McNamee and McDonnell Solicitors’ Application
| Jurisdiction | Northern Ireland |
| Judge | Treacy J |
| Judgment Date | 08 November 2011 |
| Neutral Citation | [2011] NIQB 104 |
| Date | 08 November 2011 |
| Court | Queen's Bench Division (Northern Ireland) |
| Year | 2011 |
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Neutral Citation No. [2011] NIQB 104 Ref:
TRE8367
Judgment: approved by the Court for handing down Delivered:
8/11/2011
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
_________
QUEEN’S BENCH DIVISION
_______
McNamee and McDonnell Solicitors’ Application [2011] NIQB 104
IN THE MATTER OF AN APPLICATION BY MCNAMEE AND
MCDONNELL SOLICITORS FOR JUDICIAL REVIEW
________
TREACY J
Introduction
1. This is an application for judicial review by a firm of solicitors of a
decision made by the Police Service of Northern Ireland (the “PSNI”)
on 27 October 2009 at Antrim Serious Crime Suite. On that date, a
suspect was refused access to legal advice from a number of solicitors
including the applicant firm on the basis that the police deemed them
to be unsuitable. Leave to apply for judicial review was partially
granted and partially refused by McCloskey J on 9 November 2009
([2010] NIQB 29). Following an appeal against the partial refusal of
leave, three further grounds were reinstated by the Court of Appeal on
25 May 2010.
2. By this application, the applicant, a firm of solicitors, seeks, inter alia,
an order quashing the decision of the PSNI on 27 October 2009 that an
arrested person could not be afforded access to a solicitor of the
applicant firm and an order restraining the PSNI from making any
similar decision and/or advising clients (or prospective clients) of the
applicant firm that it, or its principals, are “unsuitable” to provide legal
advice and assistance to arrested persons.
3. The grounds upon which relief is sought are set out in the amended
Order 53 Statement as follows:
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(i) The PSNI’s decision was taken in a
procedurally unfair manner as it did not provide
the applicant firm with an opportunity to make
representations at the time of the proposed
decision; [Ground 3(b)]
(ii) The PSNI’s decision was in breach of the
applicant’s Convention rights: (i) Article 8 1
European Convention on Human Rights (“ECHR”)
and/or Article 12 of the first Protocol – interference
with such rights was not for a legitimate purpose,
was not in accordance with the law and/or was not
proportionate; and (ii) Article 14 3 of the ECHR – the
applicant was treated differently from another firm
of solicitors without legitimate justification;
[Ground 3(c)]
(iii) The PSNI acted unlawfully contrary to Article
59 of the Police and Criminal Evidence (Northern
Ireland) Order 1989 (“PACE”) under which an
arrested person had rights to consultation with a
solicitor of his/her choice both on the face of this
provision and /or as interpreted in light of Article
6(3)(c)4 of the ECHR, pursuant to section 2 of the
Human Rights Act 1998); [Ground 3(d)]
(iv) The PSNI took the following irrelevant
considerations into account:
1 “1. Everyone has the right to respect for his private a nd family life, his home and his
correspondence.
2. There shall be no interference by a public authority with the exercise of this right except
such as is in accordance with the law and is nec essary in a democratic s ociety in the interests
of national security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for the protection of
the rights and freedoms of others”.
2 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No
one shall be deprived of his possessions except in the public interest and subject to the
conditions provided for by law and by the genera l principles of international law…”.
3 “The enjoyment of the rights a nd freedoms set forth in t his Convention shall be secured
without discrimination on any ground such a s sex, race, colour, language, religio n, political or
other opinion, national or s ocial origin, association wi th a national minority, prop erty, birth or
other status”.
4 “Everyone charged with a criminal offence has th e following minimum rights: …(c) to
defend himself in person or through legal assistance of his o wn choosing…”.
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