Mcdonagh, R (On the Application Of) v Chief Constable of Leicestershire Constabulary [2013] EWHC 4690 (Admin)

[2013] EWHC 4690 (Admin)Case No CO/6714/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Priory Courts
33 Bull Street
Venue BirminghamDate Thursday, 19th December 2013
West Midlands
B4 6DS
B e f o r e:
MR JUSTICE MITTING
MR JUSTICE KEITH
Between
QUEEN ON THE APPLICATION OF MCDONAGHClaimantCHIEF CONSTABLE OF LEICESTERSHIRE CONSTABULARYDefendant
Tape Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Russell& Mr Dixon appeared for ClaimantMr Rathmell appeared for Defendant
J U D G M E N T
[1]MR JUSTICE MITTING: On 22nd March 2012 the claimant stole a Supercontinental catering trailer said to be worth £26,000. He was arrested. He was taken to Beaumont Leys police station in Leicestershire.[2]His detention was authorised at 18.24 by Sergeant Price, the custody sergeant. At 18.39 PC Byard telephoned Argyle Solicitors to tell them of the claimant's detention at Beaumont Leys police station. At 21.04 Mr Kang, a solicitor with the firm of Argyles, arrived. Disclosure was made to him and facilities were afforded to permit him to conduct a private interview with the claimant in a cell.[3]Mr Kang had another client also detained for the same offence, Mr Lawrence. He asked to see him. The claimant was removed from the cell, apparently to make way for Mr Lawrence. Mr Kang then went to the custody sergeant to say that he wanted to speak to Mr Lawrence. Sergeant Price then said that the interviewing officers were ready to start the interview with the claimant and Mr Kang should attend that interview before he saw Mr Lawrence. Mr Kang refused. There was then a standoff, in which voices on one or both sides were raised. At the end of the standoff Mr Kang was required by Sergeant Price to leave under the implied threat of force if he did not.[4]At 21.49 and 21.50 the custody record notes that the claimant told an Inspector Copson that he did not require a solicitor to be present when he was being interviewed. Precisely what he said to Inspector Copson is the subject of a factual dispute but it is not relevant to the relief claimed by the claimant or that which we propose by consent to give.[5]At 22.16 the interview began. The claimant provided "no comment" answers to all questions. He was charged at 1.20 on the following morning, 23rd March 2012, and at 1.24 released on police bail to attend Leicester Magistrates' Court on the 10th April. He was sent for trial to Leicester Crown Court. Before his case was due to be tried the CPS told the claimant's solicitors that they would not contend at trial that any inference could be drawn adverse to the claimant from his failure to answer questions at interview at the police station. The claimant pleaded guilty and was sentenced to a suspended sentence of imprisonment.[6]Immediately following upon the incident described Mr Kang made a complaint to Leicester police who investigated it. Their investigation was adjudged by the IPCC to have been inadequate, not in the sense the facts had not been accurately determined but in the recommendations made as to what should happen and to what conclusions should be drawn from them. The end result was that the IPCC were rightly critical of police conduct in relation to the claimant and Mr Kang and Mr Lawrence on 22nd and 23rd March.[7]His claim was then brought by the claimant alone. Allegations were made that section 58 of the Police and Criminal Evidence Act had been breached, that there had been various breaches of the Code of Practice approved by Parliament under section 67 of the same Act. There was undoubtedly a breach of Code 6.8 which provides that:
"A detainee who has been permitted to consult a solicitor shall be entitled on request to have the solicitor present when they are interviewed unless one of the exceptions in paragraph 6.6 applies."
None of those exceptions applied. The effect of Sergeant Price's actions was to prevent the claimant from having his solicitor present when he was interviewed in breach of C6.8.[8]Although breaches of the Code of Practice are not as such actionable in civil proceedings - see section 67(10) of the 1984 Act, nonetheless the Code underpins the United Kingdom's obligations under Article 6 of the European Convention of Human Rights.

(c) provides that:

"Everyone charged with a criminal offence has the following minimum rights ... (c) to defend himself in person or through legal assistance of his own choosing ..."
[9]The claimant was denied the full exercise of that right. Accordingly, there was, in consequence, a breach of Article 6(3)(c) and it is right that that breach should be marked in these proceedings by a declaration. The precise form of the declaration has been the subject of debate. My Lord, Keith J has the final draft and I will invite him to read it when I have concluded my own judgment. I agree with the words of that declaration. In addition, the parties have agreed that the defendant should pay damages of £1,000 to the claimant and costs of £18,483.23 including VAT. We make no observation about those provisions of the order but we will by consent include them in the order.[10]MR JUSTICE KEITH: I agree. The declaration which the court makes is that in breach of the claimant's rights under Article 6(3)(c) of the European Convention on Human Rights, the defendant, through the custody officer of Beaumont Leys Police Station, Leicestershire, unlawfully imposed a condition on the claimant's right to have his solicitor present when he was interviewed, namely, that the interview should proceed before the claimant's solicitor had had an opportunity to consult with a detainee who was also the solicitor's client and who had been arrested with the claimant, with the effect that the claimant was unlawfully denied right of access to a solicitor of his choosing when he was interviewed.