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Cite as: [2003] UKHL 39, [2003] NI 375, [2004] 2 All ER 237, [2003] WLR 1763, [2003] 1 WLR 1763

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Cullen v. Chief Constable of the Royal Ulster Constabulary [2003] UKHL 39 (10 July 2003)

Judgments - Cullen (Appellant) v. Chief Constable of the Royal Ulster Constabulary (Respondent) (Northern Ireland)

HOUSE OF LORDS

SESSION 2002-03
[2003] UKHL 39

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

Cullen (Appellant)

Chief Constable of the Royal Ulster Constabulary (Respondent) (Northern Ireland)

THURSDAY 10 JULY 2003

The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Steyn

Lord Hutton

Lord Millett

Lord Rodger of Earlsferry

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Cullen (Appellant) v. Chief Constable of the Royal Ulster Constabulary (Respondent) (Northern Ireland)

[2003] UKHL 39

LORD BINGHAM OF CORNHILL AND LORD STEYN

My Lords,

I. THE QUESTION.

1. On this appeal a question of law of considerable public importance arises, namely whether a breach of section 15 of the Northern Ireland (Emergency Provisions) Act 1987 may give rise to an action for damages. Subject to limited qualifications section 15 confers a right of access to legal advice on a detained person.

II. A NARRATIVE.

2. The context in which the issue arises is as follows. On 17 October 1989 a police officer arrested the appellant under section 14(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1989, upon suspicion of having been concerned in the commission, preparation or instigation of an act of terrorism associated with the withholding of information in respect of a murder. He was taken to the Castlereagh Police Office. From 17 to 22 October 1989 the appellant was held in police custody. He wanted to see a solicitor. During this period, a police officer of the appropriate rank under section 15 issued four authorisations denying him a right of access to a solicitor. The appellant was permitted one unsupervised consultation and two supervised consultations with his solicitor. On 20 October 1989 the appellant made a statement which contained admissions. In due course he was charged with the offence of withholding information of a murder. He pleaded guilty, and he was sentenced to 160 hours community service. The appellant then brought an action for damages against the respondent. The trial judge found that the Police at all times had reasonable grounds to delay access to a solicitor as required by section 15(8) of the Act. But the trial judge held that the respondent had failed to comply with the requirements of section 15 in the following two respects:

(a)

Each of the decisions to deny the appellant access to a solicitor was anticipatory in nature in the sense of being made in advance of a request by the detainee;

(b)

The appellant had not at any stage been informed of the reasons for the decisions to deny him access to a solicitor.

The trial judge concluded that none of the breaches of section 15 conferred a right upon the appellant to claim damages in a civil case. The Court of Appeal dismissed an appeal against this conclusion: Cullen v Chief Constable of the Royal Ulster Constabulary [1999] NI 237.

III. THE LEGISLATIVE CONTEXT.

3. The legislative context must now be explained. The long title of the 1987 Act describes it as, among other things, intended "to confer certain rights on persons detained in police custody in Northern Ireland under or by virtue of Part IV of the Prevention of Terrorism (Temporary Provisions) Act 1984". The critical provision, which is section 15, is contained in Part II. The heading of Part II is "Rights of Persons Detained Under Terrorism Provisions in Police Custody". The first provision in Part II is section 14, which "confers" on a detained person "the right" to have someone informed of his detention under the terrorism provisions. The only other substantive provision in Part II is section 15. The marginal note to section 15 reads "Right of access to legal advice". Given its central importance we set out section 15 with emphasis added where appropriate:

"15. (1) A person who is detained under the terrorism provisions and is being held in policy custody shall be entitled, if he so requests, to consult a solicitor privately.

(2) A person shall be informed of the right conferred on him by subsection (1) as soon as practicable after he has become a person to whom that subsection applies.

(3) A request made by a person under subsection (1), and the time at which it is made, shall be recorded in writing unless it is made by him while at a court after being charged with an offence.

(4) If a person makes such a request, he must be permitted to consult a solicitor as soon as is practicable except to the extent that any delay is permitted by this section.

(5) Any delay in complying with a request under subsection (1) is only permitted if -

(a) it is authorised by an officer of at least the rank of superintendent; and

(b) it does not extend beyond the relevant time.

(6) In subsection (5) 'the relevant time' means -

(a) where the request is the first request made by the detained person under subsection (1), the end of the period referred to in section 14(6); or

(b) where the request follows an earlier request made by the detained person under that subsection in pursuance of which he has consulted a solicitor, the end of the period of 48 hours beginning with the time when that consultation began.

(7) An officer may give an authorisation under subsection (5) orally or in writing but, if he gives it orally, he shall confirm it in writing as soon as is practicable.

(8) An officer may only authorise a delay in complying with a request under subsection (1) where he has reasonable grounds for believing that the exercise of the right conferred by that subsection at the time when the detained person desires to exercise it

(a)

will lead to interference with or harm to evidence connected with a scheduled offence or interference with or physical injury to any person; or

(b)

will lead to the alerting of any person suspected of having committed such an offence but not yet arrested for it; or

(c)

will hinder the recovery of any property obtained as a result of such an offence; or

(b)

will lead to interference with the gathering of information about the commission, preparation or instigation of acts of terrorism; or

(e)

by alerting any person, will make it more difficult -

(i)

to prevent an act of terrorism; or

(ii)

to secure the apprehension, prosecution or conviction of any person in connection with the commission, preparation or instigation of an act of terrorism.

(9) If any delay is authorised, then, as soon as is practicable -

(a)

the detained person shall be told the reason for authorising it; and

(b)

the reason shall be recorded in writing.

(10) If an officer of at least the rank of Assistant Chief Constable has reasonable grounds for believing that, unless he gives a direction under subsection (11), the exercise by a person of the right conferred by subsection (1) will have any of the consequences specified in subsection (8), he may give a direction under subsection (11).

(11) A direction under this subsection is a direction that a person desiring to exercise the right conferred by subsection (1) may only consult a solicitor in the sight and hearing of a qualified officer of the uniformed branch of the Royal Ulster Constabulary.

(12) An officer is qualified for the purposes of subsection (11) if

(a)

he is of at least the rank of inspector; and

(b)

in the opinion of the officer giving the direction, he has no connection with the case.

(13) Any authorisation under subsection (5) or direction under subsection (11) shall cease to have effect once the reason for giving it ceases to subsist."

The fate of section 15 was as follows. The 1987 Act came into operation on 15 June 1987. It was subsequently repealed by the Northern Ireland (Emergency Provisions) Act 1991, with effect from 27 August 1991. Section 45 of the 1991 Act became the operative provision regulating the right of access to legal advice. The 1991 Act in turn was repealed by the Northern Ireland (Emergency Provisions) Act 1996, with effect from 25 August 1996: see section 47 of the 1996 Act. The 1996 Act was repealed by the Terrorism Act 2000, which has been in force (except for section 100) since 19 February 2001. The extant equivalent of section 15 of the 1987 Act is paragraphs 7 and 8 of Schedule 8 to the 2000 Act.

4. The genesis of section 15 is important. It applies to "[a] person who is detained under the terrorism provisions" (section 15(1)). It was modelled on section 58 of the Police and Criminal Evidence Act 1984. In a new and remedial provision section 58 conferred a statutory right to legal advice on detained persons. It has been said that the right contained in section 58 "is arguably the most important protection conferred by the [1984] Act": 1984 Current Law Statutes, Vol 4, General Note to section 58, 60-105. The Police and Criminal Evidence (Northern Ireland) Order 1989 (SI 1989/1341) took effect on 1 January 1990. Article 59 of the latter instrument corresponds to section 58 of PACE 1984. Article 59 of the PACE Order 1989 does not apply to terrorist arrests: see article 59(12). Section 15 applies only to terrorist arrests. But it corresponds to section 58 of PACE and cannot therefore be given any special interpretation on the basis of a terrorist dimension.

5. It is now necessary to explain the law about a detained person's access to legal advice as it stood before PACE 1984 was enacted. The common law recognised a general right in an accused person to communicate and consult privately with his solicitor outside the interview room. This development is reflected in the Judges' Rules and Administrative Directions to the Police which were published as Home Office Circular No. 89/1978. The text expressly provided that the Judges' Rules do not affect certain established legal principles which included the principle:

"(c) That every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor. This is so even if he is in custody provided that in such a case no unreasonable delay or hindrance is caused to the processes of investigation or the administration of justice by his doing so: . . ."

In R v Chief Constable of the Royal Ulster Constabulary, Ex p Begley [1997] 1 WLR 1475, at 1479E-G the House of Lords recognised this historical development. It follows that in 1984 the possibility of applying for relief in judicial review proceedings already existed in cases where there was a breach of the principle. On the other hand, experience in England and Wales showed that the protection so conferred was largely ineffective, notably because cross-examination on an application for judicial review, although not excluded, was in practice rarely permitted: O'Reilly v Mackman [1983] 2 AC 237, at 282D - 283A; Fordham, Judicial Review Handbook, 3rd ed., 2001, 19.4.2 - 19.4.8, Martin Smith, Cross-Examination in Judicial Review under the CPR, [2001] JR 138. Against this background section 58 was an important piece of remedial legislation intended to make the legal right of a detainee to access to a solicitor more effective.

6. Section 58 of PACE was drafted and passed against the background of the Report of the Royal Commission on Criminal Procedure, which was chaired by Sir Cyril Philips: January 1981, Cmnd 8092. The Report recorded the great importance which the Royal Commission attached to securing that the right to legal advice was effective: para 4.95. In para 4.122 the Royal Commission observed:

"Civil actions

Some of the witnesses to us have been critical of civil action as a remedy. They point to the difficulty of proving breaches of the rules and to the cost of such actions, and some doubt whether they have any impact on the individual police officer, since any award of costs is borne by police funds. Nonetheless they provide a means by which those who suffer substantial inconvenience, distress or other disadvantage as a result of unjustified police activity may gain some form of redress. It is the only means of redress for those who are not prosecuted and consequently have no opportunity to raise the matter during a trial. As we have already noted, we see this applying particularly in the case of unlawful arrest or unjustifiably prolonged detention. The arrangements we propose for recording decisions during the course of custody may assist in proving cases of unlawful action in these and other respects, for example in relation to improper refusal of access to legal advice, and the civil courts may therefore prove to have a useful role to play in the application of the statutory rules."

Several points in this paragraph merit emphasis. The Royal Commission considered the arguments for and against permitting civil actions in aid of rights to legal advice: para 4.122. The Royal Commission concluded that "the civil courts may . . . prove to have a useful role to play in the application of the statutory rules". The Royal Commission gave the example of "improper refusal of access to legal advice". These observations made clear that the Royal Commission had in mind remedial legislation buttressing the right to legal advice by a private law action for damages. It is also relevant to note that the Royal Commission expressly mentioned redress for "substantial inconvenience, distress or other disadvantage as a result of unjustified police activity." In other words, the Royal Commission had in mind that a breach should be actionable per se, i.e. without proof of financial loss.

IV. THE NATURE AND SERIOUSNESS OF THE BREACHES.

7. There was some debate at the hearing of the appeal about the relative seriousness of the breaches that were established. The context was an observation of the Lord Chief Justice in the Court of Appeal that the breach in the present case - being a reference to all breaches found by the trial judge - "might justifiably be termed technical": at 254D. Counsel for the respondent adopted this statement and suggested that it throws light on the point of statutory construction. For our part this observation is more realistic insofar as the Police made decisions to delay access to a solicitor in advance of a request by the detainee. On the other hand, to describe the total failure to give reasons at any stage as "technical" is at the least controversial. The difficulty is that in an objective sense such a view tends to undermine the importance of the statutory right to reasons. In the context of section 15 reasons promote several important objectives. First, they impose a discipline on the Police (as in the case of other decision makers) which may contribute to such refusals being considered with care. Secondly, reasons encourage transparency in an area closely connected with access to justice and increase confidence in the operation of the criminal justice system. Thirdly, they assist the courts in performing their supervisory function if judicial review proceedings are launched. It is, therefore, a complaint of substance that no reasons were ever given in the present case.

V. THE ISSUES.

8. The appellant's claim was put forward in three alternative ways: (1) breach of statutory duty; (2) an action at common law for false imprisonment; (3) a new innominate tort. Against this background the Agreed Statement of Facts and Issues states the questions to be considered by the House as follows:

(1)

Where a police officer of the appropriate rank has reasonable grounds under section 15(8) of the 1987 Act for making an authorisation, but does so on an anticipatory basis and fails to inform the detainee of his reasons, is this actionable in tort at the suit of the detainee?

(2)

If the answer to the above question is "yes", does the detainee have to prove loss in order to recover damages?

Two comments about the issues must be made. First, it is obvious that the House cannot sensibly confine itself to considering whether section 15 gives a right to claim damages for the particular breaches established in the present case. The House must approach the matter on a broader basis by considering the spectrum of the cases affected, ranging from what may be the truly trivial (e.g. a failure to record properly a request for access to a solicitor by a detainee) to very serious breaches (e.g. where access was denied without reasonable grounds). We will examine the point of construction in this way.

Secondly, it is now common ground that "if either an action for damages for breach of statutory duty or an action for damages at common law exists, proof of [financial] loss is not an essential ingredient thereof". This does not, however, mean that the sustainability in law of the cause of action may not be tested against the interests involved and the types of loss which may arise.

VI. BREACH OF STATUTORY DUTY.

The Court of Appeal Judgment

9. It is necessary to consider why Carswell LCJ (with the agreement of Nicholson and Campbell LJJ) held that there was no private law claim for damages. Carswell LCJ thought that the statute was "silent" on the question (at 245a) and there was no sufficient basis to "infer" that Parliament intended to allow a claim for damages (at 251d). Secondly, given this hypothesis, Carswell LCJ found guidance in R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] 1 AC 58 which turned on the interpretation of the Prison Rules. In Hague's case the House characterised the Prison Rules as regulatory in character, viz dealing with the management, treatment and control of prisoners. Carswell LCJ accepted that section 58 of PACE, and section 15 of the 1987 Act, were also regulatory or "control" provisions: 249h - 250d. Thirdly, Carswell LCJ found assistance in decisions on social welfare legislation, where the statutes contained no language conferring rights and when the House considered that judicial review was the appropriate remedy: X v Bedfordshire County Council [1995] 2 AC 633 and O'Rourke v Camden London Borough Council [1998] AC 188. Fourthly, Carswell LCJ stated that "the fact that it is unlikely that personal injury, injury to property or economic loss could be proved tends to show that the breach was not intended to be actionable": 257d. Fifthly, at one stage Carswell LCJ described a breach of section 15 as "a mistake in procedure": 255. And counsel for the respondent invoked this point on several occasions. These are the principal planks of the reasoning of the Court of Appeal on the issue of the recoverability of damages for breach of section 15. It will be necessary to examine them in some detail. In doing so the arguments of counsel for the respondent, who supported the Court of Appeal judgment, will also be covered.

(i) The language of the statute and its context

10. In respectful but firm disagreement with the Lord Chief Justice we would reject the idea that the statute is silent on the issue. The long title, the heading of Part II, and the substantive provisions of sections 14 and 15 make clear that Parliament was passing a new and remedial provision for the conferment on detainees of a statutory right of access to solicitors. The statutory language is entirely apt to create private law rights. And on ordinary principles of statutory construction the language must be interpreted so as to give the effective protection which Parliament envisaged.

11. This interpretation is reinforced by the fact, already explained, that before the enactment of section 58 of PACE the common law already recognised a legal principle entitling a detainee to legal advice: see the Begley case, at 1479F-G. It could be the basis of judicial review proceedings. In enacting section 58 of PACE, and section 15 of the 1987 Act, the legislature clearly intended to confer further protection on detainees. The only or virtually only way of doing so was to confer private law rights on them. While Begley was cited in the Court of Appeal, the significance of this point emerging from it may not have been placed squarely before the Court of Appeal.

12. An even more important aid to construction is the report of the Royal Commission which formed the background to the enactment of section 58 of PACE. It reveals, as already explained, a clear view in favour of a right of access enforced by a private claim for damages. This contextual factor explains the purpose of section 58 of PACE on which section 15 of the 1987 Act was modelled. Unfortunately, this material was not placed before the Court of Appeal. It was also not drawn to the attention of the House by counsel. Having now examined the Report of the Royal Commission, we question whether the Court of Appeal would have reached a decision that Parliament did not intend to create a right to civil damages if it had been alerted to it.

(ii) The Hague decision

13. It is true, of course, that in the Hague case prisoners were denied a right to claim damages for breach of the Prison Rules on the ground that the rules were not intended to create private rights: the rules were regarded as concerned only with the management, treatment and control of prisoners. Section 58 of PACE, and section 15 of the 1987 Act, are quite differently worded and structured. They are specifically designed to protect individual rights of detained persons. This part of the reasoning of the Court of Appeal cannot be supported.

(iii) The decisions in X v Bedfordshire and O'Rourke

14. In X v Bedfordshire, supra, Lord Browne-Wilkinson observed (at 732):

"The cases where a private right of action for breach of statutory duty have been held to arise are all cases in which the statutory duty has been very limited and specific as opposed to general administrative functions imposed on public bodies and involving the exercise of administrative discretions."

While Carswell LCJ's quotation from this decision extended to this passage, he did not say that the rights conferred by section 15 do not come within this category. Counsel did, however, so submit. We would reject this argument. Section 15 protects the rights of a limited and specific class, i.e. detained persons.

15. On a broader basis it is difficult to compare the social welfare legislation in X v Bedfordshire and O'Rourke, with no express provision for individual rights, with section 58 of PACE and section 15 of the 1987 Act, which are redolent with the expression of individual rights. Those decisions do, of course, support the proposition that, where the statute is silent, the existence of an alternative remedy, such as judicial review, may be a relevant factor to take into account when considering what is the best interpretation: see, however, Barrett v Enfield London Borough Council [2001] 2 AC 550, at 589 E-H per Lord Hutton. For Carswell LCJ this was the significance of these decisions. In the present context, however, such arguments are ruled out by a contextual interpretation of section 15. The Royal Commission did not treat judicial review as a sufficient and effective protection for detained persons. In England and Wales cross-examination on an application for judicial review is only permitted in exceptional cases. In any event, it has to be said that the more serious a breach of refusing access to a solicitor under section 15 the more difficult it will be for a detained person to launch judicial review proceedings. There will be cases in which it is not an effective remedy as envisaged by the Royal Commission.

(iv) No personal injury, property damage or financial loss

16. Carswell LCJ regarded the fact that a breach of section 15 was unlikely to result in personal injury, injury to property or economic loss as pointing against a legislative intent to treat a breach of section 15 as giving rise to an action in damages: 257d. We cannot accept this proposition. In the context of a breach of a right of access to a solicitor the natural and obvious solution is that the breach is actionable per se, i.e. without proof of special damage. That is what the Royal Commission contemplated and what Parliament must have intended. In any event Carswell LCJ rightly accepted and counsel for the Chief Constable conceded that, if a breach of duty under section 15 is indeed actionable, it would give rise to damages without proof of loss: 257d.

(v) A mistake in procedure

17. To refer to a breach of section 15 as a mistake in procedure suggests that it is not of great importance. Such a view is understandable in respect of the anticipatory breaches but not warranted in respect of a total failure to give reasons. It is a sufficient answer to quote the observation of Justice Frankfurter in McNabb v US 318, US 332 (1943), at 347, that "The history of liberty has largely been the history of observance of procedural safeguards".

Comparative material

18. It is of some significance that in the United States, Canada and Ireland it has been held that breaches of a detained person's constitutional right of access to a lawyer may found an action in damages: (1) Decisions in the United States Court of Appeals: Cinelli v City of Revere 820 F 2d 474 (1987); Williams v Liberty 461 F 2d 325 (1972) and Wounded Knee Legal Defense/Offense Committee v Federal Bureau of Investigation 507 F 2d 1281 (1974); (2) The Irish Supreme Court: The People v Healy [1990] 2 IR 73. This decision approved the unreported decision of Finlay P in The State (Noel Harrington) v The Commissioner of An Garda Síochána in 1976. (3) A Federal Court in Canada: Crossmann v The Queen (1984) 9 DLR (4th) 588. Carswell LCJ thought that this line of decisions was distinguishable as being based on constitutional provisions. However, in Raymond v Honey [1983] 1 AC 1, Lord Wilberforce described a right of access to justice as "a basic right". In R v Secretary of State for the Home Department Ex p Leech [1994] QB 198 the Court of Appeal described a prisoner's right to correspond with his solicitor in contemplation of litigation as follows: "Even in our unwritten constitution it must rank as a constitutional right": see also R v Lord Chancellor, Ex p Witham [1998] QB 575. The distinction made by Carswell LCJ is fragile. The right conferred by section 15 is a fundamental right. The jurisprudence cited is relevant and at the very least demonstrates the importance and utility of a right to damages in aid of the rights of access to a solicitor.

VII. CONCLUSION

19. We cannot accept the conclusions of the majority. We note that Lord Hutton concludes in paragraphs 41 to 43 of his speech that there should be no award of damages unless there has been harm as he sought to define it. While this conclusion accords some weight to the obvious legislative purpose, it weakens significantly the reasoning in principle of the majority.

20. In our respectful view the majority has also failed to give sufficient weight to two factors. First, there are plainly formidable practical problems in a detainee applying for judicial review when he has been denied access to a solicitor. Secondly, in any event, it is not easy to know whether one has an arguable case for judicial review unless reasons have been given. If there are adequate answers to these points, we are not aware of them.

21. We would hold that a breach of the right under section 15 is actionable per se. But, applying the test enunciated by the European Court of Justice, we would be inclined to hold that proof of a serious breach is required for a damages action: Wyatt and Dashwood's European Union Law 4th ed. 2000, 126-127; Craig, Administrative Law, 4th ed. (849).

VIII. DAMAGES

22. It was agreed between counsel that in order to avoid yet further delay in this protracted litigation the House should settle the damages. In our view the breaches consisting of premature authorisations do not satisfy the threshold of seriousness. On the other hand, the failure to give reasons is a matter of substance. We would award £500 under this heading.

IX. DISPOSAL

23. We would allow the appeal and award £500 damages to the appellant.

LORD HUTTON

My Lords,

24. On 8 October 1989 Superintendent Harris of the RUC was murdered when a bomb exploded under his car. On 17 October 1989 the appellant was arrested by a police officer under section 14(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1989 upon suspicion of having been concerned in the commission, preparation or instigation of an act of terrorism associated with the withholding of information in respect of that murder. He was then held in police custody from 17 October to 23 October 1989 and was interviewed by the police. About noon on 20 October he made a written statement containing admissions. On 23 October he was charged with the offence of withholding information in relation to a hijacking. He pleaded guilty on 8 June 1990 and was sentenced to 160 hours' community service.

25. The appellant then brought an action for damages against the Chief Constable. The proceedings in Northern Ireland were protracted because there were three hearings before the High Court and two hearings before the Court of Appeal, and the appeal before the House is from the second judgment of the Court of Appeal delivered on 15 June 1999.

26. In his action the appellant claimed damages for wrongful detention, false imprisonment and trespass to the person on the ground that his detention was unlawful from the outset. He further claimed damages for infringement of his right to consult a solicitor privately pursuant to section 15 of the Northern Ireland (Emergency Provisions) Act 1987. A schedule detailing the deferrals of access to the appellant's solicitor by a police chief superintendent and the nature of the solicitor's visits was put before the High Court and is as follows:

NO	DATE	TIME	DURATION OF DEFERRAL	RUNNING TIME
1	Tuesday 17/10/89	6.05 pm	24 hrs	5.30 pm 17/10/89 5.30 pm 18/10/89
	Wednesday 18/10/89	7.25 pm - 7.50 pm		SOLICITOR VISIT: UNSUPERVISED
2	Thursday 19/10/89	9 am	48 hrs	7.25 pm 18/10/89 7.25 pm 20/10/89
	Friday 20/10/89	6.15 pm - 6.30 pm		SOLICITOR VISIT: SUPERVISED INSPECTOR CORDNER
3	Friday 20/10/89	7.00 pm 7.50 am [sic]	24 hrs	6.15 pm 20/10/89 6.15 pm 21/10/89
	Saturday 21/10/89	6.35 pm - 6.55 pm		SOLICITOR VISIT: SUPERVISED INSPECTOR CORDNER
4	Sunday 22/10/89	am [sic]	48 hrs	6.35 pm 21/10/89 6.35 pm 23/10/89

27. At the outset of the first hearing before the High Court the appellant withdrew his claim for damages for wrongful detention, false imprisonment and trespass to the person and proceeded only on the claim for damages for breach of statutory duty under section 15 of the 1987 Act in respect of denial of access to consult a solicitor. The full terms of section 15 have been set out in the judgment of my noble and learned friends Lord Bingham of Cornhill and Lord Steyn.

28. In the High Court before MacDermott LJ the appellant advanced two principal submissions. The first was that the chief superintendent who authorised the delay in access to a solicitor did not have reasonable grounds for believing that the exercise of the right to consult would—

(d) lead to interference with the gathering of information about the commission, preparation or instigation of acts of terrorism; and

(e) by alerting any person, would make it more difficult—

(ii) to secure the apprehension, prosecution or conviction of any person in connection with the commission, preparation or instigation of an act of terrorism.

The second submission was that a number of the requirements set out in section 15 had not been complied with.

29. MacDermott LJ rejected the first submission. He held that he was satisfied that fresh intelligence received by the police during the appellant's detention had caused the superintendent to fear that the matters which would be put at further interviews indicating the level of police knowledge about the murder of Superintendent Harris might leak out through the appellant's solicitor to associates or those involved with the murder. He therefore held that the superintendent had reasonable grounds for believing under section 15(8)(d) and (e) that there was a real risk of valuable information reaching those involved in the murder. In relation to the second submission MacDermott LJ found that there were breaches of the requirements of section 15 in two respects. First, the superintendent had made the decision to defer access to a solicitor before the appellant requested access and, secondly, the police had not informed the appellant of the reasons for delaying access to a solicitor as required by section 15(9)(a).

30. MacDermott LJ held that the appellant had no right to claim damages for the two breaches of section 15 and an appeal against this decision was dismissed by the Court of Appeal. In the Court of Appeal the appellant was permitted to advance a new claim of false imprisonment on the ground that his detention became unlawful by reason of the breaches of section 15 and this claim was also dismissed by the court.

31. Before turning to consider the issues which arise on this appeal it is relevant to make three observations.

(1) The right given by section 15 to a person detained by the police to consult a solicitor is an important right which Parliament has expressly given to him. But Parliament has qualified the right by providing that access may be delayed by a senior police officer if he has reasonable grounds for believing that one of the consequences set out in section 15(8) will ensue. In the present case a senior officer did have reasonable grounds for so believing. Therefore if the requirements laid down by section 15 had been fully complied with by the police, access by the appellant to a solicitor could have been lawfully deferred.

(2) The appellant made no admissions to the police until after he had had an unsupervised consultation with his solicitor on the evening of 18 October, the admissions being made on 20 October. This is not a case where a person in custody made admissions before he had the benefit of a consultation with a solicitor. Moreover at his trial the appellant pleaded guilty and raised no objections that admissions had been improperly obtained from him.

(3) It is clear that the breach of the requirements imposed on the police by section 15 caused no physical injury or financial loss to the appellant, and there was no evidence that he suffered any distress or harm.

32. The main submission advanced on behalf of the appellant was that he was entitled to recover damages for breaches of the statutory duties imposed on the police by section 15 without proof of damage. He further submitted that he was entitled to damages at common law for false imprisonment or for an innominate tort.

Breach of statutory duty

33. My Lords, I consider that the principal question which falls to be considered on this appeal is the following one: Where a person is detained in custody by the police and a duty imposed on the police by one of the provisions of section 15 is breached but the person detained suffers no harm in consequence of the breach, can he recover damages in respect of that breach? In referring to "harm" in this question and subsequently in this opinion I mean some substantial detriment or distress which calls for an award of damages to compensate him for that harm. In order to answer this question I consider that there are two factors to be taken into account.

(i) The availability and effectiveness of judicial review

34. The availability and effectiveness of an existing remedy for a breach of statutory duty may be a strong indication that damages should not be awarded for that breach. In Olotu v Home Office [1997] 1 All ER 385 the Crown Prosecution Service was under a statutory duty to bring the plaintiff before the Crown Court before the expiry of a customary time limit. The Crown Prosecution Service failed to perform this duty with the result that the plaintiff spent much longer in prison on remand than she should have done. The Court of Appeal held that the plaintiff did not have a private law right to recover damages for the breach of the statutory duty. Lord Bingham CJ stated at 393f:

"In seeking to understand the intention of Parliament and the Secretary of State, regard must be paid to the object and scope of the provisions, the class (if any) intended to be protected by them, and the means of redress open to a member of such a class if the statutory duty is not performed."

And at 393j:

"It was no doubt assumed, as it was plainly intended, that the Crown Prosecution Service would perform its duty. If for any reason it did not, a defendant injured by its failure was doubtless expected to apply for a release on bail at once, such application being assured of success."

Mummery LJ stated at p 395j:

"It is a question of available remedies. The plaintiff was undoubtedly entitled to remedies in the criminal proceedings (bail) and in judicial review proceedings. The issue is whether she is entitled to an additional remedy against the CPS by way of a civil law claim for damages ….

There are strong indicators against the implied creation of a statutory tort of strict liability in a case such as this: the availability to the plaintiff of other remedies both in the criminal proceedings (bail) and in public law proceedings (habeas corpus and mandamus) …."

35. It is relevant to observe that in England, when an issue relating to denial to a person in police custody of access to a solicitor's clerk arose, the proceedings were brought by way of judicial review. In R v Chief Constable of Avon [1989] 2 All ER 15 the Chief Constable issued instructions to his police force to the effect that the character and antecedents of various unqualified clerks employed by the applicant, who was a solicitor, were such as to make their presence at police interviews with suspects undesirable. In subsequent instructions he further stated that it was his opinion that there would be very few occasions on which it would be appropriate to allow certain named clerks access to persons in custody. The applicant applied for judicial review of the Chief Constable's instructions, contending that they were in breach of paragraph 6.9 of the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers issued by the Secretary of State under section 66 of the Police and Criminal Evidence Act 1984. Paragraph 6.9 provided that a solicitor's clerk was to be admitted to a police station for the purpose of seeing a person held in custody unless a police officer of the rank of inspector or above considered "that such a visit will hinder the investigation of crime". The application was dismissed by the Divisional Court which held that since the Chief Constable had left the actual decision whether to deny the applicant's clerk's access to persons in custody to individual custody officers or their inspectors and had not imposed a blanket ban on the applicant's clerks, the Chief Constable's instructions were not contrary to paragraph 6.9. However it is clear that the Divisional Court accepted that it was appropriate for the applicant to seek to challenge the Chief Constable's instructions by way of judicial review.

36. The effectiveness of an application for judicial review by or on behalf of a person detained by the police and the expedition with which it can be heard has been frequently demonstrated in Northern Ireland. In R v Chief Constable of the RUC Ex p McKenna [1992] NI 116 the two applicants were arrested on the morning of 20 November 1991 on suspicion of involvement in acts of terrorism and were taken to a police station to be interviewed. They both made a request to consult with a solicitor but a detective superintendent deferred consultation pursuant to section 45 of the Northern Ireland (Emergency Provisions) Act 1991 which had replaced section 15 of the 1987 Act. On the evening of 20 November the applicants sought leave to apply for judicial review claiming (1) an order of certiorari to quash the decision by the superintendent to defer access to a solicitor and (2) an order suspending all interviews by the police with the applicants until the application for judicial review had been heard and determined. A judge in the High Court heard the ex parte application for leave to apply for judicial review that evening and granted leave. The judge ordered that the hearing of the motion on notice should take place the next day, 21 November, at 11 am and further ordered by way of interim relief that interviewing of the applicants by the police should be suspended until that time, unless the applicants were permitted to consult with their solicitor. The Chief Constable thereupon applied later on the evening of 20 November to the judge for an order revoking the suspension of interviews. On the hearing of that application the judge heard oral evidence from the detective superintendent who had deferred consultation and who was examined in chief and cross-examined. Having heard that evidence the judge made the order of revocation.

37. Thereupon the applicants applied to the Court of Appeal for an order that all interviews of the applicants by the police be suspended until the application for judicial review had been heard and determined. The Court of Appeal sat at 1.30 am on the morning of 21 November and heard oral evidence from the detective superintendent who was again cross-examined and the court ordered that all interviews with the applicants by the police be suspended until the determination of the judicial review.

38. A Divisional Court then sat at 11.45 am on 21 November to hear the application for judicial review but were informed by counsel for the Chief Constable that at 10 am that morning the decision had been taken by the detective superintendent to permit the applicants to consult with their solicitor. Thereupon the Divisional Court adjourned the hearing of the application and sat again on 9 December 1991 when it heard submissions on behalf of the Chief Constable that the applicants had not been entitled to seek judicial review in respect of the decision to delay access to the solicitor, which submissions were rejected by the court. It appears from the report at page 122 that in the weeks prior to 20 November a number of similar applications for judicial review had been brought by persons arrested as terrorist suspects and had been heard without delay: see also Re Russell's Application [1996] NI 310, 315 a-f.

39. In my opinion the speedy hearing of an application for judicial review (which could be brought on the grounds, inter alia, of a failure to give reasons for authorising a delay in complying with a request to consult a solicitor) is a much more effective remedy for a claimant to seek than the bringing of an action for nominal damages months or years after the period of detention has ended, and I do not doubt that judicial review can be employed as effectively in England as in Northern Ireland to uphold the rights of a suspect under section 58 of the Police and Criminal Evidence Act 1984. In many cases where judicial review is sought of an administrative decision cross-examination is unnecessary and is not permitted but there is power to allow it whenever it is necessary for justice to be done. In O'Reilly v Mackman [1983] 2 AC 237, 282G, Lord Diplock stated:

"your Lordships may think this an appropriate occasion on which to emphasise that whatever may have been the position before the rule was altered in 1977 in all proceedings for judicial review that have been started since that date the grant of leave to cross-examine deponents upon applications for judicial review is governed by the same principles as it is in actions begun by originating summons; it should be allowed whenever the justice of the particular case so requires".

In R (on the application of PG) v London Borough of Ealing (28 February 2002 CO/1640/2001) Munby J held that this power of the court to hear oral evidence and to direct cross-examination on judicial review has not been affected by Rule 54.16(1) of the Civil Procedure Rules 1998.

40. In the present case it is clear that an application for judicial review could have been made from an early stage in the appellant's detention. There may be cases where a person detained and denied access to a solicitor will himself face considerable difficulties in initiating an application for judicial review. But, in my opinion, there is little risk that a member of the family of such a person or a friend would be unaware of his detention and would be unable to instruct a solicitor on his behalf who could apply for judicial review if refused access to the person detained.

(ii) The need to prove harm

41. In my opinion damages are awarded for a breach of statutory duty in order to compensate a person for loss or damage suffered by him by reason of the breach of that duty. This principle was stated by Lord Bridge of Harwich (with whose speech the other members of the House concur) in Pickering v Liverpool Daily Post Plc [1991] 2 AC 370, 420A where he said that in order to award damages for breach of statutory duty

"it must, in my opinion, appear upon the true construction of the legislation in question that the intention was to confer on members of the protected class a cause of action sounding in damages occasioned by the breach. In the well known passage in the speech of Lord Simonds in Cutler v Wandsworth Stadium Ltd [1949] AC 398, 407-409, in which he discusses the problem of determining whether a statutory obligation imposed on A should be construed as giving a right of action to B, the whole discussion proceeds upon the premise that B will be damnified by A's breach of the obligation. I know of no authority where a statute has been held, in the application of Lord Diplock's principle, to give a cause of action for breach of statutory duty when the nature of the statutory obligation or prohibition was not such that a breach of it would be likely to cause to a member of the class for whose benefit or protection it was imposed either personal injury, injury to property or economic loss. But publication of unauthorised information about proceedings on a patient's application for discharge to a mental health review tribunal, though it may in one sense be adverse to the patient's interest, is incapable of causing him loss or injury of a kind for which the law awards damages."

42. Therefore in the present case where, not only did the appellant suffer no personal injury, injury to property or economic loss, but there was no evidence of any harm sustained by him and where judicial review would have afforded an effective and speedy remedy, I consider that the law should not award him nominal damages for the breaches of the duties imposed by section 15.

43. In its discussion of the methods of enforcing rules to ensure that a suspect in custody is not denied his rights the Royal Commission on Criminal Procedure stated in paragraph 4.122 of their Report (1981 Cmnd 8092):

"Some of the witnesses to us have been critical of civil action as a remedy. They point to the difficulty of proving breaches of the rules and to the cost of such actions, and some doubt whether they have any impact on the individual police officer, since any award of costs is borne by police funds. Nonetheless they provide a means by which those who suffer substantial inconvenience, distress or other disadvantage as a result of unjustified police activity may gain some form of redress. It is the only means of redress for those who are not prosecuted and consequently have no opportunity to raise the matter during a trial. As we have already noted, we see this applying particularly in the case of unlawful arrest or unjustifiably prolonged detention. The arrangements we propose for recording decisions during the course of custody may assist in proving cases of unlawful action in these and other respects, for example in relation to improper refusal of access to legal advice, and the civil courts may therefore prove to have a useful role to play in the application of the statutory rules."

(emphasis added)

In my opinion these observations suggest that the Commission considered that a person detained should recover damages where he has suffered harm, as I have sought to define it, but do not suggest that the Commission considered that there should be an award of nominal damages where no harm had been suffered as the result of a breach of a rule. Moreover the Commission does not appear to have considered judicial review and there is no indication in its Report that it took into account the effectiveness of judicial review as a remedy for a breach of the statutory rules.

44. In their judgment the Court of Appeal considered that the application of the principle stated by the House in Pickering led to the conclusion that there should be no award of damages for breach of the statutory duties imposed by section 15 unless the claimant had suffered personal injury, injury to property or economic loss. However, the right expressly given to a person held in police custody by section 15 was given to him for his protection and the Royal Commission considered that a person who suffered substantial inconvenience, distress or other disadvantage as a result of a breach of such a right should be able to obtain damages. The decisions of the House in R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] 1 AC 58 and X v Bedfordshire County Council [1995] 2 AC 633 are, in my respectful opinion, distinguishable as applying to statutory provisions which are regulatory as opposed to section 15 which is intended to give an express and specific right to a person in police custody. Therefore I am of opinion that in relation to a breach of section 15 it would be right to extend the principle stated by Lord Bridge and to regard harm, as I have defined it, as "loss or injury of a kind for which the law awards damages". But I consider that to award damages for an infringement of a statutory right which has resulted in no harm to the claimant and for which judicial review would have constituted an effective remedy would be an unjustifiable extension of the principle stated in Pickering. Moreover if damages were to be awarded when the claimant had suffered no harm, it is difficult to discern a principle which would enable a court to distinguish between a trivial breach for which no damages should be awarded and a breach of sufficient seriousness to call for an award of nominal or virtually nominal damages.

Constitutional rights

45. The appellant sought to rely on decisions in other jurisdictions where it has been held that damages can be awarded for breach of a right contained in a written constitution even though no actual damage or harm has been suffered by the claimant. In R v Home Secretary Ex p Leech [1994] QB 198 and R v Lord Chancellor Ex p Witham [1998] QB 575 certain rights possessed by citizens of the United Kingdom have been described as "constitutional rights" even though there is no written constitution in this country (I leave aside any question whether since 2 October 2000 by virtue of the Human Rights Act 1998 the European Convention for the Protection of Human Rights and Fundamental Freedoms can be regarded as, in part, a written constitution). However as Laws J observed in Witham the term "constitutional right" in the United Kingdom has a limited meaning. He said at page 581E:

"In the unwritten legal order of the British state, at a time when the common law continues to accord a legislative supremacy to Parliament, the notion of a constitutional right can in my judgment inhere only in this proposition, that the right in question cannot be abrogated by the state save by specific provision in an Act of Parliament, or by regulations whose vires in main legislation specifically confers the power to abrogate."

46. In the present case the appellant does not use the term "constitutional right" in this limited sense. He cites decisions in other jurisdictions with written constitutions as establishing that a breach of a "constitutional right" can give rise to a claim for damages without proof of damage or harm. In the sense in which the appellant seeks to rely on it, a "constitutional right" is a right which a democratic assembly representing the people has enshrined in a written constitution. As the Judicial Committee of the Privy Council stated in Mohammed v The State [1999] 2 AC 111, 123F-H:

"It will be recalled that in King v The Queen, at p 319, Lord Hodson observed that it matters not whether the right infringed is enshrined in a constitution or is simply a common law right (or presumably an ordinary statutory right). Their Lordships are satisfied that in King v The Queen, which was decided in 1968, the Board took too narrow a view on this point. It is a matter of fundamental importance that a right has been considered important enough by the people of Trinidad and Tobago, through their representatives, to be enshrined in their Constitution. The stamp of constitutionality on a citizen's rights is not meaningless: it is clear testimony that an added value is attached to the protection of the right."

See also Darmalingum v The State [2000] 1 WLR 2303, 2308 A-B.

47. Therefore where a right is contained in a written constitution it is accorded a special value by the courts and a breach of that right without damage or harm can lead to an award of damages. In this case which relates to a provision in an ordinary statute I consider that the decision of the House in Pickering affords clearer guidance than decisions in other jurisdictions relating to rights set out in written constitutions.

The claim for false imprisonment

48. I consider that there is no substance in the submission that the appellant was falsely imprisoned during his detention by the police. He was lawfully arrested pursuant to section 14(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1989 and after his arrest he was lawfully detained pursuant to section 14 (4) and (5) of that Act. I do not express an opinion on the correctness of the judgment which I delivered in the Divisional Court in Re Gillen [1988] NI 40 and on whether that case is distinguishable from ex parte Hague where the two persons detained were both serving sentences of imprisonment, but the alleged facts considered by the court in Gillen, where it was claimed that police officers seriously assaulted a person in custody to try to extract a confession from him, are far removed from the present case, and I consider that the premature authorisation and the breach by the police of section 15(9)(a) of the 1987 Act did not render the detention of the appellant unlawful.

The claim for a new innominate tort

49. It was submitted that if the appellant was not entitled to damages for breach of statutory duty or for false imprisonment, he would be left without a remedy for a breach of section 15, and therefore the common law should give him a cause of action for that breach. I do not accept this submission because if there is no right to recover nominal damages for a breach of statutory duty I consider that there is no reason for the common law to give a cause of action for such breach. Moreover, judicial review affords an effective remedy for a breach of section 15.

Accordingly for the reasons which I have given I would dismiss this appeal.

LORD MILLETT

My Lords,

50. Access to legal advice and the independence and integrity of the legal profession are cornerstones of a free society under the rule of law. They are guarantees against the practice of holding undesirables incommunicado, which is a hallmark of a totalitarian regime. Yet they are of little intrinsic value in themselves. For most people and for most of the time there is no need of them. What matters is that they should be there when needed. Their importance lies in the potential seriousness of the consequences if they are not.

51. The right of a person detained in custody on suspicion of an offence to have access to a lawyer at any stage of an investigation has long been recognised by our domestic law and is implicit in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Serious consequences may follow the denial of the right. A suspect's detention may be unjustifiably prolonged in breach of Article 5 of the Convention; or his defence to a criminal charge may be compromised with the result that he is deprived of his right to a fair trial in breach of Article 6. Although in criminal cases this Article applies only "in the determination of a criminal charge", it casts its shadow before it. It is engaged in relation to events which take place even before a charge is brought if they may affect the fairness of the trial. As the Strasbourg Court has observed, national law may attach consequences to the attitude of the accused at the initial stages of police interrogation which affect his subsequent defence; and accordingly Article 6 normally requires that the accused be afforded access to a lawyer at the earliest stages of his interrogation: see Murray v United Kingdom (1996) 22 EHRR 29, para 63. But the right, which is not set out expressly in the Convention, may be subject to restrictions for good cause. The question in every case is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing (ib). If it has not, the consistent case law of the Strasbourg Court is that Article 6 is not infringed.

52. Mr Cullen was detained in police custody in Northern Ireland on suspicion of having committed an offence under the provisions of the anti-terrorism legislation. By virtue of Section 15(1) of the Northern Ireland (Emergency Provisions) Act 1987 he was entitled at any time at his request to consult a solicitor privately. As my noble and learned friends Lord Bingham of Cornhill and Lord Steyn have observed, comparable statutory provisions apply generally to other offences, so the case is of general importance and is not limited to persons suspected of a terrorist offence.

53. Section 15 does not, however, give a detainee an unqualified right to request an immediate consultation with a solicitor. In prescribed circumstances a senior officer may lawfully delay compliance with his request. It is common ground that those circumstances were present in Mr Cullen's case. Accordingly, although his request was not acceded to straightaway and he was not allowed to see a solicitor for some 24 hours, his important substantive right to consult a solicitor was not unlawfully denied or delayed.

54. Denial or deferment of the right is attended by a number of procedural safeguards. Their importance varies. Section 15(2) entitles a detainee to be informed of his right as soon as practicable after he is detained. This is obviously of cardinal importance to the exercise of the right; but it was not infringed in Mr Cullen's case. Section 15(3) requires the detainee's request and the time at which it is made to be recorded in writing. This requirement is imposed in the interests of good administration but it does not affect the exercise of the right: it too was not infringed in Mr Cullen's case. But two procedural irregularities did occur. Each of the decisions to deny Mr Cullen's access to a solicitor was made in advance of his request; and he was not informed of the reasons for the decisions.

55. I am not myself persuaded that on the facts of this case the first of these was an irregularity. Each of the decisions must have been made very shortly indeed before the request, and since there was no time for circumstances to change in the meantime and no indication that the officer concerned did not maintain his opinion that access should be delayed, I would have thought that there was sufficient compliance with the statute. But little if any reliance was placed in argument on this failing which, if it was an irregularity at all, was trivial; and I need say no more about it.

56. The other failing cannot be so easily disposed of. The importance of the right to be given reasons for an adverse decision should not be underestimated, since in their absence the person affected may be unable to judge whether to challenge it. Moreover, as my noble and learned friends Lord Bingham and Lord Steyn have emphasised, the obligation to give reasons serves other important functions as well. On the other hand, the failure to give reasons had no adverse consequences in Mr Cullen's case, since good reasons could (and no doubt would) have been given if anyone had remembered to give them. There is no suggestion that the omission to do so was deliberate or in bad faith, which would be a very different case.

57. I do not think that the failure to give reasons rendered the decision itself unlawful. The one is not a condition of the other. But it does not matter. Whether or not the failure to allow immediate access to a solicitor was technically lawful, it was legally justifiable.

58. Mr Cullen's right to consult his solicitor, then, was briefly but justifiably delayed. Neither the delay itself nor the failure to explain the reasons for it occasioned him any prejudice or adversely affected his trial. The delay was very short and nothing of any consequence occurred during it. He made no admissions to the police until after he had enjoyed an unsupervised consultation with his solicitor. Thereafter he freely admitted his guilt, and in due course pleaded guilty to the charges against him. It is not and could not properly be alleged that Mr. Cullen was denied a fair trial, and if on a scrutiny of the proceedings as a whole the Strasbourg Court agreed that this was the case it would be bound to conclude that there was no breach of Article 6(1) or (3)(c) of the Convention: see Imbrioscia v Switzerland [1993] 17 EHRR 441.

59. Accordingly the question for decision is whether a person who is detained by the police and briefly but lawfully or at least justifiably denied access to a solicitor is entitled as of right as a matter of English law to damages (be they small or nominal) for a procedural irregularity made in good faith and which, though important, had no adverse consequences of any kind, neither prolonging his detention nor prejudicing the conduct of his defence and rendering his trial unfair, and causing him neither financial loss nor physical harm or mental distress.

60. Mr Cullen's primary claim is that he has a private law claim to damages for breach of statutory duty. Alternatively he contends that he is entitled to damages at common law for false imprisonment or for a new innominate tort.

False imprisonment

61. I can dispose of Mr Cullen's claim to damages for false imprisonment quite shortly. In my opinion it is hopeless. His detention was lawful at its inception, and nothing that took place thereafter made his continued detention unlawful. Compliance with the requirements of Section 15 is not a condition of lawful detention. Even if there were no good reasons for delaying Mr Cullen's consultation with his solicitor, the breach of duty would not have gone to the basis of his detention or the legality of the detention itself: see Ex parte Lynch [1980] NI 126; R v Deputy Governor of Parkhurst Prison Ex parte Hague [1992] 1 AC 58. In saying this I do not wish to cast any doubt on the correctness of the decision in Re Gillen [1988] NI 40, which was a very different case. The basis of the decision in that case was that the power to hold a suspect in detention may be exercised only for the purpose of lawful questioning; and that to exercise the power for a different and wrongful purpose makes the exercise of the power unlawful: see ib. p 53. By the same reasoning, I would have no difficulty in holding that a person may not be detained in custody in order to keep him incommunicado or to prevent him from participating in political activities of which the authorities disapprove.

Breach of statutory duty

62. In X (minors) v Bedfordshire County Council [1995] 2 AC 633 Lord Browne-Wilkinson emphasised that an action for breach of statutory duty is a private law action. He said at p 730 that:

"It is important to distinguish such actions to recover damages, based on a private law cause of action, from actions in public law to enforce the due performance of statutory duties, now brought by way of judicial review. The breach of a public law right by itself gives rise to no claim for damages."

63. Accordingly the question is whether the statutory right of person in custody to be afforded access to a solicitor (or to be informed of the reasons why such access is being denied or delayed) is a private law right enforceable by an action for damages. If it is, then damages are not discretionary; if loss is established, damages are as of right. But if it is a public law right, it is not enforceable by an action for damages, though it may be enforceable by other means which, prior to the HRA, did not lead to an award of damages.

64. At p 731 Lord Browne-Wilkinson summarised the principles which are applicable in determining whether a cause of action for breach of statutory duty exists. He said:

"The principles applicable in determining whether such statutory cause of action exists are now well established, although the application of those principles in any particular case remains difficult. The basic proposition is that in the ordinary case a breach of statutory duty does not, by itself, give rise to any private law cause of action. However a private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty. There is no general rule by reference to which it can be decided whether a statute does create such a right of action but there are a number of indicators. If the statute provides no other remedy for its breach and the Parliamentary intention to protect a limited class is shown, that indicates that there may be a private right of action since otherwise there is no method of securing the protection the statute was intended to confer."

65. In that case Lord Browne-Wilkinson was considering the effect of statutory provisions establishing a regulatory system or a scheme of social welfare for the benefit of the public at large. He observed that the House had not been referred to any case where a statute of this kind had been held to give rise to a private right of action for damages for breach of statutory duty. He acknowledged the fact that regulatory or welfare legislation affecting a particular area of activity did in fact give protection to individuals particularly affected by that activity, but said that such legislation was not to be treated as being passed for the benefit of those individuals but for the benefit of society in general. Such legislation may be contrasted with the kind referred to by Lord Diplock in Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173, 185:

"where upon the true construction of the Act it is apparent that the obligation or prohibition was imposed for the benefit or protection of a particular class of individuals, as in the case of the Factories Acts and similar legislation."

66. Although not referred to by Lord Browne-Wilkinson, the cases show that there is a further aspect to be considered before a cause of action for breach of statutory duty can arise. It is not enough that Parliament shall have imposed the duty for the protection of a limited class of the public. It must also be shown that breach of the duty is calculated to occasion loss of a kind for which the law normally awards damages. In Pickering v Liverpool Daily Post and Echo Newspapers plc [1991] 2 AC 370 Lord Bridge of Harwich said at p 420:

"But in order to fall within the principle which Lord Diplock had in contemplation it must, in my opinion, appear upon the true construction of the legislation in question that the intention was to confer on members of the protected class a cause of action sounding in damages occasioned by the breach. In the well known passage in the speech of Lord Simonds in Cutler v. Wandsworth Stadium Ltd. [1949] A.C. 398, 407-409, in which he discusses the problem of determining whether a statutory obligation imposed on A should be construed as giving a right of action to B, the whole discussion proceeds upon the premise that B will be damnified by A's breach of the obligation. I know of no authority where a statute has been held, in the application of Lord Diplock's principle, to give a cause of action for breach of statutory duty when the nature of the statutory obligation or prohibition was not such that a breach of it would be likely to cause to a member of the class for whose benefit or protection it was imposed either personal injury, injury to property or economic loss. But publication of unauthorised information about proceedings on a patient's application for discharge to a mental health review tribunal, though it may in one sense be adverse to the patient's interest, is incapable of causing him loss or injury of a kind for which the law awards damages. Hence Lord Diplock's principle seems to me to be incapable of application……."

67. In my opinion Mr Cullen's claim does not satisfy these tests. The right of access to a solicitor affords a vital protection for persons in custody, but I do not think that such persons constitute a limited class of the public in the sense in which that expression is used in the present context. It is a quasi-constitutional right of fundamental importance in a free society - indeed its existence may be said to be one of the tests of a free society - and like habeas corpus and the right to a fair trial it is available to everyone. It is for the benefit of the public at large. We can all of us, the innocent as well as the guilty, sleep more securely in our beds for the knowledge that we cannot be detained at any moment at the hands of the state and denied access to a lawyer.

68. If Mr Cullen had been deprived of access to a lawyer in a country with a written constitution on the Westminster model, his remedy would not lie in a private law action for damages, but in a motion for constitutional redress. In Maharaj v A-G of Trinidad and Tobago (No 2) [1979] AC 385 Lord Diplock explained that this was the means by which the subject could seek redress from the Crown for a contravention of his constitutional rights by an arm of the state. In an appropriate case redress could be made by an award of damages, but the state's liability, he said at p 399:

"is not a liability in tort at all; it is a liability in the public law of the state."

If the events of which Mr Cullen complains had occurred after the HRA had come into force, his proper course would have been to bring a claim under Section 8 of that Act.

69. These considerations alone persuade me that Mr Cullen's right of access to a lawyer was a public law right incapable of forming the basis of a private law action for breach of statutory duty. But they are reinforced by the reflection that denial of the right by itself (that is to say where it does not cause or prolong unlawful detention) is incapable of causing loss or injury of a kind for which the law normally awards damages. I agree with my noble and learned friend Lord Hutton that this may be wider than the formulation adopted by the Court of Appeal that the claimant must have suffered personal injury, injury to property or economic loss. But even on the wider formulation Mr Cullen suffered no damage. He was constrained to argue that an action for breach of statutory duty is actionable per se, that is to say without proof of damage. I do not think that the submission can stand with Lord Bridge's statement of principle in Pickering.

70. I would therefore reject Mr Cullen's claim to damages for breach of statutory duty.

A new innominate tort

71. Mr Cullen invites the House to create a new innominate tort in order to fill what he submits would otherwise be a serious lacuna in our law. Absent a cause of action for breach of statutory duty or false imprisonment, he says, he would be left without redress for a breach of a fundamental and quasi-constitutional right implicitly guaranteed by Article 6 of the Convention. In my opinion the submission fails for the reason already given, that the duty which it is sought to enforce is a public law duty. If there is a lacuna to be filled, it must be filled by expanding the scope of our public law remedies. There is no lacuna in private law. The common law provides adequate private law remedies in tort if the detention is or becomes unlawful (false imprisonment) or access to a lawyer is deliberately and improperly denied in bad faith (misfeasance in public office). I would decline the invitation to create an additional private law action for damages to deal with a case of inadvertent failure on the part of the authorities which occasions no loss or damage to the claimant.

72. Whether there is a need to fill a lacuna in our public law remedies to deal with such a situation can be judged by considering whether the HRA would have provided Mr Cullen with a claim for damages had the events in question occurred after the HRA had come into force. I shall return to this question later.

Judicial review

73. There is no doubt that an unlawful denial of access to a lawyer is remediable by judicial review. Moreover, the failure to give reasons for an adverse decision is a paradigm example of a procedural defect which can form the basis of a challenge by way of such review. Mr Cullen's difficulty is that he seeks an award of damages. The Court has power to award damages on an application for judicial review, but only if it is satisfied that the applicant would have been entitled to such damages if he had made the claim in a separate action instead of by way of judicial review: see Section 20 of the Judicature (Northern Ireland) Act 1978. In England Section 31(4) of the Supreme Court Act 1981 is to the same effect. Mr Cullen's claim cannot, therefore, be satisfied by this means.

74. I am, of course, sensible of the practical difficulties which may face an applicant for judicial review who has been denied access to a solicitor, particularly when he has not been told why. This may well mean that he cannot bring proceedings at the time and must be content with doing so after the event. But I am at a loss to understand why it should be thought that this is reason for awarding compensation for a loss which he has not suffered. It is hardly a sufficient answer to say that the damages should be modest when there is no obvious justification for awarding any.

Section 8 of the HRA

75. Mr Cullen cannot bring proceedings under Section 8 of the HRA since the HRA was not in force when the events giving rise to his claim took place. But it is helpful to test the validity of his claim that there is a lacuna in our public law by considering whether he would have been entitled to recover damages by proceedings under the Section if those events occurred today.

76. Section 8 of the HRA needs to be read with Section 6(1). This provides:

"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right."

So far as material Section 8 provides

"(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.

(3) No award of damages is to be made unless, taking account of all the circumstances of the case……the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.

(4) In determining (a) whether to award damages, or (b) the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention. (6) In this section - ….. 'unlawful' means unlawful under section 6(1)."

77. If Mr Cullen were to bring his claim for damages under Section 8 (assuming that this was open to him) he would face two insuperable difficulties. The first is that, as I have already pointed out, the police did not act in a way which was incompatible with his Convention rights. They did not unlawfully deprive him of his liberty contrary to Article 5, and their refusal to allow him immediate access to a lawyer (and still less their failure to advise him of the reasons for doing so) did not did not deprive him of a fair trial contrary to Article 6. It follows that there is no basis for a claim to damages under Section 8 on the ground that the police acted unlawfully under Section 6.

78. The second difficulty stems from the fact that the court is directed by Section 8 to take account of the principles applied by the Strasbourg Court in relation to an award under Article 41 of the Convention. The Law Commission has published an article by article analysis of awards by the Strasbourg Court of damages by way of just satisfaction: see Part VI of Damages Under the Human Rights Act 1998 (Law Com no 266), helpfully summarised by Sir Robert Carnwath CVO, then Chairman of the Law Commission, in his Grotius Lecture for 2000.

79. The Law Commission reported that the most striking feature of Strasbourg case law to lawyers from the United Kingdom is the lack of clear principles as to when damages should be awarded and how they should be measured. This may be because within Europe there are divergent traditions as to the assessment of damages. German and Dutch systems, like ours, have developed detailed rules for this purpose. French and Belgian courts, by contrast, proceed relatively empirically, particularly in matters of causation. As a result, one commentator has written of the Strasbourg jurisprudence:

"It is rare to find a reasoned decision articulating principles on which a remedy is afforded."

(see Dinah Shelton "Remedies in International Human Rights Law" (1999) p 1.)

80. In this situation, we may have to develop our own jurisprudence, while keeping an eye open on the case law of the Strasbourg Court to ensure that we do not stray too far from the principles which that Court may lay down. There is, of course, no Convention reason why we may not be more generous than the Strasbourg Court. The United Kingdom's duty is to ensure that the complainant receives not less than "full reparation" for the breach of his Convention rights; the Convention leaves us at liberty to award him more. Whether Parliament has given the Court power to do so is another matter.

81. According to the case law of the Strasbourg Court, the status of "victim" may exist even where there is no damage; but there can be no question of compensation where there is no pecuniary or non-pecuniary damage to compensate: see Wassink v Netherlands [1990] ECHR 1253/86. Moreover, as the Law Commission reported at para 4.74, awards of nominal damages have not featured in the practice of the Strasbourg Court, and in a number of cases the Court has explicitly refused to make such an award. Where neither pecuniary nor non-pecuniary loss is established, the decision of the Court that the conduct complained of constitutes a breach of a Convention right is generally regarded as "sufficient just satisfaction" for the breach. I agree with the conclusion of the Law Commission that, given the power of our domestic courts to make an appropriate declaration under the HRA, there seems little reason for making an award of nominal damages. Indeed, a former Law Commissioner has suggested that, since nominal damages at common law perform the same function as a declaration in acknowledging that the defendant's conduct was wrongful, they should be abolished: see Professor Andrew Burrows QC Remedies for Torts and Breach of Contract (2d ed 1994) pp 269-270.

82. The practice of the European Court is therefore inconsistent with an award of either modest or nominal damages in a case where neither pecuniary nor non-pecuniary damage is established. It follows that such an award cannot be justified by a supposed need to deter the authorities of the state or to vindicate a Convention right.

83. This does not mean that we have no power to make such an award for those purposes, but it does mean that we should be departing from the jurisprudence of the Strasbourg Court in doing so. I am firmly of the view that we should not take such a course. Moreover, I doubt that it would be consistent with Section 8(3) of the HRA to do so.

84. Section 8(3) authorises the Court to award damages for breach of a Convention right only where the Court is satisfied that this is necessary. The significance of this limitation should not be overlooked. It means that Parliament contemplated that there would be cases where a breach of a Convention right did not automatically give rise to an award of damages, and this is inconsistent with the notion that such an award is necessary to vindicate the right. The most obvious case where an award of damages is not necessary is where there is no damage to compensate. In such a case it is not necessary to conform to the principles laid down by the Strasbourg Court. It is not necessary in the interests either of corrective or of distributive justice. Nor is it necessary to make the right effective. Where the right is contested, a declaration is sufficient; it is not necessary to give the claimant a windfall, however modest, in addition. Moreover, it would seriously undermine public confidence in the administration of criminal justice if an offender who pleaded guilty to a criminal offence and received an appropriate sentence, after having already had the costs of his defence funded by the state, were in addition to receive a monetary award because of an error on the part of the police which had no adverse consequences to him. I think that the public would see the payment as rewarding the offender for his offence, and would ridicule a justice system which tended to be more solicitous of the offender than of his victim.

Conclusion

85. For these reasons, and in agreement with my noble and learned friend Lord Hutton, I would dismiss this appeal.

LORD RODGER OF EARLSFERRY

My Lords,

86. I have had the privilege of considering the speeches of my noble and learned friends Lord Hutton and Lord Millett in draft. I agree with them and, for the reasons they give, I too would dismiss the appeal. In brief, while the duty of the police under section 15(9)(a) of the Northern Ireland (Emergency Provisions) Act 1987 to tell a detainee, such as the appellant, the reason for authorising a delay in complying with his request for access to a solicitor is specific, it is a public law duty. Its principal purpose is to ensure that, in an appropriate case, a detainee can challenge an improper decision under subsection (5) to authorise a delay. The appropriate civil remedy for its breach is by judicial review. Having regard to the guidance given by Lord Bridge of Harwich in Pickering v Liverpool Daily Post [1991] 2 AC 370, 420A - D, I see no basis for concluding that section 15(9)(a) is intended to give a detainee, such as the appellant, a private law cause of action sounding in damages where, as here, he has suffered no harm as a result of its breach. I add two footnotes.

87. The right of a detainee to consult a solicitor under section 15 of the 1987 Act and equivalent provisions in other statutes is clearly of great importance in the overall legislative scheme which they establish for the fair investigation of crime. In conformity with the approach of Laws J in R v Lord Chancellor ex parte Witham [1998] QB 575, 581D - F, however, I would hesitate to apply the adjective "constitutional" to a statutory right of that kind. In the case of section 15 that hesitation is reinforced by the fact that, within the United Kingdom, Parliament has conferred different rights on detainees in Northern Ireland and England and Wales on the one hand, and in Scotland on the other. In particular, in Scotland those detained for questioning by the police have no right to consult a solicitor. This difference may well be explicable by reference to the much more restricted powers that are given to the police in Scotland to detain people for questioning. In the ordinary case a person can be detained for that purpose for a maximum of six hours, with no possibility of any extension: section 14(2) of the Criminal Procedure (Scotland) Act 1995. Within that scheme, in terms of section 15(1)(b) the detainee is entitled

"to have intimation of his detention and of the police station or other premises or place sent to a solicitor and to one other person reasonably named by him, without delay or, where some delay is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders, with no more delay than is so necessary."

So, broadly speaking, in Scotland detention is limited to six hours and the person detained has a qualified right to have intimation of his detention sent to a solicitor, while in the other jurisdictions detention can go on for much longer but detainees have a qualified right to consult a solicitor. As it is entitled to do, Parliament has thus struck the balance differently and established two distinct systems of powers and rights within the same overall constitutional framework of the United Kingdom. In these circumstances, in considering the proper approach to the interpretation of section 15(9)(a) of the 1987 Act, I have not been assisted by the constitutional jurisprudence of other countries.

88. Since detainees have no right to consult a solicitor in Scotland, it follows, of course, that at trial the Crown regularly leads evidence of incriminating statements made by the accused while he was detained and before he had consulted a solicitor. Inevitably, when the Scotland Act 1998 made it possible for accused persons to invoke their rights under the European Convention on Human Rights and Fundamental Freedoms in the Scottish courts, they mounted challenges on the basis that, in itself, the leading of such evidence constituted a breach of their rights under article 6. In rejecting these challenges, the High Court of Justiciary has adopted the approach envisaged by Lord Millett and has held that the failure to grant an accused person access to a solicitor before or during questioning by the police does not, in itself, involve a breach of article 6 unless it can be said that, as a result of the failure, he did not have a fair trial. See Paton v Ritchie 2000 JC 271 and Dickson v HM Advocate 2001 JC 203, 224 - 225 per Lord Macfadyen. Here, as Lord Millett points out, even if the Human Rights Act 1998 had applied, the appellant would have been unable to show that his article 6 right to a fair hearing had been impaired by the refusal of the police to allow him immediate access to a solicitor - far less by their failure to tell him their reasons for doing so.