DISSENTING OPINION OF JUDGE WALSH

1. Under the terms of the derogation the Government of the United Kingdom claims to be no longer answerable to the Convention organs for failure to comply with Article 5 para. 3 (art. 5-3) of the Convention in respect of the arrest of persons anywhere in the United Kingdom under the provisions of the Prevention of Terrorism Act 1984 in relation to the affairs of Northern Ireland.

2. The terms of Article 15 para. 1 (art. 15-1) of the Convention have been invoked as a justification for this step, namely that there is a "time of war or other public emergency threatening the life of the nation". In the present case "the nation" is presumed to be the entire United Kingdom . While there is ample evidence of political violence in Northern Ireland which could be described as threatening the life of that region of the United Kingdom there is no evidence that the life of the rest of the United Kingdom, viz. the island of Great Britain, is threatened by "the war or public emergency in Northern Ireland", which is separated by sea from Great Britain and of which it does not form a part.

3. Furthermore there is no evidence that the operation of the courts in either Northern Ireland or Great Britain has been restricted or affected by "the war or public emergency" in Northern Ireland. It is the United Kingdom Government which wishes to restrict the operation of the courts by being unwilling to allow arrested persons to be brought before a judge as prescribed by Article 5 para. 3 (art. 5-3) of the Convention. The exigency of the situation relied on is the unwillingness of the Government to allow a judge to become aware of the grounds of the police ’ s "reasonable suspicion" that the arrested person has "committed an offence ..." (see Article 5 para. 1 (c)) (art. 5-1-c), but who has not been charged with any offence and who has been arrested because the arresting officer "... has reasonable grounds" for suspecting that the person has been "concerned ..." in acts of "terrorism" that is to say "the use of violence for political ends" or "any use of violence for the purpose of putting the public or any section of the public in fear" provided the matters suspected are concerned with the affairs of Northern Ireland, or any other such acts of "terrorism", except acts concerned solely with the affairs of any part of the United Kingdom other than Northern Ireland. The legislation in force does not create any offence of "terrorism" and no such offence is known to the law in any part of the United Kingdom . Judicial interpretation of section 12 (1)(b) of the Act of 1984 has been to the effect that no specific crime need be suspected to ground a lawful arrest under that section.

4. Until some specific crime or crimes can reasonably be suspected it is clear that no charge can be brought. Therefore, Article 5 para. 2 (art. 5-2) of the Convention cannot be observed so far as a charge is concerned. But there still remains the obligation under Article 5 para. 2 (art. 5-2) to inform every arrested person of the reasons for his arrest. That has not been a subject of the derogation. It remains to be seen whether the Convention requirement can be satisfied in a case where no specific crime is suspected.

5. A reason put forward by the Government for being unwilling to bring an arrested person before a judge "promptly" after arrest (or not at all until it is decided to charge him) is the possible embarrassment to the judges in knowing what was in the mind of the arresting officer. The reality is the question of the concealment of secret sources of information. The concealment of sources and the names of informants, is a matter that arises in many areas in the prosecution of offences. Rarely, if ever, does a court in the United Kingdom press for such sources and a police claim of privilege against disclosure is invariably upheld. It is quite wrong to suggest that the adversary procedure of the common law requires such disclosure, particularly on first appearance in court.

6. One of the suggested remedies for arrested persons in the present case is the ancient writ of habeas corpus. This remedy can only be obtained if there is a proven breach of the national law. A breach of the Convention cannot ground such relief unless it is also a breach of the national law. It is unfortunate that the Court has been allowed to believe otherwise, as is evidenced by the portion of the judgment relating to Article 13 (art. 13). Yet in the present case the Government suggests that in habeas corpus proceedings the genuineness of the "reasonable belief" may be tested (though I doubt if the secret sources would be required to be disclosed in any court) although that remedy, which fits into Article 5 para. 4 (art. 5-4) of the Convention, has not been sought to be excluded by the terms of the derogation. A habeas corpus writ can, in theory, be sought within an hour or so after an arrest; in other words well within the period encompassed in the expression "promptly" in Article 5 para. 3 (art. 5-3). That procedure, if it is possible to avail of it, could thus impart the disadvantage to the police secrecy which the respondent Government claims it is entitled to avoid; yet the Government has not sought to explain this inconsistency.

7. It appears to me to be an inescapable inference that the Government does not wish any such arrested person to be brought before a judge at any time unless and until they are in a position to and desire to prefer a charge. The real target might appear to be Article 5 para. 1 (c) (art. 5-1-c). The admitted purpose of the arrest is to interrogate the arrested person in the hope or expectation that he will incriminate himself. Article 5 (art. 5) makes it quite clear that no arrest can be justified under the Convention if the sole justification for it is the desire to interrogate the arrested person. If an arresting officer has a "reasonable belief" that is coupled to the knowledge or intention that the grounds will never be revealed to a judge, and that the arrested person must be released if no revealable evidence is forthcoming, such arrest ought not to be regarded as an arrest in good faith for the purposes of Article 5 para. 1 (c) (art. 5-1-c) of the Convention.

8. The grounds relied upon by the Government to qualify as "exigencies of the situation" are really procedural devices which could equally be put forward in cases of suspected thefts, robberies, or drug dealings where the police are in possession of information from secret informants whose existence they don ’ t wish to disclose or indicate. For example, the former Attorney General of England and Northern Ireland, Sir Michael Havers , (later Lord Chancellor) informed the Court in the Malone case (Series B no. 67, p. 230) that where the only evidence to connect a person with a crime was a police telephone "tap" he would be allowed to go free rather than disclose the existence of the telephone interception by the police.

9. Article 5 para. 3 (art. 5-3) of the Convention is an essential safeguard against arbitrary executive arrest or detention, failure to observe which could easily give rise to complaints under Article 3 (art. 3) of the Convention which cannot be the subject of derogation. Prolonged and sustained interrogation over periods of days, particularly without a judicial intervention, could well fall into the category of inhuman or degrading treatment in particular cases. In the present case, the applicant Brannigan, during hudred and fifty-eight hours of detention, was interrogated forty-three times which means he was interrogated on average every two and a half hours over that period, assuming he was allowed the regulation period of eight hours free from interrogation every twenty-four hours. The applicant McBride on the same basis was interrogated on average every three hours over his period of detention of ninety-six hours. The object of these interrogations was to gain "sufficient admissions" to sustain a charge, or charges.

10. The Government ’ s plea that it is motivated by a wish to preserve public confidence in the independence of the judiciary is, in effect, to say that such confidence is to be maintained or achieved by not permitting them to have a role in the protection of the personal liberty of the arrested persons. One would think that such a role was one which the public would expect the judges to have. It is also to be noted that neither Parliament nor the Government appears to have made any serious effort to rearrange the judicial procedure or jurisdiction, in spite of being advised to do so by the persons appointed to review the system, to cater for the requirement of Article 5 para. 3 (art. 5-3) in cases of the type now under review. It is the function of national authorities so to arrange their affairs as not to clash with the requirements of the Convention. The Convention is not to be remoulded to assume the shape of national procedures.

11. In my opinion the Government has not convincingly shown, in a situation where the courts operate normally, why an arrested person cannot be treated in accordance with Article 5 para. 3 (art. 5-3). The fact that out of 1,549 persons arrested in 1990 only 30 were subsequently charged, indicates a paucity of proof rather than any deficiency in the operation of the judicial function. It is commonplace in the courts of the United Kingdom that persons facing criminal charges are brought before a judge who is almost invariably asked by the prosecution, in non-summary cases, for an adjournment or a remand to permit of further inquiries by the police. In Northern Ireland , in proceedings under the Prevention of Terrorism Acts, court remands in custody have been known to last for up to two years. In such cases no evidence of any secret sources of information or evidence has ever been revealed. A judge remanding such cases is performing a judicial function and is not performing an executive act. In those cases a specific charge or charges were laid. What is sought in the present case is to remove from scrutiny by the Convention organs cases where no charge is preferred. It should not be beyond the ability of Parliament to legislate for a situation where the arrested person could be brought before a judge with liberty to grant an adjournment for up to a period of five or seven days before the expiration of which the arrested person must be released or charged where the arresting officer is prepared to swear that he has reasonable grounds for suspecting that the arrested person has been involved in or engaged in "acts of terrorism" within the meaning of the relevant legislation. He would not be required, in such event, to reveal the sources of his belief. It is quite erroneous to believe that the adversary system creates an obligation to reveal them.

12. The Court, in paragraphs 62 to 67 inclusive of its judgment, overlooks the information before it to the effect that the so-called safeguards are, in practice, illusory as their availability within the first forty-eight hours of detention is solely dependent upon police willingness. In the result the arrested person is secretly detained for that period and is held incommunicado and without legal assistance, of if he receives it, he may expect to have it overheard by the police, a clear breach of the spirit of the Court ’ s decision in S. v. Switzerland (judgment of 28 November 1991, Series A no. 220). Even the great historic remedy of habeas corpus, theoretically available almost instantly, can be put out of the reach of the arrested person by reason of non-access to the world outside the detention centre.

13. In my opinion there has been a breach of Article 5 para. 3 (art. 5-3) of the Convention in respect of the detention of each of the applicants.

14. Article 13 (art. 13) of the Convention requires that an effective remedy shall be available before a national authority for everyone whose rights and freedoms as set forth in the Convention are violated. The application of Article 13 (art. 13) does not depend upon a violation being proved. No such authority is or was available in the United Kingdom and the Convention has not been incorporated in the national law. It is not correct to suggest that the remedy of habeas corpus satisfies the requirements of Article 13 (art. 13). That remedy depends upon showing a breach of the national laws. It is not available for a claim that the detention is illegal by reason only of a breach of the Convention.

15. In my opinion there has also been a breach of Article 13 (art. 13).