European Court of Human Rights

Information Note on the Court’s case-law 185

May 2015

Magee and Others v. the United Kingdom - 26289/12 and 29891/12

Judgment 12.5.2015 [Section IV] See: [2015] ECHR 478

Article 5

Article 5-3

Brought promptly before judge or other officer

Inability of judge to address issue of conditional release in early stages of detention: inadmissible

Facts - The applicants were arrested on suspicion of involvement in the murder of a police officer. They were brought, 48 hours later, before a County Court judge who reviewed the lawfulness of their detention and granted an extension for another 5 days (for further questioning and forensic examinations). Later, their pre-trial detention was further extended, the applicants being ultimately released without charge after 12 days.

Under Schedule 8 of the 2000 Terrorist Act of Northern Ireland, a detainee could be kept in detention for up to 28 days without charge. The lawfulness of that detention had to be reviewed by the competent judge within 48 hours and every 7 days thereafter. While that judge had the power to release if the arrest/early detention was unlawful, he/she had no power to release on bail.

Law - Article 5 § 3: Article 5 § 3 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.

As regards 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. The judicial control must be prompt, automatic (in other words, not depend on the application of the detained person) and before an independent judge or other officer with the power to order release, after hearing the individual and reviewing the lawfulness of, and justification for, the arrest and detention.

The Court found those conditions were satisfied in the applicants’ case and went on to consider whether there should have been a possibility of conditional release during the period of the applicants’ detention. It noted that although the applicants were twice brought before a County Court judge while in police custody, at no time were they brought before a judge with power to order conditional release. The Court found, however, that the applicants had been detained for a relatively short period (12 days), and were thus at all times in “the early stages” of the deprivation of liberty, when their detention could be justified by the existence of reasonable suspicion that they had committed a criminal offence. Nothing in the Court’s case-law on Article 5 § 3 made it necessary for consideration also to be given to their conditional release during this period.

In any event, a number of safeguards had been in place to protect the applicants against arbitrary detention: the judge could only extend detention for a maximum of 7 days and the overall period could not exceed 28 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; the judge also had to be satisfied that the arrest was lawful and consider the merits of detention; the first applicant had given evidence on oath during the first review and arguments from both applicants were heard during the second reviews; finally, the applicants had been able to challenge their continued detention by way of judicial review.

In the light of these factors, the absence of a possibility of conditional release during the period of the applicants’ deprivation of liberty did not give rise to any issues under Article 5 § 3.

Conclusion: inadmissible (manifestly ill-founded).

 

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