CLIFFORD v. THE UNITED KINGDOM



AS TO THE ADMISSIBILITY OF

Application No. 14779/89

by Peter CLIFFORD

against the United Kingdom

        The European Commission of Human Rights (Second Chamber)

sitting in private on 5 March 1991, the following members being

present:

              MM. S. TRECHSEL, President of the Second Chamber

                  G. JÖRUNDSSON

                  A. WEITZEL

                  H.G. SCHERMERS

             Mrs.  G.H. THUNE

             Sir  Basil HALL

             Mr.  F. MARTINEZ RUIZ

             MM.  J.-C. GEUS

                  M.P. PELLONPÄÄ

             Mr.  K. ROGGE, Secretary to the Second Chamber

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 7 February

1989 by Peter CLIFFORD against the United Kingdom and registered on

15 March 1989 under file No. 14779/89;

        Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant, Peter Clifford, is a citizen of the United

Kingdom, born in 1955 and resident in London, England.  He is

represented before the Commission by Messrs.  J. Christopher Napier &

Co., Solicitors, Belfast.

        The facts of the present case, as submitted by the parties,

may be summarised as follows.

        On 8 November 1988 the applicant was stopped by the army as he

was leaving the Maze prison which he had been visiting.  The car in

which he was travelling was searched by members of the army under

section 15 of the Northern Ireland (Emergency Provisions) Act 1978 and

a suspicious substance, which was thought to be an explosive

substance, was found in the glove compartment.  At 18.48 hrs. the

applicant was arrested by the police under section 12 of the

Prevention of Terrorism (Temporary Provisions) Act 1984.  On his

arrest he was told that he was being arrested under section 12 of that

Act as he was suspected of being involved in terrorism.

        The applicant was taken to Armagh Police Office.  On his

arrival there he was given a copy of the notice to persons in police

custody.  Forensic tests were carried out on the substance.  He was

released without charge at 13.00 hrs. on 9 November, when the results

of the forensic tests showed that the substance was not an explosive

or otherwise an unlawful substance.  The applicant states that the

substance was found to be salt.

        The applicant had the opportunity to ask for access to a

solicitor but did not request such access and was not seen by a

solicitor during his detention.

        At the outset of his first interview, which began at

20.35 hrs. on 8 November 1988, he was told that a substance had been

found in the car in which he had travelled to the Maze and in which he

was leaving the prison, that it was believed that the substance was an

explosive and that it was being forensically tested.  The applicant

denied any knowledge of this and he was asked to account for his

movements that day.  During his detention forensic tests were carried

out on his clothing and, with his consent, swabs were taken from him,

for tests.

COMPLAINTS

        The applicant complains that he was the victim of a breach of

Article 5 para. 1 (c) of the Convention as his arrest and detention

were not for the purpose of bringing him before a competent legal

authority on reasonable suspicion of having committed an offence, but

for the purpose of ascertaining more about a small quantity of a

white substance found in the glove compartment of the car in which he

was travelling as a passenger and which clearly was not owned by him.

He also complains that his detention was in breach of the promptness

requirement of Article 5 para. 3 of the Convention and that he had no

right to compensation for these alleged breaches of Article 5 paras. 1

(c) and 3, contrary to Article 5 para. 5 of the Convention.

        The applicant originally complained of a violation of Article

5 para. 2 of the Convention.  After the European Court of Human Rights

had given its judgment in the Fox, Campbell and Hartley case, he

conceded that in that case the Court had made a finding of no

violation in circumstances very similar to his own in relation to

Article 5 para. 2 (cf.  Eur.  Court H.R., Fox, Campbell and Hartley

judgment of 30 August 1990, Series A no. 182, paras. 37-43).

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 7 February 1989 and

registered on 15 March 1989.  After a preliminary examination of the

case by the Rapporteur, the Commission considered the admissibility of

the application on 6 May 1989.  The Commission decided to request the

parties' written observations on the admissibility and merits of the

application, pursuant to Rule 42 para. 2 (b) of its Rules of Procedure

(former version).  It was joined with 15 other applications of a

similar kind.

        The Government lodged their observations on 21 September 1989

after an extension of the time-limit fixed for their submission.  The

applicant's representatives submitted observations in reply on

18 October 1989.

        On 6 February 1990 the Commission decided to adjourn its

examination of the application pending the judgment of the Court in

the case of Fox, Campbell and Hartley v. the United Kingdom, in view

of an original complaint made by the applicant under Article 5

para. 2 of the Convention.  The Court delivered its judgment in this

case on 30 August 1990.

        On 7 September 1990 the Commission decided to invite the

parties to submit any comments they might have on the significance of

this judgment for the admissibility of the application.  The

applicant's representatives submitted comments on 5 October 1990.

The Government lodged their comments on 23 November 1990 after an

extension of the time limit fixed for their submission.

        In his various observations the applicant withdrew certain

original complaints he had made under Article 5 para. 4 and Article 13

of the Convention.  As regards Article 5 para. 2, the applicant

conceded that the European Court's finding in the Fox, Campbell and

Hartley case was made in circumstances very similar to his own (see

above under COMPLAINTS).

        On 26 February 1991 the Commission decided to refer the case

to the Second Chamber.

THE LAW

1.      The applicant first contends that his arrest and detention

under section 12 of the Prevention of Terrorism (Temporary Provisions)

Act 1984 was in breach of Article 5 para. 1 (Art. 5-1) of the Convention, in

particular Article 5 para. 1 (c) (Art. 5-1-c).  He concedes that there was a

reasonable suspicion against him which entitled the Government to make

the arrest, but contends that from the facts, agreed by the

Government, it is clear that the purpose of his ensuing detention was

not to bring him before a competent legal authority, but to obtain

further information about the small quantity of a white substance

found in the car in which he was travelling.  He claims that this

rendered his detention unlawful for the purposes of the Convention.

The Government rely on the judgment of the Court in the Brogan and

Others case in support of their contention that the applicant was

lawfully detained under Article 5 para. 1 (c) (Art. 5-1-c) of the

Convention.

        The relevant part of Article 5 para. 1 (Art. 5-1) of the

Convention reads as follows:

        "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 ..."

        The Commission notes that there is no dispute that the

applicant's arrest and detention were "lawful" under Northern Ireland

law and, in particular, "in accordance with a procedure prescribed by

law".  Nor does the applicant dispute that there was reason to suspect

him of a criminal offence at the time of his arrest.  He only contests

the purpose of the arrest, which allegedly was not in order to bring

him before a competent legal authority.

        The Commission refers to the Court's judgment in the case of

Brogan and Others in which it observed that the fact that applicants

are not charged or brought before a court does not necessarily mean

that the purpose of the detention was not in accordance with Article 5

para. 1 (c) (Art. 5-1-c) of the Convention:

        "... the existence of such a purpose must be considered

        independently of its achievement and sub-paragraph (c) of

        Article 5 para. 1 (Art. 5-1-c) does not presuppose that the

        police should have obtained sufficient evidence to bring charges,

        either at the point of arrest or while the applicants are

        in custody.

        Such evidence may have been unobtainable or, in view of the

        nature of the suspected offences, impossible to produce in

        court without endangering the lives of others."

        (Eur.  Court H.R., judgment of 29 November 1988, Series A

        No. 145-B pp. 29-30 para. 53)

        The Commission finds that in the present case, as in the

Brogan and Others case, there is no reason to believe that the police

investigation regarding the applicant was not in good faith or that

his detention was not intended to further that investigation by way of

confirming or dispelling their concrete suspicions about his

involvement in a criminal offence, which had grounded his arrest.  Had

it been possible, the police would presumably have laid charges and

the applicant would have been brought before the competent legal

authority.  The Commission concludes, therefore, that his arrest and

detention were for the purpose specified in Article 5 para. 1 (c)

(Art. 5-1-c) of the Convention.  It follows that this aspect of the

case is manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

2.      The applicant next complains that his arrest and detention

from 8 to 9 November 1988 failed to observe the requirement of

promptness laid down in Article 5 para. 3 (Art. 5-3) of the

Convention, for which failure he had no enforceable right to

compensation, contrary to Article 5 para. 5 (Art. 5-5) of the

Convention.

        Article 5 paras. 3 and 5 (Art. 5-3, 5-5) of the Convention

provides as follows:

        "3.  Everyone arrested or detained in accordance with the

        provisions of paragraph 1 (c) of this Article (Art. 5-1-c)

        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."

        "5.  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."

        The Government contend that the basis of the applicant's

complaint is unclear.  Moreover, given the fact that he was released

after 18 hours and 12 minutes detention, the requirement to bring him

before a judge did not arise.  Referring to the aforementioned

judgment of the Court in the case of Brogan and Others and the

Commission's established case-law cited at para. 57 of that judgment,

they submit that the applicant's release in less than 24 hours after

his arrest was compatible with the requirements of Article 5 para. 3

(Art. 5-3) of the Convention.  As the facts of this case disclose no

breach of Article 5 (Art. 5) of the Convention, the provisions of

Article 5 para. 5 (Art. 5-5) have no application.  In reply the

applicant submits that the Government have made no attempt to justify

the length of his detention or shown how long it might reasonably have

taken to dispel the suspicions they held against him when he was

arrested.  He considers that the facts of his case are sufficiently

distinguishable from that of Brogan and Others to warrant the finding

of a breach of Article 5 paras. 3 and 5 (Art. 5-3, 5-5) even after

such a short period of detention.

        According to the constant case-law of the Commission, the

requirement of promptness in Article 5 para. 3 (Art. 5-3) of the

Convention means that arrested persons must be brought before a judge,

or other officer authorised by law to exercise judicial power, without

undue delay, the guarantees of Article 5 para. 3 (Art. 5-3), together

with Article 5 para. 1 (c) (Art. 5-1-c), providing essential

safeguards against arbitrary deprivation of liberty and prolonged

police or administrative detention (No. 2894/66, Dec. 6.10.66,

Yearbook 9 p. 564, Nos. 11209/84, 11234/84, 11266/84 and 11386/85,

Brogan, Coyle, McFadden and Tracey v. the United Kingdom, Comm.

Report 14.5.87, paras. 101-108).

        The question whether or not the requirement of promptness in

Article 5 para. 3 (Art. 5-3) has been satisfied must be assessed in

each case according to its special features, the maximum time limit

for such detention, even in the most exceptional circumstances, being

no more than four days.  In the light of these considerations and the

particular facts of the present case, the Commission concludes that

the period of detention experienced by the applicant does not disclose

any appearance of a breach of Article 5 para. 3 (Art. 5-3) of the

Convention. Accordingly this part of the application is manifestly

ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of

the Convention.

        Regarding the applicant's complaint under Article 5 para. 5

(Art. 5-5) of the Convention that he had no enforceable right to

compensation in domestic law for the alleged breach of Article 5 para.

3 (Art. 5-3) of the Convention, as the Commission has concluded that

this latter allegation is manifestly ill-founded, the applicant is not

entitled to such compensation.  Accordingly his complaint under

Article 5 para. 5 (Art. 5-5) of the Convention must also be rejected

as being manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

3.      After having first complained of a violation of Article 5

para. 2 (Art. 5-2) of the Convention, the applicant subsequently

conceded that in the Fox, Campbell and Hartley case the European Court

of Human Rights had made a finding of no violation of that provision

in circumstances very similar to his own (cf.  Eur.  Court H.R., Fox,

Campbell and Hartley judgment of 30 August 1990, Series A no. 182,

paras. 37-43).  The Commission interprets this statement as a

withdrawal of his complaint in this regard and therefore makes no

finding in respect of Article 5 para. 2 (Art. 5-2).

        For these reasons, the Commission unanimously

        DECLARES THE APPLICATION INADMISSIBLE.

      Secretary to the                          President of the

       Second Chamber                            Second Chamber

         (K. ROGGE)                              (S. TRECHSEL)

 

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