McKay v. the United Kingdom [GC]

Information Note on the Court’s case-law No. 90

October 2006

McKay v. the United Kingdom [GC] - 543/03

Judgment 3.10.2006 [GC]

Article 5

Article 5-3

Release pending trial

Impossibility to apply for bail before the court examining the lawfulness of the arrest or detention of persons charged with scheduled offences: no violation

Facts: On 6 January 2001, the applicant was arrested. The next day he was charged with robbery. On 8 January 2001 he appeared before the magistrates’ court and applied for his release on bail. The police officer had no objection to bail. The sitting magistrate refused the application on the grounds that, under the Terrorism Act 2000 and the Northern Ireland (Emergency Provisions) Act 1996, he had no power to order release of persons charged with scheduled offences. The applicant applied unsuccessfully for judicial review seeking a declaration that the legislation in question was incompatible with Article 5(3). He also applied for bail to the High Court and was released on 9 January 2001.

Law: The magistrate dealing with the applicant’s case had the competence to examine the lawfulness of his arrest and detention and whether there were reasonable grounds for suspecting him of having committed the crime of which he had been accused. The magistrate also had the power to order the applicant’s release if those requirements were not complied with. That provided satisfactory guarantees against abuse of power by the authorities and ensured compliance with the requirements of Article 5(3) in that there had been prompt and automatic judicial control before a duly empowered judicial officer. The question of release pending trial was a distinct and separate matter which logically only became relevant after the establishment of the existence of a basis for the applicant’s detention both under domestic law and under the Convention. No element of possible abuse or arbitrariness arose from the fact that his release had been ordered by another tribunal or judge or from the fact that the examination had been dependent on his application to the High Court. The applicant’s lawyer had lodged such an application without any hindrance or difficulty; it was not apparent, nor did it fall to be decided in the applicant’s case, that the system in operation would prevent the weak or vulnerable from making use of that possibility. While it was true that the police had had no objection to bail and that, if the magistrate had had the power to release on bail, the applicant would have been released one day earlier, the Court nonetheless considered that the procedure in the applicant’s case had been conducted with due expedition, leading to his release some three days after his arrest.

Conclusion: no violation (sixteen votes to one).

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

Click here for the Case-Law Information Notes

 

Full & Egal Universal Law Academy