JOINT DISSENTING OPINION OF JUDGES SIR VINCENT EVANS, BERNHARDT AND PALM

We are unable to agree with the finding of the majority of the Court that there has been a violation of Article 5 § 1 (c) (art. 5-1-c) in this case.

The majority take the view that the facts and information laid before the Court by the Government are insufficient to support the conclusion that there was "reasonable suspicion" justifying the arrest and detention of the applicants under Article 5 § 1 (c) (art. 5-1-c) (see paragraph 35 of the Court ’ s judgment). We do not share this opinion.

The majority accept - and on this we agree - that the arrest and detention of each of the applicants was based on a bona fide suspicion that he or she was a terrorist and that each of them was questioned during his or her detention about specific terrorist acts of which he or she was suspected. But, in the opinion of the majority the latter fact does no more than confirm that the arresting officers had a genuine suspicion and a genuine suspicion was not the equivalent of a reasonable suspicion.

In our view the "genuine suspicion" on the part of the arresting officers that the applicants were involved in the specific terrorist acts about which they were questioned must have had some basis in information received by them, albeit from sources which the Government maintain that they are unable to disclose for security reasons. In the situation in Northern Ireland the police must have a responsibility to follow up such information of involvement in terrorist activities and, if circumstances so warrant, to arrest and detain the suspect for further investigation.

In cases such as these it is not possible to draw a sharp distinction between genuine suspicion and reasonable suspicion. Having regard to all the circumstances and to the facts and information before the Court, including in the case of Mr Fox and Ms Campbell the fact that they had previously been involved in and convicted of terrorist activities, we are satisfied that there were reasonable grounds for suspicion justifying the arrest and detention of the applicants in accordance with Article 5 § 1 (c) (art. 5-1-c). We also see no reason to doubt that the applicants were detained and questioned with a view to criminal proceedings if sufficient and usable evidence had been obtained. It is true that they were released without any charges being brought against them, but this in no way invalidates the measures taken since it is the purpose of such investigation to find out whether the suspicion is confirmed and supported by any additional evidence.

For these reasons we conclude that there was no breach of Article 5 § 1 (c) (art. 5-1-c).

[*]  Note by the Registrar: The case is numbered 18/1989/178/234-236. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of corresponding originating applications to the Commission.

[*]  Note by the Registrar: For practical reasons this annex will appear only with the printed version of the judgment (volume 182 of Series A of the Publications of the Court), but a copy of the Commission's report may be obtained by anyone on request to the Registrar.