PARTLY DISSENTING OPINION OF JUDGE MIFSUD BONNICI

1. I am in agreement with the majority on most of the points at issue in this case, starting with the finding that the arrest of the first applicant was carried out on a reasonable suspicion that she had committed an offence; thereby holding that Article 5 para. 1 (art. 5-1) was not violated.

2. I dissent, however, on the second point; that of Article 5 para. 2 (art. 5-2), which guarantees to "everyone who is arrested" the right to be "informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him".

The essential and relevant facts, as accepted in the judgment are that:

(a) When Corporal D. proceeded to the first applicant ’ s house, she said to her, "As a member of Her Majesty ’ s forces, I arrest you." And on being asked twice by the first applicant under what section, Corporal D. replied, "Section 14" (paragraph 12 of the judgment).

(b) Corporal D. told the domestic court that "the purpose of arrest and detention under section 14 was not to gather intelligence but to question a suspected person about an offence" (paragraph 20 of the judgment). This was confirmed by Sergeant B. (paragraph 22).

3. Now there is absolutely nothing in the whole proceedings to indicate that after the first applicant was arrested on the strength of section 14, she was thereafter promptly given the reasons for her arrest and/or informed of any offence with which she was charged.

In the concrete circumstances of the case, I am prepared to allow that promptness can be waived because of the short duration of the detention, but once the first applicant was arrested (and not merely asked to go voluntarily to a place designated for interrogation) she was entitled to be told why she was being arrested - which in effect means "that she was suspected of having committed a given offence". Once that is done, the further information that she was being charged with a given offence can, within a reasonable time, follow. This, however, must be preceded by the first phase, wherein the arrested person must be informed of the reasons for the arrest. This phase cannot be skipped, ignored or disregarded, especially when, as in this case, the person arrested is not charged with an offence.

4. In the view of the majority (paragraph 77 of the judgment) this guarantee was satisfied because

"it must have been apparent to Mrs Murray that she was being questioned about her possible involvement in the collection of funds for the purchase of arms for the Provisional IRA by her brothers in the USA",

which induces the Court to come to the conclusion that

"the reasons for her arrest were sufficiently brought to her attention during her interview".

And therefore there was no violation.

5. In my opinion this decision reduces the meaning of Article 5 para. 2 (art. 5-2) to such a low level that it is doubtful whether in fact it can, if it is adhered to in this form, have any possible concrete application in the future.

In fact what is being held here is that through the contents of an interrogation an accused person can, by inference or deduction, arrive, on his own, to understand "the reasons for his arrest and ... any charge against him". Since the Convention obliges the investigating officer "to inform" the arrested person, I cannot agree that the duty imposed on the investigating officer can be satisfied by the obligation of the arrested person to carry out a logical exercise so that he will thereby know of the charge against him - surmising both, from the contents of the interrogation.

6. It is not really possible to sustain this interpretation of Article 5 para. 2 (art. 5-2). If it is sustained, then it would mean that the guarantee therein contemplated will only come into play in situations such as that which is described in Franz Kafka ’ s masterpiece The Trial, where the Inspector, who is supposed to interrogate K (the accused person), tells K ,

"I can ’ t even confirm that you are charged with an offence, or rather I don ’ t know whether you are. You are under arrest certainly, more than that I do not know." [5]

7. Therefore, the interpretation arrived at is a substantial limitation of the purpose of Article 5 para. 2 (art. 5-2), to which I cannot subscribe, and I find that there was a violation of Article 5 para. 2 (art. 5-2).

8. On all the other points in this judgment, I form part of the majority.