| CRIME — Practice — Extension of period of detention — Detainee and his solicitor excluded from part of hearing of application for further extension of warrant of detention — Judge refusing to disclose what transpired in their absence — Whether judge acting within his powers — Terrorism Act 2000, s 41(1), Sch 8, para 33(3)
Ward v Police Service of Northern Ireland [2007] UKHL 50
HL(NI): Lord Bingham of Cornhill, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood: 21 November 2007
On an application by the police for an extension of the period of detention of a person who was detained under the Terrorism Act 2000, the judge’s power under para 33(3) of Sch 8 to the Act to exclude the detainee and his legal representatives from any part of the hearing also included the power to refuse to disclose to them anything that took place during the period of their exclusion.
The House of Lords so held, dismissing an appeal by the defendant, Christopher Owen Ward, from a decision on 6 December 2005 of Hart J in the High Court of Northern Ireland, refusing judicial review of a decision of Judge Gibson on 5 December 2005 to extend a warrant of further detention in respect of the defendant.
THEIR LORDSHIPS, giving the considered report of the Appellate Committee, said that the defendant was arrested and detained under s 41 of the 2000 Act. On two applications by the police on the ground that further time was needed to complete the interviewing process, the defendant’s period of detention was extended. The police applied for a further extension. The police superintendent giving evidence at the hearing of the application said that the defendant had been interviewed on nine specific topics and that the police were of the opinion that it was important for them to interview him on five further topics. The judge asked what those five topics were, and said he wanted to be satisfied that they were indeed new topics and not topics which had already been the subject of questioning. At that point the judge agreed, at the request of the police and having considered and overruled an objection by the defendant’s solicitor, to exclude the defendant and his solicitor from the hearing so that the matter could be explored in their absence in sufficient detail to satisfy the judge that the test for further detention had been made out. The hearing continued for about 10 minutes in the absence of the defendant and his solicitor. When they returned to the hearing they were not informed of what had transpired in their absence. The judge extended the warrant for detention as requested by the police. The defendant applied for judicial review on the ground that the judge had acted outside his powers. Their Lordships said that there was no rule of law which required the police to reveal to a suspect the questions that they wished to put to him when he was being interviewed. Nor were they required to reveal in advance the topics that they wished to cover, even in the most general terms, in the course of an interview. The interview must be conducted fairly, but advance notice of the topics to be covered was not a prerequisite of fairness. The judge might want to know what the topics were in order to be satisfied that the warrant or an extension of it should be granted. But that was information the police were entitled to withhold from the suspect until he was being interviewed. That was the context for the power under para 33(3) of Sch 8 to the Act to exclude from any part of the hearing the person to whom the application related and anyone representing him. It would not be to the suspect’s disadvantage for him to be excluded so that the judge might examine more closely whether the exacting test for an extension laid down in para 32 of Sch 8 was satisfied. The power would not in that event be used against the detained person but for his benefit. His safeguard was the judge whose function it was to rigorously and comprehensively examine the basis upon which the application was being made. The decision that the judge made was not open to the criticism that it operated to the detained person’s disadvantage. It was submitted that the judge should have told the defendant and his solicitor what had been said in their absence. But it was obvious that to do that would have undermined the judge’s decision entirely. The power to exclude carried with it the power not to disclose what took place during the period of the exclusion.
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