Mcdonagh, R (On the Application Of) v Chief Constable of Leicestershire Constabulary

A detainee who has been permitted to consult a solicitor is entitled to have that solicitor present during interview unless a specified exception applies. Preventing the solicitor from attending because the solicitor wishes first to consult another client unlawfully restricts access to legal assistance. Although breach of a police custody code is not itself actionable in civil proceedings, the code may underpin the United Kingdom’s obligations under Article 6 of the European Convention on Human Rights. Where the restriction denies the detainee the full exercise of the right to legal assistance, the court may mark the violation by a declaration and award agreed damages.

The claimant was arrested and detained at Beaumont Leys Police Station after being suspected of stealing a catering trailer. His solicitor attended, obtained disclosure and consulted him privately. The solicitor then sought to consult another client detained for the same offence. The custody sergeant required the solicitor to attend the claimant’s interview first and ultimately required him to leave when he refused.

The claimant was interviewed without his solicitor present and later brought proceedings alleging breaches of section 58 of the Police and Criminal Evidence Act 1984, its custody Code of Practice and Article 6(3)(c) of the European Convention on Human Rights. The central issue was whether the solicitor’s exclusion unlawfully denied the claimant access to legal assistance during interview.

1. Breach of the custody code. The claimant had been permitted to consult his solicitor. Under Code 6.8, he was entitled on request to have the solicitor present during interview unless one of the exceptions in paragraph 6.6 applied. None applied. The custody sergeant’s insistence that the interview proceed before the solicitor consulted the other detainee prevented the solicitor from attending and breached Code 6.8.
2. Effect of the statutory framework. Breaches of the Code of Practice were not themselves actionable in civil proceedings by reason of section 67(10) of the Police and Criminal Evidence Act 1984. The Code nevertheless underpinned the United Kingdom’s obligations under Article 6 of the European Convention on Human Rights.
3. Convention breach. Article 6(3)(c) conferred the minimum right to defend oneself through legal assistance of one’s choosing. The claimant was denied the full exercise of that right when his solicitor was prevented from being present at interview. The court therefore declared that the defendant had acted in breach of Article 6(3)(c) by unlawfully imposing the condition that the interview proceed before the solicitor could consult the other detainee.
4. The parties agreed damages of £1,000 and costs of £18,483.23 including VAT. The court made the agreed declaration and included the agreed financial terms in the order.