Bernard Fox, Maire Campbell, Samuel Hartley V. UK

Applications Nos. 12244/86, 12245/86, 12383/86

Bernard FOX, Maire CAMPBELL, Samuel HARTLEY

against

the UNITED KINGDOM

REPORT OF THE COMMISSION

(adopted on 4 May 1989)

– i –

TABLE OF CONTENTS

Page

I. INTRODUCTION
(paras. 1 – 22) ……………………………. 1 – 3

A. The application
(paras. 2 – 7) ………………………….. 1

B. The proceedings
(paras. 8 – 17) …………………………. 1 – 2

C. The present report
(paras. 18 – 22) ………………………… 2 – 3

II. ESTABLISHMENT OF THE FACTS
(paras. 23 – 41) …………………………… 4 – 7

A. Particular circumstances of the case
(paras. 23 – 28) ………………………… 4

B. Factual basis of suspicion
(paras. 29 – 30) ………………………… 5

C. Domestic law and practice
(paras. 31 – 41) ………………………… 5 – 7

III. OPINION OF THE COMMISSION
(paras. 42 – 85) …………………………… 8 – 14

A. Points at issue
(para. 42) ……………………………… 8

B. General considerations
(paras. 43 – 45) ………………………… 8 – 9

C. Article 5 para. 1
(paras. 46 – 62) ………………………… 9 – 11

D. Article 5 para. 2
(paras. 63 – 69) ………………………… 11 – 12

E. Article 5 para. 4
(paras. 70 – 75) ………………………… 12 – 13

F. Article 5 para. 5
(paras. 76 – 80 ) ……………………….. 13 – 14

G. Article 13
(paras. 81 – 84) ………………………… 14

H. Recapitulation ………………………….. 14
(para. 85)

– ii –

Page

Dissenting Opinion of Mr. Busuttil, Mr. Gözübüyük
Sir Basil Hall and Mr. Martinez ……………… 15 – 16

Dissenting Opinion of Mr. Danelius joined by 17 – 18
Mr. Jörundsson ……………………………..

Partly Concurring and Partly Dissenting Opinion
of Mrs. Liddy ……………………………… 19

APPENDIX I : History of the proceedings before the
Commission ………………………… 20

APPENDIX II : Decision on the admissibility of the
application ……………………….. 21 – 42

I. INTRODUCTION

1. The following is an outline of the case submitted to the
European Commission of Human Rights and of the procedure before the
Commission.

A. The applications

2. The first applicant, Mr. Bernard Fox, is an Irish citizen born
in 1951. He resides in Belfast, Northern Ireland.

3. The second applicant, Ms. Maire Campbell, is an Irish citizen
born in 1959. She resides in Belfast, Northern Ireland. She is the
wife of the first applicant but is separated from him.

4. The third applicant, Mr. Samuel Hartley, is an Irish citizen
born in 1962. He resides in Waterfoot, Co. Antrim, Northern Ireland.

5. The applicants are represented before the Commission by Messrs
Madden & Finucane, solicitors, Belfast.

6. The applications are directed against the United Kingdom. The
respondent Government are represented by their Agent, Mr. M. C. Wood,
Foreign and Commonwealth Office.

7. The case concerns the arrest and detention of the applicants
under Section 11 (1) of the Northern Ireland (Emergency Provisions)
Act 1978 as suspected terrorists. The applicants invoke Articles 5
and 13 of the Convention.

B. The proceedings

8. The first and second applications (Fox and Campbell) were
introduced on 16 June 1986 and registered on 19 June 1986.

9. The third application (Hartley) was introduced on 2 September
1986 and registered on 8 September 1986.

10. 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.

11. The Commission further decided on the same date to join the
applications pursuant to Rule 29 of its Rules of Procedure.

12. 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.

13. The Commission next considered the applications 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.

14. At the hearing, which was held on 10 May 1988, the applicants
were represented by Mr. R. Weir, Q.C., Mr. S. Treacy, of counsel,
and Mr. P. Finucane, solicitor. The Government were represented by
Mr. M. C. Wood, Mr. A. Campbell, Q.C., and Mr. N. Bratza, Q.C., of
counsel, as well as two Government advisers.

15. Following the hearing, the Commission declared the case
admissible and invited the parties to submit any further evidence or
additional observations that they wished to put before the
Commission. The Government were also requested to provide further
background information relevant to the nature and strength of the
suspicion underlying the applicants’ arrest and detention. The
Government’s answers to this request were received on 15 June 1988 and
subsequently communicated, for information, to the applicants’ legal
representatives.

16. In a letter dated 30 September 1988 the Government indicated
that they did not wish to submit any further evidence or additional
observations. No further evidence or additional observations were
received from the applicants.

17. After declaring the case admissible, the Commission, acting in
accordance with Article 28 (b) of the Convention, placed itself at the
disposal of the parties with a view to securing a friendly settlement
of the case. In the light of the parties’ reactions, the Commission
now finds that there is no basis on which a friendly settlement can be
effected.

C. The present Report

18. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes in plenary session, the following members being present:

MM. J. A. FROWEIN, Acting President
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A. S. GÖZÜBÜYÜK
H. G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C. L. ROZAKIS
Mrs.J. LIDDY

19. The text of this Report was adopted by the Commission on
4 May 1989 and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.

20. The purpose of the Report, pursuant to Article 31 of the
Convention, is

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found
disclose a breach by the State concerned of its
obligations under the Convention.

21. A schedule setting out the history of the proceedings
before the Commission is attached as Appendix I and the Commission’s
Decision on the admissibility of the application forms Appendix II.

22. The full text of the parties’ submissions, together with
documents lodged as exhibits, are held in the archives of the
the Commission.

II. ESTABLISHMENT OF THE FACTS

A. Particular circumstances of the case

23. On 5 February 1986 the first and second applicants (Mr.
Bernard Fox and Ms. Maire Campbell) 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 formally arrested under Section 11 (1) of
the Northern Ireland (Emergency Provisions) Act 1978. 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. 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.

24. 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.
They were also questioned about their suspected membership of this
organisation. 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.
Excluding the time taken to bring them to the police station, the
first applicant had thus been detained 44 hours and the second
applicant 44 hours and 5 minutes.

25. 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.

26. 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.

27. 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 the Provisional
IRA. 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 and his suspected membership of the Provisional
IRA. He denied any such involvement. No charges were brought against
him. He was released on 19 August 1986 at 14.10 hours after 30 hours
and 15 minutes in detention.

28. 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.
B. Factual basis of suspicion

29. No further information concerning the nature and strength of
the suspicions underlying the arrest and detention of the applicants
has been provided by the Government. They state that in cases of
suspected terrorism the information on which arrests are based is
frequently of acute sensitivity. To reveal it outside an immediate
circle would have the effect of revealing the extent of the
authorities’ knowledge and, secondly, where the suspicions are based
upon information provided by an informer, could lead to the informer
being compromised and to his or her death at the hands of terrorists.
The Government add, however, that the information underlying the
suspicion against the applicants Fox and Campbell was already known to
the police when they stopped their car on 5 February 1986.

30. The Government state that the first applicant, Mr. Fox, had
been 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,
Ms. Campbell, received an 18 months’ suspended sentence in 1979 after
being convicted of involvement in explosives offences.

C. Relevant domestic law and practice

1. Introduction

31. In the United Kingdom special legislation has been introduced
for the purpose of combating terrorism in Northern Ireland or
connected with the affairs of Northern Ireland. The Northern Ireland
(Emergency Provisions) Act 1978 and its predecessors, the Northern
Ireland (Emergency Provisions) Act 1973 and the Northern Ireland
(Emergency Provisions) (Amendment) Act 1975 were enacted to enable the
security forces to deal more effectively with the threat of terrorism.

2. Section 11 of the Northern Ireland
(Emergency Provisions) Act 1978

32. Section 11 of the 1978 Act confers a power to arrest and
detain suspected terrorists for a maximum of 72 hours and a power for
them to be photographed and for finger and palm prints to be taken.

33. The relevant parts of Section 11 provide as follows:

Section 11 (1) states:

“Any constable may arrest without warrant any person
whom he suspects of being a terrorist.”

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) 1968 (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.”

Sub-section (2) gives a power to enter and search premises where a
suspected terrorist is or is suspected of being. Under Sub-section 4
persons arrested under Section 11 can be photographed and their
finger prints and palm prints taken by a constable.

34. The power of arrest and detention under Section 11 (1) of the
1978 Act was originally an integral part of the detention scheme which
replaced internment (Section 10 (5) of and Schedule 1 to the 1973 Act
as amended by the 1975 Act). Since the powers in Section 10 (5) and
Schedule 1 ceased to be used in 1975 and following the lapse of the
successsor provision in the 1978 Act in 1980, the Section 11 power has
been used as a free standing power of arrest and detention.

35. 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.
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.

36. 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”.

37. 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.

38. 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.

39. 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 entirely upon the state of mind of the arresting officer.
It was necessary that the arresting officer suspected the person he
was arresting to be a terrorist; otherwise the arrest was unlawful. He
could form that suspicion on the basis of information given to him by
his superior officer, but he could not 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, with whom the other Law Lords agreed, 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. The questions which were
required to be answered appear from Lord Roskill’s additional
statement: “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?”

40. 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. The person arrested must be informed of the true grounds
for his arrest at the time he is taken into custody or, if special
circumstances exist to excuse this, as soon thereafter as it is
reasonably practicable to inform him. Technical or precise language
need not be used provided the detainee knows in substance why. A
person is validly arrested under Section 11 (1) of the 1978 Act if he
is informed that he is being arrested under this provision as a
suspected terrorist (in re McElduff [1972] N.I. 1 and McKee v. Chief
Constable, loc. cit.)

3. Remedies

41. The main remedies available to persons detained under the 1978
Act are an action for a writ of habeas corpus and a civil action
claiming damages for false imprisonment (see, mutatis mutandis, Eur.
Court H.R., Brogan judgment of 29 November 1988 to be published as
Series A no. 145-B, paras. 39-41). In either case the court will
examine the lawfulness of the arrest and detention. Review, in the
case of arrest under Section 11 (1), will encompass procedural
questions such as whether the arrested person has been properly
informed of the true grounds for his arrest (Christie v. Leachinsky,
loc. cit.). It will also encompass whether the conditions for arrest
under Section 11 (1) have been complied with. As noted above, a court
will not enquire into the reasonableness of the suspicion grounding
the arrest but rather whether the suspicion of the arresting officer
is an honest one (see McKee v. Chief Constable, loc. cit.)

III. OPINION OF THE COMMISSION

A. Points at issue

42. The following are the principal points at issue in the case:

Article 5 (Art. 5) of the Convention

– Whether the applicants’ arrest and detention were justified
under Article 5 para. 1 (Art. 5-1),

– Whether the applicants were informed promptly of the reasons
for their arrest and of any charge against them as required
by Article 5 para. 2 (Art. 5-2),

– Whether the applicants were able to challenge the lawfulness
of their detention before a court as required by Article 5
para. 4 (Art. 5-4),

– Whether the applicants had an enforceable right to
compensation as required by Article 5 para. 5 (Art. 5-5).

Article 13 (Art. 13) of the Convention

– Whether the applicants had an effective remedy with regard to
their Convention complaints as required by Article 13 (Art. 13).

B. General considerations

43. The Commission recalls that the Convention organs are not
called upon to examine in abstracto the compatibility of legislation
or of a particular legislative provision with the Convention (see, for
example, Eur. Court H.R., Ashingdane judgment of 28 May 1985, Series A
no. 93, p. 25, para. 59). The Commission’s task is rather to examine
the circumstances and manner in which the law was applied in the
particular circumstances of the case.

44. The applicants were arrested under emergency legislation
which was adopted to deal with terrorist activities in Northern
Ireland. Both the Commission and the Court have taken note of the
growth of terrorism in modern society and have stressed the need for a
proper balance to be struck between the defence of the institutions of
democracy in the common interest and the protection of individual
rights (see Eur. Court H.R., Klass and Others judgment of 6 September
1978, Series A no. 28, pp.23 and 27-28, paras. 48-49 and 59; also
Brogan and Others judgment of 29 November 1988, to be published in
Series A no. 145-B, para. 48).

45. Finally, in this context, the Commission recalls that the
respondent Government withdrew on 22 August 1984 a notice of
derogation under Article 15 (Art. 15) of the Convention which had been lodged
because of the existence of an emergency situation in Northern Ireland
(see Brogan judgment, loc. cit., para. 48). The respondent
Government have not claimed that the arrest and detention of the
applicants under Section 11 of the Northern Ireland (Emergency Provisions) Act
1978 is covered by Article 15 (Art. 15) of the Convention. The examination of
the case must, therefore, proceed on the basis that the Articles of the
Convention which have been invoked in the present case are fully applicable.
However, this does not preclude the Commission from examining the applicants’
complaints against the background of the terrorist campaign in Northern Ireland
and the particular problems confronting the security forces in bringing those
responsible for terrorist acts to justice and making its own assessment of
whether the balance struck is a correct one under the Convention (see Brogan
and Others judgment, loc. cit., para. 48; also Comm. Report 14.5.87, p. 16,
paras. 80-86).

C. Article 5 para. 1 (Art. 5-1) of the Convention

46. The applicants allege a breach of Article 5 para. 1 (Art. 5-1) of the
Convention which, in so far as relevant, provides:

“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;”

47. It is not in dispute between the parties that the applicants’
arrest and detention were “in accordance with a procedure prescribed
by law” and “lawful” under Northern Ireland law.

48. The applicants submit that the purpose of the arrest was not
to bring them before the competent authority as required by this
provision. They maintain that Section 11 (1) of the 1978 Act confers
a general power of arrest for questioning which need not be associated
with the institution of criminal proceedings.

49. The Government, on the other hand, contend that the applicants
were arrested with a view to being brought before a court if the
police investigation confirmed the suspicions against them and if
sufficient admissible and usable evidence was available to prefer
charges against them.

50. The Commission notes that Article 5 para. 1 (c) (Art. 5-1-c) requires
that the purpose of the arrest and detention should be to bring the person
concerned before the competent legal authority. However, the fact that the
applicants were neither charged nor brought before a court does not necessarily
mean that the purpose of their arrest and detention was not in accordance with
Article 5 para. 1 (c) (Art. 5-1-c). This provision does not presuppose that
the police should have obtained sufficient evidence to bring charges either at
the point of arrest or while the applicants were 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. As in
the Brogan case there is no reason to believe that in the present case the
police investigation was not in good faith or that the detention of the
applicants was not intended to further that investigation by way of confirming
or dispelling the suspicions which grounded their arrests (see Brogan and
Others judgment, loc. cit., para. 53).
51. The Commission is therefore satisfied that if the suspicion
against the applicants had been confirmed, charges would have been
preferred against them and they would have been brought before the
competent legal authority. Their arrest and detention must therefore
be taken to have been effected for the purpose set out in Article 5
para. 1 (c) (Art. 5-1-c).

52. The applicants further complain that they were not arrested
and detained on “reasonable suspicion” of having committed an offence as
required by Article 5 para. 1 (c) (Art. 5-1-c). They point out that Section 11
(1) of the 1978 Act only requires mere “suspicion” of being a terrorist as
opposed to “reasonable suspicion”.

53. They claim that if there had actually existed a “reasonable
suspicion” they would have been detained under Section 12 of the
Prevention of Terrorism (Temporary Provisions) Act 1984 which would
have enabled the police to detain them for up to seven days.

54. The Government submit that notwithstanding the terms of
Section 11 (1) of the 1978 Act, there genuinely existed a “reasonable
suspicion” in the circumstances of the case. They recall, in
particular, that the first and second applicants had previously been
convicted of offences connected with terrorism. The Government are
unable to provide more specific background information about the
nature and strength of the suspicions underlying the arrests for
security reasons (see para. 29 above).

55. The Commission notes that the applicants do not contest that
they were arrested and detained in connection with an “offence”. In
any event the Commission and the Court have found that arrest on
suspicion of “terrorism” corresponds with the notion of an “offence” under
Article 5 para. 1 (c) (Art. 5-1-c) (see Brogan and Others judgment, loc. cit.,
para. 51 and Comm. Report loc. cit., para. 89).

56. However, Section 11 (1) of the 1978 Act only requires a
“suspicion” that a person is a terrorist, as opposed to a “reasonable
suspicion” as required by Article 5 para. 1 (c) (Art. 5-1-c).

57. The Government have contended that the Commission should not
be bound by the terms of Section 11 and should enquire whether
the suspicion was “reasonable” in the circumstances of the case.

58. The Commission interprets the provision of Article 5 para. 1 (c) (Art.
5-1-c) as requiring that the arresting or detaining authority shall base its
decision on elements which create a “reasonable suspicion” against the person
concerned. Such a “reasonable suspicion” must, in the Commission’s opinion, be
based on concrete facts of such strength as to convince an objective observer
that the person concerned may have committed the offence.

59. The Commission notes that whereas a “reasonable suspicion” is a
requirement for arrest and detention under United Kingdom law (see e.g.
Section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984 and
Sections 24 (4)(b) and 25 of the Police and Criminal Evidence Act 1984), the
weaker criterion of a mere “suspicion” has been deliberately chosen in Section
11 (1) of the 1978 Act. The purpose has clearly been to make it possible to
arrest and detain under that Act even in cases where the suspicion could not be
shown to have been a “reasonable” one. 60. The decision of the House of
Lords, in the case of McKee v. Chief Constable, makes it clear that the
“suspicion” in Section 11 (1) of the 1978 Act need not be a “reasonable”
suspicion. In the view of the House of Lords, as expressed by Lord Roskill, it
is sufficient that the suspicion is honestly held by the arresting constable.
The only relevant question to be answered is whether the constable in his own
mind suspected the person concerned and whether this was an honest opinion.
The Commission cannot find that this subjective test is sufficient to satisfy
the requirements of Article 5 para. 1 (c) (Art. 5-1-c) of the Convention.

61. Where the applicable domestic law does not require a reasonable
suspicion as the basis for an arrest, it is nevertheless conceivable that in
some cases an arrest is in fact based on a reasonable suspicion. However, in
the present case the Government have not provided any information which would
allow the Commission to conclude that the suspicions against the applicants at
the time of their arrest were “reasonable” within the meaning of Article 5
para. 1 (c) (Art. 5-1-c) of the Convention or that their arrest was based on
anything more than the “honestly held suspicion” which was required under
Northern Ireland law.

Conclusion

62. The Commission concludes, by 7 votes to 5, that the applicants’ arrest
and detention were not justified under Article 5 para. 1 (c) (Art. 5-1-c) and
that consequently there has been a breach of Article 5 para. 1 (Art. 5-1) of
the Convention.

D. Article 5 para. 2 (Art. 5-2) of the Convention

63. Article 5 para. 2 (Art. 5-2) reads as follows:

“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.”

64. The applicants submit that they were not informed promptly of
the reasons for their arrest and detention. They complain that they
ought to have been told of the exact nature of the offences for which
they were arrested. In particular, they maintain that Article 5 para. 2 (Art.
5-2) is not complied with where an accused is left to infer from the police
interrogation the reasons for his arrest.

65. The Government contend, on the other hand, that Article 5
para. 2 (Art. 5-2) was satisfied since the applicants were informed in general
terms of the reasons for their arrest. Moreover, following their
arrest they were questioned about the specific activities of which
they were suspected.
66. The Commission considers that Article 5 para. 2 (Art. 5-2) of the
Convention contains the elementary safeguard that a detainee should
know why he is being arrested and deprived of his liberty. It is also
an important purpose of the provision to enable the detainee to judge
the lawfulness of the measure and take steps to challenge it, if he so
desires, under Article 5 para. 4 (Art. 5-4) of the Convention. In addition, it
is only by informing a person of the reasons for his arrest that he is
enabled to admit or deny the charge against him (see Comm. Report
18.3.81, McVeigh, O’Neill and Evans v. the United Kingdom, D.R. 25
p. 15 at 45, para. 208).

67. At the time of their arrest the applicants were informed
that they were being arrested under Section 11 of the 1978 Act as
suspected terrorists. They were not given any specific information at
this stage as to the nature of the suspicions against them, namely
that they were suspected of intelligence gathering and courier work
for the Provisional IRA or, in the case of Hartley, of involvement in
a kidnapping incident. It is true that some hours later they were
questioned about their involvement in particular activities but they
were not even then given any precise information about the suspicions
against them. It was left to the applicants to deduce the specific
reasons for their arrest from the questions asked.

68. In the Commission’s view, given the elementary nature of the
safeguard, Article 5 para. 2 (Art. 5-2) places a direct burden on the arresting
authorities to provide a detainee with adequate information as to the
reasons for his arrest at the time of the arrest or as soon as is
practicable thereafter. In the present case the Commission considers
that the applicants were not given such reasons at the relevant time.

Conclusion

69. The Commission concludes, by 7 votes to 5, that the
applicants were not informed promptly of the reasons for their arrest
and that there has been a violation of Article 5 para. 2 of the
Convention.

E. Article 5 para. 4 of the Convention

70. The applicants submit that since the Convention has not been
incorporated into United Kingdom law, a Northern Ireland court could
not examine the substantive basis for their arrest and detention.
They therefore contend that they were unable to challenge the
lawfulness of their detention within the meaning of Article 5 para. 4
(Art. 5-4) of the Convention.

71. Article 5 para. 4 (Art. 5-4) provides as follows:

“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.”

72. The Government maintain that the courts, in an action for
habeas corpus, can examine not only the procedural legality of the
detention but also whether the person was arrested as a suspected
terrorist and whether the suspicion was a genuine one.

73. The Commission recalls that the right to judicial control of
the lawfulness of detention constitutes an important safeguard against
an arbitrary and unlawful deprivation of liberty by requiring a speedy
determination of the lawfulness of detention. However, where a
detained person is released before such a speedy determination could
take place this provision becomes devoid of purpose and thus
inapplicable (see e.g. No. 7376/76, Dec. 7.10.76 D.R. 7 p. 124; No.
9174/80, Comm. Report 11.10.83, D.R. 40 p. 59, para. 106).

74. In the present case the applicants were released after
approximately 44 hours in the case of Mr. Fox and Ms. Campbell, and
approximately 30 hours in the case of Mr. Hartley. Moreover the first
two applicants initiated proceedings for habeas corpus but were
released before their applications could be heard by a judge. Against
this background, where the applicants were released before an
effective judicial control of their detention could take place, there
can be no violation of Article 5 para. 4 (Art. 5-4).

Conclusion

75. The Commission concludes, by 9 votes to 3, that there
has been no violation of Article 5 para. 4 (Art. 5-4) of the Convention.

F. Article 5 para. 5 (Art. 5-5) of the Convention

76. The applicants submit that they have no enforceable right to
compensation under Northern Ireland law. The Government contend that
no enforceable right to compensation arises under this provision since
the applicants were lawfully arrested and detained under Northern
Ireland law.

77. Article 5 para. 5 (Art. 5-5) provides as follows:

“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.”

78. The Commission notes that an enforceable right to
compensation only arises when the arrest and detention was in breach
of another provision of Article 5 (Art. 5) (see Brogan and Others judgment,
loc. cit., paras. 66 and 67; also Comm. Report, loc. cit., paras.
115-119).

79. The Commission recalls that it has found the applicants’
arrest and detention to have been effected in violation of Article 5 paras. 1
and 2 (Art. 5-1, 5-2) of the Convention. Moreover it is not disputed by the
Government that it would not be open to the applicants to seek compensation
before the Northern Ireland courts on the grounds that their arrest and
detention were in breach of these provisions. It follows that the applicants
have no enforceable right to compensation as required by Article 5 para. 5
(Art. 5-5) of the Convention.

Conclusion

80. The Commission concludes, by 7 votes to 5, that there has
been a violation of Article 5 para. 5 (Art. 5-5) of the Convention.

G. Article 13 (Art. 13) of the Convention

81. This provision 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.”

82. The applicants complain that they have no effective remedy
under Northern Ireland law in respect of their complaints under
Article 5 paras. 1 and 2 (Art. 5-1, 5-2) of the Convention.

83. However, in view of the Commission’s finding that there has been a
breach of Article 5 para. 5 (Art. 5-5) on the grounds that the applicants have
no enforceable right to compensation, the Commission does not consider it
necessary to examine this complaint.

Conclusion

84. The Commission concludes, by a unanimous vote, that no
separate issue arises under Article 13 (Art. 13) of the Convention.

H. Recapitulation

85. The Commission concludes

– by 7 votes to 5, that the applicants’ arrest and detention were not
justified under Article 5 para. 1 (c) (Art. 5-1-c) and that consequently there
has been a breach of Article 5 para. 1 (Art. 5-1) of the Convention (para. 62);

– by 7 votes to 5, that the applicants were not informed
promptly of the reasons for their arrest and that there has been a
violation of Article 5 para. 2 (Art. 5-2) of the Convention (para. 69);

– by 9 votes to 3, that there has been no violation of Article
5 para. 4 (Art. 5-4) of the Convention (para. 75);

– by 7 votes to 5, that there has been a violation of Article
5 para. 5 (Art. 5-5) of the Convention (para. 80);

– by a unanimous vote, that no separate issue arises under
Article 13 (Art. 13) of the Convention (para. 84).

Secretary to the Commission Acting President of the Commission

(H. C. KRÜGER) (J.A. FROWEIN)

Dissenting Opinion of Mr. Busuttil, Mr. Gözübüyük
Sir Basil Hall and Mr. Martinez

1. We do not share the opinion of the majority of the Commission
that there have been violations of Article 5 of the Convention in
these cases.

2. The majority of the Commission have concluded that the arrest
of the applicants has not been justified under Article 5 para. 1 (c)
by reason of the fact that Section 11 (1) of the Northern Ireland
(Emergency Provisions) Act 1978, under the provisions of which they
were arrested, required only a “suspicion” that they were terrorists
(as defined by that Act) and not a “reasonable suspicion”.

3. While Section 11 (1) of the 1978 Act enables an arrest to take
place only on suspicion, as opposed to reasonable suspicion as is
required by Article 5 para. 1 (c), it cannot be assumed that an arrest
under that section has not been based on reasonable suspicion. The
compatibility of Section 11 of the 1978 Act is not to be examined in
abstracto. The question is rather whether in fact the applicants were
arrested for the purpose of bringing them before a competent legal
authority on reasonable suspicion of having committed an offence.

4. The applicants do not contest that they were arrested on
suspicion of having committed an offence. Furthermore the Commission
and the Court have found that arrest on suspicion of “terrorism”
corresponds with the notion of an offence for the purposes of
Article 5 para. 1 (c) (see Brogan and others judgment of 29 November
1988, para. 51 and the Commission’s Report in that case, para. 89).

5. The Government have stated that the first and second
applicants were suspected of intelligence gathering and courier work
for the Provisional IRA. Furthermore the first applicant had been
convicted of explosives offences connected with terrorism in 1979 and
sentenced to twelve years imprisonment. The second applicant had also
been convicted of explosives offences for which she had received a
suspended sentence. The Government further stated that they were in
possession of information connecting the third applicant (who had no
criminal record) with a kidnapping incident; but they were unable for
security reasons to be more specific.

6. We recognised that against the background of organised
terrorism in Northern Ireland there is a particular need to protect
sources of information which may preclude the giving of full
information as to the grounds on which a suspicion of terrorism is
held. None the less there must be sufficient information to lead to
the conclusion that the suspicion held was reasonable. The
information provided is such that we see no reason to doubt that there
was a “reasonable suspicion” of all three applicants within the
meaning of Article 5 para. 1 (c) of the Convention.

7. We agree with the view of the majority of the Commission that
if the suspicion against the applicants had been confirmed they would
have been brought before the competent legal authority.

8. The applicants contend that Article 5 para. 2 of the
Convention requires that they should have been told of the exact
nature of the offences for which they were arrested. The applicants
were informed when formally arrested that they were being arrested
under Section 11 (1) of the 1978 Act and that they were suspected of
being terrorists. During their detention they were asked about
specific acts and activities. In our opinion they were informed
promptly of the reasons for their arrest, and there is no violation of
Article 5 para. 2 of the Convention.

9. We agree that there is no violation of Article 5 para. 4.

10. Since in our view there is no contravention of any provision
of Article 5 there is no violation of Article 5 para. 5.

Dissenting Opinion of Mr. Danelius joined by Mr. Jörundsson
(in regard to Article 5 para. 4 of the Convention)

According to the wording of Article 5 para. 4 of the
Convention, the right guaranteed by that paragraph shall be enjoyed by
“everyone who is deprived of his liberty by arrest or detention”.
This wording makes no exception for short periods of detention, and it
would in my view reduce the value of the paragraph considerably if it
was considered that no court remedy was necessary in cases where the
detention does not exceed a certain number of days or hours.

In this respect it is important to note that the existence of
a court remedy as required by Article 5 para. 4 does not only make it
possible for an unlawfully detained person to obtain his release, but
it can also be presumed to give the arresting authority a particular
incentive to act lawfully. Moreover, when a person is arrested, it is
often not possible to foresee how long the detention will last. In
the present case, the applicant’s detention could under the applicable
law be maintained for 72 hours, which is not an insignificant period.
It would not seem satisfactory if a person arrested in such
circumstances could not derive any right from Article 5 para. 4 if it
subsequently appears that he is in fact released earlier than could be
foreseen at the time of the arrest.

I therefore consider that the applicants were entitled under
Article 5 para. 4 to take proceedings in order to obtain a court
review of the lawfulness of their detention. As regards the scope of
that court review we refer to the Brogan case which concerned
detention under Section 12 of the Prevention of Terrorism (Temporary
Provisions) Act 1984. In that case the European Court of Human Rgihts
found as follows:

“According to the Court’s established case-law, the notion of
‘lawfulness’ under paragraph 4 has the same meaning as in
paragraph 1 (see notably the Ashingdane judgment of 28 May 1985,
Series A no. 93, p. 23, para. 52); and whether an ‘arrest’ or
‘detention’ can be regarded as ‘lawful’ has to be determined in the
light not only of domestic law, but also of the text of the
Convention, the general principles embodied therein and the aim of the
restrictions permitted by Article 5 para. 1 (see notably the
above-mentioned Weeks judgment, Series A no. 114, p. 28, para. 57).
By virtue of paragraph 4 of Article 5, arrested or detained persons
are entitled to a review bearing upon the procedural and substantive
conditions which are essential for the ‘lawfulness’, in the sense of
the Convention, of their deprivation of liberty. This means that, in
the instant case, the applicants should have had available to them a
remedy allowing the competent court to examine not only compliance
with the procedural requirements set out in section 12 of the 1984 Act
but also the reasonableness of the suspicion grounding the arrest and
the legitimacy of the purpose pursued by the arrest and the ensuing
detention.” (Brogan and others judgment, para. 65)

In the present case, it was open to the applicants to seek the
remedy of habeas corpus to challenge their detention. In such
proceedings a court could examine whether their detention was lawful
under United Kingdom law which meant that its examination of the
reasons for arrest was limited to whether the arresting police officer
had an honest suspicion that the persons concerned were terrorists.
However, the court could not, as required by Article 5 para. 4,
examine whether the detention was “lawful” within the meaning of the
Convention, i.e. whether there existed a reasonable suspicion that the
applicants had committed an offence. It follows that the applicants
were unable to challenge the “lawfulness” of their detention before a
court within the meaning of Article 5 para. 4 of the Convention.

I therefore conclude that there has been a violation of
Article 5 para. 4 of the Convention in the present case.

Partly Concurring and Partly Dissenting Opinion of Mrs. Liddy

I agree with the conclusion of the majority that the
requirement of “reasonable suspicion” contained in Article 5
para. 1 (c) has not been met in this case.

The approach of both the Court and the Commission in the case
of Brogan and Others was to examine first the issue of reasonable
suspicion and only then – and in the light of the assessment of the
first issue – whether the purpose of the arrest was to
bring the individual concerned before the competent legal authority.
When addressing the latter issue, both the Court and the Commission
referred back to the extent to which it had already been established
that the arrests were grounded on reasonable “concrete” suspicions
(Judgment of 29 November 1988, paras. 51 and 53; also Comm. Report
14.5.1987, paras. 91 and 95). This demonstrates the inter-
relationship between these two requirements of Article 5 para. 1 (c).

In the present case, unlike the case of Brogan and Others, the
requirement of reasonable suspicion has not been met. However, the views
expressed at paragraphs 50 and 51 of the Report do not take account of
any inter-relationship between the reasonableness of suspicions that
an offence has been committed and the purpose of an arrest.

Because of the need to interpret strictly the exhaustive list
of restrictions in paragraph 1 of Article 5 (cf. Bouamar Judgment of
29.2.1988, para. 43 and Ciulla Judgment of 22.2.1989, para. 41) it
suffices in the present case to conclude for the reasons given at
paragraphs 58 to 61 of the Report that there has been a violation of
Article 5 para. 1.

With regard to Article 5 para. 4, I share the opinion of
Mr. Danelius.

A P P E N D I X I

HISTORY OF THE PROCEEDINGS

Date Item
_________________________________________________________________________

16 June 1986 )
(Fox & Campbell) )
) Introduction of the applications
2 September 1986 )
(Hartley) )

19 June 1986 )
(Fox & Campbell) )
) Registration of the applications
8 September 1986 )
(Hartley) )

Examination of
Admissibility

11 December 1986 Commission’s decisions to invite the
Government to submit observations on
the admissibility and merits of the
applications and to join the applications

14 May 1987 Government’s observations

10 September 1987 Applicants’ observations in reply

9 December 1987 Decision to invite the parties to a
joint oral hearing

10 May 1988 Decision to declare the applications
admissible.

Examination of the
Merits

10 May 1988 Commission’s deliberations on the
merits.

29 November 1988 Judgment of the European Court of
Human Rights in the case of “Brogan
& Others”

11 April 1989 Commission’s deliberations on the merits
and final votes

4 May 1989 Adoption of the Report.