Personal consultation with solicitor must be offered before terror questioning, rules High Court

24 November 2013 by

Screen Shot 2013-11-24 at 10.30.23Elosta v Commissioner of Police for the Metropolis [2013] EWHC 3397 – Read Judgment

The High Court has held that a person detained for questioning under the Terrorism Act 2000 is entitled to consult with a solicitor in person prior to answering questions.

The right to consult with a lawyer before one is interviewed by law enforcement officers might be fairly characterised as a “pop culture” right. Reality television shows, crime dramas, even block buster films (I’m thinking Neo in the first Matrix film – pictured) have all played a part in ensuring that the right to legal advice in that context is ingrained in the consciousness of the masses.

This case dealt with a specific and rather technical variation on that theme.

On 10 November 2012, Mr Elosta arrived at Heathrow airport having been to Saudi Arabia on the Hajj. Upon presenting himself at the Immigration desk, he was stopped by police officers who began to question him. He provided his personal details, but asked to speak to a solicitor before answering further questions. He was permitted to speak to his solicitor by telephone, and she indicated that she would arrange for a solicitor to attend the airport. However, the police indicated that they would not wait for that solicitor to arrive before proceeding with questioning.

The questions for the court were (a) whether or not Mr Elosta was entitled to speak to his solicitor at all; (b) if so, whether or not he was entitled to speak to his solicitor in person; and (c) if so, whether or not the continued detention and questioning was lawful.

To provide a bit of legal context, Schedule 7 of the Terrorism Act provides a power for a police officer to question a person at a port or border for the purpose of determining whether or not they may be a terrorist (defined in section 40(1)(b) of the Act as a person who “is or has been concerned in the commission, preparation or instigation of acts of terrorism”). The stakes can be significant. Under paragraph 6 of Schedule 7, a person can be detained for the purpose of questioning, and under paragraph 5, a person has to answer the questions put and provide the information requested; failure to do so is an offence which may lead to imprisonment.

Mr Justice Bean answered the questions the court faced using a straightforward approach of statutory interpretation, in light of the surrounding statutory materials. In particular, he looked to the Code of Practice issued by the Secretary of State. That was relevant because paragraph 14 of Schedule 5 of the Act provided that officers exercising their powers under the Act “shall perform” them in accordance with the Code.

In respect of the right to consult simpliciter, it was necessary to look to Schedule 8 paragraph 7 of the Act, which provides that “a person detained under Schedule 7 or section 41 at a police station in England, Wales or Northern Ireland shall be entitled, if he so requests, to consult a solicitor as soon as is reasonably practicable, privately and at any time.” Crucially, Mr Elosta was not detained at a police station, but at the airport. Did that make a difference? The court said it did not. There was no reason why a person detained at somewhere other than a police station should be denied the right to consult. Furthermore, the Code of Practice required that when someone was detained for questioning under Schedule 7, they had to be given a special TACT 2 form, which said:

You may consult either in person, in writing or on the telephone, privately with a solicitor. If you do not wish to do so now, you may do so later and at any time while you are detained.

Indeed, it was also the view of the Secretary of State (intervening in the case) that consultation was permitted by law, whether detained in a police station or not.

Moving on to whether or not the right to consult entailed a right to consult in person, Mr Justice Bean said that his reading of the words of the TACT 2 form (set out above) was that the detained person had a choice as to the form in which he communicated with his solicitor – it was not a choice for the police, as argued by the Police Commissioner. Moreover, if a solicitor attended, they were allowed to be present during questioning (he reached this conclusion based on the wording of Schedule 8, which provided for the right to consult “at any time”). However, Mr Justice Bean also confirmed that this right to choose the method of communication could not be used by a detained person so as to frustrate the purpose of the detention (i.e. to avoid answering questions), bearing in mind that the maximum length of time a person could be detained was nine hours.

The result was that the questioning of the Claimant after he had been denied the opportunity to consult with his solicitor in person (which lasted for 45 minutes) was unlawful, and he was awarded a declaration and nominal damages to reflect that. However, his detention did not thereby become unlawful under Article 5. If the police had waited for the solicitor, he would have been detained for even longer, and so he had suffered no loss in that respect. Nor had the purpose of his detention disappeared; he remained lawfully detained for the purpose of securing the fulfilment of his obligations to answer questions put to him.

It will be seen from the above that the right to consult with a solicitor is perhaps more nuanced and less straightforward than pop culture would have us believe. Nevertheless, the right was firmly vindicated by the courts in this case.

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