R v Chief Constable of the Royal Ulster Constabulary, ex parte Begley

By orders of the House made on 30 July 1997 the appeals in the case of Begley against a decision of the Divisional Court of the Queen's Bench Division of the High Court of Justice in Northern Ireland and in the case of McWilliams against a decision of the Court of Appeal in Northern Ireland were dismissed. I will now explain the reasons for those orders.

In the two appeals a single question of law arose regarding the rights of a person arrested under section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989 ("the P.T.A."), viz. a person arrested on the ground that he is or has been concerned in the commission, preparation or instigation of acts of terrorism. In the case of Begley the Divisional Court certified a question of law in the following terms:

"Whether a person arrested under section 14 of the Prevention of Terrorism Act 1989 has (i) a right at common law to be accompanied and advised by his solicitor during interviews with the police or (ii) if such right did not exist at common law, can it now be said to exist in the light of the provisions of The Criminal Evidence (Northern Ireland) Order 1988 and in particular Article 3 thereof."

The first part of the question is self-explanatory. The second part of the question is a reference to the change brought about by legislation in 1988 in Northern Ireland which enables the court in certain circumstances to draw inferences from an accused's failure to mention particular facts when he is questioned, charged, etc., if the accused "could reasonably have been expected to mention [the facts]." Despite the language of the second part of the certified question the question is not whether the legislation of 1988 created a right to have a solicitor present during interview: it plainly did not. The question is simply whether the radical change brought about in 1988 in Northern Ireland justifies a common law development to create such a right. The certified question in the case of McWilliams is wider in scope but it was common ground at the hearing that it need not be considered separately.

Given the narrow question of law to be considered, the circumstances of the two appeals can be described quite briefly. The first case is that of Begley. On 5 March 1996 Begley was arrested under section 14(1) of the P.T.A. in connection with the murder of Gino Gallagher, who was reputedly a leading member of the proscribed I.N.L.A. Begley was taken to the Castlereagh Police Station. The police allowed him to consult privately with a solicitor. On Begley's instructions the solicitor requested permission to attend the police interviews with Begley. The general practice of the Chief Constable of the Royal Ulster Constabulary is to refuse permission for solicitors to attend interviews of persons arrested under section 14(1) of the P.T.A. but occasionally it is permitted as a matter of concession. The police refused the request for the solicitor to attend Begley's interviews. The police first interviewed Begley in the evening of 5 March. On the next day the police allowed Begley on two occasions to consult privately with his solicitor and conducted further interviews with him in the absence of his solicitor. On 6 March Begley obtained leave to apply for judicial review of the decisions denying him the right to have his solicitor present during interviews. A few hours later the matter came on for hearing before a Divisional Court presided over by MacDermott L.J. The Divisional Court held that a person arrested under section 14(1) of the P.T.A. has no legal right to have a solicitor present during interviews and dismissed the application. As a result of things said by him in interviews Begley was charged with murder on 9 March 1996. Subsequently, he was committed for trial on a charge of murder. He still awaits trial.

The second case is that of McWilliams. On 11 March 1993 the police arrested McWilliams under section 14(1) of the P.T.A. in connection with a murder committed a few hours earlier by two masked gunmen. They took him to Castlereagh Police Station. Despite McWilliams' request for the attendance of a solicitor, the police denied him access to a solicitor for 56 hours. In delaying McWilliams' access to his solicitor the police purported to act under section 45 of the Northern Ireland (Emergency Provisions) Act 1991. The lawfulness of the decisions to delay McWilliams' access to a solicitor is not an issue on his appeal. The pertinent matter on his appeal is that McWilliams was not allowed to have a solicitor present during a succession of interviews. In the first five interviews he remained silent. In the sixth interview, and before he had received any legal advice, McWilliams started making admissions which he later amplified. He was charged with murder. At his trial the only evidence against him was the admissions made in interview. Counsel for McWilliams asked the judge to exclude the evidence of the admissions on the ground inter alia that he had not been allowed to have a solicitor present during the interviews. The judge refused to do so. McWilliams was convicted of murder and of certain other charges by the judge sitting without a jury. He appealed to the Court of Appeal against his conviction on grounds which included the ground that he had not been allowed to exercise the alleged right to have a solicitor present during interviews. In giving the judgment of the court Carswell L.J. (now the Lord Chief Justice of Northern Ireland) ruled that McWilliams had no legal right to have a solicitor present during interviews. In the result McWilliams' appeal was dismissed on all grounds.

Counsel for the two appellants adopted an identical stance. They submitted that as the law stood at the time of the making and coming into operation of The Criminal Evidence (Northern Ireland) Order 1988, (S.I. No. 1987 (N.I. 20), the common law already recognised a right in every person (including a person arrested under section 14(1) of the P.T.A.) to have the advice and assistance of a solicitor during police interviews. If that submission is rejected, counsel invited the House now to recognise such a right, notably because, as counsel put it, the legislation of 1988 "transformed the landscape of a criminal trial." Counsel do not contend for an absolute right to have a solicitor present during interviews. At the request of the House counsel formulated the qualified right they contended for as follows: A person arrested under section 14(1) of the P.T.A. has the right to be accompanied by, and receive advice and assistance from, his solicitor during police interviews, unless the exercise of that right would lead to active disruption of the interview or investigation, or (arising from concerns about any individual solicitor) would give rise to a risk of improper communication, or a fear for the safety of any person, or would otherwise be improper. This is the particular legal right which, if counsel's submissions are correct, was...