Chief Constable of the Royal Ulster Constabulary, Ex Parte Begley, R v. [1997] UKHL 39; [1997] 4 All ER 833; [1997] 1 WLR 1475; [1997] NI 278 (16th October, 1997)

REGINA
v.
CHIEF CONSTABLE OF THE ROYAL ULSTER CONSTABULARY
(RESPONDENT)
 

EX PARTE BEGLEY
(APPELLANT)
(NORTHERN IRELAND)

and

REGINA
v.
MCWILLIAMS
(APPELLANT)
(NORTHERN IRELAND)

Oral Judgment:     30 July 1997
Reasons:     16 October 1997

 

 

LORD BROWNE-WILKINSON

My Lords,

By orders of the House made on 30 July 1997 the appeals in the case of Begley against a decision of the Divisional Court of the Queen’s Bench Division of the High Court of Justice in Northern Ireland and in the case of McWilliams against a decision of the Court of Appeal in Northern Ireland were dismissed. I will now explain the reasons for those orders.

In the two appeals a single question of law arose regarding the rights of a person arrested under section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989 (“the P.T.A.”), viz. a person arrested on the ground that he is or has been concerned in the commission, preparation or instigation of acts of terrorism. In the case of Begley the Divisional Court certified a question of law in the following terms:

    • “Whether a person arrested under section 14 of the Prevention of Terrorism Act 1989 has (i) a right at common law to be accompanied and advised by his solicitor during interviews with the police or (ii) if such right did not exist at common law, can it now be said to exist in the light of the provisions of The Criminal Evidence (Northern Ireland) Order 1988 and in particular Article 3 thereof.”

 

The first part of the question is self-explanatory. The second part of the question is a reference to the change brought about by legislation in 1988 in Northern Ireland which enables the court in certain circumstances to draw inferences from an accused’s failure to mention particular facts when he is questioned, charged, etc., if the accused “could reasonably have been expected to mention [the facts].” Despite the language of the second part of the certified question the question is not whether the legislation of 1988 created a right to have a solicitor present during interview: it plainly did not. The question is simply whether the radical change brought about in 1988 in Northern Ireland justifies a common law development to create such a right. The certified question in the case of McWilliams is wider in scope but it was common ground at the hearing that it need not be considered separately.

Given the narrow question of law to be considered, the circumstances of the two appeals can be described quite briefly. The first case is that of Begley. On 5 March 1996 Begley was arrested under section 14(1) of the P.T.A. in connection with the murder of Gino Gallagher, who was reputedly a leading member of the proscribed I.N.L.A. Begley was taken to the Castlereagh Police Station. The police allowed him to consult privately with a solicitor. On Begley’s instructions the solicitor requested permission to attend the police interviews with Begley. The general practice of the Chief Constable of the Royal Ulster Constabulary is to refuse permission for solicitors to attend interviews of persons arrested under section 14(1) of the P.T.A. but occasionally it is permitted as a matter of concession. The police refused the request for the solicitor to attend Begley’s interviews. The police first interviewed Begley in the evening of 5 March. On the next day the police allowed Begley on two occasions to consult privately with his solicitor and conducted further interviews with him in the absence of his solicitor. On 6 March Begley obtained leave to apply for judicial review of the decisions denying him the right to have his solicitor present during interviews. A few hours later the matter came on for hearing before a Divisional Court presided over by MacDermott L.J. The Divisional Court held that a person arrested under section 14(1) of the P.T.A. has no legal right to have a solicitor present during interviews and dismissed the application. As a result of things said by him in interviews Begley was charged with murder on 9 March 1996. Subsequently, he was committed for trial on a charge of murder. He still awaits trial.

The second case is that of McWilliams. On 11 March 1993 the police arrested McWilliams under section 14(1) of the P.T.A. in connection with a murder committed a few hours earlier by two masked gunmen. They took him to Castlereagh Police Station. Despite McWilliams’ request for the attendance of a solicitor, the police denied him access to a solicitor for 56 hours. In delaying McWilliams’ access to his solicitor the police purported to act under section 45 of the Northern Ireland (Emergency Provisions) Act 1991. The lawfulness of the decisions to delay McWilliams’ access to a solicitor is not an issue on his appeal. The pertinent matter on his appeal is that McWilliams was not allowed to have a solicitor present during a succession of interviews. In the first five interviews he remained silent. In the sixth interview, and before he had received any legal advice, McWilliams started making admissions which he later amplified. He was charged with murder. At his trial the only evidence against him was the admissions made in interview. Counsel for McWilliams asked the judge to exclude the evidence of the admissions on the ground inter alia that he had not been allowed to have a solicitor present during the interviews. The judge refused to do so. McWilliams was convicted of murder and of certain other charges by the judge sitting without a jury. He appealed to the Court of Appeal against his conviction on grounds which included the ground that he had not been allowed to exercise the alleged right to have a solicitor present during interviews. In giving the judgment of the court Carswell L.J. (now the Lord Chief Justice of Northern Ireland) ruled that McWilliams had no legal right to have a solicitor present during interviews. In the result McWilliams’ appeal was dismissed on all grounds.

Counsel for the two appellants adopted an identical stance. They submitted that as the law stood at the time of the making and coming into operation of The Criminal Evidence (Northern Ireland) Order 1988, (S.I. No. 1987 (N.I. 20), the common law already recognised a right in every person (including a person arrested under section 14(1) of the P.T.A.) to have the advice and assistance of a solicitor during police interviews. If that submission is rejected, counsel invited the House now to recognise such a right, notably because, as counsel put it, the legislation of 1988 “transformed the landscape of a criminal trial.” Counsel do not contend for an absolute right to have a solicitor present during interviews. At the request of the House counsel formulated the qualified right they contended for as follows: A person arrested under section 14(1) of the P.T.A. has the right to be accompanied by, and receive advice and assistance from, his solicitor during police interviews, unless the exercise of that right would lead to active disruption of the interview or investigation, or (arising from concerns about any individual solicitor) would give rise to a risk of improper communication, or a fear for the safety of any person, or would otherwise be improper. This is the particular legal right which, if counsel’s submissions are correct, was recognised by the common law or, if it was not, should now be recognised by the House.

The first step in the inquiry is to see how far the authorities have gone. Certainly, 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: see Archbold, Criminal Pleading, Evidence and Practice, 42nd edn., 15-46. The text expressly provided that the Rules do not affect certain established 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;”

 

This principle was subsequently enshrined in legislation in England and Wales as well as in Northern Ireland, and the right was extended to persons suspected of having committed offences under the terrorism provisions. To that legislation I will turn later in this judgment. But this case is concerned with the separate and independent question whether every accused person has an established common law right to have a solicitor present during police interviews regardless of the nature of the offence in respect of which he was arrested. Needless to say there is no decision or dictum in support of such a right. Indeed no such argument has ever been placed before a court. There is no academic support for the existence of such a right. Counsel invokes the principle already recited from the Judges Rules as wide enough to embrace such a right. The passage in question, read in the context of the Rules as a whole, is not capable of bearing the meaning that counsel seeks to put on it. If the Judges Rules had been formulated on the supposition that a suspect already had a legal right to have his solicitor present during interview, it is inconceivable that such a right and the necessary qualifications to it would not have been spelt out in the elaborate statement of the rights of a suspect in the Judges Rules.

The printed cases of the two appellants appeared to contend that Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted by the European Court of Human Rights in Murray v. United Kingdom, 8 February 1996, 41/1994/488/570, might give support to the appellants’ contentions. But in Murray the European Court of Human Rights specifically declined to make a ruling as to whether a refusal to allow a solicitor to be present during police interviews violates Article 6. In these circumstances counsel for the appellants conceded that no assistance can be gained from Article 6 or the jurisprudence of the European Court of Human Rights. One has therefore arrived at the position that there is no positive law to support the proposition that the common law recognised a right in a suspect to have his solicitor present during a police interview.

Counsel then approached the point from a rather different angle. They argued that even if the right to have a solicitor present during interview had not been established by specific judicial decision it was, nevertheless, part of the corpus of the common law. They argued that the rationale of the general principle, which gave a suspect a right to consult a solicitor outside the interview room, is fairness. They argued that fairness similarly demanded the recognition, subject to qualifications such as they have put forward, of a general principle that any suspect should be entitled to have his solicitor present during interviews. What a court of law would have decided if such a common law issue had been presented to it is a hypothetical point. I am far from saying that a court could not have developed by analogy with the right to consult a solicitor privately a further right for the solicitor to be present during police interviews in aid of the fairness of the pre-trial procedure. But I am quite satisfied that such a common law principle has not been established to date.

That brings me to the alternative argument that the House should now, by analogy with the right to consult a solicitor outside the interview room and on the grounds of fairness, recognise a suspect’s right to be accompanied by his solicitor in a police interview. This argument is reinforced by the fact that by the statutory provisions of 1988 the right of an accused person to remain silent in interview has been attenuated by the court’s power to draw adverse inference from silence where it would be reasonable for the accused to be forthcoming in his responses to questions. This argument has considerable force. But it cannot be considered in isolation and divorced from the legislative framework made applicable to Northern Ireland. It is true that the House has a power to develop the law. But it is a limited power. And it can be exercised only in the gaps left by Parliament. It is impermissible for the House to develop the law in a direction which is contrary to the expressed will of Parliament. And that is in truth what the House is being asked to do.

Under section 58 of the Police and Criminal Evidence Act 1984 (“P.A.C.E.”) any suspect (including a suspect arrested under section 14(1) of the P.T.A.) has a legal right to consult privately with a solicitor as well as a right to have a solicitor present during interview: see also Code of Practice, Code C, paragraph 6; Code of Practice, Annex B. That represents the law in England and Wales. A different regime applies in Northern Ireland. It is true that under the P.A.C.E. legislation applicable in Northern Ireland a suspect has both the rights already described: see article 59 of the Police and Criminal Evidence (Northern Ireland) Order 1989; Code of Practice, Code C, paragraph 6.1. But this does not apply to a person arrested or detained under the terrorism provisions: section 59(12); Code of Practice, Foreword. A suspect detained under the terrorism provisions is merely entitled to consult privately with a solicitor: see section 15 of the Northern Ireland (Emergency Provisions) Act 1987; section 45 of the Northern Ireland (Emergency Provisions) Act 1991section 47 of the Northern Ireland (Emergency Provisions) Act 1996. The Code issued under section 61 of the Act of 1991 is to the same effect: Codes of Practice, para 6; and Annex B. Nowhere is there any reference to any right in a person arrested under terrorism provisions to have a solicitor present during interview. The differential treatment of persons suspected of having committed offences under the terrorism provisions in Northern Ireland is plainly part of a deliberate legislative policy. If this view needs further support it is to be found in the response of Parliament to the Review of the Northern Ireland (Emergency Provisions) Act 1991 prepared by Mr. J.J. Rowe Q.C.: February 1995, Cmnd. 2706. Regarding the problem under consideration he observed (para 130):

    • “I do not propose that solicitors should be present at interviews. I say that with reluctance. I heard great concern expressed by the legal profession about the fact that they cannot be present. (There is no express rule against it: but the E.P.A. Code does not provide for their presence.) The R.U.C. oppose it. But quite apart from that it seems to me that the regime of a holding centre, as permitted, must be looked at as a whole.

Section 11

    • , and the courts’ interpretation of it, permit lengthy and persistent questioning, probably more so than P.A.C.E. (N.I.): to allow solicitors to be present at interviews would be contradictory. Putting it another way, the regime of the holding centres contemplates that kind of questioning; but solicitors, quite legitimately, by advising their clients not to answer, would impair that regime.”

 

It is of the first importance that, despite this clear statement of the prevailing view and practice in Northern Ireland, Parliament re-enacted the relevant provisions in the same form as in the Act of 1991 on which Mr. Rowe commented. The conclusion is inescapable that it is the clearly expressed will of Parliament that persons arrested under section 14(1) of the P.T.A. should not have the right to have a solicitor present during interview. In these circumstances I would reject the invitation to develop such a right as beyond the power of the House of Lords.

For these reasons I took the view that both appeals ought to be dismissed.

 

LORD LLOYD OF BERWICK

My Lords,

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Browne-Wilkinson. For the reasons which he has given, I too would dismiss both appeals.

 

LORD STEYN

My Lords,

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Browne-Wilkinson. For the reasons he has given I would also dismiss both appeals.

 

LORD HOFFMANN

My Lords,

I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Browne-Wilkinson. For the reasons which he has given, I too would dismiss both appeals.

 

LORD HOPE OF CRAIGHEAD

My Lords,

For the reasons given by my noble and learned friend Lord Browne-Wilkinson I also took the view that both appeals should be dismissed.

 

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