CASE OF McKAY v. THE UNITED KINGDOM
(Application no. 543/03)
3 October 2006
This judgment is final but may be subject to editorial revision.
In the case of McKay v. the United Kingdom,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Mr C. Rozakis, President,
Mr J.-P. Costa,
Sir Nicolas Bratza,
Mr P. Lorenzen,
Mrs F. Tulkens,
Mr J. Casadevall,
Mrs N. Vajić,
Mr M. Pellonpää,
Mr R. Maruste,
Mr K. Traja,
Mrs S. Botoucharova,
Mr J. Borrego Borrego,
Mrs L. Mijović,
Mr E. Myjer,
Mr S.E. Jebens,
Mr J. Šikuta,
Mrs I. Ziemele, judges,
and Mr V. Berger, Acting Registrar,
Having deliberated in private on 14 June and 13 September 2006,
Delivers the following judgment, which was adopted on the last mentioned date:
5. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24 of the Rules of Court.
There appeared before the Court:
(a) for the Government
Mr J. Grainger, Agent,
Mr D. Perry,
Mr P. Maguire, Counsel,
Mr I. Wimpress,
Ms C. Mersey, Advisers;
Mr J. Larkin, QC
Mr B. Torrens, Counsel,
Mr P. McDermott, Solicitor.
The Court heard addresses by Mr Perry and Mr Larkin and their answers to questions put by the judges.
I. THE CIRCUMSTANCES OF THE CASE
“There is nothing in the text of Article 5 nor in the jurisprudence of ECHR which requires that the court before which an arrested person must be brought should be the same court that has power to grant him bail. He must be brought promptly before a court or an officer authorised to exercise judicial power. He must also have the opportunity to apply for bail. It is not necessarily the case, however, that these two separate and distinct rights require to be vindicated at the same time or in the same forum. Provided that the arrested person is brought promptly before a court that has power to review the lawfulness of his detention and that he has the opportunity to apply without undue delay for release pending his trial, the requirements of Article 5 § 3 are met.
The applicant was brought before the magistrates' court promptly within 36 hours of his arrest. His appearance was automatic and did not depend on any initiative from the applicant. Moreover, the resident magistrate was empowered to review the lawfulness of the applicant's detention ... Here the magistrate can review the legal basis on which the arrested person is detained. He must be satisfied that the arrest and continued detention are lawful. If he is not so satisfied, he must order the release of the person detained. The applicant in the present case was therefore entitled to a prompt automatic examination by a competent judicial officer of the legal basis of his arrest and continued detention. He was moreover entitled to – and did obtain – a prompt examination by a judge of his right to release on bail.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Power to release on bail concerning scheduled offences
“Subject to subsections (6) and (7) a person to whom this section applies shall not be admitted to bail except -
(a) by a judge of the High Court or the Court of Appeal, or
(b) by the judge of the court of trial on adjourning the trial of a person charged with a scheduled offence.”
B. Procedure for High Court bail applications
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
“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.”
Insofar as relevant, Article 5 § 1 of the Convention provides:
“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...”
A. The parties' submissions
1. The applicant
2. The Government
B. The Court's assessment
1. General principles
a. The arrest period
ii. Automatic nature of the review
iii. The characteristics and powers of the judicial officer
“.... [U]nder 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 (see, mutatis mutandis the above-mentioned Winterwerp judgment, p. 24, § 60); 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 (above-mentioned Ireland v. the United Kingdom judgment, p. 76, § 199).”
More recently, this has been expressed by saying “(i)n other words, Article 5 § 3 requires the judicial officer to consider the merits of the detention” (T.W. v. Malta, cited above, § 41; Aquilina, cited above, § 47).
b. The pre-trial or remand period
2. Application in the present case
FOR THESE REASONS, THE COURT
Holds by sixteen votes to one that there has been no violation of Article 5 § 3 of the Convention.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 3 October 2006.
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following opinions are annexed to this judgment:
(a) Common separate opinion of Mr Rozakis, Mrs Tulkens, Mrs Botoucharova, Mr Myjer and Mrs Ziemele;
(b) Separate opinion of Mr Borrego Borrego;
(c) Dissenting opinion of Mr Jebens.
JOINT SEPARATE OPINION OF JUDGES ROZAKIS, TULKENS, BOTOUCHAROVA, MYJER AND ZIEMELE
Although we agree with the outcome of the case, we disagree with the reasoning of the majority in reaching that conclusion.
As regards the scope of that review, there is a long-established line of case-law to the effect that:
“... 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 (see, mutatis mutandis, [Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no. 33], p. 24, § 60); 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 ([Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25], p. 76, § 199).” (see Schiesser v. Switzerland, judgment of 4 December 1979, Series A no. 34, pp. 13-14, § 31)
More recently, this has been expressed by saying that “in other words, Article 5 § 3 requires the judicial officer to consider whether detention is justified” (see Pantea, cited above, § 231 in fine: “... que le magistrat se penche sur le bien-fondé de la détention”, in the French version), that is, “to consider the merits of the detention” (see T.W. v. Malta [GC], no. 25644/94, § 41, 29 April 1999, and Aquilina v. Malta [GC], no. 25642/99, § 47, ECHR 1999-III).
These statements are clearly wide enough to encompass considerations not only of lawfulness and the existence of reasonable suspicion as required by Article 5 § 1 (c) but also whether or not continued detention is justified or necessary in the circumstances of the individual case.
Further, the Court's case-law which deals with the length of pre-trial detention generally underlines the presumption in favour of release. As first held in Neumeister v. Austria (judgment of 27 June 1968, Series A no. 8, p. 37, § 4), the second sentence 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 provisional release. Until conviction, he 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 (see Jablonski v. Poland, no. 33492/96, § 83, 21 December 2000). Continued detention can therefore 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, outweigh 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).
The interpretation of the Convention, and more particularly of Article 5 § 3, to include the obligation on a judge to release a detained person either of his or her own motion or at the detained person's request serves better the fundamental purpose of protecting individual liberty. Interpreting the third paragraph in a restrictive manner which would deny the judge acting under that paragraph the power to release a person whenever the circumstances allowed would frustrate one of its main safeguards, namely that of reducing to a minimum undue restrictions on liberty through the promptness and speediness of judicial control.
While the question of release pending trial is therefore a distinct and separate matter which logically only becomes relevant after the establishment of the existence of a lawful basis and a Convention ground for detention, it must also fall within the scope of the first automatic appearance before a judicial officer. So, in our view, the judge before whom the arrested individual appears must in principle not only have the power to order an accused's release when the detention is not lawful or when there is no – or no longer any – reasonable suspicion, but also when he considers that further deprivation of liberty is, for other reasons, no longer justified or necessary.
However, it is nonetheless the case that, following his application to the High Court, which was heard on 9 January 2001, the applicant was released. As this occurred less than 36 hours after his arrest, within the maximum period of four days laid down in Brogan and Others v. the United Kingdom (judgment of 29 November 1988, Series A no. 145-B), the applicant cannot complain that there was a failure to provide him with the requisite judicial control of his arrest and detention. In the circumstances, the requirements of promptness and speediness, which are, in our view, of paramount importance, have been satisfied. This is the reason why, accordingly, we came to the conclusion that, in this case, there has been no violation of Article 5 § 3 of the Convention.
SEPARATE OPINION OF JUDGE BORREGO BORREGO
I voted in favour of finding that there had been no violation. However, in my opinion this application should have been declared inadmissible as being manifestly ill-founded (Article 35 § 3 of the Convention).
Was it open to the Grand Chamber to declare the application inadmissible? Without a shadow of a doubt. In the Azinas v. Cyprus judgment of 28 April 2004 (no. 56679/00, § 32, ECHR 2006-...), for instance, the Grand Chamber held that “the Court [could] reconsider a decision to declare an application admissible...”. More recently, in the Blečić v. Croatia judgment of 8 March 2006 (no. 59532/00, § 65, ECHR 2006-...) the Grand Chamber reaffirmed the possibility of “reconsider[ing] a decision to declare an application admissible ... at any stage of the proceedings” in accordance with Article 35 § 4 of the Convention.
The composition of the Grand Chamber which examined the present case was determined by Rule 24 § 2 of the Rules of Court. Accordingly, the members of the Chamber that had relinquished jurisdiction after declaring the application admissible were also members of the Grand Chamber. However, where a case is referred to the Grand Chamber under the procedure laid down in Article 43 of the Convention, the Grand Chamber, as provided in Rule 24 § 2 (d), does not, save for the exceptions listed in the Rule, include any of the judges who sat in the original Chamber that delivered the judgment or ruled on the admissibility of the application.
It would therefore seem easier to reconsider the admissibility of an application where it is referred to the Grand Chamber under Article 43 of the Convention than where it is referred under Article 30, since in the latter case the Grand Chamber also includes the members of the Chamber that relinquished jurisdiction after the admissibility stage. However, this difference in the composition of the Grand Chamber according to the origin of its intervention (which I might perhaps describe as illogical) does not preclude the Court from declaring an application inadmissible “at any stage of the proceedings”.
Was this application manifestly inadmissible? In my opinion, it was.
As is pointed out in paragraph 47 of the judgment, in Brogan and Others v. the United Kingdom (Series A no. 145-B, judgment of 29 November 1988) the Court identified a maximum period of four days for detention without appearance before a judge. In the present case, less than three days elapsed between the applicant's detention (on a Saturday evening) and his release by order of a judge. In general, where the period in question is so short, as in this instance, the application is declared inadmissible by a Committee.
However, in the present case the Grand Chamber decided to examine whether the magistrate before whom the applicant first appeared had the power to order his release.
I should like to make two points here. Firstly, the Court “is not required to examine the impugned legislation in abstracto, but must confine itself to the circumstances of the case before it” (see Brogan and Others, cited above, pp. 29-30, § 53). In my view, the judgment in the present case is precisely an example of a review in abstracto of domestic law.
Secondly, in a judgment the only reasoning that has the force of res judicata is the ratio decidendi. In the present case it is clear that the ratio decidendi for the finding that there had been no violation was the short period between the applicant's arrest and his release on bail. Even if the rest of the judgment is important, not least because it is a Grand Chamber judgment, anything that does not constitute the ratio decidendi is merely an expression of an opinion and becomes superfluous. Similarly, while I agree about the importance of procedure, I consider that repeatedly magnifying the procedural aspect at all times and for all purposes creates the risk of turning procedure into a new golden calf to be venerated. That, in my view, would be taking things too far.
I do not think that it would be easy to explain to the general public, to the European citizen, that the Grand Chamber of the European Court of Human Rights has devoted all its attention and time to the examination of a complaint submitted by an applicant who was found guilty of robbery and was released on bail three days after being arrested. Hence my separate opinion.
DISSENTING OPINION OF JUDGE JEBENS
I respectfully disagree with the majority as to the scope of the review provided for in the first limb of Article 5 § 3, and also with the minority when it comes to the consequences of the fact that the sitting magistrate did not have the power to order release on bail. I will explain this in the following paragraphs, first by outlining the requirements in Article 5 § 3, then by highlighting some factual elements, and finally by discussing whether there has been a violation.
Article 5 § 3 describes the initial review of detention in criminal cases in its first limb, by stating that the “judge or other officer” before whom the arrested person is to be “brought promptly” must be “authorised by law to exercise judicial power”. The wording implies that the judicial officer must have the power to order release, but does not in itself define the scope of the review. However, the Court has sought to clarify this in its case-law. It has stated that the judicial officer must review “the circumstances militating for or against detention” (see Schiesser v. Switzerland, judgment of 4 December 1979, Series A no. 34, pp. 13-14, § 31); “consider the merits of the detention” (see T.W. v. Malta, no. 25644/94, § 41, judgment of 29 April 1999, and Aquilina v. Malta, [GC], no. 25642/94, § 47, ECHR 1999-III); and, in a recent judgment, “consider whether detention is justified” (Pantea v. Romania, no. 33343/96, § 231, ECHR 2003-VI). In my opinion, this strongly indicates that the judicial officer cannot limit the scope of the review to the lawfulness of the detention and the question of reasonable suspicion. Moreover, such a limited scope would not be sufficient in a great number of cases, where the question at issue is not primarily whether there exists a reasonable suspicion, but whether detention is justified because of the danger of absconding or collusion, or the need to preserve evidence, prevent crime or maintain public order. Circumstances which are related to the person in question, such as very young or old age, illness or frailness, must also be considered. A review which is limited to the lawfulness of the detention and the question of reasonable suspicion could therefore, in my opinion, easily lead to unjustified detentions.
It follows from this that the initial review must be broad and automatic. However, release on bail cannot be ordered by the judicial officer unless it is an actual and realistic alternative in the circumstances of the case. Therefore, release on bail must be subject to a submission by the person detained or the defence lawyer. Accordingly, it cannot normally be included in the automatic review.
In the present case, however, the applicant had instructed his solicitors to apply for release on bail, and a request to that effect was actually put before the magistrate. Furthermore, the police officer who appeared in the magistrates' court had no objection to bail, provided that proper conditions
were set. The applicant's release on bail was nevertheless refused because the resident magistrate was not empowered to grant it, on account of the special rules applicable for scheduled offences in Northern Ireland.
The fact that release on bail was not considered by the judicial officer before whom the applicant was brought implies that the applicant was deprived of his right to a full review, which is secured in the first limb of Article 5 § 3. It remains to be discussed, however, whether the fact that the applicant was released one day later, by a decision of the High Court, remedied this deficiency.
The minority have taken the view that the applicant cannot complain that there was a failure to provide him with the requisite judicial control of his arrest and detention because he was released within the maximum period of four days laid down in Brogan and Others v. the United Kingdom (judgment of 29 November 1988, Series A no. 145-B, pp. 33-34, § 62). In my opinion, this is not relevant, for the following reasons.
The first limb of Article 5 § 3 contains two rights for persons who are detained on reasonable suspicion of having committed a criminal offence. The first requires that the person be “brought promptly before a judge or other officer”, while the second requires that the judicial officer be “authorised by law to exercise judicial power”. These rights are linked to each other, notably because they refer to the same judicial officer. Still, they are separate rights in that they refer respectively to the requirements of promptness and automaticity and the thoroughness of the initial judicial control. Deficiencies as to one of the rights can therefore not be remedied by securing the other right.
Turning to the present case, it is undisputed that the applicant was brought before the magistrates' court within the time-limit permitted by the first limb of Article 5 § 3. He was, however, denied release on bail by the sitting resident magistrate, notably not because of the merits of the case, but because the resident magistrate did not have that power. In order to be released on bail the applicant had to appeal to the High Court. He was, in other words, obliged to invoke the right to continuous judicial supervision, which is secured in Article 5 § 4 and applies to all deprivations of liberty, in order to obtain a decision as to his release on bail.
Neither the fact that the High Court granted the applicant release on bail, following his appeal, nor the fact that the decision was given one day after the applicant had appeared in the magistrates' court can therefore in my opinion remedy the deficiency of the initial judicial review. I accordingly consider that there has been a violation of Article 5 § 3 of the Convention.