England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
(Lord Justice Laws and Mr Justice Poole)

		Royal Courts of Justice Strand London WC2 Tuesday 27th November, 2001

1. LORD JUSTICE BUXTON: These are applications for permission to appeal from a judgment of the Divisional Court (Laws LJ and Poole J) delivered on 13th July 2001. The applications for permission were rejected on paper by Lord Justice Longmore. We have had the benefit today of being further addressed on them by Mr Blake QC, leading Mr Husain who appeared below, and have also had the benefit of receiving and carefully studying not only extensive grounds of appeal settled by Mr Blake, but also a detailed and helpful skeleton argument.

2. I do not intend to say anything about the basic facts of this case because they are set out in considerable detail in the judgment of Poole J, to which further reference can be made if anyone thinks that further illumination of this judgment is required. It is, however, necessary to say something about the history of this matter because it has caused a good deal of difficulty. There are, of course, two cases with which the court is concerned: the case of the young boy, M (and he must be referred to by that letter and by nothing else), and the further case of Mr La Rose. Mr La Rose's case raises different issues from those of M, and I will come to it at the end of this judgment.
3. In the case of M a complaint was made about refusal of bail, a complaint that has now been abandoned. The relief that was originally sought in connection with the making available of a proper room for consultation was a declaration that the failure of the defendant to provide such a room was a breach of Article 6(3)(b) of the European Convention on Human Rights.
4. Shortly before the hearing in the court below, an application was made to add an additional ground of challenge (which application the court below permitted) which read as follows:

"The practice of the Defendant as demonstrated by his conduct on 9.10.00 and 12.10.00 and by the evidence filed in this case was unlawful in that:

(1) it amounted to a failure to follow his own policy, or alternatively,

(2) it amounted to an unlawful disappointment of a legitimate expectation arising out of such policy."

5. The Divisional Court addressed in considerable detail the complaint rising under Article 6 of the European Convention and rejected it. There is no appeal against that refusal of the relief that was, until two days before that hearing, the principal relief sought. Mr Blake made it clear before this court this morning that, save by way of very general background, he does not rely upon any aspect of the European Convention. He concentrates now upon the further and additional ground of challenge that was entered by amendment before the Divisional Court.
6. The policy that was referred to in that ground of appeal, and which was understood by the Divisional Court to be that to which reference was made, was incorporated in a "Branch Note" in the Metropolitan Police Service, dated 7th October 1999 and formulated by an Inspector Roberts. That was headed "Facilities for solicitors" and dealt at some length with the facilities that it was desirable to provide for interviews between solicitors and their clients held in custody, bearing in mind, amongst other matters, section 58 of the Police and Criminal Evidence Act and Article 6 of the Human Rights Act. In addition, the guidance note had in mind the requirements for a police station to be a "designated" station for detention in the terms of section 35 of the Police and Criminal Evidence Act.
7. Having set out what was the desirable optimum architectural and physical condition, the note then continues with a section described as "Matters arising". Having indicated that desirably a designated room must be provided, the note continues at paragraph 12:

"If a designated room does not exist or is not available, a suitable alternative must be considered. It is impossible to envisage that a taped interview room could never be safely used for any private consultation without damage being caused to the equipment, particularly if some relatively straightforward modifications are made, such as a viewing panel, a cover for the tape recorder and the installation of an alarm. Furthermore, suspects should never be left alone unsupervised (either by the solicitor or police).

13. Use of police cells must be a last resort. Their relative isolation and degree of access may put the legal representative at risk and in any event it would be asking them to work in less than suitable conditions. Cell conditions generally are not conducive to a proper consultation, privacy cannot easily be demonstrated or guaranteed. Either party may feel intimidated or threatened particularly if they of the opposite sex and allegations of impropriety would reflect badly on the Metropolitan Police Service."

8. The nub of the complaint before the court below was that that policy had not been followed and it was the legitimate expectation of solicitors, if not of their clients, that such policy would be followed and that they would not, as in this case, except in exceptional circumstances, be denied the use of the police interview room, and rather be required to interview their clients in cells.
9. The Divisional Court in the judgment of Poole J directed itself to this argument on page 40 of our bundle, and found effectively that this document was not a "policy" document. Poole J said this:

"Inspector Roberts' document was a Branch Note, a Briefing Note, aspirational, hortatory in character, and entirely lacking in the authoritative provenance which would justify its description as a Policy Document. Mr Husain, perhaps recognising this, submitted that it did not matter what we called it: was it intended to be acted upon? Well, no doubt Inspector Roberts and his colleagues hoped it would be. But we saw no evidence of any obligation that Superintendent James and his colleagues, whether at Tottenham or Hornsey, might be under to adopt it. But, in any event, submitted Mr Beggs, the Defendant did not breach it. It was a statement of best practice, and one to be applied to the existing realities at police stations, architectural, operational or otherwise."

10. The court said that it agreed with that argument.
11. It is important to note that because of the late nature of the amendment the evidence filed before the Divisional Court did not directly address itself to the complaint now made. Before us Mr Blake says that he seeks not any relief specifically in respect of Mr M, because it is now accepted that nothing that happened to Mr M himself affected the outcome of his trial or rendered his trial process in the event unfair. What he says he requires is a declaration that the request that was made to the custody officers at Tottenham police station, that use should be made not of the cells but of the interview room for the purpose of interviewing M, was not lawfully considered; and it was not lawfully considered, says Mr Blake, because it is plain from the evidence that the officer concerned who made the decision either did not take into account the document that we have just referred to, or alternatively took a view positively contrary to it.
12. All that is, of course, subject to whether this document was a document of the status that the operational officers were required to take into account or, even, to follow. I accept Mr Blake's argument that it is not enough in that context simply to say that the document did not impose any binding obligation on the officers at Tottenham or Hornsey, and to that extent I would respectfully differ from the way in which the matter was put by Poole J. But that of course is not the end of the story. The question is whether the evidence reasonably demonstrates that there was an irrational or unprincipled decision taken by the officers in this case.
13. The evidence (which, as I have said, suffers from the difficulty that it was not filed specific to meet this complaint about policy) is as follows. The passage that Mr Blake relies on is by Police Sergeant Wilcox, who is the custody officer who in fact dealt with the request for police cells. He says in paragraph 3 of his witness statement, page 153 of our bundle:

"At 12.35, I made the following entry [I interpose that is in the custody record] `Solicitor informed by me that the interview room is not suitable for the purpose of a consultation. A review of health and safety conducted which indicated that interview rooms are the least safest place to conduct an interview. Also tape machines have been damaged and interviews lost. Chief Supt JAMES has indicated each case should be looked at on its merits. The safety of all parties concerned are of paramount importance. Use of the interview room declined.'"

14. Chief Superintendent James, the officer responsible for this branch of the Metropolitan Police and for what goes on at the station in question, also gave evidence. He was particularly concerned with the complaint about bail. But he says, first of all at paragraph 6 of his statement, at page 144 of our bundle:

"The police building stock on the Borough, particularly the custody suite at Tottenham, is largely Victorian. I caused an instruction to be issued to custody officers regarding the need to conduct a health and safety assessment before deciding where a solicitor and client consultation should take place. This instruction takes into account the need to balance the rights of a detained person with the needs of my own officers and standards of professionalism.

7. In my opinion it is undesirable to permit the use of soundproofed operational areas of a custody suite,, namely rooms which are specifically set aside for the conduct of tape recording of interviews as required by PACE, for solicitor and client consultations. The rooms are in use for much of the time for the purpose for which they were and are intended. Allowing the use of these interviews rooms, of which there are only 2 at Tottenham, may result in interviews being conducted and thus cause suspects to be detained for longer than is reasonably necessary."

15. There was also some evidence from a Police Sergeant Saunders, who apparently was the officer in charge of the custody suite at the time when Mr M was presented to the station. He was principally giving evidence about the decision he had taken to refuse bail, but he also said something about the complaint about the custody suite. At paragraph 8, at page 165, he said:

"I do not believe in keeping people in custody for longer than it is reasonably necessary and I am well aware that it is wrong in law to do so. As a practical matter, we have only 7 cells and 2 detention rooms available at Tottenham police station which is a very busy police station. We do not therefore have the space to keep many people in custody.

9. There are no rooms set aside at either Tottenham or Hornsey police stations specifically for the use of solicitors and their clients, for consultation purposes. Solicitors do sometimes ask if they can use the rooms set aside by us for tape recorded interviews, as required by the Police and Criminal Evidence Act 1984. Usually, permission is denied. The reasons for this are that the rooms are sound-proof and do not have panic alarms installed. The rooms have no window through which the conduct of the prisoner can be monitored. Both tape rooms are nearly always busy being used for the purpose for which they are designed i.e. conducting taped interviews.

10. In addition to people arrested and brought to the station, we have many people each day returning to the station on bail for interview. We cannot unreasonably delay interviews simply in order to allow the interview rooms to be used for consultation. It is to be remembered that we are under time restraints imposed by PACE for prisoners, and thus the 2 interview rooms must be kept clear for interviews."

16. It should be noted that it is now accepted that the officer was mistaken in saying the rooms have no panic alarms. The rest of his observations however stand.
17. I have gone into that evidence in some detail, even though bearing in mind that it was not principally filed to meet the complaint that now is made, and also bearing in mind that not much seems to have been made of it before the Divisional Court. The reason I do so is in deference to Mr Blake's argument that it demonstrates at least an arguable case (and I accept that is all he has to establish at the moment) that the request on this occasion - and indeed it is alleged in statements by solicitors on other occasions where this matter has arisen at Tottenham - that a request to use the PACE interview room for solicitor client interviews has not been properly and rationally considered, and no adequate attention has been given to the guidance note to which earlier reference had been made.
18. I do not accept that argument. Indeed, I do not think that it is even, on the facts before us, arguable. First, subject always to the specific observation that I respectfully ventured to make, I agree with and accept - and indeed, in my judgement, am in no position to differ from - the assessment made by the court below of the status of the guidance note. Granted, however, even that it is a matter that should be taken into account, it seems to me that the difficulties that that note trenches upon, of the relationship between interview facilities and the desirability of proper circumstances for a solicitor client interview, have been fully considered by the officers who are responsible for dealing with matters at the Tottenham and Hornsey police stations, as, in my judgement, is plain from the evidence of Chief Superintendent James that I have read out. He sees himself constrained by operational considerations, bearing in mind always the desirability of client solicitor relationships. The same is true of the evidence of Sergeant Saunders; and the evidence of Sergeant Wilcox, referring to health and safety considerations, clearly reads back to the instructions that he was given by Chief Superintendent James. None of this can be overridden by reference to the guidance note.
19. I therefore do not accept that there is any indication in this case that an unlawful policy was in fact adopted at this station.
20. Quite apart from that, however, and even if I did not take that view, I would be most reluctant for this case to go forward in its present state. I have already indicated that the nature of the case really altered entirely two days before the Divisional Court gave judgment. In the applications to this court, the only relief that was effectively asked for was relief simply in terms as set out in section 9 on the grounds of appeal:

"Declaration that the defendant acted unlawfully."

21. That plainly is not a declaration that the court could make.
22. Mr Blake, on being asked this morning to elucidate the matter, said that the declaration he would seek from the Court of Appeal, though nowhere set out, was a declaration that the request to consider the interview room was not legally considered. That was effectively the relief claimed below, though here claimed in respect of the particular decision and not in respect of the general policy. In my judgement, for the reasons that I have indicated, there is no good ground for going behind the decision that the court below rendered upon it. If there is actual complaint about the policy that is adopted either by the Metropolitan Police in general or by the officers responsible for running these two police stations, it will, I fear, have to be identified and specified much more clearly than it is in this case, in judicial review proceedings that concentrate upon complaints about the policy, rather than upon the experience of a particular person. From what I have seen so far, however, there is no grounds for thinking that that further departure might be fruitful.
23. I therefore would not grant permission to appeal in the case of Mr M.
24. The case of Mr La Rose is in a different category. The complaint in his case is of a failure to provide facilities for a private telephone conversation. As the Divisional Court pointed out, the complaint in his particular case was misconceived, and indeed, in my judgement, quite unreasonable, because the facility that he was provided with and the opportunity for conversation at all arose at his request; his request being that he should communicate with his solicitor earlier than otherwise he would have done, not for any reason that was pressing in law, but rather to enable him and his family the more conveniently arrange their affairs. That is not a basis, in my judgement, upon which the original complaint could be made.
25. The suggestion now is that the relief that should be granted in his case is not specific to him, but rather a more general declaration that there should be different facilities or arrangements at the police station in question for private telephone calls. I, for my part, would not be prepared, and am not prepared, to permit that claim to be pursued on the basis of the facts of Mr La Rose's case.
26. Again, if it is thought that there is a failure in terms of general policy in that respect in relation to the Metropolitan Police or any part of it, that is a matter that would have to be pursued in other proceedings. I do not think it should go forward against the background of these proceedings.
27. I have gone into this matter in some detail because I understand the concern in this case and the reasons that have led to Mr Blake helpfully being instructed in the matter. But I fear that I see nothing in this case that could properly be considered by the Court of Appeal. I would not grant permission.
28. LORD JUSTICE LONGMORE: I agree.
ORDER: Application for permission to appeal refused; detailed assessment of the applicant's community legal funding certificate. (Order not part of approved judgment) ____________________