intimidation and bullying between inmates.
“The magazines could become associated with other anti-social behaviour, such as bartering for contraband,” the decision said.
“She [Whelan] took the view that the magazines would be unlikely to assist and could well harm the rehabilitation of the many prisoners who have committed sexual offences or offences of violence against women. Ms Whelan was also concerned that magazines which might sexually prime and excite men could well compromise the safety of female staff working in the prison.”
FHM magazine, which is no longer printed, devoted most of its pages to scantily-clad women.
Whelan also noted the magazines Hudson requested were no longer in print at the time.
Corrections’ chief psychologist Dr Juanita Ryan also echoed Whelan’s concerns, including that some of the material in the magazines was “known to be consistent with a range of unhealthy attitudes relating to women, including attitudes which legitimise violence against women”.
But in today’s decision, the Court of Appeal said the Attorney-General had not provided enough evidence to show the restrictions on Hudson’s rights were justified.
“We are inclined to doubt Ms Whelan’s evidence that permitting Mr Hudson to access the magazines would be likely to lead to violence, stand-over tactics, intimidation and bullying. Ms Whelan did not point to any instances of those harms occurring - whether in New Zealand or abroad - where prisoners have accessed similar content (whether by permission or subterfuge),” the Court of Appeal decision said.
The decision also said any item had the potential to become a tradable commodity, but that did not rationally justify banning only some sought-after items.
The hearing was held in the Court of Appeal in Wellington.
The judges also said the studies put forward did not show a causal relationship between men’s magazines and violence, and none of that addressed the fact that material in the magazines could already be found in a prison environment, including on TV.
“[Corrections] should point to evidence demonstrating a causal nexus between access to those magazines and the claimed harms, whether by reference to comparator prisons, jurisdictions, empirical studies or informed academic opinion. It has not done so.”
The court granted Hudson’s appeal and said he could take steps to obtain the magazines if he wanted to, and any request for them should be dealt with in accordance with the discussion in the judgment. The decision only covers FHM and Ralph magazines.
The court also ordered the Attorney-General to pay costs for the appeal.
Melissa Nightingale is a Wellington-based reporter who covers crime, justice and news in the capital. She joined the Herald in 2016 and has worked as a journalist for 10 years.
