Practice and Procedure


PUBLISHED July 10, 2003

Breach by the police of a detainee's right while in custody to consult a solicitor privately under s.15 Northern Ireland (Emergency Provisions) Act 1987 did not give rise to a right to claim damages.Appeal from the decision of the Court of Appeal of Northern Ireland that the appellant ('C') was not entitled to damages for breach by the police of his right while in custody to consult a solicitor privately under s.15 Northern Ireland (Emergency Provisions) Act 1987. In 1989 C was arrested under s.14(1)(b) Prevention of Terrorism (Temporary Provisions) Act 1989 on suspicion of having been concerned in an act of terrorism by withholding information in respect of a bombing. He was held in police custody from 17 to 23 October 1989 when he was charged with an offence of withholding information. C brought an action for damages against the Chief Constable for breach of statutory duty in respect of denial of the right to consult a solicitor privately under s.15 of the 1987 Act. The High Court held that there had been breaches of s.15 but that C had no right to claim damages for breach of the section. The Court of Appeal dismissed an appeal. C appealed.HELD: (1) Where a person was detained in custody by the police and a duty imposed on the police by one of the provisions of s.15 was breached but the person had suffered no harm, meaning substantial detriment or distress, in consequence of the breach he could not recover damages in respect of that breach. (2) The speedy hearing of an application for judicial review was a much more effective remedy than the bringing of an action for nominal damages long after the period of detention had ended. The duty under s.15 was a public law duty which did not give rise to a private law action for damages. (3) Damages were awarded for a breach of statutory duty to compensate for loss or damage suffered and since C had suffered no personal injury, injury to property or economic loss there was no right to nominal damages (Pickering v Liverpool Daily Post & Echo Newspapers (1991) 2 AC 370). (4) (Per Lord Bingham of Cornhill and Lord Steyn dissenting) The statutory language created a new and remedial provision for the conferment on detainees of a statutory right of access to solicitors and was apt to create private law rights. In the context of breach of a right of access to a solicitor it was natural and obvious that the breach should be actionable per se. But proof of a serious breach was required for a damages action.Appeal dismissed.

[2003] UKHL 39