England and Wales Court of Appeal (Civil Division) Decisions

Chief Constable of the Northumbria Constabulary ex parte Thompson, R v. [2001] EWCA Civ 321 (8th March, 2001)

Case No: C/2000/2736

Neutral Citation Number: [2001] EWCA CIV 321

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEENS BENCH DIVISION

CROWN OFFICE LIST (MR JUSTICE GIBBS)

Royal Courts of Justice

Strand,

London, WC2A 2LL

Thursday 8^th March 2001

LORD WOOLF CJ:

1. This is an appeal from the decision of Mr Justice Gibbs given on 20 July 2000. Gibbs J dismissed the application of Mr Thompson for judicial review of a decision dated 23 September 1999 taken by the Deputy Chief Constable of the Northumbria Constabulary on behalf of the Chief Constable. The decision was to ban Mr Thompson, who is appealing against his dismissal from the force, from attending as a probationary solicitor's representative, ("PSR") at any police station within in the area of the force. Permission to appeal was granted by Lord Justice Potter.

2. Although similar facts to those giving rise to this appeal are unlikely to occur often, the appeal does raise issues of general significance. The issues are: first the extent to which the police are entitled to object to a particular PSR giving advice to a person detained in a police station on the grounds that he is not a suitable person to act as an advisor. Second, whether the Chief Constable can make a blanket as opposed to a specific order excluding a PSR from attending police stations within the area for which he is responsible.

Facts

3. For the purpose of this judgment, the facts can be stated very shortly. Mr Thompson is a former officer of the Northumbria Constabulary. He served as a constable for approximately 18 years and for the last eight years of his service he was based at Pilgrim Street police station, Newcastle. On the 26 August 1999 he was dismissed from the force following allegations that he had made sexually discriminatory comments. The appellant has consistently denied the allegations and is pursuing an appeal to the Home Office against the finding and punishment. The appellant's wife, a former police officer, has made serious allegations of impropriety in connection with the conduct of the disciplinary case against her husband. These allegations have been investigated and this has resulted in a report being submitted to the Crown Prosecution Service. Pending the outcome of the investigation, the appellant's appeal has not been heard. Following his dismissal the appellant obtained employment with a firm of solicitors as a PSR. From 15 September 1999 he was included on the Legal Aid Board's Register of PSR's.

4. On the 20 September 1999 Mr Thompson, as a PSR, attended Pilgrim Street police station with his supervising solicitor to represent a client in custody. The appellant was refused access to interview the client and required to leave the police station. The decision that this should happen was taken by a police sergeant.

5. On the 23 September the Deputy Chief Constable, on behalf of the Chief Constable, decided at a meeting attended by the legal advisor of the force, that the appellant was not to be admitted to any police station in Northumbria to act as a PSR. The reason for the Deputy Chief Constable's decision was set out in writing in an attendance note dated 23 September 1999 prepared by the force's solicitor. The decision was in these terms:

"A decision was made by the Deputy Chief Constable that Mr Thompson would not be admitted to any police stations in the Northumbria Police area to act as a solicitor's representative. Mr Brown concluded that it would be inappropriate to do so and that he would review his decision once the Home Office had determined the appeal."

Reasons were then given for the decision:

"(i) Mr Thompson has an outstanding Home Office Appeal against finding and punishment.

(ii) If successful, Mr Thompson could be reinstated as a police officer. It was therefore inappropriate for him to be acting for suspects.

(iii) He was dismissed from the Force on a serious charge of misconduct. In giving his reasons for his decision, the Chief Constable had stated that he had found the allegations specified by the female officer to have been proved. This means that he preferred the evidence of the female officer to that of PC Thompson, which by implication means that PC Thompson was not telling the truth. There is serious question therefore as to the officer's honesty, and therefore whether he is a suitable character to provide legal advice.

(iv) If admitted to police stations he will have access to witnesses who gave evidence against him. There is a risk of prejudice to the appeal process by Mr Thompson having access to prosecution witnesses.

(v) Mr Thompson has indicated his personal feelings towards the Force. It is therefore felt that there is a real risk of an investigation being prejudiced as a result.

(vi) As a man dismissed from the Force for misconduct, there is unlikely to be any trust or respect between investigating officers and Mr Thompson in his capacity as a legal advisor, particularly in view of the proximity of the disciplinary hearing.

(vii) The risk of prejudice is the greater where police officers who gave evidence against him are the officers in charge of an investigation against the suspect.

(viii) The decision to exclude Mr Thompson from police stations in the Force areas is consistent and in the spirit with the Police and Criminal Evidence Act 1984, Code of Practice C, paragraph 6.12 and 6.13.

There were then set out the following "Other Observations":

"The question of a conflict of interest is for the solicitor and/or his representative. However, it is the first rule of professional practice that a solicitor must not act where there is a conflict of interest. There can be no bigger conflict of interest than when one's personal interest conflicts with one's professional responsibilities. It is believed that Mr Thompson's personal interest, bearing in mind his Appeal is outstanding, conflict with the independence required to give advice to a client in custody. There is a real risk that a suspect in custody will not get independent advice."

6. Gibbs J felt that it was entirely reasonable for the Deputy Chief Constable to conclude that is was inappropriate for Mr Thompson to act as a PSR. He stated that in his judgment, reasons (i), (ii), (v), (vi), (vii) and (viii) justified this conclusion and "taken together support the view that the investigation of crime would be hindered."

7. Gibbs J added that the distinguishing factor of this case is "the fundamental inability of a person in the applicant's position from fulfilling that independent role for the benefit of suspects to which they are entitled. The question, therefore, is whether the admission of the applicant can reasonably have been said to hinder the investigation of crime". Gibbs J also rejected the submission made on behalf of Mr Thompson that it was not lawful to make a blanket exclusion of a former police officer until his appeal was heard.

The Law

8. In considering the legal position of the Chief Constable, the starting point is s10 of the Police Act 1996 which provides that a police force "shall be under the direction and control of the Chief Constable". It is accepted on behalf of the police that this wide power has to be exercised in accordance with the Police and Criminal Evidence Act 1984 (PACE) and the Code of Practice issued by the Secretary of State under s66 and s67 of PACE.

9. Section 58 of PACE gives a person arrested and held in custody in a police station or other premises the right to consult a solicitor privately at any time subject to certain specified limitations. The right to legal advice is amplified by Code C of the Code of Practice. It is relevant to refer to the following provisions of the Code:

C:3.1 which sets out the information which must be given to a person brought to a police station under arrest or who is arrested at the police station. He must be told clearly by the custody officer that he has:

"(ii) the right to consult privately with a solicitor and the fact that independent legal advice is available free of charge" (emphasis added)

The position as to legal advice is amplified in C6. C6 points out that it is only in limited circumstances that access to advice can be delayed (C:6.5) and if a person wants legal advice, he cannot be interviewed or continued to be interviewed until he has received that advice except in restricted circumstances (C:6.6). Furthermore after an interview begins or while it is in progress the solicitor must be allowed to be present (C:6.8). A solicitor may only be required to leave the interview if his conduct is such that the investigating officer is unable properly to put questions to the suspect (C:6.9). The powers of the investigating officer are therefore precisely constrained.

C:6.11 provides:

"The removal of a solicitor from an interview is a serious step and if it occurs the officer of superintendent rank or above who took the decision will consider whether the incident should be reported to the Law Society. If the decision to remove the solicitor has been taken by an officer below the rank of a superintendent, the fact must be reported to an officer of superintendent rank or above who will similarly consider whether a report to the Law Society would be appropriate. Where the solicitor concerned is a duty solicitor, the report should be both to the Law Society and to the Legal Aid Board."

C 6.12 contains a broad definition of "solicitor" for the purposes of the Code of Practice and sets out the status of a PSR:

"Solicitor means a solicitor who holds a current practising certificate, a trainee solicitor, a duty solicitor representative or an accredited representative included on the register of representatives maintained by the Legal Aid Board. If a solicitor wishes to send a non-accredited or probationary representative to provide advice on his behalf, then that person shall be admitted to the police station for this purpose unless an officer of the rank of a superintendent or above considers that such a visit will hinder the investigation of crime and directs otherwise. (Hindering the investigation of a crime does not include giving proper legal advice to a detained person in accordance with note 6D.) Once admitted to the police station, the provisions of paragraphs 6.6 to 6.10 apply."

10. As I have pointed out Mr Thompson, the appellant, is a "non-accredited or probationary representative" referred to in paragraph C: 6.12. Although he attends the police station as a representative of a solicitor, he does not fall within the wide definition of a "solicitor" in the Code.

11. There are other provisions of the Code to which it is necessary to refer, but before I do so, it is convenient at this stage to turn to the one relevant authority, namely R v The Chief Constable of Avon and Somerset, ex parte Robinson [1989] 1WLR793. In this Divisional Court case Watkins and Mann LJJ and Auld J had to consider the legality of general instructions which a Deputy Chief Constable had given to his force as to clerks whose character, antecedents and behaviour were such as to make their presence at an interview of a person in custody undesirable. A challenge to the validity of the instructions was unsuccessful. This was because the Court was of the opinion that the instructions were advisory and left it to the officer in charge to decide whether to allow a particular clerk to be present. The Court decided that there was no reason why senior police officers should not advise their subordinates as to what action they should consider taking as to the activities of clerks as long as the instructions were advisory and did not pre-empt the actual decision of the appropriate officer based on a particular investigation of a crime. The instructions were accordingly intra vires PACE and the Code.

12. In the course of given the judgment of the court, Lord Justice Mann said (at p.795):

"It is apparent that there is only one ground on which the clerk or legal executive can be excluded from the police station and that is that his visit would hinder the investigation of crime. That, of course, is a matter for the subjective judgment of the officer being an officer of the rank of inspector or above. However, although there is but one express reason justifying exclusion there is a prefatory question which must be asked, that is to say is the person who seeks admission `a clerk or legal executive'? There should be no difficulty in identifying a legal executive, but who is a `clerk'? The expression `clerk to a solicitor' occurs in the Solicitors Act 1974(see for example s 43) but nowhere in either statute or case law is the expression `clerk' defined. Leaving aside for the moment the question whether the inspector may not be entitled to exclude an obviously incompetent person on the basis that he is likely to `hinder', it seems to us that there are certain matters which are necessarily implicit in the words of para 6.9. The first of those implicit matters is that the clerk must be sent by the solicitor to provide `advice on his behalf `, and if the police know or believe that the person is not capable of providing advice on behalf of the solicitor, whether because of his appearance, his age, his mental capacity or because of the police knowledge of him, they are entitled to refuse to allow him to enter the police station. The second implicit matter, which is perhaps the same point differently expressed, is that the person must be a `clerk' genuinely so-called and not someone recruited, so to speak, off the streets masquerading as a clerk. In this case also, if the police know or believe that the person is merely a colourable pretence of a clerk, they are entitled to exclude him from the station. We return to the hindering point. There may be circumstances where the police know that the person has a record of convictions, they may know that he is criminally orientated if unsullied by detection. In those circumstances, likewise, they will be entitled to conclude that to admit such a person to the station to tender advice would hinder the investigation of crime. If a person is ostensibly capable of giving advice then we do not think that the police could refuse admission on the basis that the quality of the advice would be poor. We see no objection to the police forming a view on capacity but we think it would be unfortunate if the police were also to form a view on quality. That being said, we are anxious about quality".

13. Mr Gavin Millar QC drew attention to the importance that Lord Justice Mann, in this passage of his judgment, attached to the fact that the only basis upon which the clerk or legal executive could be excluded was that "his visit would hinder the investigation of crime". He also drew attention to the matters which Lord Justice Mann regarded as implicit in what was then paragraph 6.9 of the Code (now 6.12 of the Code). In addition Mr Millar referred to the final sentence of the passage which has been quoted and submitted that it made it clear that the question of the quality of advice which was given was not an issue about which the police should be directly concerned.

14. Mr Millar also submitted that it was this part of Lord Justice Mann's judgment which caused the Code to be amended by the insertion of what is now C6.13. This could well be the case since 6.13 reads:

"In exercising his discretion under paragraph 6.12, the officer should take into account in particular whether the identify and status of the non-accredited or probationary representative have been satisfactorily established; whether he is of suitable character to provide legal advice (a person with a criminal record is unlikely to be suitable unless the conviction was for a minor offence and is not of recent date); and any other matters in any written letter of authorisation provided by the solicitor on whose behalf a clerk or legal executive is attending the police station".

There are notes to Code C. For example, in relation to C6.9, which deals with the police's ability to require a solicitor to leave an interview if as result of the solicitor's conduct the investigating officer is unable to put properly questions to the suspect, one of the notes reads:

"Paragraph 6.9 will only apply if the solicitor's approach or conduct prevents or unreasonably obstructs proper questions being put to the suspect or his response being recorded."

Again in relation to C:6.13, the note (C:6F) reads:

"If an officer of at least the rank of Inspector considers that a particular solicitor or firm of solicitors is persistently sending non-accredited or probationary representatives who are unsuited to provide legal advice, he should inform an officer of at least the rank of Superintendent who may wish to take the matter up with the Law Society".

15. This last note is particularly relevant because it relates to the quality of the advice which a person in custody receives. The police's response if a solicitor persistently behaves improperly should be indirect. The police should involve the Law Society. Looking at the provisions of the Code as it has been amended subsequent to the judgment of Mann LJ, it is striking the extent to which the amendments have made explicit what was previously implicit.

16. There is another passage on Mann LJ's judgment to which I should refer. It is in these terms:

"We regard the general and particular instructions as paying scrupulous regard to the 1984 Act and to Code C. As is recognised in the instructions it is a matter for the individual police officer to decide in regard to admission but we see no reason why senior officers should not advise their subordinates of the activities or proclivities of clerks. That advice must not and cannot derogate from the individual responsibilities of the officer concerned with the investigation. He must make his own decision within the area with which he is empowered to do so and which we have endeavoured to describe earlier in this judgment.

There was in this case no complaint by any suspect. There was in this case no direction how a discretion in regard to presence at interview should be exercised. It is quite plain on the evidence that police officers concerned with interviews have been exercising an individual discretion in each case which comes before them because there has been no blanket ban on the clerks in question. The same or different officers have made the same or different decisions on different occasions, having regard, no doubt, to the information about the clerk in question to hand and the nature and circumstances of the investigation. We would accordingly and do dismiss this application."

17. In this passage of his judgment, Lord Justice Mann makes it abundantly clear that it was the view of that Court that although senior officers can give advice, the Code gives the responsibility to the officer concerned with the individual investigation. Unless Mann LJ was in error in his approach, it follows that the whole focus of the Code is on a particular investigation of a crime rather than the hindering of the investigation of crime generally. Furthermore, the second citation from Mann LJ's judgment makes it clear that that Court was firmly of the view that a blanket ban was inappropriate, but that advice of a general nature, which preserved the discretion of the officer in charge of an investigation, was in order.

18. This examination of the changes to the Code, introduced after Lord Justice Mann's judgment, suggests that the Home Secretary accepted that the judgment was correct and by amending the Code was seeking to give effect to it. As amended the Code recognises that it will be an unusual and significant step for the police to interfere in the relationship between a person in custody and his legal advisor. How a legal advisor chooses to provide advice is primarily for him to determine. It is only where there is significant interference with an investigation that the police should intervene. Generally, it is for the solicitor to deal with any faults on the part of his representative. If he does not take the necessary action then it is primarily for the profession to ensure that proper standards are maintained.

19. In general, I would accept Mr Millar's submission as to the respective duties which are in play here. It is the duty of the police to ensure access to independent legal advice. It is the solicitor's duty to ensure that independent advice is provided. The interest of the police is however catered for by the police being able to make a complaint to the Law Society.

20. The advice is provided free and this meant that the Legal Aid Board used to be involved before its demise. The Legal Advice and Assistance Regulations 1989 made provision for advice and assistance at police stations. This was provided regardless of the resources of the person held in custody. The arrangements made were contained in the Legal Advice and Assistance at Police Stations Register Arrangements 1995. Paragraph 1 of the Arrangements identifies an accredited representative as a representative whose name is included on the police station register as having passed the relevant test. It also refers to the requirement of a "certificate of fitness", that is a certificate given by the supervising solicitor that the representative "is of suitable character to provide legal advice at police stations . . . and that the applicants should be so regarded by the police in accordance with paragraph 6.13 of the Code of Practice". The Certificate of Fitness is a form signed by the supervising solicitor (paragraph 3.1). No one could be registered as a probationary or accredited representative without submitting a properly completed application incorporating a Certificate of Fitness (paragraph 3.2). The Board was given powers to suspend and remove probationary representatives (paragraph 4.1).

21. The arrangements, if the Board received a complaint as to the suitability of the character of a representative, were that the Board should respond by requesting the representative to obtain from the supervising solicitor a Certificate of Fitness. If, notwithstanding the receipt of that Certificate of Fitness, the Board was not satisfied as to the fitness of the representative the Board was able to refer the matter to the Solicitors Complaint Bureau (Paragraph 6). So again the remedy was to be by a complaint to the professional body.

Conclusion

22. Although I was initially of the view that the approach of the judge had much to commend it, having examined the regulatory framework under which advice is given by a PSR more closely, I am satisfied that his decision cannot be supported. It is inconsistent with the judgment of Lord Justice Mann in ex parte Robinson. Mr Milford QC on behalf of the Chief Constable was not able to explain convincingly how the decision of the Deputy Chief Constable in this case could be supported if Lord Justice Mann's reasoning was correct. He therefore submitted that Mann LJ's decision was wrong insofar as it conflicted with the Gibbs J's decision. In fact, in my judgment far from Mann LJ being wrong, he was clearly right. There is very good reason for the decision as to whether the investigation of crime has been hindered by a PSR being taken in relation to a specific case rather than on a blanket basis. The officer involved in a specific case will know whether in fact there was any risk of interference. If, for example, no further investigation was required in a specific case then there, could be no question of interference with the investigation. The question of interference or no interference can only be determined properly by examining the issue in the factual context of a particular investigation of crime.

23. Mr Milford and the judge attached great importance to the advice having to be independent. I agree that this is important. However, the responsibility for providing independent advice, as already indicated, is that of the solicitor and not the police. The responsibility of the police is to provide access to that advice. Gibbs J was correct to say that the right to independent legal advice exists for the benefit of suspects, not for solicitors and their representatives. The framework within which the advice is given makes it clear that while this is so, the quality of the legal advice is not the concern of the police. It is for the person in custody to decide the solicitor from whom he is to obtain advice and it is for the solicitor, subject to the requirements of PACE, to decide whether he will give the advice personally and if not who should do so on his behalf. Mr Milford urged and the judge accepted that someone who was seeking to be reinstated as a police officer could not be properly regarded as independent of the police. This makes obvious good sense. However it was not the police's responsibility to form a judgment as to whether Mr Thompson was sufficiently independent. This was Mr Thompson's employer's responsibility. Mr Milford made the point that if the advice was not independent, at the trial a defendant could seek to rely on this. I appreciate this could happen but the Code limits the ability of the police to intervene to situations where the investigation is being hindered. The interference relied on by Mr Milford would not be with the investigation of crime but the prosecution of crime. Furthermore the fact that a defendant may make a complaint of this sort underlines the importance of the police having no responsibility for the quality of the advice.

24. I also recognise that particularly at the police station at which he had been serving, for Mr Thompson to return as a solicitor's representative could be uncomfortable for his fellow officers as well as himself. He could also come into contact with potential witnesses in relation to his appeal. However, unless interference with the investigation of a crime is likely, this does not entitle the police to object to his attendance as long as the PSR is otherwise properly qualified and behaves appropriately when he does attend.

25. The framework within which the Duty Solicitor Scheme operates does not entitle a Deputy Chief Constable to make a blanket direction such as was made here. Advice can be given as the Divisional Court held in ex parte Robinson. When giving advice the character of the representative can be taken into account. The character of the representative will not vary from day to day and if, because of his character, a representative is likely to hinder an investigation, then advice can be given as to this. The appropriate officer can then reach a decision in the light of the advice as to whether the attendance of a representative is likely to interfere with a particular investigation. The advice can provide guidance as to what the decision should be but the decision must still be in relation to the individual case. However, although this is the legal position, I recognise that where advice is given because of the character of a PSR within the terms of 6.13, in practice there is likely to be little difference between advice and a blanket ban. Any officer is likely to consider the PSR would hinder an investigation.

26. As to this appeal, however, my decision is that the appeal must be allowed and the direction of the Deputy Chief Constable quashed.

27. Mr Thompson is making a claim for damages. For my part, I find it difficult to see any basis for this claim but I am prepared to hear argument as to what is to be done about this claim.

LORD JUSTICE MAY

I agree.

LORD JUSTICE JONATHAN PARKER

I also agree.