CASE OF FOX, CAMPBELL AND HARTLEY v. THE UNITED KINGDOM
(Application no. 12244/86; 12245/86; 12383/86)
30 August 1990
In the case of Fox, Campbell and Hartley*,
The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and the relevant provisions of the Rules of Court, as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr J. Cremona,
Mr J. Pinheiro Farinha,
Sir Vincent Evans,
Mr R. Bernhardt,
Mr S.K. Martens,
Mrs E. Palm,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy Registrar,
Having deliberated in private on 29 March and 26 June 1990,
Delivers the following judgment, which was adopted on the last-mentioned date:
The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request was to obtain a decision from the Court as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 5 and 13 (art. 5, art. 13) of the Convention.
By letter received on 8 February 1990 the Secretary to the Commission advised the Registrar that the Delegate did not propose to file a memorial in reply.
There appeared before the Court.
- for the Government
Mr M. Wood, Legal Counsellor,
Foreign and Commonwealth Office, Agent,
Mr B. Kerr, Q.C.,
Mr N. Bratza, Q.C., Counsel;
- for the Commission
Mr C. Rozakis, Delegate;
- for the applicants
Mr R. Weir, Q.C.,
Mr S. Treacy, Barrister-at-Law, Counsel,
Mr P. Madden, Solicitor.
The Court heard addresses by Mr Kerr for the Government, by Mr Rozakis for the Commission and by Mr Weir for the applicants, as well as their replies to its questions.
AS TO THE FACTS
I. PARTICULAR CIRCUMSTANCES OF THE CASE
A. As regards Mr Fox and Mrs Campbell
No charges were brought against either applicant. The first applicant was released at 11.40 a.m. on 7 February 1986 and the second applicant five minutes later. Excluding the time taken to bring them to the police station, the first applicant had thus been detained 44 hours and the second applicant 44 hours and 5 minutes.
B. As regards Mr Hartley
No charges were brought against him. He was released on 19 August 1986 at 2.10 p.m. after 30 hours and 15 minutes in detention. He brought no proceedings in connection with his arrest or detention.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Special legislation has been introduced in an attempt to deal with this situation in Northern Ireland. Thus, the 1978 Act and its predecessors, the Northern Ireland (Emergency Provisions) Act 1973 ("the 1973 Act") and the Northern Ireland (Emergency Provisions) (Amendment) Act 1975 ("the 1975 Act"), were enacted to enable the security forces to deal more effectively with the threat of terrorism.
B. Section 11 of the 1978 Act
"1. Any constable may arrest without warrant any person whom he suspects of being a terrorist.
3. A person arrested under this section shall not be detained in right of the arrest for more than seventy-two hours after his arrest, and section 132 of the Magistrates’ Courts Act (Northern Ireland) 1964 and section 50(3) of the Children and Young Persons Act (Northern Ireland) 1968 (requirement to bring arrested person before a magistrates’ court not later than forty-eight hours after his arrest) shall not apply to any such person."
Sub-section (2) gave a power to enter and search premises where a suspected terrorist was or was suspected of being. Under sub-section (4) persons arrested under section 11 could be photographed and their finger prints and palm prints taken by a constable.
Under section 21 of, and Schedule 2 to, the 1978 Act, certain organisations - one of which is the IRA, the Provisional IRA included - are proscribed organisations. It is an offence to belong to or profess to belong to such an organisation, to solicit or incite support for any such organisation, knowingly to make or receive any contribution to it, to solicit or invite a person to become a member or to carry out on its behalf orders or directions or requests by a member of the organisation.
Since its enactment in 1973 the legislation conferring this power was subject to periodic renewal by Parliament. Thus, under the 1978 Act (section 33) the relevant provisions became renewable, and were renewed, every six months until their repeal in 1987.
"263. Generally I find it unhelpful in making recommendations in 1984 to go back further than 1973 but to understand the arrest and detention sections of the [1978 Act] it is useful to note that Regulation 10 of the Special Powers Act (Northern Ireland) 1922 provided:
‘Any Officer of the RUC for the preservation of the peace and maintenance of order, may authorise the arrest without warrant and detention for a period of not more than 48 hours of any person for the purpose of interrogation.’ (My emphasis).
This general power of arrest for questioning did not disappear entirely when the Special Powers Act was repealed by Westminster. It was re-worded and to some extent re-enacted in the [1978 Act] and PTA [the Prevention of Terrorism (Temporary Provisions) Acts 1974 and 1976]. But nowhere in these acts do the words ‘for the purpose of interrogation’ appear. That is left to be inferred. There is widespread criticism of the alleged illegal use of arrest for ‘information gathering’ or low grade intelligence and harassment. It might be better if the power of the RUC were expressly spelled out in the Act linked of course to appropriate controls. That the police have such a power under the PTA was accepted by Lawton LJ in the English Court of Appeal (Criminal Division) in R. v. Houghton (1987) Criminal Appeal Reports 197.
264. In contrast to the provisions of the [1978 Act] which deal with the trial of terrorist offences and do not require derogation from Article 6 (art. 6) of the European Convention, those which deal with the powers of arrest appear to contravene the minimum requirements of Article 5 (art. 5). Consequently the United Kingdom entered a notice of derogation under Article 15 (art. 15). Article 5 § 1 (c) (art. 5-1-c) requires reasonable suspicion of having committed an offence and arrest for the purpose of bringing the offender before a competent court. Section 11 [of the 1978 Act] requires neither, nor is an offence necessary. ... Any action which can be taken to avoid the United Kingdom having to rely on the notice of derogation to excuse breaches of the Convention is desirable.
Suspicion or reasonable suspicion
280. Only a lawyer or a legislator would suspect (or reasonably suspect?) a difference. But there is one because, say the judges, with whom I agree, Parliament by using the two phrases must have so intended. The test for Section 11 is a subjective one: did the arrestor suspect? If his suspicion is an honest genuine suspicion that the person being arrested is a terrorist, a court cannot enquire further into the exercise of the power. But where the requirement is reasonable suspicion it is for the court to judge the reasonableness of the suspicion. It is an objective standard. The facts which raise the suspicion may be looked at by the court to see if they are capable of constituting reasonable cause. Reasonable suspicion is itself a lower standard than evidence necessary to prove a prima facie case. Hearsay may justify reasonable suspicion but may be insufficient for a charge.
281. The only danger that I can foresee if the requirement of reasonableness is added to suspicion is that the facts raising the suspicion might have come from a confidential source which could not be disclosed in court in a civil action for wrongful arrest. Against this there is the requirement of reasonable suspicion in Section 12 PTA which the RUC have used more extensively in 1982 and 1983. The figures for arrests are:
Under S.11 Under S.12 PTA
[of the 1978 Act]
1982 1,902 828
1983 (to 1 October) 964 883 ...
The criterion of whether to use one in preference to the other in any given case has been the length of time the person to be arrested may be held.
283. No evidence has been given to me to suggest that suspicion as against reasonable suspicion has been a factor in a decision to use Section 11 in preference to Section 12 and indeed some senior police officers have told me it would not influence them. I also understand that the police are now trained to treat arrest for terrorist offences as requiring similar suspicion as for all other offences. I therefore conclude that reasonable suspicion should be required when a constable arrests without warrant and this should be included in the new arrest powers which I propose in substitution for Section 11(1) and in Section 13(1).
285. There is no need to name a specific offence when arresting under section 11 or to inform the suspect of the grounds on which he is being arrested as would be required by the common law, which is that ‘a citizen is entitled to know on what charge or suspicion of what crime he is seized’. It is sufficient to say that the arrest is under the section on the grounds that he is suspected of being a terrorist. ..."
PROCEEDINGS BEFORE THE COMMISSION
On 11 December 1986 the Commission ordered the joinder of the three applications pursuant to Rule 29 of its Rules of Procedure, and on 10 May 1988 it declared the case admissible.
The full text of the Commission’s opinion and of the separate opinions contained in the report is reproduced as an annex to this judgment*.
FINAL SUBMISSIONS TO THE COURT
"to decide and declare in respect of each of the three applicants:
(i) that the facts disclose no breach of paragraphs 1, 2, 4 or 5 of Article 5 (art. 5-1, art. 5-2, art. 5-4, art. 5-5) of the Convention;
(ii) that the facts disclose no breach of Article 13 (art. 13) of the Convention, alternatively that no separate issue arises under Article 13 (art. 13) of the Convention".
"to decide and declare in respect of each of the three applicants:
(i) that the facts disclose a breach of paragraphs 1, 2, 4 and 5 of Article 5 (art. 5-1, art. 5-2, art. 5-4, art. 5-5) of the Convention;
(ii) that the facts disclose a breach of Article 13 (art. 13) of the Convention".
AS TO THE LAW
I. GENERAL APPROACH
Over the last twenty years, the campaign of terrorism waged in Northern Ireland has taken a heavy toll, especially in terms of human life and suffering (see paragraph 15 above). The Court has already recognised the need, inherent in the Convention system, for a proper balance between the defence of the institutions of democracy in the common interest and the protection of individual rights (see the Brogan and Others judgment of 29 November 1988, Series A no. 145-B, p. 27, § 48). Accordingly, when examining these complaints the Court will, as it did in the Brogan and Others judgment, take into account the special nature of terrorist crime and the exigencies of dealing with it, as far as is compatible with the applicable provisions of the Convention in the light of their particular wording and its overall object and purpose.
II. ALLEGED BREACH OF ARTICLE 5 § 1 (art. 5-1)
"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 ...;
They did not dispute that their arrest was "lawful" under Northern Ireland law for the purposes of this provision and, in particular, "in accordance with a procedure prescribed by law".
In addition, they maintained that the purpose of their arrest was not to bring them before the "competent legal authority" but rather to gather information without necessarily intending to charge them with a criminal offence. Both the respondent Government and the Commission rejected this contention.
Article 5 § 1 (c) (art. 5-1-c) speaks of a "reasonable suspicion" rather than a genuine and bona fide suspicion. The Court’s task, however, is not to review the impugned legislation in abstracto but to examine its application in these particular cases.
In this respect, terrorist crime falls into a special category. Because of the attendant risk of loss of life and human suffering, the police are obliged to act with utmost urgency in following up all information, including information from secret sources. Further, the police may frequently have to arrest a suspected terrorist on the basis of information which is reliable but which cannot, without putting in jeopardy the source of the information, be revealed to the suspect or produced in court to support a charge.
As the Government pointed out, in view of the difficulties inherent in the investigation and prosecution of terrorist-type offences in Northern Ireland, the "reasonableness" of the suspicion justifying such arrests cannot always be judged according to the same standards as are applied in dealing with conventional crime. Nevertheless, the exigencies of dealing with terrorist crime cannot justify stretching the notion of "reasonableness" to the point where the essence of the safeguard secured by Article 5 § 1 (c) (art. 5-1-c) is impaired (see, mutatis mutandis, the Brogan and Others judgment previously cited, Series A no. 145-B, pp. 32-33, § 59).
The Government argued that they were unable to disclose the acutely sensitive material on which the suspicion against the three applicants was based because of the risk of disclosing the source of the material and thereby placing in danger the lives and safety of others. In support of their contention that there was nevertheless reasonable suspicion, they pointed to the facts that the first two applicants had previous convictions for serious acts of terrorism connected with the Provisional IRA (see paragraph 12 above) and that all three applicants were questioned during their detention about specific terrorist acts of which they were suspected (see paragraphs 10 and 14 above). In the Government’s submission these facts were sufficient to confirm that the arresting officer had a bona fide or genuine suspicion and they maintained that there was no difference in substance between a bona fide or genuine suspicion and a reasonable suspicion. The Government observed moreover that the applicants themselves did not contest that they were arrested and detained in connection with acts of terrorism (see paragraph 55 of the Commission’s report).
The Government also stated that, although they could not disclose the information or identify the source of the information which led to the arrest of the applicants, there did exist in the case of the first and second applicants strong grounds for suggesting that at the time of their arrest the applicants were engaged in intelligence gathering and courier work for the Provisional IRA and that in the case of the third applicant there was available to the police material connecting him with the kidnapping attempt about which he was questioned.
Nevertheless the Court must be enabled to ascertain whether the essence of the safeguard afforded by Article 5 § 1 (c) (art. 5-1-c) has been secured. Consequently the respondent Government have to furnish at least some facts or information capable of satisfying the Court that the arrested person was reasonably suspected of having committed the alleged offence. This is all the more necessary where, as in the present case, the domestic law does not require reasonable suspicion, but sets a lower threshold by merely requiring honest suspicion.
The fact that Mr Fox and Ms Campbell both have previous convictions for acts of terrorism connected with the IRA (see paragraph 12 above), although it could reinforce a suspicion linking them to the commission of terrorist-type offences, cannot form the sole basis of a suspicion justifying their arrest in 1986, some seven years later.
The fact that all the applicants, during their detention, were questioned about specific terrorist acts, does no more than confirm that the arresting officers had a genuine suspicion that they had been involved in those acts, but it cannot satisfy an objective observer that the applicants may have committed these acts.
The aforementioned elements on their own are insufficient to support the conclusion that there was "reasonable suspicion". The Government have not provided any further material on which the suspicion against the applicants was based. Their explanations therefore do not meet the minimum standard set by Article 5 § 1 (c) (art. 5-1-c) for judging the reasonableness of a suspicion for the arrest of an individual.
III. ALLEGED BREACH OF ARTICLE 5 § 2 (art. 5-2)
"Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him."
The Commission upheld this claim which was rejected by the Government.
However, following their arrest all of the applicants were interrogated by the police about their suspected involvement in specific criminal acts and their suspected membership of proscribed organisations (see paragraphs 9, 10, and 14 above). There is no ground to suppose that these interrogations were not such as to enable the applicants to understand why they had been arrested. The reasons why they were suspected of being terrorists were thereby brought to their attention during their interrogation.
IV. ALLEGED BREACH OF ARTICLE 5 § 4 (art. 5-4)
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
The majority of the Commission concluded that there had been no such violation. They were of the opinion that the important safeguard contained in Article 5 § 4 (art. 5-4) became devoid of purpose where, as in the present case, the detainees were released before a speedy determination of the lawfulness of the detention could take place.
The Government submitted that the courts, in an action for habeas corpus, can examine both the procedural legality of the detention and whether the person was genuinely suspected of being a terrorist. In the alternative, they followed the Commission’s view.
In reply, the applicants adopted the reasoning of Mr Danelius in his dissenting opinion in the Commission’s report. He took the view that the entitlement set out in Article 5 § 4 (art. 5-4) was also valid for short periods of detention; and that neither an application for habeas corpus nor a claim for damages for false imprisonment could ever secure this entitlement as interpreted by the Court in its Brogan and Others judgment (loc. cit., pp. 34-35, § 65), since the existence of a reasonable suspicion was not a condition for the lawfulness of an arrest effected under section 11 (1) of the 1978 Act.
All three applicants were released speedily before any judicial control of their detention had taken place. It is not for the Court to rule in abstracto as to whether, had this not been so, the scope of the remedies available would or would not have satisfied the requirements of Article 5 § 4 (art. 5-4).
Accordingly, the Court does not find it necessary to examine the merits of the applicants’ complaint under Article 5 § 4 (art. 5-4).
V. ALLEGED BREACH OF ARTICLE 5 § 5 (art. 5-5)
"Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article (art. 5) shall have an enforceable right to compensation."
Their arrest and detention have been held to be in breach of paragraph 1 of Article 5 (art. 5-1) (see paragraph 36 above). This violation could not give rise, either before or after the findings made by this Court in the present judgment, to an enforceable claim for compensation by the victims before the Northern Ireland courts (see the above-mentioned Brogan and Others judgment, Series A no. 145-B, p. 35, § 67).
There has therefore been a violation of paragraph 5 of Article 5 (art. 5-5) in respect of all three applicants.
VI. ALLEGED BREACH OF ARTICLE 13 (art. 13)
"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."
In the light of its findings in paragraphs 43 and 45 above, the Court does not deem it necessary to examine this complaint.
VII. APPLICATION OF ARTICLE 50 (art. 50)
"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."
The applicants did not submit any claim for pecuniary damage. They did, however, seek substantial compensation in such amount as the Court considered equitable for the non-pecuniary damage allegedly suffered by each of them, together with the sum of £37,500 in respect of their costs and expenses referable to the proceedings before the Convention institutions. They expressed their willingness to endeavour to agree the appropriate amounts with the Government and only to refer the matter to the Court for assessment in default of such agreement.
The Government considered it more appropriate to reserve their submissions as to the compensation claim until the delivery of the Court’s judgment on the substantive issues.
In these circumstances, therefore, the Court considers that the question of the application of Article 50 (art. 50) is not ready for decision and must be reserved.
FOR THESE REASONS, THE COURT
1. Holds by four votes to three that there has been a breach of Article 5 § 1 (art. 5-1);
2. Holds unanimously that there has been no breach of Article 5 § 2 (art. 5-2);
3. Holds by four votes to three that there has been a breach of Article 5 § 5 (art. 5-5);
4. Holds unanimously that it is unnecessary to examine the complaints under Article 5 § 4 and Article 13 (art. 5-4, art. 13);
5. Holds unanimously that the question of the application of Article 50 (art. 50) is not ready for decision;
(a) reserves the whole of the said question;
(b) invites the Government and the applicants to submit, within the coming three months, their written comments thereon and, in particular, to notify the Court of any agreement reached between them;
(c) reserves the further procedure and delegates to the President of the Court power to fix the same if need be.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 30 August 1990.
In accordance with Article 51 § 2 (art. 51-2) of the Convention and Rule 53 § 2 of the Rules of Court, the joint dissenting opinion of Sir Vincent Evans, Mr Bernhardt and Mrs Palm is annexed to this judgment.
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.