Brennan v The United Kingdom: ECHR 16 Oct 2001

The applicant had complained that, after his arrest he had been refused adequate access to a lawyer. He had not been allowed to see his solicitor for two days, and only then in the presence of a police officer. No inferences had been drawn from his silence in the period before access to his lawyer, and therefore no detriment was shown because of the delay. The applicant was also protected in several ways in the adversarial system from that delay. However, if a lawyer is unable to confer with his client and receive confidential instructions from him without surveillance, his assistance would lose its usefulness. The Convention guarantees rights that were practical and effective. Though jurisprudence indicated that such rights could be restricted for good cause, the manner of the officer’s presence did infringe his right to an effective exercise of his defence rights under art 6.1.
After citing S v Switzerland, the court held: ‘The Court has noted above that Article 6(3) normally requires that an accused be allowed to benefit from the assistance of a lawyer in the initial phases of an interrogation. Furthermore, an accused’s right to communicate with his advocate out of hearing of a third person is part of the basic requirements of a fair trial and follows from Article 6(3)(c). If a lawyer were unable to confer with his client and receive confidential instructions from him without surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective. The importance to be attached to the confidentiality of such consultations, in particular that they should be conducted out of the hearing of third persons, is illustrated by the international provisions cited above. However, the Court’s case-law indicates that the right of access to a solicitor may be subject to restrictions for good cause and the question in each case is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing. While it is not necessary to prove, assuming such were possible, that restriction had a prejudicial effect on the course of the trial, the applicant must be able to claim he had been directly affected by the restriction in the exercise of the rights of the defence.
In this case, the trial judge found that the restriction served the purpose identified under section 45 of the 1991 Act of preventing information being passed on to suspects still at large. There was however no allegation that the solicitor was in fact likely to collaborate in such an attempt, and it was unclear to what extent a police officer would be able to spot a coded message if one was in fact passed. At most, it appears that the presence of the police officer would have had some effect in inhibiting any improper communication of information, assuming there was any risk that such might take place. While the Court finds that there is no reason to doubt the good faith of the police in imposing and implementing this measure-there is no suggestion, as pointed out by the Government, that the police sought to use the opportunity to obtain evidence for their own purposes, it nonetheless finds no compelling reason arising in this case for the imposition of the restriction.’
The court considered proportionality, and concluded ‘that the presence of the police officer would have inevitably prevented the applicant from speaking frankly to his solicitor and given him reason to hesitate before broaching questions of potential significance to the case against him’ [62] and that the presence of the police officer at the hearing and within earshot during the applicant’s first consultation with his solicitor infringed his right to an effective exercise of his defence rights and that there had been, in consequence, a violation of Article 6(3)(c) read in conjunction with Article 6(1).’
JP Costa, President and Judges W Fuhrmann, L Loucaides, Sir Nicolas Bratza, HS Greve, K Traja and M Ugrekhelidze Section Registrar S. Dolle
Times 22-Oct-2001, 39846/98, (2002) 34 EHRR 18, [2002] Crim LR 216, [2001] ECHR 596, [2001] Po LR 387, [2011] ECHR 2271
Bailii, Bailii
Prevention of Terrorism Act 1984, European Convention on Human Rights 6(3)
Human Rights
CitedS v Switzerland ECHR 28-Nov-1991
ECHR Judgment (Merits and just satisfaction) – Violation of Art. 6-3-c; Non-pecuniary damage – financial award; Costs and expenses award – domestic proceedings; Costs and expenses award – Convention . .

Cited by:
CitedCadder v Her Majesty’s Advocate SC 26-Oct-2010
Statement without lawyer access was inadmissible
The accused complained that he had been convicted for assault and breach of the peace on the basis of a statement made by him during an interview with the police where, under the 1995 Act, he had been denied access to a lawyer.
Held: The . .
CitedAmbrose v Harris, Procurator Fiscal, Oban, etc SC 6-Oct-2011
(Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .
CitedBrown, Regina v CACD 29-Jul-2015
The claimant, a patient hld at Rampton Hospital faced charges of attempted murder of two nurses. His lwayers had asked for the right to see their client in private, but eth Hospital objected, insisting on the presence of two nurses at all times. . .

These lists may be incomplete.
Updated: 07 January 2021; Ref: scu.166600