Cullen v Chief Constable of the Royal Ulster Constabulary
| Jurisdiction | UK Non-devolved |
| Judge | LORD HUTTON,LORD RODGER OF EARLSFERRY,LORD BINGHAM OF CORNHILL AND LORD STEYN |
| Judgment Date | 10 July 2003 |
| Neutral Citation | [2003] UKHL 39 |
| Court | House of Lords |
| Date | 10 July 2003 |
[2003] UKHL 39
HOUSE OF LORDS
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Steyn
Lord Hutton
Lord Millett
Lord Rodger of Earlsferry
My Lords,
I. THE QUESTION.
On this appeal a question of law of considerable public importance arises, namely whether a breach of section 15 of the Northern Ireland (Emergency Provisions) Act 1987 may give rise to an action for damages. Subject to limited qualifications section 15 confers a right of access to legal advice on a detained person.
II. A NARRATIVE.
The context in which the issue arises is as follows. On 17 October 1989 a police officer arrested the appellant under section 14(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1989, upon suspicion of having been concerned in the commission, preparation or instigation of an act of terrorism associated with the withholding of information in respect of a murder. He was taken to the Castlereagh Police Office. From 17 to 22 October 1989 the appellant was held in police custody. He wanted to see a solicitor. During this period, a police officer of the appropriate rank under section 15 issued four authorisations denying him a right of access to a solicitor. The appellant was permitted one unsupervised consultation and two supervised consultations with his solicitor. On 20 October 1989 the appellant made a statement which contained admissions. In due course he was charged with the offence of withholding information of a murder. He pleaded guilty, and he was sentenced to 160 hours community service. The appellant then brought an action for damages against the respondent. The trial judge found that the Police at all times had reasonable grounds to delay access to a solicitor as required by section 15(8) of the Act. But the trial judge held that the respondent had failed to comply with the requirements of section 15 in the following two respects:
The trial judge concluded that none of the breaches of section 15 conferred a right upon the appellant to claim damages in a civil case. The Court of Appeal dismissed an appeal against this conclusion: Cullen v Chief Constable of the Royal Ulster Constabulary [1999] NI 237.
III. THE LEGISLATIVE CONTEXT.
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(a) Each of the decisions to deny the appellant access to a solicitor was anticipatory in nature in the sense of being made in advance of a request by the detainee;
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(b) The appellant had not at any stage been informed of the reasons for the decisions to deny him access to a solicitor.
The legislative context must now be explained. The long title of the 1987 Act describes it as, among other things, intended "to confer certain rights on persons detained in police custody in Northern Ireland under or by virtue of Part IV of the Prevention of Terrorism (Temporary Provisions) Act 1984". The critical provision, which is section 15, is contained in Part II. The heading of Part II is "Rights of Persons Detained Under Terrorism Provisions in Police Custody". The first provision in Part II is section 14, which "confers" on a detained person "the right" to have someone informed of his detention under the terrorism provisions. The only other substantive provision in Part II is section 15. The marginal note to section 15 reads "Right of access to legal advice". Given its central importance we set out section 15 with emphasis added where appropriate:
"15. (1) A person who is detained under the terrorism provisions and is being held in policy custody shall be entitled, if he so requests, to consult a solicitor privately.
(2) A person shall be informed of the right conferred on him by subsection (1) as soon as practicable after he has become a person to whom that subsection applies.
(3) A request made by a person under subsection (1), and the time at which it is made, shall be recorded in writing unless it is made by him while at a court after being charged with an offence.
(4) If a person makes such a request, he must be permitted to consult a solicitor as soon as is practicable except to the extent that any delay is permitted by this section.
(5) Any delay in complying with a request under subsection (1) is only permitted if -
(a) it is authorised by an officer of at least the rank of superintendent; and
(b) it does not extend beyond the relevant time.
(6) In subsection (5) 'the relevant time' means -
(a) where the request is the first request made by the detained person under subsection (1), the end of the period referred to in section 14(6); or
(b) where the request follows an earlier request made by the detained person under that subsection in pursuance of which he has consulted a solicitor, the end of the period of 48 hours beginning with the time when that consultation began.
(7) An officer may give an authorisation under subsection (5) orally or in writing but, if he gives it orally, he shall confirm it in writing as soon as is practicable.
(8) An officer may only authorise a delay in complying with a request under subsection (1) where he has reasonable grounds for believing that the exercise of the right conferred by that subsection at the time when the detained person desires to exercise it
(a) will lead to interference with or harm to evidence connected with a scheduled offence or interference with or physical injury to any person; or
(b)will lead to the alerting of any person suspected of having committed such an offence but not yet arrested for it; or
(c)will hinder the recovery of any property obtained as a result of such an offence; or
(d)will lead to interference with the gathering of information about the commission, preparation or instigation of acts of terrorism; or
(e)by alerting any person, will make it more difficult -
(i) to prevent an act of terrorism; or
(ii) to secure the apprehension, prosecution or conviction of any person in connection with the commission, preparation or instigation of an act of terrorism. (9) If any delay is authorised, then, as soon as is practicable -
(a) the detained person shall be told the reason for authorising it; and
(b) the reason shall be recorded in writing. (10) If an officer of at least the rank of Assistant Chief Constable has reasonable grounds for believing that, unless he gives a direction under subsection (11), the exercise by a person of the right conferred by subsection (1) will have any of the consequences specified in subsection (8), he may give a direction under subsection (11).
(11) A direction under this subsection is a direction that a person desiring to exercise the right conferred by subsection (1) may only consult a solicitor in the sight and hearing of a qualified officer of the uniformed branch of the Royal Ulster Constabulary.
(12) An officer is qualified for the purposes of subsection (11) if
(a) he is of at least the rank of inspector; and
(b) in the opinion of the officer giving the direction, he has no connection with the case.
(13) Any authorisation under subsection (5) or direction under subsection (11) shall cease to have effect once the reason for giving it ceases to subsist."
The fate of section 15 was as follows. The 1987 Act came into operation on 15 June 1987. It was subsequently repealed by the Northern Ireland (Emergency Provisions) Act 1991, with effect from 27 August 1991. Section 45 of the 1991 Act became the operative provision regulating the right of access to legal advice. The 1991 Act in turn was repealed by the Northern Ireland (Emergency Provisions) Act 1996, with effect from 25 August 1996: see section 47 of the 1996 Act. The 1996 Act was repealed by the Terrorism Act 2000, which has been in force (except for section 100) since 19 February 2001. The extant equivalent of section 15 of the 1987 Act is paragraphs 7 and 8 of Schedule 8 to the 2000 Act.
The genesis of section 15 is important. It applies to "[a] person who is detained under the terrorism provisions" (section 15(1)). It was modelled on section 58 of the Police and Criminal Evidence Act 1984. In a new and remedial provision section 58 conferred a statutory right to legal advice on detained persons. It has been said that the right contained in section 58 "is arguably the most important protection conferred by the [1984] Act": 1984 Current Law Statutes, Vol 4, General Note to section 58, 60-105. The Police and Criminal Evidence (Northern Ireland) Order 1989 (SI 1989/1341) took effect on 1 January 1990. Article 59 of the latter instrument corresponds to section 58 of PACE 1984. Article 59 of the PACE Order 1989 does not apply to terrorist arrests: see article 59(12). Section 15 applies only to terrorist arrests. But it corresponds to section 58 of PACE and cannot therefore be given any special interpretation on the basis of a terrorist dimension.
It is now necessary to explain the law about a detained person's access to legal advice as it stood before PACE 1984 was enacted. The common law recognised a general right in an accused person to communicate and consult privately with his solicitor outside the interview room. This development is reflected in the Judges' Rules and Administrative Directions to the Police which were published as Home Office Circular No. 89/1978. The text expressly provided that the Judges' Rules do not affect certain established legal principles which included the principle:
"(c) That every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor. This is so even if he is in custody provided that in such a case no unreasonable delay or hindrance is caused to the processes of investigation or the administration of justice by his doing so: …"
In R v Chief Constable of the Royal Ulster Constabulary, Ex p Begley ...
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