10 February 2014

The Court of Appeal today overturned a judgment which found in favour of the law firm of McNamee & Mc’Donnell who claimed that the PSNI acted unlawfully in denying a detained person permission to consult with his chosen solicitor as soon as practicable.

Operation Radix was a police investigation into the corrupt practice of a number of financial professionals who allegedly conspired to steal money from the financial institutions in which they were employed and used the stolen money to purchase property for their own and other’s benefit. One such person was Peter Creegan, the manager of the Newry branch of the First Trust Bank. The investigation had raised concerns about improper lending, conflicts of interest, an undisclosed business relationship with a customer and suspected fraudulent activity against First Trust Bank covering a period from 2003 to 2009. The alleged fraud concerned a total sum in excess of £3 million. The statement of complaint identified transactions moving money into accounts held by Tiernans, a firm of solicitors with offices in Newry and Crossmaglen. The complaint also identified the involvement of Peter Brassil, a solicitor and ex-employee of Tiernans in the financing of a number of the allegedly fraudulent loans. It was also contended that a loan in excess of €1.2 million was transferred into a Tiernans account and thereafter the whereabouts of the money was unaccounted for.

Peter Creegan was arrested at 14:55 on 27 October 2009. At 18:45 he indicated that he wanted Thomas Tiernan, solicitor, informed of his arrest as soon as practicable. The Superintendent in charge of the Serious Crime Suite at Antrim spoke to a Detective Inspector in the Organised Crime Branch and was informed that there was reason to believe that Tiernans practice was involved in some of the transactions but that investigations into the whereabouts of the €1.2 million would form part of the second phase of the investigation. The Superintendent was also informed that Tiernans had “fragmented somewhat in recent months” and that two of its solicitors who had worked there during the period of the alleged fraud were now working independently. They were identified as Mr McNamee (a partner of the firm who brought this challenge) and Peter Brassil. The Superintendent believed that both would be unsuitable to represent Peter Creegan as this could compromise the investigation or interfere with his right to a fair hearing.

The Custody Sergeant informed Peter Creegan that access to a solicitor was not denied or delayed but that he should select another solicitor, either one on the list or the duty solicitor. At 21:11 Peter Creegan requested Mr Mallon who was the brother of another person being held in custody in relation to these matters and the brother had stated at interview that he had discussed these matters with Mr Mallon. Accordingly the Superintendent felt that he was unsuitable. At 21:50 Peter Creegan asked that another solicitor be contacted and he subsequently attended the police station and consulted with his client. Peter Creegan was charged on 31 October 2009.

McNamee and McDonnell (“the respondent”) sought a judicial review of the decision to deny Peter Creegan with the opportunity to consult with his chosen solicitor as soon as practicable. Mr Justice Treacy granted the application and concluded that once a detainee made a request for a solicitor he must be permitted to consult with that solicitor except to the extent that the delay was permitted by Article 59 of the Police and Criminal Evidence (NI) Order 1989 (“PACE”). He rejected the PSNI’s submission that permission to consult with the requested solicitor could be refused on the grounds of alleged conflict of interest.

The PSNI claimed that the issue in this case was one of practicability. It submitted that at the time of Peter Creegan’s detention the PSNI had reviewed the bank’s investigation report and examined the material that led to the assessment that criminal property had been placed in to a range of Tiernans back accounts. The PSNI were planning an investigation of physical and electronic documents which could lead to solicitors linked to Tiernans becoming suspects and submitted that allowing a suspect into the interview process could compromise future proceedings and that the financial investigation could be hindered if members or former members of Tiernans attended interviews where transactions involving that firm were discussed.

The Lord Chief Justice, delivering the judgment of the Court of Appeal, noted that it was accepted by all parties that the right of access to legal advice secured by Article 59 of PACE was the right of the detained person and not that of a solicitor. The respondent submitted that the solicitor was directly affected by the outcome and therefore demonstrated a sufficient interest in the matter to which the application related. The Court of Appeal was satisfied that the entitlement to pursue judicial review is not limited to those who are directly affected and that the respondent had standing.

The Court of Appeal agreed with the trial judge that the statutory provisions and the PACE Code of Practice constitute a comprehensive and detailed legislative framework providing for the right of access of the detained person to a solicitor and striking the necessary balance between the interests of the detained person and the interests of the public in the proper investigation of crime. The Lord Chief Justice said it was common case that Peter Creegan had asked for Mr McNamee to consult with him and was told that Mr McNamee was unsuitable as he worked or had worked for Tiernans. The PSNI claimed to have reasonable grounds for believing that fraudulently obtained monies had passed through that firm but it had not yet been possible to either carry out a search of the premises or to obtain a Production Order to establish the extent to which there was involvement in the fraud of those working in the firm.

The PSNI submitted that in those circumstances it was not practicable to permit Peter Creegan to consult with Mr McNamee. The Court of Appeal did not accept that submission: “The evidence indicates that it was the search of the premises or the obtaining of the Production Order that was not practicable. The refusal of access to the solicitor was not because of the absence of the appropriate resources but because the solicitor could not at that stage be excluded from the pool of those who may have been involved in the fraud.” The Court said that Article 59(8) of PACE was plainly designed to specify the circumstances in which delay in access to a solicitor is appropriate where there is the risk of adverse impact on the investigation and did not consider that Article 59(4) was intended to widen these circumstances to include the protection of the integrity of the investigation.

The Lord Chef Justice referred to case law from Northern Ireland and England and Wales. He said the context in this case was quite different in that it was a case where the Superintendent was alerted to the reasonable grounds for suspecting that one of more of the solicitors working in Tiernans from 2003-2009 was involved in the conspiracy. Mr McNamee was identified as one of those working in the firm although the Court of Appeal said it should be clearly said that there was now no suggestion that he was involved in any way in the conspiracy. The Lord Chief Justice said that this belief was sufficient to fall within Article 59(8) of PACE and that it was unfortunate that the trial judge was not referred to this case law:

“We note that the decision to delay access to a particular group of solicitors did not prevent the suspected person having access to legal advice before any questioning took place and that the solicitor representing him was informed of the circumstances in which he was requested by Mr Creegan. The solicitor had no representation to make about that and Mr Creegan has made no complaint about his representation.”

The Court of Appeal considered that the delay in providing access to a solicitor was in accordance with Article 59 of PACE and allowed the appeal.