FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 543/03 by Mark MCKAY against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 30 November 2004 as a Chamber composed of:

Mr J. Casadevall , President , Sir Nicolas Bratza , Mr M. Pellonpää , Mr R. Maruste , Mr K. Traja , Ms L. Mijović , Mr J. Šikuta, judges , and Mr M. O ' Boyle , Section Registrar ,

Having regard to the above application lodged on 9 December 2002 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mark Mckay, is a British citizen, born in 1983 and living in Bangor , County Down , Northern Ireland . He was represented before the Court by Mr P. McDermott, lawyer practising in Belfast .

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 6 January 2001 , at 10 pm the applicant was arrested on suspicion of having carried out a robbery of a petrol station in Bangor , County Down . On 7 January 2001 , he admitted being responsible for the robbery. He was charged at 12.37 pm .

On 8 January 2001 , at 10 am , the applicant ma de his first appearance in the magistrates ' c ourt, where he instructed his solicitors to make an application for release on bail. The police officer gave evidence to the court stating that the robbery was not connected with terrorism and that, subject to the proper conditions, he would have no objection to bail. The sitting resident m agistrate refused the application, indicating that the offence was a scheduled offence and that he therefore did not have the power to order release (section 67(2) of the Terrorism Act 2000 and section 3(2) of the Northern Ireland (Emergency Provisions) Act 1996).

On 8 January 2001 , the applicant applied to the High Court for bail. On 9 January 2001 , the High Court heard and granted his application.

On 12 April 2001 , the applicant pleaded guilty in the Crown Court to an offence of robbery and was sentenced to two years ' detention in a young offenders ' institution, followed by a year of probation.

The applicant made an application for judicial review seeking a declaration of incompatibility of the legislation (cited above) with Articles 5 and 14 of the Convention.

On 3 May 2002 , the High Court rejected the applicant ' s application. Mr Justice Kerr held:

“There is nothing in the text of Article 5 no r in the jurisprudence of EC HR which requires that the court before which an arrested person must be brought should be the same court that has power to grant him bail. He must be brought promptly before a court or an officer authorised to exercise judicial power. He must also have the opportunity to apply for bail. It is not necessarily the case, however, that these two separate and distinct rights require to be vindicated at the same time or in the same forum. Provided that the arrested person is brought promptly before a court that has power to review the lawfulness of his detention and that he has the opportunity to apply without undue delay for release pending his trial, the requirements of Article 5 § 3 are met.

The applicant was brought before the magistrates ' court promptly within 36 hours of his arrest. His appearance was automatic and did not depend on any initiative from the applicant. Moreover, the resident magistrate was empowered to review the lawfulness of the applicant ' s detention ... Here the magistrate can review the legal basis on which the arrested person is detained. He must be satisfied that the arrest and continued detention are lawful. If he is not so satisfied, he must order the release of the person detained. The applicant in the present case was therefore entitled to a prompt automatic examination by a competent judicial officer of the legal basis of his arrest and continued detention. He was moreover entitled to – and did obtain – a prompt examination by a judge of his right to release on bail.”

The judge also rejected the arguments under Article 14 that accused members of the security forces were treated more favourably concerning bail than other accused persons and refused leave to appeal.

On 16 May 2002, the Divisional Court refused leave to appeal to the House of Lords though certified as points of law of general public importance whether the legislation was compatible with the Convention and whether Article 5 required that the court before whom an accused person was brought pursuant to Article 5 § 3 have the power to admit him to bail.

On 4 December 2002 , leave to appeal was refused by the House of Lords.

B. Relevant domestic law and practice

Power to release on bail concerning scheduled offences

Section 67(2) of the Terrorism Act 20 00 (which came into force on 19 February 2001 is substantially the same as section 3(2) of the Northern Ireland (Emergency Provisions) Act 1996 in force at the time of the applicant ' s appearance), provides as relevant:

“Subject to subsections (6) and (7) a person to whom this section applies shall not be admitted to bail except -

(a) by a judge of the High Court or the Court of Appeal, or

(b) by the judge of the court of trial on adjourning the trial of a person charged with a scheduled offence.”

The sole jurisdiction of the High Court, Court of Appeal and trial judge to grant bail in the case of scheduled offences dates from 1973 and is based on the original provisions of the Northern Ireland (Emergency Provisions) Act 1973. The rationale derives from the Diplock Report ( “ Report of the Commission to Consider Legal Procedures to Deal with Terrorist Activities in Northern Ireland ” (1972 Cmnd. 5185) which concluded that resident magistrates who heard bail applications were particularly susceptible to threats and intimidation (at the relevant time one had been shot and the homes of two others bombed). The 2000 Act provides for the position to be annually reviewed by Parliament and it has so far been renewed for a further 12 months. Annual reports on the working of the legislation are laid before Parliament for this purpose.

In the 2002 report of the Independent Reviewer, Lord Carlile of Berriew Q.C. recommended the return of bail applications to the magistrates ' court, noting that the requirement for all applications in scheduled offences to go before the High Court led in practice to some defendants spending additional days in custody and that a significant proportion of applicants were ultimately not proceeded with, acquitted or given non-custodial sentences. He recommended that the power be given to a small number of specially trained magistrates. However, in his 2004 report, he noted a continuing danger from sophisticated terrorist crime and numerous serious criminal offences with a strong terrorist link, with syndicated crime with a paramilitary connection increasing and significant levels of intimidation remaining. In considering whether or not to give resident magistrates the power to deal with bail applications, he did not repeat his earlier recommendation, observing that the security assessment was that there would be a significant threat of intimidation and violence towards them and those close to them. He did however agree that bail hearings should be available at the weekends and this change was brought into force immediately (see further below).

Armed robbery is specified in paragraph 10(b) of schedule 9 to the Terrorism Act 2000 as a scheduled offence.

Procedure for High Court bail applications

This is set out in the Rules of the Supreme Court (Northern Ireland) Order 79, supplemented by a Practice Direction 1976 No. 1. The High Court sits every day except Saturdays and Sundays for the purpose, inter alia, of hearing bail applications. The Practice Direction instituted a deadline for papers to be lo dged by 11 am on the day before bail applications were heard. From October 2000, the deadline was moved to noon and the office adopted the practice of accepting faxed applications. A bail judge would also consider admitting a late application in a genuinely exceptional case.

As from 31 January 2004 , the High Court also sat on Saturdays to hear bail applications.

COMPLAINTS

The applicant complained that persons charged with scheduled offences ca nnot apply for bail before the magistrates ' c ourt. They are required to make an application to the High Court and it may be up to four days later before the application is heard. This is in breach of Article 5 as it separates the power to grant bail from the court before which an accused person is brought pursuant to Article 5 § 3 and leaves the accused person to seek bail elsewhere of his own motion.

THE LAW

The applicant complains that there was no automatic bail hearing following his arrest . Article 5 of the Convention provides as relevant:

“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;

...

3. Everyone arrested or detained in accordance with the provisions of paragraph 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.”

The parties ' submissions

The Government submitted that the purpose of Article 5 § 3 was to provide a safeguard against arbitrary detention by providing an independent scrutiny for the reasons for an accused ' s detention and to ensure release if continued detention was not justified. The judicial officer concerned had to be independent with the power to order release. However nothing in the text of Article 5 or in the Court ' s jurisprudence requires the court before which an arrested person must be brought must be the same court that has the power to grant bail.  The detained person must be brought promptly before a court or officer authorised to exercise judicial power; he must also have the opportunity to apply for bail. Only the first required to be automatic; the second, the question of bail, only came into play when the arrest and detention were lawful and did not necessarily form part of the prompt automatic review of the merits.

The Government submitted that Article 5 § 3 was therefore complied with in the applicant ' s case. The magistrate was able to review the legal basis on which the applicant was detained, and had to be satisfied that the arrest and detention were lawful and therefore not arbitrary; if he had not been so satisfied, he would have been obliged to order the applicant ' s release.  Thus the applicant obtained a prompt examination by a judge of the legal basis of his arrest and continued detention. He was also entitled to and did obtain a prompt examination by a judge of the High Court of his right to release on bail.  Referring to the margin of appreciation, they concluded that the legislation represented a fair balance between individual rights and the requirements of defending society against a continuing danger from terrorist crime and a high level of intimidation and was entirely consistent with the aims and objectives of the Convention in promoting the rule of law.

The applicant submitted that the regime of scheduled offences covered many cases, such as his, where there was not even a remote suspicion of connection with terrorism and accordingly the Government justification had no basis in fact or policy. Reliance on the possible intimidation of magistrates in terrorist cases could not logically justify the removal of their bail jurisdiction, where they remained able to determine the lawfulness of detention and to discharge accused from custody. The applicant argued that the judge before whom an accused appeared had to exercise a plenitude of judicial power, not merely jurisdiction to pronounce on the bare legality of detention but also whether the detention is objectively justified on the merits. The Court ' s case-law indicated that the review had to be sufficiently wide to encompass the various circumstances militating for and against detention. Even if the enquiry into formal lawfulness logically preceded an enquiry into the propriety of bail it was perverse to interpret the case-law as allowing the removal of the jurisdiction to consider bail. The unconditional obligation that a detained person appear before such an officer fell upon the s tate and had to occur promptly and automatically.

The applicant submitted therefore that in his case it was a breach of Article 5 § 3 that the magistrate had no power to consider bail and that he was required, of his own motion, to make an application for bail. Such a requirement could impact particularly upon the most vulnerable of detained persons, such as the mentally weak or ill, those subjected to ill-treatment in custody or unable to speak the language of the court.

The Court ' s assessment

Having regard to the applicant ' s complaints and the parties ' submissions, the Court finds that serious questions of fact and law arise, the determination of which should depend on an examination of the merits. The application cannot be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Cou rt unanimously

Declares the application admissible, without prejudging the merits of the case.

Michael O ' Boyle Josep Casadevall Registrar President