Lexploria

Application Nos. 15096/89, 15097/89 and 15098/89

Paul McGLINCHEY, Paul QUINN and James BARROW

against

THE UNITED KINGDOM

REPORT OF THE COMMISSION

(adopted on 7 December 1990)

TABLE OF CONTENTS

Pages

I. INTRODUCTION

(paras. 1 - 15) ...................................... 1 - 3

A. The applications

(paras. 2 - 5) ................................... 1

B. The proceedings

(paras. 6 - 10) .................................. 1 - 2

C. The present Report

(paras. 11 - 15) ................................. 2 - 3

II. ESTABLISHMENT OF THE FACTS

(paras. 16 - 19) ..................................... 4 - 5

III. OPINION OF THE COMMISSION

(paras. 20 - 33) ..................................... 6 - 8

A. Complaint declared admissible

(para. 20) ....................................... 6

B. Points at issue

(para. 21) ....................................... 6

C. As regards Article 5 para. 3 of the Convention

(paras. 22 - 27) ................................. 6 - 8

Conclusion (para. 27) ............................ 8

D. As regards Article 5 para. 5 of the Convention

(paras. 28 - 31) ................................. 8

Conclusion (para. 31) ............................ 8

E. Recapitulation

(paras. 32 - 33) ................................. 8

APPENDIX I : HISTORY OF THE PROCEEDINGS ................ 9

APPENDIX II : DECISION ON THE ADMISSIBILITY ............. 10 - 12

I. INTRODUCTION

1. The following is an outline of the cases, as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The applications

2. The first applicant, Paul Gerard McGlinchey, was born in

1963. The second applicant, Paul Christopher Quinn, was born in 1961.

The third applicant, James Gerard Barrow, was born in 1957. They all

have dual Irish and British nationality. They are unemployed and live

in Londonderry, Northern Ireland.

3. The applicants are represented before the Commission by

Messrs. McCormick and Nicholson, solicitors, Newton Stewart,

Wigtownshire, Scotland.

4. The applications are directed against the United Kingdom.

The respondent Government are represented by their Agent, Mrs. A.

Glover, of the Foreign and Commonwealth Office.

5. The applications concern the applicants' arrest and detention

under Section 12 of the Prevention of Terrorism (Temporary Provisions)

Act 1984, which detention they claim was in breach of their right to

be brought promptly before a judge, ensured by Article 5 para. 3 of

the Convention, and for which breach no compensation was available,

contrary to Article 5 para. 5 of the Convention.

B. The proceedings

6. The applications were introduced on 29 March 1989 and

registered on 8 June 1989. After a preliminary examination of the

cases by the Rapporteur, the Commission decided on 2 October 1989 to

join the applications, to give notice of them to the respondent

Government, pursuant to Rule 42 para. 2 (b) of its Rules of Procedure

(former version), and to invite the parties to submit their written

observations on the admissibility and merits of the applications.

7. On 19 January 1990 the Government informed the Commission that

they waived objections to the admissibility of the applications in

view of their similarity to the case of Brogan and Others (Eur. Court

H.R., Brogan and Others judgment of 29 November 1988, Series A

no. 145-B). The Government pointed out that since that judgment they

have lodged a specific derogation under Article 15 of the Convention

concerning Prevention of Terrorism legislation, whereas the events

complained of in these cases took place before that judgment and

derogation.

8. On 4 August 1990 the applicants' representatives informed the

Commission that they had taken note of the Government's observations,

but maintained their applications and the claim of breaches of Article

5 paras. 3 and 5 of the Convention, for which breaches they requested

that the Commission and Court fix an appropriate level of damages. The

Commission had granted the applicants legal aid on 16 February 1990.

9. On 2 July 1990 the Commission declared the applications

admissible. The text of its decision was sent to the parties on

12 July 1990 and they were invited to submit any observations they

might have on the merits of the cases. The Government declined this

invitation on 27 September 1990 in view of the aforementioned judgment

in the case of Brogan and Others. The applicants did not submit any

observations either.

10. After declaring the cases 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. In the light of the parties' reaction, the

Commission 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 of the Convention and after deliberations and

votes, the following members being present:

MM. C. A. NØRGAARD, President

J. A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. S. GÖZÜBÜYÜK

A. WEITZEL

H. G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

M. C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A. V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

12. The text of this Report was adopted on 7 December 1990 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, is held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

16. At about 22.00 h on 29 September 1988 the applicants were

stopped by police officers as they were on the point of boarding a

ferry at Stranraer, Scotland, which was going to Northern Ireland.

They were informed that they were being arrested under the Prevention

of Terrorism (Temporary Provisions) Act 1984 and detained at 22.10 h

under Section 12 of the Act which provides as follows:-

"(1) A constable may arrest without warrant a person

whom he reasonably suspects to be -

(a) a person guilty of an offence under Sections 1,

9, 10 or 11 of this Act;

(b) a person who is or has been concerned in the

commission, preparation or instigation of acts

of terrorism;

(c) a person subject to an exclusion order.

...

(3) The acts of terrorism to which this Part of the Act

applies are: -

(a) acts of terrorism connected with the affairs of

Northern Ireland; and

(b) acts of terrorism of any other description except

acts connected solely with the affairs of the United

Kingdom or any part of the United Kingdom other than

Northern Ireland.

(4) A person arrested under this section shall not be

detained in right of the arrest for more than forty-eight hours

after his arrest, but the Secretary of State may, in any

particular case, extend the period of forty-eight hours by a

further period or periods specified by him.

(5) Any such further period or periods shall not exceed

five days in all.

(6) The following provisions (requirement to bring an

accused person before the court after his arrest) shall not

apply to a person detained in right of the arrest -

...

(d) Article 131 of the Magistrates' Courts (Northern

Ireland) Order 1981; ..."

17. On 1 October 1988, the Secretary of State for the Home Office

granted an extension of 72 hours in the applicants' detention, in

accordance with Section 12 (4) of the Act.

18. On 3 October 1988, the police made an application for

Exclusion Orders in respect of the three applicants. On 4 October

1988, the Secretary of State granted the Exclusion Orders, which were

served on the applicants at approximately 18.00 h. These Orders, made

pursuant to Section 4 (1) and (2) of the 1984 Act, stated that the

Secretary of State was satisfied that the applicants were or had been

concerned in the commission, preparation or instigation of acts of

terrorism designed to influence public opinion or Government policy

with respect to affairs in Northern Ireland, and prohibited the

applicants from being in or entering Great Britain. The applicants

were released at 18.30 h into the custody of the Captain of the Ferry

at Stranraer and duly returned to Northern Ireland. They had thus been

detained for a total of four days, 20 hours and 30 minutes by the

police.

19. The applicants' appeals against the Exclusion Orders were

dismissed on 25 November 1988 and the three year Exclusion Orders

confirmed.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

20. The Commission has declared admissible the applicants'

complaint that their arrest and detention under Section 12 of the

Prevention of Terrorism (Temporary Provisions) Act 1984 were in breach

of Article 5 paras. 3 and 5 (Art. 5-3, 5-5) of the Convention.

B. Points at issue

21. The following are the points at issue in the present cases:

- whether the applicants were brought promptly before a judge

or other officer authorised by law to exercise judicial power,

as required by Article 5 para. 3 (Art. 5-3) of the Convention;

- whether the applicants had an enforceable right to

compensation, as required by Article 5 para. 5 (Art. 5-5)

of the Convention.

C. As regards Article 5 para. 3 (Art. 5-3) of the Convention

22. Article 5 para. 3 (Art. 5-3) of the Convention provides as

follows:

"Everyone arrested or detained in accordance with the

provisions of paragraph 1(c) (Art. 5-1-c) of this Article shall be

brought promptly before a judge or other officer authorised

by law to exercise judicial power and shall be entitled to

trial within a reasonable time or to release pending trial.

Release may be conditioned by guarantees to appear for

trial."

23. The applicants have complained that they were not brought

"promptly" before a judge after their arrest, contrary to Article 5

para. 3 (Art. 5-3) of the Convention. They were held for four days,

20 hours and 30 minutes before being released and removed from Great

Britain. At no point during their detention were they brought before a

judge to be charged with a criminal offence.

24. The Government have not sought to justify the length of the

applicants' detention without judicial control in view of the Court's

judgment in the case of Brogan and Others involving similar periods of

detention under Section 12 of the Prevention of Terrorism (Temporary

Provisions) Act 1984 (Eur. Court H.R., Brogan and Others judgment of

29 November 1988, Series A no. 145 - B).

25. The Commission notes that at paragraphs 61 and 62 of that

judgment the Court held as follows:

"61. The investigation of terrorist offences undoubtedly

presents the authorities with special problems. ... The

Court accepts that, subject to the existence of adequate

safeguards, the context of terrorism in Northern Ireland has

the effect of prolonging the period during which the

authorities may, without violating Article 5 para. 3 (Art. 5-3),

keep a person suspected of serious terrorist offences in custody

before bringing him before a judge or other judicial officer.

The difficulties, alluded to by the Govenment, of

judicial control over decisions to arrest and detain

suspected terrorists may affect the manner of implementation

of Article 5 para. 3 (Art. 5-3), for example in calling for

appropriate procedural precautions in view of the nature of the

suspected offences. However, they cannot justify, under

Article 5 para. 3 (Art. 5-3), dispensing altogether with 'prompt'

judicial control.

62. ... the scope for flexibility in interpreting and

applying the notion of 'promptness' is very limited. In the

Court's view, even the shortest of the four periods of

detention, namely the four days and six hours spent in

police custody by (one of the applicants) falls outside the

strict constraints as to time permitted by the first part of

Article 5 para. 3 (Art. 5-3). To attach such importance to the

special features of this case as to justify so lengthy a

period of detention without appearance before a judge or

other judicial officer would be an unacceptably wide

interpretation of the plain meaning of the word 'promptly'.

An interpretation to this effect would import into Article 5

para. 3 (Art. 5-3) a serious weakening of a procedural guarantee to

the detriment of the individual and would entail

consequences impairing the very essence of the right

protected by this provision. The Court thus has to

conclude that none of the applicants was either brought

'promptly' before a judicial authority or released

'promptly' following his arrest. The undoubted fact that

the arrest and detention of the applicants were inspired by

the legitimate aim of protecting the community as a whole

from terrorism is not on its own sufficient to ensure

compliance with the specific requirements of Article 5 para. 3

(Art. 5-3).

There has thus been a breach of Article 5 para. 3 (Art. 5-3)

in respect of all four applicants."

26. In view of the fact that the applicants in the present cases

were detained for a longer period than that of four days and six hours

mentioned in the above extract from the Brogan and Others judgment,

namely a period of four days, 20 hours and 30 minutes, the Commission

is of the opinion that the applicants were not brought "promptly"

before a judge, as required by Article 5 para. 3 (Art. 5-3) of the

Convention.

Conclusion

27. The Commission concludes, by a unanimous vote, that

there has been a violation of Article 5 para. 3 (Art. 5-3) of the

Convention.

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

28. Article 5 para. 5 (Art. 5-5) of the Convention guarantees

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."

29. The applicants complained that they have no enforceable right

to compensation in domestic law for the breach of Article 5 para. 3

(Art. 5-3) of the Convention which they suffered. The Government make

no submissions on this claim in view of the Court's judgment in the

case of Brogan and Others, in which it found a breach of Article 5

para. 5 (Art. 5-5) of the Convention (ibid. paras. 66 - 67).

30. In the present cases, the applicants were arrested and

detained lawfully under domestic law but, as the Commission has

concluded above, in breach of Article 5 para. 3 (Art. 5-3) of the

Convention. This violation could not give rise, either before or after

such a finding by the Convention organs, to an enforceable claim for

compensation by the applicants before the courts in the United

Kingdom. The applicants do not, therefore, have any enforceable right

to compensation under Article 5 para. 5 (Art. 5-5) of the Convention.

Conclusion

31. The Commission concludes, by a unanimous vote, that there has

been a violation of Article 5 para. 5 (Art. 5-5) of the Convention.

E. Recapitulation

32. The Commission concludes, by a unanimous vote, that there

has been a violation of Article 5 para. 3 (Art. 5-3) of the

Convention (para. 27).

33. The Commission concludes, by a unanimous vote, that there has

been a violation of Article 5 para. 5 (Art. 5-5) of the Convention

(para. 31).

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

______________________________________________________________________

29 March 1989 Introduction of the applications

8 June 1989 Registration of the applications

Examination of admissibility

2 October 1989 Commission's decision to join the

applications and to invite the

parties to submit their written

observations on admissibility and

merits

19 January 1990 Government's waiver of objections to

admissibility

16 February 1990 Legal aid granted to applicants

4 April 1990 Applicants' comments on Government's

waiver

2 July 1990 Commission's decision to declare the

applications admissible

Examination of the merits

12 July 1990 Parties invited to submit written

observations on the merits

27 September 1990 Government's indication waiving the

opportunity to submit observations

on the merits

December 1990 Commission's deliberations on the

merits and final votes

December 1990 Adoption of the present Report

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McGLINCHEY AND OTHERS v. THE UNITED KINGDOM

McGLINCHEY AND OTHERS v. THE UNITED KINGDOM

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