HHD take Judicial Review to Divisional Court

3 February 2014

Doctor/patient confidentiality in police stations - does it exist?

The applicant in these Judicial Review proceedings was arrested by police in relation to a serious allegation alleged to have occurred in 1977. He was arrested some 46 years later in 2013 without any explanation with regards to the delay.

The legal issue arose during police detention when the applicant was examined by a doctor in the police station. Doctors working within police stations are known as FMOs or Forensic Medical Officers. It is common practice that those taken into police custody will be examined by an FMO. This is to ensure that the detained person is fit for police detention and furthermore to ensure that they are medically competent to participate in the police interview procedure. FMOs will generally advise police custody sergeants whether, in their opinion, the detained person is under the influence of alcohol or drugs and if so when that person is likely to be fit for interview.

What is of concern however is that the FMO can elicit further medical information from a detained person which is likely to be made available to officers investigating that person for an alleged criminal offence. Suspects may assume that the purpose of the examination is to ensure they are fit for detention and interview. Suspects might well consent to this examination by the FMO. However they might be unaware that, as the examination progresses, further information might be obtained by the FMO which could be used in evidence against them. Take for example, a suspect who is arrested for allegation of assault against another person. The suspect might well chose to exercise his right to silence (Article 3 of PACE 1989). The investigating officers might be keen to collect evidence which would lend support to the fact that the suspect was involved in a physical altercation, for example bruising to his/her upper body. Once the suspect consents to the examination by the FMO, the injury will be noted and upon request provided to the investigating police officers. In this case, we considered that the use of an FMO to obtain evidence and provide the investigative team with information which is then used against the suspect in interview and later in evidence raised the following issues of fundamental principle:-

i) Article 3 of PACE 1989 (obligation to caution suspects) is circumvented. In this case the police used an FMO to question the applicant at a time when he was not legally represented and had not been warned that any answers given might be used against him in subsequent criminal proceedings;
ii) The information obtained by the suspect in the police station was communicated directly to the police investigating him;
iii) The FMO participated in duties which were more akin to a police officer; and
iv) The information obtained by the FMO will now be used in evidence against a suspect.

Judicial Review proceedings were subsequently instigated against the Chief Constable of the PSNI. We sought an Order from the Court to return the confidential medical information obtained during the examination in an effort to ensure it was not disseminated further to, for example, the Public Prosecution Service.

Leave was granted by the High Court and a hearing date was fixed before the Divisional Court given that the matter was a "Criminal Cause".

We had anticipated that the legal challenge brought before the Divisional Court might seek to regulate the process of examining suspects held in police detention. As solicitors advising suspects in police stations on a daily basis, we were concerned that members of the public were not being provided with the full picture. We spoke to a number of our clients held in police custody and asked them whether they believed the examination by the FMO was confidential. The overwhelming response was "Yes". The perception being that doctor/patient privilege covered such examinations. As was demonstrated in this case, the reality was very different.

A second legal challenge arose in the case concerning the photographing of the suspect whilst in police detention. The applicant in this case had been arrested under the provisions of the Terrorist Act 2000. It was accepted that this legislation allowed for the photographing of suspects in order to obtain the identity of that suspect (see paragraph 2 (1)(a)(b) of Schedule 8). We contended that those powers were only applicable when certain intrusive steps have to be taken for the purposes of identification. In this case, the applicant's identity was never in dispute. We argued therefore that the photographing of the applicant's body was unlawful.

The matter proceeded before the Divisional Court on the 30th September 2013. We were disappointed that the High Court refused to entertain the application for Judicial Review on the basis that the issues raised could properly be dealt with within the criminal trial process (see for example Article 76 (1) of PACE 1989). The Court further relied on the decision of R v DPP ex p Kebeline [2000] 2 ac 326. Kebeline is perhaps the most obvious example of the principle against satellite litigation in criminal proceedings and was indeed referred to by the Lord Chief Justice in the case of Re: Officer C & Ors App [2012] NICA 47 whereupon it was remarked:

"The overriding objective in Rule 1a of the Rules of the Court of Judicature requires the Court to deal with cases justly. What is just in any case will depend upon the context but it clearly includes avoiding, is possible, a proliferation of litigation which is likely to cause delay in the indication of substantive rights and considerable costs to the participants or the public purse. In criminal proceedings this principle is the basis for the strong presumption against a Judicial Review application to the Divisional Court where the issue can be raised in this substantive criminal proceedings".

The applicant in this case is still to face a crown court trial and we are confident that the legal issues raised within the Judicial Review will be successfully argued.

It is interesting to note that the rationale contained within Kebeline seems to have been the sole reason for the successful appeal in the case of Brownlee [2013] NICA 57. This case involves an Article 6 argument which arose as a result of the Legal Services Commission failing to implement a payment scheme for Defendants in legally aided cases to obtain Counsel at the point of sentence in criminal proceedings. We note that the Supreme Court have granted Leave to hear the Brownlee arguments and we will wait with anticipation for the full Judgment before considering whether any further action can be taken in relation to the issues raised in this case.

Here at HHD we recognise the importance of our client's rights whilst detained in police custody. We are acutely aware that the interview stage is the most crucial stage of any criminal proceedings.

Should you require legal advice and assistance at a police station please contact our 24 hour call out number 07850707426.


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