B, N, O, Q, R, U, v (Former Soldiers) v The Chief Constable of the Police Service of Northern Ireland
| Jurisdiction | England & Wales |
| Judge | Lord Thomas of Cwmgiedd CJ,Openshaw,Carr JJ |
| Judgment Date | 17 December 2015 |
| Neutral Citation | [2015] EWHC 3691 (Admin) |
| Docket Number | Case No: CO/5494/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 December 2015 |
[2015] EWHC 3691 (Admin)
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
The Hon. Mr Justice Openshaw
The Hon. Mrs Justice Carr DBE
Case No: CO/5494/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr James Lewis Q.C. and Mr Ben Watson (instructed by Devonshires) for the Claimants
Mr Jonathan Hall Q.C. (instructed by the Government Legal Department acting as agents for the Crown Solicitor for Northern Ireland) for the Defendant
Hearing date: Thursday 26th November 2015
Lord Thomas of Cwmgiedd CJ, Openshaw and
Introduction and summary
On 30 January 1972 13 civilians were killed and 14 injured in Londonderry when members of the British armed forces opened fire with live rounds. The incident, commonly known as Bloody Sunday, has been the subject of numerous investigations, including the Inquiry chaired by Lord Saville which produced a report on 15th June 2010.
Since then the defendant, the Chief Constable of the Police Service of Northern Ireland ("the PSNI"), has conducted through the PSNI Legacy Investigation Branch a criminal investigation into those same events under the superintendence of Detective Chief Inspector Harrison ("DCI Harrison"). As we explain at paragraph 48, the Inspectorate of Constabulary has made clear its view that investigations into the actions of the British army should be conducted as ordinary criminal inquiries.
DCI Harrison's evidence to the court was that, as a result of the investigations carried out, there are reasonable grounds to suspect the claimants, all former British soldiers who served with the 1 st Battalion of the Parachute Regiment, of having committed serious criminal offences, including murder and attempted murder. A decision was taken by the PSNI to interview them under caution.
The PSNI wished for that purpose to arrest each of the claimants in the jurisdiction of England and Wales where they all reside and transfer them to the separate jurisdiction of Northern Ireland for the interviews. It is common ground that under the applicable statutory provisions (s.137 of the Criminal Justice and Public Order Act 1994 ("the 1994 Act") and Article 26 of the Police and Criminal Evidence (Northern Ireland) Order 1989 as amended) (which we describe in more detail at paragraphs 11 and following), they can only be arrested for the purpose of interviewing them if the officer wishing to effect the arrest has reasonable grounds for believing that arrest is necessary to allow the prompt and effective investigation of the offences or the conduct of any of the claimants.
Each of the claimants accepts that under the statutory provisions the PSNI could arrest them in England and Wales in order to charge them. However, as each has offered an undertaking that he will co-operate and attend interview under caution at a police station in England and Wales and an interview can be carried out as the documentation is held electronically, each contends that the test of necessity is not met and such an arrest would therefore be unlawful.
After an application to Ouseley J, the PSNI has agreed to delay the exercise of its powers under s.137 of the 1994 Act until this court has considered the issue as to whether the PSNI can lawfully effect the arrests. This involves a two stage test: (1) the actual belief by the PSNI that an arrest was necessary and (2) judged objectively, the decision to arrest was made on reasonable grounds. Three reasons were put forward by DCI Harrison in his evidence as to why an arrest for this purpose was necessary (see paragraphs 0–41 below).
As to the first stage of the test, we will proceed on the basis of an assumption in the PSNI's favour that these were reasons DCI Harrison subjectively believed were grounds justifying the arrests as necessary for the purposes of investigating the offences (see paragraph 0).
However, on the second stage of the test, we unhesitatingly conclude the reasons advanced did not provide reasonable grounds for the decision to arrest any of the claimants as being necessary to allow the prompt and effective investigation of the offence or the conduct of the claimants. Our reasons are set out at paragraphs 52 – 68 below. In summary, they are:
(1) Each of the claimants has offered and will be required to give an undertaking to the court that they will attend for interview in a police station in England and Wales and be interviewed. Each has co-operated with all previous proceedings and investigations, namely at the time and in the immediate aftermath of Bloody Sunday with the Royal Military Police, in the associated inquest proceedings, Lord Widgery's inquiry in 1971 and the later Saville inquiry. Each of the claimants gave evidence before Lord Saville in what was a lengthy and detailed process, following an undertaking by the Attorney General of England and Wales dated 22 February 1999, the terms of which are set out more fully at paragraphs 31–32 below.
(2) The documentation necessary for the interviews is held in electronic format. Such documentation can be put to the claimants at interview in England and Wales. The practice of the PSNI of putting to witnesses original documents of the type in issue in this case is outmoded and cannot form any justification for an arrest.
(3) The present position of the claimants is that each will exercise their right to silence in the interviews. It is, in our view, almost impossible to foresee that any will depart from that position. The interviews are therefore likely to be short and straightforward.
(4) The claimants have made clear that they will undertake to the court that they will attend for interview. They will attend and be interviewed under an obligation which will be enforced by this court; they cannot therefore at any stage decide to leave without being in breach of the undertaking.
(5) There is no basis on which the possibility of imposing post-interview bail conditions could be a reason justifying the need for arrest now.
(6) If interviewed in Northern Ireland they would not be able to return to their homes during the interview period, but would have to be detained for their own safety in conditions of close custody. Even if so detained, there would remain a risk to their safety.
We therefore have concluded that on the claimants each giving to the court the undertaking offered, the court will declare that the arrest of that claimant for the purpose of interview under caution would be unlawful. Further provision has been made for Soldier O because of his serious medical condition (see paragraphs 0–45).
The relevant legislative framework and applicable legal principles
It is convenient first to set out the relevant legislative framework and the applicable legal principles.
(a) The relevant legislative framework in relation to arrest in England and Wales for cross border offences
S.137 of the 1994 Act provides materially as follows:
"137. Cross-border powers of arrest etc.
…
(3) If the conditions applicable to this subsection are satisfied, any constable of a police force in Northern Ireland who has reasonable grounds for suspecting that an offence has been committed or attempted in Northern Ireland and that the suspected person is in England or Wales or in Scotland may arrest without a warrant the suspected person wherever he is in England or Wales or in Scotland…
…
(6) The conditions applicable to subsection (3) above are –
(a) that the suspected offence is an arrestable offence; …
(7) It shall be the duty of a constable who has arrested or, as the case may be detained, a person under this section…
…
(b) if he arrested him in England or Wales, to take the person arrested … to the nearest convenient designated police station in Northern Ireland or to a designated police station in Northern Ireland in which the offence is being investigated;…
(9) In this section—'arrestable offence' has the same meaning as in the Police and Criminal Evidence (Northern Ireland) Order 1989 ('the 1989 Order';'designated police station' has the same meaning as in the Police and Criminal Evidence Act 1984 or, in relation to Northern Ireland, as in the 1989 Order; and 'constable of a police force', in relation to Northern Ireland, means a member of the Royal Ulster Constabulary or the Royal Ulster Constabulary Reserve…"
As set out above, " arrestable offence" is defined in s.137(9) by reference to the Police and Criminal Evidence (Northern Ireland) Order 1989 ("the 1989 Order"), where the relevant substantive article is Article 26. On 1 March 2007 the Police and Criminal Evidence (Amendment) (Northern Ireland) Order ( SI 2007/288) repealed Article 26, substituting it with a new power of arrest without warrant, subject to certain new conditions. Although in dispute at one stage, by the time that the hearing before us commenced it was rightly common ground that the reference in s.137(9) to " arrestable offence" is now to be construed as a reference to Article 26 as amended in the 1989 Order ("Article 26"), which is engaged accordingly.
Article 26 provides materially as follows:
" Arrest without warrant: constables
26. (1) A constable may arrest without a warrant—
…
(2) If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it…
(4) But the power of summary arrest conferred by paragraph …(3) is exercisable only if the...
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