Information Note on the Court’s case-law 189

October 2015

Sher and Others v. the United Kingdom - 5201/11

Judgment 20.10.2015 [Section IV]

Article 5

Article 5-4

Review of lawfulness of detention

Thirteen days’ detention without charge under anti-terrorism legislation: no violation

Article 8

Article 8-1

Respect for home

Respect for private life

Issue of wide-ranging search warrant in case of suspected terrorist ac tivity: no violation

Facts – The applicants, Pakistani nationals, were arrested and detained in connection with an anti-terrorism operation. Their homes were searched over a period of some 10 days pursuant to warrants covering a lengthy list of items, including correspondence, book s and electronic equipment. The applicants remained in custody for a total of 13 days after a District Judge authorised their further detention at two successive hearings. Part of the first hearing was held in closed session to enable the judge to scrutini se and ask questions regarding material withheld from the applicants detailing the police operation and ongoing investigation. The applicants were legally represented at the open hearings but did not have a special advocate to represent them during the clo sed session. They were ultimately released without charge.

In the Convention proceedings, the applicants complained under Article 5 § 4 of the Convention that they had been denied an adversarial procedure during the hearings of the applications to prolong their detention and under Article 8 that their homes had been searched pursuant to warrants which were unjustifiably broad in scope.

Law

Article 5 § 4: The Court was satisfied that the threat of an imminent terrorist attack had provided ample justification for the imposition of some restrictions on the adversarial nature of the proceedings concerning the warrants for further detention, for reasons of national security. The relevant legislation set out clear and detailed procedural rules governing proceeding s for warrants of further detention and those rules had been followed in the proceedings, which were judicial in nature.

While it was true that part of the first hearing had been closed, the procedure which allowed the District Judge to exclude the applica nts and their lawyers from any part of a hearing enabled him to conduct a penetrating examination of the grounds relied upon by the police to justify further detention in order to satisfy himself, in the detained person’s best interests, that there were re asonable grounds for believing that further detention was necessary. The District Judge was best placed to ensure that no material was unnecessarily withheld from the applicants.

It was further clear that the District Judge had had the power to appoint a s pecial advocate if he considered such appointment necessary to secure the fairness of the proceedings. In that connection, it was noteworthy that the applicants had not requested the appointment of a special advocate at any stage. At the open hearings, the senior police officer making the application had explained orally why the application was being made and, at the second hearing, provided details regarding the progress of the investigation and the examination of material seized. The applicants were legal ly represented and their solicitor had been able to cross-examine the police officer witness, and had done so at the first hearing.

The Court was therefore satisfied that there had been no unfairness in the proceedings leading to the grant of the warrants of further detention. In particular, the absence of express legislative provision for the appointment of a special advocate did not render the proceedings incompatible with Article 5 § 4.

Conclusion : no violation (six votes to one).

Article 8: The sole issue before the Court was whether the search of the applicants’ homes had been necessary in a democratic society. While acknowledging that the search warrant had been couched in relatively broad terms, the Court noted that the specific ity of the list of items susceptible to seizure in a search by law-enforcement officers would vary from case to case depending on the nature of the allegations in question. Cases such as the applicants’, which involved allegations of a planned large-scale terrorist attack, posed particular challenges, since, while there might be sufficient evidence to give rise to a reasonable suspicion that an attack was under preparation, an absence of specific information about the intended nature of the attack or its ta rgets made precise identification of items sought during a search impossible. The complexity of such cases could justify a search based on terms that were wider than would otherwise be permissible. Multiple suspects and the use of coded language compounded the difficulty while the urgency of the situation could not be ignored. To impose under Article 8 the requirement that a search warrant identify in detail the precise nature of the items sought and to be seized could seriously jeopardise the effectiveness of an investigation where numerous lives might be at stake. In cases of this nature, the police had to be permitted some flexibility to assess, on the basis of what was encountered during the search, which items might be linked to terrorist activities and to seize them for further examination.

It was also relevant that the applicants had a remedy in respect of the seized items in the form of ex post facto judicial review or a claim for damages and had not sought to challenge the seizure of any specific it em or contended that any item had been seized or searched for unjustifiably.

The search warrants could not, therefore, be regarded as having been excessively wide and the authorities had been entitled to consider that the resultant interference with the ap plicants’ right to respect for their private lives and homes was necessary in a democratic society.

Conclusion : no violation (unanimously).

(See also A. and Others v. the United Kingdom [GC], 3455/05, 19 February 2009, Information Note 116 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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