CASE OF MAGEE AND OTHERS v. THE UNITED KINGDOM
(Applications nos. 26289/12, 29062/12 and 29891/12)
12 May 2015
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Magee and Others v. the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Päivi Hirvelä, President,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,
Having deliberated in private on 14 April 2015,
Delivers the following judgment, which was adopted on that date:
1. The case originated in three applications (nos. 26289/12, 29062/12 and 29891/12) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Irish nationals, Mr Gabriel Magee, Mr Colin Francis Duffy and Ms Teresa Magee (“the applicants”), on 1 May 2012, 14 May 2012 and 10 May 2012 respectively.
2. The first and second applicants were represented by KRW Law - LLP, a firm of solicitors based in Belfast. The third applicant was represented by Mr P. Moriarty of O’Connor & Moriarty Solicitors, a firm practising in Lurgan. The United Kingdom Government (“the Government”) were represented by their Agent, Ms M. Addis of the Foreign & Commonwealth Office.
3. On 25 September 2012 the applications of the first and second applicant were communicated to the Government. The third applicant’s application was communicated to the Government on 7 November 2012. The applicants and the Government each filed observations on the admissibility and merits of the cases (Rule 59 § 1).
I. THE CIRCUMSTANCES OF THE CASE
4. The first applicant was born in 1972 and lives in Belfast. The second applicant was born in 1967 and lives in Lurgan. The third applicant was born in 1978 and lives in Craigavon.
A. The first and third applicants
5. On 14 March 2009 the first and third applicants were arrested under section 41 of the Terrorism Act 2000 (“the 2000 Act”) on suspicion of involvement in the murder of a police officer on 9 March 2009. They were detained at Antrim police station on the same day. The first applicant was interviewed twice on 15 March 2009 and once on 16 March 2009; the third applicant was interviewed three times on 15 March 2009 and once on 16 March 2009.
6. On 16 March 2009 the Director of Public Prosecutions (“DPP”) made applications to the County Court under paragraph 29 of Schedule 8 to the 2000 Act for warrants of further detention in respect of both applicants in order to carry out questioning and to conduct forensic examinations. The first applicant gave evidence on oath in the course of the hearing. Following the hearing, the County Court Judge granted warrants authorising a five-day extension of detention.
7. Each of the applicants was interviewed on twelve occasions in the following five days.
8. On 21 March 2009 the DPP made applications to the County Court under paragraph 36 of Schedule 8 to the 2000 Act for seven-day extensions to the periods specified in the warrants for further detention. The extensions were sought in order to facilitate further questioning of the applicants once the results of additional forensic tests were obtained. At separate hearings on 22 March 2009 a police Superintendent gave evidence on oath as to the necessity of the extensions and arguments were heard on behalf of the first and third applicants.
9. Following the hearings Her Honour Judge Philpott QC delivered a written judgment in respect of the first applicant and an ex tempore decision in respect of the third applicant. She granted both applications, authorising the first applicant’s continued detention until 7.20 on 28 March 2009 and the third applicant’s continued detention until 5.52 on 28 March 2009. In her reasoning, Judge Philpott noted that the relevant forensic evidence was central to the investigation and that the investigation was being carried out diligently and expeditiously.
10. In the rulings Judge Philpott considered whether the 2000 Act or Article 5 of the Convention gave the court deciding whether or not to grant an extension of detention an express or implied power to examine the lawfulness of the arrest or to grant bail. She concluded that it did not as the 2000 Act only gave the judge the power to decide whether or not an extension of detention was necessary. Consequently, she had to confine herself to the issue of whether or not it was necessary to extend detention beyond forty-eight hours for investigative purposes and any issue as to the lawfulness of the arrest would have to be determined by the High Court in either Habeas Corpus or judicial review proceedings.
B. The second applicant
11. On 14 March 2009 the second applicant was arrested under section 41 of the 2000 Act on suspicion of involvement in the murder of two soldiers at Masserene Barracks, Antrim, on 7 March 2009. He was detained at Antrim Police Station on the same day.
12. On 15 March 2009 the DPP made an application to the County Court under paragraph 29 of Schedule 8 to the 2000 Act for a warrant extending the second applicant’s detention as the results of a number of forensic tests were pending.
13. Following a hearing on 16 March 2009 a County Court Judge granted a warrant authorising a five-day extension to his detention.
14. The second applicant was interviewed on twelve occasions in the following five days. However, neither the interviews nor the results of the forensic tests provided any evidence linking the second applicant to the murders of the two soldiers.
15. On 21 March 2009 the DPP made an application to the County Court under paragraph 36 of Schedule 8 to the 2000 Act for a seven-day extension to the period specified in the warrant for further detention. The extension was sought as the results of further forensic tests which had been sent for analysis to a laboratory in Great Britain were expected to become available within the following seven days and detention was considered necessary to ensure that further questioning could take place and, if there was sufficient evidence, charges could be brought.
16. On 21 March 2009 Judge Philpott granted the application, authorising the second applicant’s continued detention until 7.20 on 28 March 2009.
C. Joint proceedings
17. The applicants sought permission to apply for judicial review of Judge Philpott’s decisions of 21 and 22 March 2009 granting further extensions to the warrants authorising their detention. They submitted first, that Judge Philpott had been wrong to conclude that a court, in deciding whether or not to grant an extension of detention, was precluded from investigating the lawfulness of the arrest; secondly, that the judge had failed to address the question of whether the detention of the applicants was required while the results of the forensic examinations were expected; thirdly that the judge had failed to give reasons for her decision that detention was required; and finally, that Schedule 8 of the 2000 Act was incompatible with Article 5 of the Convention.
18. Permission to apply for judicial review was granted by the High Court of Northern Ireland on 24 March 2009 and the High Court heard the applications on 25 March 2009.
19. In respect of the applicants’ first submission, the High Court held that paragraphs 5 and 32 of Schedule 8 to the 2000 Act had to be read in conformity with the requirements of Article 5 § 3 of the Convention as explained in the jurisprudence of the Court. Thus, the review of the lawfulness of the detention had to embrace an examination of the basis of the arrest, otherwise a person could be detained under the 2000 Act for up to twenty-eight days without there having been any judicial review of the lawfulness of the original arrest and that could not be Convention compliant. The High Court therefore found that Judge Philpott had been wrong to disavow any review of the lawfulness of the applicants’ arrest and, as a consequence, her decision to grant extensions had to be quashed. The court accepted, however, that a review of the lawfulness of the arrest need not involve a detailed analysis of the basis for the decision to arrest and should reflect the constraints that necessarily apply in many arrests for terrorist offences.
20. With regard to the applicants’ second and third submissions, the High Court found that although the judge had not focused directly on whether the applicants had to be detained rather than released pending the outcome of the remaining forensic examinations, she had not failed to have regard to the need for detention as the basis for the grant of the warrant. Moreover, although her reasons were pithily stated, they were sufficient to convey to the applicants the basis of her decision.
21. Consideration of the applicants’ fourth submission, namely the compatibility of Schedule 8 to the 2000 Act with Article 5 of the Convention, was adjourned. In a judgment delivered on 24 February 2011, the High Court of Northern Ireland found no basis for the submission that Schedule 8 was incompatible with Article 5 of the Convention. In particular, the court held that although there was no doubt that the “competent legal authority” referred to in Article 5 § 1(c) was the authority having competence to deal with a criminal charge (the Magistrate in the United Kingdom), in Schiesser v. Switzerland, 4 December 1979, § 29, Series A no. 34 and McKay v. the United Kingdom [GC], no. 543/03, ECHR 2006-X the Court had made it clear that the function of “a judge or other officer” for the purposes of Article 5 § 3 of the Convention could be carried out by an officer authorised by law to exercise judicial power and did not necessarily have to be a person with power to conduct the trial of any eventual criminal charge; that, although there was no express power to order release in the 2000 Act as required by Article 5 § 3 of the Convention, such a power must be implied; that, as paragraph 32 of Schedule 8 to the 2000 Act provided that there must be reasonable grounds for believing that the further detention of a person was necessary, it therefore contained a requirement of proportionality; that, there was no provision for conditional release on bail within the statutory scheme, an issue which did not arise in the present case but would need to be addressed in any future case in which it arose; that, although paragraph 33(3) of Schedule 8 enabled a judicial authority to exclude an applicant or anyone representing him from any part of the hearing and paragraph 34 permitted information to be withheld from the applicant or anyone representing him, there were a range of tools available to the court to preserve to the necessary extent an adversarial procedure and equality of arms; and, finally, that there was no authority which supported the applicants’ contention that Article 5 required that a detained person should be charged well before the expiry of the twenty-eight day period contemplated in the 2000 Act.
22. On 4 April 2011 the High Court of Northern Ireland certified that it was satisfied that the decision given on 24 February 2011 involved the following points of law of general public importance:
“(a) Whether paragraphs 29(3) and 36(3)(b) of Part III of Schedule 8 to the Terrorism Act 2000 (“the Act”) permitting extended detention for more than four days are compatible with the Applicant’s rights under Article 5(1)(c), 5(2) and 5(3) of the European Convention on Human Rights (“the Convention”)
1. If compliance with Article 5(3) of the Convention can only be achieved by providing for a detainee to be brought before a judicial authority (i) other than the Magistrate’s Court and (ii) without any charges having been preferred against him;
2. If Articles 5(1)(c) and 5(3) of the Convention are required to be read together as linked provisions and understood as creating a scheme so that the “judge or other officer authorised by law to exercise judicial power” referred to in Article 5(3) and “the competent legal authority” referred to in Article 5(1)(c) are one and the same;
3. If the “judicial authority” provided for in Schedule 8 to the Act is the “judge or other officer authorised by law to exercise judicial power” within the meaning of Article 5(3) of the Convention;
4. If Articles 5(1)(c) and 5(3) of the Convention cannot be interpreted in such a way as to permit the detention of a suspect without charge for any period specified by Parliament, subject only to the requirement of periodic judicial approval of the kind specified in Article 8 to the Act.
(b) Whether the absence of a power to allow for conditional release on bail rendered the scheme for extending detention set out in Part III of Schedule 8 incompatible with Article 5 ECHR; and
(c) Whether the procedure for granting an extension of detention, in circumstances where the suspect and legal representative have been excluded by the judge for a part of the hearing (as per Schedule 8, para 33(3)) and by reason of same information is made available to the judge but withheld from the suspect and his legal representative, (Schedule 8, para 34(1) and (2)(f) is incompatible with the request for an adversarial hearing as required by Article 5 in light of Secretary of State for the Home Department v AF (FC) & Anor  2 AC 269.”
23. However, the High Court refused leave to appeal to the Supreme Court.
24. Permission to appeal was refused by the Supreme Court on 14 November 2011 on the basis that the applications did not raise an arguable point of law of general public importance.
D. The applicants’ release from detention
25. The applicants were released without charge on 25 March 2009. The first and third applicants were not subsequently charged with any offence related to the murder of the police officer.
26. The second applicant was immediately re-arrested and interviewed over the following two days. On 27 March 2009 he was charged with the murder of the two soldiers, five attempted murders and possession of a firearm and ammunition. He was produced before a District Judge sitting at Larne Magistrates’ Court on 27 March 2009. His application for bail was refused. Following a hearing which took place on 6 and 23 November 2009, bail was refused by the High Court on the ground that there was a real risk of re-offending on account of his suspected involvement with a dissident republican organisation. The High Court again declined to grant bail on 8 October 2010.
27. On 7 November 2011 the second applicant stood trial before a judge sitting without a jury. On 20 January 2012 he was acquitted on all counts on the indictment.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Powers of arrest and detention of terrorist suspects under the Terrorism Act 2000
28. Section 40 of the 2000 Act defines a terrorist as a person who has committed an offence under various sections of the Act or who is or has been concerned in the commission, preparation or instigation of acts of terrorism.
29. Section 41(1) of the Act provides that a constable may arrest without warrant a person whom he reasonably suspects to be a terrorist.
30. Part II of Schedule 8 to the 2000 Act deals with the detention of such a person by police during the first forty-eight hours.
31. Section 41 (3) of the Act provides that a detained person must be released not later than the end of the period of forty-eight hours beginning with the time of the arrest subject to subsections (4) to (7) set out below:
“(4) If on a review of a person’s detention under Part II of Schedule 8 the review officer does not authorise continued detention, the person shall (unless detained in accordance with subsection (5) or (6) or under any other power) be released.
(5) Where a police officer intends to make an application for a warrant under paragraph 29 of Schedule 8 extending a person’s detention, the person may be detained pending the making of the application.
(6) Where an application has been made under paragraph 29 or 36 of Schedule 8 in respect of a person’s detention, he may be detained pending the conclusion of proceedings on the application.
(7) Where an application under paragraph 29 or 36 of Schedule 8 is granted in respect of a person’s detention, he may be detained, subject to paragraph 37 of that Schedule, during the period specified in the warrant.”
32. Paragraph 29 of Schedule 8 to the Act provides that the Director of Public Prosecution for Northern Ireland (“DPP”) may apply to a judicial authority for the issue of a warrant of further detention. Pursuant to paragraph 29(3), the period of further detention shall be seven days from the time of the arrest under section 41 of the 2000 Act unless the application is for a shorter period or the judicial authority is satisfied that there are circumstances that would make it inappropriate for the specified period to be as long as the period of seven days.
33. In Northern Ireland the judicial authority under the 2000 Act is a County Court Judge or a District Judge (Magistrates’ Court) who has been designated for the purposes of the Act.
34. Paragraph 30 of Schedule 8 requires the application for the warrant to be made during the period of the initial detention or within six hours of the end of that period.
35. Paragraph 31 ensures that an application for a warrant cannot be heard until the person to whom it relates has been given a notice stating that the application has been made, the time at which it was made, the time at which it is to be heard and the grounds upon which further detention is sought.
36. Paragraph 32(1) provides that a judicial authority may only issue a warrant of further detention if satisfied that there are reasonable grounds for believing that the further detention of the person is necessary and that the investigation in connection with which the person is detained is being conducted diligently and expeditiously.
37. Paragraph 32(1A) provides that the further detention of a person is required if it is necessary:-
“(a) to obtain relevant evidence whether by questioning him or otherwise;
(b) to preserve relevant evidence; or
(c) pending the result of an examination or analysis of any relevant evidence or of anything the examination or analysis of which is to be or is being carried out with a view to obtaining relevant evidence.”
38. Relevant evidence is evidence which relates to the commission of an offence under section 40 or an indication that the person detained is a person falling within that section.
39. Paragraph 33 requires that a person to whom an application relates be given an opportunity to make oral or written representations to the judicial authority and be legally represented at the hearing. Paragraph 33(3) provides that the judicial authority may exclude the person to whom the application relates or anyone representing him from the hearing.
40. Likewise, paragraph 34 enables the DPP to apply to the judicial authority for an order that specified information upon which he intends to rely be withheld from the person to whom the application relates and anyone representing him. The judicial authority may make such an order only if satisfied that there are reasonable grounds for believing that if the information were disclosed:-
“(a) evidence of an offence under any of the provisions mentioned in section 40(1)(a) would be interfered with or harmed,
(b) the recovery of property obtained as a result of an offence under any of those provisions would be hindered,
(c) the recovery of property in respect of which a forfeiture order could be made under section 23 or 23A would be hindered,
(d) the apprehension, prosecution or conviction of a person who is suspected of falling within section 40(1)(a) or (b) would be made more difficult as a result of his being alerted,
(e) the prevention of an act of terrorism would be made more difficult as a result of a person being alerted,
(f) the gathering of information about the commission, preparation or instigation of an act of terrorism would be interfered with, or
(g) a person would be interfered with or physically injured.”
41. Paragraph 36 deals with extensions of warrants of further detention up to a maximum of twenty-eight days. Each application for an extension may extend the period of detention for up to seven days. Any application which would extend the then total period beyond fourteen days must be made to a judge of the High Court; otherwise the application is made to a specially designated County Court Judge or a District Judge (Magistrates’ Court).
42. In Ward v. Police Service of Northern Ireland the House of Lords held that the procedure contemplated by paragraph 33 of Schedule 8 was conceived in the best interests of the detained person and not those of the police. It stated:
“27. The answer to this question is that the procedure before the judicial authority which para 33 contemplates has been conceived in the interests of the detained person and not those of the police. It gives the person to whom the application relates the right to make representations and to be represented at the hearing. But it recognises too the sensitive nature of the inquiries that the judicial authority may wish to make to be satisfied, in that person’s best interests, that there are reasonable grounds for believing that the further detention that is being sought is necessary. The more penetrating the examination of this issue becomes, the more sensitive it is likely to be. The longer the period during which an extension is permitted, the more important it is that the grounds for the application are carefully and diligently scrutinised.
28. As in this case, the judicial authority’s need to scrutinise may trespass upon the right of the police to withhold from a suspect the line of questioning they intend to pursue until he is being interviewed. If it does, it will not be to the detained person’s disadvantage for him to be excluded so that the judicial authority may examine that issue more closely to see whether the exacting test for an extension that para 32 lays down is satisfied. The power will not in that event be being used against the detained person but for his benefit. As Hart J said in his ex tempore judgment, that person’s safeguard is the judge, whose function it is rigorously and comprehensively to examine the basis on which the application is being made.
29. There may be cases where there is a risk that the power given to the judicial authority by para 33(3) will operate to the detained person’s disadvantage. Those cases are likely to be rare, but the judicial authority must always be careful not to exercise it in that way.”
I. JOINDER OF THE APPLICATIONS
II. ALLEGED VIOLATION OF ARTICLE 5 § 1(c), 5 § 2 AND 5 § 3 OF THE CONVENTION
44. The applicants complained that their detention was in breach of Article 5 § 1(c), 5 § 2 and 5 § 3 of the Convention, which read 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 or she understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
45. The Court is not bound by the legal characterisation given by an applicant to the facts of the case (see, for example, Margaretić v. Croatia, no. 16115/13, § 75, 5 June 2014). Therefore, as the substance of the applicants’ complaint under Article 5 § 1(c) was that they were not brought promptly before a “judge or other officer”, it considers that it would be more appropriate to examine that complaint under Article 5 § 3.
46. The Government contested the applicants’ arguments.
1. Six months (the second applicant)
47. The Government argued that the second applicant failed to lodge his complaint within the six-month time-limit prescribed in Article 35 § 1 of the Convention. In the present case, given that the final domestic decision was the refusal by the Supreme Court on 14 November 2011 to grant the applicants permission to appeal (see paragraph 24 above), that time-limit expired at midnight on 14 May 2012.
48. The Government submitted that the second applicant’s first letter to the Court, which was dated 14 May 2012, could not have been faxed to the Court on that date as the Court’s stamp indicated that it had been received on 21 May 2012, which was outside the six-month time-limit. In any case, that letter did not set out even summarily the subject-matter of the application as required by Rule 47 § 5 of the Rules of Court and could not, therefore, constitute a “letter of introduction” of the complaint. Indeed, the Government was not aware of any correspondence from the second applicant received within the six-month time-limit which met the requirements of Rule 47 § 5 of the Rules of Court.
49. The second applicant maintained that the letter of 14 May 2012 had been sent to the Court at 12.09 pm on that day. He submitted a confirmation slip which clearly recorded the date, time and successful transmission of the letter.
50. Although the second applicant accepted that this letter did not set out the object of the application, he argued that pursuant to Rule 47 he had received a letter from the Registry requiring him to submit a duly completed application form within eight weeks of the date of the letter. This request was complied with within the requisite time-frame, as the completed application was sent to the Court on 6 July 2012.
51. It is clear from the documents submitted by the second applicant, and from the Court’s own records, that the letter dated 14 May 2012 was sent by fax to the Registry at 12.09 pm that day and was received at that same time. A hard copy followed by post, which was received by the Registry on 21 May 2012. Consequently, there is no doubt that this letter was received by the Court within the six-month time limit. However, it remains for the Court to decide whether or not this letter constituted a “letter of introduction” for the purposes of Rule 47 § 5 of the Rules of Court.
52. In the version in force at the relevant time, Rule 47 § 5 of the Rules of Court provided as follows:
“The date of introduction of the application for the purposes of Article 35 § 1 of the Convention shall as a general rule be considered to be the date of the first communication from the applicant setting out, even summarily, the subject matter of the application, provided that a duly completed application form has been submitted within the time-limits laid down by the Court. The Court may for good cause nevertheless decide that a different date shall be considered to be the date of introduction.”
53. The accompanying Practice Direction on the Institution of Proceedings further provided that:
“An application should normally be made on the form referred to in Rule 47 § 1 of the Rules of Court and be accompanied by the documents and decisions mentioned in Rule 47 § 1 (h).
Where an applicant introduces his or her application in a letter, such letter must set out, at least in summary form, the subject matter of the application in order to interrupt the running of the six-month rule contained in Article 35 § 1 of the Convention.
If an application has not been submitted on the official form or an introductory letter does not contain all the information referred to in Rule 47, the applicant may be required to submit a duly completed form. It must be despatched within eight weeks from the date of the Registry’s letter requesting the applicant to complete and return the form.
Failure to comply with this time-limit will have implications for the date of introduction of the application and may therefore affect the applicant’s compliance with the six-month rule contained in Article 35 § 1 of the Convention.”
54. Finally, the Guidance Notes which accompanied application forms in May 2012 advised applicants that:
“[The] six-month period will be interrupted when you send to the Court either a first letter clearly setting out - even if only in summary form - the subject-matter of the application you may wish to lodge or a completed application form. A mere request for information is not sufficient to stop time running for the purposes of complying with the six-month time-limit.”
55. It is clear that Rule 47 § 5, read together with the Practice Direction and the Guidance Notes accompanying the application form, required that a letter of introduction should set out the subject-matter of the complaint in order to stop the six-month time-limit from running. This was recently confirmed by the Court, which held that in accordance with the established practice of the Convention bodies and Rule 47 § 5 of the Rules of Court as worded at the relevant time, it would normally consider the date of introduction of an application to be the date of the first communication indicating an intention to lodge an application and giving some indication of the nature of the application. Such first communication, which could take the form of a letter sent by fax, would in principle interrupt the running of the six-month period (see Abdulrahmen v. the Netherlands (dec.), no. 66994/12 of 5 February 2013).
56. The letter sent by the applicant on 14 May 2012 reads as follows:
“We refer to the above-named and an application for judicial review which was refused by the Divisional Court in Northern Ireland on the 24th February 2011. We were not previously the solicitors on record. Mr Duffy has now instructed us. We do not have the papers from the previous solicitor.
Subsequent to that an application for leave to appeal to the Supreme Court of the UK was made in additional [sic] to an application to Certify Points of Law of General Public Importance. This application was lodged with the Court in March 2011. In April 2011 the Divisional Court considered the application for leave to appeal to the Supreme Court and the certified questions and reserved their decision.
In April 2011 the Divisional Court refused leave to appeal to the Supreme Court but Certified Points of Law of General Public Importance.
An application for Permission to Appeal to the Supreme Court was lodged in July 2011. The Appeal Panel of the Supreme Court considered the application for Permission to Appeal to the Supreme Court and an Order was made by the Supreme Court on the 15th November 2011 refusing Permission to Appeal.
It is now our intention to lodge an application with the European Court of Human Rights. We note that the application to the European Court of Human Rights must be lodged within 6 months of the final decision in which all domestic remedies were exhausted. Therefore the application must be lodged with the Court no later than the 15th May 2012.
Under the circumstances and in view of the urgency of this case we would be grateful if you could confirm that the Court will accept the completed application form which has been printed from the European Court website.
In addition to that we would also ask the Court to confirm if you can provide us with the details of the Courts [sic] file reference, so that we can include this on the correspondence and the application form which we hope to submit to you within the next few days.
We thank you for your assistance and await your reply.
We would be grateful if you would confirm the position by fax or email.”
57. The letter did not, therefore, give any indication of the nature or subject-matter of the second applicant’s complaints. The solicitor has stated that at the time of writing he had not received papers from his client’s previous solicitor. However, this fact alone does not explain the failure to provide a basic outline of the complaints the second applicant was intending to make against the respondent State. Consequently, the Court considers that the letter of 14 May 2012 did not stop the six-month time-limit from running; on the contrary, no communication capable of having such an effect, that is to say, one setting out the nature of the application, be it in a summary manner, was received at the Court until the submission of a completed application form on 6 July 2012, by which stage the six-month time-limit had well expired.
58. Although the reply sent to the second applicant by the Registry on 15 May 2012 asked him to submit a completed application form within eight weeks, it did not expressly confirm that the letter of 14 May 2012 satisfied the requirements of Rule 47 § 5. While the second applicant’s argument invoking the Registry’s reply as an indication of compliance with Rule 47 is understandable, it was at all times open to the Government to challenge the contents of the letter of 14 May 2014 and for the Court, having considered the parties’ arguments in full, to uphold the Government’s objection.
59. Accordingly, by virtue of Article 35 §§ 1 and 4 of the Convention, the Court is not empowered to entertain the second applicant’s complaints as they have been lodged out of time.
2. Manifestly ill-founded
60. The Government further submitted that the first and third applicants’ (hereafter “the applicants”) complaints under Article 5 were manifestly ill-founded. Insofar as the applicants have complained under Article 5 § 2 of the Convention, the Court agrees that their complaints are manifestly ill-founded, as there is no suggestion that they were not promptly informed of the reasons for their arrest. It therefore declares this complaint to be inadmissible pursuant to Article 35 § 3(a).
61. However, the Court is satisfied that the complaints under Article 5 § 3 raise complex issues of fact and Convention law calling for examination on the merits. As such, they cannot be rejected as manifestly ill-founded. Since this part of the application is not inadmissible on any other grounds, it must therefore be declared admissible.
1. The parties’ submissions
(a) The applicants
62. The applicants relied on Schiesser v. Switzerland, 4 December 1979, Series A no. 34 as authority for the proposition that “competent legal authority” (in paragraph 1(c) of Article 5) was a synonym, of abbreviated form, for “judge or other officer authorised by law to exercise judicial power” (in paragraph 3 of Article 5). Pursuant to the scheme for commencement of criminal proceedings in Northern Ireland, the Magistrates Court was where a defendant was produced on a first appearance following charge. The applicants therefore submitted that in Northern Ireland the Magistrates Court was both the “competent legal authority” for the purposes of Article 5 § 1(c) and the “judge or other officer” for the purposes of Article 5 § 3 of the Convention and, as they were never brought before a Magistrates Court, their pre-charge detention was in breach of Article 5 § 3.
63. The applicants further submitted that it made perfect sense for the first post-charge appearance before the Magistrates Court to be the appearance before the “judge or other officer”, as it would provide further additional safeguards against arbitrary detention. In particular, it would ensure the prompt and public announcement of the charge against the detainee; it would ensure consideration of the detainee’s continued detention and, importantly, the possibility of conditional release; and if further detention was authorised it would be in prison rather than a police station, which was unlikely to be adequate for prolonged periods of detention.
64. Even if the Court were to accept that the judicial control of detention contemplated by Article 5 § 3 of the Convention did not have to be fulfilled by a Magistrates Court, the applicant submitted that the “judicial authority” as constituted under the 2000 Act did not have the powers and characteristics to fulfil the requirements of that Article.
65. First, they argued that the scope of the inquiry carried out by the judicial authority at the first automatic review of detention was not compliant with Article 5 § 3 of the Convention. In the present case the High Court found that a review of the lawfulness of arrest need not involve a detailed analysis of the basis for the decision to arrest and should reflect the necessary constraints that applied in many arrests for terrorist offences, where reasons of public safety prevented the disclosure of the full information upon which the decision to arrest was taken. The applicants submitted that this was not compliant with Article 5 § 3, as such a test prevented the effective review of arrest and detention required by that Article on the first automatic review by a judge and in subsequent reviews. Therefore, even if the Country Court Judge had proceeded on the basis approved by the High Court, it would not have been sufficient to comply with Article 5 § 3.
66. Secondly, the logical consequence of the creation of a separate and distinct mechanism outside the normal legal processes was that the “judicial authority” had to fulfil two separate judicial-supervision roles required by Article 5 § 3 of the Convention; the automatic review of detention and consideration of whether the detainee should be released on bail pending trial. Convention case-law established that the latter role had to be carried out with due expedition (McKay v. the United Kingdom [GC], no. 543/03, ECHR 2006-X). There was no dispute between the parties that the “judicial authority” as constituted under the 2000 Act did not possess the power to order conditional release; however, without the possibility of imposing conditions of release the judicial authority could only order unconditional release or continued detention. The position was particularly stark in a case such as the present, where the applicants should, at the very least, have been conditionally released. In this regard the applicants submitted that the police had sought to extend their detention when they had already been detained for seven days without charge; police interviews had come to an end save for the receipt of the results of forensic tests; the investigations had not produced any or sufficient evidence to charge the applicants; they were of good character and did not pose a flight risk; and they were entitled to the presumption of innocence.
(b) The Government
67. The Government submitted that the essential requirement in Article 5 § 3 of the Convention was for the arrested person to be brought promptly before “a judge or other officer authorised by law to exercise judicial power”. The judicial bodies contemplated by Article 5 § 1(c) and 5 § 3 did not have to be identical; as Schedule 8 required a detained person to be brought before a judge, it conformed to the essential requirement contained in Article 5 § 3. In support of this assertion the Government relied on the wording of Article 5; the purpose underlying Article 5; and the Court’s judgments in Aquilina v. Malta [GC], no. 25642/94, ECHR 1999-III and Schiesser v. Switzerland, cited above.
68. First, the fact that different language was used in Article 5 § 1(c) on the one hand and in Article 5 § 3 on the other demonstrated that the two judicial bodies referred to in those provisions did not need to be identical.
69. Secondly, in Medvedyev and Others v. France [GC], no. 3394/03, ECHR 2010 the Court stated that the purpose of Article 5 § 3 was to ensure that arrested persons were physically brought before a judicial officer promptly and the provisions of Schedule 8 served this purpose. In particular, they provided a safeguard against arbitrary detention, as there was independent judicial scrutiny of the reasons for a suspect’s detention and release had to be ordered if a suspect’s continued detention was not justified. To suggest that the “judge or other officer” in Article 5 § 3 should be the same as the “competent legal authority” in Article 5 § 1(c) would add nothing to the protection afforded to a detained person, would give priority to form over substance, and would limit for no good reason the organisation of judicial resources by the State concerned.
70. Thirdly, there was nothing in either Schiesser v. Switzerland or Aquilina v. Malta to suggest that the judicial body in Article 5 § 3 should be identical to that in Article 5 § 1(c). On the contrary, the Court had made it clear in those judgments that the important question was whether the judicial or other officer had the requisite independence from the executive and the parties.
71. The Government further submitted that the applicants had misunderstood the nature of the compulsory first review under Article 5 § 3 of the Convention. First, there was no requirement that a person detained pursuant to Article 5 § 1(c) must have been - or must eventually be - charged (Brogan and Others v. the United Kingdom, 29 November 1988, § 53, Series A no. 145-B). Accordingly, prompt and public announcement of a criminal charge as part of the review of the lawfulness of detention under Article 5 § 3 was irrelevant.
72. Secondly, there was no ground for concluding that the review under Article 5 § 3 must, as a matter of automatic obligation, cover the release of the detainee pending trial, with or without conditions, for reasons aside from the lawfulness of the detention or the existence of reasonable suspicion that he or she had committed a criminal offence (McKay v. the United Kingdom, cited above, §§ 38 - 39). The requirements of Article 5 § 3 in relation to detention under Article 5 § 1(c) and the requirements of Article 5 § 3 in relation to continuing pre-trial detention (which did encompass consideration of conditional release) conferred distinct rights and were not on their face logically or temporally linked (Medvedyev and Others v. France, cited above, § 119). In the present case, although the applicants’ pre-trial detention was at a very early stage, the judge could only issue a warrant of further detention if satisfied that each applicant was a person reasonably suspected of having committed a terrorist offence or of being a terrorist; that there were reasonable grounds for believing that the further detention of each applicant was necessary; and that the investigation was being conducted diligently and expeditiously. In these circumstances it was not necessary for the judge to have the additional power to release the applicant on conditional bail.
2. The Court’s assessment
(a) General principles
73. The Court reiterates that Article 5 of the Convention is in the first rank of the fundamental rights that protect the physical security of an individual, and that three strands in particular may be identified as running through the Court’s case-law: the exhaustive nature of the exceptions, which must be interpreted strictly and which do not allow for the broad range of justifications under other provisions (Articles 8 to 11 of the Convention in particular); the repeated emphasis on the lawfulness of the detention, procedurally and substantively, requiring scrupulous adherence to the rule of law; and the importance of the promptness or speediness of the requisite judicial controls under Article 5 §§ 3 and 4 (see McKay, cited above, § 30).
74. The Court notes the importance of the guarantees afforded by Article 5 § 3 to an arrested person. The purpose of this provision is to ensure that arrested persons are physically brought before a judicial officer promptly. Such automatic expedited judicial scrutiny provides an important measure of protection against arbitrary behaviour, incommunicado detention and ill-treatment (see, among other authorities, Brogan and Others, cited above, § 58; Brannigan and McBride v. the United Kingdom, 26 May 1993, §§ 62-63, Series A no. 258-B; Aquilina v. Malta, cited above, § 49; and Dikme v. Turkey, no. 20869/92, § 66, ECHR 2000-VIII).
75. Article 5 § 3, as part of this framework of guarantees, is structurally concerned with two separate matters: the early stages following an arrest, when an individual is taken into the power of the authorities, and the period pending any trial before a criminal court, during which the individual may be detained or released with or without conditions. These two limbs confer distinct rights and are not on their face logically or temporally linked (see T.W. v. Malta [GC], no. 25644/94, § 49, 29 April 1999, McKay, cited above, § 31 and Medvedyev v. France, cited above, § 119).
76. Taking the initial stage under the first limb, the Court’s case-law establishes that there must be protection, through judicial control, of an individual arrested or detained “on reasonable suspicion of having committed [a criminal] offence”, that is to say, even before any criminal charge may have been brought (see Brogan and Others, cited above, § 53). Such control serves to provide effective safeguards against the risk of ill-treatment, which is at its greatest in this initial stage of a perhaps continuing deprivation of liberty following the bringing of a criminal charge, and against the abuse of powers bestowed on law enforcement officers or other authorities for what should be narrowly restricted purposes and exercisable strictly in accordance with prescribed procedures. The judicial control must satisfy the requirements set out below (see McKay, cited above, § 32).
77. The judicial control on the first appearance of an arrested individual must above all be prompt, to allow detection of any ill-treatment and to keep to a minimum any unjustified interference with individual liberty. Although each case has to be assessed according to its special features (Belousov v. Ukraine, no. 4494/07, § 94, 7 November 2013), the strict time-constraint imposed by this requirement leaves little flexibility in interpretation, otherwise there would be a serious weakening of a procedural guarantee to the detriment of the individual and the risk of impairing the very essence of the right protected by this provision (see Brogan and Others, cited above, § 62, where periods of four days and six hours in detention without appearance before a judge were held to be in violation of Article 5 § 3, even in the special context of terrorist investigations).
78. The implication of Brogan (cited above) is that, even where, as in the context of anti-terrorism legislation, there exist exceptional circumstances or special difficulties justifying a longer period than normal before the authorities bring the arrested person before a judge, the first review must take place within a maximum of four days after the arrest. In McKay, cited above, the Court found no violation of Article 5 § 3 of the Convention in circumstances where a non-terrorist suspect was brought before the judicial officer within forty-eight hours of his arrest. Likewise, in Aquilina, cited above, the Court accepted that the applicant’s appearance before a Magistrate two days following his arrest satisfied the requirement of promptness. Nevertheless, while any period in excess of four days is prima facie too long, in certain circumstances shorter periods can also be in breach of the promptness requirement (see Ipek and Others v. Turkey, §§ 36-37, in which a period of three days and nine hours was not sufficiently prompt in relation to applicants who were minors; Kandzhov v. Bulgaria, no. 68294/01, § 66, 6 November 2008, in which a period of three days and twenty-three hours was arrested on charges of a minor and non-violent offence, had already spent twenty-four hours in custody when the police proposed to the prosecutor in charge of the case to request the competent court to place the applicant in pre-trial detention; and Hassan and Others v. France, no. 46695/10, § 89, 4 December 2014, in which the applicants had already been detained for long periods before being taken into police custody).
(β) Automatic nature of the review
79. The review must be automatic and not depend on the application of the detained person; in this respect it must be distinguished from Article 5 § 4, which gives a detained person the right to apply for release. The automatic nature of the review is necessary to fulfil the purpose of that paragraph, as a person subjected to ill-treatment might be incapable of lodging an application asking for a judge to review their detention; the same might also be true of other vulnerable categories of arrested person, such as the mentally frail or those ignorant of the language of the judicial officer (see Aquilina, cited above).
(γ) The characteristics and powers of the judicial officer
80. Since Article 5 § 1 (c) forms a whole with Article 5 § 3, “competent legal authority” in paragraph 1 (c) is a synonym, of abbreviated form, for “judge or other officer authorised by law to exercise judicial power” in paragraph 3 (see, among other authorities, Lawless v. Ireland (no. 3), 1 July 1961, Series A no. 3, and Schiesser, cited above, § 29).
81. The judicial officer must offer the requisite guarantees of independence from the executive and the parties, which precludes his or her subsequent intervention in criminal proceedings on behalf of the prosecuting authority, and he or she must have the power to order release, after hearing the individual and reviewing the lawfulness of, and justification for, the arrest and detention (see, among many other authorities, Assenov and Others v. Bulgaria, 28 October 1998, §§ 146 and 149, Reports 1998-VIII). As regards the scope of that review, the formulation which has been at the basis of the Court’s long-established case-law dates back to the early Schiesser case (cited above, § 31):
“In addition, under Article 5 § 3, there is both a procedural and a substantive requirement. The procedural requirement places the ‘officer’ under the obligation of hearing himself the individual brought before him [...]; the substantive requirement imposes on him the obligations of reviewing the circumstances militating for or against detention, of deciding, by reference to legal criteria, whether there are reasons to justify detention and of ordering release if there are no such reasons [...].”
82. In other words, “Article 5 § 3 requires the judicial officer to consider the merits of the detention” (see T.W. v. Malta and Aquilina, both cited above, § 41 and § 47 respectively).
83. The initial automatic review of arrest and detention accordingly must be capable of examining lawfulness issues and whether or not there is a reasonable suspicion that the arrested person has committed an offence; in other words, whether detention falls within the permitted exceptions set out in Article 5 § 1 (c). When the detention does not, or is unlawful, the judicial officer must then have the power to release (see McKay, cited above, § 40).
84. However, an examination of the relevant case-law gives no ground for concluding that the review must, as a matter of automatic obligation, cover the release of the applicant pending trial, with or without conditions, for reasons aside from the lawfulness of the detention or the existence of reasonable suspicion that the applicant has committed a criminal offence. There is nothing therefore to suggest that, when referring in its Schiesser judgment to “the circumstances militating for or against detention”, the Court was doing more than indicating that the judicial officer had to have the power to review the lawfulness of the arrest and detention under domestic law and its compliance with the requirements of Article 5 § 1 (c) (McKay, cited above, § 36).
85. The Court has noted on several occasions that the investigation of terrorist offences undoubtedly presents the authorities with special problems (see Brogan and Others, cited above, § 61; Murray v. the United Kingdom, 28 October 1994, § 58, Series A no. 300-A; and Aksoy v. Turkey, 18 December 1996, § 78, Reports 1996-VI). In Brogan and others (cited above, § 61) the Court specifically acknowledged that “the difficulties ... of judicial control over decisions to arrest and detain suspected terrorists may affect the manner of implementation of Article 5 § 3, for example, in calling for appropriate procedural precautions in view of the nature of the suspected offences. This does not mean, however, that the investigating authorities have “carte blanche” under Article 5 to arrest suspects for questioning, free from effective control by the domestic courts and, ultimately, by the Convention supervisory institutions, whenever they choose to assert that terrorism is involved (see Öcalan v. Turkey [GC], no. 46221/99, § 104, ECHR 2005-IV).
(δ) The pre-trial or remand period
86. The presumption is in favour of release. As established in Neumeister v. Austria (27 June 1968, p. 37, § 4, Series A no. 8), the second limb of Article 5 § 3 does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time or granting him or her provisional release pending trial. Until conviction, he or she must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continuing detention ceases to be reasonable.
87. Continued detention therefore can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, §§ 110 et seq., ECHR 2000-XI).
88. The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but with the lapse of time this will no longer be enough to justify continued detention. The Court has not attempted to translate this concept into a fixed number of days, weeks, months or years, or into various periods depending on the seriousness of the offence (Stögmüller v. Austria, no. 1602/62, § 4, 10 November 1969). Once the existence of “reasonable suspicion” is no longer enough, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. In particular, they must determine whether such grounds were “relevant” and “sufficient”, and whether the national authorities displayed “special diligence” in the conduct of the proceedings (see, among other authorities, Letellier v. France, 26 June 1991, § 35, Series A no. 207, and Yağcı and Sargın v. Turkey, 8 June 1995, § 50, Series A no. 319-A).
89. The Court’s case-law has not yet had occasion to consider the very early stage of pre-trial detention in this context, presumably as, in the great majority of cases, the existence of suspicion provides a sufficient ground for detention and any unavailability of bail has not been seriously challengeable. It is not in doubt, however, that there must exist the opportunity for judicial consideration of release pending trial as even at this stage there will be cases where the nature of the offence or the personal circumstances of the suspected offender are such as to render detention unreasonable, or unsupported by relevant or sufficient grounds. There is no express requirement of “promptness” as in the first sentence of paragraph 3 of Article 5. However, such consideration, whether on application by the applicant or by the judge of his or her own motion, must take place with due expedition, in order to keep any unjustified deprivation of liberty to an acceptable minimum (see McKay, cited above, § 46).
90. In order to ensure that the right guaranteed is practical and effective, not theoretical and illusory, it is not only good practice, but highly desirable in order to minimise delay, that the judicial officer who conducts the first automatic review of lawfulness and the existence of a ground for detention also has the competence to consider release on bail. It is not, however, a requirement of the Convention and there is no reason in principle why the issues cannot be dealt with by two judicial officers, within the requisite time frame. In any event, as a matter of interpretation, it cannot be required that the examination of bail take place with any more speed than is demanded of the first automatic review, which the Court has identified as being a maximum of four days (see Brogan and Others, cited above).
(b) Application of the general principles to the present case
(α) Were the applicants brought promptly before a judge or other judicial officer satisfying the requirements of Article 5 § 3 of the Convention?
91. Although, as noted above (at paragraph 80), the “competent legal authority” in paragraph 1(c) of Article 5 § 3 is to be taken as a synonym of the “judge or other officer authorised by law to exercise judicial power” in paragraph 3, it does not follow that the judicial bodies to carry out the various judicial functions contemplated by the two provisions must necessarily be identical. On the contrary, in its case-law the Court has repeatedly stressed that the specific purpose of the first limb of Article 5 § 3 is limited to ensuring that a detained person is brought promptly before a judicial authority with the power to assess the lawfulness of the arrest, to review the merits of the detention, and to order release if continued detention would be unlawful. Where this is the case, the Court has found the requirements imposed by this first part of Article 5 § 3 to be satisfied. Accordingly, it considers that the correct question in the present case is not whether the applicants should have been brought before the Magistrates Court, the judicial authority in Northern Ireland before which an accused is to be produced on a first appearance following a criminal charge, but whether they were in fact brought before a judge or other officer satisfying the requirements of the first limb of Article 5 § 3 of the Convention in relation to an initial deprivation of liberty of the kind covered by Article 5 § 1(c).
92. Before addressing this question, the Court observes that during their detention the applicants were brought twice before a specially designated County Court Judge: forty-eight hours after their arrest, when the DPP made applications for warrants of further detention under paragraph 29 of Schedule 8, and five days later, when the DPP made applications under paragraph 36 of Schedule 8 for extensions to those warrants (see paragraphs 6-8 and 33 above). Although it was the paragraph 36 order which the applicants subsequently challenged by way of judicial review, the High Court held that paragraph 32, which sets out the grounds for granting a warrant of further detention, had to be interpreted in conformity with Article 5 § 3 of the Convention (see paragraphs 19 and 21 above). The Court will therefore proceed on the basis that there is no difference in the competency of the judge under paragraph 29 and the judge under paragraph 36.
93. With regard to the requirement of “promptness”, the Court notes that in the present case the applicants were adults who were brought before a judge within forty-eight hours of their arrest on suspicion of having committed a serious terrorism-related crime. Bearing in mind the principles set out at paragraphs 77 and 78 above, the Court accepts that they were brought “promptly” before the judge.
94. The second requirement of Article 5 § 3 is that the first appearance of the detained person before the judicial officer should be automatic. In the present case the applicants have not sought to argue the contrary. Police officers were required by paragraph 29 of Schedule 8 to the 2000 Act to apply to the County Court Judge to extend the initial period of detention beyond forty-eight hours (see paragraph 32 above); the applicants could not, therefore, have been detained any longer than forty-eight hours without first appearing before a judge.
95. Thirdly, the Court has repeatedly held that the judicial officer in Article 5 § 3 of the Convention must offer the requisite guarantees of independence from the executive and the parties; he or she must be able to review the lawfulness of, and justification for, the arrest and detention (to include a review of the circumstances militating for or against detention in order to decide whether there were reasons to justify detention); and, if there were insufficient reasons to justify detention, he or she must have the power to order release.
96. It is common ground that the County Court Judge was independent. Therefore, the two principal questions for the Court to address are first, whether she had adequate jurisdiction to review the lawfulness of the applicants’ detention; and secondly, whether she had the necessary power to order their release.
97. Although the High Court held that paragraph 32 had to be interpreted in conformity with Article 5 § 3 (see paragraphs 19 and 21 above), the applicants take issue with its subsequent suggestion that a review of the lawfulness of the arrest need not involve a detailed analysis of the basis for the decision to arrest and should reflect the constraints that necessarily apply in many arrests for terrorist offences.
98. The Court observes that the guidance given by the High Court was given in the abstract and, as such, it has not had the benefit of seeing how it would be applied by the domestic courts in practice. Nevertheless, in principle the Court sees nothing in the ruling of the High Court which contradicts its own jurisprudence. In particular, it notes that in previous cases it has stopped short of defining the exact content and/or form of analysis required by Article 5 § 3; rather, it has simply stated that the judicial officer must be able to review the lawfulness of, and the justification for, the arrest and detention, review the circumstances militating for or against detention, including the existence of reasonable suspicion, and decide whether there are reasons justifying detention. Moreover, as noted above (at paragraph 83), while it has stated that the authorities do not have a “carte blanche” when investigating terrorist offences, it has specifically acknowledged the special problems that the investigation of such offences often present to the authorities. Therefore, on the evidence before it, the Court cannot agree with the applicants that the review foreseen by the High Court as being inherent in the impugned legislation would necessarily fall short of the standard required by Article 5 § 3 of the Convention.
99. In the present case the High Court, while quashing the County Court Judge’s extensions of the detention on account of her failure to address the initial lawfulness of the arrest, was satisfied that the County Court Judge had not failed to have regard to the need for detention as the basis for the grant of the warrant and that her decision was adequately reasoned (see paragraphs 19 - 20 above).
100. With regard to the question of whether the County Court Judge had the power to order release in the event of an unlawful arrest or detention, the Court recalls that while there is no such express power stated in the 2000 Act, in the present case the High Court accepted that since the provisions of that Act had to be read in conformity with the requirements of Article 5 § 3 of the Convention, the County Court Judge must have power to order release if there was no lawful basis for the initial arrest or continued detention (see paragraphs 19 and 21 above). In addition, it notes that where a warrant (or a further warrant) is either not sought or not granted, the person must be released as there is no longer any legal basis for continued detention.
101. The applicants have suggested that the County Court Judge should also have had the power to order conditional release. However, as noted at paragraph 84 above, there is no support in the Court’s case-law for the applicants’ assertion that the judicial authority conducting the first review of deprivation of liberty should have had power to order conditional release. The Court stated in McKay (cited above, § 47) that it would be “highly desirable” for the judicial officer conducting the first automatic review of lawfulness to also have competence to consider release on bail for reasons other than the lawfulness of the detention or the existence of a reasonable suspicion that the applicant had committed a criminal offence, but stressed that this was not a requirement of the Convention and there was no reason in principle why the issues could not be dealt with by two judicial officers.
(β) Should there have been a possibility of conditional release during the period of the applicants’ detention?
102. Following the first review of their detention the applicants remained in police custody for a further ten days. Although they were brought for a second time before a County Court Judge after they had been in detention for seven days, it is accepted that at no time during their detention were they brought before a judge with power to order conditional release. The applicants have therefore complained that insofar as the scheme under Schedule 8 to the 2000 Act permitted their detention for a maximum period of twenty-eight days without charge, during which no consideration had to be given to their conditional release, it was not compatible with Article 5 § 3 of the Convention.
103. The Court cannot consider the scheme under Schedule 8 in abstracto; rather, it must confine itself to the facts of the case before it. Therefore, although the applicants could have been detained for a maximum of twenty-eight days, it cannot overlook the fact that in the present case they were released after twelve days. Moreover, it does not consider the absence of any eventual charge to be material; nothing in Article 5 § 3 suggests that detainees must be charged with a criminal offence in order for their detention to be compatible with that provision (Brogan, cited above, § 53).
104. As noted at paragraph 75 above, Article 5 § 3 is structurally concerned with two separate matters which confer distinct rights and which are not temporally linked: the early stages following an arrest on suspicion of having committed a criminal offence, and the period pending any trial before a criminal court, during which the individual may be detained or released with or without conditions (see T.W. v. Malta, cited above, § 49, McKay, cited above, § 31 and Medvedyev v. France, cited above, § 119). During the initial stage under the first limb of Article 5 § 3, the detainee’s detention may be justified by the existence, on its own, of a “reasonable suspicion” that he had committed a criminal offence. However, the persistence of suspicion will not suffice to justify, after a certain lapse of time, the prolongation of the detention, although the Court has not attempted to translate this concept into a fixed number of days, weeks, months or years, or into various periods depending on the seriousness of the offence (Stögmüller v. Austria, cited above, § 4). It therefore falls to the Court in the present case to decide whether the applicants were at all times detained under the first limb of Article 5 § 3, or whether at some point their continued detention could no longer be justified by the existence of “reasonable suspicion”.
105. In the present case the applicants were detained for twelve days, which was a relatively short period of time. As such, the Court considers that they were at all times in “the early stages” of the deprivation of liberty, when their detention could be justified by the existence of a reasonable suspicion that they had committed a criminal offence; it was not, therefore, necessary that any consideration be given to their conditional release during this period.
106. In any case, the Court notes that during the period of their detention there were a number of safeguards in place to protect the applicants against arbitrary detention. First, under the Schedule 8 scheme the judge could only extend detention for a maximum of seven days and the overall period could not exceed twenty-eight days. Before granting any extension the judge had to be satisfied that there were reasonable grounds for believing that further detention was necessary and that the investigation was being conducted diligently and expeditiously (see paragraph 36 above). Furthermore, following the ruling of the High Court, the judge also had to be satisfied that the arrest was lawful and consider the merits of detention. Although in certain cases detainees and/or their representatives could be excluded from the hearings, in the present case the first applicant gave evidence on oath during the first review and arguments from both applicants were heard during the second reviews (see paragraph 8 above). Finally, the applicants were able to challenge their continued detention by way of judicial review.
107. Stricter safeguards were in place for any extension that would prolong detention beyond fourteen days; however, that was not necessary in the present case as the applicants were released after twelve days.
108. In light of the factors set out above, the Court does not consider that the absence of a possibility of conditional release during the period of the applicants’ deprivation of liberty gave rise to any issues under Article 5 § 3 of the Convention.
109. The foregoing considerations are sufficient to enable the Court to conclude that the applicants’ detention under Schedule 8 to the 2000 Act did not breach Article 5 § 3 of the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Joins the applications nos. 26289/12 and 29891/12 lodged respectively by the first and third applicants;
2. Declares the second applicant’s application (application no. 29062/12) inadmissible;
3. Declares the first and third applicants’ complaints under Article 5 § 2 of the Convention inadmissible as manifestly ill-founded;
4. Declares the first and third applicants’ complaints under Article 5 § 3 of the Convention admissible;
5. Holds that there has been no violation of Article 5 § 3 of the Convention.
Done in English, and notified in writing on 12 May 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Päivi Hirvelä