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Session 2002 - 03
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Judgments - Cullen (Appellant) v. Chief Constable of the Royal Ulster Constabulary (Respondent) (Northern Ireland)


SESSION 2002-03
[2003] UKHL 39




Cullen (Appellant)


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



The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Steyn

Lord Hutton

Lord Millett

Lord Rodger of Earlsferry




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

[2003] UKHL 39


My Lords,


    1. On this appeal a question of law of considerable public importance arises, namely whether a breach of section 15 of the Northern Ireland (Emergency Provisions) Act 1987 may give rise to an action for damages. Subject to limited qualifications section 15 confers a right of access to legal advice on a detained person.


    2. The context in which the issue arises is as follows. On 17 October 1989 a police officer arrested the appellant under section 14(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1989, upon suspicion of having been concerned in the commission, preparation or instigation of an act of terrorism associated with the withholding of information in respect of a murder. He was taken to the Castlereagh Police Office. From 17 to 22 October 1989 the appellant was held in police custody. He wanted to see a solicitor. During this period, a police officer of the appropriate rank under section 15 issued four authorisations denying him a right of access to a solicitor. The appellant was permitted one unsupervised consultation and two supervised consultations with his solicitor. On 20 October 1989 the appellant made a statement which contained admissions. In due course he was charged with the offence of withholding information of a murder. He pleaded guilty, and he was sentenced to 160 hours community service. The appellant then brought an action for damages against the respondent. The trial judge found that the Police at all times had reasonable grounds to delay access to a solicitor as required by section 15(8) of the Act. But the trial judge held that the respondent had failed to comply with the requirements of section 15 in the following two respects:


        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;


        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.


        3. The legislative context must now be explained. The long title of the 1987 Act describes it as, among other things, intended "to confer certain rights on persons detained in police custody in Northern Ireland under or by virtue of Part IV of the Prevention of Terrorism (Temporary Provisions) Act 1984". The critical provision, which is section 15, is contained in Part II. The heading of Part II is "Rights of Persons Detained Under Terrorism Provisions in Police Custody". The first provision in Part II is section 14, which "confers" on a detained person "the right" to have someone informed of his detention under the terrorism provisions. The only other substantive provision in Part II is section 15. The marginal note to section 15 reads "Right of access to legal advice". Given its central importance we set out section 15 with emphasis added where appropriate:

      "15. (1) A person who is detained under the terrorism provisions and is being held in policy custody shall be entitled, if he so requests, to consult a solicitor privately.

      (2) A person shall be informed of the right conferred on him by subsection (1) as soon as practicable after he has become a person to whom that subsection applies.

      (3) A request made by a person under subsection (1), and the time at which it is made, shall be recorded in writing unless it is made by him while at a court after being charged with an offence.

      (4) If a person makes such a request, he must be permitted to consult a solicitor as soon as is practicable except to the extent that any delay is permitted by this section.

      (5) Any delay in complying with a request under subsection (1) is only permitted if -

        (a) it is authorised by an officer of at least the rank of superintendent; and

        (b) it does not extend beyond the relevant time.

        (6) In subsection (5) 'the relevant time' means -

        (a) where the request is the first request made by the detained person under subsection (1), the end of the period referred to in section 14(6); or

        (b) where the request follows an earlier request made by the detained person under that subsection in pursuance of which he has consulted a solicitor, the end of the period of 48 hours beginning with the time when that consultation began.

        (7) An officer may give an authorisation under subsection (5) orally or in writing but, if he gives it orally, he shall confirm it in writing as soon as is practicable.

        (8) An officer may only authorise a delay in complying with a request under subsection (1) where he has reasonable grounds for believing that the exercise of the right conferred by that subsection at the time when the detained person desires to exercise it


          will lead to interference with or harm to evidence connected with a scheduled offence or interference with or physical injury to any person; or


          will lead to the alerting of any person suspected of having committed such an offence but not yet arrested for it; or


          will hinder the recovery of any property obtained as a result of such an offence; or


          will lead to interference with the gathering of information about the commission, preparation or instigation of acts of terrorism; or


          by alerting any person, will make it more difficult -


            to prevent an act of terrorism; or


            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 -


          the detained person shall be told the reason for authorising it; and


          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


          he is of at least the rank of inspector; and


          in the opinion of the officer giving the direction, he has no connection with the case.

          (13) Any authorisation under subsection (5) or direction under subsection (11) shall cease to have effect once the reason for giving it ceases to subsist."

      The fate of section 15 was as follows. The 1987 Act came into operation on 15 June 1987. It was subsequently repealed by the Northern Ireland (Emergency Provisions) Act 1991, with effect from 27 August 1991. Section 45 of the 1991 Act became the operative provision regulating the right of access to legal advice. The 1991 Act in turn was repealed by the Northern Ireland (Emergency Provisions) Act 1996, with effect from 25 August 1996: see section 47 of the 1996 Act. The 1996 Act was repealed by the Terrorism Act 2000, which has been in force (except for section 100) since 19 February 2001. The extant equivalent of section 15 of the 1987 Act is paragraphs 7 and 8 of Schedule 8 to the 2000 Act.

          4. The genesis of section 15 is important. It applies to "[a] person who is detained under the terrorism provisions" (section 15(1)). It was modelled on section 58 of the Police and Criminal Evidence Act 1984. In a new and remedial provision section 58 conferred a statutory right to legal advice on detained persons. It has been said that the right contained in section 58 "is arguably the most important protection conferred by the [1984] Act": 1984 Current Law Statutes, Vol 4, General Note to section 58, 60-105. The Police and Criminal Evidence (Northern Ireland) Order 1989 (SI 1989/1341) took effect on 1 January 1990. Article 59 of the latter instrument corresponds to section 58 of PACE 1984. Article 59 of the PACE Order 1989 does not apply to terrorist arrests: see article 59(12). Section 15 applies only to terrorist arrests. But it corresponds to section 58 of PACE and cannot therefore be given any special interpretation on the basis of a terrorist dimension.

          5. It is now necessary to explain the law about a detained person's access to legal advice as it stood before PACE 1984 was enacted. The common law recognised a general right in an accused person to communicate and consult privately with his solicitor outside the interview room. This development is reflected in the Judges' Rules and Administrative Directions to the Police which were published as Home Office Circular No. 89/1978. The text expressly provided that the Judges' Rules do not affect certain established legal principles which included the principle:

        "(c) That every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor. This is so even if he is in custody provided that in such a case no unreasonable delay or hindrance is caused to the processes of investigation or the administration of justice by his doing so: . . ."

      In R v Chief Constable of the Royal Ulster Constabulary, Ex p Begley [1997] 1 WLR 1475, at 1479E-G the House of Lords recognised this historical development. It follows that in 1984 the possibility of applying for relief in judicial review proceedings already existed in cases where there was a breach of the principle. On the other hand, experience in England and Wales showed that the protection so conferred was largely ineffective, notably because cross-examination on an application for judicial review, although not excluded, was in practice rarely permitted: O'Reilly v Mackman [1983] 2 AC 237, at 282D - 283A; Fordham, Judicial Review Handbook, 3rd ed., 2001, 19.4.2 - 19.4.8, Martin Smith, Cross-Examination in Judicial Review under the CPR, [2001] JR 138. Against this background section 58 was an important piece of remedial legislation intended to make the legal right of a detainee to access to a solicitor more effective.

          6. Section 58 of PACE was drafted and passed against the background of the Report of the Royal Commission on Criminal Procedure, which was chaired by Sir Cyril Philips: January 1981, Cmnd 8092. The Report recorded the great importance which the Royal Commission attached to securing that the right to legal advice was effective: para 4.95. In para 4.122 the Royal Commission observed:

        "Civil actions

        Some of the witnesses to us have been critical of civil action as a remedy. They point to the difficulty of proving breaches of the rules and to the cost of such actions, and some doubt whether they have any impact on the individual police officer, since any award of costs is borne by police funds. Nonetheless they provide a means by which those who suffer substantial inconvenience, distress or other disadvantage as a result of unjustified police activity may gain some form of redress. It is the only means of redress for those who are not prosecuted and consequently have no opportunity to raise the matter during a trial. As we have already noted, we see this applying particularly in the case of unlawful arrest or unjustifiably prolonged detention. The arrangements we propose for recording decisions during the course of custody may assist in proving cases of unlawful action in these and other respects, for example in relation to improper refusal of access to legal advice, and the civil courts may therefore prove to have a useful role to play in the application of the statutory rules."

      Several points in this paragraph merit emphasis. The Royal Commission considered the arguments for and against permitting civil actions in aid of rights to legal advice: para 4.122. The Royal Commission concluded that "the civil courts may . . . prove to have a useful role to play in the application of the statutory rules". The Royal Commission gave the example of "improper refusal of access to legal advice". These observations made clear that the Royal Commission had in mind remedial legislation buttressing the right to legal advice by a private law action for damages. It is also relevant to note that the Royal Commission expressly mentioned redress for "substantial inconvenience, distress or other disadvantage as a result of unjustified police activity." In other words, the Royal Commission had in mind that a breach should be actionable per se, i.e. without proof of financial loss.


          7. There was some debate at the hearing of the appeal about the relative seriousness of the breaches that were established. The context was an observation of the Lord Chief Justice in the Court of Appeal that the breach in the present case - being a reference to all breaches found by the trial judge - "might justifiably be termed technical": at 254D. Counsel for the respondent adopted this statement and suggested that it throws light on the point of statutory construction. For our part this observation is more realistic insofar as the Police made decisions to delay access to a solicitor in advance of a request by the detainee. On the other hand, to describe the total failure to give reasons at any stage as "technical" is at the least controversial. The difficulty is that in an objective sense such a view tends to undermine the importance of the statutory right to reasons. In the context of section 15 reasons promote several important objectives. First, they impose a discipline on the Police (as in the case of other decision makers) which may contribute to such refusals being considered with care. Secondly, reasons encourage transparency in an area closely connected with access to justice and increase confidence in the operation of the criminal justice system. Thirdly, they assist the courts in performing their supervisory function if judicial review proceedings are launched. It is, therefore, a complaint of substance that no reasons were ever given in the present case.

          V. THE ISSUES.

          8. The appellant's claim was put forward in three alternative ways: (1) breach of statutory duty; (2) an action at common law for false imprisonment; (3) a new innominate tort. Against this background the Agreed Statement of Facts and Issues states the questions to be considered by the House as follows:


        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?


        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.


      The Court of Appeal Judgment

          9. It is necessary to consider why Carswell LCJ (with the agreement of Nicholson and Campbell LJJ) held that there was no private law claim for damages. Carswell LCJ thought that the statute was "silent" on the question (at 245a) and there was no sufficient basis to "infer" that Parliament intended to allow a claim for damages (at 251d). Secondly, given this hypothesis, Carswell LCJ found guidance in R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] 1 AC 58 which turned on the interpretation of the Prison Rules. In Hague's case the House characterised the Prison Rules as regulatory in character, viz dealing with the management, treatment and control of prisoners. Carswell LCJ accepted that section 58 of PACE, and section 15 of the 1987 Act, were also regulatory or "control" provisions: 249h - 250d. Thirdly, Carswell LCJ found assistance in decisions on social welfare legislation, where the statutes contained no language conferring rights and when the House considered that judicial review was the appropriate remedy: X v Bedfordshire County Council [1995] 2 AC 633 and O'Rourke v Camden London Borough Council [1998] AC 188. Fourthly, Carswell LCJ stated that "the fact that it is unlikely that personal injury, injury to property or economic loss could be proved tends to show that the breach was not intended to be actionable": 257d. Fifthly, at one stage Carswell LCJ described a breach of section 15 as "a mistake in procedure": 255. And counsel for the respondent invoked this point on several occasions. These are the principal planks of the reasoning of the Court of Appeal on the issue of the recoverability of damages for breach of section 15. It will be necessary to examine them in some detail. In doing so the arguments of counsel for the respondent, who supported the Court of Appeal judgment, will also be covered.

      (i)  The language of the statute and its context

          10. In respectful but firm disagreement with the Lord Chief Justice we would reject the idea that the statute is silent on the issue. The long title, the heading of Part II, and the substantive provisions of sections 14 and 15 make clear that Parliament was passing a new and remedial provision for the conferment on detainees of a statutory right of access to solicitors. The statutory language is entirely apt to create private law rights. And on ordinary principles of statutory construction the language must be interpreted so as to give the effective protection which Parliament envisaged.

          11. This interpretation is reinforced by the fact, already explained, that before the enactment of section 58 of PACE the common law already recognised a legal principle entitling a detainee to legal advice: see the Begley case, at 1479F-G. It could be the basis of judicial review proceedings. In enacting section 58 of PACE, and section 15 of the 1987 Act, the legislature clearly intended to confer further protection on detainees. The only or virtually only way of doing so was to confer private law rights on them. While Begley was cited in the Court of Appeal, the significance of this point emerging from it may not have been placed squarely before the Court of Appeal.

          12. An even more important aid to construction is the report of the Royal Commission which formed the background to the enactment of section 58 of PACE. It reveals, as already explained, a clear view in favour of a right of access enforced by a private claim for damages. This contextual factor explains the purpose of section 58 of PACE on which section 15 of the 1987 Act was modelled. Unfortunately, this material was not placed before the Court of Appeal. It was also not drawn to the attention of the House by counsel. Having now examined the Report of the Royal Commission, we question whether the Court of Appeal would have reached a decision that Parliament did not intend to create a right to civil damages if it had been alerted to it.

      (ii)  The Hague decision

          13. It is true, of course, that in the Hague case prisoners were denied a right to claim damages for breach of the Prison Rules on the ground that the rules were not intended to create private rights: the rules were regarded as concerned only with the management, treatment and control of prisoners. Section 58 of PACE, and section 15 of the 1987 Act, are quite differently worded and structured. They are specifically designed to protect individual rights of detained persons. This part of the reasoning of the Court of Appeal cannot be supported.

      (iii)  The decisions in X v Bedfordshire and O'Rourke

          14. In X v Bedfordshire, supra, Lord Browne-Wilkinson observed (at 732):

        "The cases where a private right of action for breach of statutory duty have been held to arise are all cases in which the statutory duty has been very limited and specific as opposed to general administrative functions imposed on public bodies and involving the exercise of administrative discretions."

      While Carswell LCJ's quotation from this decision extended to this passage, he did not say that the rights conferred by section 15 do not come within this category. Counsel did, however, so submit. We would reject this argument. Section 15 protects the rights of a limited and specific class, i.e. detained persons.

          15. On a broader basis it is difficult to compare the social welfare legislation in X v Bedfordshire and O'Rourke, with no express provision for individual rights, with section 58 of PACE and section 15 of the 1987 Act, which are redolent with the expression of individual rights. Those decisions do, of course, support the proposition that, where the statute is silent, the existence of an alternative remedy, such as judicial review, may be a relevant factor to take into account when considering what is the best interpretation: see, however, Barrett v Enfield London Borough Council [2001] 2 AC 550, at 589 E-H per Lord Hutton. For Carswell LCJ this was the significance of these decisions. In the present context, however, such arguments are ruled out by a contextual interpretation of section 15. The Royal Commission did not treat judicial review as a sufficient and effective protection for detained persons. In England and Wales cross-examination on an application for judicial review is only permitted in exceptional cases. In any event, it has to be said that the more serious a breach of refusing access to a solicitor under section 15 the more difficult it will be for a detained person to launch judicial review proceedings. There will be cases in which it is not an effective remedy as envisaged by the Royal Commission.

      (iv)  No personal injury, property damage or financial loss

          16. Carswell LCJ regarded the fact that a breach of section 15 was unlikely to result in personal injury, injury to property or economic loss as pointing against a legislative intent to treat a breach of section 15 as giving rise to an action in damages: 257d. We cannot accept this proposition. In the context of a breach of a right of access to a solicitor the natural and obvious solution is that the breach is actionable per se, i.e. without proof of special damage. That is what the Royal Commission contemplated and what Parliament must have intended. In any event Carswell LCJ rightly accepted and counsel for the Chief Constable conceded that, if a breach of duty under section 15 is indeed actionable, it would give rise to damages without proof of loss: 257d.

      (v)  A mistake in procedure

          17. To refer to a breach of section 15 as a mistake in procedure suggests that it is not of great importance. Such a view is understandable in respect of the anticipatory breaches but not warranted in respect of a total failure to give reasons. It is a sufficient answer to quote the observation of Justice Frankfurter in McNabb v US 318, US 332 (1943), at 347, that "The history of liberty has largely been the history of observance of procedural safeguards".

      Comparative material

          18. It is of some significance that in the United States, Canada and Ireland it has been held that breaches of a detained person's constitutional right of access to a lawyer may found an action in damages: (1) Decisions in the United States Court of Appeals: Cinelli v City of Revere 820 F 2d 474 (1987); Williams v Liberty 461 F 2d 325 (1972) and Wounded Knee Legal Defense/Offense Committee v Federal Bureau of Investigation 507 F 2d 1281 (1974); (2) The Irish Supreme Court: The People v Healy [1990] 2 IR 73. This decision approved the unreported decision of Finlay P in The State (Noel Harrington) v The Commissioner of An Garda Síochána in 1976. (3) A Federal Court in Canada: Crossmann v The Queen (1984) 9 DLR (4th) 588. Carswell LCJ thought that this line of decisions was distinguishable as being based on constitutional provisions. However, in Raymond v Honey [1983] 1 AC 1, Lord Wilberforce described a right of access to justice as "a basic right". In R v Secretary of State for the Home Department Ex p Leech [1994] QB 198 the Court of Appeal described a prisoner's right to correspond with his solicitor in contemplation of litigation as follows: "Even in our unwritten constitution it must rank as a constitutional right": see also R v Lord Chancellor, Ex p Witham [1998] QB 575. The distinction made by Carswell LCJ is fragile. The right conferred by section 15 is a fundamental right. The jurisprudence cited is relevant and at the very least demonstrates the importance and utility of a right to damages in aid of the rights of access to a solicitor.