Cullen (Appellant) v. Chief Constable of the Royal Ulster Constabulary (Respondent) (Northern Ireland)
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.
20. In our respectful view the majority has also failed to give sufficient weight to two factors. First, there are plainly formidable practical problems in a detainee applying for judicial review when he has been denied access to a solicitor. Secondly, in any event, it is not easy to know whether one has an arguable case for judicial review unless reasons have been given. If there are adequate answers to these points, we are not aware of them.
21. We would hold that a breach of the right under section 15 is actionable per se. But, applying the test enunciated by the European Court of Justice, we would be inclined to hold that proof of a serious breach is required for a damages action: Wyatt and Dashwood's European Union Law 4th ed. 2000, 126-127; Craig, Administrative Law, 4th ed. (849).
22. It was agreed between counsel that in order to avoid yet further delay in this protracted litigation the House should settle the damages. In our view the breaches consisting of premature authorisations do not satisfy the threshold of seriousness. On the other hand, the failure to give reasons is a matter of substance. We would award £500 under this heading.
23. We would allow the appeal and award £500 damages to the appellant.
24. On 8 October 1989 Superintendent Harris of the RUC was murdered when a bomb exploded under his car. On 17 October 1989 the appellant was arrested by a police officer 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 that murder. He was then held in police custody from 17 October to 23 October 1989 and was interviewed by the police. About noon on 20 October he made a written statement containing admissions. On 23 October he was charged with the offence of withholding information in relation to a hijacking. He pleaded guilty on 8 June 1990 and was sentenced to 160 hours' community service.
25. The appellant then brought an action for damages against the Chief Constable. The proceedings in Northern Ireland were protracted because there were three hearings before the High Court and two hearings before the Court of Appeal, and the appeal before the House is from the second judgment of the Court of Appeal delivered on 15 June 1999.
26. In his action the appellant claimed damages for wrongful detention, false imprisonment and trespass to the person on the ground that his detention was unlawful from the outset. He further claimed damages for infringement of his right to consult a solicitor privately pursuant to section 15 of the Northern Ireland (Emergency Provisions) Act 1987. A schedule detailing the deferrals of access to the appellant's solicitor by a police chief superintendent and the nature of the solicitor's visits was put before the High Court and is as follows:
|NO||DATE||TIME||DURATION OF DEFERRAL||RUNNING TIME|
|6.05 pm||24 hrs||5.30 pm 17/10/89 5.30 pm 18/10/89|
|Wednesday 18/10/89||7.25 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|
|6.15 pm -|
|SOLICITOR VISIT: SUPERVISED INSPECTOR CORDNER|
|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 -|
|SOLICITOR VISIT: SUPERVISED INSPECTOR CORDNER|
|am [sic]||48 hrs||6.35 pm 21/10/89 6.35 pm 23/10/89|
27. At the outset of the first hearing before the High Court the appellant withdrew his claim for damages for wrongful detention, false imprisonment and trespass to the person and proceeded only on the claim for damages for breach of statutory duty under section 15 of the 1987 Act in respect of denial of access to consult a solicitor. The full terms of section 15 have been set out in the judgment of my noble and learned friends Lord Bingham of Cornhill and Lord Steyn.
28. In the High Court before MacDermott LJ the appellant advanced two principal submissions. The first was that the chief superintendent who authorised the delay in access to a solicitor did not have reasonable grounds for believing that the exercise of the right to consult would
(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.
29. MacDermott LJ rejected the first submission. He held that he was satisfied that fresh intelligence received by the police during the appellant's detention had caused the superintendent to fear that the matters which would be put at further interviews indicating the level of police knowledge about the murder of Superintendent Harris might leak out through the appellant's solicitor to associates or those involved with the murder. He therefore held that the superintendent had reasonable grounds for believing under section 15(8)(d) and (e) that there was a real risk of valuable information reaching those involved in the murder. In relation to the second submission MacDermott LJ found that there were breaches of the requirements of section 15 in two respects. First, the superintendent had made the decision to defer access to a solicitor before the appellant requested access and, secondly, the police had not informed the appellant of the reasons for delaying access to a solicitor as required by section 15(9)(a).
30. MacDermott LJ held that the appellant had no right to claim damages for the two breaches of section 15 and an appeal against this decision was dismissed by the Court of Appeal. In the Court of Appeal the appellant was permitted to advance a new claim of false imprisonment on the ground that his detention became unlawful by reason of the breaches of section 15 and this claim was also dismissed by the court.
31. Before turning to consider the issues which arise on this appeal it is relevant to make three observations.
(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.
32. The main submission advanced on behalf of the appellant was that he was entitled to recover damages for breaches of the statutory duties imposed on the police by section 15 without proof of damage. He further submitted that he was entitled to damages at common law for false imprisonment or for an innominate tort.
Breach of statutory duty
33. My Lords, I consider that the principal question which falls to be considered on this appeal is the following one: Where a person is detained in custody by the police and a duty imposed on the police by one of the provisions of section 15 is breached but the person detained suffers no harm in consequence of the breach, can he recover damages in respect of that breach? In referring to "harm" in this question and subsequently in this opinion I mean some substantial detriment or distress which calls for an award of damages to compensate him for that harm. In order to answer this question I consider that there are two factors to be taken into account.
(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  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:
And at 393j:
Mummery LJ stated at p 395j:
35. It is relevant to observe that in England, when an issue relating to denial to a person in police custody of access to a solicitor's clerk arose, the proceedings were brought by way of judicial review. In R v Chief Constable of Avon  2 All ER 15 the Chief Constable issued instructions to his police force to the effect that the character and antecedents of various unqualified clerks employed by the applicant, who was a solicitor, were such as to make their presence at police interviews with suspects undesirable. In subsequent instructions he further stated that it was his opinion that there would be very few occasions on which it would be appropriate to allow certain named clerks access to persons in custody. The applicant applied for judicial review of the Chief Constable's instructions, contending that they were in breach of paragraph 6.9 of the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers issued by the Secretary of State under section 66 of the Police and Criminal Evidence Act 1984. Paragraph 6.9 provided that a solicitor's clerk was to be admitted to a police station for the purpose of seeing a person held in custody unless a police officer of the rank of inspector or above considered "that such a visit will hinder the investigation of crime". The application was dismissed by the Divisional Court which held that since the Chief Constable had left the actual decision whether to deny the applicant's clerk's access to persons in custody to individual custody officers or their inspectors and had not imposed a blanket ban on the applicant's clerks, the Chief Constable's instructions were not contrary to paragraph 6.9. However it is clear that the Divisional Court accepted that it was appropriate for the applicant to seek to challenge the Chief Constable's instructions by way of judicial review.
36. The effectiveness of an application for judicial review by or on behalf of a person detained by the police and the expedition with which it can be heard has been frequently demonstrated in Northern Ireland. In R v Chief Constable of the RUC Ex p McKenna  NI 116 the two applicants were arrested on the morning of 20 November 1991 on suspicion of involvement in acts of terrorism and were taken to a police station to be interviewed. They both made a request to consult with a solicitor but a detective superintendent deferred consultation pursuant to section 45 of the Northern Ireland (Emergency Provisions) Act 1991 which had replaced section 15 of the 1987 Act. On the evening of 20 November the applicants sought leave to apply for judicial review claiming (1) an order of certiorari to quash the decision by the superintendent to defer access to a solicitor and (2) an order suspending all interviews by the police with the applicants until the application for judicial review had been heard and determined. A judge in the High Court heard the ex parte application for leave to apply for judicial review that evening and granted leave. The judge ordered that the hearing of the motion on notice should take place the next day, 21 November, at 11 am and further ordered by way of interim relief that interviewing of the applicants by the police should be suspended until that time, unless the applicants were permitted to consult with their solicitor. The Chief Constable thereupon applied later on the evening of 20 November to the judge for an order revoking the suspension of interviews. On the hearing of that application the judge heard oral evidence from the detective superintendent who had deferred consultation and who was examined in chief and cross-examined. Having heard that evidence the judge made the order of revocation.
37. Thereupon the applicants applied to the Court of Appeal for an order that all interviews of the applicants by the police be suspended until the application for judicial review had been heard and determined. The Court of Appeal sat at 1.30 am on the morning of 21 November and heard oral evidence from the detective superintendent who was again cross-examined and the court ordered that all interviews with the applicants by the police be suspended until the determination of the judicial review.
38. A Divisional Court then sat at 11.45 am on 21 November to hear the application for judicial review but were informed by counsel for the Chief Constable that at 10 am that morning the decision had been taken by the detective superintendent to permit the applicants to consult with their solicitor. Thereupon the Divisional Court adjourned the hearing of the application and sat again on 9 December 1991 when it heard submissions on behalf of the Chief Constable that the applicants had not been entitled to seek judicial review in respect of the decision to delay access to the solicitor, which submissions were rejected by the court. It appears from the report at page 122 that in the weeks prior to 20 November a number of similar applications for judicial review had been brought by persons arrested as terrorist suspects and had been heard without delay: see also Re Russell's Application  NI 310, 315 a-f.
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  2 AC 237, 282G, Lord Diplock stated:
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.
40. In the present case it is clear that an application for judicial review could have been made from an early stage in the appellant's detention. There may be cases where a person detained and denied access to a solicitor will himself face considerable difficulties in initiating an application for judicial review. But, in my opinion, there is little risk that a member of the family of such a person or a friend would be unaware of his detention and would be unable to instruct a solicitor on his behalf who could apply for judicial review if refused access to the person detained.
(ii) The need to prove harm
41. In my opinion damages are awarded for a breach of statutory duty in order to compensate a person for loss or damage suffered by him by reason of the breach of that duty. This principle was stated by Lord Bridge of Harwich (with whose speech the other members of the House concur) in Pickering v Liverpool Daily Post Plc  2 AC 370, 420A where he said that in order to award damages for breach of statutory duty
42. Therefore in the present case where, not only did the appellant suffer no personal injury, injury to property or economic loss, but there was no evidence of any harm sustained by him and where judicial review would have afforded an effective and speedy remedy, I consider that the law should not award him nominal damages for the breaches of the duties imposed by section 15.
43. In its discussion of the methods of enforcing rules to ensure that a suspect in custody is not denied his rights the Royal Commission on Criminal Procedure stated in paragraph 4.122 of their Report (1981 Cmnd 8092):
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  1 AC 58 and X v Bedfordshire County Council  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.
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  QB 198 and R v Lord Chancellor Ex p Witham  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:
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  2 AC 111, 123F-H:
See also Darmalingum v The State  1 WLR 2303, 2308 A-B.