Cullen (Appellant) v. Chief Constable of the Royal Ulster Constabulary (Respondent) (Northern Ireland)
47. Therefore where a right is contained in a written constitution it is accorded a special value by the courts and a breach of that right without damage or harm can lead to an award of damages. In this case which relates to a provision in an ordinary statute I consider that the decision of the House in Pickering affords clearer guidance than decisions in other jurisdictions relating to rights set out in written constitutions.
The claim for false imprisonment
48. I consider that there is no substance in the submission that the appellant was falsely imprisoned during his detention by the police. He was lawfully arrested pursuant to section 14(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1989 and after his arrest he was lawfully detained pursuant to section 14 (4) and (5) of that Act. I do not express an opinion on the correctness of the judgment which I delivered in the Divisional Court in Re Gillen  NI 40 and on whether that case is distinguishable from ex parte Hague where the two persons detained were both serving sentences of imprisonment, but the alleged facts considered by the court in Gillen, where it was claimed that police officers seriously assaulted a person in custody to try to extract a confession from him, are far removed from the present case, and I consider that the premature authorisation and the breach by the police of section 15(9)(a) of the 1987 Act did not render the detention of the appellant unlawful.
The claim for a new innominate tort
49. It was submitted that if the appellant was not entitled to damages for breach of statutory duty or for false imprisonment, he would be left without a remedy for a breach of section 15, and therefore the common law should give him a cause of action for that breach. I do not accept this submission because if there is no right to recover nominal damages for a breach of statutory duty I consider that there is no reason for the common law to give a cause of action for such breach. Moreover, judicial review affords an effective remedy for a breach of section 15.
Accordingly for the reasons which I have given I would dismiss this appeal.
50. Access to legal advice and the independence and integrity of the legal profession are cornerstones of a free society under the rule of law. They are guarantees against the practice of holding undesirables incommunicado, which is a hallmark of a totalitarian regime. Yet they are of little intrinsic value in themselves. For most people and for most of the time there is no need of them. What matters is that they should be there when needed. Their importance lies in the potential seriousness of the consequences if they are not.
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.
52. Mr Cullen was detained in police custody in Northern Ireland on suspicion of having committed an offence under the provisions of the anti-terrorism legislation. By virtue of Section 15(1) of the Northern Ireland (Emergency Provisions) Act 1987 he was entitled at any time at his request to consult a solicitor privately. As my noble and learned friends Lord Bingham of Cornhill and Lord Steyn have observed, comparable statutory provisions apply generally to other offences, so the case is of general importance and is not limited to persons suspected of a terrorist offence.
53. Section 15 does not, however, give a detainee an unqualified right to request an immediate consultation with a solicitor. In prescribed circumstances a senior officer may lawfully delay compliance with his request. It is common ground that those circumstances were present in Mr Cullen's case. Accordingly, although his request was not acceded to straightaway and he was not allowed to see a solicitor for some 24 hours, his important substantive right to consult a solicitor was not unlawfully denied or delayed.
54. Denial or deferment of the right is attended by a number of procedural safeguards. Their importance varies. Section 15(2) entitles a detainee to be informed of his right as soon as practicable after he is detained. This is obviously of cardinal importance to the exercise of the right; but it was not infringed in Mr Cullen's case. Section 15(3) requires the detainee's request and the time at which it is made to be recorded in writing. This requirement is imposed in the interests of good administration but it does not affect the exercise of the right: it too was not infringed in Mr Cullen's case. But two procedural irregularities did occur. Each of the decisions to deny Mr Cullen's access to a solicitor was made in advance of his request; and he was not informed of the reasons for the decisions.
55. I am not myself persuaded that on the facts of this case the first of these was an irregularity. Each of the decisions must have been made very shortly indeed before the request, and since there was no time for circumstances to change in the meantime and no indication that the officer concerned did not maintain his opinion that access should be delayed, I would have thought that there was sufficient compliance with the statute. But little if any reliance was placed in argument on this failing which, if it was an irregularity at all, was trivial; and I need say no more about it.
56. The other failing cannot be so easily disposed of. The importance of the right to be given reasons for an adverse decision should not be underestimated, since in their absence the person affected may be unable to judge whether to challenge it. Moreover, as my noble and learned friends Lord Bingham and Lord Steyn have emphasised, the obligation to give reasons serves other important functions as well. On the other hand, the failure to give reasons had no adverse consequences in Mr Cullen's case, since good reasons could (and no doubt would) have been given if anyone had remembered to give them. There is no suggestion that the omission to do so was deliberate or in bad faith, which would be a very different case.
57. I do not think that the failure to give reasons rendered the decision itself unlawful. The one is not a condition of the other. But it does not matter. Whether or not the failure to allow immediate access to a solicitor was technically lawful, it was legally justifiable.
58. Mr Cullen's right to consult his solicitor, then, was briefly but justifiably delayed. Neither the delay itself nor the failure to explain the reasons for it occasioned him any prejudice or adversely affected his trial. The delay was very short and nothing of any consequence occurred during it. He made no admissions to the police until after he had enjoyed an unsupervised consultation with his solicitor. Thereafter he freely admitted his guilt, and in due course pleaded guilty to the charges against him. It is not and could not properly be alleged that Mr. Cullen was denied a fair trial, and if on a scrutiny of the proceedings as a whole the Strasbourg Court agreed that this was the case it would be bound to conclude that there was no breach of Article 6(1) or (3)(c) of the Convention: see Imbrioscia v Switzerland  17 EHRR 441.
59. Accordingly the question for decision is whether a person who is detained by the police and briefly but lawfully or at least justifiably denied access to a solicitor is entitled as of right as a matter of English law to damages (be they small or nominal) for a procedural irregularity made in good faith and which, though important, had no adverse consequences of any kind, neither prolonging his detention nor prejudicing the conduct of his defence and rendering his trial unfair, and causing him neither financial loss nor physical harm or mental distress.
60. Mr Cullen's primary claim is that he has a private law claim to damages for breach of statutory duty. Alternatively he contends that he is entitled to damages at common law for false imprisonment or for a new innominate tort.
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  NI 126; R v Deputy Governor of Parkhurst Prison Ex parte Hague  1 AC 58. In saying this I do not wish to cast any doubt on the correctness of the decision in Re Gillen  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  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:
63. Accordingly the question is whether the statutory right of person in custody to be afforded access to a solicitor (or to be informed of the reasons why such access is being denied or delayed) is a private law right enforceable by an action for damages. If it is, then damages are not discretionary; if loss is established, damages are as of right. But if it is a public law right, it is not enforceable by an action for damages, though it may be enforceable by other means which, prior to the HRA, did not lead to an award of damages.
64. At p 731 Lord Browne-Wilkinson summarised the principles which are applicable in determining whether a cause of action for breach of statutory duty exists. He said:
65. In that case Lord Browne-Wilkinson was considering the effect of statutory provisions establishing a regulatory system or a scheme of social welfare for the benefit of the public at large. He observed that the House had not been referred to any case where a statute of this kind had been held to give rise to a private right of action for damages for breach of statutory duty. He acknowledged the fact that regulatory or welfare legislation affecting a particular area of activity did in fact give protection to individuals particularly affected by that activity, but said that such legislation was not to be treated as being passed for the benefit of those individuals but for the benefit of society in general. Such legislation may be contrasted with the kind referred to by Lord Diplock in Lonrho Ltd v Shell Petroleum Co Ltd (No 2)  AC 173, 185:
66. Although not referred to by Lord Browne-Wilkinson, the cases show that there is a further aspect to be considered before a cause of action for breach of statutory duty can arise. It is not enough that Parliament shall have imposed the duty for the protection of a limited class of the public. It must also be shown that breach of the duty is calculated to occasion loss of a kind for which the law normally awards damages. In Pickering v Liverpool Daily Post and Echo Newspapers plc  2 AC 370 Lord Bridge of Harwich said at p 420:
67. In my opinion Mr Cullen's claim does not satisfy these tests. The right of access to a solicitor affords a vital protection for persons in custody, but I do not think that such persons constitute a limited class of the public in the sense in which that expression is used in the present context. It is a quasi-constitutional right of fundamental importance in a free society - indeed its existence may be said to be one of the tests of a free society - and like habeas corpus and the right to a fair trial it is available to everyone. It is for the benefit of the public at large. We can all of us, the innocent as well as the guilty, sleep more securely in our beds for the knowledge that we cannot be detained at any moment at the hands of the state and denied access to a lawyer.
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)  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:
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.
69. These considerations alone persuade me that Mr Cullen's right of access to a lawyer was a public law right incapable of forming the basis of a private law action for breach of statutory duty. But they are reinforced by the reflection that denial of the right by itself (that is to say where it does not cause or prolong unlawful detention) is incapable of causing loss or injury of a kind for which the law normally awards damages. I agree with my noble and learned friend Lord Hutton that this may be wider than the formulation adopted by the Court of Appeal that the claimant must have suffered personal injury, injury to property or economic loss. But even on the wider formulation Mr Cullen suffered no damage. He was constrained to argue that an action for breach of statutory duty is actionable per se, that is to say without proof of damage. I do not think that the submission can stand with Lord Bridge's statement of principle in Pickering.
70. I would therefore reject Mr Cullen's claim to damages for breach of statutory duty.A new innominate tort
71. Mr Cullen invites the House to create a new innominate tort in order to fill what he submits would otherwise be a serious lacuna in our law. Absent a cause of action for breach of statutory duty or false imprisonment, he says, he would be left without redress for a breach of a fundamental and quasi-constitutional right implicitly guaranteed by Article 6 of the Convention. In my opinion the submission fails for the reason already given, that the duty which it is sought to enforce is a public law duty. If there is a lacuna to be filled, it must be filled by expanding the scope of our public law remedies. There is no lacuna in private law. The common law provides adequate private law remedies in tort if the detention is or becomes unlawful (false imprisonment) or access to a lawyer is deliberately and improperly denied in bad faith (misfeasance in public office). I would decline the invitation to create an additional private law action for damages to deal with a case of inadvertent failure on the part of the authorities which occasions no loss or damage to the claimant.
72. Whether there is a need to fill a lacuna in our public law remedies to deal with such a situation can be judged by considering whether the HRA would have provided Mr Cullen with a claim for damages had the events in question occurred after the HRA had come into force. I shall return to this question later.
73. There is no doubt that an unlawful denial of access to a lawyer is remediable by judicial review. Moreover, the failure to give reasons for an adverse decision is a paradigm example of a procedural defect which can form the basis of a challenge by way of such review. Mr Cullen's difficulty is that he seeks an award of damages. The Court has power to award damages on an application for judicial review, but only if it is satisfied that the applicant would have been entitled to such damages if he had made the claim in a separate action instead of by way of judicial review: see Section 20 of the Judicature (Northern Ireland) Act 1978. In England Section 31(4) of the Supreme Court Act 1981 is to the same effect. Mr Cullen's claim cannot, therefore, be satisfied by this means.
74. I am, of course, sensible of the practical difficulties which may face an applicant for judicial review who has been denied access to a solicitor, particularly when he has not been told why. This may well mean that he cannot bring proceedings at the time and must be content with doing so after the event. But I am at a loss to understand why it should be thought that this is reason for awarding compensation for a loss which he has not suffered. It is hardly a sufficient answer to say that the damages should be modest when there is no obvious justification for awarding any.
Section 8 of the HRA
75. Mr Cullen cannot bring proceedings under Section 8 of the HRA since the HRA was not in force when the events giving rise to his claim took place. But it is helpful to test the validity of his claim that there is a lacuna in our public law by considering whether he would have been entitled to recover damages by proceedings under the Section if those events occurred today.
76. Section 8 of the HRA needs to be read with Section 6(1). This provides:
So far as material Section 8 provides
77. If Mr Cullen were to bring his claim for damages under Section 8 (assuming that this was open to him) he would face two insuperable difficulties. The first is that, as I have already pointed out, the police did not act in a way which was incompatible with his Convention rights. They did not unlawfully deprive him of his liberty contrary to Article 5, and their refusal to allow him immediate access to a lawyer (and still less their failure to advise him of the reasons for doing so) did not did not deprive him of a fair trial contrary to Article 6. It follows that there is no basis for a claim to damages under Section 8 on the ground that the police acted unlawfully under Section 6.
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.
79. The Law Commission reported that the most striking feature of Strasbourg case law to lawyers from the United Kingdom is the lack of clear principles as to when damages should be awarded and how they should be measured. This may be because within Europe there are divergent traditions as to the assessment of damages. German and Dutch systems, like ours, have developed detailed rules for this purpose. French and Belgian courts, by contrast, proceed relatively empirically, particularly in matters of causation. As a result, one commentator has written of the Strasbourg jurisprudence:
(see Dinah Shelton "Remedies in International Human Rights Law" (1999) p 1.)
80. In this situation, we may have to develop our own jurisprudence, while keeping an eye open on the case law of the Strasbourg Court to ensure that we do not stray too far from the principles which that Court may lay down. There is, of course, no Convention reason why we may not be more generous than the Strasbourg Court. The United Kingdom's duty is to ensure that the complainant receives not less than "full reparation" for the breach of his Convention rights; the Convention leaves us at liberty to award him more. Whether Parliament has given the Court power to do so is another matter.
81. According to the case law of the Strasbourg Court, the status of "victim" may exist even where there is no damage; but there can be no question of compensation where there is no pecuniary or non-pecuniary damage to compensate: see Wassink v Netherlands  ECHR 1253/86. Moreover, as the Law Commission reported at para 4.74, awards of nominal damages have not featured in the practice of the Strasbourg Court, and in a number of cases the Court has explicitly refused to make such an award. Where neither pecuniary nor non-pecuniary loss is established, the decision of the Court that the conduct complained of constitutes a breach of a Convention right is generally regarded as "sufficient just satisfaction" for the breach. I agree with the conclusion of the Law Commission that, given the power of our domestic courts to make an appropriate declaration under the HRA, there seems little reason for making an award of nominal damages. Indeed, a former Law Commissioner has suggested that, since nominal damages at common law perform the same function as a declaration in acknowledging that the defendant's conduct was wrongful, they should be abolished: see Professor Andrew Burrows QC Remedies for Torts and Breach of Contract (2d ed 1994) pp 269-270.