Cullen v Chief Constable of the Royal Ulster Constabulary

The House of Lords considered whether breaches of section 15 of the Northern Ireland (Emergency Provisions) Act 1987 (the statutory right of a person detained under the terrorism provisions to consult a solicitor) give rise to a private law action for damages. The majority held that the duties in section 15 are public law duties enforceable by judicial review and that damages will not follow for a mere procedural breach where the claimant has suffered no compensable harm; judicial review and other public law remedies are an appropriate means of redress. The Court rejected claims in false imprisonment and for a new innominate tort based on the section 15 breaches where detention remained lawful and no loss was shown. The minority considered a serious failure to give reasons actionable per se and awarded a modest sum for that failing.

The appellant was arrested in October 1989 under terrorism legislation and detained in police custody. During detention senior officers authorised delays to his requests to consult a solicitor under section 15 of the Northern Ireland (Emergency Provisions) Act 1987. The trial judge found breaches of section 15 in that the authorisations were anticipatory and the detainee had not been told reasons for deferral, but held that no right to damages arose; the Court of Appeal dismissed the appellant's appeal.

The appellant appealed to the House of Lords seeking damages for (i) breach of statutory duty under section 15, (ii) false imprisonment, and (iii) a new common-law tort. The principal legal issues were (1) whether anticipatory authorisations and failure to give reasons under section 15 are actionable in tort and (2) if so whether proof of loss is required to recover damages.

The majority of the House concluded that section 15 gives rise to public law protection and that judicial review is the appropriate and effective remedy in many cases; damages for breach of the statutory duty should not be awarded where no compensable harm is shown. The majority relied on the availability and effectiveness of public law remedies, on the nature and scope of the right (as a public, quasi-constitutional protection available to detainees generally), and on established principles about when statutes give rise to private causes of action (including the principle in Pickering).

The majority also rejected the false imprisonment claim because detention was lawful at its inception and the procedural breaches did not render detention unlawful. They declined to recognise a new innominate tort to cover inadvertent procedural breaches for which no loss was shown. Two Law Lords (Bingham and Steyn) dissented, concluding that breach of section 15 may be actionable per se and awarding a modest sum for the failure to give reasons.

The appeal was dismissed by the majority. The majority held that the duties in section 15 are public law duties enforceable by judicial review and that damages should not be awarded for procedural breaches where the claimant has suffered no compensable harm. Claims in false imprisonment and for a new tort were rejected because detention remained lawful and no loss was shown. Two Law Lords dissented and would have allowed an action in damages for the failure to give reasons.

Appeal from judgments below: the trial judge found breaches of section 15 but held they did not give rise to damages; appeal to the Court of Appeal dismissed (Cullen v Chief Constable of the Royal Ulster Constabulary [1999] NI 237); appeal to the House of Lords allowed to be argued and disposed of by this judgment ([2003] UKHL 39).