Applications Nos.
11209/84, 11234/84
11266/84, 11386/85
Terence BROGAN, Dermot COYLE,
William McFADDEN, Michael TRACEY
against
the UNITED KINGDOM
REPORT OF THE COMMISSION
(adopted on 14 May 1987)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 25) .............................. 1
A. The application (paras. 2 - 8) ............ 1
B. The proceedings (paras. 9 - 20) ........... 1
C. The present Report (paras. 21 - 25) ....... 3
II. ESTABLISHMENT OF THE FACTS
(paras. 26 - 39) ............................. 4
A. Prevention of terrorism legislation
(paras. 26 - 28) ........................... 4
B. Section 12 of the 1984 Act
(paras. 29 - 32) ........................... 4
C. Particular circumstances of the case
(paras. 33 - 39) ........................... 6
III. SUBMISSIONS OF THE PARTIES
(paras. 40 - 76) ............................. 7
A. The Applicants ............................ 7
(paras. 40 - 58)
B. The respondent Government ................. 10
(paras. 59 - 76)
IV. OPINION OF THE COMMISSION
(paras. 77 - 121).............................. 15
Points at issue (para. 77)..................... 15
General considerations (paras. 78 - 82)........ 15
As regards Article 5 para. 1 (c)
(paras. 83 -98) ........................... 16
As regards Article 5 para. 3
(paras. 99 - 108) ......................... 19
As regards Article 5 para. 4
(paras. 109 - 114) ........................ 21
As regards Article 5 para. 5
(paras. 115 - 119) ........................ 22
As regards Article 13
(paras. 120 - 123 ) ....................... 23
Recapitulation (para. 124).................... 23
PARTLY DISSENTING OPINION of
MM. J. A. Frowein, S. Trechsel, H. G. Schermers and
Mrs. G. H. Thune .................................. 24
PARTLY DISSENTING OPINION of Sir Basil Hall ... 26
APPENDIX 1: History of the Proceedings before the
Commission ................................ 27
APPENDIX II: Decision on the admissibility of the
Applications ............................. 28
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The first applicant, Mr. Terence Patrick Brogan, is a citizen
of the United Kingdom, born in 1961. He is a farmer by profession and
lives in County Tyrone, Northern Ireland.
3. The second applicant, Mr. Dermot Coyle, is a citizen of the
United Kingdom, born in 1953. He is, at present, unemployed and lives
in County Tyrone, Northern Ireland.
4. The third applicant, Mr. William McFadden, is a citizen of the
United Kingdom, born in 1959. He is, at present, unemployed and lives
in Londonderry, Northern Ireland.
5. The fourth applicant, Mr. Michael Tracey, is a citizen of the
United Kingdom, born in 1962. He is an apprentice joiner by profession
and lives in Londonderry, Northern Ireland.
6. The applicants are represented before the Commission by
J. Christopher Napier & Co., Solicitors, Belfast.
7. The Government are represented by their Agent, Mr. Michael Wood,
Foreign and Commonwealth Office.
8. All of the applicants were arrested and detained under
Section 12 of the Prevention of Terrorism (Temporary Provisions) Act
1984 and informed that there were reasonable grounds for suspecting
them to have been involved in the commission, preparation or
instigation of acts of terrorism connected with the affairs of
Northern Ireland. The applicants allege that their arrest and
detention was not justified under Article 5 para. 1 and that there
have also been breaches of Article 5 paras. 3, 4 and 5 of the
Convention. They also complain that they have no effective remedy in
respect of their complaints, contrary to Article 13 of the Convention.
B. The proceedings
9. The first application (Brogan) was introduced on
18 October 1984 and registered on 23 October 1984.
10. The second application (Coyle) was introduced on
22 October 1984 and registered on 26 October 1984.
11. The third application (McFadden) was introduced on
22 November 1984 and registered on 27 November 1984.
12. The fourth application (Tracey) was introduced on
8 February 1985 and registered on 11 February 1985.
13. On 11 March 1985 the Commission decided in accordance with
Rule 42 para. 2(b) of its Rules of Procedure to give notice of the
applications to the respondent Government and to invite them to
present before 14 June 1985 their observations in writing on the
admissibility and merits of the applicants' complaints under Articles
5 and 13. The observations of the respondent Government were
submitted on 30 July 1985. The applicants' observations in reply were
submitted on 6 September 1985.
14. The Commission decided on 9 December 1985 to invite the
parties to a joint oral hearing which took place in Strasbourg on
11 July 1986. At the hearing, for which the applications were joined
pursuant to Rule 29 of the Commission's Rules of Procedure, the
applicants were represented by Mr. R. Charles Hill, Q.C.,
Mr. Seamus Treacy, Counsel, and Mr. Christopher Napier, solicitor.
One of the applicants, Mr. Michael Tracey, was present during the
hearing. The Government were represented by their Agent,
Mr. Michael Wood, and by Mr. Anthony Campbell, Q.C., and
Mr. Nicholas Bratza, Counsel. Three Government advisers were also
present.
15. In the course of the hearing the applicants declared that
they did not pursue the complaint they had first made under Article 5
para. 2 of the Convention.
16. On 11 July 1986 the Commission declared the applications
admissible.
17. The Government submitted supplementary observations on the
merits on 17 December 1986. These observations were transmitted to
the applicants' representatives for information. Supplementary
observations which had been submitted by the applicants on 27 April
1987 were not taken into consideration by the Commission as they had
been sent too late.
18. On 6 May 1987 the Commmission considered the merits of the
case and took their final votes on the case. On 6 May 1987 the
Commission adopted the text of the Report.
19. Legal aid under the Addendum to the Commission's Rules of
Procedure was granted to the applicants Coyle, McFadden and Tracey on
9 June 1986.
20. After declaring the case admissible, the Commission, acting in
accordance with Article 28 (b) of the Convention, placed itself at the
disposal of the parties with a view to securing a friendly settlement
of the case. In the light of the parties' reaction, the Commission
now finds that there is no basis upon which a settlement can be
reached.
C. The present Report
21. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes in plenary session, the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
E. BUSUTTIL
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs. G. H. THUNE
Sir Basil HALL
22. The text of the Report was adopted by the Commission on
14 May 1987 and is now transmitted to the Committee of Ministers in
accordance with Article 31 para. 2 of the Convention.
23. The purpose of the Report, pursuant to Article 31 para. 1 of
the Convention, is:
1. To establish the facts, and
2. To state an opinion as to whether the facts found disclose a
breach by the State concerned of its obligations under the
Convention.
24. A Schedule setting out the History of the Proceedings before
the Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the applications as Appendix II.
25. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
Relevant Domestic Law and Practice
Prevention of terrorism legislation
26. In the United Kingdom special legislation has been introduced
for the purpose of combating terrorism in Northern Ireland or
connected with the affairs of Northern Ireland.
27. The Prevention of Terrorism (Temporary Provisions) Act 1984
substantially re-enacted the 1976 Act of the same name which in turn
had re-enacted the 1974 Act.
28. The exceptional powers in the 1974 and 1976 Acts were subject
to periodic renewal by Parliament and the operation of both Acts was a
subject of reports first by Lord Shackleton in 1978 (Cmnd. 7324) and
then in 1983 by Lord Jellicoe (Cmnd. 8803). In re-enacting the 1976
Act, the 1984 Act takes account of recommendations made by Lord
Jellicoe. As in the case of the earlier Acts, the exceptional powers
in the 1984 Act are subject to periodic renewal. Under Section 17 of
the 1984 Act they had an initial life of one year. They were renewed
on 22 March 1985 and 21 March 1986 in accordance with Section 17 (2)
of the 1984 Act. The Act as a whole will expire, under Section 17
(3), on 21 March 1989. It cannot thereafter be renewed and primary
legislation will be needed if these powers are still considered
necessary. In order to assist consideration of the need to renew the
powers in the Act, Sir Cyril Philips was appointed to look annually
at its operation. He has reported on two occasions.
Section 12 of the 1984 Act
29. The relevant parts of Section 12 of the 1984 Act provide as
follows:
"(1) A constable may arrest without warrant a person whom he
reasonably suspects to be -
(a) a person guilty of an offence under section 1, 9, 10
or 11 of this Act;
(b) a person who is or has been concerned in the commission,
preparation or instigation of acts of terrorism;
(c) a person subject to an exclusion order.
.....
(3) The acts of terrorism to which this Part of the Act
applies are -
(a) acts of terrorism connected with the affairs of
Northern Ireland; and
(b) acts of terrorism of any other description except acts
connected solely with the affairs of the United Kingdom
or any part of the United Kingdom other than Northern
Ireland.
(4) A person arrested under this section shall not be detained in
right of the arrest for more than forty-eight hours after his arrest;
but the Secretary of State may, in any particular case, extend the
period of forty-eight hours by a further period or periods specified
by him.
(5) Any such further period or periods shall not exceed five days
in all.
(6) The following provisions (requirement to bring an accused person
before the court after his arrest) shall not apply to a person
detained in right of the arrest -
... (d) Article 131 of the Magistrates' Courts (Northern
Ireland) Order 1981; ..."
30. For an arrest made under Section 12 to be lawful it must
comply with the provisions of the Section, in particular, as to the
existence of reasonable grounds for the suspicion held. In addition,
an arrest is lawful only if the person arrested is informed of the
true grounds for the arrest in accordance with the requirements of a
valid arrest set down by the House of Lords in the decision of
Christy v. Leachinsky [1947] A.C. 573 (see, in this respect, Van Hout
v. Chief Constable of the R.U.C. and the Northern Ireland Office,
decision of the Northern Ireland High Court of 28 June 1984).
31. A person who considers that his arrest or detention under
Section 12 is unlawful can challenge his arrest or detention by
seeking the remedy of habeas corpus or by taking civil proceedings
for damages for false imprisonment. In addition, the decision of the
Secretary of State to extend the period of detention under Section 12
(4) is reviewable by the High Court. If the initial arrest is unlawful
there is no power lawfully to extend the period of detention and a
decision to do so would be quashed by a court on an application for
judicial review.
32. Paragraph 5 (2) of Schedule 3 to the 1984 Act provides that
when a person is detained under Section 12 he is deemed to be in legal
custody. This provision does not, however, preclude the above
remedies being sought by the arrested or detained person (see Van Hout
v. Chief Constable of the R.U.C. and the Northern Ireland Office,
loc. cit.).
Particular circumstances of the case
33. The first applicant, Mr. Terence Patrick Brogan, was arrested
at his home at 06.15 a.m. on 17 September 1984 by police officers
under Section 12 of the 1984 Act. He was taken to Gough Barracks,
Armagh, where he was detained continuously until his release at 17.20
hours on 22 September 1984. He had been informed on 18 September 1984
by police officers that the Secretary of State for Northern Ireland
had agreed to extend the period of his detention for a further five
days under Section 12 (4) of the 1984 Act. He was detained for a
period of five days and 11 hours.
34. The second applicant, Mr. Dermot Coyle, was arrested at his
home at 06.35 hours on 1 October 1984 by police officers under Section
12 of the 1984 Act. He was taken to Gough Barracks, Armagh, where he
was detained continuously until his release at 23.05 hours on 7
October 1984. He had been informed on 2 October 1984 by police
officers that the Secretary of State for Northern Ireland had agreed
to extend the period of his detention for a further five days under
Section 12 (4) of the 1984 Act. He was detained for a period of six
days and 16½ hours.
35. The third applicant, Mr. William McFadden, was arrested at his
home at 07.00 hours on 1 October 1984 by a police officer under
Section 12 of the 1984 Act. He was taken to Castlereagh Police
Holding Centre, Belfast, where he was detained continuously until his
release at 13.00 hours on 5 October 1984. He had been informed on
2 October 1984 by police officers that the Secretary of State for
Northern Ireland had agreed to extend the period of his detention for
a further five days under Section 12 (4) of the 1984 Act. He was
detained for a period of four days and 6 hours.
36. The fourth applicant, Mr. Michael Tracey, was arrested at his
home at 07.04 hours on 1 October 1984 by police officers under Section
12 of the 1984 Act. He was taken to Castlereagh R.U.C. Station,
Belfast, where he was detained continuously until his release at 18.00
hours on 5 October 1984. He had been informed on 2 October 1984 by
police officers that the Secretary of State for Northern Ireland had
agreed to extend the period of his detention for a further five days
under Section 12 (4) of the 1984 Act. He was detained for a period of
four days and 11 hours.
37. All of the applicants were informed by the arresting officer
that they were being arrested under Section 12 of the 1984 Act and
that there were reasonable grounds for suspecting them to have been
involved in the commission, preparation and instigation of acts of
terrorism connected with the affairs of Northern Ireland. They were
cautioned that they need not say anything but that anything they did
say might be used in evidence.
38. The applicants were not informed by police officers of the
details of any criminal offence that they were alleged to have
committed, or given any other reason for their arrest and detention
apart from the information set out above. They were not brought
before a judge or other officer authorised by law to exercise judicial
power or given any opportunity for release on bail.
39. Following their release they were not charged with any
criminal offence.
III. SUBMISSIONS OF THE PARTIES
The Applicants
Article 5 para. 1 (c)
40. The applicants submit that they were arrested and detained
solely for the purpose of interrogation and that their arrest was not
used, as required by Article 5 para. 1 (c), to bring them before a
competent legal authority.
41. Under the ordinary criminal law an arrest will normally lead
to a criminal prosecution, an appearance in court and a trial. There
must exist a firm intention to bring criminal proceedings at the time
of the arrest. In this sense the ordinary criminal law is fully
compliant with Article 5 para. 1 (c).
42. Thus Article 131 of the Magistrates' Court Order (NI) 1981
specifically provides that a person who is arrested without warrant
shall be brought before a Magistrates' Court within 24 hours of his
arrest or as soon as practicable thereafter but not later than 48
hours after his arrest.
43. The purpose of arrest under common law has been described as
follows by Lord Justice Lawton in the case of R v. Houghton and Franciosy
[1979] 68 CR.App.R. 197:
"We wish to state in the clearest possible terms that
police officers can only arrest for offences. If they
think there is any difference between detaining and
arresting, they are mistaken. ... They have no power,
save under the Prevention of Terrorism (Temporary
Provisions) Act 1976, to arrest anyone so that they can
make inquiries about him." (p. 205)
44. Similarly Chief Justice O'Higgins in the case of the People v.
Walsh [1980] I.R.294 - decision of the Irish Supreme Court - stated
that:
"an arrest and subsequent detention is only justified
at common law if it is exercised for the purpose for
which the right exists which is bringing an arrested
person to justice before a court."
45. It is clear, however, that the purpose of an arrest under
Section 12 of the 1984 Act is to permit interrogation of persons who
are not primarily arrested for the purpose of being brought before a
competent legal authority. This is reflected in the fact that the
statutes dealing with emergency provisions such as the 1984 Act and
the Northern Ireland (Emergency Provisions) Act 1976 contain no
reference to the necessity to bring a suspect before a court. In this
connection Section 12 (6) specifically repeals Article 131 of the
Magistrates' Court Order (NI) 1981 referred to above.
46. The statistics relating to the numbers of persons arrested
under the prevention of terrorism legislation and released without
charge, support the view that there is a policy to detain for the
purpose of interrogation. Thus around 15 - 24 per cent of those
arrested are brought to court. In a radio interview the Secretary of
State (Mr. Leon Brittan), referring to the statistics, stated as
follows:
"I think that is a very misleading figure because that
suggests that the purpose of the detention is simply
to bring a charge. If that were so, there might almost
be no need for the legislation. What the figures do not
tell is how much information was obtained not only about
the people concerned but about others and how many
threats were averted as a result of obtaining information
from those who were detained."
In another part of the interview he stated that
"the object of the exercise is not just to secure
convictions but to secure information."
47. Northern Ireland courts have, moreover, consistently held that
the purpose of arrest under Section 12 is that of interrogation. Thus
in Ex parte Lynch [1980] N.I.Rep, Lord Justice Lowry stated as
follows:
"An arrest (under Section 12) is not necessarily ...
the first step in a criminal proceeding against a suspected
person on a charge which was intended to be judicially
investigated. Rather it is usually the first step in the
investigation of the suspected person's involvement in
terrorism." (p. 126)
48. This view was accepted by Mr. Justice Higgins in the Van Hout
case (loc. cit., p. 15) and also by Lord Justice Kelly in the case of
McKearney v. the Chief Constable of the Royal Ulster Constabulary
(decision of the Northern Ireland High Court, November 1985).
49. It is submitted that under Article 5 para. 1 (c) there must
exist a firm intention at the time of arrest to bring the applicant
before a court as well as a firm intent to bring criminal proceedings
against him. In this connection reference is made to the report of
the Commission in the case of McVeigh, O'Neill and Evans (Comm. Report,
18.3.81, D.R. 25, para. 198).
50. However, as the above references show, the purpose of arrest
under Section 12 is merely to interrogate the person and the intention
to bring criminal proceedings only arises if, after interrogation,
there is sufficient evidence to bring the person before a court.
51. Accordingly, the primary purpose of Section 12 is a radical
departure from the common law view of arrest. For this reason, the
applicants' detention cannot fall within Article 5 para. 1 (c).
Article 5 para. 3
52. The applicants point out that the arresting authorities had no
intention of bringing them before a judge or other judicial officer
promptly or at all unless they, by their own admission, provided
admissible evidence of involvement in terrorist offences.
53. It is submitted that the term "promptly" means acting with
speed. Thus Article 131 of the Magistrates' Court Order (NI) 1981
requires that a person charged with an ordinary criminal offence be
brought before a magistrate within 24 hours of his arrest or, if this
is not possible, no later than 48 hours after his arrest.
54. Courts in Northern Ireland sit from early morning until late
afternoon, Monday to Friday inclusive and for half a day on Saturday
and occasionally, by special arrangements, at other times. A court is
therefore always available within 18 hours, at weekends within 42
hours and, by special arrangements, within a lesser period.
55. The applicants further submit that the principal reason why
they were not brought promptly before a court is because the purpose
of arrest under Section 12 is to question the arrested person and
not to bring him before a competent judicial authority. Finally, they
submit that they are entitled to benefit from the presumption of
innocence since no criminal charges have been brought against them.
They deny that they were skilled in anti-interrogation techniques or
that they showed skill in resisting interrogation during their
detention.
Article 5 para. 4
56. The applicants submit that it is not open to them to
challenge, before the Northern Ireland courts, the compatibility of
their arrest with Article 5 paras. 1 (c) and 3 of the Convention.
Article 5 para. 5
57. An action for damages for false imprisonment is dependent on
their arrest and detention being unlawful and therefore, in the
present case, would be bound to fail since they concede that they were
validly arrested under the laws of Northern Ireland. The applicants
contend that they have no enforceable right to compensation under
Northern Ireland law for an arrest and detention which is contrary to
Article 5 para. 1.
Article 13
58. The applicants maintain that they have no effective remedy in
respect of their complaint that they have been arrested and detained
in breach of Article 5 paras. 1 and 3 of the Convention.
The Respondent Government
As to Fact
59. The Government state that all of the applicants were arrested
because the police had reasonable grounds for suspecting them to have
been involved in the commission, preparation or instigation of
acts of terrorism in Northern Ireland. The first applicant, Brogan,
was suspected of involvement in an act of terrorism carried out in
County Tyrone where, on 11 August 1984, a police mobile patrol was
attacked. A 500 lb bomb exploded under the roadway as a police
vehicle was passing. As a result of the attack, a police sergeant
died and another police officer was seriously injured. The second
applicant, Coyle, was suspected of involvement in several acts of
terrorism, including the planting of a land mine intended to kill
members of the security forces in County Tyrone on 23 February 1984
and a blast incendiary bomb attack in County Tyrone on 13 July 1984.
The third applicant, McFadden, was suspected of involvement in several
acts of terrorism, including the murder of a soldier and a bomb attack
in Londonderry on 15 October 1983 and the murder of another soldier
during a petrol bomb and gunfire attack in Londonderry on 23 April
1984. The fourth applicant, Tracey, was suspected of involvement in
the armed robbery of post offices in Londonderry on 3 March 1984 and
29 May 1984 as well as a conspiracy to murder members of the security
forces.
60. During their detention the applicants were questioned about
their involvement in the above-mentioned incidents and about suspected
membership of the Provisional IRA - a terrorist organisation
proscribed under Section 21 of the Northern Ireland (Emergency
Provisions) Act 1978.
61. The Government do not accept the applicants' claim not to be
skilled in interrogation techniques. In this respect they point out
that in the course of the extensive interviews by the police during
their periods of detention, the applicants maintained almost total
silence and failed to respond in any way to the questions put to them.
In addition, their behaviour made it difficult for the interviews to
proceed. For example, Mr. Brogan turned away from his questioners
during interviews and stared at the floor and periodically stood up to
attention. Mr. Tracey sought to disrupt the interviews by rapping on
heating pipes in the interview room, singing, whistling and banging
his chair against the walls. Mr. Coyle and Mr. McFadden behaved in a
similar manner.
62. Nevertheless the Government accept that, since the applicants
have not been charged with any offence, it should be assumed that none
of them was, in fact, involved in terrorist acts.
Article 5 para. 1 (c)
63. The Government submit that the applicants' arrest and
detention was justified under Article 5 para. 1 (c) for the purpose of
bringing them before a court on reasonable suspicion of having
committed an offence. At the time of their arrest, there were
insufficient grounds for arresting them on suspicion of having
committed a specific offence. There were, however, reasonable grounds
for suspecting them of involvement in acts of terrorism, i.e. use of
violence for political ends, a criterion which the Court has
recognised to be in keeping with the idea of an "offence" (Ireland v.
United Kingdom, para. 196). They were arrested with a view to
charging them with a specific offence if the necessary further
evidence could be obtained. In the event, no further admissible
evidence was obtained and they were released as soon as it became
apparent that no charges could be preferred against them.
64. The Government recall the applicants' concession that the
arresting officer had a reasonable suspicion that they had each been
involved in acts of terrorism when effecting the arrest. However the
applicants submit that the concept of "reasonable suspicion" requires
a suspicion on the part of the arresting authorities which is of
itself sufficient to found a criminal prosecution before a court. The
Government contend that the applicants have confused the concept of
"reasonable suspicion" and the concept of "admissible evidence" of an
offence - which is what is required before a criminal prosecution can
be initiated.
65. Article 5 para. 1 (c) does not require that there must be
sufficient admissible and usable evidence to bring immediate charges.
Such an interpretation unjustifiably narrows the proper scope of this
provision and would exclude numerous arrests even for offences wholly
unconnected with terrorism, where the arresting officer has strong
grounds for suspecting that a person has been involved in the
commission of the offence but where it is necessary to question the
suspect to carry out further inquiries before there is sufficient
evidence to justify the bringing of charges.
66. Under Section 12 not only is a reasonable suspicion required
that the person arrested has been involved in a criminal act but there
must also be a firm intention to charge and prosecute the person
concerned with a criminal offence in the event that admissible and
usable evidence becomes available. There is no other purpose for the
arrest. This is made clear in a circular to police forces in England
and Wales issued in March 1984 as a guidance to the 1984 Act. Para.
92 of that circular states as follows:
"the prime objective of the exceptional powers in Section
12 is to enable proceedings to be instituted against persons
involved in terrorism as a result of the additional
investigations they make possible."
It is also borne out by statistics contained in the Jellicoe Report
which show that in the period from November 1974 to September 1982
some 1,975 persons were detained under the Act in Northern Ireland.
Of these, some 847 persons were charged with offences under the Act or
with other serious offences.
67. The particular dilemma which faces the police when effecting
an arrest under Section 12 is that although there may be ample
material to found a suspicion that a person is involved in terrorist
offences, such material cannot be used in court either because it is
inadmissible as evidence or because its use would reveal the identity
of informants or endanger an informant's life or the lives and safety
of his family or of other witnesses. Consequently, although it is the
firm purpose to bring charges, there is frequently insufficient
admissible and usable evidence available at the time of arrest to give
immediate effect to that purpose. However, if the police consider
that they have obtained sufficient evidence before the expiry of the
seven-day period they must bring the person before a court.
Article 5 para. 3
68. In determining the meaning of "promptness" it is clear from
the decided case law that each case must be assessed according to its
own features. In normal circumstances, and in the absence of special
features, periods of detention in excess of five days will not satisfy
the requirement. Thus, in the Commission's decisions on the
admissibility of Applications Nos. 2894/66 (Yearbook IX, p. 564) and
4960/71 (Collection Dec. 42, p.49) periods of four and five days
respectively were held to satisfy the requirement of promptness. It
is submitted that, even in the absence of the special features which
arise in relation to the detention of suspected terrorists, the
requirement of promptness was satisfied in relation to Mr. McFadden
who was detained for four days and six hours, and Mr. Tracey for four
days and eleven hours.
69. The Government further submit that in the case of arrest and
detention of persons reasonably suspected of involvement in acts of
terrorism very special features which were absent in cases previously
examined by the Commission and the Court justify somewhat longer
periods of detention before the person concerned is brought before a
court or released. Each of the previous cases determined by the
European Court of Human Rights concerns detention for offences of a
military character or offences under the ordinary criminal law (De
Jong, Baljet and Van Den Brink judgment of 22 May 1984, Series A no.
77; Duinhof and Duijf judgment of 22 May 1984, Series A no. 79; Van
der Sluijs, Zuiderveld and Klappe judgment of 22 May 1984, Series A
no. 78; Skoogström judgment of 2 October 1984, Series A no. 83; McGoff
judgment of 26 October 1984, Series A no. 83). None of these cases was
concerned with terrorist offences and none had the special features
which characterise such offences.
70. A special feature of terrorist offences is the difficulty of
obtaining evidence which is admissible and usable, given the training
of major terrorist groups and the techniques of remaining silent under
police questioning. Such considerations are fully discussed in the
Jellicoe and Shackleton reports. Moreover, as Lord Jellicoe noted in
paragraph 60 of his Report, even where initial admissions were made in
the early stages of detention, there were often a number of reasons
why a period of extension might prove essential. These included the
need for time to undertake any necessary scientific or forensic
examinations, to co-relate intelligence from other detainees and to
liaise with other security forces. The conclusion in the Jellicoe
Report as to the vital need for a power of extension is borne out by
the statistics in Table 10 to the Report, from which it is apparent
that some 772 charges out of the total of 847 charges preferred in the
period from November 1974 to September 1982 were preferred after the
grant of an extension.
71. The Government contend that a second special feature of
terrorist offences is the difficulty, in view of the acute sensitivity
of some of the material on which the suspicion is based, of producing
it to a court. While there may be ample material to found a
suspicion that a person is involved in terrorist offences, such
material cannot be produced in court, since its use would compromise
the source of the information and endanger the informant's life or the
lives or safety of his family, or of other witnesses. On the other
hand, if such material is not produced, there is the equally real risk
that a terrorist will go free even though there exists an overwhelming
case against him.
72. In the view of the Government, the above dilemma could not
be satisfactorily resolved either by excluding the detainee and his
advisers from any court proceedings or by entrusting to a court rather
than to the Secretary of State the power to grant extensions under
Section 12. The former proposal would require a fundamental and
undesirable change in the law and procedure in the United Kingdom
under which an individual is entitled to attend in person and with his
legal advisers any court proceedings relating to his continued
detention. As to the latter proposal, in addition to involving the
disclosure of sensitive information outside a strict circle, such a
change would inevitably lead to a lack of consistency of approach and
to a weakening of the safeguards against abuse which the present
arrangements are designed to achieve. In this context the Government
recall that the process of extension by the Secretary of State is not
an automatic one. Each application is carefully scrutinised.
73. In the submission of the Government, by reason of these
special features which are unique to cases of suspected terrorism,
the requirement of promptness was met in each of the present cases.
Article 5 para. 4
74. It is clear from the judgment in the Van Hout case that a
court on a habeas corpus application could not only review the
procedural lawfulness of the arrest and detention but could also have
examined whether there existed any reasonable grounds for the
suspicion on the basis of which the arrest was made. In any such
review the onus would have been on the respondent to satisfy the court
by evidence that the suspicion was reasonable. Accordingly, the
remedy of habeas corpus satisfies the requirements of Article 5
para. 4 in the present case.
Article 5 para. 5
75. It is clear from the constant jurisprudence of the Court and
the Commission that this provision only has application insofar as an
arrest or detention has been found by the domestic courts or by the
Commission to fall outside Article 5. As in the McVeigh case, the
domestic courts have not found the present applicants' arrest and
detention to have been contrary to either domestic law or the
Convention. If the arrests had been found to be contrary to domestic
law, the applicants would have had an enforceable right to
compensation in the form of damages for wrongful arrest and false
imprisonment. Accordingly, it is submitted that since the applicants'
arrest and detention was not in contravention of Article 5 this
provision has no application.
Article 13
76. It is submitted inter alia that since the applicants have
not established even an arguable claim to be victims of violations of
Article 5 this provision does not apply. In addition, if the remedies
of habeas corpus and damages for false imprisonment are sufficient to
satisfy Article 5 para. 4 of the Convention, they must equally satisfy
the less strict requirements of Article 13.
IV. OPINION OF THE COMMISSION
Points at issue
77. The following are the principal points at issue in the cases:*
1. Article 5 (Art. 5) of the Convention
- Whether the applicants' arrest and detention were justified
under Article 5 para. 1 (c) (Art. 5-1-c);
- whether the applicants were brought promptly before a judge or
other officer authorised by law to exercise judicial power as required
by Article 5 para. 3 (Art. 5-3);
- whether the applicants were able to take proceedings by which
the lawfulness of their detention could be decided speedily by a court
within the meaning of Article 5 para. 4 (Art. 5-4);
- whether the applicants had an enforceable right to
compensation as required by Article 5 para. 5 (Art. 5-5).
2. Article 13 (Art. 13) of the Convention
Whether the applicants had an effective remedy as regards
their Convention complaints within the meaning of Article 13 (Art. 13).
General considerations
78. The Commission recalls that its function is solely to consider
whether the measures taken against the applicants constitute a breach of
their rights under the Convention. As the Commission and the Court have
stated on numerous occasions, the Convention organs are not called
upon to examine in abstracto the compatibility of legislation with
the Convention (see in this context Eur. Court H.R., Ashingdane
judgment of 28 May 1985, Series A no. 93, para. 59). The Commisison
must, therefore, confine its attention to the concrete case. At the
same time the Commission, in the performance of its role under the
Convention, must not lose sight of the general context of the case
(ibid.).
79. In this regard the Commission observes that all the
applicants were arrested and detained under prevention of terrorism
legislation. As the Commission pointed out in the cases of McVeigh,
O'Neill and Evans v. the United Kingdom:
______________
* The applicants declared, during the hearing, that they did not wish
to pursue their complaint under Article 5 para. 2 (Art. 5-2) of the Convention
(see above, para. 15).
"The existence of organised terrorism is a feature of modern
life whose emergence since the Convention was drafted cannot
be ignored any more than the changes in social conditions and
moral opinion which have taken place in the same period ...
It faces democratic Governments with a problem of serious
organised crime which they must cope with in order to preserve
the fundamental rights of their citizens. The measures they
take must comply with the Convention and the Convention organs
must always be alert to the danger in this sphere adverted to
by the Court, of 'undermining or even destroying democracy on
the ground of defending it' (Klass case, para. 49) ..."
(Comm. Report, 18.3.81, D.R. 25, p. 15, para. 157)
80. It is against the background of a continuing terrorist threat
in Northern Ireland and the particular problems confronting the
security forces in bringing those responsible for terrorist acts to
justice that the issues in the present case must be examined. In such
a situation the Convention organs must remain vigilant that a proper
balance is struck between the protection of individual rights and the
need to defend democratic society against the threats posed by
organised terrorism. In the Commission's opinion it is inherent in
the whole of the Convention that a fair balance has to be struck
between the general interest of the community and the interests of the
individual.
81. The Commission observes, in this context, that no argument based on the
right to derogate under Article 15 (Art. 15) of the Convention has been made by
the respondent Government and that, in any event, the respondent Government's
derogation in respect of Northern Ireland was withdrawn on 22 August 1984.
82. Finally the Commission notes that although the applicants were
arrested and detained on suspicion of involvement in various terrorist
acts they were all subsequently released and were not charged with any
criminal offence. In such circumstances the Commission considers that
its examination of the issues must proceed on the basis that the
applicants were innocent of any involvement in terrorism (see also
McVeigh, O'Neill and Evans, loc. cit., para. 158).
As regards Article 5 para. 1 (c) (Art. 5-1-c)
83. Article 5 para. 1 (c) (Art. 5-1-c)of the Convention states as follows:
1. "Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for
the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to
prevent his committing an offence or fleeing after having done
so;"
84. In the present case the Government submit that the arrest and
detention of the applicants under Section 12 of the 1984 Act falls
directly under this provision. They contend that the arrest and
detention was based on a reasonable suspicion of involvement in
terrorism and that, moreover, this suspicion related to certain
specific acts of terrorism which had been committed in Northern
Ireland. The applicants, on the other hand, contend that they were not
detained as suspected of any specific offence but solely for the
purposes of interrogation.
85. The Commission notes that Article 5 para. 1 (c) (Art. 5-1-c) contains
important safeguards against arbitrary deprivation of liberty. In
particular,
- the arrest and detention must be "in accordance with a
procedure prescribed by law" and "lawful"
- there must exist a reasonable suspicion of having committed an
offence
- the arrest and detention must be effected for the purpose of
bringing the suspect before the competent legal authority.
86. As regards the latter safeguard, the European Court of Human
Rights has stated as follows:
"... paragraph 1(c) of Article 5 (Art. 5) can be construed
only if read in conjunction with paragraph 3 of the same
Article with which it forms a whole, whereas paragraph 3
stipulates categorically that 'everyone arrested or detained
in accordance with the provisions of paragraph 1 (c) of this
Article shall be brought promptly before a judge ...' and
'shall be entitled to trial within a reasonable time';
whereas it plainly entails the obligation to bring everyone
arrested or detained in any of the circumstances contemplated
by the provisions of paragraph 1 (c) before a judge for the
purpose of examining the question of deprivation of liberty or
for the purpose of deciding on the merits; whereas such is
the plain and natural meaning of the wording of both paragraph
1 (c) and paragraph 3 of Article 5 (Art. 5); ..."
(Lawless judgment of 1.7.61, Series A no. 3, para. 14; see
also Ireland v. the United Kingdom judgment of 18.1.78,
Series A no. 25, paras. 196 and 199)
87. In the present case it is not in dispute between the parties
that the applicants' arrest and detention was in accordance with a
procedure prescribed by law (i.e. Section 12 of the 1984 Act) and
lawful under Northern Ireland law. Moreover, the applicants do not
put at issue that their arrest and detention was based on a reasonable
suspicion of involvement in the "commission, preparation or
instigation of acts of terrorism" connected with the affairs of Northern
Ireland. They maintain, however, that Article 5 para. 1 (c) (Art. 5-1-c)
requires a reasonable suspicion in relation to a concrete offence and that it
does not permit arrest solely for the purpose of interrogation.
88. The Commission first notes that the question whether or not
there was a sufficient suspicion against the applicants to justify
their detention under the normal standards of Northern Ireland law is
different from the question of whether the conditions for detention
under Article 5 para. 1 (c) (Art. 5-1-c) of the Convention were satisfied.
89. In this latter respect, the Commission recalls that the 1984
Act requires a reasonable suspicion that a person is or has been
concerned in the commission, preparation or instigation of acts of
terrorism. Although this suspicion does not necessarily have to
relate to a specific criminal offence but may be of a more general
character, the Commission considers that it is sufficient to satisfy
the requirements of Aricle 5 para. 1 (c) (Art. 5-1-c). On this point, the
Commission recalls that, in the case of Ireland v. United Kingdom, the
European Court of Human Rights observed that the criteria of
"commission or attempted commission of any act of terrorism", on which
to ground an arrest, "were well in keeping with the idea of an
offence" under Article 5 para. 1 (c) (Art. 5-1-c) (loc. cit., para. 196).
90. It should also be observed, however, that in the present case
the applicants were in fact not suspected of involvement in terrorism
in general, but of involvement in specific acts of terrorism, each of
which constituted an offence under the law of Northern Ireland (see
above, para. 59).
91. The Commission is thus of the opinion that the applicants
were detained on reasonable suspicion of having committed offences
within the meaning of Article 5 para. 1 (c) (Art. 5-1-c).
92. The applicants, however, also maintain that their arrest
was effected solely for the purpose of questioning and not with a firm
intention of bringing them before a court. In their submission an
intention to bring criminal proceedings and to bring them before a
court had to exist at the time they were arrested.
93. In this regard the Commission first notes that the reasonable
suspicion referred to in Article 5 para. 1 (c) (Art. 5-1-c) does not mean that the
suspected person's guilt can at that stage be established and proven.
In earlier cases, the Commission has pointed out that it could not be
a condition for arrest and detention pending trial that the
commission of the offence with which the applicant is charged has been
established. It is the purpose of the investigation to find the
evidence required, and detention is a measure which facilitates the
proper conduct of the investigation (cf. in particular, No. 8339/78,
Dec. of 12.7.79, Schertenleib v. Switzerland, D.R. 17 p. 180, 218-219).
94. It follows that, after a person has been arrested, it will
normally depend on the result of further investigation and questioning
whether he will eventually be charged and brought to trial before a
court.
95. It is true that, unless the arrested person is released
promptly, he will have to be brought before a judge or other officer
authorised to exercise judicial power, whose task it is to decide
whether continued detention is justified. However, when the suspicion
is not confirmed during the interrogation which often takes place
immediately after the arrest, the arrested person will normally be
released, and in such cases he will not be brought before a court for
the purpose of considering the detention issue.
96. Consequently, insofar as Article 5 para. 1(c) (Art. 5-1-c) requires
that the arrest or detention shall be for the purpose of bringing the arrested
or detained person before the competent legal authority, the purpose is mostly
a conditional one. Its realisation will depend on whether the existing
suspicion is subsequently confirmed during the interrogation of the arrested or
detained person or by the investigation in general.
97. As stated above, the Commission accepts that the applicants
were arrested on reasonable suspicion of involvement in specific
terrorist acts. If these suspicions had been confirmed during their
interrogation after their arrest or by other evidence, the Commission
has no doubt that they would have been charged with criminal offences
and brought before a court. It follows that the applicants were
arrested for the purpose of bringing them before the competent legal
authority within the meaning of Article 5 para. 1 (c) (Art. 5-1-c) of the
Convention.
98. The Commission concludes, by a unanimous vote, that there has
been no breach of Article 5 para. 1 (Art. 5-1) of the Convention.
As regards Article 5 para. 3 (Art. 5-3)
99. The applicants complain that they were not brought "promptly" before a
judge after their arrest contrary to Article 5 para. 3 (Art. 5-3) of the
Convention. This provision reads as follows:
"3. Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article shall be
brought promptly before a judge or other officer authorised
by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to release pending trial.
Release may be conditioned by guarantees to appear for
trial."
100. The Government contend that having regard to certain special
features concerning the arrest and detention of those suspected of
terrorism the requirement of "promptness" was satisfied in the present
cases.
101. The Commission recalls the importance of this provision,
together with Article 5 para. 1 (c) (5-1-c), in providing safeguards against
the arbitrary deprivation of liberty. In particular the requirement
of 'promptness' protects against prolonged police or administrative
detention.
102. The question whether or not the requirement of promptness is
satisfied must be assessed in each case according to its special
features (see in this context, Eur. Court H.R., De Jong, Baljet and
Van den Brink judgment of 22 May 1984, Series A no. 77, para. 52).
103. The Commission notes that in a case concerning ordinary
criminal offences it has found a period of four days to satisfy the
requirement of promptness in Article 5 para. 3 (Art. 5-3) (No. 2894/66, Dec.
6.10.66, Yearbook 9 p. 564). In an exceptional case, where the
applicant's state of health required him to be hospitalised, a period
of five days was considered acceptable (No. 4960/71, Dec. 19.7.72,
Collection 42 p. 49).
104. On the other hand, both the Court and the Commission have
found incompatible with the requirement of promptness periods of seven
days (Skoogström v. Sweden, Comm. Report 15.7.83, para. 89), eight and
twelve days (Eur. Court H.R., Duinhof and Duijf judgment of 22 May
1984, Series A no. 79, para. 41), seven, eleven and six days (De Jong,
Baljet and Van den Brink judgment, loc. cit., paras. 52-53), eleven,
twelve and fourteen days (Eur. Court H.R., Van der Sluijs, Zuiderveld
and Klappe judgment of 22 May 1984, Series A no. 78, para. 49), and
fifteen days (Eur. Court H.R. McGoff judgment of 26 October 1984,
Series A no. 83, para. 27).
105. The Commission recalls that the present applicants were
detained under Section 12 of the 1984 Act without being brought before
a judicial authority for the following periods:
Brogan: five days 11 hours
Coyle: six days 16 ½ hours
McFadden: four days 6 hours
Tracey: four days 11 hours.
106. The Commission has assessed these periods against the
background of its case-law according to which a person should not be
detained in normal cases for more than four days without being brought
before a judicial authority. The Commission is aware, however, that
it must strike a fair balance between the interests of the individual
and the general interest of the community (see above para. 80). In so
doing, the Commission takes into account that the struggle against
terrorism may require a particular measure of sacrifice by each
citizen in order to protect the community as a whole against such
crimes. Moreover, the Commission also bears in mind the context in
which the applicants were arrested and the reality of problems
presented by the arrest and detention of suspected terrorists which
have been alluded to by the Government (see above paras. 67 and 70-72)
and which may not be present in ordinary criminal cases.
107. Taking all these elements into account, the Commission has
reached the conclusion that the periods of five days 11 hours (Brogan)
and six days 16 ½ hours (Coyle) do not satisfy the requirement of
promptness, whereas the periods of four days 6 hours (McFadden) and
four days 11 hours (Tracey) are compatible with that requirement.
108. The Commission concludes, by 10 votes to 2 that there has
been a breach of Article 5 para. 3 (Art. 5-3) of the Convention in the cases of
the applicants Brogan and Coyle and, by 8 votes to 4 that there
has been no breach of Article 5 para. 3 (Art. 5-3) in the cases of the applicants
McFadden and Tracey.
As regards Article 5 para. 4 (Art. 5-4)
109. The applicants also allege that they were unable to challenge
the lawfulness of their detention as required by Article 5 para. 4 (Art. 5-4) of
the Convention. They referred, in this context, to the effect of
para. 5 (2) of Schedule 3 of the 1984 Act which provides that a person
shall be deemed to be in legal custody at any time when he is detained
under Section 12 of the Act (see above para. 32). They also complain
that it was not open to them to challenge the compatibility of their arrest and
detention with Article 5 paras. 1 (c) and (3) (Art. 5-1-c, 5-3) of the
Convention.
110. Article 5 para. 4 (Art. 5-4) of the Convention provides as follows:
"Everyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a
court and his release ordered if the detention is not
lawful."
111. The Commission recalls that Article 5 para. 4 (Art. 5-4) requires that
judicial control covers not only the formal legality of the detention
in domestic law but also the substantive justification for the detention under
Article 5 para. 1 (Art. 5-1) (see, for example, McVeigh, O'Neill, Evans v. the
United Kingdom, loc. cit., para. 216; also Eur. Court H.R., Van Droogenbroeck
judgment of 24 June 1982, Series A no. 50, para. 49).
112. In the present case it is clear that it was open to the
applicants to seek the remedy of habeas corpus or to institute
proceedings for false imprisonment. Neither of these remedies is
precluded by the effect of para. 5 (2) of Schedule 3 of the 1984
Act (see above para. 32, Van Hout v. Chief Constable of the R.U.C.).
Moreover, it is clear that the courts in Northern Ireland can examine
procedural and substantive questions relating to the lawfulness of
arrest and detention, in particular, the "reasonableness" of the
suspicion of involvement in terrorist acts (ibid.).
113. It is true that a court could not, under Northern Ireland law,
examine whether the applicants' arrest and detention fully complied with
Article 5 para. 1 (c) and Article 5 para. 3 (Art. 5-1-c, 5-3) of the
Convention. However the Commission considers it sufficient for the purposes of
Article 5 para. 4 (Art. 5-4) of the Convention that judicial control can
encompass the procedural and substantive basis of detention. In the
Commission's opinion such control should be wide enough to bear on those
conditions which according to the Convention are essential for the lawful
detention of a person (see, mutatis mutandis, Eur. Court H.R., Weeks judgment
of 2 March 1987, Series A no. 114, para. 59; also X v. United Kingdom
judgment of 5 November 1981, Series A no. 46, para. 58). It is clear that the
scope of judicial review available under Northern Ireland law, in respect of
arrest and detention under Section 12, satisfies this standard.
114. The Commission concludes, by 10 votes to 2, that there has
been no breach of Article 5 para. 4 (Art. 5-4) of the Convention.
As regards Article 5 para. 5 (Art. 5-5)
115. Paragraph 5 of Article 5 (Art. 5-5) of the Convention is in the following
terms:
"Everyone who has been the victim of arrest or detention in
contravention of the provisions of this Article shall have
an enforceable right to compensation."
116. The applicants complain that they have no enforceable right to
compensation under Northern Ireland law. The Government submit that
since their arrest and detention was in conformity with Article 5 (Art. 5) no
enforceable right to compensation arises under this provision.
117. The Commission recalls that it has found a breach of Article 5 para. 3
(Art. 5-3) in the cases of Mr. Brogan and Mr. Coyle. It is not disputed by
the respondent Government that it would not be open to Mr. Brogan and Mr.
Coyle to seek compensation before the Northern Ireland courts on the grounds
that their detention was in violation of Article 5 para. 3 (Art. 5-3). It
follows that Mr. Brogan and Mr. Coyle do not have, under Northern Ireland
law, an enforceable right to compensation as required by Article 5 para. 5
(Art. 5-5).
118. In regard to the applicants McFadden and Tracey, the
Commission recalls that it has found no violation of any other right
guaranteed by Article 5 (Art. 5) of the Convention. It follows that they do
not have any right to compensation under Article 5 para. 5 (Art. 5-5).
119. The Commission concludes, by 9 votes to 3, that there has
been a breach of Article 5 para. 5 (Art. 5-5) of the Convention in the cases of
the applicants Brogan and Coyle and, by 8 votes to 4, that there
has been no breach of Article 5 para. 5 (Art. 5-5) in the cases of the
applicants McFadden and Tracey.
As regards Article 13 (Art. 13)
120. Finally, the applicants claim that they have no effective
remedy in respect of their complaints, under Northern Ireland law, in breach of
Article 13 (Art. 13) of the Convention. They refer, in particular, to the
absence of an enforceable right to compensation. Article 13 (Art. 13)
provides:
"Everyone whose rights and freedoms as set forth in
this Convention are violated shall have an effective
remedy before a national authority notwithstanding
that the violation has been committed by persons acting
in an official capacity."
121. The Commission recalls that the requirements of Article 13 (Art. 13)
are less strict than those of Article 5 para. 4 (Art. 5-4) which must be
regarded as the lex specialis in respect of complaints under Article 5 (Art. 5)
(see, De Jong, Baljet and Van Den Brink judgment of 22 May 1984, loc. cit.,
para. 60).
122. In the light of the Commission's conclusions on Article 5 para. 4
(Art. 5-4), the Commission considers that no separate issue arises under this
provision.
123. The Commission concludes, by a unanimous vote, that no
separate issue arises under Article 13 (Art. 13) of the Convention.
124. Recapitulation
(a) The Commission concludes, by a unanimous vote, that there has been
no breach of Article 5 para. 1 (Art. 5-1) of the Convention (para. 98).
(b) The Commission concludes, by 10 votes to 2, that there has been a
breach of Article 5 para. 3 (Art. 5-3) of the Convention in the cases of the
applicants Brogan and Coyle and, by 8 votes to 4, that there has been no breach
of Article 5 para. 3 (Art. 5-3) in the cases of the applicants McFadden and
Tracey (para. 108).
(c) The Commission concludes, by 10 votes to 2, that there has been no
breach of Article 5 para. 4 (Art. 5-4) of the Convention (para. 114)
(d) The Commission concludes, by 9 votes to 3, that there has been a
breach of Article 5 para. 5 (Art. 5-5) of the Convention in the cases of the
applicants Brogan and Coyle, and, by 8 votes to 4, that there has been no
breach of Article 5 para. 5 (Art. 5-5) in the cases of the applicants McFadden
and Tracey (para. 119)
(e) The Commission concludes, by a unanimous vote, that no separate
issue arises under Article 13 (Art. 13) of the Convention (para. 123).
Secretary to the Commission President of the Commission
H. C. KRÜGER (C. A. NØRGAARD)
PARTLY DISSENTING OPINION
MM. J. A. Frowein, S. Trechsel, H. G. Schermers, and
Mrs. G. H. Thune
Under Article 5 para. 3 of the Convention, persons arrested on
suspicion of having committed an offence have the right to be brought
promptly before a judge or other officer authorised by law to
exercise judicial power. This is an essential guarantee. History
demonstrates how easily the power of the police to arrest people can
be abused and how important judicial safeguards against arbitrary
detention are. The purpose of Article 5 para. 3 is to provide such
safeguards. This provision does not stand in the way of criminal
investigation. It only requires that detention be controlled by a
judicial authority.
In a case against the Netherlands (Dec. No. 2894/66, Yearbook
IX p. 564 at p. 568), decided on 6 October 1966, the Commission
considered that the Contracting Parties were given a certain margin of
appreciation when interpreting and applying the requirement of
promptness in Article 5 para. 3 and it accepted a period up to a
maximum of four days. Since this decision the word "promptly" has been
interpreted as meaning within 4 days (see De Jong, Baljet,
Van Den Brink v. the Netherlands, Comm. Report 11.10.82, para. 88).
The acceptance of any longer period would serve as a precedent and
thus weaken the notion of promptness. Moreover a longer period would
be incompatible with the permissible period of police detention in
most of the member States.
The question arises in the present case whether the combat
against terrorism justifies an interpretation of the word "promptly"
in a more lenient way than in the case of ordinary criminal offences.
Under the Prevention of Terrorism (Temporary Provisions) Act 1984
persons can be detained for seven days without being brought before a
court, although the approval of the Secretary of State is needed for
any detention beyond 48 hours. While the extension procedure offers a
degree of control, the Secretary of State does not possess the
independence of a judicial body. For this reason, control by the
Secretary of State cannot fulfil the requirement of Article 5 para. 3.
In the opinion of the majority, the struggle against terrorism
justifies that all citizens should accept the risk of being detained
for some time beyond four days without being brought before a judge.
We cannot accept this position. It is precisely in situations where
wider powers of arrest are conferred on the authorities to cope with an
organised terrorist threat that the need for judicial control against
the abuse of power is greatest. It cannot be said that the need for
judicial control is less than in respect of detention for ordinary
criminal offences.
The Government has alluded to special problems which exist
when suspected terrorists are arrested and detained (paras. 67 and 72
of the Report). We agree that account must be taken of these problems
but it has not been shown that they exclude judicial control of
detention. Moreover the following elements should also be taken into
account, which indicate that shorter periods would have been
sufficient in the present cases:
a. the applicants were not arrested during any kind of
disturbance or riot. The hour at which they were arrested
and the fact that they were arrested at their homes suggests
that the arrests were planned in advance;
b. on their arrest the applicants were not informed of
the details of any criminal offence that they were alleged
to have committed or given any other reason for their arrest
and detention, apart from the general information that they
were arrested under a particular Act and that they were
suspected to have been involved in acts of terrorism. Such
a general ground for arrest involves a risk of abuse, in
particular, when the arrested persons are subsequently set
free without having been brought before a court. Such a
risk of abuse, in our view, increases the need for judicial
control.
In our opinion, there is no valid reason to distinguish
between the four cases and we therefore conclude that the requirement
of promptness in Article 5 para. 3 of the Convention was not respected
in any of the cases. It follows, therefore, that we also find
breaches of Article 5 para. 5 in all of the cases.
PARTLY DISSENTING OPINION
Sir Basil Hall
I agree with the majority of the Commission that the
applicants' arrest and detention was justified under Article 5
para. 1 (c) of the Convention. However, I am unable to share the
opinion that there has been a violation of Article 5 paras. 3 and 5 in
the cases of the applicants BROGAN and COYLE.
I too hold the view that, for the reasons given in para. 106
of the Commission's Report, the requirement of promptness in Article 5
para. 3 may operate differently in a case in which, as in the present
cases, a person is detained on reasonable suspicion of being a person
concerned in the commission, preparation or instigation of acts of
terrorism from the way in which it operates in a case in which a
person has been detained on a reasonable suspicion of having committed
an ordinary criminal offence.
In the four cases before the Commission, the Commission has
concluded that four days 6 hours and four days 11 hours satisfied the
requirement of promptness; but that five days 11 hours and six days
16 hours did not.
I do not agree with this conclusion. The legislature of the
respondent State has provided that, in cases of a reasonable
suspicion, a person who has been concerned in terrorism may be
detained for 48 hours, but the Secretary of state may, in any
particular case, extend the period by a further period or periods
specified by him, the further period or periods not to exceed five
days in all. Having regard to the need to strike a balance between
the interests of the individual and the general interest of the
community, I do not consider that the legislature has prescribed an
obviously excessive period.
Each of the applicants was initially detained for a period of
48 hours. The Secretary of state extended the period by five days,
making the total permissible period seven days. Each of the
applicants was released within the permissible period as soon as it
became apparent that no charges could be preferred against him.
I conclude that in these circumstances the requirement of
promptness was satisfied in the cases of all four applicants and that
in consequence there was no violation of either paragraph 3 or
paragraph 5 of Article 5 in any of the cases.
I agree that no separate issue arises under Article 13 of the
Convention.
A P P E N D I X I
History of the Proceedings
Date Item
_______________________________________________________________________
18 October 1984 (Brogan) Introduction of the applications
22 October 1984 (Coyle)
22 November 1984 (McFadden)
8 February 1985 (Tracey)
23 October 1984 (Brogan) Registration of the applications
26 October 1984 (Coyle)
27 November 1984 (McFadden)
11 February 1985 (Tracey)
Examination of admissibility
11 March 1985 Commission's deliberations and
decision to invite the Government to
submit observations on the
admissibility and merits of the
applications
30 July 1985 Government's observations
6 September 1985 Applicants' observations in reply
9 December 1985 Decision to invite the parties to a
joint oral hearing
11 July 1986 Joinder of the applications and
joint hearing on admissibility
and merits
11 July 1986 Decision to declare the application
admissible.
Examination of the merits
11 July 1986 Commission's deliberations on the
merits
17 December 1986 Government's supplementary
observations
6 May 1987 Commission's deliberations on the
merits and final votes
14 May 1987 Adoption of the Report.