R v Chief Constable of the Royal Ulster Constabulary, Ex p Begley (R v McWilliams)

A person arrested under terrorism legislation in Northern Ireland had no established common law right to have a solicitor present during police interviews. The right to communicate and consult privately with a solicitor outside the interview room was separate.

Although the common law may develop incrementally to promote procedural fairness, judicial development must operate within gaps left by Parliament. A court cannot create a right which conflicts with deliberate legislative policy. The statutory scheme gave ordinary suspects a right to a solicitor’s presence but limited terrorism suspects to private consultation. Parliament’s re-enactment of that differentiated regime prevented the House from creating the proposed interview right.

These conjoined appeals concerned persons arrested under Section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989. Begley sought judicial review after the police refused to allow his solicitor to attend interviews. The Divisional Court of the Queen’s Bench Division in Northern Ireland dismissed his application.

McWilliams was interviewed without a solicitor, made admissions and was convicted of murder and other offences. The Court of Appeal in Northern Ireland dismissed his appeal against conviction, including his challenge based on the solicitor’s absence.

The common question was whether an arrested person had a common law right to a solicitor’s presence and assistance during police interviews. Alternatively, the House considered whether the adverse-inference regime introduced by Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 justified judicial recognition of such a right.

1. Both appeals dismissed unanimously. Lord Browne-Wilkinson delivered the leading speech. Lord Lloyd of Berwick, Lord Steyn, Lord Hoffmann and Lord Hope of Craighead agreed with his reasons and the disposition.

2. Per Lord Browne-Wilkinson, the common law recognised a general right for an accused person to communicate and consult privately with a solicitor outside the interview room, subject to avoiding unreasonable delay or obstruction. That principle did not establish a separate right to have a solicitor present during police interviews. Neither judicial authority, dictum, academic opinion nor the Judges’ Rules supported the broader right.

3. The judgment in Murray v United Kingdom did not assist the appellants. The European Court of Human Rights had declined to decide whether excluding a solicitor from police interviews violated Article 6 of the Convention. It therefore supplied no positive legal basis for the claimed common law right.

4. Per Lord Browne-Wilkinson, the House had a limited power to develop the common law by analogy and in the interests of fairness. The adverse-inference provisions introduced in 1988 gave the proposed development considerable force. That power could nevertheless be exercised only within gaps left by Parliament. It could not be used to develop the law contrary to Parliament’s expressed will.

5. The legislative framework disclosed a deliberate distinction. Section 58 of the Police and Criminal Evidence Act 1984 gave suspects in England and Wales rights to private consultation and to a solicitor’s presence during interview. Article 59 of the Police and Criminal Evidence (Northern Ireland) Order 1989 provided comparable rights but excluded persons detained under terrorism provisions. The Northern Ireland emergency legislation gave terrorism suspects only the right to consult privately with a solicitor.

6. Parliament had re-enacted the relevant emergency provisions after an official review had expressly addressed and rejected solicitors’ attendance at interviews. Lord Browne-Wilkinson concluded that Parliament intended persons arrested under Section 14(1) of the Prevention of Terrorism (Temporary Provisions) Act 1989 to have no legal right to a solicitor’s presence during interview. Creating such a right was therefore beyond the House’s proper law-making power.

• House of Lords: Dismissed both appeals by orders made on 30 July 1997; reasons were delivered on 16 October 1997.
• Court of Appeal in Northern Ireland: Dismissed McWilliams’s appeal against conviction on all grounds, holding that he had no legal right to have a solicitor present during police interviews.
• Divisional Court of the Queen’s Bench Division, High Court of Justice in Northern Ireland: Dismissed Begley’s judicial review application, holding that a person arrested under Section 14(1) of the Prevention of Terrorism (Temporary Provisions) Act 1989 had no legal right to have a solicitor present during interviews.