Euro Rights Blog by Super Cyan – Access to a Lawyer Schedule 7 New Developments

In this guest blog Super Cyan returns to the question of legal advice under Schedule 7, Terrorism Act 2000.

Having previously guest blogged on issues regarding Schedule 7 (Sch 7) to the Terrorism Act 2000 here and here I am once again picking up my blogsaber to slay some more Siths. This time, the case of Elosta v Commissioner of Police for the Metropolis & Ors ([2013] EWHC 3397 (Admin)) brought up an important legal point, which was as Mr Justice Bean put it ‘whether a person detained for examination under Schedule 7 to the Terrorism Act 2000 is entitled to have a solicitor present to advise him during the interview’ (para 1).

The facts are as follows (paras 2-7):

  1. On 10 November 2012 at 4.10 pm Mr Elosta arrived at Heathrow. He was stopped by officers of the Metropolitan Police for examination pursuant to Sch 7. The Examining Officers began to examine Mr Elosta where he provided his name, address, phone number and passport details, but asked to speak to a solicitor before answering further questions.
  2. At 4.30 pm an Examining Officer telephoned Mr Elosta’s solicitor informing her that Mr Elosta had been stopped pursuant to Sch 7 and that his examination was likely to last 30-40 minutes. He stated that Mr Elosta “had a right to consult a solicitor in private” but that the examination would not be delayed pending the solicitor’s arrival. Mr Elosta was permitted to speak to his solicitor on the phone but not in private: officers remained in the room and could hear what he said (though probably not what the solicitor said). The Commissioner accepted that it was inappropriate for the officers to have heard what Mr Elosta had said to his solicitor, and the Commissioner’s skeleton argument contained an apology to that effect.
  3. Mr Elosta’s solicitor informed officers that she would arrange for a solicitor based in London to attend the airport. Another officer came on the phone and repeated that they would not await the arrival of a lawyer before commencing questioning. He said that at 5.30 pm they would continue to examine Mr Elosta and would arrest him if he refused to answer any question.
  4. Between 4.50 pm and 5.20 pm Mr Elosta was permitted to pray. At 5.22 pm he was served with the appropriate notices (TACT 1 and TACT 2, described below) and was detained.
  5. At 5.26 pm Mr Elosta’s solicitor called back and spoke to one of the Examining Officers. She again asked him to delay the questioning so that a London-based solicitor could attend. The officer again refused. He repeated that unless Mr Elosta started answering questions he would be arrested.
  6. At 5.45 pm the officers began to question Mr Elosta. Shortly before 6.30 pm they concluded the examination of Mr Elosta and he was permitted to leave.

Mr Justice Bean then proceeded to discuss certain provisions of the Terrorism Act 2000 (paras 8-15), then the Code of Practice, the error in TACT2 and the amended Circular (paras 18-24) (New Draft Code can be found here). The positions of the parties were as follows (para 27):

For Mr Elosta:

That once he was detained, he had a right to consult his solicitor (face to face) before and during his interview.

For the Commissioner:

Mr Elosta had no right to consult a solicitor at all; alternatively, that it was for the officers to specify the mode of consultation (such as only by telephone), not Mr Elosta.

For the Home Secretary:

Agreed that Mr Elosta had a right to consult a solicitor, but on proper construction the Code of Practice would give the examining officer the right to specify the mode of consultation.

Mr Justice Bean concluded that as a detainee under Schedule 7, Mr Elosta had the right to consult a solicitor before being interviewed (para 34). The crux of the issue now was whether denying a face to face consultation was lawful. The High Court in Sylvie Beghal v Director of Public Prosecutions ([2013] EWHC 2573 (Admin) (para 136)) accepted that ‘[a] telephone consultation with a solicitor cannot, however, be regarded as the equivalent of the presence of a solicitor during the examination’. Answering the face to face issue was done so by interpreting the TACT 2 passage which stated under the heading ‘Do you want to contact a solicitor?’:

‘You may consult either in person, in writing or on the telephone privately with a solicitor.’

Both the Commissioner and Home Secretary argued this should be interpreted as meaning:

‘You may consult privately with a solicitor, but it is a matter for the examining officer to decide whether you may do so in person, in writing or on the telephone.’

Further, TACT 2 continues:

‘If you do not wish to do so now, you may do so later and at any time while you are detained.’

Again, both the Commissioner and Home Secretary preferred a very narrow construction of believing it should be read as meaning:

‘If you do not do so now, you may do so later, at any time while you are detained, but only once.’ (paras 43-4).

 Mr Justice Bean quite rightly asserted that those were ‘strange’ constructions of the wording of TACT 2, and importantly held that it is the detainee that has the choice. The right in question may be exercised at any time and repeatedly, so long as it is not done so in a manner that frustrates the purpose of the examination (para 45). After discussing the merits of having a solicitor present (para 46-51) and beginning to discuss ground 2 (para 52) of the judicial review Mr Justice Bean held ‘that the examining officers had no power to question the Claimant after he had requested the presence of a solicitor and prior to the solicitor’s arrival. The questioning between 5.45 pm and 6.30 pm was therefore unlawful’ (para 53).

The European Convention on Human Rights Issues in Elosta:

In the Elosta case, the application of Article 8 and Article 6 is worth dissecting.

Article 6(1) provides that:

‘In the determination of…any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…’

while Article 6(3)(c) states 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 or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.’

Having already argued that the use of Sch 7 should engage Article 6 it is worth noting that on point 2 of the facts it was acknowledged by the Defendant that it was inappropriate for the examining officers to have heard what Mr Elosta had said to his solicitor. Although no arguments were brought up on this particular point, the European Court of Human Rights Grand Chamber have found a violation of Article 6(1), taken together with Article 6(3) (b) and (c) in Öcalan v Turkey (Application no. 46221/99 [2005] ECHR 282 (para 148)) for amongst other things being unable to communicate with lawyers in private. Although Mr Elosta was not a criminal defendant, the Grand Chamber have stressed the importance communicating with lawyers in private Sakhnovskiy v Russia (Application no. 21272/03 [2010] ECHR 1673 (paras 99-107)) but this is not absolute. For example, the risk of collusion was considered in S v Switzerland (Application no. 12629/87; 13965/88 [1991] (paras 48-51)) particularly ‘The court considers that an accused’s right to communicate with his advocate out of the hearing of a third person is one of the basic requirements of a fair trial in a democratic society and follows from article 6(3)(c) of the Convention. If a lawyer were unable to confer with his client and receive confidential instructions from him without such surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective’. But in the Elosta case there was no suggestion of collusion.

Article 8 provides that:

‘1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

Particular importance here is attached to the correspondence element of Article 8. In Petrov v Bulgaria (Application no. 15197/02 [2008] ECHR 428 (para 43) the European Court of Human Rights noted that:

‘[C]orrespondence with lawyers, whether it concerns contemplated or pending proceedings or is of a general nature, is in principle privileged under Article 8 of the Convention and its routine scrutiny is not in keeping with the principles of confidentiality and professional privilege attaching to relations between a lawyer and his client’.

 This was affirmed in Szuluk v United Kingdom (Application no. 36936/05 [2009] ECHR 845 (para 46)). If interference is therefore established, it must be ‘in accordance with the law’. The officers who heard what Mr Elosta said to his solicitor must therefore have required authority to act in such a way. As I have previously argued, unlawful acts will not satisfy ‘being in accordance with the law’ for Convention purposes as the action requires some basis in domestic law for the power exercised. Even if there were lawful authority for the act, it would still require a demonstration that it was ‘necessary in a democratic society’. This would have been considering the Commissioner admitted such actions were inappropriate. If this dissection is correct, and Mr Elosta had argued these points, the Defendant could have been in violation of Articles 6 and 8 for the exercise of power under Sch 7.

Implications for Beghal:

As I mentioned I previously blog posted on the case of Sylvie Beghal v Director of Public Prosecutions ([2013] EWHC 2573 (Admin)). The relevance here is that although Mrs Beghal was not formally detained, the interference with Article 5 (para 113) suggested prima facie detention for the purposes of Schedule 7. So it is suggested that Mrs Beghal’s situation is similar to Mr Elosta, here too the examining officers did not wait for the arrival of a lawyer. Also like Mr Elosta (para 43) it is difficult to suggest Mrs Beghal sought to frustrate the purposes of the statute because her lawyer arrived 40 minutes after Mrs Beghal was cautioned (para 9). 40 minutes does not seem unreasonable considering that detention can last for nine hours (Sch 7 para 6(4)) and as Mr Justice Bean put it ‘[a] reasonable delay to await the arrival of a solicitor may be required’ (para 45). But the main difference here was that in the absence of her lawyer, Mrs Beghal refused to answer most of the questions and was cautioned for not complying with her duties under Sch 7. Mrs Beghal pleaded guilty to this offence on the 12th December, 2011, at Leicester Magistrates’ Court, before District Judge Temperley (para 3).

In light of the unlawful questioning in Elosta it could also be suggested that refusing to wait for Mrs Beghal’s lawyer was also unlawful. If that is so, should evidence of the offence have been admissible under s.78 of the Police and Criminal Evidence Act 1984? Section 78 states that:

‘(1)In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.’

 If the questioning is deemed to be unlawful, any evidence adduced would mean that it was unlawfully obtained, but do Magistrates have the power to use s.78 given that this did not actually go to trial? The case of Skrzypiec v CPS Essex-Southwest Team ([2010] EWHC 1418 (Admin)) suggests they do because it was argued that the Justices should have excluded evidence under s.78 (para 16) Mr Justice Akenhead even refers to the discretion the Justices had (para 21). The case concerned whether it was wrong for the Justices to admit evidence. In The Queen on the Application of the Crown Prosecution Service v Wolverhampton Magistrates’ Court ([2009] EWHC (Admin) 3467) the District Judge had indeed used s.78 to exclude evidence, though this was reversed, however, it does show the power is exercisable by Magistrates.

Firstly it was noted in Beghal itself that evidence obtained by way of Sch 7 examinations would almost certainly fall foul of s.78, with Article 6 ensuring this (paras 137-139). But that is not the issue at hand; it is whether evidence from the apparent unlawful questioning should be deemed inadmissible. In R v McCarthy and Others, Auld LJ held in relation to unlawfully obtained evidence that:

 ‘The essential question for the Judge was whether the admission of the evidence could have so affected the fairness of the trial as to require him to exclude it, whether or not there had been some breach of the 1984 Act or other provision on the way. There is ample authority of this Court for that proposition. We need only cite two decisions… Stewart [1995] CLR 500…and… Khan [1995] QB 27, [1995] Cr App Rep 240.’

The Khan judgment was subsequently upheld in the House of Lords in R v Khan ([1996] UKHL 14). In R v Sang ([1979] UKHL 3) Lord Diplock noted that ‘there is discretion to exclude evidence which the accused has been induced to produce voluntarily if the method of inducement was unfair.’ Would failing to wait for a solicitor be deemed to be unfair given what resulted from refusing to answer questions? The question of usefulness of a solicitor was considered in Elosta. Previously Collins J in R (CC) v Commissioner of Police of the Metropolis ([2011] EWHC 3316 (Admin), [2012] 1 WLR 1913 (para 39)) that:

‘It is incidentally difficult to see what contribution a solicitor could usefully make since there is an obligation to answer questions put and to submit to searches and the taking of samples can occur in the circumstances set out. A solicitor could perhaps act as an observer to ensure proper procedure, but beyond that he would have nothing to do.’

However, Mr Justice Bean contrasted (para 47) this with the views of the Independent Reviewer of Terrorism, David Anderson QC who pointed out that:

‘There may thus be circumstances in which a client may seek advice not only on whether he is obliged to answer a particular question, but on the legal consequences of refusing to do so. A solicitor may also be useful in persuading the examining officer that…a particular line of questioning is unnecessary or inappropriate.’ (my emphasis)

The usefulness of having a solicitor was discussed at paras 46-51 with Mr Justice Bean concluding that:

‘I attach greatest weight to the views of Mr Anderson, who as Independent Reviewer has great experience of the practical operation of the terrorism legislation. The solicitor does have a useful, if limited, role to play. I respectfully disagree with the obiter dicta of Collins J in CC.’

Moreover further distinguishing from previous authorities, such as Khan and McCarthy, Mrs Beghal’s offence was a result of the unlawful questioning, not that an offence had already been committed (see R v Fox ([1986] A.C. 281)) by her as she was not suspected of anything. This however, is unlikely to fall under entrapment under authority from Ramanauskas v Lithuania (Application no. 74420/01 [2008] ECHR 119 (para 55)). The European Court of Human Rights in Khan v United Kingdom (Application no. 35394/97 [2000] ECHR 195 (para 34)) has already stated that:

 ‘While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law (see the Schenk judgment cited above, p. 29, §§ 45-46…)’

In Khan v United Kingdom the European Court of Human Rights held that a breach of Article 8 does not mean that a fair trial was not guaranteed under Article 6, furthermore the fact that the domestic courts had the discretion to exclude that evidence under s.78 PACE only served to prove the compliance with Article 6. If a court did err, then it would seemingly be down to the court and not the provision itself.

It has been suggested that the Magistrates’ Court did have discretion to exclude under s.78, without the transcript of that case it is impossible to determine whether it was raised, rejected or accepted. This would at the very least raise issues if not for Article 6 as a whole, but the defence rights contained in Article 6(3) (particularly (c)). However, it does not seem that Mrs Beghal sought to challenge any of this (the possibility of challenging admissibility of evidence under s.78 favours Article 6 compliance), so at this moment it remains academic.

 

Many thanks to @RichGreenhill for reading and editing the initial draft.