Police could not prevent access to witnesses

LAW REPORT; 27 July 1995

Connolly v Dale; Queen's Bench Divisional Court (Lord Justice Balcombe and Mr Justice Buxton) 11 July 1995

The police were in contempt of court in preventing a defendant's solicitors from having access to potential alibi witnesses since the police have no right or power to prevent a defendant's solicitors from approaching potential witnesses and the solicitors were not wilfully obstructing the police in their investigation of the crime.

The Divisional Court gave reasons for its finding on 29 June that the police, acting through Detective Superintendent Dale, had been in contempt of court, and accepted an undertaking from the police not to interfere with the applicant's solicitors or agents in the proper course of their inquiries in connection with the preparation of the applicant's defence.

The applicant, James Martin Connolly, was charged with murder and cautioned under section 34 of the Criminal Justice and Public Order Act 1994 that it might harm his defence if he did not mention something which he later relied on in court. The applicant instructed his solicitor that he had an alibi and wished to provide details to the police. At the police interview he stated that around the time of the victim's death he was in the Holborn/Covent Garden area with some "travellers", slept the night in a doorway with two men and the following day remained in the same area and went to a hostel in Holborn.

The solicitor wished to find the travellers and engaged a private investigator to make inquiries at the hostel. She gave the investigator photographs of the applicant.

The police proposed to hold an identification parade to give the hostel staff and others an opportunity of identifying the applicant. The solicitor told the police that the private investigator had a photograph and that could cause a problem with any future identification parade. The police advised her that showing the photographs to potential identification witnesses would hinder and obstruct the course of the investigation into the murder, contrary to the Police Act 1964. The police asked the hostel staff not to view the photographs.

The applicant applied for committal for contempt of court against the police.

Alan Newman QC and Michael Turner (JD Spicer & Co) for the applicant; Simon Davis (Metropolitan Police Solicitor) for the police.

Lord Justice Balcombe, giving the court's judgment, said that interference with witnesses or potential witnesses by threat, promise or subsequent punishment was contempt. The concept of interference with witnesses extended to interference with proper and reasonable attempts by a party's legal advisers to identify and thereafter interview potential witnesses. Interference with a solicitor in the discharge of his or her duties could also constitute a contempt of court.

There could be no doubt that the actus reus of the offence was established. The issue was whether the mens rea was also established. Although the court accepted that the police's motive was benign, in the sense it was motivated to prevent the contamination of the proposed identification parade, the intent was deliberately to prevent the applicant's solicitors from having full and unimpeded access to potential alibi witnesses.

If there were some right or power on the part of the police to prevent the applicant's solicitors from approaching potential witnesses, the court might have been faced with a difficult balancing exercise between two competing, but apparently equal, principles. However the court was satisfied that there was no such right or power.

Two relevant principles were: 1) there was no property in a witness and 2) England was a country where everything was permitted except what was expressly forbidden. The only power asserted by the police was the power to stop the commission of the offence of wilfully obstructing a police officer in the execution of his duty under section 51(3) of the Police Act 1964. However it was well established that the word "wilfully" required that the act alleged to constitute the obstruction be done without lawful excuse.

Therefore the solicitor's and investigator's actions in attempting to identify the applicant's potential alibi witnesses, even though by showing a photograph of the applicant they might have contaminated the proposed identification parade, could not have amounted to an offence under section 51(3). The threat to prosecute for an offence under section 51(3) was a clear contempt of court.