Court of Appeal in Northern Ireland Decisions

Neutral Citation No. [2012] NICA 22	Ref:	COG8513
Judgment: approved by the Court for handing down	Delivered:	14/06/12
(subject to editorial corrections)*


 


IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND ________ QUEEN'S BENCH DIVISION (JUDICIAL REVIEW) ________ DIVISIONAL COURT ________ IN THE MATTER OF AN APPLICATION BY DARYL McRANDAL FOR LEAVE TO APPLY FOR JUDICIAL REVIEW McRandal's (Daryl) Application (Leave Stage) [2012] NICA 22 ________ Before: Higgins LJ, Girvan LJ and Coghlin LJ ______

COGHLIN LJ (delivering the judgment of the court)

[1] This is an application by Daryl McRandal, the applicant, for leave to apply for an order of certiorari quashing the decision of the Chief Constable implementing an alleged policy permitting police officers to impose, as a condition of police bail, a condition that an applicant for bail should consent to allowing police to enter and search his premises without warrant, where such officers have a reasonable suspicion that unlawful drugs are present on the premises. The applicant was represented by Ms Karen Quinlivan QC and Mr Hutton while Dr McGleenan QC appeared on behalf of the Police Service for Northern Ireland. The court is grateful to counsel for their careful preparation and well-structured oral and written submissions.

Background facts

[2] On 9 November 2010 the applicant was arrested by the police on suspicion of possession of Class B drugs. He was taken to Coleraine PSNI station where he was interviewed and charged to appear before Coleraine Magistrates' Court on 6 December 2010 for the following offence:

"That you on 9 November 2010 in the County Court Division of Antrim unlawfully had in your possession a controlled drug of Class B of Schedule 2 to the Misuse of Drugs Act 1971, namely herbal cannabis, in contravention of Section 5(1) of the Misuse of Drugs Act 1971, contrary to Section 5(2) of the Misuse of Drugs Act 1971."

[3] At Coleraine Police Station the applicant was represented by Mr Andrew Russell, solicitor of Madden & Finnucane, solicitors and Mr Russell applied for the applicant to be granted police bail. Sergeant Stephen Kincaid, who was a member of the Crime Team North engaged in investigations directed against the use of illegal drugs in the Northern Region, was involved in the arrest of the applicant and sought to impose two bail conditions upon the applicant. These were:

(i) That the applicant should reside at 10 Dhu Varren Park, Portrush, and

(ii) That the applicant would allow a search of 10 Dhu Varren Park, Portrush without warrant if the police had reasonable grounds to suspect that there were controlled substances within the dwelling.

[4] It appears that the rationale for imposing the second of these conditions was that it had been the experience of Sergeant Kincaid that young drug offenders continue to use and supply illegal substances subsequent to being granted police bail. The purpose of the condition was to reduce the likelihood of further drug offending by the applicant. The applicant's criminal record was limited to convictions at Larne Youth Court on 27 March 2008 of disorderly behaviour and resisting the police on 21 August 2007 in respect of which he had received a Youth Conference Order.

[5] On behalf of the applicant Mr Russell objected to the Custody Sergeant, Sergeant Patton, that the second condition should not be imposed because it constituted an illegal extension of the powers permitting searches without warrant in accordance with the PACE legislation. The Custody Sergeant allowed the condition to be imposed and the applicant thereafter consented to the imposition of the condition, according to Mr Russell only after he had been expressly advised by police that he would be denied bail if he did not so consent. A note was added to the custody record by Sergeant Patton in the following terms:

"From D/P's solicitor – Mr Andrew Russell – Representations have been made that the second condition in relation to his client permitting a search of No. 9 Dhu Varren Park, Portrush is an illegal extension of PACE and should not be permitted. Mr Russell states that there is powers within PACE to cover any reasonable grounds to conduct a serch (sic) following arrest.

Mr Russell also states that his client is only agreeing to the condition because Sergeant Kincaid stated that his client would be charged to court in the morning and would not be bailed."

[6] The applicant was subsequently released on police bail to appear at the District Court on 6 December. His solicitors, on the advice of counsel and in our opinion correctly, then lodged an application on 12 November 2010 to have the remand brought forward to 17 November 2010 in order to deal with the objection to the second condition. On 17 November 2010 Mr Wilson, the District Judge, acceded to a bail variation and listed the matter on 6 December 2010 to consider whether an application should be made to revoke the bail granted to the applicant. No such application was made and the applicant's bail continued.

[7] The case was then adjourned to 21 March 2011 to allow for a forensic examination of the suspected cannabis. On 21 March 2011 the charge of possession was withdrawn and a caution for possession of a Class B drug was administered to the applicant. That effectively brought to an end the criminal proceedings.

[8] Nevertheless, on 13 January 2011, the applicant's solicitors commenced correspondence with the Chief Constable of the PSNI seeking written confirmation that the PSNI did not routinely seek to impose such a condition and that both Sergeant Kincaid and Sergeant Patton had been so advised. On 15 February 2011 T/Chief Superintendent Goddard replied stating, inter alia:

"I agree with the part of your comments that if Police have reasonable grounds then we could use legislation to obtain a warrant and enter for search premises. The reason behind the inclusion of this condition is to deter the person from committing further drug offences. Should the detained person refuse police entry the police would require a warrant and the detained person would breach their bail.

This condition has been held in the High Court and Magistrates' Court. According to our records this condition is still applicable to your client."

[9] On 23 March 2011 the applicant's solicitors responded referring to Article 48 of the Police and Criminal Evidence (Northern Ireland) Order 1989 ("PACE") and the condition that had been imposed and continuing in the following terms:

"You appear to be contending that Sergeant Kincaid and Sergeant Patton acted lawfully and moreover that the PSNI will continue to seek to impose such conditions as and when they see fit. We consider that this amounts to unlawful conduct, not merely on the part of Sergeant Kincaid and Sergeant Patton but more widely throughout the PSNI.

In those circumstances we require your written confirmation, within 14 days, that the PSNI do not routinely seek to impose conditions such as were imposed on our client, in granting police bail, and further confirmation that Sergeant Kincaid and Sergeant Patton have been so advised."

No further correspondence was exchanged.

[10] On 20 April 2011 the applicant's solicitors lodged an application seeking:

(i) An Order of Certiorari to quash the decision of the Chief Constable of the PSNI implementing a policy of permitting police officers to impose as a condition of police bail, a condition that an applicant for police bail should consent to allowing police to enter and search premises, without warrant, where police have a reasonable suspicion that there are drugs on the premises.

(ii) An Order of Certiorari to quash the failure of the Chief Constable of the PSNI to direct police officers that such a policy is unlawful.

(iii) A Declaration that a policy of requiring detainees to consent, as a condition for being granted police bail, to a condition that they permit police to enter their premises and search their premises, without warrant in circumstances where police have a reasonable suspicion that there are drugs on the premises, is unlawful.

The statutory background

[11] Part III of PACE permits an application to be made to a Lay Magistrate for a search warrant in accordance with Article 10 which provides as follows:

"10. If on an application made by a constable a Justice of the Peace [now Lay Magistrate] is satisfied that there are reasonable grounds for believing –

(a) that an indictable offence had been committed;

(b) that there is material on premises mentioned in paragraph (1A) which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence;

(c) that the material is likely to be relevant evidence;

(d) that it does not consist of or include items subject to legal privilege, excluded material or special procedure material;

(e) that any of the conditions specified in paragraph 3 applies in relation to each set of premises specified in the application, he may issue a warrant authorising a constable to enter and search the premises."

Articles 12, 13, 14, 15 and 16 provide detailed definitions of excluded materials, namely, items subject to legal privilege, excluded material, personal records, journalist material and special procedure material. Articles 17 and 18 provide specific safeguards in relation to the application by a constable for a warrant to search premises and the execution of such a warrant with appropriate modifications effected by the Proceeds of Crime Act 2002 (Application of Police and Criminal Evidence Act 1984) and Police and Criminal Evidence (Northern Ireland) Order 1989. Articles 19 and 20 relate to the power of a constable to enter and search premises, respectively, for arrest and in connection with an arrest.

[12] Paragraph 12 Part V of PACE provides for the arrest and detention of suspects and Article 48 introduced for the first time into the criminal law of Northern Ireland a power on behalf of the police to impose bail conditions upon a suspect not yet charged with any criminal offence. Article 48(3B)-(3F) provides as follows:

"(3B) He (the suspect) may be required, before release on bail, to provide a surety or sureties to secure his surrender to custody.

(3C) He may be required, before release on bail, to give security for his surrender to custody; and the security may be given by him or on his behalf.

(3D) He may be required to comply, before release on bail under Article 38(2) or (7)(b) or Article 39(1) or later, with such requirements as appear to the custody officer to be necessary to secure that –

(a) he surrenders to custody;

(b) he does not commit an offence while on bail;

(c) he does not interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.

(3E) Where a custody officer has granted bail he or another custody officer serving at the same police station may, at the request of the person to whom it is granted, vary the conditions of bail; and in doing so may impose conditions or more onerous conditions.

(3F) Where a custody officer grants bail to a person no conditions shall be imposed under paragraph (3B), (3C), (3D) or (3E) unless it appears to the custody officer that it is necessary to do so for the purpose of preventing that person from-

(a) failing to surrender to custody;

(b) committing an offence while on bail; or

(c) interfering with witnesses or otherwise obstructing the course of justice, whether in relation to himself or any other person."

[13] Before dealing with the substance of this application a number of procedural matters fall for consideration.

The Salem Point

[14] As we have noted earlier the impugned condition was removed from the applicant's bail by the District Judge on 17 November 2010. On 21 March 2011 the PPS withdrew the charge of possession of a Class B controlled drug and a caution was administered to the applicant. The criminal proceedings against the applicant were thereby terminated and he no longer remained subject to any form of jeopardy in respect thereof. In such circumstances, Dr McGleenan submitted that the matter had become entirely academic within the meaning of the well-known words of Lord Slynn in R v Secretary of State ex parte Salem [199] AC 450 at 456/7:

"The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future."

In the course of giving judgment in In the Matter of an Application by E [2003] NIQB Kerr J emphasised the significance of the statement by Lord Slynn that academic disputes should not be heard unless there is a good reason in the public interest to do so – see also Re Richard Nicholson's Application [2003] NIQB 30 and C's Application [2009] 23.

[15] The practicality of the Salem approach has also been underlined by Mumby J in R (Smeeton) v Secretary of State for Health [2002] 2 FLR 146 at paragraph 22 of the judgment in which the learned judge described the constitutional function of the courts as being to:

"Resolve real problems and not disputes of merely academic significance. Judges do not sit as umpires on controversies in the Academy, however intellectually interesting or jurisprudentially important to the problem and however fierce the debate which may be raging in the ivory towers or amongst the dreaming spires."

A similar approach is taken by the Strasbourg Court which requires the focus to be on the practical and effective consequences of human rights for individuals rather than more rarefied academic debate.

[16] Ms Quinlivan sought to deal with the Salem point by submitting that this application involved a question of construction of PACE and that there was evidence that police officers were likely resort to using the impugned type of condition again in future. In our view there can be few more fact specific exercises than the discretionary decision to grant an individual bail. All the relevant circumstances of the alleged offences and the individual concerned fall to be considered in the context of the factors identified in Article 48 of PACE. For example, in this case, while the applicant did not have a significant criminal record his admission to the police doctor that he was "drug dependent" and smoked cannabis every day is likely to have had some significance in determining whether there was a risk of further offences.

Delay

[17] As we have noted earlier the impugned condition was removed from the applicant's bail on 17 November 2010. No further action was taken by the applicant's solicitors until the letter of 13 January 2011. District Commander Goddard responded on behalf of the Chief Constable of the PSNI on 15 February 2011. The applicant's solicitors did not reply until 23 March 2011, some two days after all criminal proceedings had been terminated against the applicant. The ex parte application for leave to apply for judicial review was lodged on 19 April 2011 almost a further month later. Order 53 Rule 4(1) provides:

"4-(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made."

The absence of an affidavit by the applicant

[18] In Re D's Application [2003] NICA 14 Carswell LCJ, giving the judgment of the court, said at paragraph [11]:

"We would observe at this point that the affidavit grounding the application was sworn, not by the applicant, but by a Mr Richie MacRitchie, described as an apprentice solicitor with the applicant's solicitors. In this affidavit he purports to depose to a number of substantive facts at the heart of the matter, which no doubt he obtained on instructions from his client. We have said on previous occasions that affidavits which contain such facts in judicial review applications ought to be sworn by the persons with first-hand knowledge of the essential facts and that it is undesirable that affidavits should be sworn by solicitors or other persons deposing to such facts. In our opinion leave to apply for judicial review should not generally be given nor should legal aid be granted unless proper first-hand affidavit evidence is filed."

[19] In this case an affidavit was sworn by Mr Russell who attended the applicant at the police station and who was present during the police interviews. However, it was a matter for the applicant to consider Mr Russell's advice and to decide for himself whether he should object to his release on bail being subject to the impugned condition in the context of his own individual circumstances.

The substance of the application

[20] Ms Quinlivan's helpfully refined primary submission was that it was fundamentally unlawful for the custody officer to use a general power, the power to grant bail in accordance with Article 48 of PACE, in such a way as to reduce or coerce a surrender of the specific right of the individual to require a police officer to obtain a search warrant or to comply with the specific requirements of Articles 19 and 20 of PACE before carrying out any search of the individuals premises. Ms Quinlivan argued that it had clearly been the intention of the legislature to provide a detailed and self-contained code of regulations in Part III of PACE defining and limiting the powers of the police to enter and search private premises. In such circumstances, Ms Quinlivan submitted, it would be highly unlikely that the legislature would have intended that such a code could be circumvented in the course of exercising the general discretion afforded to the police to grant bail in Part V of PACE.

[21] In our view it is important to look carefully at the contextual circumstances in which this decision-making process was taking place. There can be no doubt that the evidence justified the applicant being arrested and taken into custody by police officers for the purpose of considering whether he should be charged with a criminal offence. He was so charged and it became necessary to decide whether to remand him in custody or grant bail. Article 39(1) of PACE provides that, unless specific conditions are met, the custody officer must release a suspect once he has been charged, either on bail or without bail. The presumption in favour of bail is also a frequently encountered concept in Strasbourg jurisprudence. In exercising the discretion to grant bail such a presumption may require to be balanced proportionately against the public interest where, for example, there is a risk of the commission of further offences while on bail. One of the most frequently adopted methods of achieving such a balance is the imposition of consensual conditions that, to some extent, have the effect of restricting the liberty of the subject e.g. a curfew, the wearing of an electronic tag, consenting to a breathalyser test etc. If the proposition advanced by Ms Quinlivan was correct one rather surprising outcome might be that an individual might be prevented from gaining his liberty by being unable to consent to searches of his premises to which he would have been perfectly able to agree as a free individual. The net result might well be a longer stay in police custody and an appearance/appearances before the court together with associated additional public cost and expense.

[22] It is also important to bear in mind that the applicant remained perfectly entitled to insist upon any police officer complying with the specific requirements of the relevant PACE Regulations governing the power to search his premises. He had voluntarily accepted a condition requiring him to consent to such a search in circumstances in which the officer or officers had reasonable grounds to suspect that there were controlled substances within those premises. In refusing permission, he would have been in breach of his bail condition but his rights under PACE would have remained unimpaired. Such a breach of bail would not in any way remove or reduce the obligations placed upon the police when seeking to exercise the powers conferred by PACE with regard to a search of the premises.

[23] While there appears to be some difference of opinion between Mr Russell and Sergeant Kincaid as to whether the applicant was given to understand that if he did not consent to such a condition he would not be granted bail, it seems likely that his agreement to accept the condition constituted a factor of some significance in the decision to grant him bail. That condition could only have been imposed if Sergeant Kincaid considered it to be "necessary" within the meaning of Article 48(3D) of PACE. The correct test of necessity in such a situation has been helpfully encapsulated in the question "Did the negotiation of such a condition represent the 'practical and sensible option' in the circumstances?" - See the judgment of Kerr LCJ in Alexander and Others Application [2009] NIQB 20 at paragraphs [17] to [20]. In deciding whether it was necessary Sergeant Kincaid had to balance the presumption in favour of bail against the risk that the applicant might commit further offences and, in so doing, he was entitled to take into account the evidence which had led to the arrest of the applicant together with his statements during the course of his detention in the police station. His judgment required a practical and proportionate assessment of risk specific to the applicant and the relevant evidence.

[24] The applicant was entitled to challenge Sergeant Kincaid's assessment that the impugned condition was necessary and did so, in this case successfully, by means of the application to bring forward the remand. While it was not utilised by the applicant's solicitors in this case, we note the existence of a special procedure created for the purpose of challenging police bail conditions contained in Article 132A of the Magistrates' Court (Northern Ireland) Order 1981 ("the 1981 Order") and Rule 153A of the Magistrates' Court Rules (Northern Ireland) 1984. In In Re Scott McHugh [2011] NIQB 90 Hart J said with reference to the provisions of Article 132A:

"When the Magistrates' Court determines the application it does so by either remanding the suspect in custody or on bail, and, in either event, 'the grant of bail by the custody officer shall lapse', in other words the suspect is henceforth subject to either being remanded in custody or being granted bail with or without conditions by an order of the Magistrates' Court. … As a consequence the suspect is thereafter on court bail and no longer subject to police bail."

Resort to that procedure would have helpfully and clearly focused the issues for the District Judge who could then have delivered a reasoned judgment taking into account any relevant submissions upon the facts and law.

Conclusion

[25] In our view this application constitutes a classic, and, apparently, purposively generated, piece of satellite litigation purporting to involve a challenge to an alleged policy operated by the respondent but, in fact, referring to an exercise of statutory discretion by the custody officer based upon an assessment of risk related to the circumstances of the individual case. It goes without saying that any such practice is to be deprecated in terms of unnecessary consumption of cost and court time. The applicant's advisers arranged for the impugned condition to be removed at an early stage by using an alternative remedy. In addition, a statutory procedure specifically designed to provide a remedy was available. There has been a significant delay in the application for judicial review which was not initiated until there was no possibility of the applicant being in jeopardy in respect of the criminal proceedings. No affidavit was lodged on behalf of the applicant. For the reasons set out above we reject the basic submission that it was unlawful to require the applicant to consent to the impugned condition. In the circumstances we consider that this is a case in which leave to apply for judicial review should be refused.