Cullen (Appellant) v. Chief Constable of the Royal Ulster Constabulary (Respondent) (Northern Ireland)
82. The practice of the European Court is therefore inconsistent with an award of either modest or nominal damages in a case where neither pecuniary nor non-pecuniary damage is established. It follows that such an award cannot be justified by a supposed need to deter the authorities of the state or to vindicate a Convention right.
83. This does not mean that we have no power to make such an award for those purposes, but it does mean that we should be departing from the jurisprudence of the Strasbourg Court in doing so. I am firmly of the view that we should not take such a course. Moreover, I doubt that it would be consistent with Section 8(3) of the HRA to do so.
84. Section 8(3) authorises the Court to award damages for breach of a Convention right only where the Court is satisfied that this is necessary. The significance of this limitation should not be overlooked. It means that Parliament contemplated that there would be cases where a breach of a Convention right did not automatically give rise to an award of damages, and this is inconsistent with the notion that such an award is necessary to vindicate the right. The most obvious case where an award of damages is not necessary is where there is no damage to compensate. In such a case it is not necessary to conform to the principles laid down by the Strasbourg Court. It is not necessary in the interests either of corrective or of distributive justice. Nor is it necessary to make the right effective. Where the right is contested, a declaration is sufficient; it is not necessary to give the claimant a windfall, however modest, in addition. Moreover, it would seriously undermine public confidence in the administration of criminal justice if an offender who pleaded guilty to a criminal offence and received an appropriate sentence, after having already had the costs of his defence funded by the state, were in addition to receive a monetary award because of an error on the part of the police which had no adverse consequences to him. I think that the public would see the payment as rewarding the offender for his offence, and would ridicule a justice system which tended to be more solicitous of the offender than of his victim.
85. For these reasons, and in agreement with my noble and learned friend Lord Hutton, I would dismiss this appeal.LORD RODGER OF EARLSFERRY
86. I have had the privilege of considering the speeches of my noble and learned friends Lord Hutton and Lord Millett in draft. I agree with them and, for the reasons they give, I too would dismiss the appeal. In brief, while the duty of the police under section 15(9)(a) of the Northern Ireland (Emergency Provisions) Act 1987 to tell a detainee, such as the appellant, the reason for authorising a delay in complying with his request for access to a solicitor is specific, it is a public law duty. Its principal purpose is to ensure that, in an appropriate case, a detainee can challenge an improper decision under subsection (5) to authorise a delay. The appropriate civil remedy for its breach is by judicial review. Having regard to the guidance given by Lord Bridge of Harwich in Pickering v Liverpool Daily Post  2 AC 370, 420A - D, I see no basis for concluding that section 15(9)(a) is intended to give a detainee, such as the appellant, a private law cause of action sounding in damages where, as here, he has suffered no harm as a result of its breach. I add two footnotes.
87. The right of a detainee to consult a solicitor under section 15 of the 1987 Act and equivalent provisions in other statutes is clearly of great importance in the overall legislative scheme which they establish for the fair investigation of crime. In conformity with the approach of Laws J in R v Lord Chancellor ex parte Witham  QB 575, 581D - F, however, I would hesitate to apply the adjective "constitutional" to a statutory right of that kind. In the case of section 15 that hesitation is reinforced by the fact that, within the United Kingdom, Parliament has conferred different rights on detainees in Northern Ireland and England and Wales on the one hand, and in Scotland on the other. In particular, in Scotland those detained for questioning by the police have no right to consult a solicitor. This difference may well be explicable by reference to the much more restricted powers that are given to the police in Scotland to detain people for questioning. In the ordinary case a person can be detained for that purpose for a maximum of six hours, with no possibility of any extension: section 14(2) of the Criminal Procedure (Scotland) Act 1995. Within that scheme, in terms of section 15(1)(b) the detainee is entitled
So, broadly speaking, in Scotland detention is limited to six hours and the person detained has a qualified right to have intimation of his detention sent to a solicitor, while in the other jurisdictions detention can go on for much longer but detainees have a qualified right to consult a solicitor. As it is entitled to do, Parliament has thus struck the balance differently and established two distinct systems of powers and rights within the same overall constitutional framework of the United Kingdom. In these circumstances, in considering the proper approach to the interpretation of section 15(9)(a) of the 1987 Act, I have not been assisted by the constitutional jurisprudence of other countries.