30 September 2020
Summary of judgement - O Murchu and Shannon
Court Dismisses Appeal Against Downstream Monitoring Of Police Interviews
30 September 2020
COURT DISMISSES APPEAL AGAINST DOWNSTREAM
MONITORING OF POLICE INTERVIEWS
Summary of
Judgment
The Divisional Court[1]
today dismissed an appeal against the downstream monitoring of police
interviews concluding that a Position Statement issued by the Association of
Chief Police Officers had given the necessary quality of law to give rise to
foreseeability in respect of the practice.
Risteard O’Murchú and
Arlene Shannon (“the applicants”) were arrested in connection with criminal offences. In each case the investigating
officer indicated that it was proposed that there should be downstream
monitoring (“downstreaming”) of their interview as a result of which persons
who were not in the interview room would both see and hear what was occurring.
No additional recording of the interview was involved in this process. The
applicants were both concerned that other people could be viewing or listening
and both claimed they had previously been approached about becoming an
informant. In each case their solicitor
contended that downstreaming was not in accordance with law. As a result of
that objection judicial review proceedings were lodged although the PSNI (“the
respondent”) decided to proceed with the interviews without downstreaming.
Codes of Practice relevant to interviews
Articles
60 and 60A of the Police and Criminal Evidence Order 1989 (“PACE”) impose a
duty on the Department of Justice to issue a code of practice in connection with the
tape-recording and visual recording with sound of interviews of persons
suspected of the commission of criminal offences which are held by police
officers at police stations. Article 65 of PACE requires the Department to
issue codes of practice in respect of the arrest, detention and questioning of
persons by police officers. The codes deal with some aspects of what happens in
the interview room and the arrangements for the retention of the recordings.
The codes of practice do not
touch upon downstreaming. The relevant codes under PACE and the Terrorism Act
2000 provide that before the interview commences each interviewer shall
identify themselves and any other persons present to the interviewee. Code E
provides that access to interview recordings must be strictly controlled and
monitored to ensure that access is restricted to those who have been given
specific permission to access materials for specified purposes when this is
necessary. That includes police officers and prosecution lawyers as well as
persons interviewed if they have been charged or informed they may be
prosecuted.
In England and Wales the Home
Office updated its codes of practice following a statutory consultation process
in 2018. Code E 2018 relates to the audio recording of interviews and contains
the provisions relating to the use of remote monitoring.
Policy and Guidance
The
respondent indicated that downstream monitoring has been used by police forces
in the United Kingdom since the 1990s. The Court referenced the development of
the policy and guidance in paragraphs [8] to [11] of its judgment. It
noted that the Association of Chief Police Officers of England and Wales and
Northern Ireland (“ACPO”), now known as the National Police Chief’s Council,
issued a position statement entitled “The remote monitoring of suspect
interviews” setting out guidance on remote monitoring of interviews. It was noted that remote monitoring can
improve the quality of an investigative interview and should be viewed as an
essential when investigating major crime and an integral component part of any
suspect interview strategy. The decision
to remotely monitor an interview should be made by a senior investigating
officer. The fact that an interview or
part of an interview was to be remotely monitored should be recorded in the
suspect’s custody record which should also state the purpose of the monitoring
and the names of everyone monitoring it.
The
College of Policing first published guidance on investigating interviewing in
October 2013 and has continued to modify it up to 18 March 2019. It includes guidance on downstream
monitoring.
Reasonable expectation of privacy
It
was argued by the applicants that each had a reasonable expectation of privacy
in respect of the conduct of the interviews. It was further submitted that the
downstreaming and monitoring of their interviews was not in accordance with
law. The Court said there was a distinction between this jurisdiction and
England and Wales where the Home Office had updated Code E to provide the
necessary legal basis. The respondent argued that the applicants could not
establish a reasonable expectation of privacy relating to the use or intended
use of downstream monitoring because each was already held in a custodial
environment where CCTV monitoring and recording applied throughout the periods
of detention. No challenge was made to that CCTV monitoring and recording and
the only persons to use downstream monitoring or intending to do so did so with
the intention of monitoring the respective interviews. All had direct
professional involvement in the investigations and would in any event have been
lawfully entitled to examine the content of those interviews.
The
Court considered the reasonable expectation of privacy test in paragraphs [14]
to [21] of its judgment. The first question is to determine whether a
reasonable expectation of privacy is established. If there could be no reasonable expectation
of privacy, or legitimate expectation of protection, it would be hard to see
how there could nevertheless be a lack of respect for Article 8 rights. The Court agreed that the question of
engagement is different from the issue of justification and said the authorities
remind the court not to confuse these separate issues. It considered, however,
that the reasonable expectation of privacy question and the issue of
justification are not distinct silos in that matters related to the factual and
legal background may be relevant to both.
The Court said this case is an example of such a situation.
“Although the parties approached the case on the basis
that the engagement question was distinct from the quality of law issue with
the latter arising only at the justification stage we consider that [the case
law], leads to the conclusion that in this case the quality of law issue is
material to the engagement question and should be considered at that stage.
That is because the respondent’s essential submission is that the safeguards
provided by the guidance documents are part of the background to be taken into
account in determining the applicant’s reasonable expectation of privacy has
been engaged.”
Quality of law
There
was no dispute about the relevant principles applying to the “in accordance
with the law” test. The impugned measure should have some basis in domestic law
requiring that it should be accessible to the person concerned who must be able
to foresee its consequences for him and the measure must be compatible with the
rule of law.
The
applicants pointed to the contents of the amended Code E in England and Wales
describing the range of safeguards which should be applied in respect of
downstreaming. The safeguards satisfy the tests of accessibility and
foreseeability and can only be used for proper police purposes as set out in
section 32 of the Police Act (Northern Ireland) 2000. The Court said it was difficult
to see that a failure to comply with the safeguards would of itself render the
contents of any interview inadmissible but such a failure could be material in
determining whether or not there had been a breach of Article 8 since any
interviewee would have a reasonable expectation that the protections in respect
of the conduct of each interview would be observed.
The
Court noted that the promulgation of guidance in respect of remote monitoring
of recorded interviews was first published by circular from the Home Office in
September 1995. The purpose of the circular was to make sure that suspects and
their legal representatives were fully aware of what was happening and that
there was no possibility of privileged conversations being listened to. The procedural
safeguards were then set out. Those procedural safeguards are replicated in the
ACPO Position Statement, the Guidance from the College of Policing on remote
monitoring and the amended Code E in England and Wales.
The
1995 Home Office Circular did not expressly apply to Northern Ireland and there
was no indication that downstream monitoring was a feature of investigations in
this jurisdiction at that time. The Court said, however, that the PSNI is a
member of ACPO. The ACPO Position Statement set out guidance on the remote
monitoring of interviews with suspects and the 1995 Home Office Circular was
expressly incorporated into it and each of the protections contained in the
Circular are expressly repeated.
The
Court held:
“This was not a discussion document or a recommended
course of action. It was a commitment made by the relevant professional bodies
tasked with the conduct of the interviews of suspects in their jurisdictions as
to how downstream monitoring would be carried out. The Position Statement was
plainly challengeable by way of judicial review and its promulgation gives rise
to legal consequences in that it created a legitimate expectation that
downstream monitoring would be carried out in accordance with the Statement. We are satisfied, therefore, that the
ACPO Position Statement had the necessary quality of law to give rise to
foreseeability in respect of downstream monitoring.”
Conclusion
The
Court commented that the interview of suspects under caution after arrest gives
rise to an obvious interference with the ability to engage in one’s everyday
activity but also involves a considerable adverse reflection on character. It
said this is particularly so in cases where the background of the allegation is
connection to terrorism. Case law required the court to take into account the
protections offered by the codes of practice concerning the conduct and
recording of interviews and the controls on access to those recordings. The
Court said that the ACPO Position Statement must be added to that list:
“The circumstances of the detention and interview of
each applicant arose from the proper interest of police in the investigation of
crime but at the time of each interview neither applicant had been charged with
any offence. Each was subject to state detention which would give rise to
anxiety in any reasonable person. The issue of the engagement of Article 8
should not be confined to the narrow issue of the downstreaming of the
interview. It is not necessary for us to determine whether in those circumstances
Article 8 is engaged but if it is engaged we are satisfied that the ACPO
Position Statement has the necessary quality of law.”
The
Court dismissed the application.
NOTES TO EDITORS
This
summary should be read together with the judgment and should not be read in
isolation. Nothing said in this summary adds to or amends the
judgment. The full judgment will be available on the Judiciary NI
website (https://judiciaryni.uk).
ENDS
If you have any
further enquiries about this or other court related matters please contact:
Alison Houston
Judicial Communications
Officer
Lord Chief Justice’s Office
Royal Courts of Justice
Chichester Street
BELFAST
BT1 3JF
[1]
The panel was the Lord Chief Justice, Lord Justice Treacy and Mr Justice
Huddleston. The Lord Chief Justice delivered the judgement of the court.