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