Chief Constable of the Royal Ulster Constabulary, Ex Parte Begley; R v McWilliams

Key legal principle: There is no established common law right for a person arrested under section 14(1) of the Prevention of Terrorism (Temporary Provisions) Act 1989 to have a solicitor present during police interviews. The House will not develop such a right where Parliament has deliberately chosen a different statutory regime applicable to terrorism suspects in Northern Ireland.

The court considered the effect of The Criminal Evidence (Northern Ireland) Order 1988 (and the changed law permitting adverse inferences) but concluded that the 1988 legislation did not require the court to recognise a right to have a solicitor present during interviews. The existence of PACE and related Codes in England and Wales (which do give a right to a solicitor at interview) does not change the conclusion because Parliament had expressly provided a different statutory scheme for terrorism suspects in Northern Ireland (including specific emergency provisions permitting only private consultation in certain cases).

This appeal concerned whether a suspect arrested under section 14(1) of the Prevention of Terrorism (Temporary Provisions) Act 1989 has a right to have his solicitor present during police interviews. Two consolidated appeals were considered: Begley sought judicial review of police refusals to allow his solicitor to attend interviews and McWilliams appealed his conviction where admissions were made in interviews conducted without a solicitor present.

Procedural posture: Begley obtained leave for judicial review and the Divisional Court (Northern Ireland) dismissed his application and certified a question of law. McWilliams appealed his conviction to the Court of Appeal (Northern Ireland), which rejected the claim that there was a right to solicitor attendance during interviews. Both appeals came to the House of Lords.

Nature of relief sought: The applicants sought recognition of a right (at common law or by development of the law) for a person arrested under s.14(1) P.T.A. to be accompanied and advised by his solicitor during police interviews, subject to limited exceptions.

Issues for decision:

• Whether a common law right existed for a suspect (including those arrested under s.14(1) P.T.A.) to have a solicitor present during police interviews.
• If no such common law right existed, whether developments in statutory law (notably the Criminal Evidence (Northern Ireland) Order 1988 permitting adverse inferences) justified recognition of such a right.

Reasoning and outcome: The House examined the Judges' Rules and the existing corpus of the common law and concluded there was no prior judicial authority or established common law principle giving a general right to have a solicitor present at interviews. Although considerations of fairness and the 1988 change regarding adverse inferences gave force to the argument for such a right, the court emphasised the limited scope to develop the common law where Parliament had legislated. The House noted that Parliament had intentionally provided a different regime for terrorism suspects in Northern Ireland, preserved by later emergency provisions and considered in the Rowe review. Given that Parliament had deliberately excluded a right to solicitor attendance at interviews for terrorism detainees, the House declined to create that right at common law. The appeals were therefore dismissed.

Both appeals were dismissed. The House held that there is no recognised common law right for a person arrested under section 14(1) of the Prevention of Terrorism (Temporary Provisions) Act 1989 to have a solicitor present during police interviews; nor should the House develop such a right because Parliament had deliberately enacted a statutory regime for terrorism suspects in Northern Ireland that does not give that entitlement.

Begley: application for judicial review dismissed by the Divisional Court of the Queen's Bench Division (Northern Ireland), which certified a question of law; McWilliams: conviction and sentence affirmed by the Court of Appeal (Northern Ireland). Both appeals were heard by the House of Lords and dismissed. (House of Lords citation: [1997] UKHL 39.)