Lexploria

AS TO THE ADMISSIBILITY OF

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

by Bernard FOX, Maire CAMPBELL and Samuel HARTLEY

against the United Kingdom

The European Commission of Human Rights sitting in private

on 10 May 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. H.C. KRÜGER Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the applications introduced on 16 June 1986

by Bernard FOX and Maire CAMPBELL against the United Kingdom and

registered on 19 June 1986 under files Nos. 12244/86 and 12245/86,

and the application introduced by Samuel HARTLEY on 2 September 1986

against the United Kingdom and registered on 8 September 1986 under

file No. 12383/86;

Having regard to

- the report provided for in Rule 40 of the Rules of Procedure

of the Commission;

- the Commission's decision of 11 December 1986 to communicate

the application to the respondent Government under Rule 42 para. 2 (b)

and to join the cases under Rule 29 of the Rules of Procedure;

- the submissions of the parties;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant, Mr. Bernard Fox, states that he is an

Irish citizen born in 1951 and resides in Belfast, Northern Ireland.

He is an unemployed coach-builder by profession.

The second applicant, Ms. Maire Campbell, states that she is

an Irish citizen born in 1959, and resides in Belfast, Northern Ireland.

She is an unemployed secretary.

The third applicant, Mr. Samuel Hartley, states that he is an

Irish citizen born in 1962 and resides in Waterfoot, Co. Antrim,

Northern Ireland. He is unemployed.

All three applicants are represented in the proceedings before

the Commission by Messrs Madden & Finucane, solicitors, Belfast.

The facts as agreed by the parties may be summarised as follows:

On 5 February 1986 the first and second applicants 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

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

Provisions Act 1978 (1). 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 (2). 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.

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

[PIRA]. 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. The

first applicant had thus been detained one day and 20 hours and the

second applicant one day, 20 hours and 5 minutes.

__________

(1) Section 11 (1) states:

"Any constable may arrest without warrant any person whom he

suspects of heing a terrorist."

(2) 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)

1986 (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."

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.

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.

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 PIRA. 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. He

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

was released on 19 August 1986 at 14.10 hours after one day, 6 hours

and 15 minutes in detention.

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.

COMPLAINTS

The applicants point out that the United Kingdom Government

withdrew its derogation under Article 15 of the Convention on

22 August 1984.

They complain first that their arrest contravened Article 5

para. 1 of the Convention in that it was solely for the purposes of

detaining and interrogating them. They further complain that their

arrest and detention do not fall under Article 5 paras. 1(a)-(f).

They point out that Section 11 of the 1978 Act permits arrest and

detention solely on grounds of suspicion as opposed to "reasonable

suspicion" under Article 5 para. 1(c). Section 11 also permits

detention for purposes other than those permitted by Article 5

para. 1.

The applicants also allege a breach of Article 5 para. 2 of

the Convention in that they were not informed of the reasons for their

arrest or of any charge against them.

The applicants further allege breaches of Article 5 para. 5

and Article 13 of the Convention in that they were denied an enforceable

right to compensation. In this connection the applicants in their

petitions stated as follows:

"The applicant cannot challenge the said Section 11 of the

Northern Ireland (Emergency Provisions) Act 1978 in any Court of law

in Northern Ireland on the ground that it contravenes the European

Convention because the clear jurisprudence of this jurisdiction is

that the Convention is subordinate to express provisions of domestic

law and accordingly the applicant is prevented from bringing any

proceedings to determine the lawfulness of arrest and detention under

and by virtue of the said Section 11 and it is therefore further

denied any enforceable right to compensation in contravention of

Article 5 para. 5 and Article 13."

Exhaustion of domestic remedies

Since the applicants' arrest was in accordance with the

domestic law and since the provisions of the European Convention on

Human Rights are not part of the law of Northern Ireland no domestic

remedy is open to the applicants.

Object of the application

The applicants seek compensation for their arrest and detention

in contravention of Article 5 of the Convention. They also seek a

declaration that their arrest and detention were in breach of Article 5

in order to ensure:

- that they would be free from similar arrest and detention in

the future;

- that they and other persons who were so detained would have an

enforceable right of compensation.

PROCEEDINGS BEFORE THE COMMISSION

The first and second applications (Fox and Campbell) were

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

The third application (Hartley) was introduced on 2 September

1986 and registered on 8 September 1986.

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.

The Commission further decided on the same date to join the

cases pursuant to Rule 29 of its Rules of Procedure.

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.

The Commission next considered the application 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.

The hearing before the Commission was held on 10 May 1988.

The parties were represented as follows:

Respondent Government:

Mr. M. WOOD, Agent, Foreign and Commonwealth Office

Mr. A. CAMPBELL, Q.C., Counsel

Mr. N. BRATZA, Q.C., Counsel

Two Government advisers were also present.

The applicants:

Mr. R. WEIR, Q.C., Counsel

Mr. S. TREACY, Counsel

Mr. P. FINUCANE, solicitor.

The applicants were not present at the hearing.

SUBMISSIONS OF THE PARTIES

The respondent Government

As to Fact

The Government state that the first applicant, Fox, was

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

received an 18 months' suspended sentence after being convicted of

explosives offences.

The Government state that the record of the interviews with

the first and second applicants shows that they were made aware of the

"subject matter" of the enquiry and the day to which it related. The

third applicant was interviewed about terrorist activities in a

specific geographical area and about involvement with the Provisional

IRA.

Relevant domestic law and practice

The Government recall that for the past seventeen years the

population of Northern Ireland has been subjected to a vicious

campaign of terrorism aimed at overthrowing the democratic process by

violent means. More than 2,500 people, including almost 800 members

of the security forces, have been killed, and many thousands more have

been maimed or injured. Such casualties in a close-knit population of

1.5 million emphasise the scale of human tragedy which the terrorists'

campaign has caused. Section 11 of the 1978 Act confers a power to

arrest, and detain for a maximum of 72 hours, suspected terrorists and

a power for them to be photographed and for finger and handprints to

be taken.

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".

Under Section 11 (1) a constable has power to arrest without

warrant any person whom he suspects to be a terrorist. Sub-section (2)

gives power to enter and search premises where a suspected terrorist

is or is suspected to have been. Sub-section (3) allows a person

arrested under Sub-section (1) to be detained in right of the arrest

for 72 hours and disapplies provisions which otherwise would

require a person who has been arrested to be brought before a

magistrate within 48 hours of his arrest. Under Sub-section (4)

persons arrested under Section 11 (1) can be photographed and their

finger and handprints taken by a constable on the order of an officer

not below the rank of chief inspector.

Section 11 re-enacted the power of arrest and detention for up

to 72 hours in Section 10 of the Northern Ireland (Emergency

Provisions) Act 1973. 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, without which they would lapse. 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 pursuant to

Section 33 of the 1978 Act.

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.

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.

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 upon the state of mind of the arresting officer and of no-one

else. It was necessary that the arresting officer suspected the

person he was arresting to be a terrorist, otherwise the arrest was

unlawful, although he could form that suspicion on the basis of

information given to him by his superior officer. He could not,

however, 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 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. He went on,

"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?"

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.

A person who believes that his arrest or detention under

Section 11 is unlawful can challenge his arrest or detention by

seeking habeas corpus or by taking proceedings for damages for false

imprisonment. In either case the lawfulness of the police action

would be tested.

Non-exhaustion of domestic remedies

The Government consider the circumstances of the arrest of the

third applicant (Hartley) to raise a question as to whether the

suspicion that he was a terrorist, which he appears to accept was

entirely bona fide, related to a relevant matter. A suspicion under

Section 11 must be to the effect that the applicant was a terrorist as

defined by Section 31 of the 1978 Act. It would not have been a

lawful use of the arrest power in Section 11 had he been suspected

merely of involvement in some activity falling short of terrorism even

though that activity might itself be criminal in character - such as

kidnapping which is a common law offence in Northern Ireland when it

is carried out without the use of violence or without the purpose of

putting the public or a section of the public in fear.

The Government do not consider that an applicant who is aware

of the relevant facts can be excused from the need to exhaust domestic

remedies merely by asserting that he accepts that the matters about

which he complains under the Convention were lawful as a matter of

domestic law. Mere doubts as to the prospects of success of a

challenge to the lawfulness of his arrest and detention is not a

sufficient basis for waiving the requirement of the exhaustion of

domestic remedies. The Government therefore submit that the

application lodged by the third applicant is inadmissible under

Article 26 of the Convention.

Six months rule

The Government submit that the applicants' complaint under

Article 5 para. 4 of the Convention was first developed in the

applicants' observations in reply dated 10 September 1987, that is,

more than six months from their release from detention. This

complaint should therefore be rejected under Article 26 as having

been submitted out of time.

Article 5 para. 1 of the Convention

The Government submit that the arrests and detention of the

applicants fell within sub-paragraph (c) and were in accordance with a

procedure prescribed by law, namely Section 11 of the Northern Ireland

(Emergency Provisions) Act 1978. The applicants' arrests were in each

case lawful as a matter of domestic law both as regards the suspicion

held that each was a terrorist and the reason given to each for his or

her arrest. The arrests and detention were in fact effected for the

purpose of bringing them before a court "on reasonable suspicion of

having committed an offence".

With respect to the issue that Section 11 refers merely to a

"suspicion" as opposed to "a reasonable suspicion", the Government

submit that the Convention organs are not called upon to examine in

abstracto the compatibility of legislation with the Convention. The

Commission must confine its attention to the facts of the case. Even

where a statutory provision under which an arrest is effected does not

require the existence of a reasonable suspicion, but only the

existence of a suspicion of an offence, it does not follow that an

arrest under this provision is in breach of Article 5 para. 1. It

is the fact that a reasonable suspicion exists, not the terms of

the provision which is material for the purposes of paragraph 1 (c).

Moreover, the existence of a reasonable suspicion does not mean that

there is at the time of the arrest sufficient evidence to prosecute.

In deciding whether there was a reasonable suspicion, the

Commission's task is not to assess the material available to the

arresting officer in order to make an independent determination

but rather to review under Article 5 para. 1 (c) of the Convention the

decisions taken by the domestic authorities in order to determine on a

prima facie basis whether or not the decisions were reasonable and

were therefore justified.

The strength of the grounds necessary to satisfy the

requirement of reasonable suspicion will necessarily vary with the

circumstances of the particular case. However, it is a material

factor in determining the reasonableness of the suspicion held that

the person concerned has previously been convicted of criminal

offences of a similar nature to those for which he is being arrested

(Nos. 5371/72 and 6579/74, Dec. 18.7.74, Collection 46 p. 71).

The Government refer to the acute sensitivity of the material

on which arrests are frequently based in cases of suspected

terrorism. Where, as commonly occurs, the arrest and detention of a

suspected terrorist is based on information provided by an informant,

it is not possible to disclose the nature of the information

supporting the suspicion for fear of compromising the source of the

information or endangering the informant's life or safety.

Accordingly, in the present case the Government state that it is not

possible to disclose the material on which the suspicion of the

arresting officer was based. However, it has not been contested by the

applicants that there existed a bona fide suspicion of their

involvement in specific criminal acts and that the applicants Fox and

Campbell had been previously convicted of terrorist-type offences as

indicated above.

With reference to the applicants' submissions, the Government

state that the fact that an arrested person is released without charge

after one and a half days rather than three days reveals nothing about

the reasonableness of the suspicion which existed at the time of the

original arrest. Nor can the reasonableness of the suspicion be called

into question by the mere fact that an arrest is effected under a

statute which permits detention for up to three days rather than under

a statute which permits the period of detention to be extended for up

to seven days as in Section 12 of the Prevention of Terrorism

(Temporary Provisions) Act 1984. The Government indicate that a

suspect will be arrested under Section 12 of the 1984 Act as opposed to

Section 11 of the 1978 Act if the police believe that the enquiries to

be made will last longer than 72 hours - the maximum period permitted

under the 1978 Act.

Moreover, the purpose of the arrests was to bring the

applicants before a court to face charges for offences. At the time

they were questioned there were insufficient grounds for arresting

them on suspicion of having committed a specific offence. Having

regard to the nature of the suspicions there were reasonable grounds

for suspecting them to be terrorists. Terrorism is the use of

violence for political ends, a criterion which the Court has

recognised in the case of Ireland v. the United Kingdom to be in

keeping with the idea of an offence (Eur. Court H.R., judgment of

18 January 1978, Series A No. 25, p. 74, para. 196). Had further

admissible and usable evidence become available as a result of the

applicants' interrogation appropriate charges would have been laid and

the applicants would have been brought before a magistrate's court on

the basis of them.

The Government dispute the applicants' claim that they were

arrested for the purpose of detaining them and interrogating them.

Attention is drawn to the terms of Section 11 which confer a power of

arrest where the constable suspects the person of being a terrorist.

It is differently framed from Regulation 10 of the Regulations under

the Special Powers Act 1922 which did enable people to be arrested so

that they could be interrogated. It was for this reason that it was

held by the Court to be incompatible with Article 5 para. 1 (c)

(Ireland v. United Kingdom, loc. cit., p. 75 para. 196).

It is true that in his report on the review of the 1978 Act

Sir George Baker referred to Section 11 as a general power of arrest

for questioning. He went on, in para. 264 of his Report, to say that

a Section 11 arrest need not be for the purpose of bringing an

offender before a competent court. The Government do not accept this

description of the Section 11 power if by these remarks Sir George

Baker sought to describe arrest under this provision as an arrest

solely for the purposes of interrogation.

The purpose of the powers of arrest and detention under

Section 11 was to enable the police to investigate whether there was

sufficient usable and admissible evidence to justify the preferring of

charges against the suspected person or to entitle the Secretary of

State to make an exclusion order under the 1984 Act. In this respect

the position in relation to an arrest under Section 11 of the 1978 Act

is identical to that in relation to an arrest under Section 12 of the

1984 Act. The Government adopt, in this respect, the reasoning of the

Commission set out in paras. 93 and 94 of the Report in the Brogan

case. Article 5 para. 1 (c) cannot mean that the suspected person's

guilt can at this stage of arrest be established or proved (Brogan,

Coyle, McFadden, Tracey v. the United Kingdom, Nos. 11209/84, 11234/84,

11266/84, 11386/85, Comm. Report 14.5.87). The very purpose of

detaining a person after arrest and prior to bringing him before a

court is to facilitate the proper conduct of the investigation into

the suspected offence. As the Commission observed in para. 94 of its

Report, after a person has been arrested it will normally depend on

the result of further investigations and questioning whether he will

eventually be charged and brought to trial before a court. It is

particularly so in relation to suspected terrorist cases where there

may exist ample material to found a suspicion of involvement in

terrorism which justifies arresting a person but where that material

cannot be used in court either because it is inadmissible on

evidential grounds or because reasons of security preclude its use.

The Government emphasise that in the case of arrest under Section 11

there exists at all times a firm purpose and intention to bring the

arrested person before a court if usable and admissible evidence

becomes available to confirm this suspicion and justify the bringing

of charges.

Article 5 para. 2 of the Convention

In the Government's submission, the arrests in the present

case satisfy Article 5 para. 2 of the Convention. Not only were the

applicants informed that they were being arrested under Section 11 of

the 1978 Act but also of the fact that they were suspected of being

terrorists. Moreover, after their arrest they were questioned about

specific activities in which they were suspected of having been

involved.

It is clear from the constant jurisprudence of the Commission

that information in general terms of the reasons for an arrest will

suffice. In its decision on the admissibility of the Caprino case

(No. 6871/75, D.R. 12 p. 14) the Commission found that it was

sufficient that the applicant was informed of the legal basis for his

detention as well as the essential facts relevant to the lawfulness of

his detention, i.e., that he was being detained pending deportation in

the interests of national security. Moreover, it is also clear from

the Commission's decision on the admissibility of the Neumeister case

(No. 1936/63, Dec. 6.7.64, Yearbook 7 p. 224) that, even where the

grounds for an arrest are not maintained at the time the arrest is

carried out, Article 5 para. 2 may still be satisfied if the reasons

for the arrest become clear from the nature of the interrogation of

the suspect. The Government also refer to para. 210 of the

Commission's Report in the case of McVeigh, O'Neill and Evans (Nos.

8022/77, 8025/77, 8027/77, Comm. Report 18.3.81, D.R. 25 p. 15)

where it is stated that the information given to the applicants at the

time of their arrest, which consisted in their being told that they

would be fingerprinted, photographed, questioned and otherwise

"checked up on" was sufficient in the circumstances to make clear that

this amounted to a form of security check to establish whether they

were involved in terrorism. This was held to be sufficient for the

purposes of Article 5 para. 2.

Article 5 para. 4 of the Convention

It is not disputed that it was open to the applicants to seek

the remedy of habeas corpus or to institute proceedings for damages

for false imprisonment. As the judgment of the House of Lords in the

McKee case makes clear, the courts could not only review the formal or

procedural legality of an arrest under Section 11 whether the arrested

person was properly informed of the grounds of the arrest, but could

also examine the substantive question whether the person was arrested

as a suspected terrorist and whether the suspicion held by the person

effecting the arrest was a genuine suspicion.

The power of review of the courts is not an illusory one. If

it were the case that the questioning of a person arrested under

Section 11 was directed to matters unrelated to his involvement in

terrorist activities or a terrorist-related offence, this could afford

a strong basis for challenging the validity of the arrest on the

grounds that it was not founded on any genuinely held suspicion that

the individual concerned was a terrorist.

In its Report in the McVeigh case, the Commission found that

there should be judicial review sufficient in scope to cover both

the formal legality of the detention in domestic law and the

substantive justification for the detention under Article 5 para. 1.

The Commission stressed that the nature of the review required must

depend on the nature of the detention (loc. cit., p. 47 para. 216).

The Government submit that in respect of a Section 11 arrest, the

scope of judicial review satisfies Article 5 para. 4 since judicial

control can encompass the procedural and substantive basis of

detention.

Article 5 para. 5 of the Convention

The requirement in Article 5 para. 5 to provide an enforceable

right to compensation arises in relation to a case in which an arrest

or detention contravenes Article 5. Since the arrests and detention

were "lawful" within the meaning of Article 5 in the present case, the

Government submit that there is no requirement to provide an

enforceable right to compensation under this provision. In any event,

had the arrest or detention of any one of them been unlawful,

proceedings for damages for false imprisonment would have been open to

any of the applicants.

Article 13 of the Convention

The Government submit firstly that since the applicant's

complaints under Article 5 are manifestly ill-founded it follows that

they have not established an arguable claim to be victims of a

violation of this provision. It is therefore submitted that the

requirement under Article 13 to provide an effective remedy does not

arise in the instant case. In addition, the mere fact that a person

who has been arrested and detained is released without charge does not

of itself give rise to a breach of the Convention for which a remedy

is required under Article 13. A person so arrested and detained would

only have an arguable claim of a breach of Article 5 if he could

adduce grounds for contending that the arrest or detention did not

satisfy one or more of the paragraphs of Article 5 para. 1 or, in a case

within Article 5 para. 1 (c), that he was not brought before a judge

or released promptly after his arrest as required by Article 5 para.

3, or that he was not given reasons for his arrest within Article 5

para. 2, or that he had no means of testing the lawfulness of his

detention within Article 5 para. 4 or had no enforceable right to

compensation for any contravention of the provisions of the Article.

The Government submit that the powers of arrest and detention contained

in Section 11 are fully compatible with Article 5 of the Convention and

that the application of those powers to these applicants in the

circumstances of their applications to the Commission were entirely

lawful.

In its judgment in the case of James and Others (Eur. Court

H.R., judgment of 21 February 1986, Series A No. 98), the Court

has held that where legislation is compatible with the substantive

provisions of the Convention Article 13 is satisfied if there exists

domestic machinery whereby the individual can secure compliance with

the relevant laws. Effective remedies in this sense were available to

the applicants in the present case by way of an application for habeas

corpus and proceedings for damages for false imprisonment in the event

of any non-compliance with the provisions of domestic law.

In the alternative, the Government submit with reference to

the Commission's Report in the Brogan case that Article 5 para. 4 must

be regarded as the lex specialis in respect of complaints under

Article 5 (loc. cit., para. 122). Accordingly, it is submitted that

no separate issue arises under this provision in the present case.

The Applicants

Six months rule

The applicants submit that the complaint under Article 5 para.

4 of the Convention is not a complaint which is based upon any fresh

facts. It is grounded on facts which have already been set out in the

original petitions. Accordingly, no issue arises under the six months

rule.

Non-exhaustion of domestic remedies

The third applicant Hartley contests the Government's

submission that his application should be rejected for non-exhaustion

of domestic remedies. He draws particular attention to the fact that

those involved in the kidnapping were believed to have connections

with PIRA. As a matter of domestic law the third applicant was

lawfully arrested. The lawfulness of an arrest under Section 11 is

determined by the subjective bona fide belief of the arresting

officer that the person arrested is a terrorist. The third applicant

accepts that the arresting officer had this subjective bona

fide belief. The facts underlying the third applicants' arrest

have a distinct flavour of terrorism since those involved were

believed to have connections with PIRA. Moreover, kidnapping is a

scheduled offence under Schedule 4 of the 1978 Act and can therefore

only be tried on indictment in a non-jury "Diplock" court in

accordance with the special provisions relating to terrorist trials

contained in the 1978 Act.

Article 5 para. 1 of the Convention

It is submitted that Section 11 of the 1978 Act is repugnant

to Article 5 para. 1 because (a) it permits arrest and detention for

up to three days on bare suspicion, whereas Article 5 para. 1 (c)

requires reasonable suspicion and (b) it authorises arrest and

detention which is not effected for the purpose of bringing the person

before the competent legal authority but is effected for the purpose

of interrogation and information gathering.

The repugnancy of Section 11 with Article 5 is expressly

recognised by Sir George Baker - a retired senior English judge who

was requested by the respondent Government to carry out a review of

the operation of the 1978 Act. He received written and oral

submissions from a large number of bodies and individuals who could be

expected to be well acquainted with the operation and purpose of the

Act. These included former Secretaries of State of Northern Ireland,

some of the most senior members of the judiciary in England, senior

members of the legal profession and the Royal Ulster Constabulary and many

other sources. His report was presented to Parliament in April 1984.

Paragraph 264 of his Report expressly recognises the

incompatibility of Section 11 with Article 5 of the Convention:

"In contrast to the provisions of the E.P.A.* which deal with the

trial of terrorist offences and do not require derogation from

Article 6 of the European Convention, those which deal with the

powers of arrest appear to contravene the minimum requirements of

Article 5. Consequently the U.K. entered a Notice of Derogation

under Article 15. Article 5 (1) c requires reasonable suspicion

of having committed an offence and arrest for the purpose of

bringing the offender before a competent court. Section 11

E.P.A. requires neither, nor is an offence necessary. Nor need

an arrest under the P.T.A.** be necessary for the purpose of

bringing before a court."

__________

* Emergency Provisions Act

** Prevention of Terrorism Act

Sir George Baker also recognised that Section 11

conferred a general power of arrest for questioning. Thus, in

paragraph 263 of his Report he made the following remarks:

"Generally I find it helpful in making recommendations in 1984 to

go back further than 1973 but to understand the arrest and

detention Sections of the E.P.A. it is useful to note that

Regulation 10 of the Special Powers Act (N.I.) 1922 provided

'Any Officer for the R.U.C. for the preservation

of the peace and maintenance of order, may

authorise the arrest without warrant and

detention for a period of not more than 48 hours

of any person for the purpose of interrogations.'

This general power of arrest for questioning did not disappear

entirely when the Special Powers Act was repealed by Westminster.

It was reworded and to some extent re-enacted in the E.P.A. and

P.T.A. But nowhere in these acts do the words 'for the

purpose of interrogation' appear. That is left to be

inferred. There is widespread criticism of the alleged

illegal use of arrest for 'information gathering' or low grade

intelligence and harassment. It might be better if the power

of the R.U.C. were expressly spelled out in the act linked

of course to appropriate controls. That the police have such

a power under the P.T.A. was accepted by Lawton, L.J. in the

English C.A. (Criminal Division) in R. v. Houghton 1987 CAR197."

Historically the police in Northern Ireland have always had

the power to arrest for the purpose of interrogation. Furthermore an

extremely high proportion of persons released without charge compared

to the figures for release without charge in Great Britain confirms

that the powers given by Section 11 are used for information gathering

(see, The Use and Abuse of Emergency Legislation in Northern Ireland,

Dermot P. J. Walsh, 1983).

Against this background the applicants submit that the

predominant purpose of Section 11 is to facilitate arrest and

detention for the purpose of interrogation and that the applicants

were not arrested with a view to proceedings for criminal offences

being brought against them.

The applicants also submit that Section 11 of the 1978 Act as

consistently interpreted by the courts, does not require a reasonable

suspicion within the meaning of this provision. In support of this

argument, they refer to the decisions of the Court of Appeal and the

House of Lords in the case of Gerard McKee v. the Chief Constable for

Northern Ireland [1984] 1 W.L.R. 1358 and the judgment of Justice

McGonigal in re McElduff [1972] NI 1. Mr. Justice McGonigal in

considering the statutory power of arrest under Regulation 11 (1) of

the Civil Authorities (Special Powers) Act 1922 stated as follows:

"In this case there is no reference to reasonableness nor do I find

anything in the words of the regulation which suggests that it should

be imported into it. The use of the term 'reasonable suspicion' is so

common that if the legislature had intended to impose a standard of

reasonableness one would have expected the word to be included in the

regulation. I do not consider that I can now impose a standard which

the legislature itself has not considered fit to impose. The test is

therefore whether the arrestor suspected. That does not appear to me

to be open to an objective test. It may be based on purely arbitrary

grounds, on grounds which the courts, if this were an objective test

of reasonableness might consider unreasonable. But since

reasonableness is not essential to the suspicion that is immaterial.

What is required by the regulation is a suspicion existing in the mind

of the constable. That is a subjective test. If that is correct, the

courts in enquiring into the exercise of the power, can only enquire

as to the bona fide of the existence of the suspicion. Did the

constable in his own mind suspect? And in my view the only other

question for the courts is, 'Was this an honest suspicion?'" (loc.

cit., p. 19)

Similarly, Lord Roskill in the McKee case, which concerned

an arrest under Section 11 (1) of the 1978 Act, stated as follows:

"On the true construction of Section 11 (1) of the statute,

what matters is the state of mind of the arresting officer

and of no one else. That state of mind can legitimately be

derived from the instruction given to the arresting officer

by his superior officer. The arresting officer is not bound

and indeed may well not be entitled to question those

intructions or to ask upon what information they are

founded. It is, in my view, not legitimate in the light of

the learned trial judge's findings as to Graham's state of

mind at the time of the arrest, to seek to go behind that

finding and deduce from Detective Constable Moody's evidence

as to questioning which took place some time after the

arrest what Jackson's state of mind may have been when he

gave Graham his instructions. It is Graham's state of mind

that matters and that alone. In my view the matter is

concluded in favour of the appellant by the learned trial

judge's findings to which I have already referred.

My lords, I do not doubt that the burden is on the

appellant to justify the respondent's arrest. In my view he

has simply done so. I have already said that I reached this

conclusion simply upon the learned trial judge's finding as

to Graham's state of mind. That Graham honestly had that

belief was not challenged and, if it be relevant, the

existence of that honest belief seems to me to be well

established by the fact that Graham said in evidence that

Jackson had told him to be careful and that after knocking

on the door of the respondent's house he (Graham) was

'standing back against the wall because I suspected he (the

respondent) might have guns'.

In conclusion I would mention two other matters. First I

respectfully agree with all the learned judges below that on

the true construction of the statute the powers of arrest

under Section 11 are not qualified by any words of

'reasonableness'. The suspicion has to be honestly held but

it need not be a reasonable suspicion as well. I also agree

with what was said on this topic by Mr. Justice McGonigal in

In re McElduff in the passage quoted by Mr. Justice

Kelly."

The applicants state that as far as they are aware,

no domestic court has ever impugned a Section 11 arrest despite the

fact that approximately 70% of the large number of persons arrested

under Section 11 were subsequently released without charge (para. 276

and Appendix M of the Baker Report).

Finally, the applicants point out that if reasonable grounds

genuinely existed for their arrest it would have been open to the

police to use their powers under Section 12 of the Prevention of

Terrorism (Temporary Provisions) Act 1984. Moreover, whilst the

Government have asserted that reasonable grounds did exist, they have

nowhere set out in their submissions the alleged reasonable grounds

and have, in fact, indicated that they are not prepared to do so in

this case. The onus of proof rests, however, with the respondent

Government on this question.

Article 5 para. 2 of the Convention

Each of the applicants was arrested as they were suspected of

having committed offences but were not told what the offences were.

They were only informed that they were suspected of being terrorists

which, as Sir George Baker points out, is, in itself, not an offence.

The first and second applicants were suspected of intelligence

gathering and courier work and the third applicant was suspected of

kidnapping. These are offences under Northern Irish law. The

Commission has stated that the purpose of Article 5 para. 2 is to

inform a detainee adequately of the reasons for his arrest so that he

may judge the lawfulness of the measure and take steps to challenge it

if he sees fit and thus avail himself of the right guaranteed in

Article 5 para. 4 of the Convention (X. v. the United Kingdom No.

6998/75, Comm. Report 16.7 80, Eur. Court H.R., Series B No. 41, p. 33

para. 104). In the present case the applicants should have been

informed of the substantive reasons for their detention.

Contrary to the submissions of the Government, informing a

suspect of the reasons for his arrest would not jeopardise the sources

of police information. An important distinction must be drawn between

the reasons for an arrest and the basis of those reasons. It would

have been quite sufficient in the case of the first and second

applicants to say to them "We are arresting you under Section 11 of

this Act because we suspect that you have been engaged in intelligence

gathering and courier work for the IRA." Such a statement would not

have disclosed the source of the information.

It is further submitted that they were not informed promptly

of the reasons for their arrest. The first and second applicants were

arrested at approximately 15.00 hours and were first interviewed five

hours later at approximately 20.15 hours. If information was conveyed

to them in the course of these interviews, it was not information

which was provided promptly within the meaning of this provision.

Moreover, there is no indication that the third applicant who was

detained for thirty hours was given any information in respect of the

very specific suspicion against him, namely, involvement in a

kidnapping.

Finally, the applicants submit that it is not compatible with

Article 5 para. 2 to leave it to an accused to infer or deduce the

reasons for his arrest from the matters about which that person has

been questioned in the course of a police interview. Such a procedure

could not be described as informing someone in a language which that

person understands of the reasons for his arrest.

Article 5 para. 4 of the Convention

The applicants concede that as a matter of domestic law their

arrests were lawful. It follows that their arrest and detention was

incapable of challenge in the domestic courts under Northern Irish

law.

It is further submitted that the remedy of habeas corpus would

not in practice have been open to the applicants. This is because it

would be impossible to obtain a ruling in a habeas corpus case

within 72 hours, the permitted period of detention under Section 11.

Indeed, in the case of the first two applicants, an attempt was made

to obtain the writ of habeas corpus but before the matter could be

brought before a judge the applicants had been released.

Article 5 para. 5 of the Convention

The applicants submit that they did not have an enforceable

right to compensation in the event of the arrest and detention being

found contrary to Article 5 of the Convention. It is not possible to

seek compensation under Northern Irish law on the basis of a breach of

Article 5 of the Convention.

Article 13 of the Convention

The applicants first submit that they did not have an

effective remedy as required by this provision in respect of their

complaint that they were arrested and detained without being under a

'reasonable suspicion'. It is not possible to impugn the provisions

of Section 11 of the 1978 Act under domestic law since under Northern

Irish law domestic law is superior to the Convention which has not

been incorporated into domestic law. Nor do the applicants enjoy an

effective remedy in respect of their complaint that they were arrested

and detained without being informed of the reasons for their arrest as

required by Article 5 para. 2 of the Convention.

THE LAW

The applicants were all arrested and detained under Section 11

of the Emergency Provisions (Northern Ireland) Act 1978 as suspected

terrorists. They complain that their arrest and detention are in

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

Convention. They also allege violations of Article 5 paras. 4 and 5

and Article 13 (Art. 5-4, 5-5, 13) of the Convention.

Article 26 (Art. 26) of the Convention

This provision provides as follows:

"The Commission may only deal with the matter after all

domestic remedies have been exhausted, according to the generally

recognised rules of international law, and within a period of six

months from the date on which the final decision was taken."

A. Six months rule

The Government submit that the applicants' complaint under

Article 5 para. 4 (Art. 5-4) of the Convention should be rejected on

the basis of the six months rule since it was first mentioned in the

applicants' observations in reply, that is, more than six months from

the applicants' release from detention.

The Commission notes that the applicants originally

complained inter alia that they were "prevented from bringing any

proceedings to determine the lawfulness of arrest and detention under

and by virtue of the said Section 11" (see Complaints above).

The Commission considers that this complaint amounts, in

substance, to the applicants' complaint under Article 5 para. 4

(Art. 5-4) of the Convention. In any event, the Commission considers

that it is open to an applicant to make new complaints, based on the

essential facts as originally presented, at a subsequent stage of the

procedure and that the six months rule is not opposable to such a new

complaint (see, in this context, Eur. Court H.R., Guzzardi judgment

of 6 November 1980, Series A no. 39, p. 22 para. 61).

The Commission concludes that this part of the application

satisfies the six months rule in Article 26 (Ar. 26) of the Convention.

B. Exhaustion of domestic remedies

The Government have further submitted that the application by

Mr. Hartley should be rejected for non-exhaustion of domestic

remedies since he could have brought proceedings under Northern Irish

law to challenge the lawfulness of his arrest and detention. The

Government point out that the applicant was arrested on suspicion of

involvement in a kidnapping whereas the formal basis of his arrest

under Section 11 was that of a suspect terrorist.

The Commission recalls that the applicants do not contest the

domestic lawfulness of their arrest, but complain inter alia that they

were arrested on the basis of "suspicion" of having committed an

offence and not a "reasonable suspicion" as required by Article 5

para. 1 (c) (Art. 5-1-c) of the Convention. The Government have not

shown that the applicants had a remedy under Northern Irish law in

respect of this complaint. It follows that Mr. Hartley's application

cannot be rejected for failure to exhaust domestic remedies under

Article 26 (Art. 26).

As regards Article 5 paras. 1, 2, 4, 5, and Article 13

(Art. 5-1, 5-2, 5-4, 5-5, 13) of the Convention

The relevant parts of Article 5 (Art. 5) are 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 or when it is reasonably considered

necessary to prevent his committing an offence or fleeing

after having done so;

...

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.

...

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.

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."

Article 13 (Art. 13) 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."

The applicants submit that they were not arrested on the basis

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

5-1-c). They contend, with reference to decided cases, that Section

11 of the 1978 Act does not contain the requirement of

"reasonableness". They further complain that they were not informed

promptly of the reasons for their arrest in violation of Article 5

para. 2 (Art. 5-2) and that the information they were given, namely

that they were being arrested as suspected terrorists, was

insufficient.

They further complain that they cannot challenge the

lawfulness of their arrest and detention contrary to Article 5 para. 4

(Art. 5-4) and are denied an enforceable right to compensation

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

Finally, they allege that they have no effective remedy in

respect of their complaints contrary to Article 13 (Art. 13) of the

Convention.

The respondent Government submit inter alia that

notwithstanding the terms of Section 11 of the 1978 Act the applicants

were in fact arrested on "reasonable suspicion" of having committed an

offence as required by Article 5 para. 1 (c) (Art. 5-1-c) of the

Convention. They state that the first and second applicants were

suspected of involvement in intelligence and courier work for the IRA

and that the third applicant was suspected of involvement in a

kidnapping incident.

As regards Article 5 para. 2 (Art. 5-2) the respondent

Government state that the applicants were informed of the reasons

underlying their arrest and detention in the course of their

interrogation by the police at the police station.

The respondent Government further maintain that it was open to

the applicants to seek habeas corpus or to bring proceedings for false

imprisonment and that judicial review would cover both the formal and

substantive basis of their arrest and detention as required by Article

5 para. 4 (Art. 5-4) of the Convention. It is also submitted that no

issue arises under Article 5 para. 5 (Art. 5-5) since the applicants

were lawfully arrested and detained under Article 5 para. 1 (Art. 5-1)

of the Convention.

Finally, the Government contend that either no separate issue

arises under Article 13 since Article 5 para. 4 (Art. 13, 5-4)must be

regarded as the lex specialis in cases concerning arrest and detention

or, alternatively, Article 13 (Art. 13) does not apply since there is

no arguable claim of a breach of Article 5 (Art. 5) of the Convention.

The Commission considers, in the light of the parties'

submissions, that the application as a whole raises complex issues of

law and fact under the Convention, the determination of which should

depend on an examination of the merits of the application.

It concludes, therefore, that the application is, as a whole,

admissible.

For these reasons, the Commission

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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FOX, CAMPBELL AND HARTLEY v. THE UNITED KINGDOM

FOX, CAMPBELL AND HARTLEY v. THE UNITED KINGDOM

LEXI