James Bernard Cullen v Chief Constable of the Royal Ulster Constabulary [1999] NICA 1942 (15 June 1999)

Neutral Citation no. [1999] 1942	Ref:	CARC2743

Judgment: approved by the Court for handing down	Delivered:	15/06/99
(subject to editorial corrections)

IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND

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BETWEEN

JAMES BERNARD CULLEN

(Plaintiff) Appellant

and

CHIEF CONSTABLE OF THE ROYAL ULSTER CONSTABULARY

(Defendant) Respondent

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CARSWELL LCJ

Introduction

The appellant seeks in this appeal to reverse the decision of MacDermott LJ, given in the Queen's Bench Division on 5 May 1998, whereby he held that the appellant did not in law have an actionable claim for damages for breaches of the provisions of section 15 of the Northern Ireland (Emergency Provisions) Act 1987 (the 1987 Act). That section specifies the restrictions which may be applied to the right of a person who is detained in police custody under the terrorism provisions to consult a solicitor. It permits his request to consult his solicitor to be delayed in certain circumstances, and it is not in dispute that the police in the present case failed to comply correctly with some of the requirements of section 15. The learned judge held, however, that the appellant was not entitled to claim damages for those breaches and gave judgment for the defendant in the action brought by the appellant.

Section 15 of the 1987 Act (which first appeared in that Act and has since been re-enacted in the Northern Ireland (Emergency Provisions) Acts 1991 and 1996) has been set out more than once in the several judgments given in this matter, but for convenience we shall repeat it again here:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(e) by alerting any person, will make it more difficult -

(i) to prevent an act of terrorism; or

(ii) to secure the apprehension, prosecution or conviction of any person in connection with the commission, preparation or instigation of an act of terrorism.

(9) If any delay is authorised, then, as soon as is practicable -

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

(b) the reason shall be recorded in writing.

(10) If an officer of at least the rank of Assistant Chief Constable has reasonable grounds for believing that, unless he gives a direction under subsection (11), the exercise by a person of the right conferred by subsection (1) will have any of the consequences specified in subsection (8), he may give a direction under subsection (11).

(11) A direction under this subsection is a direction that a person desiring to exercise the right conferred by subsection (1) may only consult a solicitor in the sight and hearing of a qualified officer of the uniformed branch of the Royal Ulster Constabulary.

(12) An officer is qualified for the purposes of subsection (11) if -

(a) he is of at least the rank of inspector; and

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

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

The period referred to in section 14(6), which is mentioned in section 15(6)(a), is the period of forty eight hours beginning with the time when the detained person was first detained under the terrorism provisions.

Factual Background

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 and instigation of acts of terrorism. After his arrest he was taken to Castlereagh Police Office, where he was held in custody until 23 October. Police officers conducted a number of interviews with him while he was in custody. He remained silent for some time, but on 20 October he commenced to make admissions and made a written statement. On 23 October he was charged with the offence of withholding information in respect of a murder, to which he pleaded guilty on 8 June 1990.

The judge incorporated into his judgment a schedule which had been handed into court, setting out in tabular form the periods during which delays were authorised in complying with the appellant's requests to consult his solicitor and also the occasions on which directions were given under section 15(11) that the appellant might only consult his solicitor in the sight and hearing of a police officer (conveniently called "supervised access"). I set it out again here:

"NO	DATE	TIME	DURATION OF DEFERRAL	RUNNING TIME
1	Tuesday 17/10/89	6.05 pm	24 hrs	5.30 pm 17/10/89 - 5.30 pm 18/10/89
	Wednesday 18/10/89	7.25 pm - 7.50 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
	Friday 20/10/89	6.15 pm - 6.30 pm		SOLICITOR VISIT: SUPERVISED INSPECTOR CORDNER
3	Friday 20/10/89	7.00 pm 7.50 am	24 hrs	6.15 pm 20/10/89 - 6.15 pm 21/10/89
	Saturday 21/10/89	6.35 pm - 6.55 pm		SOLICITOR VISIT: SUPERVISED INSPECTOR CORDNER
4	Sunday 22/10/89	am	48 hrs	6.35 pm 21/10/89 - 6.35 pm 23/10/89"

It may be seen from the schedule that there were four such delays, which together covered virtually the entire period of the appellant's detention. He had only one ordinary unsupervised visit from his solicitor, then for the reasons set out in MacDermott LJ's judgment the police formed the view that there was a risk of information leaking out to his associates. The other two visits from his solicitor were supervised by police officers, in pursuance of directions given under section 15(11).

The learned judge reached the conclusion in his judgment of 5 May 1998 after examining the evidence that the officers who authorised the several delays and gave the directions for supervised visits had sufficient grounds under section 15(8) for doing so. He held, however, that none of the four delays was authorised in response to a request from the appellant for a visit from his solicitor, but that each was what has been termed an "anticipatory deferral". The result, as we held in this court in R v McWilliams [1996] NI 545 at 556-7, is that in respect of each of these delays the police failed to satisfy the terms of section 15(8). They also failed to tell the appellant the reasons for authorising the delays, as required by section 15(9).

Course of Proceedings

In the proceedings commenced by writ of summons issued on 15 August 1990 the appellant claimed damages for wrongful detention, false imprisonment, trespass to the person, infringement of his right of access to a solicitor under section of the 1987 Act and misfeasance. He also sought declarations and a mandatory injunction in respect of fingerprints and photographs. At the first hearing before the trial judge the appellant's counsel abandoned all his claims except that for damages for denial of access to his solicitor. As appears from the second judgment of MacDermott LJ given on 14 June 1995, the issue whether the appellant can bring a claim for being restricted to supervised consultations with his solicitor is governed by the same considerations as that in respect of the delay in being allowed to consult with him. After all the vicissitudes of this case the main issue for consideration by us now remains the same as that considered at the first hearing by the judge, whether delay in granting access to a solicitor which has not been validly imposed under section 15 of the 1987 Act carries a right to damages on the part of the person detained.

The route by which the matter reached the decision given by MacDermott LJ on 5 May 1998 and thence this court on the present appeal is unhappily tortuous and has involved a regrettable amount of delay, but it is not necessary now to go through in detail the various steps in the progress of the case. It is sufficient for present purposes to state that the matter was twice remitted by this court to the trial judge for further findings and in his decision of 5 May 1998 the judge dealt with all of the issues of fact and law and reached conclusions on them. The content of that decision, in which the judge confirmed the views expressed by him in earlier decisions, is as follows:

1. The police officers concerned had reasonable grounds under section 15(8) for each decision to delay access to the appellant's solicitor or to restrict consultation to a supervised visit.

2. All four delays were "anticipatory deferrals" and accordingly the provisions of section 15 had not been correctly followed and the delays were not validly authorised.

3. The appellant was not told of the reason for authorising any of the delays, as is required by section 15(9).

4. These breaches of section 15 did not confer a right of action for damages upon the appellant.

5. The appellant had suffered no damage and no loss had been proved.

The judge gave judgment for the respondent, with no order as to costs.

In his notice of appeal, amended with leave, the appellant set out the following grounds of appeal:

"1. The Learned Trial Judge erred in holding that the denial of Rights of Access to a Solicitor, contrary to Section 15 of the Northern Ireland (Emergency Provisions) Act, 1987 did not give a person an actionable claim for damages.

2. That the Learned Trial Judge erred in concluding that the Defendant had established reasonable grounds for the four deferrals of access and to supervised visits.

3. The Learned Trial Judge erred in admitting in evidence a photocopy of Mr. Monaghan's journal entry.

4. The Learned Trial Judge erred in holding that the Plaintiff had suffered no damage since the point had not been argued and the case had been remitted by the Court of Appeal to the High Court to decide `if in fact there has been any breach of Section 15'.

5. The Learned Trial Judge erred in the circumstances of this case in not awarding the costs of the resumed hearing to the Plaintiff."

Before MacDermott LJ Mr Treacy for the appellant expressly abandoned any claim for misfeasance by a public officer, and no claim under this head was made in the notice of appeal. At the hearing before us he did not find it necessary to argue grounds 2 and 3, since the judge had found in favour of the appellant on the issue of "anticipatory deferrals" and the respondent did not dispute the correctness of his finding. We decided, however, to ask counsel to argue ground 4 in order to have all issues which might be material before the court, and their arguments were presented at a further sitting on 4 June 1999.

The propositions which the appellant's counsel advanced in argument before us were the following:

1. A person detained in police custody whose access to a solicitor is wrongfully delayed has a cause of action in damages, either (a) for breach of the statutory duty contained in section 15 of the 1987 Act or (b) at common law.

2. The right of action at common law is either (i) a claim for false imprisonment, since a breach of section 15 renders the detention of the person detained unlawful or (ii) an innominate tort which the court should recognise as a valid cause of action.

3. The appellant's cause of action is actionable per se, and proof of loss is not required.

Breach of Statutory Duty

One of the more intractable problems in the law of tort is to determine whether breach of a duty imposed by a statute gives rise to a cause of action for damages. Much of the difficulty arises from the fact that the legislature, when enacting a statute imposing duties, rarely says anything on the issue whether non-compliance with the statute will cause the person on whom the duty is imposed to be liable for damages. This silence does not point to a conclusion that the legislature either did not have the point in mind or deliberately omitted to provide for it. The received principle is that the courts will have to deduce the legislative intention from a number of indications, a process which has been described by Lord Denning MR as a "guessword puzzle".

It was reaffirmed in R v Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 AC 58 that the primary question is whether Parliament intended to confer a private law right of action sounding in damages. It is not enough for a claimant to show that the relevant provision was designed in general terms to protect a class of individuals to which he belongs, a proposition upon which the plaintiffs had relied in Ex parte Hague to found their claim. As Lord Jauncey of Tullichettle said at pages 170-1:

"The fact that a particular provision was intended to protect certain individuals is not of itself sufficient to confer private law rights of action upon them, something more is required to show that the legislature intended such conferment."

The principle is not new, for it may be found in Groves v Lord Wimborne [1898] 2 QB 402 and Cutler v Wandsworth Stadium Ltd [1949] AC 298. Although in some subsequent cases certain statements appeared to give some foundation for a rather broader definition of the ambit of liability for damages for breach of statutory duty (see, eg, Ex parte Island Records Ltd [1978] Ch 122), and attempts were made to specify more or less exclusive categories of cases in which damages could be claimed, the House of Lords returned in Hague's case to the basic principle.

In Ex parte Hague the plaintiff claimed damages for being removed from association with other prisoners for a period, contrary to rule 43 of the Prison Rules 1964. In the associated action Weldon v Home Office the plaintiff claimed damages from the Home Office for false imprisonment, based upon a claim that he was unlawfully assaulted and battered by prison officers. In Hague's case his claim for judicial review was allowed by the House of Lords, but his claim for an award of damages was rejected. In Weldon's case the House ordered that his claim for damages be struck out.

Lord Bridge affirmed that the question whether an enactment gives rise to a cause of action for breach of statutory duty is a question of ascertaining the intention of the legislature. Having examined the content of the Prison Rules, he came to the conclusion at pages 160-1 that Parliament did not intend to confer a cause of action on the segregated prisoner:

"I can find nothing in rule 43 or in any context that is relevant to the construction of rule 43 which would support the conclusion that it was intended to confer a right of action on an individual prisoner. The purpose of the rule, apart from the case of prisoners who need to be segregated in their own interests, is to give an obviously necessary power to segregate prisoners who are liable for any reason to disturb the orderly conduct of the prison generally. The rule is a purely preventive measure. The power is to be exercised only in accordance with the procedure prescribed by sub‑rule (2). But where the power has been exercised in good faith, albeit that the procedure followed in authorising its exercise was not in conformity with rule 43(2), it is inconceivable that the legislature intended to confer a cause of action on the segregated prisoner."

Lord Jauncey reached the same conclusion, for similar reasons. He accepted that the question was what rights, if any, Parliament intended to confer in passing the statute and that matters such as availability of remedies merely assisted the resolution of that question and were not in themselves decisive. He also considered the argument that it was sufficient to establish that the plaintiff was one of the class whom the legislation was intended to protect, and expressed the view, in the passage which I quoted earlier from his speech, that something more is required. Having examined the Prison Rules he concluded at page 172:

"The rules are wide-ranging in their scope covering a mass of matters relevant to the administration and good government of a prison. Many of these do not directly relate to prisoners and I do not consider that those which do were ever intended to confer private law rights in the event of a breach. The rules are regulatory in character, they provide a framework within which the prison regime operates but they are not intended to protect prisoners against loss, injury and damage nor to give them a right of action in respect thereof."

The issue of damages for breach of statutory duty has been considered in several cases since Hague, and one can derive assistance from the discussion of the principle and its application to diverse fact situations in those cases. In X Minors v Bedfordshire County Council [1995] 2 AC 633 the House of Lords had to consider claims for damages advanced under various heads, including breach of statutory duty, in respect of two groups of plaintiffs. The first consisted of children who had been sexually abused when under the care of local authorities, and the second of children with special educational needs who claimed that local education authorities had failed to meet these needs. Lord Browne‑Wilkinson set out the governing principle and its application to the type of case before the House in a passage at pages 731-2 which I would set out in full:

"(A) Breach of statutory duty simpliciter

Although the question is one of statutory construction and therefore each case turns on the provisions in the relevant statute, it is significant that your Lordships were not referred to any case where it had been held that statutory provisions establishing a regulatory system or a scheme of social welfare for the benefit of the public at large had been held to give rise to a private right of action for damages for breach of statutory duty. Although regulatory or welfare legislation affecting a particular area of activity does in fact provide protection to those individuals particularly affected by that activity, the legislation is not to be treated as being passed for the benefit of those individuals but for the benefit of society in general. Thus legislation regulating the conduct of betting or prisons did not give rise to a statutory right of action vested in those adversely affected by the breach of the statutory provisions, ie. bookmakers and prisoners: see Cutler's case [1949] AC 398; Reg v Deputy Governor of Parkhurst Prison, Ex parte Hague [1992] 1 AC 58. The cases where a private action for breach of statutory duty have been held to arise are all cases in which the statutory duty has been very limited and specific as opposed to general administrative functions imposed on public bodies and involving the exercise of administrative discretions."

At pages 744-7 he examined the nature of the legislation providing for local authority care of children, all of which was concerned to establish an adminstrative system designed to promote the social welfare of the community. He went on at page 747:

"My starting point is that the Acts in question are all concerned to establish an administrative system designed to promote the social welfare of the community. The welfare sector involved is one of peculiar sensitivity, involving very difficult decisions how to strike the balance between protecting the child from immediate feared harm and disrupting the relationship between the child and its parents. Decisions often have to be taken on the basis of inadequate and disputed facts. In my judgment in such a context it would require exceptionally clear statutory language to show a parliamentary intention that those responsible for carrying out these difficult functions should be liable in damages if, on subsequent investigation with the benefit of hindsight, it was shown that they had reached an erroneous conclusion and therefore failed to discharge their statutory duties.

It is true that the legislation was introduced primarily for the protection of a limited class, namely children at risk, and that until April 1991 the legislation itself contained only limited machinery for enforcing the statutory duties imposed. But in my view those are the only pointers in favour of imputing to Parliament an intention to create a private law cause of action. When one turns to the actual words used in the primary legislation to create the statutory duties relied upon in my judgment they are inconsistent with any intention to create a private law cause of action."

Later in his speech Lord Browne-Wilkinson considered the second group of cases, with special reference to the claim in relation to the defendants' failure to provide any schooling at all for one of the plaintiffs for certain periods. He pointed out that although declarations had frequently been sought and granted in previous cases of this nature, these were in respect of public law rights which would now ordinarily be enforced by means of judicial review, and it did not follow that there was a corresponding private law right to damages for breach of statutory duty.

He turned then to the claims for failure to provide appropriate schooling to cater for special needs and said at page 769:

"Although, for present purposes, I am prepared to assume that the plaintiff, as a child having special educational needs, was a member of a class for whose protection the statutory provisions were enacted, I can find nothing in either set of statutory provisions which demonstrates a parliamentary intention to give that class of statutory right of action for damages. As to the Act of 1944, the basic duty relating to children in need of special treatment is imposed by section 8(2)(c) which requires the authority to `have regard' to the need for securing such treatment. Plainly such a duty cannot produce a private right of action for damages. Section 33(2) deals only with the type of school at which such children are to receive such treatment; to the extent that it imposes a duty at all it imposes a duty to provide such treatment in special, not ordinary, schools contrary to the case being made by the plaintiff. The obligation to provide special treatment to the child under section 34(4) only arises if the authority decides that the child requires such treatment. In my judgment there can be no statutory claim for damages for breach of duty which leaves so much to be decided by the authority. Moreover, sections 68 and 99 of the Act contain machinery whereby the minister can enforce any duties imposed by the Act on the education authority. All this indicates that Parliament did not intend to confer a private right of action."

In Olutu v Home Office [1997] 1 All ER 385 the claim was founded upon the failure of the Crown Prosecution Service to bring the plaintiff before the court before the expiry of her custody time limit, so that she might be admitted to bail. The Court of Appeal concluded that because the law provided remedies for a person detained beyond the proper time limits, obtainable by way of applications for bail, habeas corpus or mandamus, it was not the intention of Parliament that he should have a private law remedy in damages.

In O'Rourke v Camden London Borough Council [1998] AC 188 the House of Lords considered a claim for damages against a housing authority by a plaintiff who alleged that it had failed to fulfil its statutory duty to make accommodation available for him when he was homeless and had a priority need. The House held that that provision did not create a duty to the plaintiff which was actionable in tort. It took the view that not only were public law remedies available if a housing authority failed to carry out its statutory duty, but control by such remedies was much more appropriate, for two reasons: (a) the legislation constituted a scheme of social welfare, intended to confer benefits at the public expense on grounds of public policy, and it was unlikely that Parliament contemplated that cash payments by way of damages should be made to persons who failed to receive the benefits to which they were entitled; (b) the exercise of the authority's discretion depended upon a good deal of judgment on the part of the authority. Lord Hoffmann set out the latter reason at pages 26-7:

"The duty to inquire under section 62(1) arises if the housing authority `have reason to believe' that the applicant may be homeless and the inquiries must be such as are `necessary to satisfy themselves' as to whether he is homeless, intentionally. When the investigations are complete, the various duties under section 65 of the Act arise only if the authority are `satisfied' that the applicant is homeless and the extent of those duties depends upon whether or not they are `satisfied' as to two other matters, namely that he has a priority need and that he became homeless intentionally. If a duty does arise, the authority has a wide discretion in deciding how to provide accommodation and what kind of accommodation it will provide. The existence of all these discretions makes it unlikely that Parliament intended errors of judgment to give rise to an obligation to make financial reparation."

In the present case the learned trial judge examined the factors or indicators which led him to the conclusion that Parliament did not intend that breach of the duties contained in Article 15 should confer a private law right to damages upon a person detained. He stated this conclusion in a passage at pages 8-9 of his judgment given on 6 May 1994, an opinion which he confirmed in his judgment of 5 May 1998:

"In determining the intention of Parliament a primary and significant factor is that the right of access provision falls within a group of provisions which deal with the management, treatment and control of detained suspects. In the 1987 Act the cross-heading to Part II is `the rights of persons detained under terrorism provisions in police custody.' The cross-heading to Part VI of the 1991 Act is `Persons in police custody under terrorism provisions'. Part VI of the PACE Order 1989 is headed `Questioning and treatment of persons by police'. That part is of particular interest in that it deals with many matters - searches of detained persons, intimate searches, right to have someone imprisoned, rights of children and young persons, access to legal advice, tape recording of interviews, fingerprinting, taking intimate and other samples. All of which can I believe be properly described as provisions relating to the proper management, treatment and control of persons detained and far removed from provisions such as the Factories Act which have long been recognised as giving injured workmen a cause of action. For my part I would readily adopt the phrase used by Professor Dugdale when reviewing the 2nd Edition of Clayton and Tomlinson in Volume 44 of the Northern Ireland Law Quarterly page 85 - namely `the overall intention of PACE is to define police powers to achieve a balance between police and suspect - it is a `control' not a `claims statute'.'

In Hague the House of Lords decided that the Prison rules were regulatory and I would so describe the relevant provisions in PACE and the 1987 and 1991 Acts. That being so it does not seem to me that Article 15 granted an actionable private law right - if that had been the intention I believe Parliament would have so said in clear terms."

He also pointed out in the immediately preceding passage of his judgment that there was no trace of any action having been brought for damages for breach of section 15 or the comparable provisions in the Police and Criminal Act 1984 or its Northern Ireland equivalent. The only opinion favouring such a right is that contained in Clayton & Tomlinson, Actions against the Police, 2^nd ed, p 358, in which the authors suggest that the "indications" point towards there being a right of action against the police for breach of the provisions of several sections of PACE, and that breaches of the section governing the right of access to legal advice will be actionable per se. No references from other academic sources supporting this proposition were quoted to us, while a contrary opinion is expressed by Professor Tony Dugdale in a review of Clayton & Tomlinson's book in 44 NILQ 85.

The appellant's counsel advanced two other arguments in support of the claim for damages for breach of statutory duty:

1. Since a detained person who is denied access to a solicitor has a valid claim for damages at common law it may be deduced from this that the legislature intended to confer a right to damages also for breach of statutory duty. On this thesis the statutory provision should be regarded as having defined and regulated the common law right, whose limits had not previously been clearly determined. In the next part of this judgment I shall consider this claim that there is a right of action at common law for damages. For the reasons which I shall set out I am of opinion that it is not well founded, and it must follow that it cannot be relied upon to support a claim for damages brought under the head of breach of stautory duty.

2. It appears clearly from the jurisprudence of the European Court of Human Rights that delay in granting access to legal advice constitutes a breach of Article 6 of the Convention and since Parliament is to be presumed to legislate in such a way that enactments will conform with the treaty obligations of the United Kingdom, one should conclude that it intended to confer a right to damages for breaches of Article 15.

It may be observed that when the 1987 Act was passed the jurisprudence was only beginning to develop. The existence of the right now established in Murray v United Kingdom (1996) 22 EHRR 29 was accepted by the Commission in Can v Austria (1986) 8 EHRR 14, but the proceedings terminated in a friendly settlement and the Court did not pronounce authoritatively on the issue. Article 6 was applied to the police investigation preceding the charging of a prisoner only in S v Switzerland (1992) 14 EHRR 670. It seems probable therefore that at the time of passing of the 1987 Act the right was not sufficiently firmly established to give rise to a presumption about Parliamentary intention.

Moreover, if it can be said that the right was by then recognised under the Convention, Parliament in enacting section 15 of the 1987 Act was imposing in domestic law fairly substantial restrictions on that right. The presumption of intention to observe treaty obligations may cause one to interpret legislation, where ambiguity in its construction exists, in such a way that it will conform with the Convention. It would not be possible to do so with section 15, whose provisions on the authority of Murray v United Kingdom may operate in breach of Article 6 of the Convention. There is therefore no sufficient reason to infer that Parliament intended to allow a claim for damages for breach of the provisions of section 15 because of the fact that those provisions were contrary to the Convention. If it is to be supposed that Parliament was willing to go so far as to legislate in breach of the Convention, one cannot argue from this that it must have intended to confer a right in domestic law to damages for breach of statutory duty.

I accordingly consider that the learned trial judge was correct in his conclusion that no claim for damages arises from breach of the statutory duty contained in section 15 of the 1987 Act.

Right of Action at Common Law

Mr Treacy founded his argument for a common law right of action on a passage from the speech of Lord Browne-Wilkinson in R v Chief Constable of the RUC, ex parte Begley [1997] 4 All ER 833 at 837:

"Certainly, the common law recognised a general right in an accused person to communicate and consult privately with his solicitor outside the interview room. This development is reflected in the Judges' Rules and Administrative Directions to the Police which were published as Home Office Circular 89/1978 (see Archbold's Criminal Pleading, Evidence and Practice (42nd edn, 1985) para 15-46). The text expressly provided that the rules do not affect certain established principles, which included the principle:

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

This principle was subsequently enshrined in legislation in England and Wales as well as in Northern Ireland, and the right was extended to persons suspected of having committed offences under the terrorism provisions."

Counsel argued that this passage meant that there was a right of action at common law to damages for a breach of that right, which without a serviceable remedy would be ineffective. Lord Browne-Wilkinson did not, however, purport in this passage to state that breach of the right was actionable at common law. He was merely saying, as I understand the passage, that the right of a person detained in police custody to access to legal advice was not until the passing of the PACE legislation and the 1987 Act defined by statute. It was developed over a period by judicial rulings, like so many parts of the common law, and reflected the development of judicial views concerning the necessary content of fair treatment of a suspect in criminal trials and the antecedent investigations. It does not follow that the interest of the person detained is protected by the law of torts so as to confer a right to damages for breach of the right, for the claim has to be brought within the class of cases in which the common law has recognised such a cause of action: see the discussion in such textbooks as Winfield and Jolowicz on Tort, 15^th ed, p 19; Salmond & Heuston on the Law of Torts, 21^st ed, pp 16-18 and Fleming, The Law of Torts, 7^th ed, p 5. It is therefore necessary to look further to see if such a cause of action exists.

I had occasion in Moore v Chief Constable of the RUC [1988] NI 456 to consider this issue and held that the plaintiff did not have a right to damages, either under section 15 of the 1987 Act or at common law, arising from the refusal of access to a solicitor. Mr Treacy submitted in the present appeal that the foundation of my reasoning had been removed by Lord Browne-Wilkinson's statement in Ex parte Begley recognising the existence of a common law right, and that the decision was therefore incorrect. The learned trial judge quoted a passage from my judgment at page 461, and I think that it may be useful to repeat it here, together with the two immediately preceding paragraphs:

"The other main contention advanced on behalf of the plaintiff was that he was entitled to damages for the refusal by the police to give him access to a solicitor. I have already found as a fact that at some stage he asked for a solicitor, and there was no evidence before me directed to the issue whether to grant his request would have caused unreasonable delay or hindrance to the processes of investigation or the administration of justice.

Mr. MacDonald pointed first to the provision in the Judges' Rules allowing access to a solicitor. The Judges' Rules, however, contain rules of practice for the guidance of police officers concerning the treatment of prisoners in their custody. If they are not observed, the consequence is that the judge on the trial of the prisoner for a criminal offence at which the prosecution seek to put in evidence a confession made by the prisoner during the period of such custody may exercise his discretion to exclude that confession. It cannot in my opinion be said that the prisoner can derive from that type of protection afforded him by the law a right to obtain damages for breach of this part of the Judges' Rules. Nor has it ever been suggested that breach of any of the other Judges' Rules confers a right to damages. If the plaintiff has a cause of action arising out of a refusal of his request to see a solicitor, it cannot be based on breach of the Judges' Rules, but must be sought elsewhere.

Where a person is arrested and detained under the powers contained in the Northern Ireland (Emergency Provisions) Act 1987, section 15 gives a statutory right to consult a solicitor, in terms corresponding to those of section 58 of the Police and Criminal Evidence Act 1984. It is suggested in Clayton & Tomlinson, Civil Actions against the Police, page 314 that the latter provision gives rise to a cause of action for breach of statutory duty. I have been unable to trace any reported decisions confirming or rejecting the suggestion, and since it is not necessary for my decision in this case I shall not express any opinion on its correctness. Mr. MacDonald argued that (assuming that it is correct) it would be strange if a prisoner arrested under the 1987 Act had fewer rights in this respect than one arrested under the emergency provisions, and sought to draw the conclusion that there must be a common law right to damages for wrongful refusal of access to a solicitor. It seems to me that if the 1987 Act gives rise to a cause of action for damages, this points to the opposite conclusion. If there were a general common law right to consult a solicitor while in police custody, breach of which gives rise to a cause of action, it would not have been necessary to enact the statutory provisions to which I have referred. I find it difficult to suppose that they are merely declaratory of the common law."

It may be seen that in the penultimate sentence of the passage which I have set out I was focusing on the right to claim damages, as appears from my use of the words "breach of which gives rise to a cause of action". Lord Browne-Wilkinson stated that the right of access to a solicitor existed at common law, but did not express an opinion on the question whether breach of that right would give rise to a claim for damages. What he said in Ex parte Begley may accordingly not invalidate the reasoning in my decision in Moore v Chief Constable.

I then went on in my judgment in Moore to discuss the possibility of accepting such a right as an innominate tort. That possibility has again to receive consideration in this appeal. Innominate torts are conveniently defined in Fridman on Torts, para 1.06:

"Innominate torts are those, of more recent origin and development, that do not fit under any of the historically recognised and accepted categories of tort liability, but have emerged in consequence of judicial action either by way of analogy with some pre-existing tort or as a spin-off from such a tort."

The common law can adapt to changing circumstances, and it is possible in principle for a new tort to be recognised by the law: see Salmond & Heuston on Torts, 21^st ed, pp 16-18 and in particular note 88. As I set out in some detail in Moore v Chief Constable of the RUC at pages 461-2, the law does not recognise any "novel innominate tort" that a person who suffers harm or loss as the inevitable consequence of the unlawful, intentional and positive acts of another, a suggestion advanced in the High Court of Australia in Beaudesert Shire Council v Smith (1966) 120 CLR 145 and rejected in Lonrho v Shell Petroleum Co Ltd (No 2) [1982] AC 173, 187-8. This being so, it would be somewhat surprising if the law recognised an actionable tort arising out of police actions designed to prevent information from getting out against the public interest and not aimed at causing disadvantage to the person detained. Moreover, if there were such a right of action, it is not easy to see how its limits could be defined, even if one started with the parameters of the principle as set out in the Judges' Rules. There is no trace in any reported decision of a claim for damages being allowed in such cases, and I should not myself regard it as justifable for us in this court now to do so.

Mr Treacy pointed to decisions in the US Court of Appeals, Cinelli v City of Revere 820 F 2d 474 (1987), Williams v Liberty 461 F 2d 325 (1971) and Wounded Knee Legal Defense/Offense Committee v Federal Bureau of Investigation (1974) 507 F 2d 1281(1974), in which it was accepted that damages could be awarded for breaches of the claimants' right to counsel. That right is, however, one protected by the sixth amendment to the US Constitution. The decisions do not help us on the existence of a common law right to damages, and are of very limited use on the issue of damages for breach of statutory duty because of the importance in all states of giving effect to constitutional rights.

The appellant's alternative basis of a claim for false imprisonment is based upon the decision of a Divisional Court in Re Gillen's Application [1988] NI 40. In that case the court held that if police obtain a confession from a suspect in custody by committing serious assaults upon him, the detention becomes unlawful and he is entitled to release on an application by way of habeas corpus. Mr Treacy submitted that in the same way the appellant's detention became unlawful when the police acted in breach of section 15 of the 1987 Act, and the appellant was entitled to damages for his detention thereafter. It would appear to follow from his thesis that even a breach like that in the present case, which might justifiably be termed technical, would render the detention unlawful and entitle the person detained to be released.

Mr Weatherup QC argued on behalf of the respondent that Re Gillen's Application was wrongly decided, because the court incorrectly distinguished the earlier case of Ex parte Lynch [1980] NI 126 and because it cannot stand in light of the decision of the House of Lords in R v Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 AC 58. In Ex parte Lynch a Divisional Court considered an application for a writ of habeas corpus based on three grounds. The court rejected the first two grounds and turned at page 134 to the third:

"Mr. Nicholson's last point (ground 3) was that the applicant's detention, even if lawful to start with, became unlawful because of its conditions in that he continued to be detained in custody without being granted access to his solicitor or doctor. There is no authority to support this submission. It seems to us that the treatment and conditions of detention accorded to a person lawfully detained do not touch on the lawfulness of that detention and do not therefore give rise to the remedy of habeas corpus. There is old authority for this which Mr. Carswell, while acknowledging the help of his learned junior, brought to our notice and which we would respectfully follow.

Style reports a case as follows:

`The Court was moved for a habeas corpus to remove a prisoner in Northampton Gaol, that was convicted of felony, and been burnt on the hand, upon an affidavit that the gaoler used him hardly. But Roll, Chief Justice answered, that it could not be, but they might either endict the gaoler, or bring an action against him.' Anon. (1654) Style 432; 82 E.R. 838.

And in ex parte William Cobbett (1848) 5 C.B. 418; 136 E.R. 940, the Court refused to grant a habeas corpus to a prisoner in custody on the ground that the keeper of the prison had improperly removed him to a part of the prison provided for prisoners of a particular class. Wilde C.J., delivering judgment, said:

`This court has no power to interfere in the matter. The prisoner is in custody under process issuing out of the Court of Chancery. If the keeper of the Queen's prison is acting improperly in placing him in the particular part of the prison of which he complains, the ordinary means of redress for the wrong are open to him.'"

In Re Gillen's Application Hutton J, giving the judgment of the court, distinguished Ex parte Lynch in several respects (a) the court in the latter case did not have its attention drawn to the decision of Finlay P in the Irish High Court in The State (Harrington) v Commissioner of Garda Siochana (1976, unreported) (b) since its decision the English cases of Middleweek v Chief Constable of Merseyside (1985) [1992] 1 AC 179n and R v Commissioner of Police of the Metropolis, ex parte Nahar (1983) The Times, 28 May gave support to the proposition that ill-treatment of a person in custody could make his detention unlawful (c) the cases on change of the place of imprisonment could be distinguished from those based on ill-treatment in custody.

I do not propose to examine in detail the Harrington case or the antecedent decisions in The Emergency Powers Bill [1977] IR 159 and The People v Madden [1977] IR 336, both of which support the proposition that denial of access to a solicitor could make the detention unlawful. These decisions refer to the right of access as a constitutional right and, as I stated in considering the United States cases, constitutionally protected rights may require special sanctions to ensure that they are effectively upheld. I do not think it necessary to look at these decisions further because the issue is in my opinion settled in favour of the respondent by the decision of the House of Lords in Ex parte Hague. Lord Bridge at page 165 and Lord Jauncey at page 177 decisively expressed disapproval of the opinions contained in Middleweek v Chief Constable of Merseyside and Ex parte Nahar that ill-treatment of a person detained might make his detention unlawful. It appears clear that the reasoning in Re Gillen's Application cannot stand in the light of Ex parte Hague and the decision cannot now be regarded as well founded. A fortiori it cannot be said that a mistake in procedure which constitutes a failure to afford proper access to a solicitor can make a lawful detention unlawful.

I therefore conclude for the reasons which I have given that the appellant does not have a claim for damages at common law for denial or delay of his right to private consultation with a solicitor. The conclusions which I have reached on this issue and that concerned with breach of statutory duty are sufficient to dispose of the appeal, but in order to deal with of all the questions which came before the court I shall consider as succinctly as I can the remaining issue.

The Need for Provable Loss

The learned judge ruled as a further ground for diminising the appellant's claim that in the absence of provable loss he could not succeed.

Mr Treacy argued on behalf of the appellant that the judge was incorrect and that if the appellant had a valid cause of action he should be entitled to damages, notwithstanding the fact that he could not establish any pecuniary loss.

The appellant's case is that he is entitled at least to nominal damages for the respondent's breach of statutory duty. Nominal damages, in contradistinction to real damages, are awarded not by way of compensation for any actual loss suffered, but merely by way of recognition of the existence of some legal right vested in the plaintiff and violated by the defendant: Salmond & Heuston on the Law of Torts, 21^st ed, p 501. It follows accordingly that nominal damages are recoverable only in the case of torts actionable per se, being trespass of any kind and some actions on the case, such as libel and certain cases of slander: ibid. The arguments presented to us centred round the issue whether the appellant's cause of action for breach of statutory duty was actionable per se without proof of special damage, since it was clear that if the common law claim for false imprisonment were established, being an action in trespass, it would carry a right to damages at a level appropriate to the case.

Mr Treacy relied on several cases in which plaintiff had been held entitled to damages on the ground that the breaches of duty were actionable per se, notwithstanding that the claims were advanced not in trespass but on the case. The first two were the old cases of Ashby v White (1703) 2 Ld Raym 938, in which damages were awarded where a returning officer had unlawfully deprived the plaintiff of his right to vote, and Ferguson v Earl Kinnoul (1842) 9 Cl & Fin 251, in which damages were awarded against the defendant for his refusal, in breach of his statutory duty, to determine the suitability of a minister of religion for a living to which he had been presented. He relied also on Simmonds v Newport Abercarn Black Vein Steam Coal Co Ltd [1921] 1 KB 616, in which the opinion was expressed that failure to deliver to an employee a statement containing detailed particulars of his wages, as required by statute, was actionable per se. He also referred to Constantine v Imperial Hotels Ltd [1944] KB 693, in which Birkett J held at first instance that the plaintiff was entitled to damages without proof of loss where the defendant was in breach of his common law duty as an innkeeper to receive him as a guest.

I do not find it necessary to consider these cases in detail. It is possible that some at least might be decided differently today, and I would particularly desire to have further argument before accepting that Constantine v Imperial Hotels Ltd should qualify as an addition to the small class of actions on the case in which damages may be awarded without proof of loss. I consider, however, that the approach adopted by Mr Weatherup on behalf of the respondent is more fruitful. He was prepared to accept that if, contrary to his argument, Parliament intended that there should be a remedy for breach of section 15 of the 1987 Act, the appellant must be entitled at least to nominal damages. The point which he made, however, was that the fact that no pecuniary loss has been sustained, and it is unlikely in any case founded upon such a breach that any could be established, supported the proposition that Parliament did not intend a breach to be actionable. In support of this he cited the speech of Lord Bridge in Pickering v Liverpool Daily Post and Echo Newspapers plc [1991] 2 AC 370 at 419-20, in which he considered the principle formulated by Lord Diplock in Lonrho v Shell Petroleum Co Ltd [1982] AC 173 at 185 that a cause of action may lie for breach of statutory duty --

"where on the true construction of the Act it is apparent that the obligation or prohibition was imposed for the benefit or protection of a particular class of individuals, as in the case of the Factories Acts and similar legislation."

Lord Bridge continued:

"But in order to fall within the principle which Lord Diplock had in contemplation it must, in my opinion, appear upon the true construction of the legislation in question that the intention was to confer on members of the protected class a cause of action sounding in damages occasioned by the breach. In the well known passage in the speech of Lord Simonds in Cutler v Wandsworth Stadium Ltd. [1949] A.C. 398, 407-409, in which he discusses the problem of determining whether a statutory obligation imposed on A should be construed as giving a right of action to B, the whole discussion proceeds upon the premise that B will be damnified by A's breach of the obligation. I know of no authority where a statute has been held, in the application of Lord Diplock's principle, to give a cause of action for breach of statutory duty when the nature of the statutory obligation or prohibition was not such that a breach of it would be likely to cause to a member of the class for whose benefit or protection it was imposed either personal injury, injury to property or economic loss."

In my opinion this approach is of most assistance in determining the issues before the court. If it is held in any specific case that a breach of statutory duty is actionable, then I would agree with the proposition that it would give a right to damages without proof of loss; but the fact that it is unlikely that personal injury, injury to property or economic loss could be proved tends to show that the breach was not intended to be actionable. Similarly, I consider that if breach of right of access to a solicitor were held to constitute an innominate tort, it should be actionable without proof of loss, but again the unlikelihood that any loss could be proved tends to support the conclusion that no such tort exists. On this part of the case, therefore, I am not in agreement with the conclusion of the learned trial judge. Conclusion

For the reasons which I have given I consider that the judge was correct in giving judgment for the respondent and I would dismiss the appeal.

NICHOLSON LJ

I agree.

CAMPBELL LJ

I agree.

IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND

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BETWEEN

JAMES BERNARD CULLEN

(Plaintiff) Appellant

and

CHIEF CONSTABLE OF THE ROYAL ULSTER CONSTABULARY

(Defendant) Respondent

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JUDGMENT

CARSWELL LCJ

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	Court of Appeal in Northern Ireland Decisions
You are here: BAILII >> Databases >> Court of Appeal in Northern Ireland Decisions >> James Bernard Cullen v Chief Constable of the Royal Ulster Constabulary [1999] NICA 1942 (15 June 1999) URL: http://www.bailii.org/nie/cases/NICA/1999/1942.html Cite as: [1999] NICA 1942

Court of Appeal in Northern Ireland Decisions