Bernard Fox, Maire Campbell, Samuel Hartley V. UK

In the case of Fox, Campbell and Hartley*,

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* Note by the Registrar: The case is numbered 18/1989/178/234-236.
The first number is the case’s position on the list of cases referred to
the Court in the relevant year (second number). The last two numbers
indicate the case’s position on the list of cases referred to the
Court since its creation and on the list of corresponding originating
applications to the Commission.
_______________

The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:

Mr R. Ryssdal, President,
Mr J. Cremona,
Mr J. Pinheiro Farinha,
Sir Vincent Evans,
Mr R. Bernhardt,
Mr S.K. Martens,
Mrs E. Palm,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,

Having deliberated in private on 29 March and 26 June 1990,

Delivers the following judgment, which was adopted on the
last-mentioned date:

PROCEDURE

1. The case was brought before the Court by the European
Commission of Human Rights (“the Commission”) on 13 July 1989, within
the three-month period laid down by Article 32 § 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in three
applications (nos. 12244/86, 12245/86 and 12383/86) against the United
Kingdom of Great Britain and Northern Ireland lodged with the
Commission under Article 25 (art. 25) of the Convention on
16 June 1986 by Mr Bernard Fox and Ms Maire Campbell and
on 2 September 1986 by Mr Samuel Hartley, who are all three Irish
citizens.

The Commission’s request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby the United Kingdom recognised
the compulsory jurisdiction of the Court (Article 46) (art. 46). The object
of the request was to obtain a decision from the Court as to whether
the facts of the case disclosed a breach by the respondent State of
its obligations under Articles 5 and 13 (art. 5, art. 13) of the
Convention.

2. In response to the enquiry made in accordance with
Rule 33 § 3 (d) of the Rules of Court, the applicants stated that they
wished to take part in the proceedings and designated the lawyer who
would represent them (Rule 30).

3. The Chamber to be constituted included ex officio
Sir Vincent Evans, the elected judge of British nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 § 3 (b)). On 23 August 1989, in the
presence of the Registrar, the President drew by lot the names of the
other five members, namely Mr J. Cremona, Mr J. Pinheiro Farinha,
Mr R. Macdonald, Mr S.K. Martens and Mrs E. Palm (Article 43 in fine
of the Convention and Rule 21 § 4) (art. 43). Subsequently, Mr R. Bernhardt,
substitute judge, replaced Mr Macdonald, who was unable to take part
in the consideration of the case (Rule 24 § 1).

4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 § 5) and, through the Registrar, consulted the Agent of the
United Kingdom Government (“the Government”), the Delegate of the
Commission and the representative of the applicants on the need for a
written procedure (Rule 37 § 1). Thereafter, in accordance with the
orders and directions of the President, the registry received the
Government’s memorial on 19 December 1989, the applicants’ memorial on
10 January 1990, the appendices to that memorial two days later and
the applicants’ claims for just satisfaction under Article 50
(art. 50) of the Convention on 9 March 1990.

By letter received on 8 February 1990 the Secretary to the Commission
advised the Registrar that the Delegate did not propose to file a
memorial in reply.

5. After consulting, through the Registrar, those who would be
appearing before the Court, the President directed on 21 December 1989
that the oral proceedings should open on 26 March 1990 (Rule 38).

6. The hearing took place in public in the Human Rights
Buildings, Strasbourg, on the appointed day. The Court had held a
preparatory meeting beforehand.

There appeared before the Court.

(a) for the Government

Mr M. Wood, Legal Counsellor,
Foreign and Commonwealth Office, Agent,
Mr B. Kerr, Q.C.,
Mr N. Bratza, Q.C., Counsel;

(b) for the Commission

Mr C. Rozakis, Delegate;

(c) for the applicants

Mr R. Weir, Q.C.,
Mr S. Treacy, Barrister-at-Law, Counsel,
Mr P. Madden, Solicitor.

The Court heard addresses by Mr Kerr for the Government, by Mr Rozakis
for the Commission and by Mr Weir for the applicants, as well as their
replies to its questions.

7. On the occasion of the hearing and on various dates thereafter
a number of documents were filed by the applicants and the Government
relating to the costs and expenses claimed under Article 50 (art. 50)
of the Convention.

AS TO THE FACTS

I. Particular circumstances of the case

A. As regards Mr Fox and Mrs Campbell

8. The first and second applicants, Mr Bernard Fox and
Ms Maire Campbell, are husband and wife but separated. Both reside in
Belfast, Northern Ireland.

9. On 5 February 1986 they were stopped by the police in Belfast
and brought to Woodbourne Royal Ulster Constabulary (“RUC”) 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 3.40 p.m., they were formally arrested under
section 11 (1) of the Northern Ireland (Emergency Provisions) Act 1978
(“the 1978 Act”; see paragraph 16 below). They were informed that
they were being arrested under this section and that this was because
the arresting officer suspected them of being terrorists. They were
also told that they could be detained for up to 72 hours. They were
taken to Castlereagh Police Office, where they were separately
interviewed by the police on the same day between 8.15 p.m.
and 10.00 p.m.

10. During their detention Mr Fox and Ms Campbell were asked about
their suspected involvement that day in intelligence gathering and
courier work for the Provisional Irish Republican Army (“Provisional
IRA”). They were also questioned about their suspected membership of
this organisation. According to the Government, the information
underlying the suspicion against them was already known to the police
when they stopped their car.

No charges were brought against either applicant. The first applicant
was released at 11.40 a.m. on 7 February 1986 and the second applicant
five minutes later. 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.

11. On being arrested both Mr Fox and Ms Campbell were shown the
notice drawn up for persons held in police custody which explained
their rights. They were not brought before a judge or given any
opportunity to apply for release on bail. On 6 February they both
initiated proceedings for habeas corpus but were released before the
applications came on for hearing before a judge.

12. Mr Fox had been convicted in 1979 of several explosives
offences, for which he received concurrent sentences of 12 years’
imprisonment, and of belonging to the IRA, for which he received a
concurrent sentence of 5 years. Ms Campbell received an 18 months’
suspended sentence in 1979 after being convicted of involvement in
explosives offences.

B. As regards Mr Hartley

13. The third applicant, Mr Samuel Hartley, resides in Waterfoot,
County Antrim, Northern Ireland. On 18 August 1986 he was arrested at
his home, in his parents’ presence, at 7.55 a.m. He was informed at
the time of his arrest that he was being arrested under section 11 (1)
of the 1978 Act as he was suspected of being a terrorist. He was
taken to Antrim police station where, on arrival, he was shown a copy
of the notice for persons held in police custody. He was interviewed
there by the police between 11.05 a.m. and 12.15 p.m.

14. Mr Hartley 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 3 years’ imprisonment. The Government said
at the Commission hearing that their record of the first interview
with Mr Hartley showed that he was questioned about terrorist
activities in a specific small, geographical area, and about his
involvement with the Provisional IRA. The record is not more detailed
than that, but the area in question was where the kidnapping took
place. The applicant Hartley denied any involvement in the kidnapping
incident but he has not contradicted the Government’s assertion that
he was asked about it.

No charges were brought against him. He was released on
19 August 1986 at 2.10 p.m. after 30 hours and 15 minutes in
detention. He brought no proceedings in connection with his arrest or
detention.

II. Relevant domestic law and practice

A. Introduction

15. For the past 20 years the population of Northern Ireland,
which totals 1.5 million people, has been subjected to a campaign of
terrorism (see the Ireland v. the United Kingdom judgment of
18 January 1978, Series A no. 25, pp. 9-31, §§ 11-77, and the Brogan
and Others judgment of 29 November 1988, Series A no. 145-B, p. 21, § 25).
More than 2,750 people, including almost 800 members of the security
forces, have been killed and 31,900 more have been maimed or injured.
The campaign of terror has extended to the rest of the United Kingdom
and to the mainland of Europe.

Special legislation has been introduced in an attempt to deal with
this situation in Northern Ireland. Thus, the 1978 Act and its
predecessors, the Northern Ireland (Emergency Provisions) Act 1973
(“the 1973 Act”) and the Northern Ireland (Emergency Provisions)
(Amendment) Act 1975 (“the 1975 Act”), were enacted to enable the
security forces to deal more effectively with the threat of terrorism.

B. Section 11 of the 1978 Act

16. Section 11 of the 1978 Act conferred, inter alia, a power of
arrest. The relevant parts of section 11, which was repealed in 1987,
provided as follows:

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

3. 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) gave a power to enter and search premises where a
suspected terrorist was or was suspected of being. Under
sub-section (4) persons arrested under section 11 could be
photographed and their finger prints and palm prints taken by a
constable.

17. 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
political ends and includes any use of violence for the purpose of
putting the public or any section of the public in fear”.

Under section 21 of, and Schedule 2 to, the 1978 Act, certain
organisations – one of which is the IRA, the Provisional IRA
included – are proscribed organisations. It is an offence to belong
to or profess to belong to such an organisation, to solicit or incite
support for any such organisation, knowingly to make or receive any
contribution to it, to solicit or invite a person to become a member
or to carry out on its behalf orders or directions or requests by a
member of the organisation.

18. The powers of arrest and detention under section 11 of the
1978 Act were originally an integral part of the scheme of interim
custody introduced by the 1973 Act to replace internment (see the
Ireland v. the United Kingdom judgment previously cited, Series A
no. 25, pp. 38-39, § 88). By 1980 this scheme (as re-enacted in the
1975 and 1978 Acts) had been repealed with the exception of section 11
and the power was thereafter used as a free-standing power of arrest
and detention for up to 72 hours.

Since its enactment in 1973 the legislation conferring this power was
subject to periodic renewal by Parliament. Thus, under the 1978 Act
(section 33) the relevant provisions became renewable, and were
renewed, every six months until their repeal in 1987.

19. 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 (Command Paper, Cmnd. 9222). In his report
Sir George Baker made the following remarks:

“263. Generally I find it unhelpful in making recommendations in 1984
to go back further than 1973 but to understand the arrest and
detention sections of the [1978 Act] it is useful to note that
Regulation 10 of the Special Powers Act (Northern Ireland) 1922
provided:

‘Any Officer of the RUC 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 interrogation.’ (My emphasis).

This general power of arrest for questioning did not disappear
entirely when the Special Powers Act was repealed by Westminster. It
was re-worded and to some extent re-enacted in the [1978 Act] and PTA
[the Prevention of Terrorism (Temporary Provisions) Acts 1974 and
1976]. 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 RUC were expressly spelled out in
the Act linked of course to appropriate controls. That the police
have such a power under the PTA was accepted by Lawton LJ in the
English Court of Appeal (Criminal Division) in R. v. Houghton (1987)
Criminal Appeal Reports 197.

264. In contrast to the provisions of the [1978 Act] which deal with
the trial of terrorist offences and do not require derogation from
Article 6 (art. 6) of the European Convention, those which deal with
the powers of arrest appear to contravene the minimum requirements of
Article 5 (art. 5). Consequently the United Kingdom entered a notice
of derogation under Article 15 (art. 15). Article 5 § 1 (c)
(art. 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 [of the 1978 Act] requires neither, nor
is an offence necessary. … Any action which can be taken to avoid
the United Kingdom having to rely on the notice of derogation to
excuse breaches of the Convention is desirable.

Suspicion or reasonable suspicion

280. Only a lawyer or a legislator would suspect (or reasonably
suspect?) a difference. But there is one because, say the judges,
with whom I agree, Parliament by using the two phrases must have so
intended. The test for Section 11 is a subjective one: did the
arrestor suspect? If his suspicion is an honest genuine suspicion that
the person being arrested is a terrorist, a court cannot enquire
further into the exercise of the power. But where the requirement is
reasonable suspicion it is for the court to judge the reasonableness
of the suspicion. It is an objective standard. The facts which raise
the suspicion may be looked at by the court to see if they are capable
of constituting reasonable cause. Reasonable suspicion is itself a
lower standard than evidence necessary to prove a prima facie case.
Hearsay may justify reasonable suspicion but may be insufficient for a
charge.

281. The only danger that I can foresee if the requirement of
reasonableness is added to suspicion is that the facts raising the
suspicion might have come from a confidential source which could not
be disclosed in court in a civil action for wrongful arrest. Against
this there is the requirement of reasonable suspicion in Section 12
PTA which the RUC have used more extensively in 1982 and 1983. The
figures for arrests are:

Under S.11 Under S.12 PTA
[of the 1978 Act]

1982 1,902 828
1983 (to 1 October) 964 883

… The criterion of whether to use one in preference to the other
in any given case has been the length of time the person to be
arrested may be held.

283. No evidence has been given to me to suggest that suspicion as
against reasonable suspicion has been a factor in a decision to use
Section 11 in preference to Section 12 and indeed some senior police
officers have told me it would not influence them. I also understand
that the police are now trained to treat arrest for terrorist offences
as requiring similar suspicion as for all other offences. I therefore
conclude that reasonable suspicion should be required when a constable
arrests without warrant and this should be included in the new arrest
powers which I propose in substitution for Section 11(1) and in
Section 13(1).

285. There is no need to name a specific offence when arresting under
section 11 or to inform the suspect of the grounds on which he is
being arrested as would be required by the common law, which is that
‘a citizen is entitled to know on what charge or suspicion of what
crime he is seized’. It is sufficient to say that the arrest is under
the section on the grounds that he is suspected of being a terrorist.
…”

20. The exercise of the power of arrest in section 11 (1) has been
considered by the House of Lords in the case of McKee v. Chief
Constable for Northern Ireland [1985] 1 All England Law Reports 1-4.
In that case the House of Lords held that the proper exercise of the
power of arrest in section 11 depended 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 only issues were whether the constable had a suspicion and whether
it was honestly held.

21. In addition, an arrest without warrant is subject to the
common law rules laid down by the House of Lords in the case of
Christie v. Leachinsky [1947] Appeal Cases 573 at 587 and 600. The
person arrested must in ordinary circumstances be informed of the true
grounds for his arrest, in a language which he understands, 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. 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] Northern
Ireland Reports 1 and McKee v. Chief Constable, loc. cit.).

22. Section 11 (1) of the 1978 Act was replaced by section 6 of
the Northern Ireland (Emergency Provisions) Act 1987, which came into
effect on 15 June 1987, subsequent to the facts of the present case.
This new provision 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 (now section 14 of the Prevention of Terrorism (Temporary
Provisions) Act 1989 – see the Brogan and Others judgment previously
cited, Series A no. 145-B, p. 22, § 30). These latter provisions
expressly limit powers of arrest without a warrant to cases in which
there are “reasonable grounds” for suspicion.

C. Remedies

23. A person who believed that his arrest or detention under
section 11 was unlawful had two remedies, namely (a) an action for
writ of habeas corpus, whereby a detained person may make an urgent
application for his release from custody, and (b) a civil action
claiming damages for false imprisonment (see the Brogan and Others
judgment previously cited, Series A no. 145-B, p. 25, §§ 39-41). In
either action the review of lawfulness would have encompassed
procedural questions such as whether the arrested person has been
properly informed of the true grounds for his arrest (Christie
v. Leachinsky, loc. cit.); and whether the conditions for arrest under
section 11 (1) had been complied with. As noted above, a court would
not have enquired into the reasonableness of the suspicion grounding
the arrest but rather whether the suspicion of the arresting officer
was an honest one (McKee v. Chief Constable, loc. cit.).

PROCEEDINGS BEFORE THE COMMISSION

24. Mr Fox and Ms Campbell lodged their applications
(nos. 12244/86 and 12245/86) with the Commission on 16 June 1986, and
Mr Hartley lodged his application (no. 12383/86) on 2 September 1986.
All three claimed that their arrest and detention were not justified
under Article 5 § 1 (art. 5-1) of the Convention and that there had
also been breaches of paragraphs 2, 4 and 5 of Article 5 (art. 5-2,
art. 5-4, art. 5-5). They further alleged that, contrary to
Article 13 (art. 13), they had no effective remedy before a national
authority in respect of their Convention complaints.

On 11 December 1986 the Commission ordered the joinder of the three
applications pursuant to Rule 29 of its Rules of Procedure, and
on 10 May 1988 it declared the case admissible.

25. In its report adopted on 4 May 1989 (Article 31) (art. 31)
the Commission expressed the opinion that in relation to each
applicant there had been violation of paragraphs 1, 2 and 5 of
Article 5 (art. 5-1, art. 5-2, art. 5-5) (by 7 votes to 5) but not
of paragraph 4 (art. 5-4) (by 9 votes to 3). It also concluded
(unanimously) that no separate issue arose under Article 13 (art. 13).

The full text of the Commission’s opinion and of the separate opinions
contained in the report is reproduced as an annex to this judgment.*

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* Note by the Registrar: For practical reasons this annex will
appear only with the printed version of the judgment (volume 182 of
Series A of the Publications of the Court), but a copy of the
Commission’s report may be obtained by anyone on request to the
Registrar.
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FINAL SUBMISSIONS TO THE COURT

26. At the public hearing on 26 March 1990 the Government
maintained in substance the concluding submission set out in their
memorial, whereby they requested the Court

“to decide and declare in respect of each of the three applicants:

(i) that the facts disclose no breach of paragraphs 1, 2, 4 or 5 of
Article 5 (art. 5-1, art. 5-2, art. 5-4, art. 5-5) of the Convention;

(ii) that the facts disclose no breach of Article 13 (art. 13) of the
Convention, alternatively that no separate issue arises under
Article 13 (art. 13) of the Convention”.

27. On the same occasion the applicants likewise maintained in
substance the submission made at the close of their memorial, whereby
they requested the Court

“to decide and declare in respect of each of the three applicants:

(i) that the facts disclose a breach of paragraphs 1, 2, 4 and 5 of
Article 5 (art. 5-1, art. 5-2, art. 5-4, art. 5-5) of the Convention;

(ii) that the facts disclose a breach of Article 13 (art. 13) of the
Convention”.

AS TO THE LAW

I. GENERAL APPROACH

28. The applicants’ complaints are directed against their arrest
and detention under criminal legislation enacted to deal with acts of
terrorism connected with the affairs of Northern Ireland.

Over the last twenty years, the campaign of terrorism waged in Northern
Ireland has taken a heavy toll, especially in terms of human life and
suffering (see paragraph 15 above). The Court has already recognised
the need, inherent in the Convention system, for a proper balance
between the defence of the institutions of democracy in the common
interest and the protection of individual rights (see the Brogan and
Others judgment of 29 November 1988, Series A no. 145-B, p. 27, § 48).
Accordingly, when examining these complaints the Court will, as it did
in the Brogan and Others judgment, take into account the special
nature of terrorist crime and the exigencies of dealing with it, as
far as is compatible with the applicable provisions of the Convention
in the light of their particular wording and its overall object and
purpose.

II. ALLEGED BREACH OF ARTICLE 5 § 1 (art. 5-1)

29. The applicants alleged a breach of Article 5 § 1 (art. 5-1)
of the Convention, which, in so far as relevant, provides:

“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 …;

…”

They did not dispute that their arrest was “lawful” under Northern
Ireland law for the purposes of this provision and, in particular, “in
accordance with a procedure prescribed by law”.

30. They did, however, argue that they had not been arrested and
detained on “reasonable” suspicion of having committed an offence.
Section 11 (1) of the 1978 Act, provided that “any constable may
arrest without warrant any person whom he suspects of being a
terrorist” (see paragraphs 9, 13 and 16 above). In their submission,
this section was itself in direct conflict with Article 5 § 1 (c)
(art. 5-1-c) in that it did not contain any requirement of
reasonableness. They further agreed with the Commission’s opinion
that their arrests had not been shown on the facts to have been based
on reasonable suspicion.

In addition, they maintained that the purpose of their arrest was not
to bring them before the “competent legal authority” but rather to
gather information without necessarily intending to charge them with a
criminal offence. Both the respondent Government and the Commission
rejected this contention.

31. For an arrest to be lawful under section 11 (1) of the
1978 Act, as construed by the House of Lords in the case of
McKee v. Chief Constable for Northern Ireland, the suspicion needed
only to be honestly held (see paragraph 20 above). In his report to
Parliament in 1984, the Right Honourable Sir George Baker highlighted
the fact that the test for section 11 was a “subjective one”. On the
other hand, where the requirement was “reasonable suspicion” he
considered that the test was “objective” and that it was “for the
court to judge the reasonableness of the suspicion”
(see paragraph 19 above).

Article 5 § 1 (c) (art. 5-1-c) speaks of a “reasonable suspicion”
rather than a genuine and bona fide suspicion. The Court’s task,
however, is not to review the impugned legislation in abstracto but to
examine its application in these particular cases.

32. The “reasonableness” of the suspicion on which an arrest must
be based forms an essential part of the safeguard against arbitrary
arrest and detention which is laid down in Article 5 § 1 (c)
(art. 5-1-c). The Court agrees with the Commission and the Government
that having a “reasonable suspicion” presupposes the existence of
facts or information which would satisfy an objective observer that
the person concerned may have committed the offence. What may be
regarded as “reasonable” will however depend upon all the
circumstances.

In this respect, terrorist crime falls into a special category.
Because of the attendant risk of loss of life and human suffering, the
police are obliged to act with utmost urgency in following up all
information, including information from secret sources. Further, the
police may frequently have to arrest a suspected terrorist on the
basis of information which is reliable but which cannot, without
putting in jeopardy the source of the information, be revealed to the
suspect or produced in court to support a charge.

As the Government pointed out, in view of the difficulties inherent in
the investigation and prosecution of terrorist-type offences in
Northern Ireland, the “reasonableness” of the suspicion justifying
such arrests cannot always be judged according to the same standards
as are applied in dealing with conventional crime. Nevertheless, the
exigencies of dealing with terrorist crime cannot justify stretching
the notion of “reasonableness” to the point where the essence of the
safeguard secured by Article 5 § 1 (c) (art. 5-1-c) is impaired
(see, mutatis mutandis, the Brogan and Others judgment previously
cited, Series A no. 145-B, pp. 32-33, § 59).

33. The majority of the Commission, with whom the applicants
agreed, were of the opinion that “the Government [had] 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 § 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” (see paragraph 61 of the Commission’s report).

The Government argued that they were unable to disclose the acutely
sensitive material on which the suspicion against the three applicants
was based because of the risk of disclosing the source of the material
and thereby placing in danger the lives and safety of others. In
support of their contention that there was nevertheless reasonable
suspicion, they pointed to the facts that the first two applicants had
previous convictions for serious acts of terrorism connected with the
Provisional IRA (see paragraph 12 above) and that all three applicants
were questioned during their detention about specific terrorist acts
of which they were suspected (see paragraphs 10 and 14 above). In the
Government’s submission these facts were sufficient to confirm that
the arresting officer had a bona fide or genuine suspicion and they
maintained that there was no difference in substance between a bona
fide or genuine suspicion and a reasonable suspicion. The Government
observed moreover that the applicants themselves did not contest that
they were arrested and detained in connection with acts of terrorism
(see paragraph 55 of the Commission’s report).

The Government also stated that, although they could not disclose the
information or identify the source of the information which led to the
arrest of the applicants, there did exist in the case of the first and
second applicants strong grounds for suggesting that at the time of
their arrest the applicants were engaged in intelligence gathering and
courier work for the Provisional IRA and that in the case of the third
applicant there was available to the police material connecting him
with the kidnapping attempt about which he was questioned.

34. Certainly Article 5 § 1 (c) (art. 5-1-c) of the Convention
should not be applied in such a manner as to put disproportionate
difficulties in the way of the police authorities of the Contracting
States in taking effective measures to counter organised terrorism
(see, mutatis mutandis, the Klass and Others judgment of
6 September 1978, Series A no. 28, pp. 27 and 30-31, §§ 58 and 68).
It follows that the Contracting States cannot be asked to establish
the reasonableness of the suspicion grounding the arrest of a
suspected terrorist by disclosing the confidential sources of
supporting information or even facts which would be susceptible of
indicating such sources or their identity.

Nevertheless the Court must be enabled to ascertain whether the
essence of the safeguard afforded by Article 5 § 1 (c) (art. 5-1-c)
has been secured. Consequently the respondent Government have to
furnish at least some facts or information capable of satisfying the
Court that the arrested person was reasonably suspected of having
committed the alleged offence. This is all the more necessary where,
as in the present case, the domestic law does not require reasonable
suspicion, but sets a lower threshold by merely requiring honest
suspicion.

35. The Court accepts that the arrest and detention of each of
the present applicants was based on a bona fide suspicion that he or
she was a terrorist, and that each of them, including Mr Hartley, was
questioned during his or her detention about specific terrorist acts
of which he or she was suspected.

The fact that Mr Fox and Ms Campbell both have previous convictions
for acts of terrorism connected with the IRA (see paragraph 12 above),
although it could reinforce a suspicion linking them to the commission
of terrorist-type offences, cannot form the sole basis of a suspicion
justifying their arrest in 1986, some seven years later.

The fact that all the applicants, during their detention, were
questioned about specific terrorist acts, does no more than confirm
that the arresting officers had a genuine suspicion that they had been
involved in those acts, but it cannot satisfy an objective observer
that the applicants may have committed these acts.

The aforementioned elements on their own are insufficient to support
the conclusion that there was “reasonable suspicion”. The Government
have not provided any further material on which the suspicion against
the applicants was based. Their explanations therefore do not meet
the minimum standard set by Article 5 § 1 (c) (art. 5-1-c) for
judging the reasonableness of a suspicion for the arrest of an
individual.

36. The Court accordingly holds that there has been a breach of
Article 5 § 1 (art. 5-1). This being so, it is not considered
necessary to go into the question of the purpose of the applicants’
arrests (see paragraph 30 above).

III. ALLEGED BREACH OF ARTICLE 5 § 2 (art. 5-2)

37. The applicants alleged a violation of Article 5 § 2
(art. 5-2), which reads:

“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.”

The Commission upheld this claim which was rejected by the Government.

38. In the applicants’ submission, Article 5 § 1 (c) (art. 5-1-c)
refers to the grounds justifying the arrest and these are what should
be communicated to detainees. They argued that suspected terrorism in
itself is not necessarily an offence justifying an arrest under
section 11. Accordingly, in breach of Article 5 § 2 (art. 5-2)
they were not given at the time of their arrest adequate and
understandable information of the substantive grounds for their
arrest. In particular, they maintained that the national authorities’
duty to “inform” the person is not complied with where, as in their
cases, the person is left to deduce from the subsequent police
interrogation the reasons for his or her arrest.

39. The Government submitted that the purpose of Article 5 § 2
(art. 5-2) is to enable an arrested person to judge the lawfulness of
the arrest and take steps to challenge it if he sees fit. They argued
that the information given need not be detailed and that it was enough
that the arrested person should be informed promptly of the legal
basis of his detention and of the “essential facts relevant under
(domestic law) for the determination of the lawfulness of his
detention”. Applying these principles to the facts of the present
case they contended that the requirements of Article 5 § 2 (art. 5-2)
were clearly met.

40. Paragraph 2 of Article 5 (art. 5-2) contains the elementary
safeguard that any person arrested should know why he is being
deprived of his liberty. This provision is an integral part of
the scheme of protection afforded by Article 5 (art. 5): by virtue of
paragraph 2 (art. 5-2) any person arrested must be told, in simple,
non-technical language that he can understand, the essential legal and
factual grounds for his arrest, so as to be able, if he sees fit, to
apply to a court to challenge its lawfulness in accordance with
paragraph 4 (art. 5-4) (see the van der Leer judgment of 21 February 1990,
Series A no. 170, p. 13, § 28). Whilst this information must be
conveyed “promptly” (in French: “dans le plus court délai”), it need
not be related in its entirety by the arresting officer at the very
moment of the arrest. Whether the content and promptness of the
information conveyed were sufficient is to be assessed in each case
according to its special features.

41. On being taken into custody, Mr Fox, Ms Campbell and
Mr Hartley were simply told by the arresting officer that they were
being arrested under section 11 (1) of the 1978 Act on suspicion of
being terrorists (see paragraphs 9 and 13 above). This bare
indication of the legal basis for the arrest, taken on its own, is
insufficient for the purposes of Article 5 § 2 (art. 5-2), as the
Government conceded.

However, following their arrest all of the applicants were
interrogated by the police about their suspected involvement in
specific criminal acts and their suspected membership of proscribed
organisations (see paragraphs 9, 10, and 14 above). There is no
ground to suppose that these interrogations were not such as to enable
the applicants to understand why they had been arrested. The reasons
why they were suspected of being terrorists were thereby brought to
their attention during their interrogation.

42. Mr Fox and Ms Campbell were arrested at 3.40 p.m.
on 5 February 1986 at Woodbourne RUC station and then separately
questioned the same day between 8.15 p.m. and 10.00 p.m. at
Castlereagh Police Office (see paragraph 9 above). Mr Hartley, for
his part, was arrested at his home at 7.55 a.m. on 18 August 1986 and
taken to Antrim Police Station where he was questioned between
11.05 a.m. and 12.15 p.m. (see paragraph 13 above). In the context of
the present case these intervals of a few hours cannot be regarded as
falling outside the constraints of time imposed by the notion of
promptness in Article 5 § 2 (art. 5-2).

43. In conclusion there was therefore no breach of Article 5 § 2
(art. 5-2) in relation to any of the applicants.

IV. ALLEGED BREACH OF ARTICLE 5 § 4 (art. 5-4)

44. The applicants contended that, as the Convention had not been
incorporated into United Kingdom law, they had been unable to
challenge the lawfulness of their detention before the domestic courts
in accordance with Article 5 § 4 (art. 5-4), which provides:

“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.”

The majority of the Commission concluded that there had been no such
violation. They were of the opinion that the important safeguard
contained in Article 5 § 4 (art. 5-4) became devoid of purpose where,
as in the present case, the detainees were released before a speedy
determination of the lawfulness of the detention could take place.

The Government submitted that the courts, in an action for habeas
corpus, can examine both the procedural legality of the detention and
whether the person was genuinely suspected of being a terrorist. In
the alternative, they followed the Commission’s view.

In reply, the applicants adopted the reasoning of Mr Danelius in his
dissenting opinion in the Commission’s report. He took the view that
the entitlement set out in Article 5 § 4 (art. 5-4) was also valid
for short periods of detention; and that neither an application for
habeas corpus nor a claim for damages for false imprisonment could
ever secure this entitlement as interpreted by the Court in its Brogan
and Others judgment (loc. cit., pp. 34-35, § 65), since the existence
of a reasonable suspicion was not a condition for the lawfulness of an
arrest effected under section 11 (1) of the 1978 Act.

45. Mr Fox and Ms Campbell were detained for approximately
44 hours, Mr Hartley for approximately 30 hours (see paragraphs 10 and
14 above). Mr Hartley brought no proceedings in connection with his
arrest or detention (see paragraph 14 above). On the other hand, on
the day following their arrest both Mr Fox and Ms Campbell instituted
proceedings for habeas corpus, but they were released before the
applications came on for hearing before a judge (see paragraph 11
above).

All three applicants were released speedily before any judicial
control of their detention had taken place. It is not for the Court
to rule in abstracto as to whether, had this not been so, the scope of
the remedies available would or would not have satisfied the
requirements of Article 5 § 4 (art. 5-4).

Accordingly, the Court does not find it necessary to examine the
merits of the applicants’ complaint under Article 5 § 4 (art. 5-4).

V. ALLEGED BREACH OF ARTICLE 5 § 5 (art. 5-5)

46. The applicants further alleged a breach of Article 5 § 5
(art. 5-5), which reads:

“Everyone who has been the victim of arrest or detention in
contravention of the provisions of this Article (art. 5) shall
have an enforceable right to compensation.”

Their arrest and detention have been held to be in breach of
paragraph 1 of Article 5 (art. 5-1) (see paragraph 36 above). This
violation could not give rise, either before or after the findings
made by this Court in the present judgment, to an enforceable claim
for compensation by the victims before the Northern Ireland courts
(see the above-mentioned Brogan and Others judgment, Series A
no. 145-B, p. 35, § 67).

There has therefore been a violation of paragraph 5 of Article 5
(art. 5-5) in respect of all three applicants.

VI. ALLEGED BREACH OF ARTICLE 13 (art. 13)

47. Finally, the applicants submitted that the facts of their
cases also disclosed a breach of Article 13 (art. 13), which provides:

“Everyone whose rights and freedoms as set forth in [the] 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.”

In the light of its findings in paragraphs 43 and 45 above, the Court
does not deem it necessary to examine this complaint.

VII. APPLICATION OF ARTICLE 50 (art. 50)

48. By virtue of Article 50 (art. 50),

“If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising
from the … Convention, and if the internal law of the said
Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the Court
shall, if necessary, afford just satisfaction to the injured
party.”

The applicants did not submit any claim for pecuniary damage. They
did, however, seek substantial compensation in such amount as the
Court considered equitable for the non-pecuniary damage allegedly
suffered by each of them, together with the sum of £37,500 in respect
of their costs and expenses referable to the proceedings before the
Convention institutions. They expressed their willingness to
endeavour to agree the appropriate amounts with the Government and
only to refer the matter to the Court for assessment in default of
such agreement.

The Government considered it more appropriate to reserve their
submissions as to the compensation claim until the delivery of the
Court’s judgment on the substantive issues.

In these circumstances, therefore, the Court considers that the
question of the application of Article 50 (art. 50) is not ready for
decision and must be reserved.

FOR THESE REASONS, THE COURT

1. Holds by four votes to three that there has been a breach of
Article 5 § 1 (art. 5-1);

2. Holds unanimously that there has been no breach of
Article 5 § 2 (art. 5-2);

3. Holds by four votes to three that there has been a breach of
Article 5 § 5 (art. 5-5);

4. Holds unanimously that it is unnecessary to examine the
complaints under Article 5 § 4 and Article 13 (art. 5-4, art. 13);

5. Holds unanimously that the question of the application of
Article 50 (art. 50) is not ready for decision;

accordingly,

(a) reserves the whole of the said question;

(b) invites the Government and the applicants to submit, within the
coming three months, their written comments thereon and, in
particular, to notify the Court of any agreement reached between them;

(c) reserves the further procedure and delegates to the President of
the Court power to fix the same if need be.

Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 30 August 1990.

Signed: Rolv RYSSDAL
President

Signed: Marc-André EISSEN
Registrar

In accordance with Article 51 § 2 (art. 51-2) of the Convention and
Rule 53 § 2 of the Rules of Court, the joint dissenting opinion of
Sir Vincent Evans, Mr Bernhardt and Mrs Palm is annexed to this
judgment.

Initialled: R.R.

Initialled: M.-A.E.

JOINT DISSENTING OPINION OF JUDGES SIR VINCENT EVANS, BERNHARDT AND
PALM

We are unable to agree with the finding of the majority of the Court
that there has been a violation of Article 5 § 1 (c) (art. 5-1-c)
in this case.

The majority take the view that the facts and information laid before
the Court by the Government are insufficient to support the conclusion
that there was “reasonable suspicion” justifying the arrest and
detention of the applicants under Article 5 § 1 (c) (art. 5-1-c)
(see paragraph 35 of the Court’s judgment). We do not share this
opinion.

The majority accept – and on this we agree – that the arrest and
detention of each of the applicants was based on a bona fide suspicion
that he or she was a terrorist and that each of them was questioned
during his or her detention about specific terrorist acts of which he
or she was suspected. But, in the opinion of the majority the latter
fact does no more than confirm that the arresting officers had a
genuine suspicion and a genuine suspicion was not the equivalent of a
reasonable suspicion.

In our view the “genuine suspicion” on the part of the arresting
officers that the applicants were involved in the specific terrorist
acts about which they were questioned must have had some basis in
information received by them, albeit from sources which the Government
maintain that they are unable to disclose for security reasons. In
the situation in Northern Ireland the police must have a
responsibility to follow up such information of involvement in
terrorist activities and, if circumstances so warrant, to arrest and
detain the suspect for further investigation.

In cases such as these it is not possible to draw a sharp distinction
between genuine suspicion and reasonable suspicion. Having regard to
all the circumstances and to the facts and information before the
Court, including in the case of Mr Fox and Ms Campbell the fact that
they had previously been involved in and convicted of terrorist
activities, we are satisfied that there were reasonable grounds for
suspicion justifying the arrest and detention of the applicants in
accordance with Article 5 § 1 (c) (art. 5-1-c). We also see no
reason to doubt that the applicants were detained and questioned with
a view to criminal proceedings if sufficient and usable evidence had
been obtained. It is true that they were released without any charges
being brought against them, but this in no way invalidates the
measures taken since it is the purpose of such investigation to find
out whether the suspicion is confirmed and supported by any additional
evidence.

For these reasons we conclude that there was no breach of
Article 5 § 1 (c) (art. 5-1-c).