Omar Malik, R (on the application of) v Chief Constable of Greater Manchester

A detainee’s right to legal advice of choice is fundamental, but it is not absolute. The police may exclude a particular legal adviser where there are reasonable grounds to conclude that the adviser’s involvement may significantly hinder the investigation, including where the adviser may be a material witness. Questions of professional conflict or independence ordinarily belong to the solicitor and the Law Society, not the police. Any exclusion must be specific and carefully confined. It must not become a blanket prohibition on the solicitor acting in the relevant area, and the detainee must retain access to alternative legal advice.

The claimant was detained under section 41 of the Terrorism Act 2000. He requested advice from a solicitor who had attended a meeting said to be potentially relevant to a terrorism investigation. The Greater Manchester Police excluded that solicitor on the basis that he might be a witness and that implications might arise from links between detainees. The claimant sought judicial review, challenging the exclusion and asserting his right to consult his chosen solicitor. The court considered whether the exclusion was unlawful in circumstances where alternative legal advice remained available.

1. Disposition. The claim was arguable and permission to apply for judicial review would have been granted, but the substantive application was dismissed. No order for costs was sought.
2. Nature of the right. Access to independent legal advice, including advice from a detainee’s solicitor of choice, is fundamental at the police-station stage. Section 58 of the Police and Criminal Evidence Act 1984 does not apply to terrorism detention because of section 58(12), but Code H preserves a corresponding public-law expectation unless the specified exceptional circumstances apply.
3. Limits on police intervention. The principles in R v Chief Constable of the Northumbria Constabulary, ex parte Thompson [2001] EWCA Civ 321 applied. Professional independence and conflicts of interest are primarily matters for the solicitor and the Law Society. The police should intervene only where the adviser’s involvement may significantly interfere with the investigation. The principle that police should assume professional integrity, stated in R v Samuel [1988] QB 615, was also material.
4. Application. The police had improperly entered the area of professional conflict when relying on supposed links between suspects and on the solicitor’s withdrawal from acting for another detainee. However, the meeting attended by the solicitor might have been centrally relevant to the conspiracy under investigation, and his precise role was unclear. It was therefore open to the police, at that early stage, to exclude him specifically, provided the detainee could obtain advice from another solicitor.
5. Scope and urgency. The exclusion was not a lawful basis for a blanket prohibition on the solicitor acting generally in terrorism matters. The police were expected to resolve the issue concerning him promptly. The complaint that he had not yet been asked to provide a witness statement was premature given the recent arrest and the early stage of the investigation.

The judgment records that the application followed procedural orders made by Underhill J on 2 and 3 September 2006. It was determined at first instance by Beatson J in the Administrative Court. The judge explained the restricted route for any further appeal in a criminal judicial review matter, referring to Re Po, but no appeal decision is stated.