Information Note on the Court’s case-law 35
October 2001
O'Hara v. the United Kingdom - 37555/97
Judgment 16.10.2001 [Section III]
Article 5
Article 5-1-c
Reasonable suspicion
Arrest by police officer following briefing by his superior officers based on information from informants: no violation
Facts: Following a murder in Northern Ireland in 1985, four reliable informants told the police independently that the applicant was a member of the Provisional IRA and was implicated in the murder. Detective Constable S., who had been briefed to that effect by his superior officer, arrested the applicant under S. 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984. The applicant was released without charge after being detained for 6 days and 13 hours. He brought a civil action against the police, claiming, inter alia, assault, seizure of documents, false imprisonment and unlawful arrest. The applicant's counsel concentrated on the first two issues, but also maintained that the arresting officer had not had sufficient grounds for suspicion to justify an arrest. In that respect, the court held that the officer's suspicion had been reasonably based on the information given to him by his superior officer at the briefing. The applicant's appeals to the Court of Appeal and the House of Lords were dismissed.
Law: Article 5 § 1 (c) – Terrorism poses particular problems, as the police may be called upon to arrest a suspected terrorist on the basis of information which is reliable but cannot be disclosed without jeopardising the informant. While States cannot be required to establish the reasonableness of suspicion by disclosing confidential sources, the notion of "reasonableness" cannot be stretched to the point where the safeguard of Article 5 § 1 (c) is impaired. The State must therefore furnish at least some facts or information capable of satisfying the Court that there was reasonable suspicion. In the present case, the standard of suspicion set by domestic law was that of honest suspicion on reasonable grounds, unlike in previous cases in which only an honest suspicion was required. The applicant's claim that his arrest was not justified by reasonable suspicion was examined at three levels and evidence was given by the arresting officer, whom the applicant was able to cross-examine. This in itself provided a significant safeguard against arbitrary arrest. Moreover, the applicant's counsel did not inquire further as to what information had been given at the briefing and no steps were taken to have other officers called to give evidence. Thus, although very little evidence as to the background was produced, this was the consequence of the applicant concentrating on his claims of assault. Furthermore, while the applicant disputed that the information was received or that it could be regarded as reliable, no challenge was made in the proceedings to the good faith of the officers involved in the arrest. There may be a fine line between cases in which suspicion is not sufficiently founded on objective facts and those in which it is, and whether the requisite standard is satisfied will depend on the particular circumstances. In the present case, there is no basis to reject the Government's submission that the suspicion was based on information passed on at a police briefing from informers who had identified the applicant as being suspected of involvement in a specific terrorist offence. In the circumstances, the approach of the domestic courts – that the judge was entitled to infer reasonable suspicion from the sparse material available – was not incompatible with the standard imposed by Article 5 § 1 (c). Finally, if the briefing officer or any other superior officer had deliberately passed on misleading or inaccurate information to the arresting officer, the police authorities would have been liable for wrongful arrest or false imprisonment. Thus, the approach of the domestic courts did not remove the accountability of the police or confer any impunity with regard to arrests conducted on the basis of confidential information. The suspicion against the applicant reached the required level, as it was based on specific information of his involvement and the purpose of the deprivation of liberty was to confirm or dispel that suspicion.
Conclusion: no violation (6 votes to 1).
Article 5 § 3 – The Government had not disputed that the applicant was held for 6 days and 13 hours before being released and that this was not in compliance with requirement to bring an arrested person promptly before a judge or other officer.
Conclusion: violation (unanimously).
Article 5 § 5 – (a) As there had been no violation of Article 5 § 1, no issue arose under Article 5 § 5 in relation to that complaint.
Conclusion: no violation (unanimously).
(b) With regard to the finding of a violation of Article 5(3), it was not disputed that, as the detention was in accordance with domestic law, no enforceable right to compensation existed. In that respect, therefore, there had been a breach.
Conclusion: violation (unanimously).
Article 41 – The Court considered that the finding of a violation constituted sufficient just satisfaction. It made an award in respect of costs and expenses.
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