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

Bernard FOX, Maire CAMPBELL, Samuel HARTLEY

against

the UNITED KINGDOM

REPORT OF THE COMMISSION

(adopted on 4 May 1989)

- i -

TABLE OF CONTENTS

                                                            Page

I.      INTRODUCTION

        (paras. 1 - 22) ..................................   1 - 3

        A. The application

           (paras. 2 - 7) ................................     1

        B. The proceedings

           (paras. 8 - 17) ...............................   1 - 2

        C. The present report

           (paras. 18 - 22) ..............................   2 - 3

II.     ESTABLISHMENT OF THE FACTS

        (paras. 23 - 41) .................................   4 - 7

        A. Particular circumstances of the case

           (paras. 23 - 28) ..............................     4

        B. Factual basis of suspicion

           (paras. 29 - 30) ..............................     5

        C. Domestic law and practice

           (paras. 31 - 41) ..............................   5 - 7

III.    OPINION OF THE COMMISSION

        (paras. 42 - 85) .................................   8 - 14

        A. Points at issue

           (para. 42) ....................................     8

        B. General considerations

           (paras. 43 - 45) ..............................   8 - 9

        C. Article 5 para. 1

           (paras. 46 - 62) ..............................  9 - 11

        D. Article 5 para. 2

           (paras. 63 - 69) .............................. 11 - 12

        E. Article 5 para. 4

           (paras. 70 - 75) .............................. 12 - 13

        F. Article 5 para. 5

           (paras. 76 - 80 ) ............................. 13 - 14

        G. Article 13

           (paras. 81 - 84) ..............................    14

        H. Recapitulation ................................    14

           (para. 85)

- ii -

                                                             Page

        Dissenting Opinion of Mr.  Busuttil, Mr.  Gözübüyük

        Sir Basil Hall and Mr.  Martinez .................. 15 - 16

        Dissenting Opinion of Mr.  Danelius joined by       17 - 18

        Mr.  Jörundsson ...................................

        Partly Concurring and Partly Dissenting Opinion

        of Mrs.  Liddy ....................................    19

APPENDIX I     : History of the proceedings before the

                 Commission ..............................    20

APPENDIX II    : Decision on the admissibility of the

                 application ............................. 21 - 42

I.      INTRODUCTION

1.      The following is an outline of the case submitted to the

European Commission of Human Rights and of the procedure before the

Commission.

A.      The applications

2.      The first applicant, Mr.  Bernard Fox, is an Irish citizen born

in 1951.  He resides in Belfast, Northern Ireland.

3.      The second applicant, Ms.  Maire Campbell, is an Irish citizen

born in 1959.  She resides in Belfast, Northern Ireland.  She is the

wife of the first applicant but is separated from him.

4.      The third applicant, Mr.  Samuel Hartley, is an Irish citizen

born in 1962.  He resides in Waterfoot, Co.  Antrim, Northern Ireland.

5.      The applicants are represented before the Commission by Messrs

Madden & Finucane, solicitors, Belfast.

6.      The applications are directed against the United Kingdom.  The

respondent Government are represented by their Agent, Mr.  M. C. Wood,

Foreign and Commonwealth Office.

7.      The case concerns the arrest and detention of the applicants

under Section 11 (1) of the Northern Ireland (Emergency Provisions)

Act 1978 as suspected terrorists.  The applicants invoke Articles 5

and 13 of the Convention.

B.      The proceedings

8.      The first and second applications (Fox and Campbell) were

introduced on 16 June 1986 and registered on 19 June 1986.

9.      The third application (Hartley) was introduced on 2 September

1986 and registered on 8 September 1986.

10.     On 11 December 1986 the Commission decided in accordance with

Rule 42 para. 2 (b) of its Rules of Procedure to give notice of the

applications to the respondent Government and to invite them to submit

before 3 April 1987 their observations in writing on the admissibility

and merits of the applicants' complaints under Articles 5 and 13 of

the Convention.

11.     The Commission further decided on the same date to join the

applications pursuant to Rule 29 of its Rules of Procedure.

12.     The observations of the respondent Government were submitted

on 14 May 1987 after an extension of the time limit had been obtained.

The applicants' observations in reply were submitted on 10 September

1987 after a similar extension of the time limit had been granted.

13.     The Commission next considered the applications on 9 December

1987 and decided to invite the parties to a joint hearing on the

admissibility and merits of the case insofar as it raised issues under

Articles 5 and 13 of the Convention.

14.     At the hearing, which was held on 10 May 1988, the applicants

were represented by Mr.  R. Weir, Q.C., Mr.  S. Treacy, of counsel,

and Mr.  P. Finucane, solicitor.   The Government were represented by

Mr.  M. C. Wood, Mr.  A. Campbell, Q.C., and Mr.  N. Bratza, Q.C., of

counsel, as well as two Government advisers.

15.     Following the hearing, the Commission declared the case

admissible and invited the parties to submit any further evidence or

additional observations that they wished to put before the

Commission.  The Government were also requested to provide further

background information relevant to the nature and strength of the

suspicion underlying the applicants' arrest and detention.  The

Government's answers to this request were received on 15 June 1988 and

subsequently communicated, for information, to the applicants' legal

representatives.

16.     In a letter dated 30 September 1988 the Government indicated

that they did not wish to submit any further evidence or additional

observations.  No further evidence or additional observations were

received from the applicants.

17.     After declaring the case admissible, the Commission, acting in

accordance with Article 28 (b) of the Convention, placed itself at the

disposal of the parties with a view to securing a friendly settlement

of the case.  In the light of the parties' reactions, the Commission

now finds that there is no basis on which a friendly settlement can be

effected.

C.      The present Report

18.     The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes in plenary session, the following members being present:

              MM. J. A. FROWEIN, Acting President

                  S. TRECHSEL

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A. S. GÖZÜBÜYÜK

                  H. G. SCHERMERS

                  H. DANELIUS

             Mrs.  G. H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C. L. ROZAKIS

             Mrs.J. LIDDY

19.     The text of this Report was adopted by the Commission on

4 May 1989 and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

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

Convention, is

          (i) to establish the facts, and

         (ii) to state an opinion as to whether the facts found

              disclose a breach by the State concerned of its

              obligations under the Convention.

21.     A schedule setting out the history of the proceedings

before the Commission is attached as Appendix I and the Commission's

Decision on the admissibility of the application forms Appendix II.

22.     The full text of the parties' submissions, together with

documents lodged as exhibits, are held in the archives of the

the Commission.

II.     ESTABLISHMENT OF THE FACTS

A.  Particular circumstances of the case

23.     On 5 February 1986 the first and second applicants (Mr.

Bernard Fox and Ms.  Maire Campbell) were stopped by the police in

Belfast and brought to Woodbourne Royal Ulster Constabulary station

where a full search of the vehicle in which they were travelling was

carried out.  Twenty-five minutes after their arrival at the police

station, at 15.40 hours, they were formally arrested under Section 11 (1) of

the Northern Ireland (Emergency Provisions) Act 1978.  They were

informed that they were being arrested under this Section and that the

arresting officer suspected them of being terrorists.  They were also

informed that they could be detained for up to 72 hours.  The

applicants were taken to Castlereagh Police Office.   The first

applicant was interviewed by the police on the same day between 20.15

hours and 22.00 hours.  The second applicant was interviewed

separately between 20.15 hours and 22.00 hours.

24.     During their detention under Section 11 the applicants were

asked about their suspected involvement that day in intelligence

gathering and courier work for the Provisional Irish Republican Army.

They were also questioned about their suspected membership of this

organisation.  No charges were brought against either applicant.  The

first applicant was released at 11.40 hours on 7 February 1986 and the

second applicant, five minutes later, at 11.45 hours that day.

Excluding the time taken to bring them to the police station, the

first applicant had thus been detained 44 hours and the second

applicant 44 hours and 5 minutes.

25.     The applicants state that they were not informed of the reasons

for their arrest nor told that there was any charge against them

except that they were arrested as suspected terrorists.  They were not

brought before a judge or given any opportunity to apply for release

on bail.

26.     The third applicant (Mr.  Samuel Hartley) was arrested at his

home, in his parents' presence, at 07.55 hours on 18 August 1986 under

Section 11 of the 1978 Act.  He was informed at the time of his arrest

that he was being arrested under Section 11 (1) as he was suspected to

be a terrorist.  He was taken to Antrim police station where he was

interviewed by the police between 11.05 hours and 12.15 hours.

27.     He was suspected of involvement in a kidnapping incident which

had taken place earlier that month in Ballymena when a young man and

woman were forcibly taken away by masked armed men.  Those involved in

the kidnapping were thought to have connections with the Provisional

IRA.  The motive behind the kidnapping was believed to have been an

attempt to force the young woman to retract an allegation of rape made

the previous year as a result of which a person had been convicted and

sentenced to three years' imprisonment.  During the applicant's

detention he was asked about his suspected involvement in the

kidnapping incident and his suspected membership of the Provisional

IRA.  He denied any such involvement.  No charges were brought against

him.  He was released on 19 August 1986 at 14.10 hours after 30 hours

and 15 minutes in detention.

28.     On 6 February 1986 the first two applicants initiated

proceedings for habeas corpus.  The applicants were released, however,

before the applications could be heard by a judge.

B.  Factual basis of suspicion

29.     No further information concerning the nature and strength of

the suspicions underlying the arrest and detention of the applicants

has been provided by the Government.  They state that in cases of

suspected terrorism the information on which arrests are based is

frequently of acute sensitivity.  To reveal it outside an immediate

circle would have the effect of revealing the extent of the

authorities' knowledge and, secondly, where the suspicions are based

upon information provided by an informer, could lead to the informer

being compromised and to his or her death at the hands of terrorists.

The Government add, however, that the information underlying the

suspicion against the applicants Fox and Campbell was already known to

the police when they stopped their car on 5 February 1986.

30.     The Government state that the first applicant, Mr.  Fox, had

been convicted on 21 February 1979 of possession of explosive

substances and of causing an explosion and of two other offences of

causing an explosion.  For each of these four offences he was sentenced

to 12 years' imprisonment, the sentences running concurrently.  On the

same occasion he was sentenced to five years' imprisonment, also

concurrent, for belonging to the IRA.  He was further convicted on

27 April 1979 of a further offence of possession of explosives and

received a further 12-year concurrent sentence.  The second applicant,

Ms.  Campbell, received an 18 months' suspended sentence in 1979 after

being convicted of involvement in explosives offences.

C.  Relevant domestic law and practice

1.      Introduction

31.     In the United Kingdom special legislation has been introduced

for the purpose of combating terrorism in Northern Ireland or

connected with the affairs of Northern Ireland.  The Northern Ireland

(Emergency Provisions) Act 1978 and its predecessors, the Northern

Ireland (Emergency Provisions) Act 1973 and the Northern Ireland

(Emergency Provisions) (Amendment) Act 1975 were enacted to enable the

security forces to deal more effectively with the threat of terrorism.

2.      Section 11 of the Northern Ireland

        (Emergency Provisions) Act 1978

32.     Section 11 of the 1978 Act confers a power to arrest and

detain suspected terrorists for a maximum of 72 hours and a power for

them to be photographed and for finger and palm prints to be taken.

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

        Section 11 (1) states:

       "Any constable may arrest without warrant any person

        whom he suspects of being a terrorist."

        Section 11 (3) states:

"A person arrested under this section shall not be detained

in right of the arrest for more than seventy-two hours after

his arrest, and section 132 of the Magistrates' Courts Act

(Northern Ireland) 1964 and section 50(3) of the Children

and Young Persons Act (Northern Ireland) 1968 (requirement

to bring arrested person before a magistrates' court not

later than forty-eight hours after his arrest) shall not

apply to any such person."

Sub-section (2) gives a power to enter and search premises where a

suspected terrorist is or is suspected of being.  Under Sub-section 4

persons arrested under Section 11 can be photographed and their

finger prints and palm prints taken by a constable.

34.     The power of arrest and detention under Section 11 (1) of the

1978 Act was originally an integral part of the detention scheme which

replaced internment (Section 10 (5) of and Schedule 1 to the 1973 Act

as amended by the 1975 Act).  Since the powers in Section 10 (5) and

Schedule 1 ceased to be used in 1975 and following the lapse of the

successsor provision in the 1978 Act in 1980, the Section 11 power has

been used as a free standing power of arrest and detention.

35.     Since their enactment in 1973, these powers of arrest and

detention have had to be renewed periodically by an order made by the

Secretary of State with the approval of both Houses of Parliament.

Under the 1978 Act the provisions became renewable on a six-monthly

basis (Section 33).  The powers in Section 11 have been renewed every

six months.

36.     Section 31 (1) of the 1978 Act defines "terrorist" and

"terrorism".  A terrorist is "a person who is or has been concerned in

the commission or attempted commission of any act of terrorism or in

directing, organising or training persons for the purpose of

terrorism".  Terrorism is defined as "the use of violence for the

purpose of putting the public or any section of the public in fear".

37.     In 1983 the Secretary of State for Northern Ireland invited

Sir George Baker, a retired senior member of the judiciary, to examine

the operation of the 1978 Act to determine whether its provisions

struck the right balance between maintaining, as fully as possible, the

liberties of the individual whilst conferring on the security forces

and courts adequate powers to protect the public from terrorist crime.

There followed a number of recommendations in a report which was

published in April 1984.

38.     Section 11 (1) of the 1978 Act has now been replaced by Section

6 of the Northern Ireland (Emergency Provisions) Act 1987 which came

into effect on 15 June 1987.  This new power is confined to conferring

a power of entry and search of premises for the purpose of arresting

persons under Section 12 of the Prevention of Terrorism (Temporary

Provisions) Act 1984.

39.     The exercise of the arrest power in Section 11 (1) has been

considered by the House of Lords in the case of McKee v.  Chief

Constable [1984] 1 W.L.R. 1358.  In that case the House of Lords

decided that the proper exercise of the power of arrest in Section 11

depended entirely upon the state of mind of the arresting officer.

It was necessary that the arresting officer suspected the person he

was arresting to be a terrorist; otherwise the arrest was unlawful.  He

could form that suspicion on the basis of information given to him by

his superior officer, but he could not arrest under Section 11 on the

instructions of a superior officer who held the necessary suspicion

unless the arresting officer himself held that suspicion.   Lord

Roskill, with whom the other Law Lords agreed, stated that the suspicion

need not be a reasonable suspicion but it had to be honestly held.  The

requirement of a suspicion in the mind of a constable was a subjective

test.  That being so, the courts could only enquire as to the bona

fides of the existence of the suspicion.  The questions which were

required to be answered appear from Lord Roskill's additional

statement: "Did the constable in his own mind suspect and in my view

the only other question of the courts is, was this an honest opinion?"

40.     In addition to the arresting officer having an honestly held

suspicion that the person concerned was a terrorist, the person who

is arrested must be informed of the true grounds for the arrest in

accordance with the requirements of a valid arrest set down by the

House of Lords in the decision in Christie v.  Leachinsky [1947]

A.C. 573.  The person arrested must be informed of the true grounds

for his arrest at the time he is taken into custody or, if special

circumstances exist to excuse this, as soon thereafter as it is

reasonably practicable to inform him.  Technical or precise language

need not be used provided the detainee knows in substance why.  A

person is validly arrested under Section 11 (1) of the 1978 Act if he

is informed that he is being arrested under this provision as a

suspected terrorist (in re McElduff [1972] N.I. 1 and McKee v.  Chief

Constable, loc. cit.)

3.      Remedies

41.     The main remedies available to persons detained under the 1978

Act are an action for a writ of habeas corpus and a civil action

claiming damages for false imprisonment (see, mutatis mutandis, Eur.

Court H.R., Brogan judgment of 29 November 1988 to be published as

Series A no. 145-B, paras. 39-41).  In either case the court will

examine the lawfulness of the arrest and detention.  Review, in the

case of arrest under Section 11 (1), will encompass procedural

questions such as whether the arrested person has been properly

informed of the true grounds for his arrest (Christie v.  Leachinsky,

loc. cit.).  It will also encompass whether the conditions for arrest

under Section 11 (1) have been complied with.  As noted above, a court

will not enquire into the reasonableness of the suspicion grounding

the arrest but rather whether the suspicion of the arresting officer

is an honest one (see McKee v.  Chief Constable, loc. cit.)

III.    OPINION OF THE COMMISSION

A.  Points at issue

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

        Article 5 (Art. 5) of the Convention

-       Whether the applicants' arrest and detention were justified

        under Article 5 para. 1 (Art. 5-1),

-       Whether the applicants were informed promptly of the reasons

        for their arrest and of any charge against them as required

        by Article 5 para. 2 (Art. 5-2),

-       Whether the applicants were able to challenge the lawfulness

        of their detention before a court as required by Article 5

        para. 4 (Art. 5-4),

-       Whether the applicants had an enforceable right to

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

        Article 13 (Art. 13) of the Convention

-       Whether the applicants had an effective remedy with regard to

        their Convention complaints as required by Article 13 (Art. 13).

B.  General considerations

43.     The Commission recalls that the Convention organs are not

called upon to examine in abstracto the compatibility of legislation

or of a particular legislative provision with the Convention (see, for

example, Eur.  Court H.R., Ashingdane judgment of 28 May 1985, Series A

no. 93, p. 25, para. 59).  The Commission's task is rather to examine

the circumstances and manner in which the law was applied in the

particular circumstances of the case.

44.     The applicants were arrested under emergency legislation

which was adopted to deal with terrorist activities in Northern

Ireland.  Both the Commission and the Court have taken note of the

growth of terrorism in modern society and have stressed the need for a

proper balance to be struck between the defence of the institutions of

democracy in the common interest and the protection of individual

rights (see Eur.  Court H.R., Klass and Others judgment of 6 September

1978, Series A no. 28, pp.23 and 27-28, paras. 48-49 and 59;  also

Brogan and Others judgment of 29 November 1988, to be published in

Series A no. 145-B, para. 48).

45.     Finally, in this context, the Commission recalls that the

respondent Government withdrew on 22 August 1984 a notice of

derogation under Article 15 (Art. 15) of the Convention which had been lodged

because of the existence of an emergency situation in Northern Ireland

(see Brogan judgment, loc. cit., para. 48).  The respondent

Government have not claimed that the arrest and detention of the

applicants under Section 11 of the Northern Ireland (Emergency Provisions) Act

1978 is covered by Article 15 (Art. 15) of the Convention.  The examination of

the case must, therefore, proceed on the basis that the Articles of the

Convention which have been invoked in the present case are fully applicable.

However, this does not preclude the Commission from examining the applicants'

complaints against the background of the terrorist campaign in Northern Ireland

and the particular problems confronting the security forces in bringing those

responsible for terrorist acts to justice and making its own assessment of

whether the balance struck is a correct one under the Convention (see Brogan

and Others judgment, loc. cit., para. 48; also Comm.  Report 14.5.87, p. 16,

paras. 80-86).

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

46.     The applicants allege a breach of Article 5 para. 1 (Art. 5-1) of the

Convention which, in so far as relevant, provides:

"1.     Everyone has the right to liberty and security of

person.  No one shall be deprived of his liberty save in

the following cases and in accordance with a procedure

prescribed by law:

...

        (c)     the lawful arrest or detention of a person

effected for the purpose of bringing him before the

competent legal authority on reasonable suspicion of having

committed an offence or when it is reasonably considered

necessary to prevent his committing an offence or fleeing

after having done so;"

47.     It is not in dispute between the parties that the applicants'

arrest and detention were "in accordance with a procedure prescribed

by law" and "lawful" under Northern Ireland law.

48.     The applicants submit that the purpose of the arrest was not

to bring them before the competent authority as required by this

provision.  They maintain that Section 11 (1) of the 1978 Act confers

a general power of arrest for questioning which need not be associated

with the institution of criminal proceedings.

49.     The Government, on the other hand, contend that the applicants

were arrested with a view to being brought before a court if the

police investigation confirmed the suspicions against them and if

sufficient admissible and usable evidence was available to prefer

charges against them.

50.     The Commission notes that Article 5 para. 1 (c) (Art. 5-1-c) requires

that the purpose of the arrest and detention should be to bring the person

concerned before the competent legal authority.  However, the fact that the

applicants were neither charged nor brought before a court does not necessarily

mean that the purpose of their arrest and detention was not in accordance with

Article 5 para. 1 (c) (Art. 5-1-c).  This provision does not presuppose that

the police should have obtained sufficient evidence to bring charges either at

the point of arrest or while the applicants were in custody.  Such evidence may

have been unobtainable or, in view of the nature of the suspected offences,

impossible to produce in court without endangering the lives of others.  As in

the Brogan case there is no reason to believe that in the present case the

police investigation was not in good faith or that the detention of the

applicants was not intended to further that investigation by way of confirming

or dispelling the suspicions which grounded their arrests (see Brogan and

Others judgment, loc. cit., para. 53).

51.     The Commission is therefore satisfied that if the suspicion

against the applicants had been confirmed, charges would have been

preferred against them and they would have been brought before the

competent legal authority.  Their arrest and detention must therefore

be taken to have been effected for the purpose set out in Article 5

para. 1 (c) (Art. 5-1-c).

52.      The applicants further complain that they were not arrested

and detained on "reasonable suspicion" of having committed an offence as

required by Article 5 para. 1 (c) (Art. 5-1-c).  They point out that Section 11

(1) of the 1978 Act only requires mere "suspicion" of being a terrorist as

opposed to "reasonable suspicion".

53.     They claim that if there had actually existed a "reasonable

suspicion" they would have been detained under Section 12 of the

Prevention of Terrorism (Temporary Provisions) Act 1984 which would

have enabled the police to detain them for up to seven days.

54.     The Government submit that notwithstanding the terms of

Section 11 (1) of the 1978 Act, there genuinely existed a "reasonable

suspicion" in the circumstances of the case.  They recall, in

particular, that the first and second applicants had previously been

convicted of offences connected with terrorism.  The Government are

unable to provide more specific background information about the

nature and strength of the suspicions underlying the arrests for

security reasons (see para. 29 above).

55.     The Commission notes that the applicants do not contest that

they were arrested and detained in connection with an "offence".  In

any event the Commission and the Court have found that arrest on

suspicion of "terrorism" corresponds with the notion of an "offence" under

Article 5 para. 1 (c) (Art. 5-1-c) (see Brogan and Others judgment, loc. cit.,

para. 51 and Comm.  Report loc. cit., para. 89).

56.     However, Section 11 (1) of the 1978 Act only requires a

"suspicion" that a person is a terrorist, as opposed to a "reasonable

suspicion" as required by Article 5 para. 1 (c) (Art. 5-1-c).

57.     The Government have contended that the Commission should not

be bound by the terms of Section 11 and should enquire whether

the suspicion was "reasonable" in the circumstances of the case.

58.     The Commission interprets the provision of Article 5 para. 1 (c) (Art.

5-1-c) as requiring that the arresting or detaining authority shall base its

decision on elements which create a "reasonable suspicion" against the person

concerned.  Such a "reasonable suspicion" must, in the Commission's opinion, be

based on concrete facts of such strength as to convince an objective observer

that the person concerned may have committed the offence.

59.     The Commission notes that whereas a "reasonable suspicion" is a

requirement for arrest and detention under United Kingdom law (see e.g.

Section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984 and

Sections 24 (4)(b) and 25 of the Police and Criminal Evidence Act 1984), the

weaker criterion of a mere "suspicion" has been deliberately chosen in Section

11 (1) of the 1978 Act.  The purpose has clearly been to make it possible to

arrest and detain under that Act even in cases where the suspicion could not be

shown to have been a "reasonable" one. 60.     The decision of the House of

Lords, in the case of McKee v. Chief Constable, makes it clear that the

"suspicion" in Section 11 (1) of the 1978 Act need not be a "reasonable"

suspicion.  In the view of the House of Lords, as expressed by Lord Roskill, it

is sufficient that the suspicion is honestly held by the arresting constable.

The only relevant question to be answered is whether the constable in his own

mind suspected the person concerned and whether this was an honest opinion.

The Commission cannot find that this subjective test is sufficient to satisfy

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

61.     Where the applicable domestic law does not require a reasonable

suspicion as the basis for an arrest, it is nevertheless conceivable that in

some cases an arrest is in fact based on a reasonable suspicion.  However, in

the present case the Government have not provided any information which would

allow the Commission to conclude that the suspicions against the applicants at

the time of their arrest were "reasonable" within the meaning of Article 5

para. 1 (c) (Art. 5-1-c) of the Convention or that their arrest was based on

anything more than the "honestly held suspicion" which was required under

Northern Ireland law.

        Conclusion

62.     The Commission concludes, by 7 votes to 5, that the applicants' arrest

and detention were not justified under Article 5 para. 1 (c) (Art. 5-1-c) and

that consequently there has been a breach of Article 5 para. 1 (Art. 5-1) of

the Convention.

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

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

"2.     Everyone who is arrested shall be informed promptly, in a

language which he understands, of the reasons for his arrest and of

any charge against him."

64.     The applicants submit that they were not informed promptly of

the reasons for their arrest and detention.  They complain that they

ought to have been told of the exact nature of the offences for which

they were arrested.  In particular, they maintain that Article 5 para. 2 (Art.

5-2) is not complied with where an accused is left to infer from the police

interrogation the reasons for his arrest.

65.     The Government contend, on the other hand, that Article 5

para. 2 (Art. 5-2) was satisfied since the applicants were informed in general

terms of the reasons for their arrest.  Moreover, following their

arrest they were questioned about the specific activities of which

they were suspected.

66.     The Commission considers that Article 5 para. 2 (Art. 5-2) of the

Convention contains the elementary safeguard that a detainee should

know why he is being arrested and deprived of his liberty.  It is also

an important purpose of the provision to enable the detainee to judge

the lawfulness of the measure and take steps to challenge it, if he so

desires, under Article 5 para. 4 (Art. 5-4) of the Convention.  In addition, it

is only by informing a person of the reasons for his arrest that he is

enabled to admit or deny the charge against him (see Comm.  Report

18.3.81, McVeigh, O'Neill and Evans v. the United Kingdom, D.R. 25

p. 15 at 45, para. 208).

67.    At the time of their arrest the applicants were informed

that they were being arrested under Section 11 of the 1978 Act as

suspected terrorists.  They were not given any specific information at

this stage as to the nature of the suspicions against them, namely

that they were suspected of intelligence gathering and courier work

for the Provisional IRA or, in the case of Hartley, of involvement in

a kidnapping incident.  It is true that some hours later they were

questioned about their involvement in particular activities but they

were not even then given any precise information about the suspicions

against them.  It was left to the applicants to deduce the specific

reasons for their arrest from the questions asked.

68.    In the Commission's view, given the elementary nature of the

safeguard, Article 5 para. 2 (Art. 5-2) places a direct burden on the arresting

authorities to provide a detainee with adequate information as to the

reasons for his arrest at the time of the arrest or as soon as is

practicable thereafter.  In the present case the Commission considers

that the applicants were not given such reasons at the relevant time.

        Conclusion

69.    The Commission concludes, by 7 votes to 5, that the

applicants were not informed promptly of the reasons for their arrest

and that there has been a violation of Article 5 para. 2 of the

Convention.

E.      Article 5 para. 4 of the Convention

70.     The applicants submit that since the Convention has not been

incorporated into United Kingdom law, a Northern Ireland court could

not examine the substantive basis for their arrest and detention.

They therefore contend that they were unable to challenge the

lawfulness of their detention within the meaning of Article 5 para. 4

(Art. 5-4) of the Convention.

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

"4.      Everyone who is deprived of his liberty by arrest or

detention shall be entitled to take proceedings by which the

lawfulness of his detention shall be decided speedily by a

court and his release ordered if the detention is not lawful."

72.     The Government maintain that the courts, in an action for

habeas corpus, can examine not only the procedural legality of the

detention but also whether the person was arrested as a suspected

terrorist and whether the suspicion was a genuine one.

73.     The Commission recalls that the right to judicial control of

the lawfulness of detention constitutes an important safeguard against

an arbitrary and unlawful deprivation of liberty by requiring a speedy

determination of the lawfulness of detention.  However, where a

detained person is released before such a speedy determination could

take place this provision becomes devoid of purpose and thus

inapplicable (see e.g.  No. 7376/76, Dec. 7.10.76 D.R. 7 p. 124;  No.

9174/80, Comm.  Report 11.10.83, D.R. 40 p. 59, para. 106).

74.     In the present case the applicants were released after

approximately 44 hours in the case of Mr.  Fox and Ms.  Campbell, and

approximately 30 hours in the case of Mr.  Hartley.  Moreover the first

two applicants initiated proceedings for habeas corpus but were

released before their applications could be heard by a judge.  Against

this background, where the applicants were released before an

effective judicial control of their detention could take place, there

can be no violation of Article 5 para. 4 (Art. 5-4).

        Conclusion

75.     The Commission concludes, by 9 votes to 3, that there

has been no violation of Article 5 para. 4 (Art. 5-4) of the Convention.

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

76.     The applicants submit that they have no enforceable right to

compensation under Northern Ireland law.  The Government contend that

no enforceable right to compensation arises under this provision since

the applicants were lawfully arrested and detained under Northern

Ireland law.

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

"5.      Everyone who has been the victim of arrest or detention in

contravention of the provisions of this Article shall have an

enforceable right to compensation."

78.     The Commission notes that an enforceable right to

compensation only arises when the arrest and detention was in breach

of another provision of Article 5 (Art. 5) (see Brogan and Others judgment,

loc. cit., paras. 66 and 67;  also Comm.  Report, loc. cit., paras.

115-119).

79.     The Commission recalls that it has found the applicants'

arrest and detention to have been effected in violation of Article 5 paras. 1

and 2 (Art. 5-1, 5-2) of the Convention.  Moreover it is not disputed by the

Government that it would not be open to the applicants to seek compensation

before the Northern Ireland courts on the grounds that their arrest and

detention were in breach of these provisions.  It follows that the applicants

have no enforceable right to compensation as required by Article 5 para. 5

(Art. 5-5) of the Convention.

        Conclusion

80.     The Commission concludes, by 7 votes to 5, that there has

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

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

81.     This provision states as follows:

     "Everyone whose rights and freedoms as set forth in

this Convention are violated shall have an effective

remedy before a national authority notwithstanding that

the violation has been committed by persons acting in an

official capacity."

82.     The applicants complain that they have no effective remedy

under Northern Ireland law in respect of their complaints under

Article 5  paras. 1 and 2 (Art. 5-1, 5-2) of the Convention.

83.     However, in view of the Commission's finding that there has been a

breach of Article 5 para. 5 (Art. 5-5) on the grounds that the applicants have

no enforceable right to compensation, the Commission does not consider it

necessary to examine this complaint.

        Conclusion

84.     The Commission concludes, by a unanimous vote, that no

separate issue arises under Article 13 (Art. 13) of the Convention.

H.      Recapitulation

85.     The Commission concludes

         - by 7 votes to 5, that the applicants' arrest and detention were not

justified under Article 5 para. 1 (c) (Art. 5-1-c) and that consequently there

has been a breach of Article 5 para. 1 (Art. 5-1) of the Convention (para. 62);

        - by 7 votes to 5, that the applicants were not informed

promptly of the reasons for their arrest and that there has been a

violation of Article 5 para. 2 (Art. 5-2) of the Convention (para. 69);

        - by 9 votes to 3, that there has been no violation of Article

5 para. 4 (Art. 5-4) of the Convention (para. 75);

        -  by 7 votes to 5, that there has been a violation of Article

5 para. 5 (Art. 5-5) of the Convention (para. 80);

        -  by a unanimous vote, that no separate issue arises under

Article 13 (Art. 13) of the Convention (para. 84).

Secretary to the Commission          Acting President of the Commission

      (H. C. KRÜGER)                           (J.A. FROWEIN)

Dissenting Opinion of Mr.  Busuttil, Mr.  Gözübüyük

Sir Basil Hall and Mr.  Martinez

1.      We do not share the opinion of the majority of the Commission

that there have been violations of Article 5 of the Convention in

these cases.

2.      The majority of the Commission have concluded that the arrest

of the applicants has not been justified under Article 5 para. 1 (c)

by reason of the fact that Section 11 (1) of the Northern Ireland

(Emergency Provisions) Act 1978, under the provisions of which they

were arrested, required only a "suspicion" that they were terrorists

(as defined by that Act) and not a "reasonable suspicion".

3.      While Section 11 (1) of the 1978 Act enables an arrest to take

place only on suspicion, as opposed to reasonable suspicion as is

required by Article 5 para. 1 (c), it cannot be assumed that an arrest

under that section has not been based on reasonable suspicion.  The

compatibility of Section 11 of the 1978 Act is not to be examined in

abstracto.  The question is rather whether in fact the applicants were

arrested for the purpose of bringing them before a competent legal

authority on reasonable suspicion of having committed an offence.

4.      The applicants do not contest that they were arrested on

suspicion of having committed an offence.  Furthermore the Commission

and the Court have found that arrest on suspicion of "terrorism"

corresponds with the notion of an offence for the purposes of

Article 5 para. 1 (c) (see Brogan and others judgment of 29 November

1988, para. 51 and the Commission's Report in that case, para. 89).

5.      The Government have stated that the first and second

applicants were suspected of intelligence gathering and courier work

for the Provisional IRA.  Furthermore the first applicant had been

convicted of explosives offences connected with terrorism in 1979 and

sentenced to twelve years imprisonment.  The second applicant had also

been convicted of explosives offences for which she had received a

suspended sentence.  The Government further stated that they were in

possession of information connecting the third applicant (who had no

criminal record) with a kidnapping incident; but they were unable for

security reasons to be more specific.

6.      We recognised that against the background of organised

terrorism in Northern Ireland there is a particular need to protect

sources of information which may preclude the giving of full

information as to the grounds on which a suspicion of terrorism is

held.  None the less there must be sufficient information to lead to

the conclusion that the suspicion held was reasonable.  The

information provided is such that we see no reason to doubt that there

was a "reasonable suspicion" of all three applicants within the

meaning of Article 5 para. 1 (c) of the Convention.

7.      We agree with the view of the majority of the Commission that

if the suspicion against the applicants had been confirmed they would

have been brought before the competent legal authority.

8.      The applicants contend that Article 5 para. 2 of the

Convention requires that they should have been told of the exact

nature of the offences for which they were arrested.  The applicants

were informed when formally arrested that they were being arrested

under Section 11 (1) of the 1978 Act and that they were suspected of

being terrorists.  During their detention they were asked about

specific acts and activities.  In our opinion they were informed

promptly of the reasons for their arrest, and there is no violation of

Article 5 para. 2 of the Convention.

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

10.     Since in our view there is no contravention of any provision

of Article 5 there is no violation of Article 5 para. 5.

Dissenting Opinion of Mr.  Danelius joined by Mr.  Jörundsson

(in regard to Article 5 para. 4 of the Convention)

        According to the wording of Article 5 para. 4 of the

Convention, the right guaranteed by that paragraph shall be enjoyed by

"everyone who is deprived of his liberty by arrest or detention".

This wording makes no exception for short periods of detention, and it

would in my view reduce the value of the paragraph considerably if it

was considered that no court remedy was necessary in cases where the

detention does not exceed a certain number of days or hours.

        In this respect it is important to note that the existence of

a court remedy as required by Article 5 para. 4 does not only make it

possible for an unlawfully detained person to obtain his release, but

it can also be presumed to give the arresting authority a particular

incentive to act lawfully.  Moreover, when a person is arrested, it is

often not possible to foresee how long the detention will last.  In

the present case, the applicant's detention could under the applicable

law be maintained for 72 hours, which is not an insignificant period.

It would not seem satisfactory if a person arrested in such

circumstances could not derive any right from Article 5 para. 4 if it

subsequently appears that he is in fact released earlier than could be

foreseen at the time of the arrest.

        I therefore consider that the applicants were entitled under

Article 5 para. 4 to take proceedings in order to obtain a court

review of the lawfulness of their detention.  As regards the scope of

that court review we refer to the Brogan case which concerned

detention under Section 12 of the Prevention of Terrorism (Temporary

Provisions) Act 1984.  In that case the European Court of Human Rgihts

found as follows:

"According to the Court's established case-law, the notion of

'lawfulness' under paragraph 4 has the same meaning as in

paragraph 1 (see notably the Ashingdane judgment of 28 May 1985,

Series A no. 93, p. 23, para. 52); and whether an 'arrest' or

'detention' can be regarded as 'lawful' has to be determined in the

light not only of domestic law, but also of the text of the

Convention, the general principles embodied therein and the aim of the

restrictions permitted by Article 5 para. 1 (see notably the

above-mentioned Weeks judgment, Series A no. 114, p. 28, para. 57).

By virtue of paragraph 4 of Article 5, arrested or detained persons

are entitled to a review bearing upon the procedural and substantive

conditions which are essential for the 'lawfulness', in the sense of

the Convention, of their deprivation of liberty.  This means that, in

the instant case, the applicants should have had available to them a

remedy allowing the competent court to examine not only compliance

with the procedural requirements set out in section 12 of the 1984 Act

but also the reasonableness of the suspicion grounding the arrest and

the legitimacy of the purpose pursued by the arrest and the ensuing

detention." (Brogan and others judgment, para. 65)

        In the present case, it was open to the applicants to seek the

remedy of habeas corpus to challenge their detention.  In such

proceedings a court could examine whether their detention was lawful

under United Kingdom law which meant that its examination of the

reasons for arrest was limited to whether the arresting police officer

had an honest suspicion that the persons concerned were terrorists.

However, the court could not, as required by Article 5 para. 4,

examine whether the detention was "lawful" within the meaning of the

Convention, i.e. whether there existed a reasonable suspicion that the

applicants had committed an offence.  It follows that the applicants

were unable to challenge the "lawfulness" of their detention before a

court within the meaning of Article 5 para. 4 of the Convention.

        I therefore conclude that there has been a violation of

Article 5 para. 4 of the Convention in the present case.

Partly Concurring and Partly Dissenting Opinion of Mrs.  Liddy

        I agree with the conclusion of the majority that the

requirement of "reasonable suspicion" contained in Article 5

para. 1 (c) has not been met in this case.

        The approach of both the Court and the Commission in the case

of Brogan and Others was to examine first the issue of reasonable

suspicion and only then - and in the light of the assessment of the

first issue - whether the purpose of the arrest was to

bring the individual concerned before the competent legal authority.

When addressing the latter issue, both the Court and the Commission

referred back to the extent to which it had already been established

that the arrests were grounded on reasonable "concrete" suspicions

(Judgment of 29 November 1988, paras. 51 and 53; also Comm.  Report

14.5.1987, paras. 91 and 95).  This demonstrates the inter-

relationship between these two requirements of Article 5 para. 1 (c).

        In the present case, unlike the case of Brogan and Others, the

requirement of reasonable suspicion has not been met.  However, the views

expressed at paragraphs 50 and 51 of the Report do not take account of

any inter-relationship between the reasonableness of suspicions that

an offence has been committed and the purpose of an arrest.

        Because of the need to interpret strictly the exhaustive list

of restrictions in paragraph 1 of Article 5 (cf.  Bouamar Judgment of

29.2.1988, para. 43 and Ciulla Judgment of 22.2.1989, para. 41) it

suffices in the present case to conclude for the reasons given at

paragraphs 58 to 61 of the Report that there has been a violation of

Article 5 para. 1.

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

Mr.  Danelius.

A P P E N D I X   I

HISTORY OF THE PROCEEDINGS

Date                    Item

_________________________________________________________________________

16 June 1986      )

(Fox & Campbell)  )

                  )     Introduction of the applications

2 September 1986  )

(Hartley)         )

19 June 1986      )

(Fox & Campbell)  )

                  )     Registration of the applications

8 September 1986  )

(Hartley)         )

Examination of

Admissibility

11 December 1986        Commission's decisions to invite the

                        Government to submit observations on

                        the admissibility and merits of the

                        applications and to join the applications

14 May 1987             Government's observations

10 September 1987       Applicants' observations in reply

9  December 1987        Decision to invite the parties to a

                        joint oral hearing

10 May 1988             Decision to declare the applications

                        admissible.

Examination of the

Merits

10 May 1988             Commission's deliberations on the

                        merits.

29 November 1988        Judgment of the European Court of

                        Human Rights in the case of "Brogan

                        & Others"

11 April 1989           Commission's deliberations on the merits

                        and final votes

4 May   1989           Adoption of the Report.