High Court of Justice in Northern Ireland Queen's Bench Division Decisions

CARC2451

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

QUEEN'S BENCH DIVISION (CROWN SIDE)

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IN THE MATTER OF AN APPLICATION BY DAMIEN FLOYD FOR

JUDICIAL REVIEW

and

IN THE MATTER OF AN APPLICATION BY PAULINE PALMER AND

CHRISTINA PALMER FOR JUDICIAL REVIEW

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CARSWELL LCJ

Introduction

The applicants in these applications sought a series of declarations relating to the provision of facilities while they were detained in the holding centre at Castlereagh Police Office following their arrest under the Prevention of Terrorism (Temporary Provisions) Act 1989 ("the 1989 Act"). They claimed that the police acted unlawfully in failing to accede to their requests to have their solicitors present during the course of interviews held, to have writing materials made available to them during such interviews and at other times and to have reading materials and facilities for exercise provided. Since the applications concerned similar issues, they were heard together in this court on 18 June 1997, when they were dismissed, with reasons to be given at a later date. The court's reasons for the dismissal are contained in this judgment.

The Detention of Damien Floyd

Damien Floyd was arrested under the provisions of the 1989 Act on 21 March 1996. At 2.26 pm on that date his solicitors faxed a request to Castlereagh Police Office to be permitted to be present throughout any police interviews of the applicant so that he might be continuously advised. The police deferred commencing interviews until the request was considered by Detective Superintendent Molloy, who decided later that afternoon not to accede to it, and so informed the applicant's solicitors by telephone. He subsequently sent a fax to them in the following terms:

"I refer to your fax dated 21 March 1996 regarding your client Damien Floyd detained at the Police Office, Castlereagh.

I am aware of the circumstances and have full knowledge of the background to the terrorist investigation regarding the arrest and detention of your client.

No interviews took place until your request was dealt with at 5.00 pm per telephone call.

Your client has and will continue to have the right to consult privately with you by virtue of Section 45 of the Northern Ireland Emergency Provisions Act 1991.

I have given careful deliberation to the material you have brought to my attention and all the relevant factors and I have come to the conclusion that there is not sufficient to justify the granting of your request on this occasion and I must therefore decline your request."

By a letter also sent on 21 March 1996 the applicant Floyd's solicitors complained that he was not afforded facilities for exercise and was not provided with reading or writing materials. The applicant did not have any exercise while he was in Castlereagh, nor was he provided with writing materials. He was, however, offered a selection of magazines, one of which he took.

Floyd was first interviewed at 5.04 pm on 21 March 1996, and further interviews took place on that evening and during the following day. He was released in the afternoon of 22 March, apparently without charge.

The Detention of Pauline and Christina Palmer

The applicants Pauline and Christina Palmer were arrested under the 1989 Act at approximately 1.45 pm on 13 March 1997 and taken to Castlereagh Police Office. At 2 pm their solicitor made a request by fax to be permitted to be present during their interviews. The request was considered by Acting Detective Superintendent McGregor, who decided in the late afternoon to refuse it. The solicitor was so informed by telephone at 5.57 pm. A fax was sent at or about 7.43 pm confirming this decision:

"I am aware of the circumstances of the arrest of your clients

Pauline Palmer and Christine Palmer on 13.3.97.

Following receipt of your fax message this afternoon I have considered your client's position and have taken into consideration your representations.

Your clients have had the opportunity to private legal advice under Section 47 Northern Ireland [Emergency Provisions] Act 1996 and regular access to legal advice will continue. It will be noted that Christine Palmer having attained the age of 17 yrs is not a minor.

After careful consideration of all the relevant factors in this serious terrorist investigation, I have decided to decline your request to be present during interviews on this occasion."

The applicants' solicitor also sent a letter by fax requesting, in similar terms to Floyd's case, facilities for exercise, the provision of reading and writing materials and, as an alternative to writing materials, that the interviews should be tape-recorded. These requests were refused by a fax sent from Castlereagh Police Office, in identical terms to the refusal in Floyd's case.

It was claimed on behalf of Pauline Palmer that she had particular need of the legal advice of a solicitor during interview because of her medical condition, as she was in receipt of medication for a nervous condition. This was known to Mr McGregor at the time when he made his decision. Pauline Palmer was medically examined at 4.45 pm on 13 March, when the doctor took a history of anxiety and depression. She was in receipt of a tranquilliser, sleeping tablets and medication for cardiac tension, and the doctor directed that she should continue to receive them. He found that she was composed. He concluded that she was fit to be detained and fit for interview on the basis of one hour on, one hour off. Similar findings were made on further medical examinations on 13 and 14 March, although at 8.20 pm on 13 March she was described as agitated and annoyed.

Mr McGregor stated in his affidavit that he took these matters into account in his decision not to allow the applicant's solicitor to be present during interview. He states that he inquired about her conduct and demeanour when confronted by police at her house. He was conscious that her daughter had been arrested at the same time and that this might be a cause of anxiety. Mr Winters also claims in his grounding affidavit that the applicant had been arrested in 1989 and ill-treated during interview. It has not been established whether this was true, but if it was this fact was not brought to Mr McGregor's attention at the time when he made his decision.

Mr McGregor states in paragraph 9 of his affidavit:

"I was satisfied that this Applicant was not at any particular disadvantage or suffering from any undue vulnerability. In my judgment there was nothing about her particular circumstances to warrant any departure from the Chief Constable's general practice and I concluded accordingly."

Pauline Palmer was first interviewed at 7.40 pm on 13 March, and further interviews were held on that evening and during the following day. At 4.48 pm on 14 March the applicant's solicitors informed the police by fax that they were considering an application for judicial review. Mr McGregor directed the suspension of interviews, and the applicant was released without charge at approximately 7.45 pm that evening.

Christina Palmer was aged 17 years at the time of her arrest. She was medically examined at 5.15 pm, when the doctor found her to be composed and fit for detention and interview. Mr McGregor states that he did not consider her to be especially vulnerable or at any particular disadvantage, and concluded that in all the circumstances there was no reason for departing from the general practice of the Chief Constable. He therefore refused the request for her solicitor to be present during interviews. He kept her case under review after the commencement of interviews, which took place in the evening of 13 March and during 14 March. He noted that the medical officer continued to find her fit for interview and that she had access to legal advice. She made a number of requests which he considered were indicative of a composed state of mind. He states that he was satisfied that it was appropriate to continue to conduct interviews in the absence of a solicitor. Christina Palmer was released without charge at the same time as her mother on 14 March.

The Right to a Fair Trial

Mr Harvey QC on behalf of the applicants submitted that the right of an accused to a fair trial contains as one of its components the right to receive legal advice throughout the interviewing process. There is therefore a correlative duty upon the police to allow his solicitor to be present during all interviews and a duty to provide the detainee with writing materials or, failing that, to arrange a sufficient method of recording the content of the interviews. It is not in doubt that a person accused of a criminal offence has a fundamental right to be given a fair trial or, to put it in another manner, that it is the function of the judge to ensure that he receives a fair trial according to law: see, eg, the speeches in R v Sang [1980] AC 402. It would no doubt be unwise to attempt to define the content of this right and duty too precisely, for the category of instances in which they apply is not closed. In general acts and omissions before the trial itself will be capable of affecting its fairness only when they have a bearing upon the admissibility of specific evidence at the trial. So a confession obtained by oppression is inadmissible as evidence against him, because it would be unfair. It is not clear to what extent, if at all, the fairness of treatment of an accused before trial is relevant if it is not directed to an issue of the admission of evidence -- which is not the case here, since none of the applicants made a confession. In view of my conclusions on the actual treatment of the applicants I do not find it necessary to answer this question.

Before I turn to examine the issues in each case before us I would observe that applications for judicial review based upon the treatment of a suspect detained for interviewing may pose difficult issues relating to the exercise of the discretion of the court. If the applicant has not made a confession or has been released without being charged, the question of his treatment will not affect the disposition of any criminal proceedings. In these circumstances the court will have to consider whether or not it is appropriate to make a declaration or grant any other remedy. If, on the other hand, he has made a confession and a criminal trial is pending, it is likely that the court will feel that to pronounce on the propriety of his treatment during detention could hamper the trial judge's exercise of his discretion to rule upon the admissibility of the confession in the light of the evidence about his treatment. It is important that the freedom of the judge in a criminal trial to rule upon the admission of evidence should not be trammelled by earlier pronouncements in other courts concerning the way in which that evidence has been obtained, and this factor will have to be borne in mind if similar applications should be brought in the future.

Presence of a solicitor

The claim that a suspect detained by the police under the provisions of the 1989 Act is entitled to have a solicitor present during interviews has been the subject of detailed consideration in several cases in this court and the Court of Appeal. In R v Dougan (1995, unreported) and R v O'Kane (1995, unreported) the Court of Appeal held that it was the intent of Parliament that a solicitor should not be present at the interviews of a terrorist suspect and that the only right which it intended to give to such a suspect in respect of the right of access to a solicitor was the right to consult privately conferred by section 45 of the Northern Ireland (Emergency Provisions) Act 1991, subject to the restrictions set out in that section.

In Re Begley's Application (1996, unreported) and Re Russell's Application (1996, unreported) this court rejected applications based on claims that terrorist suspects have the right to have solicitors present during police interview. In Re Russell's Application the court held that although the general intention of Parliament is manifested in the Northern Ireland (Emergency Provisions) Act 1991 that a solicitor should not be present, the Chief Constable could decide by way of concession to allow it in special cases for valid reasons. Any such decision could in my view be the subject of judicial review, subject to the question of the discretion of the court to which I have referred. There may have been a degree of difference in that case between the views expressed by Hutton LCJ and those of Kerr J about the right of the Chief Constable to have a fixed policy to refuse access in all cases without exception. I do not find it necessary to express an opinion on the issue in this judgment, since the Chief Constable has adopted a policy of considering whether requests for the presence of a solicitor should be allowed rather than giving a blanket refusal in all cases. It remains only for the court to consider whether the officers making decisions on his behalf in the case of the applicants have done so by reference to the proper factors and whether, as the applicants contend, they can be said to be unreasonable in the Wednesbury sense.

In Floyd's case there is nothing to show that the Chief Constable's discretion was exercised in any way other than by reference to the proper considerations. Nor is it possible in my view to say that it was unreasonable in the Wednesbury sense.

In the case of Pauline and Christina Palmer there again is nothing to show that Acting Detective Superintendent McGregor made his decisions by reference to any but the proper considerations. Mr Harvey based his submission on unreasonableness, contending that the arguments in favour of allowing a solicitor to be present in the case of each applicant was so strong that no reasonable officer applying his mind to the proper factors could have decided to refuse the requests. I am unable to accept this. Pauline Palmer was medically examined on several occasions, and on each was found fit for interview for finite periods. She was prone to anxiety, but had her proper medication supplied to her. There is no evidence that she was at any time unduly distressed in interview, or that she was unable to comprehend the questions or answer them in a composed and coherent fashion. In these circumstances I consider that the submission that it was Wednesbury unreasonable not to allow a solicitor to be present cannot be sustained, when one bears in mind the depth of irrationality which has to be established before such a case can be made out.

My conclusion is the same in the case of Christina Palmer. Although young, there is nothing to suggest that she was especially vulnerable or that she was in any way unfairly influenced or overborne in the course of being interviewed.

Writing Materials

It was submitted on behalf of the applicants that fairness required the police to make available writing materials to a suspect, so that he could keep a proper record for the use of himself and his solicitor of the course of the interviews. In the alternative, if these were not furnished, an audiotape record should be kept, as in interviews in non-scheduled cases.

There is no express reference in statute-law or the Codes of Practice to the provision of writing materials. The Chief Constable takes the view, I think correctly, that it lies within his discretion to provide them where a sufficiently strong case is made out to override the objections. The objections are cogently described in paragraphs 3, 4 and 5 of the affidavit sworn by Detective Chief Superintendent Martindale in Floyd's case, and may be summarised as the hampering of interviewers in conducting interviews in their own manner and at their own pace, and the potential opportunity for the use of pens for inflicting injuries. I do not need to express an opinion about the strength of these objections. It is sufficient to say that they cannot in my view be dismissed as having no substance and therefore unreasonable in the Wednesbury sense. The Chief Constable was accordingly entitled to adopt the policy of not furnishing writing materials except in special cases. There was nothing in the materials before us to show that the case of any of the applicants fell within such exception.

It was submitted on behalf of the applicants that if writing materials could not be provided, it was necessary that interviews should be tape-recorded, in order to allow the detainees to have a proper record of what took place in each. This submission cannot in my view be accepted in the light of the fact that section 53 of the Northern Ireland (Emergency Provisions) Act 1996 and the draft Code of Practice which has been prepared under that section provide for silent videotape recording but not for recording what was said in interviews of terrorist suspects. Parliament has shown by the enactment of section 53 of the 1996 Act that it did not intend that what was said in such interviews should be recorded, in contradistinction to non-terrorist cases governed by PACE. The matter has therefore been removed from the realm of any discretion which the Chief Constable might have possessed to allow it. If it could be successfully argued by the applicants that he did have such a discretion prior to the enactment of the 1996 Act, I should in these circumstances decline in the exercise of my discretion to make any declaration to that effect.

Reading Materials

Paragraph 8.8 of Code I made by the Secretary of State under section 61 of the Northern Ireland (Emergency Provisions) Act 1991 governs the provision of reading materials:

"Detainees may apply for selected reading material at the discretion of the custody officer."

The Chief Constable has limited the selection of reading material by confining it to magazines and periodicals. He has decided that hard-backed books and newspapers should not be supplied, for the reasons set out in paragraph 10 of the affidavit sworn by Detective Chief Superintendent Martindale in Floyd's case. It is not necessary for me to express any opinion about the correctness of those reasons. It is sufficient to say that it is in my view quite clear that the decision by the Chief Constable to limit the types of reading matter in this way could not be regarded as unreasonable in the Wednesbury sense.

Exercise

It is provided in paragraph 8.7 of the Code of Practice to which I have referred that -"Brief outdoor exercise shall be offered daily if practicable."

The space at Castlereagh Police Office is so limited, as Detective Chief Superintendent Martindale set out in paragraph 8 of his affidavit sworn in Floyd's case, that it was not regarded by the Chief Constable as practicable to provide exercise. In May 1997 he reconsidered his decision that exercise could not be provided, mindful of the recommendations made by the Independent Commissioner for Holding Centres and in view of the fact that the number of persons detained at Castlereagh had declined.

I offer no opinion on the justification for the previous decision that it was not practicable to allow exercise at Castlereagh. If it is now available to detainees, it is not necessary to make any declaration about the previous practice, and if the applicants had made out a case that that practice was wrong I should decline in the exercise of my discretion so to declare.

Conclusion

For the reasons which I have set out in this judgment, the court accordingly dismissed the applications for judicial review.

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

QUEEN'S BENCH DIVISION (CROWN SIDE)

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IN THE MATTER OF AN APPLICATION BY DAMIEN FLOYD FOR

JUDICIAL REVIEW

and

IN THE MATTER OF AN APPLICATION BY PAULINE PALMER AND

CHRISTINA PALMER FOR JUDICIAL REVIEW

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JUDGMENT

OF

CARSWELL LCJ

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