NI: High Court: Downstreaming JR application dismissed
Sir Declan Morgan, the Lord Chief Justice, sitting with Lord Justice Treacy and Mr Justice Huddleston as the Divisional Court of the High Court of Justice of Northern Ireland, has dismissed an application for judicial review arising out of the ‘downstream monitoring’ of police interviews.
About this case:
Judge:Sir Declan Morgan
Remote monitoring of police interviews with terror suspects is subject to procedural safeguards in the form of the Association of Chief Police Officers of England and Wales and Northern Ireland (ACPO)’s Position Statement. That gave rise to foreseeability.
Arlene Shannon was arrested in March 2019 for alleged benefit fraud. She was informed by her solicitor that the Major Inquiry Team was going to deal with her, and he told her that this was unusual for standard benefit fraud investigations.
Risteard O’Murchú was arrested in May 2019 under the Terrorism Act 2000 s.41 for alleged possession of an AK-47 rifle and possession of information likely to be of use to terrorists.
In both arrests, the investigating officer told them that the use of downstream monitoring (downstreaming) of their interview was proposed. This meant that people, not in the interview room, would both see and hear the interviews. Mr O’Murchú and Ms Shannon 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 argued that downstreaming was not in accordance with law. Judicial review proceedings were lodged. The Police Service of Northern Ireland (PSNI) proceeded with the interviews without downstreaming.
The Police and Criminal Evidence Order 1989 (PACE) Arts.60 and 60A require the Department of Justice to issue a code of practice for the tape-recording and visual recording of police interviews. The codes of practice do not deal with downstreaming.
The Home Office of England and Wales updated its codes of practice to address downstreaming. Code E 2018 relates to the audio recording of interviews and contains the provisions relating to the use of remote monitoring.
Mr O’Murchú and Ms Shannon, represented by Ronan Lavery QC and Mr Mullan BL, argued that they had a reasonable expectation of privacy in respect of the interviews. It was submitted that the downstreaming was not in accordance with law.
The PSNI, represented by Dr Tony McGleenan QC and Mr Thompson BL, argued that Mr O’Murchú and Ms Shannon could not establish a reasonable expectation of privacy relating to the use of downstream monitoring because each was already held in a custodial environment where CCTV monitoring and recording applied throughout the detention.
Only persons with direct professional involvement in the investigations would view the interviews, who would in any event have been lawfully entitled to examine the content of those interviews.
The Court considered the reasonable expectation of privacy test enunciated by the House of Lords in Campbell v MGN Ltd  UKHL 22. The first question was to determine whether a reasonable expectation of privacy is established. This is a question which takes account, per the judgment of Sir Anthony Clarke MR in the Court of Appeal of England and Wales in Murray (a minor) v Big Pictures (UK) Ltd  EWCA Civ 446, of all the circumstances of the case.
The justices, citing the UK Supreme Court decision in Re JR 38  UKSC 42, said that if there could be no reasonable expectation of privacy, or legitimate expectation of protection, “it is hard to see how there could nevertheless be a lack of respect for their Article 8 rights.”
There was no dispute about the relevant principles applying to the “in accordance with the law” test. In R (P) v Secretary of State for Justice  UKSC 3, the UK Supreme Court approved the test set out in Huvig v France (1990) 12 EHRR 528, being that impugned measure should have some basis in domestic law. It should be accessible to the person concerned who must be able to foresee its consequences, and the measure must be compatible with the rule of law.
The Court noted that 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. The decision to remotely monitor an interview should be made by a senior investigating officer.
The College of Policing also published guidance on downstream monitoring.
The Court said promulgation of guidance on remote monitoring of recorded interviews was first published by a 1995 Home Office circular setting out the procedural safeguards. That didn’t expressly apply to Northern Ireland, but the judges said that the safeguards were replicated by ACPO, of which PSNI is a member, in its Position Statement, and in the Guidance from the College of Policing, and Code E in England and Wales.
The judges said that this was not a “discussion document”, and that 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.”
The ACPO Position Statement, they said, had the necessary quality of law “to give rise to foreseeability in respect of downstream monitoring.”
The judges said 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”. That is, they noted, “particularly so in these cases where the background of the allegation is connection to terrorism.”
The court said that it was required, pursuant to the JR 38 case, to consider the protections in the codes of practice on interviews and the controls on access to those recordings. “To that”, the judges said, “must be added the ACPO Position Statement.”
The application was dismissed.