M & Anor, R (on the application of) v Commissioner Of Police Of Metropolis [2001] EWHC Admin 553 (13th July, 2001)

Neutral Citation Number: [2001] EWHC Admin 553 IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT DIVISIONAL COURT Royal Courts of Justice Strand, London, WC2A 2LL Friday 13th July 2001 B e f o r e : LORD JUSTICE LAWS and MR JUSTICE POOLE - - - - - - - - - - - - - - - - - - - - - REGINA ON THE APPLICATION OF M & LEON LA ROSE Claimant - v - THE COMMISSIONER OF POLICE OF THE METROPOLIS Defendant - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal Reporting Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - Mr Raza Husain (instructed by Hickman & Rose for the M & L La Rose) Mr John Beggs (instructed by The Metropolitan Police for the The Commissioner of Police of The Metropolis) - - - - - - - - - - - - - - - - - - - - Judgment As Approved by the Court Crown Copyright © POOLE J: 1 Issues In these applications the Claimant M seeks a declaration that the Defendant's failure to provide a room for consultation with his solicitor was in breach of Article 6 (3)(b) of ECHR, contrary to s.6 of the Human Rights Act 1998. The Claimant La Rose seeks 1) a declaration that the Defendant's failure to provide facilities for the Claimant to have a private telephone consultation with his solicitor was in breach of Articles 6 (3)(b)(c) and 8 of ECHR, contrary to s.6 of the Human Rights Act 1998; 2) compensation for breach of s.58 of the Police and Criminal Evidence Act 1984 and/or section 6 of the Human Rights Act 1998, pursuant to s.8 of the Human Rights Act 1998. The issues raised, as the Claimants put them, are whether the Defendant discharged his obligation under s.6 Human Rights Act 1998 to ensure that: (1) The Claimant M had adequate facilities provided to him for the preparation of his defence under Article 6(3)(b) at Tottenham Police Station following his arrest in circumstances where he was denied use of an interview room for an important and lengthy legal consultation, and provided merely with the use of an inappropriately equipped and unsanitary cell; (2) the Claimant La Rose had adequate facilities provided to him for the preparation of his defence and legal assistance under Articles 6(3)(b),(c) and 8 at Hornsey Police Station following his arrest in circumstances where he was denied facilities to make legally privileged telephone calls in private. The issue in the amendment, first raised by the Claimants some two working days before the hearing, is whether the memorandum summarised by Inspector Roberts in his letter of 7.12.99 to the Legal Aid Board amounted to a policy instruction in relation to the provision of adequate facilities. The issue it is claimed is whether the practice of the Defendant illustrated in the two cases amounted to: (1) an unlawful failure to follow policy, or alternatively (2) an unlawful disappointment of a legitimate expectation arising out of such a policy. This was an entirely new ground, amendment was required, and leave was granted. 2 Facts in M. The Claimant M was a minor in receipt of special education at the material time, and of previous good character. On 11th October 2000 he had been held in detention overnight at Tottenham Police Station, having been arrested for offences of attempted robbery and possessing an offensive weapon, but having never previously attended a police station. There was an alarm in the interview room, whereas none was pointed out in the cell. There was however a bell connected to the Custody Suite. An individual on crutches who had been arrested for assault and criminal damage on the same day was permitted to use the interview room. At the time of the solicitor's request for the use of an interview room, both rooms were empty. It should be noted that there are no consultation rooms as such at Tottenham. The cell is said to have been dirty and smelly. There was a lavatory in one corner and a bench with a mattress in another, where the Claimant, the solicitor Ms Lofters and the appropriate adult Ms Trott sat throughout the consultation. Privacy it is claimed was not assured owing to the wicket in the door through which officers could look or listen. (There was no suggestion, still less any evidence, that any officer did so.) Communication and eye contact was difficult, rendering it difficult for Ms Lofters to assess M's understanding of her advice, and his credibility. The Claimant found it difficult to concentrate; he was stressed and anxious. Ms Lofters found it difficult to take notes. The consultation lasted approximately two hours because the Claimant had difficulty understanding Ms Lofters' advice. 3 The Defendant's `policy' on the use of cells for solicitor-client consultation The Claimant argues that the evidence disclosed by the Defendant indicates that, by virtue of its nature, content and authorship, the memorandum summarised by Inspector Roberts in his letter of 7.12.99 to the Legal Aid Board represents the considered policy of the Defendant as to the provision of adequate facilities for solicitor consultations at police stations. Such policy, it is argued, appears to have been arrived at after a history of expressed concern, and is consistent with Home Office guidance. The main points of the policy are as follows: (1) "A reasonable standard of facilities is essential in order to .. ensure that the physical conditions do not compromise the provision of proper legal advice or otherwise unreasonably disadvantage the detained person. .." (2) "If a designated room does not exist or is not available, a suitable alternative must be considered. It is impossible to envisage that a taped interview room could never be safely used for any private consultation without damage being caused to the equipment, particularly if relatively straightforward modifications are made, such as a viewing panel, a cover for the tape recorder and the installation of an alarm." (3) The "use of police cells must be a last resort .. Cell conditions generally are not conducive to a proper consultation, privacy cannot easily be demonstrated or guaranteed." (4) "the provision of suitable facilities at Metropolitan Police Service designated police stations to enable detained suspects to exercise their right to legal advice in accordance with PACE, the Codes of Practice and Article 6 of the Human Rights Act 1998 is an obligation - not a discretionary option. The importance of the right to legal advice indicates that claims that financial or other constraints prevent taking any action whatsoever to provide any facilities for consultations other than a cell would not be justified ". (5) "Borough Commanders should ensure that cells are used only as a last resort by - (i) giving directions and making arrangements to allow taped interviews rooms to be used in appropriate cases .. " The Claimant M argues that the Defendant's practice at Tottenham is inconsistent with `the policy' promoted by Inspector Roberts. Sample witness statements from solicitors demonstrate that while there is some degree of flexibility in other stations in allowing the use of interview room for solicitor-client consultations, Tottenham stands out as the station where interview rooms for such consultations are, on the whole, intransigently refused. (The court notes that this assertion sits rather uneasily with the Claimant's own evidence that an interview room was made available to a disabled suspect shortly before M's solicitor-client consultation.) Where interview rooms are provided, it is claimed, this is often on an arbitrary basis for no other reason than the identity of the particular custody sergeant on duty. 4 The Facts in La Rose The Claimant was arrested on 9.10.00 for taking and driving away. Following his arrival at Hornsey Police Station at 5.05 pm and on discovery of a wrap of herbal cannabis, the claimant was further arrested for possession of cannabis. Prior to his arrest the Claimant had made arrangements to collect his six-year old brother from the house of his cousin who was baby-sitting him. The Claimant's cousin needed to go out in the evening. Accordingly, the Claimant wanted to have matters dealt with at Hornsey Police Station as expeditiously as possible in order that he could collect his brother and enable his cousin to leave the house. It is worth commenting here that there was no suggestion of the child's welfare being compromised. He was in good hands, entrusted there by the Claimant. The Claimant's `expedition' was generated by his own preference to leave the station early, which was in turn generated by his cousin's `need' to go out. Shortly afterwards, the Claimant received a telephone call from his solicitor Ms Emma Norton of Hickman and Rose whom the police had informed. The telephone was in the custody area on the custody sergeant's desk near the computer. The Claimant attempted to pull the telephone as far away from the custody sergeant's desk as possible. The custody sergeant remained present behind his desk during the consultation. The two arresting officers were also present in the custody suite. A young detainee and her social worker were also in the custody suite. Ms Norton advised the Claimant to limit his responses to "yes/no" answers. It is not suggested that anyone, police officer or otherwise, attempted to eavesdrop on the Claimant or overheard anything that he said. On 15.12.00 Hickman and Rose wrote a letter before action to the Defendant. complaining that the failure to afford the Claimant facilities for private telephone calls for a legal consultation amounted to a breach of section 58 PACE and Articles 6(3)(c) and 8 ECHR, and that unless the Metropolitan Police Service undertook to provide such facilities within a reasonable time-frame, judicial review proceedings would be issued. Because of the location of the phone, it was submitted, the Claimant's solicitor was constrained to ask him questions to elicit "yes/no" answers. This removed the opportunity to have a full consultation to enable him to be as prepared as he could have been for the police interview that followed. The 7.12.99 circular referred to by Inspector Roberts recognised that the giving of legal advice following arrest at a police station prior to interview has a potentially critical impact on the conduct of the defence; the mere provision of some telephone facilities in order to consult with a solicitor did not extinguish the content of the Claimant's rights since Article 6(3)(c) requires confidentiality of legal communications. Therefore, it was argued, in the absence of confidentiality, adequate facilities for the preparation of his defence were not afforded to the Claimant under Article 6(3)(b); nor were his rights to respect for his private life and correspondence observed under Article 8. No justification had been advanced; in any event the interference with such rights was wholly disproportionate. 5 Submissions in M Mr Husain first reminded the court that rights guaranteed by Article 6 enjoy such a central place in both English law and in the Convention scheme that they must be broadly interpreted. Article 6(3) provides that "Everyone charged with a criminal offence has the following minimal rights (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing .." "Charge" is an autonomous Convention concept. An arrest in the UK amounts to a charge within the meaning of Article 6(3). In the event, the Defendant did not suggest otherwise. Article 6(3)(c) requires confidentiality of communications between a detained person and his lawyer. Eavesdropping or interception by the police violates "one of the basic requirements of a fair trial in a democratic society". Again, the Defendant did not suggest otherwise. In Schonenberge and Durmaz v Switzerland (1998) 11 EHRR 202, a case on its facts somewhat distant from those the court is considering here, the Court held that "If a lawyer was unable to confer with his client and receive confidential instructions from him .. his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights which are practical and effective." Mr Husain further submitted a) that in determining whether adequate time and facilities have been afforded to the defence, importance is to be placed on the appearance of fairness and on the increased sensitivity of the public to the fair administration of justice; b) that correspondence for the purposes of Article 8 includes telephone calls. Interference with communications with lawyers will be subject to particularly intense scrutiny; c) that while Articles 6(2) and 6(3) exemplify the requirements of 6(1), they are not to be collapsed into Article 6(1). The rights in Article 6(2) and 6(3) are independent, free-standing guarantees; d) that in particular the demonstration of prejudice is not, or ought not to be, a necessary element of establishing a breach under Article 6(3): Artico v Italy (1980) 3 EHRR 1 (where it was held that a requirement to show actual prejudice from a lack of legal representation would deprive the guarantee of its substance); e) that since Article 13 was not incorporated because the Human Rights Act 1998 itself provided an effective remedy for arguable breaches of Convention rights, it is appropriate for the Court on judicial review to give declaratory relief, where the Article 6(3) breach complained of does not depend on or include prejudice, or where an Article 8 breach is alleged. In the case of the Claimant M, `inadequacy' for the purposes of Article 6(3)(b) was made out he argued for these reasons:- (1) A pre-interview consultation is a critical stage of the criminal process with the possibility of adverse inferences arising out of a no comment interview. No amount of post-interview consultations with a defence solicitor will have effect on the possibility of those inferences being drawn. The Defendant in his evidence and submissions had understated or entirely missed the import of the pre-interview stage. In my view, Mr Husain's assessment here is clearly right. (2) The Claimant's solicitor found it virtually impossible to perform her central duties in assessing his temperament, nature and credibility and determining whether he was following her advice. That factors specific to M - his age, nature and vulnerability - contributed to the inadequacy in the facilities provided did not avail the Defendant. (3) Rights implied into article 6 (e.g. access to court) are derogable; express rights are not. It was in determining the content of the express rights granted under Article 6(3) that some leeway was granted to a state. It was accepted that resources were not irrelevant to a computation of inadequacy. But regard must be had to the period of notice afforded to the Defendant, the standard of facilities enjoyed, and any remedial action taken. Here no evidence had been provided as to the resource implications of providing ad hoc adjustments to existing interview rooms, where they are available, for the use of solicitor-client consultation. Such resource implications - the provision of a protective cover for tape-recording equipment, for example, were unlikely to be onerous. Moreover safety and privacy considerations pointed in favour of interview consultations as compared to consultations in cells. In the context of free and unhindered communication of information and instructions, perceptions and appearances of privacy are as important as the actuality of the situation. The lack of priority given to the issue by the Defendant was telling against him, and was inconsistent with his policy. (4) The Claimant's submissions were not defeated by his guilty plea. Article 6(3) embodies discrete rights that are not necessarily to be assimilated to Article 6(1). An inadequacy in facilities may or may not contribute to a guilty plea. The guilty plea does not extinguish entitlement to the Article 6(3) right. It was submitted that the Defendant's practice (at least in Tottenham) demonstrated a failure to follow the Defendant's general policy instruction. In essence the practice demonstrated that use of an available interview room is considered a last resort, with consultations in cells the norm. This was to reverse the dictates of the policy instruction. Moreover, again contrary to the policy, it appeared that the practice was to invoke resource implications as a justification for taking no action, without considering any short term remedial measures to facilitate interview room use. The defendant's practice accordingly amounted to an unlawful failure to follow his own policy: Iye v Secretary of State [1994] Imm AR 63, 66 per Glidewell LJ; or alternatively amounted to a disappointment of a legitimate expectation arising out of such a policy: R v SSHD ex p Ahmed and Patel [1998] INLR 570, 591g-h per Hobhouse LJ (as he then was): the doctrine of legitimate expectation, it was stressed, was grounded in principles of fairness in public law and not the private law concept of estoppel. Thus there is no need for express communication, actual knowledge, detrimental reliance, or change of position. 6 Submissions in La Rose The Defendant's failure to make available even ad hoc facilities to enable the Claimant to conduct a legally privileged telephone consultation in private was in breach of Articles 6(3), 8 ECHR, contrary to s.6 Human Rights Act 1998 and s.58 of the Police and Criminal Evidence Act 1984. (1) The fact that a private face-to-face consultation was available did not extinguish the Claimant's right to preservation of the sanctity of legally privileged telephone correspondence: Mr Husain argued that an analogous argument in the prison context relating to written correspondence was rejected by Steyn LJ (as he then was) in R v SSHD ex p Leech [1994] QB 198 ), again a case on its facts, it is fair to observe, not a little remote from that of the Claimant. (2) The mere provision of some telephone facilities in order to consult with a solicitor does not extinguish the content of the Claimant's rights since Article 6(3)(c) implies confidentiality of legal communications: S v Switzerland (1992) 14 EHRR 670 paragraph 48. Home office guidance had indicated that "aural privacy is essential" (albeit in the context of face-face consultation). (3) In the absence of assured confidentiality the Claimant was unable to relay his version of events to his solicitor, and thus unable to receive proper and comprehensive advice at a potentially critical stage of the process. Here, again, appearances and perceptions of privacy were at least as important as the actuality of the situation; (4) In the absence of confidentiality and its effects, adequate facilities for the preparation of his defence were not afforded to the Claimant under Article 6(3)(b); (5) Nor were his rights to respect for his private life and correspondence observed under Article 8. (6) The submission that breaches were minor and transient and remediable post-interview missed the potential critical importance of the pre-interview consultation; (7) No evidence had been advanced to justify the interference with the Claimant's rights under Article 6(3) or 8. There was no evidence as to resource implications. The provision of a private telephone line, as envisaged by Home Office guidance was unlikely to have significant resource implications: the statement of the witness, Nogah Ofeh suggested a cost of under £100. (8) Furthermore, a system whereby private telephone calls were secured to suspects for the purposes of legal consultation would have significant general advantage to the public as well as to the individual: (a) time spent in custody by suspects would be reduced; (b) anxiety would be alleviated; (c) ventilation of inappropriate behaviour by officers following arrest and prior to interview or face-to-face legal consultation would be facilitated with a correlative effect on officer conduct. (9) The failure to provide requisite facilities was in breach of s.58 PACE. On the question of discretion Mr Husain submitted that the Court should not refuse relief on the basis that the applications were academic by virtue of the guilty pleas entered by the Claimants. M and La Rose could continue to plead victim status as persons subject to the Defendant's practice. Mr Beggs did not submit that the Court should exercise its discretion on such a basis, nor did it occur to the Court that it should. 7 Defendant's submissions Mr Beggs for the Defendant argued (i), as to M, the cell facilities provided were (a) adequate within the meaning of Article 6(3) (b) in accordance with PACE (c) the best available in the circumstances; and (d) in any event made no overall difference to the fairness of the prosecution against M. (ii), as to La Rose, the telephone facilities provided were (a) adequate within the meaning of Article 6(3) (b) in accordance with PACE; and (c) in any event made no difference to the overall fairness of the prosecution against M. (iii) The Article 8 claim was theoretical. The right to adequate facilities meant that the accused must have the opportunity to organise his defence appropriately, with the view to enabling him to put all relevant arguments before the trial court ( Can v Austria (1985) 8 EHRR 121). Neither Claimant had alleged that he was unable to do this as a result of the matters complained of. Both Claimants pleaded guilty, on advice of their lawyers. Neither prayed in aid in mitigation, or by way of preliminary objection before guilty plea, the alleged breaches of Article 6. As a matter of causation it could not be said that any alleged unfairness of the cell consultation or telephone call was causative of any actual, as distinct from theoretical, unfairness. Indeed, he submitted, it is even difficult to identify theoretical unfairness. Neither Claimant's right to a fair trial was breached, as fairness of the proceedings as a whole was assured. A decision as to the fairness of a hearing is based on an assessment of the course of the proceedings as a whole ( Kraska v Switzerland (1993) 18 EHRR 188 (at paragraphs 30-32)). Furthermore, the three paragraphs of Article 6 should be read together, as the general provision in Article 6(1) supplement the specific guarantees of Article 6(2) and (3). The Act and the Convention were intended to guarantee rights which are not theoretical or illusory, but practical and effective ( Airey v Ireland (1979) 2 EHRR 305). Entertaining these claims, where neither Claimant's right to a fair trial had been interfered with, would allow the Convention to be used in a theoretical and illusory manner. This would be tantamount to condoning abstract non-compliance with the Convention as a basis for a claim. On the question of resources, he submitted that if the Court were to find that the facilities afforded were not `ideal', which he readily conceded, it was the Defendant's case that such facilities were the best that could be provided due to limited resources. Refurbishment building works were currently being performed at Hornsey police station, which included the provision of a consultation room suitable for solicitor-client consultations. In light of this, and the intention to build a new Borough Headquarters in Haringey within the next five years, further funding from the budget would simply not be possible. We were referred to the evidence of Superintendent Stephen James. In another statement Insp. Roberts had set out the history of the Defendant's efforts to maintain and improve the facilities within his custody suites. Such efforts continued but were inevitably constrained by budgetary considerations. Any ruling requiring the Police immediately to provide separate consultation rooms, suitable for solicitor-client consultations/telephone calls, would be impossible and/or would impose a disproportionate burden on the authorities, due to limited resources. It was neither in the interests of the individual, nor the community as a whole, to guarantee a right which would be unsustainable due to budgetary constraints. As to the adequacy of M's cell as a consultation room he submitted that neither PACE nor its Codes required the provision of special solicitor-client consultation rooms. M was not deprived of any fundamental rights by having a solicitor-client consultation in a cell. The facilities afforded were adequate for solicitor-client consultations:- Police cells afford privacy and a reasonable opportunity to take instructions and give advice. The fact that cells do not have a table was not fatal to these objectives. Nor was the fact that the bench was the only facility on which to sit. It is easy to achieve eye contact with a client in a cell; any difficulties with eye contact, if they were real, were more to do with the Claimant than with the cell. Similarly, difficulties in assessing the credibility of M were not attributable to the cell. The decision concerning the location for the consultation was he argued reasonable in all the circumstances and in accordance with the law under PACE and Code C. The existence of only two tape recorded interview rooms at Tottenham police station rendered it impractical for them to be used for solicitor-client consultations given the overriding imperative of the police interviewing all detainees within the PACE detention timetable. The interview rooms were sound proofed and contained no `strip' alarm system, both of which factors placed a solicitor (and accompanying adults) in a situation of some risk if they are consulting with potentially dangerous prisoners. This was not something that the police could ignore. There was nothing in PACE or Code C which stipulated the nature of the "room" in which solicitor-client consultations must take place. Paragraph 8 of Code C set out guidelines on "Conditions of detention", none of which were breached in the case of the Claimant. It was accepted that the cell facilities at Tottenham police station were not ideal for solicitor-client consultations. However, that is a comment which could be applied with equal force to a wide range of facilities available to the Defendant's officers across a spectrum of operational situations. But, non-ideal facilities are not the same as inadequate facilities. If and to the extent that the court were to find that the Claimant's rights were "restricted" by the obligation of the cell consultation such restriction was in accordance with the Convention. Where (as here) the right concerned is framed in general terms, without detailed or exhaustive definition, there is room for implied limitations ( Mathieu-Mohin and Clerfayt v Belgium (1987) 10 EHRR 1 paragraph 52)). In Croissant v Germany (1992) 16 EHRR 135 , the ECtHR held that the right of the accused to defend himself in person, which is expressly guaranteed by Article 6(3)(c), does not prevent the national authorities from imposing reasonable restrictions on the right to appear without a lawyer in a complex case. In M's case, the restriction on the quality of his facility to consult his lawyer pre-charge was necessary (i) in the interests of not interfering with the active investigation of any other matters being dealt with at Tottenham police station (having regard to the "human rights" of other detainees), and/or (ii) in the interests of the protection of solicitors and other persons present. Such a restriction was proportionate he argued given that there were no other practical alternatives. The essence of the M's Article 6(3) right was not limited in this case; fairness of the proceedings, as a whole, was still ensured, and the pre-charge consultation was but one stage along the continuum of the prosecution during which M could take advice from his solicitors and prepare his defence. (As I have already indicated, I was persuaded by Mr Husain as to the importance of the pre-charge consultation.) Regarding Mr La Rose, Mr Beggs submitted (a) that his answers to his solicitor on the telephone were not intelligible to any person in the custody suite; when he spoke to his solicitor he gave "yes/no" answers. (b) that in any event, he had not alleged that any police officer was trying to listen, or was actually listening, to his telephone call on 9th October 2000; (c) that nothing he complained of was in breach of PACE or its Codes. There was no breach of Section 58 of PACE 1984. Note 6J to Code C recognises that in some circumstances it will not be practical for the detainee to be able to speak privately on the telephone to his solicitor. If and to the extent that the Court were to find that Mr La Rose suffered a breach of any implied right to confidentiality under Article 6, the restriction was lawful and in accordance with the Convention. An accused's right to communicate with his advocate out of the hearing of a third person is not an express right under Article 6, S v Switzerland (1991) 14 EHRR 670 (paragraph 48). There were no private telephone consultation facilities for prisoners in the custody suite at Hornsey Police Station. In order to ensure absolute confidentiality on the telephone the whole custody suite would have had to be cleared which was plainly not practicable. The ECtHR had recognised that certain (non-absolute) rights carry with them certain limitations, and the Court has been willing to accept the existence of implied limitations where the right itself has been implied into the text of the Convention. The limitation in this case was valid and in accordance with the Convention; it was necessary in the interests of security not to clear the entire custody suite; and it was proportionate, as there was no other practical alternative. Mr La Rose had waived his right to a confidential consultation with his solicitor; such a facility was offered to him (as he acknowledges in his statement, paras 11 to 17), but for personal reasons he declined this offer because a private consultation with his solicitor in person would have taken longer than he was prepared to wait. Waiver by an individual of his rights is only effective if it is `made in an unequivocal manner, and [does] not run counter to an important public interest' ( Schuler-Zraggen v Switzerland (1993) 16 EHRR 405 , at para 58)). It was Mr La Rose's choice to speak to his solicitor on the telephone rather than wait for a private consultation with her. As PS Paterson observes in para 6 of his statement, Mr La Rose knew, from two previous experiences, that there were no facilities for private telephone consultations in the Hornsey police station custody suite. Article 8 To the extent that Article 8 is engaged at all, Mr Beggs submitted that the inference with Mr La Rose's privacy rights was theoretical, transient, of no harm and an inevitable consequence of the limited resources available to the Defendant. This limitation prevented the Defendant from providing, at present, the facility at all police stations for fully private telephone consultations between detainees and solicitors. However, there was no substantive interference with Article 8 because the Claimant does not suggest, nor could it be suggested, that those custody officers, or any other police officers, had any interest or intention to listen to him, or other detainees, whilst on the telephone to their solicitors. Finally, it was to be noted that the custody officer is independent from the criminal investigation. 8 Conclusions M Mr Husain invited us to consider a number of questions, but in my judgment, in each of the claims, the foremost question is whether the interferences with or deprivations of the rights complained of are other than theoretical or illusory. If this question is decided against him, it seems to me that these claims must fail. He referred us helpfully to the decision in Artico v Italy (1980) 3 E. H. R. R. 1, and to the principle that breach of Article 6(3)(c) did not require proof of actual prejudice, since such a requirement would in large measure deprive the provision of its substance. But there is nothing in Artico that requires the court to divorce itself from reality, nor to avert its gaze from the substance of a case. In Artico , the court was acutely alive to the facts of the applicant's case, which included the fact that he had no legal representation at all for his first, unsuccessful appeal to the Court of Cassation. The Italian Government had argued, in effect, that it was for the applicant to prove beyond all doubt that his lawyer (if he had had one) would have pleaded statutory limitation, and would have convinced the Court of Cassation, where the applicant had failed. The Court held that that was to impose an invidious burden on the applicant. It hardly follows from this that where there is absent any real evidence of prejudice, or even any real as opposed to fanciful possibility of it, that absence must be taken as wholly irrelevant. While what the Convention guarantees are rights that are practical and effective rather than theoretical or illusory, by the same token it does not exist to be invoked when the deprivation of a right is itself theoretical or illusory, which is the position as I see it here. Enquiries into rights and their deprivation demand an examination not of the interior of some flickering Platonic cave but of the press of real events. M had a right to legal representation, and to adequate time and facilities for the preparation of his defence. His solicitor was promptly contacted and interviewed him for 2 hours. An appropriate adult was present throughout. Mr Husain complains that the interview took place in the cell and not in one of the police interview rooms, where there would have been more favourable conditions, including a table. He accepted that given the high usage of the interview rooms in what is a crime-ridden borough the consultation might have suffered interruption, and have to be continued in the cell. I am not persuaded that that would have been a more satisfactory arrangement. As to the complaint of the smell, Mr Beggs made the point that the officers, who visit the cells throughout the day, have every interest in their being kept in a state as reasonably clean as possible. He explained the cleaning rota to us. As to privacy, Mr Husain complained of the wicket in the door. There was not a shred of evidence that privacy was compromised by the wicket. In effect, we were being invited to contemplate the possibility that an officer might lurk out of sight around the corner straining to hear what was said. It could happen. An interview room could also be bugged. The point is that there is not an iota of evidence that it happened here or that anyone wanted it to. Mr Husain went on to complain that communication and eye-contact was difficult, affecting Miss Lofters' assessment of M's comprehension of her advice, and of his credibility; that the Claimant found it difficult to concentrate, was stressed and anxious; that she found it difficult to take notes. He then warned the court not to `go behind' Miss Lofters' evidence. We were shown a video of the interior of the cell, and of the available seating. We accept that there was no table, that solicitor and client would be sitting side by side, and not face to face. But speaking for my part, I have difficulty accepting, given that communication and eye-contact were difficult, that this was due to the arrangement and furnishings of the room, and not to the situation in which the Claimant found himself as a young man unused to offending who had just committed serious crimes, who had been arrested for them, and who was now facing questioning from a complete stranger, albeit a sympathetic one. Seen in that light, his difficulties in concentration, his stress and anxiety are all too readily understandable: more readily, I believe, than in terms of the configuration or the nature of the furniture or of the room. The reference to the difficulty of taking notes I take to be one to the absence of a table, and I fully accept that there are those who would much prefer one. It may be that generations of lawyers taking their instructions have managed rather well without, but that does not by itself dispose of the question. Ideally, there should be consultation rooms at every police station, so that neither cells nor interview rooms have to `double up'. We were told, and I accept, that that is the aim of the Defendant. But we were also told, and I accept, that there are resource implications, and that such rooms can not be made immediately available. Ultimately, the question for this court, and I understand it, is whether in their absence this Claimant was denied adequate facilities for the preparation of his defence. Nothing in the submissions of Mr Husain persuaded me that there was any material particular in which he was. La Rose I repeat my observations on Artico . I respectfully adopt its reasoning, but nothing in that case commends a wilful abandonment of reality or of the facts. The facts in Mr La Rose's case were (a) that the police, at his request, had contacted his solicitor; (b) that she had said that it would be some time, one or two hours, before she could arrive; (c) that Mr La Rose was not prepared to wait that long, because his cousin needed to go out that evening (no question, be it noted, arose as to the welfare of the child whom the cousin was baby-sitting); (d) Mr La Rose therefore chose to use the phone, so that he could expedite the process; (e) the phone was situated on the custody sergeant's desk, without question not an ideal location; (f) others were present in the Custody Suite, including the sergeant, other officers and another detainee; (g) when his solicitor rang, Mr La Rose pulled the phone as far from the desk as the spiral cord would permit, and had a consultation with her; (h) on her understandable advice, he conversed by way of `Yes' and `No' answers to her questions; (i) this was a sensible precaution, but there is no suggestion whatever that anyone, police officer or otherwise, eavesdropped, or attempted to, on his conversation. The facts could scarcely be further removed from those in S v Switzerland (1991) 14 EHRR 670, to which we were referred. In that case the client-solicitor interview was actually overseen or intercepted by police officers. Of course, what the case affirmed was the inviolability of privacy of client-solicitor communications. But I do not accept, on the actual facts of the present case, that there was any such violation, nor that this Claimant was in any material particular denied adequate facilities for the preparation of his defence. Policy and denial of legitimate expectation There remains the ground added by amendment at the hearing. First of all, I accept Mr Husain's submission that it is nothing to the point that the Claimants were themselves unaware of such a policy. So much is made clear in R v SSHD ex parte Ahmed and Patel (1998) INLR 570 by dicta of Hobhouse L. J., as he then was. In my judgment the answer to the amendment is the short and fundamental one supplied by Mr Beggs: that there was no such policy. Inspector Roberts' document was a Branch Note, a Briefing Note, aspirational, hortatory in character, and entirely lacking in the authoritative provenance that would justify its description as a Policy Document. Mr Husain, perhaps recognising this, submitted that it didn't matter what we called it: was it intended to be acted upon? Well, no doubt Inspector Roberts and his colleagues hoped it would be. But we saw no evidence of any obligation, and heard little or nothing of the nature of any obligation that Superintendent James and his colleagues, whether at Tottenham or Hornsey, might be under to adopt it. But, in any event, submitted Mr Beggs, the Defendant didn't breach it. It was a statement of best practice, and one to be applied to the existing realities at police stations, architectural, operational and otherwise. I agree, and for the reasons I have given I would dismiss this and the other ground of each application, and would grant neither the declarations nor the compensation sought, while expressing my real doubt that s.58 of the Police and Criminal Evidence Act 1984 sets up, if breached, a statutory tort for which damages might be available. 8 Proportionality Finally, Mr Husain's comments upon proportionality, and references to R v SSHD ex parte Mahmood (CA, 8 December 2000), and R v SSHD ex parte Isiko (CA, 20 December 2000), as well as to a number of Commentaries, including Lord Bingham's in an Earl Grey Memorial Lecture [1998] 1 Web JCLI, were helpful and, to me at least, illuminating. In brief the position may be stated that where the Court reviews a decision that is required to comply with the Convention by the Human Rights Act 1998 it does not substitute its own decision for that of the executive. It reviews the decision of the executive to see if it was permitted by law - in this instance the Human Rights Act. The decision-maker "is required to demonstrate either that his proposed action does not in truth interfere with the right, or if it does, that there exist considerations which may reasonably be accepted as amounting to a substantial objective justification for the interference" (per Lord Phillips M. R. in Mahmood). In my judgment, the decision-maker's actions in this case were in the former category: the conditions for consultation in each case fell short of the ideal, as was conceded, and I express the firm hope the shortcomings identified may be made good with a minimum of delay, but on the detailed and considered facts of each case there was in truth no interference with the right. LAWS LJ: 10 I agree that these applications should be dismissed for the reasons given by Poole J. I add a few words only as to the duty of our courts, arising under the Human Rights Act 1998, to apply and uphold the Convention rights. 11 Over the short period since the coming into force in October 2000 of the principal provisions of the Act of 1998, I think that from time to time the Convention rights have been treated and regarded by claimants' advisers as if they were set in stone: that is, as if their efficacy and applicability were somehow at a distance from the actual facts of the case in which they were invoked. If so, it is a great mistake. The Strasbourg learning suggests no such straitjacket, as my Lord's judgment demonstrates. Moreover by force of the Act of 1998, not least s.2, we are to fashion a municipal jurisprudence of human rights, in light of the decisions of the Court at Strasbourg. That is an endeavour which is by no means separate from the common law's own development. The objective substance and weight of rights which the common law gives are not at all lessened or weakened because, like quicksilver, their shape moves to fit the place where they lie - that is, the facts of the particular case. This condition of robust flexibility is a virtue of the common law. So also it must be a virtue of our domestic law of human rights, which will march with the common law as it matures. ******************* LORD JUSTICE LAWS: For the reasons given in the judgment which has been handed down, these applications are refused. MISS JOHNSON: My Lord, it leaves me simply to make an application for the defendant's costs, and if I could beg to benefit from my learned friend Mr Davenport's careful drafting of the new provisions. LORD JUSTICE LAWS: You would like the same order? MISS JOHNSON: My Lord, yes. LORD JUSTICE LAWS: Mr Husain. MR HUSAIN: My Lord, so be it. I have an application for legal aid assessment of the claimants' costs. LORD JUSTICE LAWS: Detailed assessment under the Access to Justice Act, whatever it is. We will make those orders. You will see that the drafting is correctly done, Miss Johnson, and handed in. MISS JOHNSON: I will, my Lord. LORD JUSTICE LAWS: Very well then. MR HUSAIN: My Lords, I do have an application. Before I make that, can I just check that my Lords received a very short list of corrections which I faxed through to the court. LORD JUSTICE LAWS: I hope they have been incorporated. MR JUSTICE POOLE: Yes, I did receive them. LORD JUSTICE LAWS: Poole J did. I think my clerk did. MR HUSAIN: I am most grateful. My Lords, the other application I have is an application for leave to appeal. My Lord Laws LJ, at the conclusion of the hearing, I recall remarked that this was an important case, at least on the policy point. Given the emphasis on the policy point, we would say that this is not a criminal cause or matter. I have some authority on the point, but clearly this is a case which will affect a wide class of vulnerable citizens. There are important points. I would respectfully seek permission to appeal. LORD JUSTICE LAWS: No, we do not think that this is a case for permission. But thank you, Mr Husain. MR HUSAIN: My Lord, can I just make one other application. I am so sorry. There is suggestion in the CPR part 52.4 that where there is the possibility of a renewed application for permission to appeal to the Court of Appeal, this court could direct a modest extension of time in which the notice containing the application for permission should be served. That is 52.4. One of the reasons contemplated for such a modest extension would be the imminence of the holiday period, and I wonder if my Lords would be prepared to -- LORD JUSTICE LAWS: There are nearly three weeks before we all go on vacation, Mr Husain. MR HUSAIN: Well, so be it. © 2001 Crown Copyright BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII