FOURTH SECTION
Applications nos. 29062/12 and 26289/12
Colin Francis DUFFY against the United Kingdom
and Gabriel MAGEE against the United Kingdom
lodged on 14 May 2012 and 1 May 2012 respectively
STATEMENT OF FACTS
The first applicant, Mr Colin Francis Duffy, is an Irish national who was born in 1967 and lives in Lurgan.
The second applicant, Mr Gabriel Magee, is an Irish national who was born in 1972 and lives in Belfast.
Both applicants are represented before the Court by Kevin R. Winters & Co, a solicitors’ firm based in Belfast.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background
The applicants’ complaints primarily concern the compatibility of section 41(3) of the Terrorism Act 2000 (“the 2000 Act”) with Article 5 of the Convention. Section 41(3) provides that a person detained under section 41 must be released within forty-eight hours unless a police officer makes an application under paragraph 29 of Schedule 8 for a warrant extending his or her detention.
2. The first applicant
On 14 March 2009 the first applicant was arrested under section 41 of the 2000 Act on suspicion of involvement in the murder of two soldiers at Masserene Barracks, Antrim, on 7 March 2009. He was detained at Antrim Police Station on the same day.
On 15 March 2009 the Police Service of Northern Ireland (PSNI) made an application to the County Court under paragraph 29 of Schedule 8 of the 2000 Act for a warrant extending the first applicant’s detention as the results of a number of forensic tests were pending.
Following a hearing on 16 March 2009 a County Court Judge granted a warrant authorising a five-day extension to his detention.
The first applicant was interviewed on twelve occasions in the following five days. However, neither the interviews nor the results of the forensic tests provided any evidence linking the first applicant to the murders of the two soldiers.
On 21 March 2009 the PSNI made an application under paragraph 36 of Schedule 8 of the 2000 Act to a Divisional Court of the High Court of Northern Ireland for a seven-day extension to the period specified in the warrant for further detention. The extension was sought as the results of further forensic tests which had been sent for analysis to a laboratory in Great Britain were expected to become available within the following seven days and detention was considered necessary to ensure that further questioning could take place and, if there was sufficient evidence, charges could be brought.
On 21 March 2009 Her Honour Judge Philpott QC granted the application, authorising the first applicant’s continued detention until 19.20 on 28 March 2009
3. The second applicant
On 14 March 2009 the second applicant was arrested under section 41 of the 2000 Act on suspicion of involvement in the murder of a police officer on 9 March 2009. He was detained at Antrim police station on the same day. He was interviewed twice on 15 March 2009 and once on 16 March 2009.
On 16 March 2009 the PSNI made an application to the County Court under paragraph 29 of Schedule 8 of the 2000 Act for a warrant extending the second applicant’s detention in order to carry out further questioning and to conduct forensic examinations. The County Court Judge granted a warrant authorising a five-day extension to his detention.
The second applicant was interviewed on twelve occasions in the following five days.
On 21 March 2009 the PSNI made an application under paragraph 36 of Schedule 8 of the 2000 Act to a Divisional Court of the High Court of Northern Ireland for a seven-day extension to the period specified in the warrant for further detention. The extension was sought in order to facilitate further questioning of the second applicant once the results of further forensic tests were obtained.
On 21 March 2009 Her Honour Judge Philpott QC granted the application, authorising the second applicant’s continued detention until 19.20 on 28 March 2009. In a written ruling Judge Philpott noted that the relevant forensic evidence was central to the investigation and that the investigation was being carried out diligently and expeditiously.
In the same written ruling, Judge Philpott considered whether the 2000 Act or Article 5 of the Convention gave the court deciding whether or not to grant an extension of detention an express or implied power to examine the lawfulness of the arrest or to grant bail. She concluded that the 2000 Act only gave the judge the power to decide whether or not an extension of detention was necessary and did not, therefore, give the judge the power to consider the lawfulness of the arrest or to grant bail. Consequently, the judge had to confine himself or herself to the issue of whether or not it was necessary to extend detention beyond forty-eight hours for investigative purposes. Any issue as to the lawfulness of the arrest could be determined by the High Court in either Habeas Corpus or judicial review proceedings. Judge Philpott cited Re Cunningham’s application for judicial review [2004] NIQB7 as authority for the proposition that the provisions in respect of extended detention in the 2000 Act were compatible with Article 5 of the Convention.
4. Joint proceedings
The applicants sought permission to apply for judicial review of Judge Philpott’s decision to grant further extensions to the warrants authorising their detention. They submitted first, that Judge Philpott had been wrong to conclude that a court, in deciding whether or not to grant an extension of detention, was precluded from investigating the lawfulness of the arrest; secondly, that the judge had failed to address the question of whether detention of the applicants was required while the results of the forensic examinations were expected; thirdly that the judge had failed to give reasons for her decision that detention was required; and finally, that Schedule 8 of the 2000 Act was incompatible with Article 5 of the Convention.
Permission to apply for judicial review was granted by the High Court of Northern Ireland on 24 March 2009 and the High Court heard the applications on 25 March 2009.
In respect of the applicants’ first submission, the High Court held that paragraphs 5 and 32 of Schedule 8 to the 2000 Act had to be read in conformity with the requirements of Article 5 § 3 of the Convention as explained in the jurisprudence of the Court. Thus, the review of the lawfulness of the detention had to embrace an examination of the basis of the arrest, otherwise a person could be detained under the 2000 Act for up to twenty-eight days without there having been any judicial review of the lawfulness of the original arrest and that could not be Convention compliant. The High Court therefore found that Judge Philpott had been wrong to disavow any review of the lawfulness of the applicants’ arrest and, as a consequence, her decision to grant extensions had to be quashed. The court accepted, however, that a review of the lawfulness of the arrest need not involve a detailed analysis of the basis for the decision to arrest and should reflect the constraints that necessarily apply in many arrests for terrorist offences.
With regard to the applicants’ second and third submissions, the High Court found that although the judge had not focused directly on whether the applicants had to be detained rather than released pending the outcome of the remaining forensic examinations, she had not failed to have regard to the need for detention as the basis for the grant of the warrant. Moreover, although her reasons were pithily stated, they were sufficient to convey to the applicants the basis of her decision.
Consideration of the applicants’ fourth submission, namely the compatibility of Schedule 8 of the 2000 Act with Article 5 of the Convention, was adjourned. In a judgment delivered on 24 February 2011, the High Court of Northern Ireland found no basis for the submission that Schedule 8 of the 2000 Act was incompatible with Article 5 of the Convention. In particular, the court held that although there was no doubt that the “competent legal authority” referred to in Article 5 § 1(c) was the authority having competence to deal with a criminal charge (the Magistrate in the United Kingdom), in Schiesser v. Switzerland and McKay v. the United Kingdom [GC], no. 543/03, ECHR 2006‑X the Court had made it clear that the function of “a judge or other officer” for the purposes of Article 5 § 3 of the Convention could be carried out by an officer authorised by law to exercise judicial power and did not necessarily have to be a person with power to conduct the trial of any eventual criminal charge; that, although there was no express power to order release in the 2000 Act as required by Article 5 § 3 of the Convention, such a power must be implied; that, as paragraph 32 of Schedule 8 of the 2000 Act provided that there must be reasonable grounds for believing that the further detention of a person was necessary, it therefore contained a requirement of proportionality; that, there was no provision for conditional release on bail within the statutory scheme, an issue which did not arise in the present case but would need to be addressed in any future case in which it arose; that, although paragraph 33(3) of Schedule 8 enabled a judicial authority to exclude an applicant or anyone representing him from any part of the hearing and paragraph 34 permitted information to be withheld from the applicant or anyone representing him, there were a range of tools available to the court to preserve to the necessary extent an adversarial procedure and equality of arms; and, finally, that there was no authority which supported the applicants’ contention that Article 5 required that a detained person should be charged well before the expiry of the twenty-eight day period contemplated in the 2000 Act.
On 4 April 2011 the High Court of Northern Ireland certified that it was satisfied that the decision given on 24 February 2011 involved the following points of law of general public importance:
“(a) Whether paragraphs 29(3) and 36(3)(b) of Part III of Schedule 8 to the Terrorism Act 2000 (“the Act”) permitting extended detention for more than four days are compatible with the Applicant’s rights under Article 5(1)(c), 5(2) and 5(3) of the European Convention on Human Rights (“the Convention”)If compliance with Article 5(3) of the Convention can only be achieved by providing for a detainee to be brought before a judicial authority (i) other than the Magistrate’s Court and (ii) without any charges having been preferred against him;If Articles 5(1)(c) and 5(3) of the Convention are required to be read together as linked provisions and understood as creating a scheme so that the “judge or other officer authorised by law to exercise judicial power” referred to in Article 5(3) and “the competent legal authority” referred to in Article 5(1)(c) are one and the same;If the “judicial authority” provided for in Schedule 8 to the Act is the “judge or other officer authorised by law to exercise judicial power” within the meaning of Article 5(3) of the Convention;If Articles 5(1)(c) and 5(3) of the Convention cannot be interpreted in such a way as to permit the detention of a suspect without charge for any period specified by Parliament, subject only to the requirement of periodic judicial approval of the kind specified in Article 8 to the Act.
(b) Whether the absence of a power to allow for conditional release on bail rendered the scheme for extending detention set out in Part III of Schedule 8 incompatible with Article 5 ECHR; and
(c) Whether the procedure for granting an extension of detention, in circumstances where the suspect and legal representative have been excluded by the judge for a part of the hearing (as per Schedule 8, para 33(3)) and by reason of same information is made available to the judge but withheld from the suspect and his legal representative, (Schedule 8, para 34(1) and (2)(f) is incompatible with the request for an adversarial hearing as required by Article 5 in light of Secretary of State for the Home Department v AF (FC) & Anor [2010] 2 AC 269.”
However, it refused leave to appeal to the Supreme Court.
Permission to appeal was refused by the Supreme Court on 14 November 2011 on the basis that the applications did not raise an arguable point of law of general public importance.
5. The applicants release from detention
The applicants were released without charge on 25 March 2009.
The first applicant was immediately re-arrested and interviewed over the following two days. On 27 March 2009 he was charged with the murder of the two soldiers, five attempted murders and possession of firearm and ammunition. He was produced before a District Judge sitting at Larne Magistrates’ Court on 27 March 2009. His application for bail was refused. Following a hearing which took place on 6 and 23 November 2009, bail was refused by the High Court on the ground that there was a real risk of re‑offending on account of the first applicant’s suspected involvement with a dissident republican organisation. The High Court again declined to grant bail on 8 October 2010.
On 7 November 2011 the first applicant stood trial before a judge sitting without a jury. On 20 January 2012 he was acquitted on all counts on the indictment.
The second applicant was never charged with any offence related to the murder of the police officer.
B. Relevant domestic law and practice
1. Powers of arrest and detention of terrorist suspects under the Terrorism Act 2000
Section 40 of the 2000 Act defines a terrorist as a person who has committed an offence under various sections of the Act or who is or has been concerned in the commission, preparation or instigation of acts of terrorism.
Section 41(1) of the Act provides that a constable may arrest without warrant a person whom he reasonably suspects to be a terrorist.
Part II of Schedule 8 of the 2000 Act deals with the detention of such a person by police during the first forty-eight hours.
Section 41 (3) of Part II of Schedule 8 provides that a detained person must be released not later than the end of the period of forty-eight hours beginning with the time of the arrest subject to subsections (4) to (7) set out below:
“(4) If on a review of a person’s detention under Part II of Schedule 8 the review officer does not authorise continued detention, the person shall (unless detained in accordance with subsection (5) or (6) or under any other power) be released.
(5) Where a police officer intends to make an application for a warrant under paragraph 29 of Schedule 8 extending a person’s detention, the person may be detained pending the making of the application.
(6) were an application has been made under paragraph 29 or 36 of Schedule 8 in respect of a person’s detention, he may be detained pending the conclusion of proceedings on the application.
(7) were an application under paragraph 29 or 36 of Schedule 8 is granted in respect of a person’s detention, he may be detained, subject to paragraph 37 of that Schedule, during the period specified in the warrant."
Paragraph 29 of Schedule 8 of the Act provides that the Department of Public Prosecution for Northern Ireland (“DPP”) may apply to a judicial authority for the issue of a warrant of further detention. Pursuant to Paragraph 29(3), the period of further detention shall be seven days from the time of the arrest under section 41 of the 2000 Act unless the application is for a shorter period or the judicial authority is satisfied that there are circumstances that would make it inappropriate for the specified period to be as long as the period of seven days.
In Northern Ireland the judicial authority under the 2000 Act is a County Court Judge or a District Judge (Magistrates’ Court) who has been designated for the purposes of the Act.
Paragraph 30 of Schedule 8 requires the application for the warrant to be made during the period of the initial detention or within six hours of the end of that period.
Paragraph 31 ensures that an application for a warrant cannot be heard until the person to whom it relates has been given a notice stating that the application has been made, the time at which it was made, the time at which it is to be heard and the grounds upon which further detention is sought.
Paragraph 32 (1) provides that a judicial authority may only issue a warrant of further detention if satisfied that there are reasonable grounds for believing that the further detention of the person is necessary and that the investigation in connection with which the person is detained is being conducted diligently and expeditiously.
Paragraph 32(1A) provides that the further detention of a person is required if it is necessary:-
“(a) to obtain relevant evidence whether by questioning him or otherwise;
(b) to preserve relevant evidence; or
(c) pending the result of an examination or analysis of any relevant evidence or of anything the examination or analysis of which is to be or is being carried out with a view to obtaining relevant evidence.”
Relevant evidence is evidence which relates to the commission of an offence under section 40 or an indication that the person detained is a person falling within that section.
Paragraph 33 requires that a person to whom an application relates be given an opportunity to make oral or written representations to the judicial authority and be legally represented at the hearing. Paragraph 33(3) provides that the judicial authority may exclude the person to whom the application relates or anyone representing him from the hearing.
Likewise, paragraph 34 enables the DPP to apply to the judicial authority for an order that specified information upon which he intends to rely be withheld from the person to whom the application relates and anyone representing him. The judicial authority may make such an order only if satisfied that there are reasonable grounds for believing that if the information were disclosed:-
“(a) evidence of an offence under any of the provisions mentioned in section 40(1)(a) would be interfered with or harmed,
(b) the recovery of property obtained as a result of an offence under any of those provisions would be hindered,
(c) the recovery of property in respect of which a forfeiture order could be made under section 23 or 23A would be hindered,
(d) the apprehension, prosecution or conviction of a person who is suspected of falling within section 40(1)(a) or (b) would be made more difficult as a result of his being alerted,
(e) the prevention of an act of terrorism would be made more difficult as a result of a person being alerted,
(f) the gathering of information about the commission, preparation or instigation of an act of terrorism would be interfered with, or
(g) a person would be interfered with or physically injured.”
Paragraph 36 deals with further extensions up to a maximum of twenty‑eight days. Each such application may extend the period of detention for up to seven days. Any application which would extend the then total period beyond fourteen days must be made to a judge of the High Court.
Section 41 (8) of Part II of Schedule 8 provides that the refusal of an application in respect of a person’s detention under paragraphs 29 or 36 of Schedule 8 shall not prevent his continued detention in accordance with the section.
2. Powers of arrest and detention of non-terrorist suspects under the Police and Criminal Evidence (Northern Ireland) Order 1989
The arrest and pre-charge detention of non-terrorist suspects is governed by the provisions of the Police and Criminal Evidence (Northern Ireland) Order 1989 (“PACE”).
By virtue of Article 26 of PACE a constable can arrest without warrant any person whom he has reasonable grounds for suspecting is about to commit an offence, is committing an offence or has committed an offence if it is necessary to do so. The constable must inform the suspect that he is under arrest and of the grounds for the arrest and take the suspect to a police station as soon as is practicable. Upon arrival at the police station the suspect is placed in the charge of the custody officer who decides whether there is sufficient evidence to charge the suspect. If there is not sufficient evidence to charge the suspect he must be released unless the custody officer has reasonable grounds for believing that his detention without being charged is necessary to secure or preserve evidence relating to the offence for which he is under arrest or to obtain such evidence by questioning him.
The continued detention of the suspect is reviewed and he must be released after twenty-four hours unless a Superintendent determines that the detention of the person without charge is necessary, the offence is an indictable offence and the investigation is being conducted diligently and expeditiously. If the suspect is still in custody after thirty-six hours Article 44 of PACE provides for an application to the Magistrates’ Court for a warrant of further detention for a further period of up to thirty-six hours.
The police can apply for an extension of the warrant for further detention for a total period of up to ninety-six hours after his arrival at the police station. If not charged by the end of that period the suspect must be released and if charged must be brought before a Magistrates’ Court not later than the day following the day after he was charged. The court may then remand the suspect in custody or on bail.
COMPLAINTS
The applicants complain that their pre-charge detention for periods of fourteen and ten days respectively violated their rights under Article 5 of the Convention.
In particular, they submit that Article 5 § 1(c) only permits detention for the purpose of bringing the arrested person before the competent legal authority on reasonable suspicion of having committed an offence; in the United Kingdom, the competent legal authority is the Magistrates’ Court; as Article 5 § 1(c) and Article 5 § 3 must be read together and understood as creating a scheme, the “judge or other officer” referred to in Article 5 § 3 must be the Magistrate sitting in the Magistrates’ Court; as a consequence, the applicants could not be said to have been brought promptly before a judge or other officer for the purposes of Article 5 § 3; moreover, the 2000 Act is predicated on the false premise that compliance with Article 5 § 3 can be achieved by providing for a detainee to be brought before a judicial authority other than the Magistrates’ Court.
Even if the judicial authority provided for in Schedule 8 could be the “judge or other officer” within the meaning of Article 5 § 3, the applicants submitted that the scheme created by Part III of Schedule 8 was still incompatible with Article 5 § 1 (c), Article 5 § 2 and Article 5 § 3 of the Convention as it provided for extended detention of a suspect in circumstances where he was not charged with any criminal offence; the judicial authority had no power to release him on bail even if it was appropriate to do so; no other judicial authority was empowered to release him; the judicial authority was empowered to authorise his continued detention without charge, without bail and without being brought before the competent legal authority (the Magistrates’ Court) for up to twenty-eight days after arrest; the judicial authority could authorise extended detention without conducting a detailed analysis of the evidential basis of the decision to arrest and detain the suspect; there was no requirement for the judicial authority to consider whether the extended detention was proportionate or objectively justifiable; the judicial authority could authorise such extended detention pending receipt of forensic results even if no further questioning was planned prior to receipt of those results, and there was no reason to believe the suspect would abscond or otherwise impede his charging or further questioning; the judicial authority could authorise such extended detention without explaining why such extended detention was considered necessary beyond stating that the statutory conditions under the Schedule were met.
The applicants therefore submitted that a suspect detained under the extended detention provisions of Schedule 8 enjoyed fewer rights than a person against whom charges had been brought.
QUESTIONS TO THE PARTIES
1. Following their initial arrest, were the applicants brought promptly before a judge or judicial officer capable of satisfying the requirements of Article 5 § 3 of the Convention?
2. Did the power granted to the County Court Judge and the High Court Judge under paragraphs 29 and 36 of Schedule 8 of the 2000 Act to grant warrants extending detention for a further seven days up to a maximum of twenty-eight days violate Article 5 § 3 of the Convention?
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