In the matter of an application for Judicial Review by C, A, W, M and McE
| Jurisdiction | Northern Ireland |
| Judge | Kerr LCJ |
| Judgment Date | 2007 |
| Neutral Citation | [2007] NIQB 101 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 30 November 2007 |
1
Neutral Citation no. [2007] NIQB 101 Ref:
KERF5997
Judgment: approved by the Court for handing down Delivered:
30/11/07
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
__________
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW BY C,
A, W, M and McE
__________
Before Kerr LCJ, Campbell LJ and Girvan LJ
__________
KERR LCJ
Introduction
[1] C and A were arrested under section 41 of the Terrorism Act 2000 on 19
April, 2006. W was arrested under article 26 of the Police and Criminal
Evidence (Northern Ireland) Order 1989 on 16 May 2006. All three were taken
after their arrest to the Serious Crime Suite at Antrim Police Station where
each of them nominated a solicitor that they wished to represent them. In
each case the nominated solicitor asserted their client’s right to a private
consultation with his/her legal adviser and asked for an assurance from
police that those consultations would not be monitored. They asked for that
assurance because there had been media reporting a short time before about
the arrest of a solicitor who was subsequently charged with serious offences.
The reports suggested that the arrest had been the result of covert surveillance
of legal consultations that the solicitor had had with clients in custody. Police
refused to provide the assurances that the solicitors for C, A and W had
sought. They said that it was their practice “not to comment” on such issues.
[2] M was arrested under section 41 of the Terrorism Act 2000 on 30 May, 2006
at Ballymena Police Station. He was then taken to Antrim Police Station. His
father and his solicitor were concerned about his medical condition and they
communicated their concerns to the police. As a result, arrangements were
made for M to be medically examined to determine whether he was fit for
interview. Dr Graeme McDonald, a consultant psychiatrist, was contacted by
M’s solicitor and he agreed to examine M. He wanted to be sure that the
consultation with M would be confidential, however, and he asked the
solicitors to seek an assurance that there would be no covert surveillance. The
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police would not give that assurance. Dr McDonald was not prepared to
proceed with the consultation and it did not take place. M was examined
twice by a medical officer retained on behalf of the police. On both occasions
he was found to be fit for interview.
[3] McE, while in custody on remand, made a complaint (with two other
prisoners) to the Prisoner Ombudsman about their suspicion that their legal
visits at HMP Maghaberry were the subject of surveillance. In response the
Ombudsman indicated that legal consultations were not exempt from such
surveillance. In an affidavit filed on behalf of the Prison Service, Mr Max
Murray, a deputy director of the Service, stated: -
“The ability to employ covert surveillance
generally, and in particular in the context of legal
consultations of those detained in prisons in
Northern Ireland, is a very important tool
available to the Northern Ireland Prison Service in
achieving the aims as set out in … [preventing
crime, etc.] and in particular by way of example in
gathering information in relation to plans contrary
to the good order and discipline of prison
establishments and regarding the smuggling of
contraband or unauthorised articles in and out of
prison establishments.”
[4] In each of these applications the applicants are, broadly speaking, seeking
declaratory relief to the effect that they are entitled to the guarantee of
freedom from covert surveillance. They assert that failure to provide the
assurances that have been sought is incompatible with articles 6 and 8 of the
European Convention on Human Rights and Fundamental Freedoms and is,
on that account, a breach of section 6 of the Human Rights Act 1998. They
also claim that the refusal of the police or the Prison Service to confirm that
the consultations will not be monitored is a breach of their common law rights
and contrary to certain provisions under PACE, the Terrorism Act 2000, and
the Prison and Young Offenders Centre Rules (Northern Ireland) 1995.
Orders of mandamus are also sought to compel the relevant authorities to
give the requested assurances and to make available facilities which would
ensure the privacy of solicitor/client and doctor/patient consultations.
The right of access to legal advice – the statutory context
[5] Paragraph 7 of Schedule 8 to the Terrorism Act 2000 provides that a person
detained under Schedule 7 or section 41 of the Act is entitled to consult
privately with a solicitor as soon as is reasonably practicable. That right is
subject only to paragraphs 8 and 9 of Schedule 7, which allow for deferral of
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access and supervised access to a solicitor in certain circumstances. Neither of
those exceptions applied to C or A.
[6] Article 59 of the Police and Criminal Evidence (Northern Ireland) Order
1989 contains a similar right of access to a solicitor, with, again, the only
exception being for deferral of access in certain circumstances. That exception
did not apply to W.
[7] Rule 71 of the Prison and Young Offenders Centre Rules (Northern
Ireland) 1995 provides: -.
“(1) Reasonable facilities shall be allowed for the
legal adviser of a prisoner who is party to legal
proceedings, civil or criminal, to interview the
prisoner in connection with those proceedings in
the sight but not in the hearing of an officer.
(2) A prisoner’s legal adviser may, with the
Secretary of State’s permission, interview the
prisoner in connection with any other legal
business in the sight but not in the hearing of an
officer.”
The right of access to legal advice – the common law context
[8] Before the enactment of the PACE provisions in England and Wales (in
1984) and Northern Ireland (in 1989), the right to consult a solicitor privately
existed at common law. That right was described by Lord Bingham of
Cornhill and Lord Steyn in the following passage from their joint opinion in
Cullen v Chief Constable of the Royal Ulster Constabulary [2003] 1 WLR 1763, at
1770/1: -
“It is now necessary to explain the law about a
detained person's access to legal advice as it stood
before the 1984 Act 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:
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