AS TO THE ADMISSIBILITY OF
Applications Nos. 12244/86, 12245/86, 12383/86
by Bernard FOX, Maire CAMPBELL and Samuel HARTLEY
against the United Kingdom
The European Commission of Human Rights sitting in private
on 10 May 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the applications introduced on 16 June 1986
by Bernard FOX and Maire CAMPBELL against the United Kingdom and
registered on 19 June 1986 under files Nos. 12244/86 and 12245/86,
and the application introduced by Samuel HARTLEY on 2 September 1986
against the United Kingdom and registered on 8 September 1986 under
file No. 12383/86;
Having regard to
– the report provided for in Rule 40 of the Rules of Procedure
of the Commission;
– the Commission’s decision of 11 December 1986 to communicate
the application to the respondent Government under Rule 42 para. 2 (b)
and to join the cases under Rule 29 of the Rules of Procedure;
– the submissions of the parties;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant, Mr. Bernard Fox, states that he is an
Irish citizen born in 1951 and resides in Belfast, Northern Ireland.
He is an unemployed coach-builder by profession.
The second applicant, Ms. Maire Campbell, states that she is
an Irish citizen born in 1959, and resides in Belfast, Northern Ireland.
She is an unemployed secretary.
The third applicant, Mr. Samuel Hartley, states that he is an
Irish citizen born in 1962 and resides in Waterfoot, Co. Antrim,
Northern Ireland. He is unemployed.
All three applicants are represented in the proceedings before
the Commission by Messrs Madden & Finucane, solicitors, Belfast.
The facts as agreed by the parties may be summarised as follows:
On 5 February 1986 the first and second applicants were
stopped by the police in Belfast and brought to Woodbourne Royal
Ulster Constabulary station where a full search of the vehicle in
which they were travelling was carried out. Twenty-five minutes after
their arrival at the police station, at 15.40 hours, they were
arrested under Section 11 (1) of the Northern Ireland (Emergency)
Provisions Act 1978 (1). They were informed that they were being
arrested under this Section and that the arresting officer suspected
them of being terrorists. They were also informed that they could be
detained for up to 72 hours (2). The applicants were taken to
Castlereagh Police Office. The first applicant was interviewed by
the police on the same day between 20.15 hours and 22.00 hours. The
second applicant was interviewed separately between 20.15 hours and
22.00 hours.
During their detention under Section 11 the applicants were
asked about their suspected involvement that day in intelligence
gathering and courier work for the Provisional Irish Republican Army
[PIRA]. No charges were brought against either applicant. The first
applicant was released at 11.40 hours on 7 February 1986 and the
second applicant, five minutes later, at 11.45 hours that day. The
first applicant had thus been detained one day and 20 hours and the
second applicant one day, 20 hours and 5 minutes.
__________
(1) Section 11 (1) states:
“Any constable may arrest without warrant any person whom he
suspects of heing a terrorist.”
(2) Section 11 (3) states:
“A person arrested under this section shall not be detained in right of
the arrest for more than seventy-two hours after his arrest, and
section 132 of the Magistrates’ Courts Act (Northern Ireland) 1964 and
section 50(3) of the Children and Young Persons Act (Northern Ireland)
1986 (requirement to bring arrested person before a magistrates’
court not later than forty-eight hours after his arrest) shall not
apply to any such person.”
The applicants state that they were not informed of the reasons
for their arrest nor told that there was any charge against them
except that they were arrested as suspected terrorists. They were not
brought before a judge or given any opportunity to apply for release
on bail.
The third applicant (Mr. Samuel Hartley) was arrested at his
home, in his parents’ presence at 07.55 hours on 18 August 1986 under
Section 11 of the 1978 Act. He was informed at the time of his arrest
that he was being arrested under Section 11 (1) as he was suspected to
be a terrorist. He was taken to Antrim police station where he was
interviewed by the police between 11.05 hours and 12.15 hours.
He was suspected of involvement in a kidnapping incident which
had taken place earlier that month in Ballymena when a young man and
woman were forcibly taken away by masked armed men. Those involved in
the kidnapping were thought to have connections with PIRA. The motive
behind the kidnapping was believed to have been an attempt to force
the young woman to retract an allegation of rape made the previous
year as a result of which a person had been convicted and sentenced to
three years’ imprisonment. During the applicant’s detention he was
asked about his suspected involvement in the kidnapping incident. He
denied any such involvement. No charges were brought against him. He
was released on 19 August 1986 at 14.10 hours after one day, 6 hours
and 15 minutes in detention.
On 6 February 1986 the first two applicants initiated proceedings
for habeas corpus. The applicants were released, however, before the
applications could be heard by a judge.
COMPLAINTS
The applicants point out that the United Kingdom Government
withdrew its derogation under Article 15 of the Convention on
22 August 1984.
They complain first that their arrest contravened Article 5
para. 1 of the Convention in that it was solely for the purposes of
detaining and interrogating them. They further complain that their
arrest and detention do not fall under Article 5 paras. 1(a)-(f).
They point out that Section 11 of the 1978 Act permits arrest and
detention solely on grounds of suspicion as opposed to “reasonable
suspicion” under Article 5 para. 1(c). Section 11 also permits
detention for purposes other than those permitted by Article 5
para. 1.
The applicants also allege a breach of Article 5 para. 2 of
the Convention in that they were not informed of the reasons for their
arrest or of any charge against them.
The applicants further allege breaches of Article 5 para. 5
and Article 13 of the Convention in that they were denied an enforceable
right to compensation. In this connection the applicants in their
petitions stated as follows:
“The applicant cannot challenge the said Section 11 of the
Northern Ireland (Emergency Provisions) Act 1978 in any Court of law
in Northern Ireland on the ground that it contravenes the European
Convention because the clear jurisprudence of this jurisdiction is
that the Convention is subordinate to express provisions of domestic
law and accordingly the applicant is prevented from bringing any
proceedings to determine the lawfulness of arrest and detention under
and by virtue of the said Section 11 and it is therefore further
denied any enforceable right to compensation in contravention of
Article 5 para. 5 and Article 13.”
Exhaustion of domestic remedies
Since the applicants’ arrest was in accordance with the
domestic law and since the provisions of the European Convention on
Human Rights are not part of the law of Northern Ireland no domestic
remedy is open to the applicants.
Object of the application
The applicants seek compensation for their arrest and detention
in contravention of Article 5 of the Convention. They also seek a
declaration that their arrest and detention were in breach of Article 5
in order to ensure:
– that they would be free from similar arrest and detention in
the future;
– that they and other persons who were so detained would have an
enforceable right of compensation.
PROCEEDINGS BEFORE THE COMMISSION
The first and second applications (Fox and Campbell) were
introduced on 16 June 1986 and registered on 19 June 1986.
The third application (Hartley) was introduced on 2 September
1986 and registered on 8 September 1986.
On 11 December 1986 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 submit
before 3 April 1987 their observations in writing on the admissibility
and merits of the applicants’ complaints under Articles 5 and 13 of
the Convention.
The Commission further decided on the same date to join the
cases pursuant to Rule 29 of its Rules of Procedure.
The observations of the respondent Government were submitted
on 14 May 1987 after an extension of the time limit had been obtained.
The applicants’ observations in reply were submitted on 10 September
1987 after a similar extension of the time limit had been granted.
The Commission next considered the application on 9 December
1987 and decided to invite the parties to a joint hearing on the
admissibility and merits of the case insofar as it raised issues under
Articles 5 and 13 of the Convention.
The hearing before the Commission was held on 10 May 1988.
The parties were represented as follows:
Respondent Government:
Mr. M. WOOD, Agent, Foreign and Commonwealth Office
Mr. A. CAMPBELL, Q.C., Counsel
Mr. N. BRATZA, Q.C., Counsel
Two Government advisers were also present.
The applicants:
Mr. R. WEIR, Q.C., Counsel
Mr. S. TREACY, Counsel
Mr. P. FINUCANE, solicitor.
The applicants were not present at the hearing.
SUBMISSIONS OF THE PARTIES
The respondent Government
As to Fact
The Government state that the first applicant, Fox, was
convicted on 21 February 1979 of possession of explosive substances
and of causing an explosion and of two other offences of causing an
explosion. For each of these four offences he was sentenced to 12
years’ imprisonment, the sentences running concurrently. On the same
occasion he was sentenced to five years’ imprisonment, also
concurrent, for belonging to the IRA. He was further convicted on
27 April 1979 of a further offence of possession of explosives and
received a further 12-year concurrent sentence. The second applicant
received an 18 months’ suspended sentence after being convicted of
explosives offences.
The Government state that the record of the interviews with
the first and second applicants shows that they were made aware of the
“subject matter” of the enquiry and the day to which it related. The
third applicant was interviewed about terrorist activities in a
specific geographical area and about involvement with the Provisional
IRA.
Relevant domestic law and practice
The Government recall that for the past seventeen years the
population of Northern Ireland has been subjected to a vicious
campaign of terrorism aimed at overthrowing the democratic process by
violent means. More than 2,500 people, including almost 800 members
of the security forces, have been killed, and many thousands more have
been maimed or injured. Such casualties in a close-knit population of
1.5 million emphasise the scale of human tragedy which the terrorists’
campaign has caused. Section 11 of the 1978 Act confers a power to
arrest, and detain for a maximum of 72 hours, suspected terrorists and
a power for them to be photographed and for finger and handprints to
be taken.
Section 31 (1) of the 1978 Act defines “terrorist” and
“terrorism”. A terrorist is “a person who is or has been concerned in
the commission or attempted commission of any act of terrorism or in
directing, organising or training persons for the purpose of
terrorism”. Terrorism is defined as “the use of violence for the
purpose of putting the public or any section of the public in fear”.
Under Section 11 (1) a constable has power to arrest without
warrant any person whom he suspects to be a terrorist. Sub-section (2)
gives power to enter and search premises where a suspected terrorist
is or is suspected to have been. Sub-section (3) allows a person
arrested under Sub-section (1) to be detained in right of the arrest
for 72 hours and disapplies provisions which otherwise would
require a person who has been arrested to be brought before a
magistrate within 48 hours of his arrest. Under Sub-section (4)
persons arrested under Section 11 (1) can be photographed and their
finger and handprints taken by a constable on the order of an officer
not below the rank of chief inspector.
Section 11 re-enacted the power of arrest and detention for up
to 72 hours in Section 10 of the Northern Ireland (Emergency
Provisions) Act 1973. Since their enactment in 1973, these powers of
arrest and detention have had to be renewed periodically by an order
made by the Secretary of State with the approval of both houses of
parliament, without which they would lapse. Under the 1978 Act the
provisions became renewable on a six-monthly basis (Section 33). The
powers in Section 11 have been renewed every six months pursuant to
Section 33 of the 1978 Act.
In 1983 the Secretary of State for Northern Ireland invited
Sir George Baker, a retired senior member of the judiciary to examine
the operation of the 1978 Act to determine whether its provisions
struck the right balance between maintaining as fully as possible the
liberties of the individual whilst conferring on the security forces
and courts adequate powers to protect the public from terrorist crime.
There followed a number of recommendations in a report which was
published in April 1984.
Section 11 (1) of the 1978 Act has now been replaced by Section
6 of the Northern Ireland (Emergency Provisions) Act 1987 which came
into effect on 15 June 1987. This new power is confined to conferring
a power of entry and search of premises for the purpose of arresting
persons under Section 12 of the Prevention of Terrorism (Temporary
Provisions) Act 1984.
The exercise of the arrest power in Section 11 (1) has been
considered by the House of Lords in the case of McKee v. Chief
Constable [1984] 1 W.L.R. 1358. In that case the House of Lords
decided that the proper exercise of the power of arrest in Section 11
depended upon the state of mind of the arresting officer and of no-one
else. It was necessary that the arresting officer suspected the
person he was arresting to be a terrorist, otherwise the arrest was
unlawful, although he could form that suspicion on the basis of
information given to him by his superior officer. He could not,
however, arrest under Section 11 on the instructions of a superior
officer who held the necessary suspicion unless the arresting officer
himself held that suspicion. Lord Roskill stated that the suspicion
need not be a reasonable suspicion but it had to be honestly held.
The requirement of a suspicion in the mind of a constable was a
subjective test. That being so, the courts could only enquire as to
the bona fides of the existence of the suspicion. He went on,
“Did the constable in his own mind suspect and in my view the only
other question of the courts is, was this an honest opinion?”
In addition to the arresting officer having an honestly held
suspicion that the person concerned was a terrorist, the person who
is arrested must be 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 in Christie v. Leachinsky [1947]
A.C. 573.
A person who believes that his arrest or detention under
Section 11 is unlawful can challenge his arrest or detention by
seeking habeas corpus or by taking proceedings for damages for false
imprisonment. In either case the lawfulness of the police action
would be tested.
Non-exhaustion of domestic remedies
The Government consider the circumstances of the arrest of the
third applicant (Hartley) to raise a question as to whether the
suspicion that he was a terrorist, which he appears to accept was
entirely bona fide, related to a relevant matter. A suspicion under
Section 11 must be to the effect that the applicant was a terrorist as
defined by Section 31 of the 1978 Act. It would not have been a
lawful use of the arrest power in Section 11 had he been suspected
merely of involvement in some activity falling short of terrorism even
though that activity might itself be criminal in character – such as
kidnapping which is a common law offence in Northern Ireland when it
is carried out without the use of violence or without the purpose of
putting the public or a section of the public in fear.
The Government do not consider that an applicant who is aware
of the relevant facts can be excused from the need to exhaust domestic
remedies merely by asserting that he accepts that the matters about
which he complains under the Convention were lawful as a matter of
domestic law. Mere doubts as to the prospects of success of a
challenge to the lawfulness of his arrest and detention is not a
sufficient basis for waiving the requirement of the exhaustion of
domestic remedies. The Government therefore submit that the
application lodged by the third applicant is inadmissible under
Article 26 of the Convention.
Six months rule
The Government submit that the applicants’ complaint under
Article 5 para. 4 of the Convention was first developed in the
applicants’ observations in reply dated 10 September 1987, that is,
more than six months from their release from detention. This
complaint should therefore be rejected under Article 26 as having
been submitted out of time.
Article 5 para. 1 of the Convention
The Government submit that the arrests and detention of the
applicants fell within sub-paragraph (c) and were in accordance with a
procedure prescribed by law, namely Section 11 of the Northern Ireland
(Emergency Provisions) Act 1978. The applicants’ arrests were in each
case lawful as a matter of domestic law both as regards the suspicion
held that each was a terrorist and the reason given to each for his or
her arrest. The arrests and detention were in fact effected for the
purpose of bringing them before a court “on reasonable suspicion of
having committed an offence”.
With respect to the issue that Section 11 refers merely to a
“suspicion” as opposed to “a reasonable suspicion”, the Government
submit that the Convention organs are not called upon to examine in
abstracto the compatibility of legislation with the Convention. The
Commission must confine its attention to the facts of the case. Even
where a statutory provision under which an arrest is effected does not
require the existence of a reasonable suspicion, but only the
existence of a suspicion of an offence, it does not follow that an
arrest under this provision is in breach of Article 5 para. 1. It
is the fact that a reasonable suspicion exists, not the terms of
the provision which is material for the purposes of paragraph 1 (c).
Moreover, the existence of a reasonable suspicion does not mean that
there is at the time of the arrest sufficient evidence to prosecute.
In deciding whether there was a reasonable suspicion, the
Commission’s task is not to assess the material available to the
arresting officer in order to make an independent determination
but rather to review under Article 5 para. 1 (c) of the Convention the
decisions taken by the domestic authorities in order to determine on a
prima facie basis whether or not the decisions were reasonable and
were therefore justified.
The strength of the grounds necessary to satisfy the
requirement of reasonable suspicion will necessarily vary with the
circumstances of the particular case. However, it is a material
factor in determining the reasonableness of the suspicion held that
the person concerned has previously been convicted of criminal
offences of a similar nature to those for which he is being arrested
(Nos. 5371/72 and 6579/74, Dec. 18.7.74, Collection 46 p. 71).
The Government refer to the acute sensitivity of the material
on which arrests are frequently based in cases of suspected
terrorism. Where, as commonly occurs, the arrest and detention of a
suspected terrorist is based on information provided by an informant,
it is not possible to disclose the nature of the information
supporting the suspicion for fear of compromising the source of the
information or endangering the informant’s life or safety.
Accordingly, in the present case the Government state that it is not
possible to disclose the material on which the suspicion of the
arresting officer was based. However, it has not been contested by the
applicants that there existed a bona fide suspicion of their
involvement in specific criminal acts and that the applicants Fox and
Campbell had been previously convicted of terrorist-type offences as
indicated above.
With reference to the applicants’ submissions, the Government
state that the fact that an arrested person is released without charge
after one and a half days rather than three days reveals nothing about
the reasonableness of the suspicion which existed at the time of the
original arrest. Nor can the reasonableness of the suspicion be called
into question by the mere fact that an arrest is effected under a
statute which permits detention for up to three days rather than under
a statute which permits the period of detention to be extended for up
to seven days as in Section 12 of the Prevention of Terrorism
(Temporary Provisions) Act 1984. The Government indicate that a
suspect will be arrested under Section 12 of the 1984 Act as opposed to
Section 11 of the 1978 Act if the police believe that the enquiries to
be made will last longer than 72 hours – the maximum period permitted
under the 1978 Act.
Moreover, the purpose of the arrests was to bring the
applicants before a court to face charges for offences. At the time
they were questioned there were insufficient grounds for arresting
them on suspicion of having committed a specific offence. Having
regard to the nature of the suspicions there were reasonable grounds
for suspecting them to be terrorists. Terrorism is the use of
violence for political ends, a criterion which the Court has
recognised in the case of Ireland v. the United Kingdom to be in
keeping with the idea of an offence (Eur. Court H.R., judgment of
18 January 1978, Series A No. 25, p. 74, para. 196). Had further
admissible and usable evidence become available as a result of the
applicants’ interrogation appropriate charges would have been laid and
the applicants would have been brought before a magistrate’s court on
the basis of them.
The Government dispute the applicants’ claim that they were
arrested for the purpose of detaining them and interrogating them.
Attention is drawn to the terms of Section 11 which confer a power of
arrest where the constable suspects the person of being a terrorist.
It is differently framed from Regulation 10 of the Regulations under
the Special Powers Act 1922 which did enable people to be arrested so
that they could be interrogated. It was for this reason that it was
held by the Court to be incompatible with Article 5 para. 1 (c)
(Ireland v. United Kingdom, loc. cit., p. 75 para. 196).
It is true that in his report on the review of the 1978 Act
Sir George Baker referred to Section 11 as a general power of arrest
for questioning. He went on, in para. 264 of his Report, to say that
a Section 11 arrest need not be for the purpose of bringing an
offender before a competent court. The Government do not accept this
description of the Section 11 power if by these remarks Sir George
Baker sought to describe arrest under this provision as an arrest
solely for the purposes of interrogation.
The purpose of the powers of arrest and detention under
Section 11 was to enable the police to investigate whether there was
sufficient usable and admissible evidence to justify the preferring of
charges against the suspected person or to entitle the Secretary of
State to make an exclusion order under the 1984 Act. In this respect
the position in relation to an arrest under Section 11 of the 1978 Act
is identical to that in relation to an arrest under Section 12 of the
1984 Act. The Government adopt, in this respect, the reasoning of the
Commission set out in paras. 93 and 94 of the Report in the Brogan
case. Article 5 para. 1 (c) cannot mean that the suspected person’s
guilt can at this stage of arrest be established or proved (Brogan,
Coyle, McFadden, Tracey v. the United Kingdom, Nos. 11209/84, 11234/84,
11266/84, 11386/85, Comm. Report 14.5.87). The very purpose of
detaining a person after arrest and prior to bringing him before a
court is to facilitate the proper conduct of the investigation into
the suspected offence. As the Commission observed in para. 94 of its
Report, after a person has been arrested it will normally depend on
the result of further investigations and questioning whether he will
eventually be charged and brought to trial before a court. It is
particularly so in relation to suspected terrorist cases where there
may exist ample material to found a suspicion of involvement in
terrorism which justifies arresting a person but where that material
cannot be used in court either because it is inadmissible on
evidential grounds or because reasons of security preclude its use.
The Government emphasise that in the case of arrest under Section 11
there exists at all times a firm purpose and intention to bring the
arrested person before a court if usable and admissible evidence
becomes available to confirm this suspicion and justify the bringing
of charges.
Article 5 para. 2 of the Convention
In the Government’s submission, the arrests in the present
case satisfy Article 5 para. 2 of the Convention. Not only were the
applicants informed that they were being arrested under Section 11 of
the 1978 Act but also of the fact that they were suspected of being
terrorists. Moreover, after their arrest they were questioned about
specific activities in which they were suspected of having been
involved.
It is clear from the constant jurisprudence of the Commission
that information in general terms of the reasons for an arrest will
suffice. In its decision on the admissibility of the Caprino case
(No. 6871/75, D.R. 12 p. 14) the Commission found that it was
sufficient that the applicant was informed of the legal basis for his
detention as well as the essential facts relevant to the lawfulness of
his detention, i.e., that he was being detained pending deportation in
the interests of national security. Moreover, it is also clear from
the Commission’s decision on the admissibility of the Neumeister case
(No. 1936/63, Dec. 6.7.64, Yearbook 7 p. 224) that, even where the
grounds for an arrest are not maintained at the time the arrest is
carried out, Article 5 para. 2 may still be satisfied if the reasons
for the arrest become clear from the nature of the interrogation of
the suspect. The Government also refer to para. 210 of the
Commission’s Report in the case of McVeigh, O’Neill and Evans (Nos.
8022/77, 8025/77, 8027/77, Comm. Report 18.3.81, D.R. 25 p. 15)
where it is stated that the information given to the applicants at the
time of their arrest, which consisted in their being told that they
would be fingerprinted, photographed, questioned and otherwise
“checked up on” was sufficient in the circumstances to make clear that
this amounted to a form of security check to establish whether they
were involved in terrorism. This was held to be sufficient for the
purposes of Article 5 para. 2.
Article 5 para. 4 of the Convention
It is not disputed that it was open to the applicants to seek
the remedy of habeas corpus or to institute proceedings for damages
for false imprisonment. As the judgment of the House of Lords in the
McKee case makes clear, the courts could not only review the formal or
procedural legality of an arrest under Section 11 whether the arrested
person was properly informed of the grounds of the arrest, but could
also examine the substantive question whether the person was arrested
as a suspected terrorist and whether the suspicion held by the person
effecting the arrest was a genuine suspicion.
The power of review of the courts is not an illusory one. If
it were the case that the questioning of a person arrested under
Section 11 was directed to matters unrelated to his involvement in
terrorist activities or a terrorist-related offence, this could afford
a strong basis for challenging the validity of the arrest on the
grounds that it was not founded on any genuinely held suspicion that
the individual concerned was a terrorist.
In its Report in the McVeigh case, the Commission found that
there should be judicial review sufficient in scope to cover both
the formal legality of the detention in domestic law and the
substantive justification for the detention under Article 5 para. 1.
The Commission stressed that the nature of the review required must
depend on the nature of the detention (loc. cit., p. 47 para. 216).
The Government submit that in respect of a Section 11 arrest, the
scope of judicial review satisfies Article 5 para. 4 since judicial
control can encompass the procedural and substantive basis of
detention.
Article 5 para. 5 of the Convention
The requirement in Article 5 para. 5 to provide an enforceable
right to compensation arises in relation to a case in which an arrest
or detention contravenes Article 5. Since the arrests and detention
were “lawful” within the meaning of Article 5 in the present case, the
Government submit that there is no requirement to provide an
enforceable right to compensation under this provision. In any event,
had the arrest or detention of any one of them been unlawful,
proceedings for damages for false imprisonment would have been open to
any of the applicants.
Article 13 of the Convention
The Government submit firstly that since the applicant’s
complaints under Article 5 are manifestly ill-founded it follows that
they have not established an arguable claim to be victims of a
violation of this provision. It is therefore submitted that the
requirement under Article 13 to provide an effective remedy does not
arise in the instant case. In addition, the mere fact that a person
who has been arrested and detained is released without charge does not
of itself give rise to a breach of the Convention for which a remedy
is required under Article 13. A person so arrested and detained would
only have an arguable claim of a breach of Article 5 if he could
adduce grounds for contending that the arrest or detention did not
satisfy one or more of the paragraphs of Article 5 para. 1 or, in a case
within Article 5 para. 1 (c), that he was not brought before a judge
or released promptly after his arrest as required by Article 5 para.
3, or that he was not given reasons for his arrest within Article 5
para. 2, or that he had no means of testing the lawfulness of his
detention within Article 5 para. 4 or had no enforceable right to
compensation for any contravention of the provisions of the Article.
The Government submit that the powers of arrest and detention contained
in Section 11 are fully compatible with Article 5 of the Convention and
that the application of those powers to these applicants in the
circumstances of their applications to the Commission were entirely
lawful.
In its judgment in the case of James and Others (Eur. Court
H.R., judgment of 21 February 1986, Series A No. 98), the Court
has held that where legislation is compatible with the substantive
provisions of the Convention Article 13 is satisfied if there exists
domestic machinery whereby the individual can secure compliance with
the relevant laws. Effective remedies in this sense were available to
the applicants in the present case by way of an application for habeas
corpus and proceedings for damages for false imprisonment in the event
of any non-compliance with the provisions of domestic law.
In the alternative, the Government submit with reference to
the Commission’s Report in the Brogan case that Article 5 para. 4 must
be regarded as the lex specialis in respect of complaints under
Article 5 (loc. cit., para. 122). Accordingly, it is submitted that
no separate issue arises under this provision in the present case.
The Applicants
Six months rule
The applicants submit that the complaint under Article 5 para.
4 of the Convention is not a complaint which is based upon any fresh
facts. It is grounded on facts which have already been set out in the
original petitions. Accordingly, no issue arises under the six months
rule.
Non-exhaustion of domestic remedies
The third applicant Hartley contests the Government’s
submission that his application should be rejected for non-exhaustion
of domestic remedies. He draws particular attention to the fact that
those involved in the kidnapping were believed to have connections
with PIRA. As a matter of domestic law the third applicant was
lawfully arrested. The lawfulness of an arrest under Section 11 is
determined by the subjective bona fide belief of the arresting
officer that the person arrested is a terrorist. The third applicant
accepts that the arresting officer had this subjective bona
fide belief. The facts underlying the third applicants’ arrest
have a distinct flavour of terrorism since those involved were
believed to have connections with PIRA. Moreover, kidnapping is a
scheduled offence under Schedule 4 of the 1978 Act and can therefore
only be tried on indictment in a non-jury “Diplock” court in
accordance with the special provisions relating to terrorist trials
contained in the 1978 Act.
Article 5 para. 1 of the Convention
It is submitted that Section 11 of the 1978 Act is repugnant
to Article 5 para. 1 because (a) it permits arrest and detention for
up to three days on bare suspicion, whereas Article 5 para. 1 (c)
requires reasonable suspicion and (b) it authorises arrest and
detention which is not effected for the purpose of bringing the person
before the competent legal authority but is effected for the purpose
of interrogation and information gathering.
The repugnancy of Section 11 with Article 5 is expressly
recognised by Sir George Baker – a retired senior English judge who
was requested by the respondent Government to carry out a review of
the operation of the 1978 Act. He received written and oral
submissions from a large number of bodies and individuals who could be
expected to be well acquainted with the operation and purpose of the
Act. These included former Secretaries of State of Northern Ireland,
some of the most senior members of the judiciary in England, senior
members of the legal profession and the Royal Ulster Constabulary and many
other sources. His report was presented to Parliament in April 1984.
Paragraph 264 of his Report expressly recognises the
incompatibility of Section 11 with Article 5 of the Convention:
“In contrast to the provisions of the E.P.A.* which deal with the
trial of terrorist offences and do not require derogation from
Article 6 of the European Convention, those which deal with the
powers of arrest appear to contravene the minimum requirements of
Article 5. Consequently the U.K. entered a Notice of Derogation
under Article 15. Article 5 (1) c requires reasonable suspicion
of having committed an offence and arrest for the purpose of
bringing the offender before a competent court. Section 11
E.P.A. requires neither, nor is an offence necessary. Nor need
an arrest under the P.T.A.** be necessary for the purpose of
bringing before a court.”
__________
* Emergency Provisions Act
** Prevention of Terrorism Act
Sir George Baker also recognised that Section 11
conferred a general power of arrest for questioning. Thus, in
paragraph 263 of his Report he made the following remarks:
“Generally I find it helpful in making recommendations in 1984 to
go back further than 1973 but to understand the arrest and
detention Sections of the E.P.A. it is useful to note that
Regulation 10 of the Special Powers Act (N.I.) 1922 provided
‘Any Officer for the R.U.C. for the preservation
of the peace and maintenance of order, may
authorise the arrest without warrant and
detention for a period of not more than 48 hours
of any person for the purpose of interrogations.’
This general power of arrest for questioning did not disappear
entirely when the Special Powers Act was repealed by Westminster.
It was reworded and to some extent re-enacted in the E.P.A. and
P.T.A. But nowhere in these acts do the words ‘for the
purpose of interrogation’ appear. That is left to be
inferred. There is widespread criticism of the alleged
illegal use of arrest for ‘information gathering’ or low grade
intelligence and harassment. It might be better if the power
of the R.U.C. were expressly spelled out in the act linked
of course to appropriate controls. That the police have such
a power under the P.T.A. was accepted by Lawton, L.J. in the
English C.A. (Criminal Division) in R. v. Houghton 1987 CAR197.”
Historically the police in Northern Ireland have always had
the power to arrest for the purpose of interrogation. Furthermore an
extremely high proportion of persons released without charge compared
to the figures for release without charge in Great Britain confirms
that the powers given by Section 11 are used for information gathering
(see, The Use and Abuse of Emergency Legislation in Northern Ireland,
Dermot P. J. Walsh, 1983).
Against this background the applicants submit that the
predominant purpose of Section 11 is to facilitate arrest and
detention for the purpose of interrogation and that the applicants
were not arrested with a view to proceedings for criminal offences
being brought against them.
The applicants also submit that Section 11 of the 1978 Act as
consistently interpreted by the courts, does not require a reasonable
suspicion within the meaning of this provision. In support of this
argument, they refer to the decisions of the Court of Appeal and the
House of Lords in the case of Gerard McKee v. the Chief Constable for
Northern Ireland [1984] 1 W.L.R. 1358 and the judgment of Justice
McGonigal in re McElduff [1972] NI 1. Mr. Justice McGonigal in
considering the statutory power of arrest under Regulation 11 (1) of
the Civil Authorities (Special Powers) Act 1922 stated as follows:
“In this case there is no reference to reasonableness nor do I find
anything in the words of the regulation which suggests that it should
be imported into it. The use of the term ‘reasonable suspicion’ is so
common that if the legislature had intended to impose a standard of
reasonableness one would have expected the word to be included in the
regulation. I do not consider that I can now impose a standard which
the legislature itself has not considered fit to impose. The test is
therefore whether the arrestor suspected. That does not appear to me
to be open to an objective test. It may be based on purely arbitrary
grounds, on grounds which the courts, if this were an objective test
of reasonableness might consider unreasonable. But since
reasonableness is not essential to the suspicion that is immaterial.
What is required by the regulation is a suspicion existing in the mind
of the constable. That is a subjective test. If that is correct, the
courts in enquiring into the exercise of the power, can only enquire
as to the bona fide of the existence of the suspicion. Did the
constable in his own mind suspect? And in my view the only other
question for the courts is, ‘Was this an honest suspicion?'” (loc.
cit., p. 19)
Similarly, Lord Roskill in the McKee case, which concerned
an arrest under Section 11 (1) of the 1978 Act, stated as follows:
“On the true construction of Section 11 (1) of the statute,
what matters is the state of mind of the arresting officer
and of no one else. That state of mind can legitimately be
derived from the instruction given to the arresting officer
by his superior officer. The arresting officer is not bound
and indeed may well not be entitled to question those
intructions or to ask upon what information they are
founded. It is, in my view, not legitimate in the light of
the learned trial judge’s findings as to Graham’s state of
mind at the time of the arrest, to seek to go behind that
finding and deduce from Detective Constable Moody’s evidence
as to questioning which took place some time after the
arrest what Jackson’s state of mind may have been when he
gave Graham his instructions. It is Graham’s state of mind
that matters and that alone. In my view the matter is
concluded in favour of the appellant by the learned trial
judge’s findings to which I have already referred.
My lords, I do not doubt that the burden is on the
appellant to justify the respondent’s arrest. In my view he
has simply done so. I have already said that I reached this
conclusion simply upon the learned trial judge’s finding as
to Graham’s state of mind. That Graham honestly had that
belief was not challenged and, if it be relevant, the
existence of that honest belief seems to me to be well
established by the fact that Graham said in evidence that
Jackson had told him to be careful and that after knocking
on the door of the respondent’s house he (Graham) was
‘standing back against the wall because I suspected he (the
respondent) might have guns’.
In conclusion I would mention two other matters. First I
respectfully agree with all the learned judges below that on
the true construction of the statute the powers of arrest
under Section 11 are not qualified by any words of
‘reasonableness’. The suspicion has to be honestly held but
it need not be a reasonable suspicion as well. I also agree
with what was said on this topic by Mr. Justice McGonigal in
In re McElduff in the passage quoted by Mr. Justice
Kelly.”
The applicants state that as far as they are aware,
no domestic court has ever impugned a Section 11 arrest despite the
fact that approximately 70% of the large number of persons arrested
under Section 11 were subsequently released without charge (para. 276
and Appendix M of the Baker Report).
Finally, the applicants point out that if reasonable grounds
genuinely existed for their arrest it would have been open to the
police to use their powers under Section 12 of the Prevention of
Terrorism (Temporary Provisions) Act 1984. Moreover, whilst the
Government have asserted that reasonable grounds did exist, they have
nowhere set out in their submissions the alleged reasonable grounds
and have, in fact, indicated that they are not prepared to do so in
this case. The onus of proof rests, however, with the respondent
Government on this question.
Article 5 para. 2 of the Convention
Each of the applicants was arrested as they were suspected of
having committed offences but were not told what the offences were.
They were only informed that they were suspected of being terrorists
which, as Sir George Baker points out, is, in itself, not an offence.
The first and second applicants were suspected of intelligence
gathering and courier work and the third applicant was suspected of
kidnapping. These are offences under Northern Irish law. The
Commission has stated that the purpose of Article 5 para. 2 is to
inform a detainee adequately of the reasons for his arrest so that he
may judge the lawfulness of the measure and take steps to challenge it
if he sees fit and thus avail himself of the right guaranteed in
Article 5 para. 4 of the Convention (X. v. the United Kingdom No.
6998/75, Comm. Report 16.7 80, Eur. Court H.R., Series B No. 41, p. 33
para. 104). In the present case the applicants should have been
informed of the substantive reasons for their detention.
Contrary to the submissions of the Government, informing a
suspect of the reasons for his arrest would not jeopardise the sources
of police information. An important distinction must be drawn between
the reasons for an arrest and the basis of those reasons. It would
have been quite sufficient in the case of the first and second
applicants to say to them “We are arresting you under Section 11 of
this Act because we suspect that you have been engaged in intelligence
gathering and courier work for the IRA.” Such a statement would not
have disclosed the source of the information.
It is further submitted that they were not informed promptly
of the reasons for their arrest. The first and second applicants were
arrested at approximately 15.00 hours and were first interviewed five
hours later at approximately 20.15 hours. If information was conveyed
to them in the course of these interviews, it was not information
which was provided promptly within the meaning of this provision.
Moreover, there is no indication that the third applicant who was
detained for thirty hours was given any information in respect of the
very specific suspicion against him, namely, involvement in a
kidnapping.
Finally, the applicants submit that it is not compatible with
Article 5 para. 2 to leave it to an accused to infer or deduce the
reasons for his arrest from the matters about which that person has
been questioned in the course of a police interview. Such a procedure
could not be described as informing someone in a language which that
person understands of the reasons for his arrest.
Article 5 para. 4 of the Convention
The applicants concede that as a matter of domestic law their
arrests were lawful. It follows that their arrest and detention was
incapable of challenge in the domestic courts under Northern Irish
law.
It is further submitted that the remedy of habeas corpus would
not in practice have been open to the applicants. This is because it
would be impossible to obtain a ruling in a habeas corpus case
within 72 hours, the permitted period of detention under Section 11.
Indeed, in the case of the first two applicants, an attempt was made
to obtain the writ of habeas corpus but before the matter could be
brought before a judge the applicants had been released.
Article 5 para. 5 of the Convention
The applicants submit that they did not have an enforceable
right to compensation in the event of the arrest and detention being
found contrary to Article 5 of the Convention. It is not possible to
seek compensation under Northern Irish law on the basis of a breach of
Article 5 of the Convention.
Article 13 of the Convention
The applicants first submit that they did not have an
effective remedy as required by this provision in respect of their
complaint that they were arrested and detained without being under a
‘reasonable suspicion’. It is not possible to impugn the provisions
of Section 11 of the 1978 Act under domestic law since under Northern
Irish law domestic law is superior to the Convention which has not
been incorporated into domestic law. Nor do the applicants enjoy an
effective remedy in respect of their complaint that they were arrested
and detained without being informed of the reasons for their arrest as
required by Article 5 para. 2 of the Convention.
THE LAW
The applicants were all arrested and detained under Section 11
of the Emergency Provisions (Northern Ireland) Act 1978 as suspected
terrorists. They complain that their arrest and detention are in
violation of Article 5 paras. 1 and 2 (Art. 5-1, 5-2) of the
Convention. They also allege violations of Article 5 paras. 4 and 5
and Article 13 (Art. 5-4, 5-5, 13) of the Convention.
Article 26 (Art. 26) of the Convention
This provision provides as follows:
“The Commission may only deal with the matter after all
domestic remedies have been exhausted, according to the generally
recognised rules of international law, and within a period of six
months from the date on which the final decision was taken.”
A. Six months rule
The Government submit that the applicants’ complaint under
Article 5 para. 4 (Art. 5-4) of the Convention should be rejected on
the basis of the six months rule since it was first mentioned in the
applicants’ observations in reply, that is, more than six months from
the applicants’ release from detention.
The Commission notes that the applicants originally
complained inter alia that they were “prevented from bringing any
proceedings to determine the lawfulness of arrest and detention under
and by virtue of the said Section 11” (see Complaints above).
The Commission considers that this complaint amounts, in
substance, to the applicants’ complaint under Article 5 para. 4
(Art. 5-4) of the Convention. In any event, the Commission considers
that it is open to an applicant to make new complaints, based on the
essential facts as originally presented, at a subsequent stage of the
procedure and that the six months rule is not opposable to such a new
complaint (see, in this context, Eur. Court H.R., Guzzardi judgment
of 6 November 1980, Series A no. 39, p. 22 para. 61).
The Commission concludes that this part of the application
satisfies the six months rule in Article 26 (Ar. 26) of the Convention.
B. Exhaustion of domestic remedies
The Government have further submitted that the application by
Mr. Hartley should be rejected for non-exhaustion of domestic
remedies since he could have brought proceedings under Northern Irish
law to challenge the lawfulness of his arrest and detention. The
Government point out that the applicant was arrested on suspicion of
involvement in a kidnapping whereas the formal basis of his arrest
under Section 11 was that of a suspect terrorist.
The Commission recalls that the applicants do not contest the
domestic lawfulness of their arrest, but complain inter alia that they
were arrested on the basis of “suspicion” of having committed an
offence and not a “reasonable suspicion” as required by Article 5
para. 1 (c) (Art. 5-1-c) of the Convention. The Government have not
shown that the applicants had a remedy under Northern Irish law in
respect of this complaint. It follows that Mr. Hartley’s application
cannot be rejected for failure to exhaust domestic remedies under
Article 26 (Art. 26).
As regards Article 5 paras. 1, 2, 4, 5, and Article 13
(Art. 5-1, 5-2, 5-4, 5-5, 13) of the Convention
The relevant parts of Article 5 (Art. 5) are 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;
…
2. Everyone who is arrested shall be informed promptly,
in a language which he understands, of the reasons for his
arrest and of any charge against him.
…
4. 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.
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.”
Article 13 (Art. 13) states as follows:
“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.”
The applicants submit that they were not arrested on the basis
of “reasonable suspicion” as required by Article 5 para. 1 (c) (Art.
5-1-c). They contend, with reference to decided cases, that Section
11 of the 1978 Act does not contain the requirement of
“reasonableness”. They further complain that they were not informed
promptly of the reasons for their arrest in violation of Article 5
para. 2 (Art. 5-2) and that the information they were given, namely
that they were being arrested as suspected terrorists, was
insufficient.
They further complain that they cannot challenge the
lawfulness of their arrest and detention contrary to Article 5 para. 4
(Art. 5-4) and are denied an enforceable right to compensation
contrary to Article 5 para. 5 (Art. 5-5) of the Convention.
Finally, they allege that they have no effective remedy in
respect of their complaints contrary to Article 13 (Art. 13) of the
Convention.
The respondent Government submit inter alia that
notwithstanding the terms of Section 11 of the 1978 Act the applicants
were in fact arrested on “reasonable suspicion” of having committed an
offence as required by Article 5 para. 1 (c) (Art. 5-1-c) of the
Convention. They state that the first and second applicants were
suspected of involvement in intelligence and courier work for the IRA
and that the third applicant was suspected of involvement in a
kidnapping incident.
As regards Article 5 para. 2 (Art. 5-2) the respondent
Government state that the applicants were informed of the reasons
underlying their arrest and detention in the course of their
interrogation by the police at the police station.
The respondent Government further maintain that it was open to
the applicants to seek habeas corpus or to bring proceedings for false
imprisonment and that judicial review would cover both the formal and
substantive basis of their arrest and detention as required by Article
5 para. 4 (Art. 5-4) of the Convention. It is also submitted that no
issue arises under Article 5 para. 5 (Art. 5-5) since the applicants
were lawfully arrested and detained under Article 5 para. 1 (Art. 5-1)
of the Convention.
Finally, the Government contend that either no separate issue
arises under Article 13 since Article 5 para. 4 (Art. 13, 5-4)must be
regarded as the lex specialis in cases concerning arrest and detention
or, alternatively, Article 13 (Art. 13) does not apply since there is
no arguable claim of a breach of Article 5 (Art. 5) of the Convention.
The Commission considers, in the light of the parties’
submissions, that the application as a whole raises complex issues of
law and fact under the Convention, the determination of which should
depend on an examination of the merits of the application.
It concludes, therefore, that the application is, as a whole,
admissible.
For these reasons, the Commission
DECLARES THE APPLICATION ADMISSIBLE
without prejudging the merits of the case
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)
