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Cite as: [2006] EWHC 2396 (Admin)

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Neutral Citation Number: [2006] EWHC 2396 (Admin)
Case No. CO/7323/2006


Royal Courts of Justice
London WC2
5 September 2006

B e f o r e :




Computer-Aided Transcript of the Stenograph Notes of
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Mr Faisal Osman (instructed by Messrs Ahmed & Co ) appeared on behalf of the CLAIMANT.
Mr Matthew Holdcroft (instructed by Greater Manchester Police ) appeared on behalf of the DEFENDANT.



Crown Copyright ©

    Mr Justice Beatson:

  1. 1 This application for permission to apply for judicial review was launched on 4th September 2006 following and pursuant to the orders of Underhill J on 2nd and 3rd September. It seeks to quash the decision of the Greater Manchester Police to exclude Mr Iqbal Ahmed, a solicitor, from acting for and advising Mr Omar Malik, a detainee in custody under section 41 of the Terrorism Act 2000 . Mr Malik was arrested at 6.00am on 2nd September, last Saturday, suspected of an offence under section 41 , which is the commission, preparation or instigation of acts of terrorism. He is currently being held at the Pendleton Police Station in Salford, Manchester. Mr Iqbal Ahmed was contacted by the custody sergeant shortly after 8.00am and asked to represent Mr Malik.
  2. The senior investigating officer, Detective Superintendent Minshall, knew from his involvement with the detention of another person, Mr Habib Ahmed, that Mr Iqbal Ahmed had been present at a conference, described in Detective Superintendent Minshall's statement dated 4th September as a public event which appears to be an Al-Mojahedeen recruitment drive featuring a number of public speakers.
  3. Detective Superintendent Minshall's witness statement refers to a partly-destroyed video recovered from Mr Habib Ahmed's home in which it is stated that Mr Iqbal Ahmed is to be at the event. Detective Superintendent Minshall states that he was told of this after the reconstruction of part of the video on 1st September. Prior to that date Mr Iqbal Ahmed had been present at Mr Habib Ahmed's interviews as his legal representative. After, Detective Superintendent Minshall became aware of the reference to Mr Iqbal Ahmed on the video, enquiries were made of Mr Iqbal Ahmed. It is agreed that Mr Iqbal Ahmed admitted to being at the event and to giving a lecture in relation to interviewing and detention and relevant legal matters concerning terrorism.
  4. A witness statement made by Mr Iqbal Ahmed this morning states that he was told that he was on the tape concerned, but was not told precisely why he was being excluded. Detective Superintendent Minshall states that he considers the tape to be of potential evidential value and a specific exhibit in any subsequent prosecution, in particular because of the apparent attempt to destroy it (see paragraph 9). He states that in relation to Mr Habib Ahmed he consulted the counter-terrorism section of the Crown Prosecution Service, who had concerns about conflicts of interest and potential grounds for appeal from any subsequent conviction, but had advised him that conflict of interest is an issue that needs to be declared by the solicitor. It is a matter for him alone.
  5. Detective Superintendent Minshall states that he carried out some research himself and looked at Rule 21.12 of the Solicitors' Code of Practice, which states that a solicitor must not accept instructions to act as an advocate if it is clear that the solicitor will be called as a witness for the client. Paragraph 14 of his statement continues:
  6. "My view was that either the defence or the prosecution may seek to interview people present at that meeting [the meeting seen on the video tape] with a view to calling them as witnesses as to the nature of the event etc. It was also the very early stages of this major national security investigation with international implications, and I was unaware of Mr Iqbal Ahmed's potential involvement or association with Mr Habib Ahmed."

  7. Paragraph 15 states that Detective Superintendent Minshall consequently took the decision to exclude Mr Iqbal Ahmed from continuing to represent Mr Habib Ahmed and informed his officers, asking them to communicate his decision to Mr Iqbal Ahmed.
  8. Detective Superintendent Minshall exhibits to his statement part of the custody record concerning Mr Habib Ahmad, which records as follows in relation to 18.20 on that day:
  9. "It has come to the attention of the SIO that the D/P's solicitor Mr Ahmed has participated in a conference, a video tape of which has been found at the D/P's address. The conference and the video are considered by their content to be inflammatory with regard to terrorist content. Mr Ahmed admits to being at the event and giving a lecture at the event in relation to interviewing and detention and relevant law matters concerning terrorism. It is felt due to the possibility of association of Mr Ahmed and persons present at the event his removal is appropriate. This decision has been explained to Mr Ahmed who has been given opportunity to explain the reasoning to his client. The disclosure of these matters to Mr Ahmed have been recorded on tape and documented on the custody record as disclosure interviews to Mr Ahmed."

  10. It is accepted that Mr Iqbal Ahmed then arranged for Mr Mark Grogan, a solicitor from a different firm, to take over the function that he had been exercising in relation to Mr Habib Ahmed.
  11. In his witness statement Mr Iqbal Ahmed sets out the decision he made after consulting Mr Osman who appears today. He states, as I have noted, that he was not told precisely why he was being excluded. It is stated in Mr Osman's skeleton argument, but not in the witness statement, that after the matter had arisen Mr Iqbal Ahmed contacted the Law Society and sought advice, speaking to a Mr Francis, a senior ethics adviser. It is stated in the skeleton argument that Mr Iqbal Ahmed assessed his position and concluded that on the facts his professional position was not and could not be compromised. It is also stated that the Law Society so advised him, and stated that he was free to continue as Mr Habib Ahmed's legal adviser, but that he excused himself and made the arrangements for Mr Grogan to take over as a matter of caution.
  12. The skeleton argument states that after this Mr Ahmed was told that the interviewing officers wanted him totally out of the equation, and that it was only then that he asked to see his client, Habib Ahmed. It is stated in the skeleton argument and repeated in Mr Iqbal Ahmed's statement that his request was allowed with what appeared to him to be some reluctance because he was left waiting for some time. Detective Superintendent Minshall, however, states that Detective Constable Hayden, who was there, took great exception to the comment in the skeleton argument that Mr Iqbal Ahmed was only allowed to see his client with reluctance.
  13. I now come to Mr Omar Malik's position. There is a note in Mr Malik's custody record, which is also in part exhibited to Detective Superintendent Minshall's statement timed at 12.25 on 2nd September. This states that Mr Iqbal Ahmed was spoken to by Inspector 134398 of the following decision made by the SIO:
  14. "Having reviewed the circumstances of being advocate to Prisoner A legal clarification has been sought as to whether or not Mr AHMED may be a potential witness. The SIO takes the view that this could be a possibility in the future. Implications may be drawn from the links between all suspects in custody at this time. This has been introduced at this stage to protect the D/P's rights and entitlements and in the interests of gathering best evidence from the interview process."

  15. Detective Superintendent Minshall deals with this in paragraph 20 and the following paragraphs of his statement. In paragraph 22 he states that on the basis that he was now investigating a specific conspiracy, evidence against one is potential evidence against all. He was of the view that Mr Iqbal Ahmed could not act for any of the three detained persons and he made the decision that he should be excluded. He states that he could not give further information to Mr Iqbal Ahmed, since the material on which he had based his decision would only be potentially released as part of pre-interview disclosure to the solicitor acting for the detained persons at the appropriate time. Paragraph 23 reflects and explains the entry in the custody record which I have just set out. Paragraph 23 states:
  16. "I did, however, ask officers to make sure that Iqbal Ahmed was informed of my decision. The entry on Omar Malik's custody record states that he was told that he was excluded because Mr Iqbal Ahmed was a potential witness, and that implications may be drawn from the links between all suspects in custody at the time."

  17. The custody record shows at 12.29 that an officer attended Mr Malik's cell and informed him that at that time the police were in discussion with his solicitor regarding his suitability. The custody record states:
  18. "I asked D/P if he was happy with this and he raised no issues other than asking what time it was."

  19. At 16.05 the record states that an officer attended Mr Malik's cell and informed him that no decision had yet been made regarding his solicitor. The record states:
  20. "He has asked if a decision will be made today, as he wishes to speak and obtain legal advice."

  21. Mr Iqbal Ahmed's witness statement states in paragraph 9 that he was not given any opportunity to discuss the matter with Mr Malik, he was not told of the evidence against him, and was certainly in no position to assess the potential for conflict. He also states that he does not understand whether there is such an issue over and above the fact that he is a co-suspect with Mr Habib Ahmed. Paragraph 12 of his statement states that he has never been told that the tape concerned forms part of the case against Mr Malik.
  22. The statement does not deny that he was told what is recorded in the custody record at 12.25. I comment on this because in the skeleton argument it is said that after Mr Ahmed was informed that Detective Superintendent Minshall had directed that the interviewing officers bar his attendance at the interviews, Mr Ahmed asked the officers to provide written reasons as to their refusal in allowing him access, and the officers stated that they would get the CPS to draft them. The skeleton argument also records that at 13.07 he repeated his request to be provided with reasons and that request was denied.
  23. In view of what is in the witness statement by Detective Superintendent Minshall and the absence of any response to this, the court is entitled to conclude that, while he was not provided with written reasons, the contents of the custody record are not disputed. I emphasise this because when the matter came before Underhill J, as is clear from the learned judge's observations, it was on the basis that no reasons were given for denying Mr Ahmed the opportunity to advise Mr Malik.
  24. Before turning to the submissions, I set out the relevant law. I do so because although at this stage of my judgment I am still considering whether the case is arguable, rather than give a short judgment as to arguability and, if the claimant is successful on that, return to whether the substantive case is made out, I shall consider both together and reach a conclusion in the light of what will be a much fuller judgment than would be given if I was purely considering the permission stage.
  25. I start with section 58 of the Police and Criminal Evidence Act 1984 . By section 58(1) :
  26. "A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time."

  27. Section 58(12) provides that nothing in this section applies to a person arrested or detained under the terrorism provisions, that is the provisions contained in the Terrorism Act 2000 , as amended by the Terrorism Act 2006 .
  28. Next I look at two codes of practice under the Police and Criminal Evidence Act . First, code C, which deals with detention and questioning in general, and then code H which deals with detention and questioning of persons under section 41 of and Schedule 8 to the Terrorism Act 2000 .
  29. Under code C, section headed "Right to legal advice", it is stated at 6.1 that:
  30. "Unless Annex B applies, all detainees must be informed that they may at any time consult and communicate privately with a solicitor, whether in person, in writing or by telephone, and that free independent legal advice is available from the duty solicitor."

  31. Paragraph 6.6 provides that, save in the conditions specified in that paragraph:
  32. "A detainee who wants legal advice may not be interviewed or continue to be interviewed until they have received such advice …"

  33. The exceptional circumstances include reasonable grounds by an officer of superintendent rank or above that the delay might lead to interference with or harm to evidence connected with an offence, to other people, to serious loss or damage to property, and where the solicitor the detainee has nominated or selected cannot be contacted, or having been contacted has declined to attend.
  34. In code H, paragraph 6.1 states that:
  35. "Unless Annex B applies, all detainees must be informed that they may at any time consult and communicate privately with a solicitor, whether in person, in writing or by telephone, and that free independent legal advice is available from the duty solicitor."

  36. Paragraph 6.4 states that:
  37. "The exercise of the right of access to legal advice may be delayed exceptionally only as [provided] in Annex B."

  38. Paragraph 6.5 empowers a Commander or an Assistant Chief Constable to direct that under the Terrorism Act Schedule 8 :
  39. "… a detainee may only consult a solicitor within the sight and hearing of a qualified officer. Such a direction may only be given if the officer has reasonable grounds to believe that if it were not, it may result in one of the consequences set out in TACT Schedule 8.

  40. The notes for guidance to code H provide, in 6B:
  41. "A detainee who asks for legal advice should be given an opportunity to consult a specific solicitor or another solicitor from that solicitor's firm or the duty solicitor. If advice is not available by these means, or they do not want to consult the duty solicitor, the detainee should be given an opportunity to choose a solicitor from a list of those willing to provide legal advice. If this solicitor is unavailable, they may choose up to two alternatives. If these attempts are unsuccessful, the custody officer has discretion to allow further attempts until a solicitor has been contacted and agrees to provide legal advice. Apart from carrying out these duties, an officer must not advise the suspect about any particular firm of solicitors."

  42. Annex B to code H deals with delays under the Terrorism Act . There is no suggestion that in the present case the conditions justifying such a delay were met or that, if they are arguably met, there is no indication that the senior investigating officer sought to implement them. The objection to Mr Iqbal Ahmed was an objection to him, not an objection to access to legal advice. Indeed, Mr Malik was advised by the duty solicitor, who represented him before the District Judge and was present at his interviews yesterday.
  43. Mr Malik is not being interviewed today because of what occurred when this matter came before this court yesterday. A preliminary objection was taken by Mr Holdcroft, on behalf of the Police, to the judicial review proceedings on the basis that Mr Malik had not instructed them to be brought. It was submitted that they are brought at the instigation of Mr Iqbal Ahmed, who is Mr Osman's instructing solicitor. It is accepted that Mr Malik requested Mr Iqbal Ahmed to be his lawyer while he was being questioned. That request having been refused as a consequence of the decision by the Greater Manchester Police, it is arguable that the only way of Mr Iqbal Ahmed fulfilling the instructions that he had been given was to seek to challenge the decision, and the only method of challenging it was in judicial review proceedings.
  44. In view of what Mr Holdcroft told me about told me about Mr Malik's representation since the refusal, I, however, adjourned the matter to enable two questions to be put to Mr Malik. The first was whether he wished these judicial review proceedings to be launched on his behalf. The second was whether, in substance, the interviews having commenced with him being represented by the duty solicitor, he was content to continue with the duty solicitor or did he prefer Mr Iqbal Ahmed. I was informed by Mr Osman and Mr Holdcroft this morning that the answer to both questions was "yes", and by Mr Holdcroft that in consequence of that the duty solicitor had withdrawn and the interview had been suspended.
  45. Returning to annex B on delay of access to legal advice, the notes to the guidance state:
  46. "A decision to delay access to a specific solicitor is likely to be a rare occurrence and only when it can be shown the suspect is capable of misleading that particular solicitor and there is more than a substantial risk that the suspect will succeed in causing information to be conveyed which will lead to one or more of the specified consequences."

    The specified consequences concern interference with evidence, physical injury to persons, alerting of others who have not been arrested but are suspected, hindering the recovery of property, and interference with the investigation in general.

  47. As far as the law is concerned, both parties relied on the decision in R v Chief Constable of the Northumbria Constabulary, ex parte Thompson, a decision of Gibbs J on 20th July 2000 , reversed by the Court of Appeal [2001] EWCA Civ 321 Mr Holdcroft also relied on R v Chief Constable of Avon and Somerset, ex parte Robinson [1989] 1 WLR 793 . Ex parte Thompson concerned a decision to bar a probationary legal adviser from attending as a legal representative. The relevant circumstances were that the probationer, Mr Thompson, had been a police officer who was currently appealing against disciplinary proceedings and punishment which had led to his dismissal from the force for a serious charge of misconduct. The issues before the Court of Appeal were set out in paragraph 2 of the judgment of Lord Woolf:
  48. "… first the extent to which the police are entitled to object to a particular PSR giving advice to a person detained in a police station on the grounds that he is not a suitable person to act as an advisor. Second, whether the Chief Constable can make a blanket as opposed to a specific order excluding a PSR from attending police stations within the area for which he is responsible."

    It is the first of these issues with which I am concerned.

  49. Gibbs J dismissed Mr Thompson's application, holding that the significant factor in that case was the fundamental inability of a person in Mr Thompson's position from fulfilling the independent role required for the benefit of suspects and to which suspects are entitled. The question, he said, therefore:
  50. "… is whether the admission of the applicant can reasonably have been said to hinder the investigation of crime." (see paragraph 41 of the judgment)

  51. The Court of Appeal allowed Mr Thompson's appeal. It approved the decision of the Divisional Court in R v Chief Constable of Avon and Somerset, ex parte Robinson , in which Mann LJ gave the judgment of the court. Mann LJ stated, at page 795, that:
  52. "It is apparent that there is only one ground on which the clerk or legal executive can be excluded from the police station and that is that his visit would hinder the investigation of crime. That, of course, is a matter for the subjective judgment of the officer being an officer of the rank of inspector or above. However, although there is but one express reason justifying exclusion there is a prefatory question which must be asked, that is to say, is the person who seeks admission 'a clerk or legal executive?'"

  53. After considering that, his Lordship continued:
  54. "If a person is ostensibly capable of giving advice then we do not think that the police could refuse admission on the basis that the quality of the advice would be poor. We see no objection to the police forming a view upon capacity but we think it would be unfortunate if the police were also to form a view upon quality."

  55. The Court of Appeal in ex parte Thompson accepted that what was important in the earlier case was that Mann LJ attached importance to the fact that the only basis upon which a clerk or legal executive could be excluded was that his visit would hinder the investigation of crime. The Court of Appeal stated, reflecting the PACE code, which had been amended in the light of Mann LJ's judgment, that it would be:
  56. "… an unusual and significant step for the police to interfere in the relationship between a person in custody and his legal advisor. How a legal advisor chooses to provide advice is primarily for him to determine. It is only where there is significant interference with an investigation that the police should intervene." (see paragraph 18).

    The court stated that:

    "Generally, it is for the solicitor to deal with any faults on the part of his representative. If he does not take the necessary action then it is primarily for the profession to ensure that proper standards are maintained."

  57. The court stated that the interest of the police is catered for by the police being able to complain to the Law Society.
  58. In paragraph 23 Lord Woolf stated that the responsibility for providing independent advice is that of the solicitor and not the police. The responsibility of the solicitor is to provide access to that advice. His Lordship continued:
  59. "… it was not the police's responsibility to form a judgment as to whether Mr Thompson was sufficiently independent. This was Mr Thompson's employer's responsibility. Mr Milford [QC, who appeared on behalf of the force] made the point that if the advice was not independent, at the trial a defendant could seek to rely on this."

  60. Lord Woolf stated that he appreciated this could happen, but also that:
  61. "… the Code limits the ability of the police to intervene to situations where the investigation is being hindered. The interference relied on by Mr Milford would not be with the investigation of crime but the prosecution of crime. Furthermore the fact that a defendant may make a complaint of this sort underlines the importance of the police having no responsibility for the quality of the advice."

  62. In short, the Court of Appeal held that if the issue was the independence of the proposed legal adviser, that was a matter between the legal adviser and the client. They held that the learned trial judge had fallen into error in concluding, from what he considered was an absence of independence, that there was an interference with the investigation of crime.
  63. Finally, I refer to R v Samuel [1988] QB 615 , which was a case (as were Thompson and Robinson ) under section 58 of the Police and Criminal Evidence Act . In Samuel the request to see a solicitor was refused by a superintendent, who certified that there was a likelihood that other suspects to be arrested would be inadvertently warned. The appeal against conviction was allowed by the Court of Appeal, Criminal Division. Broadly the ratio of the court's decision was that police officers must assume that solicitors will act with professional integrity. It was only where there were reasonable grounds that an experienced and respected solicitor would not so act, that the discretion could be exercised.
  64. The claimant has not relied on any human rights points (see section 4 of the claim form). In truth, although Article 6 and in particular Article 6(3)(i) — which states that everyone charged with a criminal offence has the right to defend himself in person or through legal assistance of his own choosing — approaches the matter in different words from the domestic legislation, they broadly follow the same principles. It is recognised that the right of access to a solicitor is not limited to the occasion after charge. It has been held to include earlier stages. But it is also the case (see, for example, the decision of the Commission in Bonzi v Switzerland (1978) 12 DR 185 ) that it cannot be maintained that the right to confer with one's counsel and exchange confidential instructions or information with him is subject to no restriction whatsoever.
  65. As far as the importance of having the lawyer of a detained person's choice is concerned, the importance of this can be seen in the cases of Schoenberger v Switzerland (1989) 11 EHRR 202 and Imbroscia v Switzerland (1994) 17 EHRR 441 , at paragraph 36. In the former, the refusal of Swiss prosecutors to pass a letter by a lawyer who had not been formally instructed by the suspect but had been instructed by the suspect's wife was held to be a breach of Article 6. The court stated that these contacts amounted to preliminary steps intended to enable the applicant to have the benefit of the assistance of a defence lawyer of his choice .
  66. The claimant concedes, through Mr Osman, that there comes a point when the police are entitled to exclude a solicitor chosen by a detained person. Mr Osman did not resist the proposition that if there was a prospect of impending charges against the solicitor himself, he could not act because he would not be able to carry out his functions. He also conceded that if it can be shown that the solicitor's acting would hinder the investigation of crime, then again the solicitor cannot act. He, however, relied on the references in the authorities to the term "significant hindering".
  67. Mr Osman argued that it was not reasonable for Detective Superintendent Minshall and the defendant to so conclude in this case in respect of Mr Iqbal Ahmed. He argued that it was not reasonable to conclude that Mr Iqbal Ahmed might be a witness simply because of his presence at the meeting. He was not seen to be present on the video shown, although he was referred to. His presence was to be at a separate part of the meeting, in which lawyers were going to speak on legal matters.
  68. Mr Osman submitted that it is not suggested Mr Ahmed had any ability to say anything about the meeting other than that it took place. He did not attend until the end of the speeches shown on the video, and it is not realistic to suppose that he would give the prosecution a witness statement. Mr Osman noted that it had not been suggested to him that he would be required to give a witness statement, and in any event there can be no compulsion, in the absence of a witness summons, for him to do so. He also submits that there is no suggestion that Mr Iqbal Ahmed is to be a witness for Mr Malik. The submission is that his mere presence at the meeting cannot reasonably be seen as precluding him from acting on behalf of a detainee who has requested his services.
  69. Mr Osman relied quite heavily on the difference between a qualified solicitor and a trainee drawn in the PACE Code of Practice and on the fact that the decision in Thompson concerned a trainee. He submitted that there can be no question that Mr Iqbal Ahmed would disrupt or interfere with the interview. He had acted with no complaint in ten interviews with Mr Habib Ahmed before he withdrew, following the objection made to him. Detective Superintendent Minshall's statement does not state that he acted improperly in those interviews. Mr Osman submitted that the mere fact that Mr Iqbal Ahmed had advised Mr Habib Ahmed does not preclude him from acting for Mr Malik. The issue of conflict has to be determined on an individual basis by the solicitor involved, and the suggestion that he might be associated with Mr Habib Ahmed is not one based on any evidence. There is no suggestion that they are related or that they are associated in any other way.
  70. In short, Mr Osman relied on the fundamentality at common law of a detained person having the ability to have independent legal advice of his choice. There is no question here of the unavailability of the adviser of choice. In these circumstances, he submitted, the court must carefully scrutinise any attempt by the police and prosecuting authorities to restrict the availability of advice to a detained person.
  71. In so far as Mr Iqbal Ahmed's sensitivity to his position with Mr Habib Ahmed in the light of the video led him to withdraw, leaving aside the contention that he would have been barred in any event, Mr Osman argues that relates to an issue about conflict of interest or potential conflict of interest. It was unreasonable and quite wrong for Superintendent Minshall to use that fact as a reason to bar Mr Iqbal Ahmed from representing Mr Malik.
  72. On behalf of the Greater Manchester Police, Mr Holdcroft submitted that what is fundamental at common law is access to independent legal advice, and that after Mr Iqbal Malik was denied access to Mr Malik, Mr Malik had the benefit of such advice from Mr Boodaa, who appeared on his behalf before the District Judge and was, until yesterday, present at his interviews. He pointed to the terms of section 58 . He noted that section 58 does not apply to offences under the Terrorism Act 2000 , and argued that if it is lawful to exclude a right and the statute does so exclude it, then the law also enables a restriction to be imposed on the same right.
  73. If the statutory right is excluded, the question is as to the underlying common law position. The PACE, code H, shows that even where section 58 does not apply, the policy of the Home Office and government is that, unless annex B applies, detainees must be informed that they may consult and communicate privately with a solicitor. Thus, although the statutory right in section 58 is not applicable, code H creates a public law right and gives guidance as to how this right is to operate in the context of cases in which it is alleged that terrorist offences have been committed.
  74. Mr Holdcroft submitted that it is manifest in the very early stages of a wide-ranging enquiry that where evidence shows, as the video in this case does that a person was present at a meeting which is a subject of the inquiry, that person is a potential witness. And Mr Holdcroft submitted that he must be able to provide evidence about what transpired, at least about its location, the number of people who were there and of those who he knew, who was there, the atmosphere, and his impression of the mood.
  75. Mr Holdcroft submitted that it is highly likely that Mr Iqbal Ahmed will be asked about the video, its content and other matters. As I indicated in argument, Detective Superintendent Minshall said that this was "a possibility" in his statement. Mr Holdcroft responded that this was an early stage of an investigation and one could not be precise. He invited me to conclude, however, that the fact that Mr Ahmed consented to withdrawing from the representation of Mr Habib Ahmed after the video issue had been brought to his attention was a matter that Superintendent Minshall was entitled to take into account. He also invited me to have regard to the content of the custody record as to the reasons for exclusion. He did not, I must say, deal very satisfactorily with the reasons in that statement that do not concern the potentiality of Mr Iqbal Ahmed being a witness. Nevertheless, at the core of the statement in paragraphs 14 and 23 (which I have set out) it is seen that the possibility of his being a witness and the implication that may be drawn from links between suspects in custody at the time are the primary reasons for excluding him.
  76. So far as the latter is concerned, in my judgment, that primarily raises issues concerning conflict of interest. In line with the decision of the Court of Appeal in ex parte Thompson , those are issues for Mr Iqbal Ahmed and the Law Society, not for the police.
  77. Similarly, I conclude that, on the evidence before me, the police, in making inferences from Mr Iqbal Ahmed's withdrawal in Mr Habib Ahmed's case, are also trespassing into the area of conflict of interest. However, it is clear from looking at the limited documents before me that what was exercising the police on the 1st and 2nd September was that they considered that what transpired at this meeting might be of central relevance to the alleged conspiracy which they are investigating. In the circumstances in which: (a) a specific legal adviser was present at part of that meeting and (b) at present it is not clear to the police what his role was, other than that, as he stated, he was there to give legal advice in the second part of the meeting, I consider that it was open to the police force to exclude that specific adviser. This is so where it did not preclude Mr Malik from having access to another solicitor. As it happened, he had access to the duty solicitor. But had he named another solicitor, whether from Mr Ahmed's firm or from another firm, the indication from what had transpired in the case of Mr Habib Ahmed is that would have been accepted.
  78. The police objections to Mr Iqbal Ahmed may turn out to be without foundation. He regards them as a slur on his professional independence and ability to advise. He does not put it in those terms, but that underlines the documents submitted on behalf of the claimant and it is unfortunate that this impression is created. It is important for the police to seek to resolve the issue concerning him as speedily as they can. This court recognises this issue has arisen in a large and very complex investigation. This area of law is part of Mr Ahmed's practice. Effectively the police must not seek a blanket exclusion of him acting in this area. He has done so in a way which, on the material before me, there is no complaint, for some considerable time.
  79. I have moved from the rights of the claimant, Mr Malik, to the interests of Mr Iqbal Ahmed, the legal representative, although I recognise that those interests are not the concern of this application. I return to Mr Malik's rights and interests. I take account of the stage in this investigation that the police excluded Mr Ahmed. Mr Malik was arrested on the 2nd September. The information about the video came to the attention of the SIO on 1st September. In these circumstances, Mr Osman's complaint that Mr Iqbal Ahmed has not yet been asked whether he would give a witness statement is a premature complaint. Had the matter been before the SIO for some time, there would have been more substance to this point. Effectively today, Tuesday 5th September, we are dealing with the consequences of that decision. It is important for the police to address the issues concerning Mr Iqbal Ahmed with expedition. But at this stage, on the material available to Detective Superintendent Minshall and for the reasons I have given, in particular in the custody record, I conclude that although the submissions made by Mr Osman raise an arguable case and permission would be granted, in the event the application must be dismissed.
  80. MR HOLDCROFT: Thank you, my Lord. There is no application for costs.
  81. MR JUSTICE BEATSON: Mr Osman, any application?
  82. MR OSMAN: Would my Lord give me a moment or two?
  83. MR JUSTICE BEATSON: Of course. ( Pause )
  84. MR OSMAN: It is only right to appraise my Lord of the situation. An emergency application for legal aid was lodged, but there has been no answer from the Legal Aid Board as yet.
  85. MR JUSTICE BEATSON: Maybe it will help you. I consider this case was arguable.
  86. MR OSMAN: I am grateful.
  87. MR JUSTICE BEATSON: I say in open court it is clearly an issue, it has not been before the court before in this form. It is not for me to give legal aid, I have no power to do so and, as Mr Ahmed probably knows, the legal aid people ignore things that are said by judges in these circumstances. But in so far as it helps that I say that this was a proper application, a substantial application.
  88. MR OSMAN: Yes.
  89. MR JUSTICE BEATSON: Although it failed, I have said that.
  90. MR OSMAN: I am grateful. Would your Lordship be kind enough to give me one moment? ( Pause )
  91. My Lord, it is the question of an appeal to which I turn my mind.
  92. MR JUSTICE BEATSON: You have got a problem there. You have got the problem of section 18 of the Supreme Court Act . Let me just find it. Your problem is that this is a criminal matter.
  93. MR OSMAN: Yes.
  94. MR JUSTICE BEATSON: In a sense, had I said your case was not arguable you could have renewed your application before the Court of Appeal. But because of section 18 — just forgive me, I am not finding section 18 . I will have to use the index. ( Pause )
  95. Yes, the White Book , 54, paragraph 12, 54.12.3 and 4 that can be — sub-paragraph (4), there can be no appeal to the Court of Appeal against the refusal by the High Court to grant permission to apply for judicial review in a criminal case. The decision in Re Po which is there would prevent a refusal of permission by the High Court being appealed to the House of Lords. Where the High Court considers the possibility of an appeal to the House of Lords should be preserved, the usual course is for the High Court to grant permission, dismiss the substantive application and to certify that the question of general public importance arises. The claimant can then petition the High Court for permission to appeal against the decision to dismiss the claim.
  96. If you want to consider your position, I am here this week and next week. But you will have to move fast. The problem is that, I do not say this with any disrespect to their Lordships, but I think—
  97. MR OSMAN: They are rather busy.
  98. MR JUSTICE BEATSON: I think the problem is that they are not there. I think you should — it is not really for me to say—
  99. MR OSMAN: No, not at all.
  100. MR JUSTICE BEATSON: I have read you out the relevant bit.
  101. MR OSMAN: I recognise the issue, and again with—
  102. MR JUSTICE BEATSON: This is why, I am afraid, I very specifically asked all of you whether you wanted me to deal with the substantive. I mean, in a sense you are in a better position than if I had refused you leave, marginally.
  103. MR OSMAN: The concern has always been urgency.
  104. MR JUSTICE BEATSON: I understand that. If were going to the Court of Appeal, there are judges here who could decide, (1) whether it was urgent enough, (2) whether they wanted to hear it.
  105. MR OSMAN: Yes. May I leave it at this, may I take up your Lordship—
  106. MR JUSTICE BEATSON: What you have got to do is to ask me to certify it. You can do that in writing without attending if you serve the reasons for certifying it on Mr Holdcroft, and Mr Holdcroft can make any written submissions on not certifying it. Then either you can require hearing or let me deal with it on paper. But on the question of certification, normally speaking, as you all know from the ordinary criminal context, this is not something that will take long argument.
  107. MR OSMAN: Yes. I was going to say can I take up your Lordship's invitation to consider it, if you are here, and come back to you.
  108. MR JUSTICE BEATSON: I am sitting this week and next week. My ability to fit you in, as I have done today, depends on others. I apprehend I will be quite busy, so you get on with it. Whatever you do, you must do it in writing first so that we do not take any more time in court than we need to.
  109. Is that helpful to you?
  110. MR OSMAN: Very helpful indeed, thank you.
  111. MR JUSTICE BEATSON: I want to thank both of you for your careful arguments.
  112. Can I just say, Mr Osman, I do not like to say this to counsel whose application I have just dismissed, but if you go back to Mr Ahmed's witness statement, it was faxed by your chambers fax, time 11.07 but actually received at just before half past 11. I just say this to you because it may help the case management process within Furnival Chambers.
  113. MR OSMAN: I am very sorry.
  114. MR JUSTICE BEATSON: I am not criticising you. I considered it all, you should know that.
  115. MR OSMAN: That is very helpful to know, actually.
  116. MR JUSTICE BEATSON: Good. Thank you.

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