Ward (AP) (Appellant) v. Police Service of Northern Ireland (Respondents) (Northern Ireland)

At a hearing to extend detention under Schedule 8 to the Terrorism Act 2000, the judicial authority may exclude the detained person and legal representative under paragraph 33(3) to scrutinise proposed interview topics. Fairness does not require the police to disclose those topics in advance.

The discretion exists to protect the detained person through rigorous judicial scrutiny. It must not be exercised to that person’s disadvantage. A proper exclusion carries authority to withhold what occurred during it. Paragraph 33(3) remains subject to paragraph 34: information falling within paragraph 34 may be withheld only through the procedure prescribed there.

The appellant was arrested under section 41 of the Terrorism Act 2000 on suspicion of involvement in an armed robbery. During a third application to extend his detention, the county court judge excluded him and his solicitor for about ten minutes. The judge then privately examined five proposed interview topics to determine whether they were genuinely new and justified further detention.

Hart J dismissed an application for judicial review in [2005] NIQB 85. The appeal concerned whether paragraph 33(3) of Schedule 8 conferred an independent power of exclusion, whether information received during an exclusion could remain undisclosed without an application under paragraph 34, and the relationship between those provisions.

1. Appeal dismissed unanimously. The Appellate Committee, comprising Lord Bingham of Cornhill, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood, delivered a collective opinion. It declined to answer the certified questions because they were framed too broadly.

2. Paragraph 32(1) of Schedule 8 to the Terrorism Act 2000 permits further detention only where there are reasonable grounds for believing it necessary to obtain relevant evidence by questioning, to obtain it otherwise, or to preserve it. The investigation must also be conducted diligently and expeditiously. Because detention without charge seriously invades liberty, the statutory safeguards require scrupulous observance and must be construed in the detained person’s favour so far as the language permits.

3. No rule of law requires the police to reveal in advance the questions or topics they intend to pursue when interviewing a suspect. Advance disclosure is not a prerequisite of a fair interview. Whether it would prejudice an inquiry is a matter for the police, although the interview itself must be fair.

4. Paragraph 33(3) confers an unqualified discretion to exclude the detained person and representative from any part of the hearing. It may be used where the judicial authority needs privately to examine proposed interview topics before deciding whether the exacting paragraph 32 test is satisfied. The procedure exists in the detained person’s interests: the judge must rigorously and comprehensively scrutinise the application. The power must be exercised carefully and must not operate to the detained person’s disadvantage.

5. Paragraph 34(2)(d) did not cover information whose disclosure might make the prosecution or conviction of the detained person more difficult. In that provision, “a person” meant someone other than the person already detained. None of paragraph 34’s grounds therefore applied to the undisclosed interview topics.

6. Paragraph 33(3) must nevertheless be read subject to paragraph 34. Where paragraph 34 is available, an order under that paragraph must be sought. Where paragraph 33(3) is properly used to examine proposed interview topics outside paragraph 34, the power to exclude carries the power not to disclose what occurred during the exclusion. The county court judge therefore acted within his powers.

1. House of Lords: The appeal was dismissed unanimously by collective opinion in [2007] UKHL 50. Hart J’s dismissal of the judicial review application was upheld.

2. High Court of Justice in Northern Ireland: Hart J granted leave to seek judicial review and interim relief, but dismissed the substantive application in an ex tempore judgment reported as [2005] NIQB 85.

3. County Court: Judge Gibson excluded the detained person and his solicitor temporarily, examined the proposed interview topics privately, and extended the warrant of further detention by 48 hours.