MURRAY v. the UNITED KINGDOM
Doc ref: 14310/88 • ECHR ID: 001-45580
Document date: February 17, 1993
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EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 14310/88
Margaret Murray, Thomas Murray,
Mark Murray, Alana Murray,
Michaela Murray and Rossina Murray
against
the United Kingdom
REPORT OF THE COMMISSION
(adopted on 17 February 1993)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 15) . . . . . . . . . . . . . . . . . . . . . . . 3
A. The Application
(paras. 2 - 4) . . . . . . . . . . . . . . . . . . . . . 1
B. The Proceedings
(paras. 5 - 10). . . . . . . . . . . . . . . . . . . . 1-2
C. The Present Report
(paras. 11 - 15) . . . . . . . . . . . . . . . . . . . . 3
II. ESTABLISHMENT OF THE FACTS
(paras. 16 - 54). . . . . . . . . . . . . . . . . . . . . .4-14
A. The particular circumstances of the case
(paras. 16 - 46) . . . . . . . . . . . . . . . . . . .4-12
B. The relevant domestic law and practice
(paras. 47 - 54) . . . . . . . . . . . . . . . . . . 13-14
III. OPINION OF THE COMMISSION
(paras. 55 - 101) . . . . . . . . . . . . . . . . . . . . 15-24
A. Complaints declared admissible
(paras. 55 - 56) . . . . . . . . . . . . . . . . . . . .15
B. Points at issue
(para. 57) . . . . . . . . . . . . . . . . . . . . . . .15
C. As regards Article 5 para. 1 of the Convention
(paras. 58 - 64) . . . . . . . . . . . . . . . . . . 15-17
D. As regards Article 5 para. 2 of the Convention
(paras. 65 - 72) . . . . . . . . . . . . . . . . . . 18-19
E. As regards Article 5 para. 5 of the Convention
(paras. 73 - 76) . . . . . . . . . . . . . . . . . . . .19
F. As regards Article 8 of the Convention
(paras. 77 - 85) . . . . . . . . . . . . . . . . . . 20-22
G. As regards Article 13 of the Convention
(paras. 86 - 94) . . . . . . . . . . . . . . . . . . 22-24
H. RECAPITULATION
(paras. 95 - 101). . . . . . . . . . . . . . . . . . . .24
PARTLY DISSENTING OPINION OF MR. H.G. SCHERMERS . . . . . . . . . .25
PARTLY DISSENTING OPINION OF SIR BASIL HALL . . . . . . . . . . 26-27
PARTLY DISSENTING OPINION OF MRS. J. LIDDY. . . . . . . . . . . . .28
APPENDIX I : HISTORY OF PROCEEDINGS . . . . . . . . . . .29-30
APPENDIX II : DECISION ON ADMISSIBILITY
OF THE APPLICATION . . . . . . . . . . . . . 31-45
I. INTRODUCTION
1. The following is an outline of the case, as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The Application
2. The applicants are Irish citizens, members of the same family,
and reside in Belfast, Northern Ireland. The first applicant was born
in 1938 and she is a housewife. The second applicant, born in 1935,
is her husband. The third applicant, born in 1964, is her son. The
fourth and fifth applicants are her eldest twin daughters, born in
1967. The sixth applicant is her youngest daughter, born in 1970. The
applicants were represented before the Commission by Messrs. Madden and
Finucane, Solicitors, Belfast.
3. The application is directed against the United Kingdom. The
respondent Government were represented by their Agents, Mrs. A. Glover
and Mr. H. Llewellyn, both of the Foreign and Commonwealth Office.
4. The case concerns the entry into the applicants' home by an army
team early one morning in 1982, the subsequent arrest of the first
applicant, her detention for two hours for questioning and the taking
and retention of records about her, including a photograph. It raises
issues under Articles 5, 8 and 13 of the Convention.
The second, third, fourth, fifth and sixth applicants also
originally complained to the Commission of being required to assemble
for half an hour in one room of their house while the first applicant
prepared to leave with the army. They further complained about the
recording and retention of certain personal details about them, such
as their names and relationship to the first applicant. They claimed
that they had no effective domestic remedies for these matters.
However, the Commission declared these complaints inadmissible in its
decision of 10 December 1991 (Appendix II to this Report).
B. The Proceedings
5. The application was introduced on 28 September 1988 and
registered on 24 October 1988.
6. After a preliminary examination of the case by the Rapporteur,
the Commission considered the admissibility of the application on
5 September 1989. It decided, pursuant to Rule 42 para. 2 (b) of its
Rules of Procedure (former version), to give notice of the application
to the respondent Government and to invite the parties to submit their
written observations on admissibility and merits. The Government's
observations were submitted on 7 February 1990, after an extension of
the time-limit fixed for that purpose. The applicants replied on
11 April 1990. The applicants withdrew complaints originally made
under Article 3 and Article 5 para. 3 of the Convention.
7. The Commission considered the state of proceedings in the case
on 7 September 1990 and decided to invite the parties to submit any
comments they had on the significance of the Court's judgment in the
case of Fox, Campbell and Hartley of 30 August 1990 (Eur. Court H.R.,
Series A no. 182) for the admissibility of the application. The
applicants submitted their comments on 31 October 1990. The Government
submitted their comments on 24 November 1990, after an extension of the
time limit.
8. On 3 September 1991 the Commission decided, in accordance with
Rule 50 (b) of the Rules of Procedure, to invite the parties to submit
further observations orally at a hearing. The hearing was held on
10 December 1991. The Government were represented by Mr. H. Llewellyn,
Agent, Mr. N. Bratza, QC, Counsel, and Mr. R. Weatherup, Counsel. They
were assisted by three advisers. The applicants were represented by
Mr. R. Weir, SC, Counsel, Mr. S. Treacy, Counsel, and Mr. P. Madden,
Solicitor. Following deliberations on the same day, the Commission
declared admissible all the first applicant's complaints and the other
applicants' complaints under Article 8 of the Convention concerning the
entry and search of the family home. It declared inadmissible the
remainder of the application (para. 4 above).
9. The text of the Commission's decision on admissibility was sent
to the parties on 17 January 1992 and they were invited to submit
further information about the case as well as any other evidence or
additional observations relating to any aspect of the merits of the
application that they wished. On 14 April 1992, after an extension of
the time limit, the Government submitted information and further
observations. No communication was received from the applicants.
10. After declaring the case partly admissible, the Commission,
acting in accordance with Article 28 para. 1 (b) of the Convention,
also placed itself at the disposal of the parties with a view to
securing a friendly settlement. It now finds that there is no basis
on which such a settlement can be effected.
C. The Present Report
11. The present Report has been drawn up by the Commission in
pursuance of Article 31 para. 1 of the Convention and after
deliberations and votes in plenary session, the following members being
present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
E. BUSUTTIL
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
12. The text of this Report was adopted on 17 February 1993 and is
now transmitted to the Committee of Ministers of the Council of Europe,
in accordance with Article 31 para. 2 of the Convention.
13. 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.
14. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
15. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
16. The first applicant was arrested at her home on 26 July 1982 by
a member of the armed forces under section 14 of the Northern Ireland
(Emergency Provisions) Act 1978. She was arrested at 07.00 hours and
detained continuously until 09.40 hours when she was released without
charge. The arrest operation was carried out by Corporal D., a member
of the Women's Royal Army Corps. Corporal D. had attended an army
briefing at 06.30 hours that day at which she was told that the first
applicant was suspected of involvement in the collection of money for
the purchase of arms for the IRA in the United States of America, an
offence under section 21 of the 1978 Act and section 10 of the
Prevention of Terrorism (Temporary Provisions) Act 1976. On
22 June 1982 two of the first applicant's brothers had been convicted
of arms offences in the United States of America connected with the
purchase of weapons for the IRA. The Corporal was instructed to go to
the first applicant's house to arrest her and to bring her back to the
army screening centre at Springfield Road in Belfast.
17. Corporal D., accompanied by four armed soldiers, entered the
first applicant's house at 07.00 hours and asked her to get dressed.
Corporal D. went upstairs and told the other applicants to get up and
assemble in the living room.
18. The soldiers did not search the contents of the house but
recorded details concerning the interior of the home and personal
details concerning the applicants.
19. At 07.30 hours, when the first applicant came downstairs,
Corporal D. stated, "As a member of Her Majesty's Forces I arrest you".
On being asked by the first applicant under what Section, Corporal D.
replied, "Section 14".
20. The first applicant was then driven in a landrover to the army
screening centre at Springfield Road. She was escorted into a building
and asked to sit for a short time in a small cubicle. At 08.05 hours
she was taken before Sergeant B. who asked her questions with a view
to completing a standard form to record, inter alia, details of the
arrest and screening procedure and personal details. The first
applicant refused to answer any questions save to give her name. The
interview ended four minutes later. She was then examined by a medical
orderly and again refused to answer any questions.
21. At 08.20 hours she was taken to an interview room and questioned
by a soldier in civilian clothes in the presence of Corporal D. She
was asked, inter alia, about her brothers and her contacts with them,
but she still refused to answer questions. She was photographed
without her knowledge or consent. This photograph and the personal
details about her, her family and her home were kept on record. She
was released at 09.45 hours.
22. The standard record form, called the screening proforma, recorded
the first applicant's name, address, nationality, marital and tenancy
status, the chronological details about her arrest, the names of the
army officers involved, the names of the other applicants and their
relationship to her, her physique and her attitude to the interview.
Nothing was recorded under the heading "suspected offence". It noted
that the applicant had refused to answer questions and that no
information had been gained from the interview.
23. Some 18 months later, on 9 February 1984, the first applicant
brought an action for false imprisonment and other torts against the
Ministry of Defence.
24. In those proceedings one of the principal allegations made by the
first applicant was that her arrest and detention under section 14 of
the 1978 Act had been effected unlawfully and for an improper purpose.
The applicants' allegations were summarised in the judgment of
Murray J. given on 25 October 1985:
"The plaintiff's Counsel launched a series of attacks on the
legality of the plaintiff's arrest and detention which varied in
thrust between the very broad and the very narrow. In the former
class, for example, was an attack in which they alleged that the
use of s.14 of the EPA in this case was an example of what they
called 'an institutionalised form of unlawful screening' by the
military authorities, with the intention of obtaining what
Counsel termed 'low level intelligence' from the plaintiff, and
without (a) any genuine suspicion on the part of those
authorities that she had committed a criminal offence or, (b) any
genuine intention on their part of questioning her about a
criminal offence alleged to have been committed by her. In this
connection the plaintiff herself alleged that Sergeant B.
actually told her in the centre in so many words that they knew
she had not committed any crime but that her files had been lost
and they wanted to 'update' them."
25. In support of this case the first applicant's Counsel not only
called and examined the applicant herself but extensively
cross-examined the two witnesses called on behalf of the defendants,
namely Corporal D., who had effected the arrest of the applicant and
who had attended the interview of the applicant at Springfield Road RUC
Station, and Sergeant B., who had questioned the applicant on her
arrival at Springfield Road with a view to completing Part 1 of the
form headed "Screening Proforma".
26. As appears from the transcript of her evidence, Corporal D. gave
an account of her briefing on the morning of the arrest. She stated
that at the briefing she had been told the first applicant's name and
address and the grounds on which she was wanted for questioning, namely
her suspected involvement in the collection of money for the purchase
of weapons from America. She stated that, having been given this
briefing,
"... my suspicions were aroused by my briefing, and my belief was
that Mrs. Murray was suspected of collecting money to purchase
arms."
27. Under cross-examination Corporal D. denied that the purpose of
an arrest and detention under section 14 was to gather intelligence:
she maintained that the purpose of the arrest was to question a
suspected person about an offence. She stated that her suspicion of
the first applicant had been formed on the basis of everything she had
been told at the briefing and which she had read in a document which
had been supplied to her then. Corporal D. stated that she would not
have effected the arrest unless she had been given the grounds on which
she was expected to arrest the person. Under repeated questioning,
Corporal D. maintained that she had been informed at the briefing, and
that she had formed the suspicion, that the applicant had been involved
in the collection of money for the purchase of arms from America.
28. Corporal D. was further examined about the interrogation of the
first applicant at Springfield Road. She stated that she recalled that
questions had been asked of the applicant by the interviewer and that
the applicant had refused to answer any questions put to her. She
recalled that the interviewer asked a few more questions when he
returned to the room after leaving it but that she could not really
remember what they were about. Counsel for the defence returned to the
question of the interview of the applicant towards the end of his
examination of Corporal D. in the following exchange:
Q. "... Now while you were, just going back for a moment to
the time when what I might call the interview, that's when the
three of you were in the room, and the two occasions you've said
she had to leave, you took her to, she wanted to go to the
lavatory. Do you just have no recollection of any of the
questions that were asked?"
A. "I don't remember the questions as they were asked. There
was a question regards money. A question regards America."
29. No cross-examination by the first applicant's counsel was
directed to this reply of the witness.
30. Sergeant B. was examined and cross-examined about his completion
of Part 1 of the Screening Proforma when standing at the Reception
desk. He stated that the first applicant had given her name but
refused to give her address or date of birth or any further
information. He expressly denied the applicant's allegation that he
had said to her that he knew she was not a criminal and that he just
wanted to update her files which had been lost. The information
previously recorded in 1980 had in any event not been lost since
Sergeant B. gave evidence that it had been used to complete the details
on the first page of the Proforma when the applicant had refused to
answer any questions.
31. Under cross-examination Sergeant B. did not accept that the main
purpose of screening was to gather general information about the
background, family and associates of the arrested person. He expressly
denied that the members of a family of persons with suspected terrorist
connections might be arrested for the purposes of gathering general
intelligence or that an associate of a known member of an illegal
organisation might be brought in and screened for the purposes of
gathering information. Sergeant B. maintained that a person was only
arrested and detained if there existed a suspicion against the person
accused of involvement in a criminal offence.
32. The issue of the interview of the first applicant was
specifically addressed in the final submission of defence counsel, in
which the following exchange is partially recorded in the transcript:
"MR. CAMPBELL My Lord ... your Lordship has the grounds upon
which the arresting officer carries out
(inaudible) she then gives evidence and is
present throughout the interview ... now I talk
about the interview on the very last stage.
JUDGE At the table?
MR. CAMPBELL At the table, and said that in the course of that
interview money and arms that these matters were
raised, I can't ... hesitate to use the
(inaudible) now that is one point. The other
point is this, that this was a lady who on her
own admission was not going to answer any
questions. She agreed during cross-examination
that that was the attitude and so one finds that
an interview takes place with somebody who is
not prepared to answer any questions but at
least the questions are raised with her
concerning the matter on which she was arrested.
JUDGE Is the substance of that then that because of her
fairly firm refusal you would say to answer any
questions there was never any probing
examination of her collecting money for example?
MR. CAMPBELL No my Lord because she ... as she said she wasn't
going to answer any questions."
33. In his judgment Murray J. gave detailed consideration to the
evidence of Corporal D. and Sergeant B., on the one hand, and the first
applicant on the other. Murray J. rejected the applicant's claim that
she had been told by Sergeant B. that she was not suspected of any
offence and that he was just updating his records. He similarly
rejected the applicant's claim that Corporal D. at no time genuinely
suspected the applicant of having committed an offence. On the basis
of the evidence of Corporal D. herself, who was described as a
"transparently honest witness", the judge stated that he was
"... quite satisfied that on the basis of her briefing at
Musgrave Park she genuinely suspected the plaintiff of having
been involved in the offence of collecting money in Northern
Ireland for arms."
34. Murray J. also rejected the first applicant's claim that section
14 of the 1978 Act had been used for the purpose of screening to gain
low level intelligence: he accepted the evidence of Corporal D. and
Sergeant B., which had been tested in cross-examination, that the
purpose of the applicant's arrest and detention under the section had
not been to gather intelligence but to establish facts concerning the
offence of which she was suspected. Murray J. also accepted the
evidence of Corporal D. that there were questions addressed to the
matters of which the applicant was suspected, but found that in a
situation in which the applicant had decided not to answer any
questions "... and with the short detention period permitted by the
section, there was little that the interviewer or any of the other
staff in the centre could do to pursue their suspicions."
35. In the judgment, Murray J. also dealt with the photographing of
the first applicant as follows:
"As I have explained, the plaintiff, unknown to herself, was
photographed by a hidden camera while in the Centre. When this
emerged at the hearing (the applicant's lawyer) asked for leave
(which I granted) to amend the Statement of Claim to include that
photograph as an additional tort. (The lawyer) argued that the
existence of an express power to photograph an arrested person
under s.11(4) of the EPA impliedly excludes a power to photograph
a person arrested under s.14. I do not think this argument is
sound: s.11(4) allows reasonable force to be used to obtain a
photograph but I do not think it permissible to reason from this
that merely taking a photograph of a person without interfering
physically with the person is in any way whatever tortious. In
Salmond & Heuston on Torts (18th ed.) in a passage dealing with
the invasion of privacy, the learned authors, relying on a
passage in the judgment of Greer L.J. in Tolley v. Fry [1930]
1 KB 467 and 478, express the view that merely taking a
photograph of a person without in any way defaming him is not
actionable. I have always understood this to be the law in this
country."
36. The first applicant's action before the High Court was therefore
dismissed. An appeal to the Court of Appeal was also dismissed on
20 February 1987.
37. In the Court of Appeal, the first applicant again challenged the
legality of her arrest on the grounds, inter alia
"... (1) that the arresting officer did not have, or was not
sufficiently proved to have, the requisite suspicion ; (2) that
she did not have sufficiently detailed knowledge or understanding
of what was alleged against the plaintiff to warrant the
conclusion that it was an offence which would justify arrest."
38. The Court of Appeal unanimously rejected both grounds of the
appeal, holding that the judge had found
"... and his finding was amply justified by the evidence, that
(Corporal D.) genuinely suspected the plaintiff of having been
involved in the offence of collecting money in Northern Ireland
for arms to be purchased in America for use by a proscribed
organisation."
39. The Court of Appeal further unanimously rejected the first
applicant's complaint that the purpose of her arrest and detention, and
the whole purport of her questioning, was a fishing expedition
unrelated to the matters of which she was suspected and designed to
obtain low grade intelligence about the applicant and others. In
rejecting this complaint, the Court of Appeal took full account of the
evidence which had been adduced on both sides as to the purpose and
nature of the interview of the applicant:
"Corporal D. who was present during the interview had very little
recollection of the course of the questions. The only other
witness as to the conduct of this interview was the plaintiff.
Her account also is sketchy, though in somewhat more detail.
What is clear from both witnesses is that the plaintiff was
deliberately unhelpful and refused to answer most of the
questions. What is certain is that she was asked about her
brothers who in the previous month had been convicted of offences
connected with the purchase of firearms in the USA for use by the
IRA and for which offences they had been sentenced to terms of
2 and 3 years imprisonment. It is clear that it was for such a
purchase that the plaintiff was suspected of having collected
money, as she stated the interviewer asked her whether she was
in contact with them. There is no doubt, therefore, that the
interviewer did attempt to pursue the subject of the suspicion
which had been the occasion for her arrest but was unable to made
any headway."
40. The first applicant's appeal to the Court of Appeal also
concerned certain related matters such as the legality of the search
of the applicant's house, in respect of which the Court of Appeal found
that there was a sufficient basis in section 14(3) of the 1978 Act.
The Court of Appeal further found that the army's powers included the
right to interrogate a detained person and that the "screening
proforma" contained no information which might not have been relevant
to the resolution of the suspicion. As regards the applicant's
complaint regarding the taking of a photograph of her, the Court of
Appeal stated as follows:
"The complaint that the plaintiff was photographed without her
knowledge can be quickly disposed of. While in the reception
room she was asked if she would agree to be photographed and she
refused. However, it would appear that later, unknown to her,
she was secretly photographed and this only became known to her
when part 1 of the screening proforma containing that information
was produced. The act of taking the photograph involved nothing
in the nature of a physical assault. Whether such an act would
constitute an invasion of privacy so as to be actionable in the
United States is irrelevant, because the plaintiff can only
recover damages if it amounts to a tort falling within one of the
recognised branches of the law on the topic. According to the
common law there is no remedy if someone takes a photograph of
another against his will. Reliance was placed on section 11(4)
of the Act by counsel for the plaintiff. This provides:
'Where a person is arrested under this section, an officer
of the Royal Ulster Constabulary not below the rank of
chief inspector may order him to be photographed and to
have his finger and palm prints taken by a constable, and
a constable may use such reasonable force as may be
necessary for that purpose.'
This provision gives power to the police to order the taking of
finger prints without the necessity of charging the person
concerned and applying for an order of the magistrate under
article 61 of the Magistrates Courts (Northern Ireland)
Order 1981, which contains no comparable provision as to the
taking of photographs. The taking of finger prints otherwise
than by consent must involve an assault and I am satisfied that
section 11(4) was enacted not to legalise the taking of
photographs without consent, but to legalise the taking of
photographs or finger prints in circumstances where there would
otherwise have been an illegal assault. It does not involve the
implication that the taking of a photograph without violence and
without consent is actionable."
41. The first applicant was granted leave by the Court of Appeal to
appeal to the House of Lords. This appeal was rejected in a decision
of 25 May 1988.
42. In the House of Lords, the applicant did not pursue the
allegation that she had not been arrested on the basis of a genuine and
honest suspicion that she had committed an offence. As Lord Griffiths
noted:
"This primary attack failed because the judge held that he was
satisfied that Corporal D. was an entirely honest witness and
that after her briefing she did suspect the plaintiff of the
offences involved in collecting money for the IRA, and thus had
the limited power of arrest and detention conferred on members
of the armed forces by section 14 of the Act of 1978. No appeal
is pursued before your Lordships in respect of this finding of
the judge."
43. The applicant did however pursue an allegation in the House of
Lords that since she was only lawfully arrested at 07.30 hours she had
been unlawfully detained between 07.00 and 07.30 hours. The House of
Lords found that a person is arrested from the moment he is subject to
restraint and that the first applicant was therefore under arrest from
the moment that Corporal D. identified her on entering the house at
07.00 hours. It made no difference that the words of arrest were
communicated to the applicant at 07.30 hours. In this respect
Lord Griffiths stated as follows:
"... Therefore, the plaintiff submits, the period of detention
before arrest was unlawful and the Ministry of Defence liable for
the tort of unlawful imprisonment during that period of half an
hour whilst she was getting dressed. If the plaintiff had been
told she was under arrest the moment she identified herself, it
would not have made the slightest difference to the sequence of
events before she left the house. It would have been wholly
unreasonable to take her off half-clad, to the army centre, and
the same half-hour would have elapsed while she gathered herself
together and completed her toilet and dressing. It would seem
a strange result that in these circumstances, whether or not she
has an action for false imprisonment should depend upon whether
the words of arrest are spoken on entering or leaving the house,
when the practical effect of the difference on the plaintiff is
non-existent."
44. The first applicant had also maintained that the failure to
inform her that she was arrested until the soldiers were about to leave
the house rendered the arrest unlawful. This submission was also
rejected by the House of Lords. Lord Griffiths held as follows:
"It is a feature of the very limited power of arrest contained
in Section 14 that a member of the armed forces does not have to
tell the arrested person the offence of which he is suspected,
for it is specifically provided by section 14(2) that it is
sufficient if he states that he is effecting the arrest as a
member of Her Majesty's forces. Corporal D. was carrying out
this arrest in accordance with the procedures in which she had
been instructed to make a house arrest pursuant to Section 14.
This procedure appears to me to be designed to make the arrest
with the least risk of injury to those involved including both
the soldiers and the occupants of the house. When arrests are
made on suspicion of involvement with the IRA it would be to
close one's eyes to the obvious not to appreciate the risk that
the arrest may be forcibly resisted.
The drill the army follow is to enter the house and search every
room for occupants. The occupants are all directed to assemble
in one room, and when the person the soldiers have come to arrest
has been identified and is ready to leave, the formal words of
arrest are spoken just before they leave the house. The army do
not carry out a search for property in the house and, in my view,
they would not be justified in doing so. The power of search is
given 'for the purpose of arresting a person', not for a search
for incriminating evidence. It is however a proper exercise of
the power of search for the purpose of effecting the arrest to
search every room for other occupants of the house in case there
may be those there who are disposed to resist the arrest. The
search cannot be limited solely to looking for the person to be
arrested and must also embrace a search whose object is to secure
that the arrest should be peaceable. I also regard it as an
entirely reasonable precaution that all the occupants of the
house should be asked to assemble in one room. As Corporal D.
explained in evidence, this procedure is followed because the
soldiers may be distracted by other occupants in the house
rushing from one room to another, perhaps in a state of alarm,
perhaps for the purpose of raising the alarm and to resist the
arrest. In such circumstances a tragic shooting accident might
all too easily happen with young, and often relatively
inexperienced, armed soldiers operating under conditions of
extreme tension. Your Lordships were told that the husband and
children either had commenced or were contemplating commencing,
actions for false imprisonment arising out of the fact that they
were asked to assemble in the living-room for a short period
before the plaintiff was taken from the house. That very short
period of restraint when they were asked to assemble in the
living room was a proper and necessary part of the procedure for
effecting the peaceable arrest of the plaintiff. It was a
temporary restraint of very short duration imposed not only for
the benefit of those effecting the arrest, but also for the
protection of the occupants of the house and would be wholly
insufficient to found an action for unlawful imprisonment.
It was in my opinion entirely reasonable to delay speaking the
words of arrest until the party was about to leave the house.
If words of arrest are spoken as soon as the house is entered
before any precautions have been taken to search the house and
find the other occupants, it seems to me that there is a real
risk that the alarm may be raised and an attempt made to resist
arrest, not only by those within the house but also by summoning
assistance from those in the immediate neighbourhood. When
soldiers are employed on the difficult and potentially dangerous
task of carrying out a house arrest of a person suspected of an
offence in connection with the IRA, it is I think essential that
they should have been trained in the drill they are to follow.
It would be impracticable and I think potentially dangerous to
leave it to the individual discretion of the particular soldier
making the arrest to devise his own procedures for carrying out
this unfamiliar military function. It is in everyone's best
interest that the arrest is peaceably effected and I am satisfied
that the procedures adopted by the army are sensible, reasonable
and designed to bring about the arrest with the minimum of danger
and distress to all concerned. I would however add this rider:
that if the suspect, for any reason, refuses to accept the fact
of restraint in the house he should be informed forthwith that
he is under arrest."
45. Before the House of Lords the first applicant also pursued a
claim that her period of detention exceeded what was reasonably
required to make a decision whether to release the applicant or hand
her over to the police. In this regard reliance was placed by the
applicant on the fact that the Screening Proforma contained questions
which were not directly relevant to the offence of which the applicant
was suspected; it was also suggested that the evidence did not show
that the questioning of the applicant was directed to the matters of
which she was suspected. The allegation was unanimously rejected by
the House of Lords. Lord Griffiths observed as follows:
"The member of the forces who carried out the interrogation
between 8.20 and 9.35 am was not called as a witness on behalf
of the Ministry of Defence. There may have been sound reasons
for this decision associated with preserving the confidentiality
of interrogating techniques and the identity of the interviewer,
but be that as it may, the only evidence of what took place at
the interview came from Corporal D. and the plaintiff and it is
submitted that this evidence is insufficient to establish that
the interview was directed towards an attempt to investigate the
suspicion upon which the plaintiff was arrested. Corporal D. was
present at that interview, she was not paying close attention but
she gave evidence that she remembered questions about money which
were obviously directed towards the offences of which the
plaintiff was suspected. The plaintiff also said she was
questioned about her brothers."
46. The conclusion of the trial judge that the applicant had not been
asked unnecessary or unreasonable questions and the conclusion of the
Court of Appeal that the interviewer had attempted to pursue with the
applicant the suspicion which had been the occasion of the arrest, but
had been unable to make any headway, were held by the House of Lords
to be justified on the evidence.
B. The relevant domestic law and practice
1. Entry and search; arrest and detention
47. The first applicant was arrested under section 14 of the Northern
Ireland (Emergency Provisions) Act 1978, which at the relevant time
provided as follows:
"14.- (1) A member of Her Majesty's forces on duty may arrest
without warrant, and detain for not more than four hours, a
person whom he suspects of committing, having committed or being
about to commit any offence.
(2) A person effecting an arrest under this section complies with
any rule of law requiring him to state the ground of arrest if
he states that he is effecting the arrest as a member of Her
Majesty's forces.
(3) For the purpose of arresting a person under this section a
member of Her Majesty's forces may enter and search any premises
or other place -
(a) where that person is, or
(b) if that person is suspected of being a terrorist or of
having committed an offence involving the use or possession
of an explosive, explosive substance or firearm, where that
person is suspected of being."
48. A similar provision had been in force since 1973 and had been
considered necessary to deal with terrorist activities in two
independent reviews (Report of the Diplock Commission 1972 which
recommended such a power and a Committee chaired by Lord Gardiner
1974/1975). Following a further independent review in 1983 by
Sir George Baker, who concluded on the suspicion question that the
addition of a requirement of reasonableness would not in fact make any
difference to the actions of the military, section 14(1) was amended
to empower a member of the armed forces to arrest a person "who he has
reasonable grounds to suspect is committing, has committed or is about
to commit any offence". The amendment came into force on 15 June 1987
(section 25 and Schedule 1 of the Northern Ireland (Emergency
Provisions) Act 1987).
49. The scope and exercise of the section 14 powers were considered
by the domestic courts in the proceedings in the present case. These
proceedings demonstrate that when the legality of an arrest or
detention under section 14 is challenged (whether by way of habeas
corpus or in proceedings for damages for wrongful arrest or false
imprisonment), the burden lies on the military to justify their acts
and, in particular, to establish the following elements:
(a) compliance with the formal requirements for arrest ;
(b) the genuineness of the suspicion on which the arrest was
based ;
(c) that the powers of arrest and detention were not used for any
improper purpose such as screening or intelligence-gathering ;
(d) that the power of search was used only to facilitate the
arrest and not for the obtaining of incriminating evidence ;
(e) that those responsible for the arrest and detention did not
exceed the time reasonably required to reach a decision whether
to release the detainee or hand him over to the police.
2. Photograph
50. In the law of Northern Ireland, as in English law, it is lawful
to take a photograph of a person without his or her consent, provided
no force is used and the photograph is not exploited in such a way as
to defame the person concerned (cf. paras. 35 and 40 above).
51. The common law rule entitling the army to take a photograph
equally provides the legal basis for its retention.
3. Screening Proforma
52. The screening proforma in the present case formed an integral
part of the examination of the first applicant on suspicion of her
involvement in a terrorist related offence, and the legal authority for
recording personal details about her in the proforma derived from the
lawfulness of the applicant's arrest, detention and examination under
section 14 of the 1978 Act.
53. Murray J. in his judgment in the High Court expressly upheld the
lawfulness of the examination of the applicant by the army as being
authorised by, and the correct construction of, section 14 of the 1978
Act. The Court of Appeal and the House of Lords confirmed the
lawfulness of the use of the screening proforma in the present case.
54. The implied lawful authority conferred by section 14 of the 1978
Act to record information about the applicant equally provided the
legal basis for the retention of the information.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
55. The Commission has declared admissible the first applicant's
complaints that her arrest and detention for two hours by the army were
in breach of Article 5 paras. 1 and 2 (Art. 5-1+5-2) of the Convention,
for which she had no enforceable right to compensation, contrary to
Article 5 para. 5 (Art. 5-5); that the taking and retention of a
photograph and personal details about her with the aid of a screening
proforma was in breach of Article 8 (Art. 8) of the Convention and that
she had no effective domestic remedies for her substantive Convention
claims, contrary to Article 13 (Art. 13) of the Convention.
56. The Commission also declared admissible the complaint made by all
the applicants that the entry and search of their home by the army were
in breach of Article 8 (Art. 8) of the Convention.
B. Points at issue
57. The issues to be determined are
- whether the first applicant's arrest and detention were in
violation of Article 5 para. 1 (Art. 5-1) of the Convention ;
- whether the first applicant was informed promptly of the reasons
for her arrest, as required by Article 5 para. 2 (Art. 5-2) of the
Convention ;
- whether the first applicant had an enforceable right to
compensation for the alleged breaches of Article 5 paras. 1 and 2,
under Article 5 para. 5 (Art. 5-1, 5-2, 5-5) of the Convention ;
- whether the entry and search of the applicants' home and the
taking and retention of a photograph and personal details about the
first applicant were in violation of Article 8 (Art. 8) of the
Convention ;
- whether the first applicant had effective domestic remedies,
pursuant to Article 13 (Art. 13) of the Convention, for her substantive
Convention claims.
C. As regards Article 5 para. 1 (Art. 5-1) of the Convention
58. The relevant part of Article 5 para. 1 (Art. 5-1) of the
Convention provides as follows:
"1. Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the
purpose of bringing him before the competent legal authority on
reasonable suspicion of having committed an offence ..."
59. The first applicant did not dispute before the Commission that
her arrest and detention were "lawful" under Northern Irish law and had
also been effected in accordance with a procedure prescribed by law,
within the meaning of Article 5 para. 1 (Art. 5-1) second sentence.
She did, however, complain that her arrest and detention under section
14 of the Northern Ireland (Emergency Provisions) Act 1978 (the 1978
Act) were otherwise in breach of Article 5 para. 1 (Art. 5-1) of the
Convention, particularly insofar as they did not satisfy the
requirements of Article 5 para. 1 (c) (Art. 5-1-c).
60. The applicant's first contention was that she was not arrested
for the purpose of bringing her before a competent legal authority, but
merely for the purpose of interrogating her. Her second contention
concerned the absence of any standard of reasonable suspicion in the
legislation which authorised her detention. Whilst the arresting
officer may have subjectively and honestly suspected the first
applicant of having committed an offence, that suspicion has not been
shown to have been objective or reasonable, given that section 14 of
the 1978 Act did not require the arresting officer to hold a reasonable
degree of suspicion. The absence of the requirement of reasonableness
was, in her submission, given the Court's judgment in the Fox, Campbell
and Hartley case (Eur. Court H.R., Fox, Campbell and Hartley judgment
of 30 August 1990, Series A no. 182, pp. 16-18 paras. 34-36), in breach
of Article 5 para. 1 (Art. 5-1) of the Convention. The Government
contended, inter alia, that, although the legislation did not require
reasonable suspicion on arrest, in the present case the arresting
officer had held reasonable suspicion that the applicant had committed
the criminal offence of fund raising for the IRA, connected with her
brothers' criminal conviction in the United States of America. They
submitted that there existed specific and strong grounds, founded on
information received from a reliable source, for the army's suspicions
against her. However, the sensitivity of the material underlying the
suspicion was such that the Government were unable to disclose it
publicly.
61. The Commission refers to the Court's judgment in the Fox,
Campbell and Hartley case in which it noted that the test for lawful
arrest, under comparable provisions of the 1978 Act concerning police
powers of arrest, was a subjective one of honest suspicion on the part
of the arresting officer, whereas Article 5 para. 1 (c) (Art. 5-1-c)
of the Convention requires an objective test of reasonable suspicion.
This presupposes the existence of facts or information which would
satisfy an objective observer that the person concerned may have
committed an offence. What may be regarded as reasonable will however
depend on the circumstances of a particular case. Whilst terrorist
crime presents special problems and the competent authority may arrest
someone on the basis of reliable sources which must remain confidential
for their protection and future efficacy, nevertheless the exigencies
of dealing with terrorist crime cannot justify stretching the notion
of "reasonableness" to the point where the essence of the Article 5
para. 1 (c) (Art. 5-1-c) safeguard is impaired. Although the
Contracting State cannot be asked to reveal its confidential sources
of information, the Commission and the Court cannot be satisfied that
the requirements of Article 5 para. 1 (Art. 5-1) have been fulfilled
unless the Contracting State has furnished at least some specific facts
or information capable of showing the Convention organs that there was
reasonable suspicion against the person concerned.
62. Two of the applicants in the Fox, Campbell and Hartley case,
Mr. Fox and Ms. Campbell, were arrested on suspicion of being involved
with intelligence gathering and courier work for the Provisional IRA.
They had previous convictions for terrorist offences. Mr. Hartley was
suspected of involvement in a kidnapping incident. The respondent
Government had asserted that, although they could not disclose the
information or identify the source of the information that led to the
applicants' arrest, there had existed strong grounds for suggesting
that Mr. Fox and Ms. Campbell, at the time of their arrest, were
engaged in terrorist information and courier activities and that, in
Mr. Hartley's case, there was available to the police material
connecting him with a terrorist kidnapping (ibid p. 17 para. 33). The
Court accepted that the police held an honest suspicion concerning
those applicants' involvement in terrorist offences. It also noted the
previous convictions of Mr. Fox and Ms. Campbell and that, in
confirmation of the police's honest suspicion, the applicants had been
questioned on specific terrorist matters. However, in the absence of
further material, the Court concluded that the Government's
explanations did not meet the objective standard of reasonable
suspicion laid down in Article 5 para. 1 (c) (Art. 5-1-c) of the
Convention. In view of this finding it did not consider it necessary
to go into the question of the purpose of the arrest of those
applicants (Fox, Campbell and Hartley judgment on 30 August 1990,
op. cit., pp. 15-18 paras. 28-36).
63. As regards the facts of the present case, the Commission finds
that no significant distinction can be drawn between it and the
circumstances of the Fox, Campbell and Hartley case. In the present
case the Government, without providing any details or corroborating
elements, have stated that the army genuinely suspected the first
applicant of involvement in a terrorist linked offence because of
information received from a reliable source, which had to remain
confidential for security purposes. However, the Commission notes that
no objective evidence has been invoked in support of the suspicion that
the applicant had been involved in collecting money for IRA arms
purchases other than her kinship with her convicted brothers. The
Commission considers that the Government's explanation in the present
case is not materially distinguishable from that provided in the Fox,
Campbell and Hartley case (see preceding paragraph). Moreover, the
Commission emphasises that the legislation itself, section 14 of the
1978 Act, did not require the arresting army officer to hold a
reasonable suspicion, and that it has since been amended to include the
reasonableness standard. In these circumstances, the Commission is of
the opinion that the elements provided by the Government are
insufficient to support the conclusion that there was "reasonable
suspicion" against the present applicant in accordance with the minimum
standard set by Article 5 para. 1 (c) (Art. 5-1-c) of the Convention.
In the light of this opinion the Commission does not consider it
necessary to go into the first applicant's other complaint under
Article 5 para. 1 (c) (Art. 5-1-c) of the Convention concerning the
purpose of her arrest.
Conclusion
64. The Commission concludes, by 11 votes to 3, that there has been
a violation of Article 5 para. 1 (Art. 5-1) of the Convention in the
case of the first applicant.
D. As regards Article 5 para. 2 (Art. 5-2) of the Convention
65. Article 5 para. 2 (Art. 5-2) of the Convention provides as
follows:
"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."
66. The first applicant complained that she was not informed promptly
of the reasons for her arrest or of any charge against her, as required
by Article 5 para. 2 (Art. 5-2) of the Convention. The Government
relied on the findings of the Court in the Fox, Campbell and Hartley
case: Whilst the applicant was told on arrest that she was being
arrested under section 14 of the 1978 Act, thereafter, during her
interview with the army, it must have become clear to her why she had
been arrested and she must also have become aware of the reasons why
she was suspected of unlawful collection of money for the purchase of
arms in the United States of America for the IRA, given her close
connection with her brothers who had been convicted of arms offences
in America. The arresting officer recalled that the applicant had been
asked questions about money and America. No challenge by way of cross-
examination was launched to that recollection in the domestic courts
by the applicant's representative. Moreover, no headway was made on
that line of questioning because the applicant had refused to answer
any of the questions put to her by the army officers. The Government
submitted that Article 5 para. 2 (Art. 5-2) of the Convention does not
necessarily require this information to be related in its entirety by
the arresting officer at the very moment of the arrest. It suffices
that the information be revealed during the course of the ensuing
interview.
67. The Commission notes that the Court held in its Fox, Campbell and
Hartley judgment that a mere reference to a comparable section of the
1978 Act on arrest was insufficient information for the purposes of
Article 5 para. 2 (Art. 5-2) of the Convention, but that during
interrogation there was no reason to suppose that the applicants in
that case were unable to deduce from the questions put to them why they
had been arrested. On the same basis, the Commission finds that a mere
reference to section 14 of the 1978 Act on arrest was insufficient in
the present case.
68. The question remains whether the first applicant was able to
understand from her interview why she had been arrested. On this point
the arresting officer has indicated in the domestic proceedings that
the first applicant had been asked questions about money and America.
On the basis of this very vague indication, it is impossible, however,
to draw any conclusions as to whether the requirements of Article 5
para. 2 (Art. 5-2) were satisfied.
69. The Commission has also noted Lord Griffiths' statement that the
first applicant had been asked questions about her brothers and that
"the interviewer did attempt to pursue the subject of the suspicion
which had been the occasion for her arrest but was unable to make any
headway".
70. In the Commission's opinion, the information provided shows that
questions were asked which were related to the suspicions against the
applicant. However, it has not been shown that these questions were
sufficiently precise to constitute information about the reasons for
the applicant's arrest as required by Article 5 para. 2 (Art. 5-2) of
the Convention.
71. Consequently, the Commission cannot find that the right protected
by Article 5 para. 2 (Art. 5-2) has been respected.
Conclusion
72. The Commission concludes, by 10 votes to 4, that there has been
a violation of Article 5 para. 2 (Art. 5-2) of the Convention in the
case of the first applicant.
E. As regards Article 5 para. 5 (Art. 5-5) of the Convention
73. Article 5 para. 5 (Art. 5-5) of the Convention provides as
follows:
"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."
74. The first applicant also complained that she had no enforceable
right to compensation under domestic law for the alleged breaches of
Article 5 paras. 1 and 2 (Art. 5-1, 5-2) of the Convention. The
Government contended that as, in their view, there had been no breach
of Article 5 paras. 1 and 2 (Art. 5-1, 5-2) of the Convention in the
present case, no issue arose under Article 5 para. 5 (Art. 5-5).
75. The Commission has concluded above (paras. 64 and 72) that the
first applicant's arrest and detention were in breach of Article 5
para. 1 (Art. 5-1) of the Convention and that she was not informed of
the reasons for her arrest as required by Article 5 para. 2 (Art. 5-2)
of the Convention. These violations could not give rise to an
enforceable right to compensation before the Northern Irish courts.
The Commission recalls that a violation of Article 5 para. 5 (Art. 5-5)
was found by the Court in the similar case of Fox, Campbell and Hartley
(ibid p. 21 para. 46). There are no elements in the present
application to distinguish it from this finding by the Court.
Conclusion
76. The Commission concludes, by 11 votes to 3, that there has been
a violation of Article 5 para. 5 (Art. 5-5) of the Convention in the
case of the first applicant.
F. As regards Article 8 (Art. 8) of the Convention
77. Article 8 (Art. 8) of the Convention provides as follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
78. The first applicant complained that the manner in which she was
treated both in her home and at the screening centre constituted a
violation of Article 8 (Art. 8) of the Convention. In particular she
complained about the entry into and search of her home, the recording
of personal details concerning herself and her family and the retention
of those records, including a photograph of her, which was taken
without her consent. The other applicants also complained that the
entry and search of the family home were in breach of Article 8
(Art. 8) of the Convention. The Government submitted that these
measures were necessary for the prevention of crime in the context of
the fight against terrorism in Northern Ireland.
79. The Commission finds that the measures of which the applicants
complained constituted interferences with their right to respect for
private and family life and the home, ensured by Article 8 para. 1
(Art. 8-1) of the Convention. It remains to be examined whether the
interferences were justified under paragraph 2 of that Article or, in
other words, whether they were "in accordance with the law", whether
they pursued one or more legitimate aims under that paragraph, and
whether they could be considered necessary in a democratic society for
that or those aims.
80. As regards the lawfulness of the interferences, the Commission
notes that the army had lawful authority under section 14 of the
Northern Ireland (Emergency Provisions) Act to enter and search the
applicants' home in effecting the first applicant's arrest. According
to the Court of Appeal, this lawful authority extended to the recording
of personal details of the kind contained in the screening proforma
(see para. 40 above). As regards the taking of a photograph, there
exists no statutory law which expressly deals with the matter.
However, in the present case the first instance judge stated that he
had always understood the law to be that "merely taking a photograph
of a person without in any way defaming him is not actionable" (see
para. 35 above). The Court of Appeal, for its part, stated that
"according to the common law there is no remedy if someone takes a
photograph of another against his will" and that the fact that there
are rules about the powers of the police to order the taking of finger
prints but not as to the taking of photographs "does not involve the
implication that the taking of a photograph without violence and
without consent is actionable" (see para. 40 above). In these
circumstances, the Commission is satisfied that the taking of a
photograph of the applicant had a sufficiently clear basis in domestic
law. It notes that the situation is materially different from that
which was at issue in the Malone case where the scope and manner of
exercise of the relevant discretion conferred on the public authorities
in the interception of telephone communications were found not to be
sufficiently clear (Eur. Court H.R., Malone judgment of 2 August 1984,
Series A no. 82, p.36, para. 79).
81. The Commission is further of the opinion that these measures
pursued the legitimate aim of the prevention of crime, to be seen
particularly in the context of the fight against terrorist crime in
Northern Ireland. The question remains, however, whether the
interferences were proportionate to that aim and were thereby
necessary, within the meaning of Article 8 para. 2 (Art. 8-2) of the
Convention.
82. The Commission refers to its findings in the case of Brogan and
Others concerning the situation in Northern Ireland (Nos. 11209/84,
11234/84, 11266/84 and 11386/85, Brogan, Coyle, McFadden and Tracey
v. the United Kingdom, Comm. Report 14.5.87 paras. 80 and 106):
"80. It is against the background of a continuing terrorist
threat in Northern Ireland and the particular problems
confronting the security forces in bringing those responsible for
terrorist acts to justice that the issues in the present case
must be examined. In such a situation the Convention organs must
remain vigilant that a proper balance is struck between the
protection of individual rights and the need to defend democratic
society against the threats posed by organised terrorism. In the
Commission's opinion it is inherent in the whole of the
Convention that a fair balance has to be struck between the
general interest of the community and the interests of the
individual...
106. ... In so doing, the Commission takes into account that the
struggle against terrorism may require a particular measure of
sacrifice by each citizen in order to protect the community as
a whole against such crimes. Moreover, the Commission also bears
in mind the context in which the applicants were arrested and the
reality of problems presented by the arrest and detention of
suspected terrorists which have been alluded to by the Government
... and which may not be present in ordinary criminal cases."
83. As regards the facts of the present case the Commission notes the
conclusions of the domestic courts that the army held genuine
suspicions about the first applicant's involvement in the unlawful
collection of money for buying arms in the United States of America for
the IRA. The Commission also notes the findings of those courts that
the entry, search and arrest procedures used by the army pursuant to
section 14 of the 1978 Act were sensible and reasonable, being designed
to effect an "arrest with the minimum of danger and distress to all
concerned" (para. 44 above).
84. Against the Northern Irish terrorist background and in the light
of the facts of the present case, the Commission considers that the
entry and search of the applicants' home and the taking and retention
of a photograph and personal details about the first applicant were not
disproportionate to the legitimate aim of the prevention of crime. In
the Commission's opinion these measures may, therefore, be considered
as necessary under Article 8 para. 2 (Art. 8-2) of the Convention.
Conclusion
85. The Commission concludes, by 13 votes to 1, that there has been
no violation of Article 8 (Art. 8) of the Convention.
G. As regards Article 13 (Art. 13) of the Convention
86. Article 13 (Art. 13) of the Convention provides 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."
87. The first applicant complained that she had no effective domestic
remedy for her Convention claims under Articles 5 and 8 (Art. 5, 8) of
the Convention, contrary to Article 13 (Art. 13). The Government
contended, as regards the complaint under Article 5 (Art. 5-4), that
paragraph 4 of that provision is the lex specialis on remedies, but no
complaint under that paragraph had been made by the first applicant.
As regards the complaint under Article 8 (Art. 8), the Government
submitted that it was either unarguable and therefore no remedy under
Article 13 (Art. 13) was required, or it was unsubstantiated because
remedies do anyway exist in domestic law by way of a claim for damages
for trespass, wrongful arrest or wrongful imprisonment.
88. The Commission considers that the first applicant's complaint has
three aspects: first regarding her arrest and detention and the lack
of information about the reasons for the arrest, secondly regarding the
entry and search of her home, and thirdly regarding the taking and
retention of a photograph and personal details about her.
1. Arrest, detention and lack of information about the reasons
for arrest
89. As regards the remedies in relation to the first applicant's
arrest and detention and the lack of information given to her about the
reasons for her arrest, the Commission notes that Article 5 (Art. 5)
of the Convention provides two specific remedial channels: Article 5
para. 4 (Art. 5-4) which envisages the judicial determination of the
lawfulness of detention and release in the event of unlawful detention,
and Article 5 para. 5 (Art. 5-5) which envisages the payment of
compensation if the arrest or detention was unlawful. The first
applicant has made no complaint under Article 5 para. 4 (Art. 5-4) of
the Convention and the Commission has concluded above (para. 76) that
there has been a violation of Article 5 para. 5 (Art. 5-5) in her case.
In the light of this conclusion the Commission does not deem it
necessary to examine the first applicant's complaint again under
Article 13 (Art. 13) of the Convention because no separate issue arises
under this provision (cf. Eur. Court H.R., Fox, Campbell and Hartley
judgment of 30 August 1990, Series A no. 182, p. 21 para. 47).
Conclusion
90. The Commission concludes, by 13 votes to 1, that it is not
necessary to examine further the first applicant's complaint concerning
remedies for arrest, detention and the lack of information about the
reasons for arrest under Article 13 (Art. 13) of the Convention.
2. Entry and search
91. As regards the entry and search of the first applicant's home the
Commission refers to its decision on admissibility in the present case
concerning a similar complaint of the other applicants (Appendix II,
The Law, para. 3 under B. The other applicants, point (b)). The
Commission recalls that domestic law provides a remedy for the tort of
unlawful trespass to property. If the first applicant had sued the
army on this basis, no doubt they would have argued in defence that
they had had lawful authority for their actions under section 14 (3)
of the Northern Ireland (Emergency Provisions) Act 1978. Given the
apparent weakness of her case, the first applicant would probably have
had little prospect of succeeding in such an action. However, this
does not mean that the necessary domestic law structures do not exist.
Article 13 (Art. 13) of the Convention is not concerned with the
outcome of such procedures; what is relevant is only whether an
effective remedy exists.
Conclusion
92. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 13 (Art. 13) of the Convention in the case
of the first applicant concerning the entry and search of her home.
3. Taking and retention of photograph and personal details
93. As regards the first applicant's complaint concerning the taking
and retention of a photograph of her, the Commission notes that,
according to the judgments of the domestic courts in the present case,
the mere taking of a photograph of a person, without the use of force
and without using the photograph in such a way as to defame the person
concerned, is lawful under Northern Irish law. The domestic courts
also confirmed the lawfulness of the recording and retention of
personal details about the first applicant in a screening proforma.
The Commission considers that, insofar as the first applicant's
complaint is directed at the contents of the law, Article 13 (Art. 13)
did not give her a right to a remedy (see Eur. Court H.R., James and
Others judgment of 21 February 1986, Series A no. 98, p. 47
paras. 85-86). If, on the other hand, the first applicant can be
understood as complaining of the manner in which the domestic law was
applied in her case, the Commission finds that she could bring an
action before the Northern Irish courts and that the guarantee
contained in Article 13 (Art. 13) was respected.
Conclusion
94. The Commission concludes, by 10 votes to 4, that there has been
no violation of Article 13 (Art. 13) of the Convention in the case of
the first applicant as regards the taking and retention of a photograph
and personal details about her.
H. RECAPITULATION
95. The Commission concludes, by 11 votes to 3, that there has been
a violation of Article 5 para. 1 (Art. 5-1) of the Convention in the
case of the first applicant (para. 64 above).
96. The Commission concludes, by 10 votes to 4, that there has been
a violation of Article 5 para. 2 (Art. 5-2) of the Convention in the
case of the first applicant (para. 72 above).
97. The Commission concludes, by 11 votes to 3, that there has been
a violation of Article 5 para. 5 (Art. 5-5) of the Convention in the
case of the first applicant (para. 76 above).
98. The Commission concludes, by 13 votes to 1, that there has been
no violation of Article 8 (Art. 8) of the Convention (para. 85 above).
99. The Commission concludes, by 13 votes to 1, that it is not
necessary to examine further the first applicant's complaint concerning
remedies for arrest, detention and the lack of information about the
reasons for arrest under Article 13 (Art. 13) of the Convention
(para. 90 above).
100. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 13 (Art. 13) of the Convention in the case
of the first applicant concerning the entry and search of her home
(para. 92 above).
101. The Commission concludes, by 10 votes to 4, that there has been
no violation of Article 13 (Art. 13) of the Convention in the case of
the first applicant as regards the taking and retention of a photograph
and personal details about her (para. 94 above).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
PARTLY DISSENTING OPINION OF MR. H.G. SCHERMERS
Unlike the majority of the Commission I do not find a violation
of Article 5. In this respect I support the views explained by
Sir Basil Hall in paragraphs 1-7 of his partly dissenting opinion.
I agree with the majority with respect to the other parts of the
report.
PARTLY DISSENTING OPINION OF SIR BASIL HALL
1. I find myself in disagreement with the opinion of the majority
of the Commission in some respects.
2. The national courts held that Corporal D., who arrested the first
applicant, had a genuine suspicion that she had committed the offence
of collecting money for the purchase of arms by the IRA, a proscribed
organisation. This was on the basis of information, oral and written,
furnished at a briefing which took place at 06.30 on the day in
question. Corporal D. was instructed to arrest the applicant and did
so at 07.00.
3. While Corporal D. no doubt had genuine suspicion that the
applicant had committed the offence, the requirement of the Convention
is that there should be reasonable suspicion. She was, it appears,
implementing orders and not herself deciding whether an arrest should
take place. In the short period of the briefing one may well doubt
whether she would have the basis for holding a reasonable suspicion.
However the Convention does not, in my view, require that the arresting
officer should hold the reasonable suspicion. It will suffice if he
or she acts on the instructions of someone who has - for example an
investigating judge, a magistrate, or in this case a superior officer.
The question for the Commission is, therefore, whether the military
authorities had a reasonable suspicion that the first applicant had
committed the offence in question.
4. The ground for the suspicion was, the Government states, that
there existed specific and strong grounds founded on information
received from a reliable source that the first applicant had committed
the offence. That clearly constituted a ground on which a reasonable
suspicion may be formed. In the investigation of criminal offences
there is frequently a need to depend on the information furnished by
sources whose identity cannot be disclosed or as sources they will
become valueless. In the investigation of terrorist linked offences
it is particularly important that the identity and nature of sources
should not be revealed, because among other things, of the obvious risk
of reprisals and even death. The reluctance of the Government, indeed
of the army, to identify the source does not, of itself, cast any doubt
on the validity of the information. Nor is there any other material
which casts doubt. Far from that; the involvement of the applicant's
brothers in the procurement of arms in the United States at least leads
to the conclusion that there was no inherent improbability in the
information furnished by the source. Nor did the applicant's behaviour
after arrest, when she refused to answer questions, put the validity
of the information in doubt.
5. Accordingly, notwithstanding the decision of the Court in the
Fox, Campbell and Hartley case, I think that on the facts of this case
there was reasonable suspicion of the first applicant having committed
an offence, and that there has been no violation of Article 5 para. 1
of the Convention, in particular Article 5 para 1 (c).
6. Nor, in my view was there a violation of Article 5 para. 2 of the
Convention. The first applicant was told on arrest that she was being
arrested under section 14 of the Northern Ireland (Emergeny Provision)
Act 1978. That bare indication of the legal basis of the arrest does
not suffice for the purposes of Article 5 para. 2, which requires that
the person arrested must be informed of the reasons for his or her
arrest. At the screening centre, about an hour and a half later, she
was asked questions relating to her brothers. They had been convicted
a month earlier in the United States of America of being involved in
the purchase of arms for the IRA. It must, from this questioning, have
been apparent to her that she was suspected of being similarly
involved, and that that was the reason for her being arrested.
7. Since I have found no contravention of the provisions of
Article 5, there has, in my view, been no violation of
Article 5 para. 5 of the Convention.
8. I agree that there was no violation of the applicants' rights
under Article 8 of the Convention.
9. As regards Article 13 of the Convention, I agree that there was
an effective remedy before a national authority in respect of the entry
and search of the applicants' home.
10. Since I have not found a violation of Article 5 para. 5, I must
also consider whether there was an effective remedy in respect of the
first applicant's complaints of violations of Article 5. It is clear
that there was none, and in relation to this part of the case there was
a breach of Article 13 of the Convention.
11. As to the complaint of a lack of remedy for a violation of
Article 8 in the taking and retention of a photograph and personal
details, the law applying in Northern Ireland contains no protection
for an individual in the first applicant's situation. That law
recognises no general right to privacy or to respect for private life.
Accordingly there is no effective remedy before a national authority,
and in consequence there is also a violation of Article 13 of the
Convention in this respect.
PARTLY DISSENTING OPINION OF MRS. J. LIDDY
The majority of the Commission has found no violation of
Article 8 of the Convention. I consider that because of the particular
facts in this case the issue arising under that Article are
indissolubly linked with the issues under Article 5 para. 1 of the
Convention, in relation to which there has been a finding of violation.
The detention of the first applicant was not based on a
"reasonable suspicion" that she had committed an offence. It follows
that all of the surrounding circumstances - entry into her home,
recording and retention of personal details, photographing - suffered
from this underlying flaw. In the absence of a reasonable suspicion
that the first applicant had committed an offence, these other measures
that were taken against her cannot be regarded as necessary in a
democratic society for the prevention of crime.
I have accordingly voted for a finding of violation of Article 8
of the Convention.
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
_________________________________________________________________
28.09.88 Introduction of application
24.10.88 Registration of application
Examination of admissibility
05.09.89 Commission's decision to give
notice of application to the
respondent Government and to
invite the parties to submit
written observations on
admissibility and merits
07.02.90 Government's observations
11.04.90 Applicants' observations
07.09.90 Commission's decision to invite the
parties to submit comments on the
significance for the present case of
the Court's Fox, Campbell and Hartley
judgment
31.10.90 Applicants' comments
24.11.90 Government's comments
03.09.91 Commission's decision to hold a
hearing
10.12.91 Hearing on admissibility and merits,
the parties being represented as
follows:
Government:
Mr. H. Llewellyn, Agent
Mr. N. Bratza, QC, Counsel
Mr. R. Weatherup, Counsel
Three Government advisers attended
Applicants:
Mr. R. Weir, SC, Counsel
Mr. S. Tracey, Counsel
Mr. P. Madden, Solicitor
10.12.91 Commission's deliberations and
decision to declare application
partially admissible
Examination of the merits
17.01.92 Parties invited to submit further
written observations on the merits
and information
14.04.92 Government's observations
09.02.93 Commission's deliberations on the
merits and on the text of its
Article 31 Report. Final votes taken.
17.02.93 Adoption of Report