Law Report: Prisoner's right to consult solicitor: Regina v Chief Constable of South Wales and another, ex parte Merrick - Court of Appeal (Lord Justice Ralph Gibson and Mrs Justice Smith), 9 February 1994

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A person on remand in custody at a magistrates' court had, at common law, a right to consult a solicitor as soon as was reasonably practicable, similar to the right which a person held in custody at a police station had under section 58(1) of the Police and Criminal Evidence Act 1984.

The Queen's Bench Divisional Court granted an application by Bryn Merrick for judicial review of the decision of custody officers at Cardiff Magistrates' Court on 12 May 1993 to refuse him access to his solicitor, Mr Brierley. That decision was, the court declared, a breach of the applicant's rights.

He had been charged with arson by setting on fire the car of his estranged wife, and was remanded in custody to appear before the justices on the day in question. His solicitor, Mr Brierley, saw him early in the morning in the cells at the magistrates' court but, after the case was put back to 2.15pm, he went again at 1.15pm to take further instructions. He was refused access. Bail having then been refused at the 2.15pm hearing, Mr Brierley returned for a further consultation at 3.15pm but was again denied access.

A standing order, made by the Chief Constable of South Wales, with the agreement of the court, forbade access by solicitors after 10am, save in exceptional circumstances, on the ground that demands on police time and manpower would otherwise be too onerous. This was not to prevent access to legal advice, it was said, but merely to regulate it. The applicant now challenged the lawfulness of that policy.

Richard Clayton (Jonathan Brierley, Cardiff) for the applicant; Crispin Masterman (Gareth Madge, Bridgend) for the Chief Constable; Nicholas Hillard (Treasury Solicitor) as amicus curiae.

LORD JUSTICE RALPH GIBSON said section 58, on which the applicant relied, was in that part of the Police and Criminal Evidence Act 1984 (PACE) which dealt with the questioning and treatment of suspects by the police, and seemed unlikely to have been intended to apply to a person held in custody in the cells of a magistrates' court.

But it was not necessary for Parliament to apply section 58 of PACE to such a person in order to secure him the right to consult a solicitor. At common law, someone in custody was entitled to consult a solicitor at an early stage of the investigation: R v Lemsatef (1977) 1 WLR 812. The right of a person in custody at a court to consult a solicitor could be no less than that of a person in detention in the course of investigation of a suspected offence under the rules of common law which preceded PACE and which were not abrogated by that Act.

That right was, on request, to be permitted to consult a solicitor as soon as was reasonably practicable. Moreover, that right should be secured to such a person at such time or times as would enable the proceedings to be fairly and effectively conducted by him or on his behalf.

Whether access to a solicitor was practicable required consideration of the circumstances of the accused and of the police in charge of the cells, including the other duties of the police and the demands on them when the request was made.

The Chief Constable's policy was unlawful to the extent that it authorised or permitted jailers to refuse access to a solicitor on the sole ground that the request was made after 10am, without reference to whether or not it was practicable.