Cullen Appellants) v. Chief Constable of the Royal Ulster Constabulary (Respondents) (Northern Ireland)

A detainee who suffers no substantial detriment or distress from a breach of the statutory safeguards governing access to legal advice has no private law claim for nominal damages. The duty to give reasons for delaying access is a public law duty. Its principal purpose is to enable an improper decision to be challenged by judicial review.

Failure to comply with those safeguards does not make an otherwise lawful detention false imprisonment. Nor should the common law create a new tort where public law supplies the appropriate remedy and existing torts address unlawful detention or deliberate abuse of public power.

The appellant was detained under terrorism legislation and requested access to a solicitor. Senior police officers had reasonable grounds to delay access, but their authorisations were made in advance of his requests and the police failed to tell him the reasons for the delay, contrary to section 15 of the Northern Ireland (Emergency Provisions) Act 1987.

The High Court held that the breaches did not confer a right to damages. The Court of Appeal dismissed the appeal in Cullen v Chief Constable of the Royal Ulster Constabulary [1999] NI 237. The House considered whether the breaches supported damages for breach of statutory duty, false imprisonment or a new innominate tort, and whether proof of harm was required.

1. Appeal dismissed by a majority of three to two. Lord Hutton, Lord Millett and Lord Rodger held that the appellant, who had suffered no substantial detriment, distress, financial loss, physical injury or prejudice to his trial, was not entitled to damages.
2. Per Lord Hutton, the statutory right of access to legal advice was important and was conferred for the detainee's protection. A breach might support compensation where it caused substantial detriment or distress. It did not, however, justify nominal damages in the absence of harm, particularly where judicial review provided an effective remedy. Pickering v Liverpool Daily Post Plc [1991] 2 AC 370 supplied the relevant guidance.
3. Per Lord Millett, the right of access to a lawyer and the duty to give reasons were public law rights and duties. Their breach did not itself create a private law action. Judicial review was the appropriate means of challenging an improper refusal or a failure to give reasons. Existing private law remedies remained available where detention was unlawful or access was deliberately denied in bad faith.
4. Per Lord Rodger, agreeing with Lord Hutton and Lord Millett, section 15(9)(a) imposed a specific public law duty. Its principal purpose was to enable a detainee to challenge an improper authorisation to delay access. It did not confer a private right to damages where the breach caused no harm.
5. The majority held that compliance with section 15 was not a condition of lawful detention. The anticipatory authorisations and failure to provide reasons therefore did not constitute false imprisonment. The House also declined to create a new innominate tort.
6. Lord Bingham and Lord Steyn dissented. They considered section 15 to be remedial legislation conferring an individual right enforceable by damages without proof of financial loss, subject to a requirement that the breach be serious. They would have awarded £500 for the substantive failure to give reasons but nothing for the premature authorisations.

1. House of Lords: Dismissed the appeal by a majority of three to two and affirmed the rejection of the damages claims.
2. Court of Appeal in Northern Ireland: Dismissed the appeal against the conclusion that the breaches of section 15 created no private claim for damages, and also rejected the false imprisonment claim: Cullen v Chief Constable of the Royal Ulster Constabulary [1999] NI 237.
3. High Court of Northern Ireland: Found anticipatory authorisations and a failure to give reasons, but held that the appellant had no right to damages. The proceedings had involved three High Court hearings and two Court of Appeal hearings.