Elosta v Commissioner of Police for the Metropolis & Ors

A person detained under Schedule 7 to the Terrorism Act 2000 has a right to consult a solicitor before questioning. The right includes choosing whether consultation takes place in person, in writing or by telephone, and may be exercised repeatedly during detention. Where a solicitor is attending, reasonable time may be allowed for arrival. The right cannot be used to frustrate the statutory examination. If the detainee has requested the solicitor’s attendance and is not frustrating the examination, questioning before the solicitor arrives is unlawful. The detention itself may nevertheless remain lawful where it is maintained to secure compliance with the obligation to answer questions.

The claimant was detained at Heathrow under Schedule 7 to the Terrorism Act 2000 after returning from Hajj. He asked to consult his solicitor and requested that questioning be delayed until a London solicitor could attend. The examining officers refused, conducted a telephone consultation which was not private, and questioned him before the solicitor arrived.

The judicial review raised whether Schedule 8 paragraph 7 conferred a right to consult a solicitor where Schedule 7 detention occurred outside a police station, whether the right included face-to-face attendance during questioning, and whether the subsequent questioning and detention were lawful under article 5 of the Convention.

1. Right to consult. The claimant was entitled to consult a solicitor before interview. Although Schedule 8 paragraph 7 refers to detention at a police station, the Code of Practice required service of the TACT 2 notice on persons detained under Schedule 7, and that notice stated that the detainee could consult a solicitor. The Secretary of State’s Circular 07/2011 confirmed that understanding. The Commissioner’s contrary construction was rejected.
2. Mode and timing of consultation. The wording of TACT 2 gave the detainee the choice of consultation in person, in writing or by telephone. The right could be exercised at any time during detention and repeatedly. Where the solicitor attended in person, the solicitor could be present during the interview, applying the interpretation of identical wording in R v Chief Constable of the RUC ex p Begley [1997] 1 WLR 1475. A reasonable delay to await arrival could be required, but the right could not be exercised so as to frustrate the purpose of the examination.
3. Application. The claimant was not attempting to frustrate the examination. The questioning between 5.45 pm and 6.30 pm, before his solicitor arrived, was therefore unlawful.
4. Detention and remedy. The detention itself remained lawful. It was detention for the purpose of securing fulfilment of the claimant’s statutory obligation to answer questions and did not constitute false imprisonment or breach article 5. A declaration was granted. More than nominal damages were refused because no loss or adverse consequence was established.
5. Utility of legal representation. The court respectfully disagreed with the obiter observations of Collins J in R (CC) v Commissioner of Police of the Metropolis [2012] 1 WLR 1913 that a solicitor could make little useful contribution during a Schedule 7 examination.