CARC2451
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN'S BENCH DIVISION (CROWN SIDE)
-----
IN THE MATTER OF AN APPLICATION BY DAMIEN FLOYD FOR
JUDICIAL REVIEW
and
IN THE MATTER OF AN APPLICATION BY PAULINE PALMER
AND
CHRISTINA PALMER FOR JUDICIAL REVIEW
-----
CARSWELL LCJ
Introduction
The applicants in these applications sought a series of
declarations relating to the provision of facilities while
they were detained in the holding centre at Castlereagh
Police Office following their arrest under the Prevention
of Terrorism (Temporary Provisions) Act 1989
("the 1989 Act"). They claimed that the police
acted unlawfully in failing to accede to their requests to
have their solicitors present during the course of
interviews held, to have writing materials made available
to them during such interviews and at other times and to
have reading materials and facilities for exercise
provided. Since the applications concerned similar issues,
they were heard together in this court on 18 June 1997,
when they were dismissed, with reasons to be given at a
later date. The court's reasons for the dismissal are
contained in this judgment.
The Detention of Damien Floyd
Damien Floyd was arrested under the provisions of the
1989 Act on 21 March 1996. At 2.26 pm on that date his
solicitors faxed a request to Castlereagh Police Office to
be permitted to be present throughout any police
interviews of the applicant so that he might be
continuously advised. The police deferred commencing
interviews until the request was considered by Detective
Superintendent Molloy, who decided later that afternoon
not to accede to it, and so informed the applicant's
solicitors by telephone. He subsequently sent a fax to
them in the following terms:
"I refer to your fax dated 21 March 1996 regarding
your client Damien Floyd detained at the Police
Office, Castlereagh.
I am aware of the circumstances and have full
knowledge of the background to the terrorist
investigation regarding the arrest and detention of your
client.
No interviews took place until your request was dealt
with at 5.00 pm per telephone call.
Your client has and will continue to have the right
to consult privately with you by virtue of Section 45 of
the Northern Ireland Emergency Provisions Act 1991.
I have given careful deliberation to the material you
have brought to my attention and all the relevant
factors and I have come to the conclusion that there is
not sufficient to justify the granting of your request
on this occasion and I must therefore decline your
request."
By a letter also sent on 21 March 1996 the applicant
Floyd's solicitors complained that he was not afforded
facilities for exercise and was not provided with reading
or writing materials. The applicant did not have any
exercise while he was in Castlereagh, nor was he provided
with writing materials. He was, however, offered a
selection of magazines, one of which he took.
Floyd was first interviewed at 5.04 pm on 21 March
1996, and further interviews took place on that evening
and during the following day. He was released in the
afternoon of 22 March, apparently without charge.
The Detention of Pauline and Christina Palmer
The applicants Pauline and Christina Palmer were
arrested under the 1989 Act at approximately 1.45 pm on 13
March 1997 and taken to Castlereagh Police Office. At 2 pm
their solicitor made a request by fax to be permitted to
be present during their interviews. The request was
considered by Acting Detective Superintendent McGregor,
who decided in the late afternoon to refuse it. The
solicitor was so informed by telephone at 5.57 pm. A fax
was sent at or about 7.43 pm confirming this decision:
"I am aware of the circumstances of the arrest of
your clients
Pauline Palmer and Christine Palmer on 13.3.97.
Following receipt of your fax message this afternoon
I have considered your client's position and have taken
into consideration your representations.
Your clients have had the opportunity to private
legal advice under Section 47 Northern Ireland
[Emergency Provisions] Act 1996 and regular access
to legal advice will continue. It will be noted that
Christine Palmer having attained the age of 17 yrs
is not a minor.
After careful consideration of all the relevant
factors in this serious terrorist investigation, I have
decided to decline your request to be present during
interviews on this occasion."
The applicants' solicitor also sent a letter by fax
requesting, in similar terms to Floyd's case, facilities
for exercise, the provision of reading and writing
materials and, as an alternative to writing materials,
that the interviews should be tape-recorded. These
requests were refused by a fax sent from Castlereagh
Police Office, in identical terms to the refusal in
Floyd's case.
It was claimed on behalf of Pauline Palmer that she had
particular need of the legal advice of a solicitor during
interview because of her medical condition, as she was in
receipt of medication for a nervous condition. This was
known to Mr McGregor at the time when he made his
decision. Pauline Palmer was medically examined at 4.45 pm
on 13 March, when the doctor took a history of anxiety and
depression. She was in receipt of a tranquilliser,
sleeping tablets and medication for cardiac tension, and
the doctor directed that she should continue to receive
them. He found that she was composed. He concluded that
she was fit to be detained and fit for interview on the
basis of one hour on, one hour off. Similar findings were
made on further medical examinations on 13 and 14 March,
although at 8.20 pm on 13 March she was described as
agitated and annoyed.
Mr McGregor stated in his affidavit that he took these
matters into account in his decision not to allow the
applicant's solicitor to be present during interview. He
states that he inquired about her conduct and demeanour
when confronted by police at her house. He was conscious
that her daughter had been arrested at the same time and
that this might be a cause of anxiety. Mr Winters also
claims in his grounding affidavit that the applicant had
been arrested in 1989 and ill-treated during interview. It
has not been established whether this was true, but if it
was this fact was not brought to Mr McGregor's attention
at the time when he made his decision.
Mr McGregor states in paragraph 9 of his affidavit:
"I was satisfied that this Applicant was not at any
particular disadvantage or suffering from any undue
vulnerability. In my judgment there was nothing about
her particular circumstances to warrant any departure
from the Chief Constable's general practice and I
concluded accordingly."
Pauline Palmer was first interviewed at 7.40 pm on 13
March, and further interviews were held on that evening
and during the following day. At 4.48 pm on 14 March the
applicant's solicitors informed the police by fax that
they were considering an application for judicial review.
Mr McGregor directed the suspension of interviews, and the
applicant was released without charge at approximately
7.45 pm that evening.
Christina Palmer was aged 17 years at the time of her
arrest. She was medically examined at 5.15 pm, when the
doctor found her to be composed and fit for detention and
interview. Mr McGregor states that he did not consider her
to be especially vulnerable or at any particular
disadvantage, and concluded that in all the circumstances
there was no reason for departing from the general
practice of the Chief Constable. He therefore refused the
request for her solicitor to be present during interviews.
He kept her case under review after the commencement of
interviews, which took place in the evening of 13 March
and during 14 March. He noted that the medical officer
continued to find her fit for interview and that she had
access to legal advice. She made a number of requests
which he considered were indicative of a composed state of
mind. He states that he was satisfied that it was
appropriate to continue to conduct interviews in the
absence of a solicitor. Christina Palmer was released
without charge at the same time as her mother on 14 March.
The Right to a Fair Trial
Mr Harvey QC on behalf of the applicants submitted that
the right of an accused to a fair trial contains as one of
its components the right to receive legal advice
throughout the interviewing process. There is therefore a
correlative duty upon the police to allow his solicitor to
be present during all interviews and a duty to provide the
detainee with writing materials or, failing that, to
arrange a sufficient method of recording the content of
the interviews. It is not in doubt that a person accused
of a criminal offence has a fundamental right to be given
a fair trial or, to put it in another manner, that it is
the function of the judge to ensure that he receives a
fair trial according to law: see, eg, the speeches in R
v Sang [1980] AC 402. It would no doubt be unwise
to attempt to define the content of this right and duty
too precisely, for the category of instances in which they
apply is not closed. In general acts and omissions before
the trial itself will be capable of affecting its fairness
only when they have a bearing upon the admissibility of
specific evidence at the trial. So a confession obtained
by oppression is inadmissible as evidence against him,
because it would be unfair. It is not clear to what
extent, if at all, the fairness of treatment of an accused
before trial is relevant if it is not directed to an issue
of the admission of evidence -- which is not the case
here, since none of the applicants made a confession. In
view of my conclusions on the actual treatment of the
applicants I do not find it necessary to answer this
question.
Before I turn to examine the issues in each case before
us I would observe that applications for judicial review
based upon the treatment of a suspect detained for
interviewing may pose difficult issues relating to the
exercise of the discretion of the court. If the applicant
has not made a confession or has been released without
being charged, the question of his treatment will not
affect the disposition of any criminal proceedings. In
these circumstances the court will have to consider
whether or not it is appropriate to make a declaration or
grant any other remedy. If, on the other hand, he has made
a confession and a criminal trial is pending, it is likely
that the court will feel that to pronounce on the
propriety of his treatment during detention could hamper
the trial judge's exercise of his discretion to rule upon
the admissibility of the confession in the light of the
evidence about his treatment. It is important that the
freedom of the judge in a criminal trial to rule upon the
admission of evidence should not be trammelled by earlier
pronouncements in other courts concerning the way in which
that evidence has been obtained, and this factor will have
to be borne in mind if similar applications should be
brought in the future.
Presence of a solicitor
The claim that a suspect detained by the police under
the provisions of the 1989 Act is entitled to have a
solicitor present during interviews has been the subject
of detailed consideration in several cases in this court
and the Court of Appeal. In R v Dougan (1995,
unreported) and R v O'Kane (1995, unreported) the
Court of Appeal held that it was the intent of Parliament
that a solicitor should not be present at the interviews
of a terrorist suspect and that the only right which it
intended to give to such a suspect in respect of the right
of access to a solicitor was the right to consult
privately conferred by section 45 of the Northern Ireland
(Emergency Provisions) Act 1991, subject to the
restrictions set out in that section.
In Re Begley's Application (1996, unreported)
and Re Russell's Application (1996, unreported)
this court rejected applications based on claims that
terrorist suspects have the right to have solicitors
present during police interview. In Re Russell's
Application the court held that although the general
intention of Parliament is manifested in the Northern
Ireland (Emergency Provisions) Act 1991 that a solicitor
should not be present, the Chief Constable could decide by
way of concession to allow it in special cases for valid
reasons. Any such decision could in my view be the subject
of judicial review, subject to the question of the
discretion of the court to which I have referred. There
may have been a degree of difference in that case between
the views expressed by Hutton LCJ and those of Kerr J
about the right of the Chief Constable to have a fixed
policy to refuse access in all cases without exception. I
do not find it necessary to express an opinion on the
issue in this judgment, since the Chief Constable has
adopted a policy of considering whether requests for the
presence of a solicitor should be allowed rather than
giving a blanket refusal in all cases. It remains only for
the court to consider whether the officers making
decisions on his behalf in the case of the applicants have
done so by reference to the proper factors and whether, as
the applicants contend, they can be said to be
unreasonable in the Wednesbury sense.
In Floyd's case there is nothing to show that the Chief
Constable's discretion was exercised in any way other than
by reference to the proper considerations. Nor is it
possible in my view to say that it was unreasonable in the
Wednesbury sense.
In the case of Pauline and Christina Palmer there again
is nothing to show that Acting Detective Superintendent
McGregor made his decisions by reference to any but the
proper considerations. Mr Harvey based his submission on
unreasonableness, contending that the arguments in favour
of allowing a solicitor to be present in the case of each
applicant was so strong that no reasonable officer
applying his mind to the proper factors could have decided
to refuse the requests. I am unable to accept this.
Pauline Palmer was medically examined on several
occasions, and on each was found fit for interview for
finite periods. She was prone to anxiety, but had her
proper medication supplied to her. There is no evidence
that she was at any time unduly distressed in interview,
or that she was unable to comprehend the questions or
answer them in a composed and coherent fashion. In these
circumstances I consider that the submission that it was Wednesbury
unreasonable not to allow a solicitor to be present cannot
be sustained, when one bears in mind the depth of
irrationality which has to be established before such a
case can be made out.
My conclusion is the same in the case of Christina
Palmer. Although young, there is nothing to suggest that
she was especially vulnerable or that she was in any way
unfairly influenced or overborne in the course of being
interviewed.
Writing Materials
It was submitted on behalf of the applicants that
fairness required the police to make available writing
materials to a suspect, so that he could keep a proper
record for the use of himself and his solicitor of the
course of the interviews. In the alternative, if these
were not furnished, an audiotape record should be kept, as
in interviews in non-scheduled cases.
There is no express reference in statute-law or the
Codes of Practice to the provision of writing materials.
The Chief Constable takes the view, I think correctly,
that it lies within his discretion to provide them where a
sufficiently strong case is made out to override the
objections. The objections are cogently described in
paragraphs 3, 4 and 5 of the affidavit sworn by Detective
Chief Superintendent Martindale in Floyd's case, and may
be summarised as the hampering of interviewers in
conducting interviews in their own manner and at their own
pace, and the potential opportunity for the use of pens
for inflicting injuries. I do not need to express an
opinion about the strength of these objections. It is
sufficient to say that they cannot in my view be dismissed
as having no substance and therefore unreasonable in the Wednesbury
sense. The Chief Constable was accordingly entitled to
adopt the policy of not furnishing writing materials
except in special cases. There was nothing in the
materials before us to show that the case of any of the
applicants fell within such exception.
It was submitted on behalf of the applicants that if
writing materials could not be provided, it was necessary
that interviews should be tape-recorded, in order to allow
the detainees to have a proper record of what took place
in each. This submission cannot in my view be accepted in
the light of the fact that section 53 of the Northern
Ireland (Emergency Provisions) Act 1996 and the draft
Code of Practice which has been prepared under that
section provide for silent videotape recording but not for
recording what was said in interviews of terrorist
suspects. Parliament has shown by the enactment of section
53 of the 1996 Act that it did not intend that what was
said in such interviews should be recorded, in
contradistinction to non-terrorist cases governed by PACE.
The matter has therefore been removed from the realm of
any discretion which the Chief Constable might have
possessed to allow it. If it could be successfully argued
by the applicants that he did have such a discretion prior
to the enactment of the 1996 Act, I should in these
circumstances decline in the exercise of my discretion to
make any declaration to that effect.
Reading Materials
Paragraph 8.8 of Code I made by the Secretary of State
under section 61 of the Northern Ireland (Emergency
Provisions) Act 1991 governs the provision of reading
materials:
"Detainees may apply for selected reading material
at the discretion of the custody officer."
The Chief Constable has limited the selection of
reading material by confining it to magazines and
periodicals. He has decided that hard-backed books and
newspapers should not be supplied, for the reasons set out
in paragraph 10 of the affidavit sworn by Detective Chief
Superintendent Martindale in Floyd's case. It is not
necessary for me to express any opinion about the
correctness of those reasons. It is sufficient to say that
it is in my view quite clear that the decision by the
Chief Constable to limit the types of reading matter in
this way could not be regarded as unreasonable in the Wednesbury
sense.
Exercise
It is provided in paragraph 8.7 of the Code of Practice
to which I have referred that -"Brief outdoor
exercise shall be offered daily if practicable."
The space at Castlereagh Police Office is so limited,
as Detective Chief Superintendent Martindale set out in
paragraph 8 of his affidavit sworn in Floyd's case, that
it was not regarded by the Chief Constable as practicable
to provide exercise. In May 1997 he reconsidered his
decision that exercise could not be provided, mindful of
the recommendations made by the Independent Commissioner
for Holding Centres and in view of the fact that the
number of persons detained at Castlereagh had declined.
I offer no opinion on the justification for the
previous decision that it was not practicable to allow
exercise at Castlereagh. If it is now available to
detainees, it is not necessary to make any declaration
about the previous practice, and if the applicants had
made out a case that that practice was wrong I should
decline in the exercise of my discretion so to declare.
Conclusion
For the reasons which I have set out in this judgment,
the court accordingly dismissed the applications for
judicial review.
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN'S BENCH DIVISION (CROWN SIDE)
-----
IN THE MATTER OF AN APPLICATION BY DAMIEN FLOYD FOR
JUDICIAL REVIEW
and
IN THE MATTER OF AN APPLICATION BY PAULINE PALMER
AND
CHRISTINA PALMER FOR JUDICIAL REVIEW
-----
JUDGMENT
OF
CARSWELL LCJ
-----
