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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Cullen v. Chief Constable of the Royal Ulster Constabulary [2003] UKHL 39 (10 July 2003) URL: http://www.bailii.org/uk/cases/UKHL/2003/39.html Cite as: [2004] 2 All ER 237, [2003] WLR 1763, [2003] UKHL 39, [2003] 1 WLR 1763, [2003] NI 375 |
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Judgments - Cullen (Appellant) v. Chief Constable of the Royal Ulster Constabulary (Respondent) (Northern Ireland)
HOUSE OF LORDS
SESSION 2002-03
[2003] UKHL 39
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Steyn
Lord Hutton
Lord Millett
Lord Rodger of Earlsferry
LORD BINGHAM OF CORNHILL AND LORD STEYN
My Lords,
I. THE QUESTION.
II. A NARRATIVE.
(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.
"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.
"(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.
"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.
V. THE ISSUES.
(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
(ii) The Hague decision
(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
(v) A mistake in procedure
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.
VIII. DAMAGES
IX. DISPOSAL
23. We would allow the appeal and award £500 damages to the appellant.
LORD HUTTON
My Lords,
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 |
(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.
(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.
Breach of statutory duty
(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) …."
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.
(ii) The need to prove harm
"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."
"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.
The claim for false imprisonment
The claim for a new innominate tort
Accordingly for the reasons which I have given I would dismiss this appeal.
LORD MILLETT
My Lords,
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.
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."
"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."
"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."
"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……."
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.
70. I would therefore reject Mr Cullen's claim to damages for breach of statutory duty.
A new innominate tort
Judicial review
Section 8 of the HRA
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)."
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.
"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.)
Conclusion
LORD RODGER OF EARLSFERRY
My Lords,
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.