Case: Brannigan and McBride v. the United Kingdom
Judgement date: 26 May 1993 (judgment)
Topic: Derogation in time of emergency
Aspect: (3) Derogations cannot be incompatible with other obligations in international law

Summary of the facts:
The applicants contended for the first time before the Court that it was an essential requirement for a valid derogation under Article 4 of the 1966 United Nations International Covenant on Civil and Political Rights, to which the United Kingdom was a Party, that a public emergency must have been “officially proclaimed”. Since such proclamation had never taken place the derogation was inconsistent with the United Kingdom’s other obligations under international law. In their view this requirement involved a formal proclamation and not a mere statement in Parliament.

Summary of the Court's findings:
The Court observed that the Home Secretary’s statement of 22 December 1988 to the House of Commons, which was formal in character and made public the Government’s intentions as regards derogation, was well in keeping with the notion of an official proclamation. In that statement the Secretary of State had explained in detail the reasons underlying the Government’s decision to derogate and announced that steps were being taken to give notice of derogation under both Article 15 of the European Convention and Article 4 of the International Covenant on Civil and Political Rights. The Court thus found the applicants’ view ill-founded on this point and that there had been no violation of Article 5 § 3 (right to liberty and security) of the Convention.

The facts:
I. THE PARTICULAR CIRCUMSTANCES OF THE CASE
A. Peter Brannigan
10. The first applicant, Mr Peter Brannigan, was born in 1964. He is a labourer and lives in Downpatrick, Northern Ireland.
He was arrested at his home by police officers on 9 January 1989 at 6.30 a.m. pursuant to section 12 (1) (b) of the Prevention of Terrorism (Temporary Provisions) Act 1984 ("the 1984 Act"). He was then removed to the Interrogation Centre at Gough Barracks, Armagh, where he was served with a copy of the "Notice to Persons in Police Custody" which informs the prisoner of his legal rights (see paragraph 24 below). A two-day extension of his detention was granted by the Secretary of State on 10 January 1989 at 7.30 p.m., and a further three-day extension was granted on 12 January 1989 at 9.32 p.m. He was released at 9 p.m. on 15 January 1989. He was therefore detained for a total period of six days, fourteen hours and thirty minutes.
During his detention he was interrogated on forty-three occasions and denied access to books, newspapers and writing materials as well radio and television. He was not allowed to associate with other prisoners.
Although access to a solicitor was at first delayed for forty- eight hours because it was believed by the police that such a visit would interfere with the investigation, the first applicant was subsequently visited by his solicitor on 11 January 1989. He was seen by a medical practitioner on seventeen occasions during police custody.
B. Patrick McBride
11. The second applicant, Mr Patrick McBride, was born in 1951.
He was arrested at his home by police officers on 5 January 1989 at 5.05 a.m. pursuant to section 12 (1) (b) of the 1984 Act. He was then removed to Castlereagh Interrogation Centre where he was served with a copy of the "Notice to Persons in Police Custody". A three-day extension of his period of detention was granted by the Secretary of State at 5.10 p.m. on 6 January 1989. He was released at 11.30 a.m. on Monday 9 January 1989. He was therefore detained for a total period of four days, six hours and twenty-five minutes.
During his detention he was interrogated on twenty-two occasions and was subject to the same regime as Mr Brannigan (see paragraph 10 above).
He received two visits from his solicitor on 5 and 7 January 1989 and was seen by a medical practitioner on eight occasions during police custody.
Mr McBride was shot dead on 4 February 1992 by a policeman who had run amok and attacked Sinn Fein Headquarters in Belfast.
I. REMEDIES
26. The principal remedies available to persons detained under the 1984 Act are an application for a writ of habeas corpus and a civil action claiming damages for false imprisonment.
1. Habeas Corpus
27. Under the 1984 Act, a person may be arrested and detained in right of arrest for a total period of seven days (section 12(4) and (5) - see paragraph 16 above). Paragraph 5(2) of Schedule 3 to the 1984 Act provides that a person detained pursuant to an arrest under section 12 of the Act "shall be deemed to be in legal custody when he is so detained". However, the remedy of habeas corpus is not precluded by paragraph 5(2) cited above. If the initial arrest is unlawful, so also is the detention grounded upon that arrest (per Higgins J. in the Van Hout case, loc. cit. at 18).
28. Habeas Corpus is a procedure whereby a detained person may make an urgent application for release from custody on the basis that his detention is unlawful.
The court hearing the application does not sit as a court of appeal to consider the merits of the detention: it is confined to a review of the lawfulness of the detention. The scope of this review is not uniform and depends on the context of the particular case and, where appropriate, the terms of the relevant statute under which the power of detention is exercised. The review will encompass compliance with the technical requirements of such a statute and may extend, inter alia, to an inquiry into the reasonableness of the suspicion grounding the arrest (Ex parte Lynch, loc. cit., and Van Hout, loc. cit.). A detention that is technically legal may also be reviewed on the basis of an alleged misuse of power in that the authorities may have acted in bad faith, capriciously or for an unlawful purpose (R. v. Governor of Brixton Prison, ex parte Sarno [1916] 2 King ’ s Bench Reports 742, and R. v. Brixton Prison (Governor), ex parte Soblen [1962] 3 All England Law Reports 641).
The burden of proof is on the respondent authorities which must justify the legality of the decision to detain, provided that the person applying for a writ of habeas corpus has first established a prima facie case ( Khawaja v. Secretary of State [1983] 1 All England Law Reports 765).
2. False imprisonment
29. A person claiming that he has been unlawfully arrested and detained may in addition bring an action seeking damages for false imprisonment. Where the lawfulness of the arrest depends upon reasonable cause for suspicion, it is for the defendant authority to prove the existence of such reasonable cause ( Dallison v. Caffrey [1965] 1 Queen ’ s Bench Reports 348 and Van Hout, loc. cit. at 15). In false imprisonment proceedings, the reasonableness of an arrest may be examined on the basis of the well-established principles of judicial review of the exercise of executive discretion (see Holgate -Mohammed v. Duke, loc. cit.).
III. THE UNITED KINGDOM DEROGATION
30. Issues akin to those arising in the present case were examined by the Court in its Brogan and Others judgment of 29 November 1988 (Series A no. 145-B) where it held that there had been a violation of Article 5 para. 3 (art. 5-3) of the Convention in respect of each of the applicants, all of whom had been detained under section 12 of the 1984 Act. The Court held that even the shortest of the four periods of detention concerned, namely four days and six hours, fell outside the constraints as to time permitted by the first part of Article 5 para. 3 (art. 5-3). In addition, the Court held that there had been a violation of Article 5 para. 5 (art. 5-5) in the case of each applicant (Series A no. 145-B, pp. 30-35, paras. 55-62 and 66-67).
Following that judgment, the Secretary of State for the Home Department made a statement in the House of Commons on 22 December 1988 in which he explained the difficulties of judicial control over decisions to arrest and detain suspected terrorists. He stated inter alia as follows:
"We must pay proper regard to the tremendous pressures that are already faced by the judiciary, especially in Northern Ireland, where most cases have to be considered. We are also concerned that information about terrorist intentions, which often forms part of the case for an extension of detention, does not find its way back to the terrorists as a consequence of judicial procedures, which at least in the United Kingdom legal tradition generally require someone accused and his legal advisers to know the information alleged against him.
...
In the meantime, the position cannot be left as it stands. I have already made clear to the House that we shall ensure that the police continue to have the powers they need to counter terrorism, and they continue to need to be able to detain suspects for up to seven days in some cases. To ensure that there can be no doubt about the ability of the police to deal effectively with such cases, the Government are today taking steps to give notice of derogation under Article 15 (art. 15) of the European Convention of Human Rights, and Article 4 of the International Covenant on Civil and Political Rights. There is a public emergency within the meaning of these provisions in respect of terrorism connected with the affairs of Northern Ireland in the United Kingdom ..."
31. On 23 December 1988 the United Kingdom informed the Secretary General of the Council of Europe that the Government had availed itself of the right of derogation conferred by Article 15 para. 1 (art. 15-1) to the extent that the exercise of powers under section 12 of the 1984 Act might be inconsistent with the obligations imposed by Article 5 para. 3 (art. 5-3) of the Convention. Part of that declaration reads as follows:
"... Following [the Brogan and Others judgment], the Secretary of State for the Home Department informed Parliament on 6 December 1988 that, against the background of the terrorist campaign, and the over-riding need to bring terrorists to justice, the Government did not believe that the maximum period of detention should be reduced. He informed Parliament that the Government were examining the matter with a view to responding to the judgment. On 22 December 1988, the Secretary of State further informed Parliament that it remained the Government ’ s wish, if it could be achieved, to find a judicial process under which extended detention might be reviewed and where appropriate authorised by a judge or other judicial officer. But a further period of reflection and consultation was necessary before the Government could bring forward a firm and final view. Since the judgment of 29 November 1988 as well as previously, the Government have found it necessary to continue to exercise, in relation to terrorism connected with the affairs of Northern Ireland, the powers described above enabling further detention without charge, for periods of up to 5 days, on the authority of the Secretary of State, to the extent strictly required by the exigencies of the situation to enable necessary enquiries and investigations properly to be completed in order to decide whether criminal proceedings should be instituted. To the extent that the exercise of these powers may be inconsistent with the obligations imposed by the Convention the Government have availed themselves of the right of derogation conferred by Article 15(1) of the Convention and will continue to do so until further notice ..."
32. The Government have reviewed whether the powers of extended detention could be conferred on the normal courts but have concluded that it would not be appropriate to involve courts in such decisions for the reasons given in a Written Answer in Parliament by the Secretary of State, Mr David Waddington, on 14 November 1989:
"Decisions to authorise the detention of terrorist suspects for periods beyond 48 hours may be, and often are, taken on the basis of information, the nature and source of which could not be revealed to a suspect or his legal adviser without serious risk to individuals assisting the police or the prospect of further valuable intelligence being lost. Any new procedure which avoided those dangers by allowing a court to make a decision on information not presented to the detainee or his legal adviser would represent a radical departure from the principles which govern judicial proceedings in this country and could seriously affect public trust and confidence in the independence of the judiciary. The Government would be most reluctant to introduce any new procedure which could have this effect". (Official Report, 14 November 1989, col. 210)
In a further notice dated 12 December 1989 the United Kingdom informed the Secretary General that a satisfactory procedure for the review of detention of terrorist suspects involving the judiciary had not been identified and that the derogation would therefore remain in place for as long as circumstances require.

Relevant law and the Court's assessment:
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Introduction
12. The emergency situation in Northern Ireland in the early 1970s and the attendant level of terrorist activity form the background to the introduction of the Prevention of Terrorism (Temporary Provisions) Act 1974 ("the 1974 Act"). Between 1972 and 1992, over three thousand deaths were attributable to terrorism in Northern Ireland. In the mid 1980s, the number of deaths was significantly lower than in the early 1970s but organised terrorism has continued to grow.
Since the commencement of the terrorist campaign there have been 35,104 people injured in Northern Ireland as a result of terrorist acts. Many of these injuries involved loss of limbs and permanent physical disability. In the same period there have been a total of 41,859 terrorist shooting or bombing incidents. Other parts of the United Kingdom have also been subjected to a considerable scale of terrorist violence.
13. The 1974 Act came into force on 29 November 1974. The Act proscribed the Irish Republican Army ("IRA") and made it an offence to display support in public of that organisation in Great Britain. The IRA was already a proscribed organisation in Northern Ireland. The Act also conferred special powers of arrest and detention on the police so that they could deal more effectively with the threat of terrorism (see paragraphs 16-17 below).
This Act was subject to renewal every six months by Parliament so that, inter alia, the need for the continued use of the special powers could be monitored. The Act was thus renewed until March 1976, when it was re-enacted with certain amendments.
Under section 17 of the 1976 Act, the special powers were subject to parliamentary renewal every twelve months. The 1976 Act was in turn renewed annually until 1984, when it was re-enacted with certain amendments. The 1984 Act, which came into force in March 1984, proscribed the Irish National Liberation Army as well as the IRA. It was renewed every year until replaced by the 1989 Act which came into force on 27 March 1989. Section 14 of the 1989 Act contains provisions similar to those contained in section 12 of the 1984 Act.
14. The 1976 Act was reviewed by Lord Shackleton in a report published in July 1978 and subsequently by Lord Jellicoe in a report published in January 1983. Annual reports on the 1984 Act have been presented to Parliament by Sir Cyril Philips (for 1984 and 1985) and Viscount Colville (from 1986-1991). A wider-scale review of the operation of the 1984 Act was also carried out by Viscount Colville in 1987.
15. These reviews were commissioned by the Government and presented to Parliament to assist consideration of the continued need for the legislation. The authors of these reports concluded in particular that in view of the problems inherent in the prevention and investigation of terrorism, the continued use of the special powers of arrest and detention was indispensable. The suggestion that decisions extending detention should be taken by the courts was rejected, notably because the information grounding those decisions was highly sensitive and could not be disclosed to the persons in detention or their legal advisers. For various reasons, the decisions were considered to fall properly within the sphere of the executive.
In his 1987 report reviewing the provisions of section 12, Viscount Colville considered that good reasons existed for extending detention in certain cases beyond forty-eight hours and up to seven days. He noted in this regard that the police in Northern Ireland were frequently confronted by a situation where they had good intelligence to connect persons with a terrorist incident but the persons concerned, if detained, made no statements, and witnesses were afraid to come forward, certainly in court: in these circumstances, it was concluded, the reliance on forensic evidence by the prosecution was increasing, and detective work had assumed a higher degree of importance. He also set out the reasons which individually or, as often, in combination constituted good grounds for extending the various periods within which otherwise persons suspected of involvement in terrorism would have to be charged or taken to court. These included checking of fingerprints; forensic tests; checking the detainee ’ s replies against intelligence; new lines of inquiry; information obtained from one or more than one other detainee in the same case; finding and consulting other witnesses (Command Paper 264, paragraphs 5.1.5-5.1.7, December 1987).
B. Power to arrest without warrant under the 1984 and other Acts
16. The relevant provisions of section 12 of the 1984 Act, substantially the same as those of the 1974 and 1976 Acts, are as follows:
"12. (1) [A] constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be
...
(b) a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism to which this Part of this Act applies;
...
(3) The acts of terrorism to which this Part of this Act applies are
(a) acts of terrorism connected with the affairs of Northern Ireland;
...
(4) A person arrested under this section shall not be detained in right of the arrest for more than forty-eight hours after his arrest; but the Secretary of State may, in any particular case, extend the period of forty-eight hours by a period or periods specified by him.
(5) Any such further period or periods shall not exceed five days in all.
(6) The following provisions (requirement to bring accused person before the court after his arrest) shall not apply to a person detained in right of the arrest
...
(d) Article 131 of the Magistrates ’ Courts ( Northern Ireland ) Order 1981;
...
(8) The provisions of this section are without prejudice to any power of arrest exercisable apart from this section."
17. According to the definition given in section 14 (1) of the 1984 Act, "terrorism means the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear". An identical definition of terrorism in the Northern Ireland (Emergency Provisions) Act 1978 was held to be "in wide terms" by the House of Lords, which rejected an interpretation of the word "terrorist" that would have been "in narrower terms than popular usage of the word ‘ terrorist ’ might connote to a police officer or a layman" (McKee v. Chief Constable for Northern Ireland [1985] 1 All England Law Reports 1 at 3-4, per Lord Roskill ).
C. Detention under the ordinary criminal law
18. Article 131 of the Magistrates ’ Courts (Northern Ireland) Order 1981, declared inapplicable in cases of suspected terrorism by section 12(6)(d) of the 1984 Act (see paragraph 16 above), provided that where a person arrested without warrant was not released from custody within twenty-four hours, he had to be brought before a Magistrates ’ Court as soon as practicable thereafter but not later than forty-eight hours after his arrest.
19. Article 131 was repealed by the Police and Criminal Evidence ( Northern Ireland ) Order 1989 (Statutory Instrument 1989/1341 (Northern Ireland) 12). Under the provisions of the 1989 Order (which corresponds directly with the Police and Criminal Evidence Act 1984 in force in England and Wales) a person arrested on suspicion of his involvement in an offence may initially not be kept in police detention for more than twenty-four hours without being charged (Article 42(1)). On the authority of a police officer of the rank of Superintendent or above, the detention may be extended for a period not exceeding thirty-six hours from the time of arrest, or arrival at a police station after arrest, when the officer concerned:
"... has reasonable grounds for believing that -
(a) the detention of that person without charge is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him;
(b) an offence for which he is under arrest is a serious arrestable offence;
(c) the investigation is being conducted diligently and expeditiously." (Article 43(1))
By Article 44(1) of the Order a Magistrates ’ Court is empowered, on a complaint in writing by a constable, to extend the period of police detention if satisfied that there are reasonable grounds for believing that the further detention of that person is justified. Detention is only justified for these purposes if the conditions set out in (a)-(c) above are satisfied (Article 44(4)). The person to whom the complaint relates must be furnished with a copy of the complaint and brought before the court for the hearing (Article 44(2)) and is entitled to be legally represented at the hearing (Article 44(3)). The period of further detention authorised by the warrant may not exceed thirty-six hours (Article 44(12)). By Article 45 a Magistrates ’ Court may, on a complaint in writing by a constable, extend the period of detention for such period as the court thinks fit, having regard to the evidence before it (Article 45(1), (2)). This additional extension may not exceed thirty-six hours and may not end later than ninety-six hours after the time of arrest or arrival at the police station after arrest (Article 45(3)).
D. Exercise of the power to make an arrest under section 12(1)(b) of the 1984 Act
20. In order to make a lawful arrest under section 12(1)(b) of the 1984 Act, the arresting officer must have a reasonable suspicion that the person being arrested is or has been concerned in the commission, preparation or instigation of acts of terrorism. In addition, an arrest without warrant is subject to the applicable common law rules laid down by the House of Lords in the case of Christie v. Leachinsky [1947] Appeal Cases 573 at 587 and 600. The person being arrested must in ordinary circumstances be informed of the true ground of his arrest at the time he is taken into custody or, if special circumstances exist which excuse this, as soon thereafter as it is reasonably practicable to inform him. This does not require technical or precise language to be used provided the person being arrested knows in substance why.
In the case of Ex parte Lynch [1980] Northern Ireland Reports 126 at 131, in which the arrested person sought a writ of habeas corpus, the High Court of Northern Ireland discussed section 12(1)(b). The arresting officer had told the applicant that he was arresting him under section 12 of the 1976 Act as he suspected him of being involved in terrorist activities. Accordingly, the High Court found that the lawfulness of the arrest could not be impugned in this respect.
21. The arresting officer ’ s suspicion must be reasonable in the circumstances and to decide this the court must be told something about the sources and grounds of the suspicion (per Higgins J. in Van Hout v. Chief Constable of the RUC and the Northern Ireland Office, decision of Northern Ireland High Court, 28 June 1984 ).
E. Purpose of arrest and detention under section 12 of the 1984 Act
22. Under ordinary law, there is no power to arrest and detain a person merely to make enquiries about him. The questioning of a suspect on the ground of a reasonable suspicion that he has committed an arrestable offence is a legitimate cause for arrest and detention without warrant where the purpose of such questioning is to dispel or confirm such a reasonable suspicion, provided he is brought before a court as soon as practicable (R. v. Houghton [1979] 68 Criminal Appeal Reports 197 at 205, and Holgate -Mohammed v. Duke [1984] 1 All England Law Reports 1054 at 1059).
On the other hand, Lord Lowry LCJ held in the case of Ex parte Lynch (loc. cit. at 131) that under the 1984 Act no specific crime need be suspected to ground a proper arrest under section 12(1)(b). He added (ibid.):
"... [I]t is further to be noted that an arrest under section 12(1) leads ... to a permitted period of detention without preferring a charge. No charge may follow at all; thus an arrest is not necessarily ... the first step in a criminal proceeding against a suspected person on a charge which was intended to be judicially investigated."
F. Extension of period of detention
23. In Northern Ireland, applications for extended detention beyond the initial forty-eight-hour period are processed at senior police level in Belfast and then forwarded to the Secretary of State for Northern Ireland for approval by him or, if he is not available, a junior minister.
There are no criteria in the 1984 Act (or its predecessors) governing decisions to extend the initial period of detention, though strict criteria that have been developed in practice are listed in the reports and reviews referred to above (see paragraphs 14 and 15 above).
According to statistics submitted by the Government a total number of 1,549 persons were arrested under the Prevention of Terrorism (Temporary Provisions) Act in 1990 of whom approximately 333 were eventually charged. Of these, 1,140 were detained for two days or less, 17% of whom were charged. However, of the 365 persons detained for more than two days and less than five days 39% were charged. In addition, of the 45 persons detained for more than five days some 67% were charged, many with serious offences including murder, attempted murder and causing explosions. In each of these cases the evidence which formed the basis of the charges only became available or was revealed in the latest stages of the detention of the person concerned.
G. Rights during detention
24. A person detained under section 12 of the 1984 Act (now section 14 of the 1989 Act) has the rights, if he so requests, to have a friend, relative or other person informed of the fact and place of his detention and to consult a solicitor privately; he must be informed of these rights as soon as practicable. Any such requests must be complied with as soon as practicable. This may, however, be delayed for up to forty-eight hours in certain specified circumstances (sections 44 and 45 of the Northern Ireland (Emergency Provisions) Act 1991 - formerly sections 14 and 15 of the 1987 Act).
A decision to deny access to a solicitor within the first forty-eight hours is subject to judicial review. Cases decided by the High Court in Northern Ireland establish that under section 45 of the Northern Ireland (Emergency Provisions) Act 1991 the power to delay access can only be used if the officer concerned has reasonable grounds for believing that the exercise of the right would have one or more of the specific consequences set out in subsection 8 of section 45. There is a burden on the officer concerned to show to the satisfaction of the court that he had reasonable grounds for his belief. In the absence of evidence to establish such reasonable grounds the court will order the immediate grant of access to a solicitor (decisions of the Northern Ireland High Court in applications for judicial review by Patrick Duffy ( 20 September 1991 ), Dermot and Deirdre McKenna ( 10 February 1992 ), Francis Maher and Others ( 25 March 1992 )).
Since 1979, the practice has been that a detainee is not interviewed until he has been examined by a forensic medical officer. Thereafter, arrangements are made for the detainee to have access to a medical officer including his own doctor. There is provision for consultation with a forensic medical officer at a pre-arranged time each day.
The above rights are briefly set out in a "Notice to Persons in Police Custody" which is served on persons arrested under section 12 when they are detained.
H. Judicial involvement in terrorist investigations
25. Under paragraph 2 of Schedule 7 to the Prevention of Terrorism (Temporary Provisions) Act 1989 a justice of the peace may grant a warrant authorising a constable involved in a terrorist investigation to search premises and seize and retain anything found there if he has reasonable grounds for believing inter alia that it is likely to be of substantial value to the investigation. Paragraphs 5(1) and (4) of Schedule 7 confer a similar power on a circuit judge and on a county court judge in Northern Ireland.
However, paragraph 8(2) provides that the Secretary of State may give to any constable in Northern Ireland the authority which may be given by a search warrant under paragraphs 2 and 5 if inter alia it appears to him that the disclosure of information that would be necessary for an application under those provisions "would be likely to prejudice the capability of members of the Royal Ulster Constabulary in relation to the investigation of offences ... or otherwise prejudice the safety of, or of persons in, Northern Ireland".
PROCEEDINGS BEFORE THE COMMISSION
33. The applicants applied to the Commission on 19 January 1989 (applications nos. 14553/89 and 14554/89). They complained that they were not brought promptly before a judge, in breach of Article 5 para. 3 (art. 5-3). They also alleged that they did not have an enforceable right to compensation in breach of Article 5 para. 5 (art. 5-5) and that there was no effective remedy in respect of their complaints contrary to Article 13 (art. 13).
They subsequently withdrew other complaints that they had made under Articles 3, 5 paras. 1 and 4, 8, 9 and 10 (art. 3, art. 5-1, art. 5-4, art. 8, art. 9, art. 10) of the Convention.
34. On 5 October 1990 the Commission ordered the joinder of the applications and on 28 February 1991 declared the case admissible. In its report of 3 December 1991 (Article 31) (art. 31) the Commission expressed the opinion:
(a) by eight votes to five, that there had been no violation of Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) of the Convention in view of the United Kingdom ’ s derogation of 23 December 1988 under Article 15 (art. 15) of the Convention;
(b) unanimously, that no separate issue arose under Article 13 (art. 13).
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 MADE TO THE COURT BY THE GOVERNMENT
35. The Government requested the Court to find that there has been no violation of Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) in view of the United Kingdom ’ s derogation of 23 December 1988 under Article 15 (art. 15) of the Convention and that there has been no violation of Article 13 (art. 13) or alternatively that no separate issue arises under this provision.
AS TO THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 5 (art. 5)
36. The applicants, Mr Brannigan and Mr McBride, were detained under section 12 (1) (b) of the 1984 Act in early January 1989 very shortly after the Government ’ s derogation of 23 December 1988 under Article 15 (art. 15) of the Convention, which itself was made soon after the Court ’ s judgment of 29 November 1988 in the case of Brogan and Others (judgment of 29 November 1988, Series A no. 145-B). Their detention lasted for periods of six days, fourteen hours and thirty minutes, and four days, six hours and twenty-five minutes respectively (see paragraphs 10-11 above). They complained of violations of Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) of the Convention. The relevant parts of Article 5 (art. 5) are 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 ...;
...
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article (art. 5-1-c) shall be brought promptly before a judge or other officer authorised by law to exercise judicial power ...
...
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."
37. The Government, noting that both of the applicants were detained for longer periods than the shortest period found by the Court to be in breach of Article 5 para. 3 (art. 5-3) in the case of Brogan and Others, conceded that the requirement of promptness had not been respected in the present cases (see paragraph 30 above). They further accepted that, in the absence of an enforceable right to compensation in respect of the breach of Article 5 para. 3 (art. 5-3), Article 5 para. 5 (art. 5-5) had not been complied with.
Having regard to its judgment in the case of Brogan and Others, the Court finds that Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) have not been respected (loc. cit., pp. 30-35, paras. 55-62 and 66-67).
38. However, the Government further submitted that the failure to observe these requirements of Article 5 (art. 5) had been met by their derogation of 23 December 1988 under Article 15 (art. 15) of the Convention.
The Court must therefore examine the validity of the Government ’ s derogation in the light of this provision. It recalls at the outset that the question whether any derogation from the United Kingdom ’ s obligations under the Convention might be permissible under Article 15 (art. 15) by reason of the terrorist campaign in Northern Ireland was specifically left open by the Court in the Brogan and Others case (loc. cit., pp. 27-28, para. 48).
Validity of the United Kingdom ’ s derogation under Article 15 (art. 15)
39. The applicants maintained that the derogation under Article 15 (art. 15) was invalid. This was disputed by both the Government and the Commission.
40. Article 15 (art. 15) provides:
"1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
2. No derogation from Article 2 (art. 2), except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 (art. 3, art. 4-1, art. 7) shall be made under this provision.
3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed."
1. The Court ’ s approach to the matter
41. The applicants argued that it would be inconsistent with Article 15 para. 2 (art. 15-2) if, in derogating from safeguards recognised as essential for the protection of non- derogable rights such as Articles 2 and 3 (art. 2, art. 3), the national authorities were to be afforded a wide margin of appreciation. This was especially so where the emergency was of a quasi-permanent nature such as that existing in Northern Ireland. To do so would also be inconsistent with the Brogan and Others judgment where the Court had regarded judicial control as one of the fundamental principles of a democratic society and had already - they claimed - extended to the Government a margin of appreciation by taking into account in paragraph 58 (p. 32) the context of terrorism in Northern Ireland (loc. cit.).
42. In their written submissions, Amnesty International maintained that strict scrutiny was required by the Court when examining derogation from fundamental procedural guarantees which were essential for the protection of detainees at all times, but particularly in times of emergency. Liberty, Interights and the Committee on the Administration of Justice (" Liberty and Others") submitted for their part that, if States are to be allowed a margin of appreciation at all, it should be narrower the more permanent the emergency becomes.
43. The Court recalls that it falls to each Contracting State, with its responsibility for "the life of [its] nation", to determine whether that life is threatened by a "public emergency" and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 78-79, para. 207).
Nevertheless, Contracting Parties do not enjoy an unlimited power of appreciation. It is for the Court to rule on whether inter alia the States have gone beyond the "extent strictly required by the exigencies" of the crisis. The domestic margin of appreciation is thus accompanied by a European supervision (ibid.). At the same time, in exercising its supervision the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation, the circumstances leading to, and the duration of, the emergency situation.
2. Existence of a public emergency threatening the life of the nation
44. Although the applicants did not dispute that there existed a public emergency "threatening the life of the nation", they submitted that the burden rested on the Government to satisfy the Court that such an emergency really existed.
45. It was, however, suggested by Liberty and Others in their written submissions that at the relevant time there was no longer any evidence of an exceptional situation of crisis. They maintained that reconsideration of the position could only properly have led to a further derogation if there was a demonstrable deterioration in the situation since August 1984 when the Government withdrew their previous derogation. For the Standing Advisory Commission on Human Rights, on the other hand, there was a public emergency in Northern Ireland at the relevant time of a sufficient magnitude to entitle the Government to derogate.
46. Both the Government and the Commission, referring to the existence of public disturbance in Northern Ireland, maintained that there was such an emergency.
47. Recalling its case-law in Lawless v. Ireland (judgment of 1 July 1961, Series A no. 3, p. 56, para. 28) and Ireland v. the United Kingdom (loc. cit., Series A no. 25, p. 78, para. 205) and making its own assessment, in the light of all the material before it as to the extent and impact of terrorist violence in Northern Ireland and elsewhere in the United Kingdom (see paragraph 12 above), the Court considers there can be no doubt that such a public emergency existed at the relevant time.
It does not judge it necessary to compare the situation which obtained in 1984 with that which prevailed in December 1988 since a decision to withdraw a derogation is, in principle, a matter within the discretion of the State and since it is clear that the Government believed that the legislation in question was in fact compatible with the Convention (see paragraphs 49-51 below).
3. Were the measures strictly required by the exigencies of the situation?
(a) General considerations
48. The Court recalls that judicial control of interferences by the executive with the individual ’ s right to liberty provided for by Article 5 (art. 5) is implied by one of the fundamental principles of a democratic society, namely the rule of law (see the above-mentioned Brogan and Others judgment, Series A no. 145-B, p. 32, para. 58). It further observes that the notice of derogation invoked in the present case was lodged by the respondent Government soon after the judgment in the above-mentioned Brogan and Others case where the Court had found the Government to be in breach of their obligations under Article 5 para. 3 (art. 5-3) by not bringing the applicants "promptly" before a court.
The Court must scrutinise the derogation against this background and taking into account that the power of arrest and detention in question has been in force since 1974. However, it must be observed that the central issue in the present case is not the existence of the power to detain suspected terrorists for up to seven days - indeed a complaint under Article 5 para. 1 (art. 5-1) was withdrawn by the applicants (see paragraph 33 above) - but rather the exercise of this power without judicial intervention.
(b) Was the derogation a genuine response to an emergency situation?
49. For the applicants, the purported derogation was not a necessary response to any new or altered state of affairs but was the Government ’ s reaction to the decision in Brogan and Others and was lodged merely to circumvent the consequences of this judgment.
50. The Government and the Commission maintained that, while it was true that this judgment triggered off the derogation, the exigencies of the situation have at all times since 1974 required the powers of extended detention conferred by the Prevention of Terrorism legislation. It was the view of successive Governments that these powers were consistent with Article 5 para. 3 (art. 5-3) and that no derogation was necessary. However, both the measures and the derogation were direct responses to the emergency with which the United Kingdom was and continues to be confronted.
51. The Court first observes that the power of arrest and extended detention has been considered necessary by the Government since 1974 in dealing with the threat of terrorism. Following the Brogan and Others judgment the Government were then faced with the option of either introducing judicial control of the decision to detain under section 12 of the 1984 Act or lodging a derogation from their Convention obligations in this respect. The adoption of the view by the Government that judicial control compatible with Article 5 para. 3 (art. 5-3) was not feasible because of the special difficulties associated with the investigation and prosecution of terrorist crime rendered derogation inevitable. Accordingly, the power of extended detention without such judicial control and the derogation of 23 December 1988 being clearly linked to the persistence of the emergency situation, there is no indication that the derogation was other than a genuine response.
(c) Was the derogation premature?
52. The applicants maintained that derogation was an interim measure which Article 15 (art. 15) did not provide for since it appeared from the notice of derogation communicated to the Secretary General of the Council of Europe on 23 December 1988 that the Government had not reached a "firm or final view" on the need to derogate from Article 5 para. 3 (art. 5-3) and required a further period of reflection and consultation. Following this period the Secretary of State for the Home Department confirmed the derogation in a statement to Parliament on 14 November 1989 (see paragraph 32 above). Prior to this concluded view Article 15 (art. 15) did not permit derogation. Furthermore, even at this date the Government had not properly examined whether the obligation in Article 5 para. 3 (art. 5-3) could be satisfied by an "officer authorised by law to exercise judicial power".
53. The Government contended that the validity of the derogation was not affected by their examination of the possibility of judicial control of extended detention since, as the Commission had pointed out, it was consistent with the requirements of Article 15 para. 3 (art. 15-3) to keep derogation measures under constant review.
54. The Court does not accept the applicants ’ argument that the derogation was premature.
While it is true that Article 15 (art. 15) does not envisage an interim suspension of Convention guarantees pending consideration of the necessity to derogate, it is clear from the notice of derogation that "against the background of the terrorist campaign, and the over-riding need to bring terrorists to justice, the Government did not believe that the maximum period of detention should be reduced". However it remained the Government ’ s wish "to find a judicial process under which extended detention might be reviewed and where appropriate authorised by a judge or other judicial officer" (see paragraph 31 above).
The validity of the derogation cannot be called into question for the sole reason that the Government had decided to examine whether in the future a way could be found of ensuring greater conformity with Convention obligations. Indeed, such a process of continued reflection is not only in keeping with Article 15 para. 3 (art. 15-3) which requires permanent review of the need for emergency measures but is also implicit in the very notion of proportionality.
(d) Was the absence of judicial control of extended detention justified?
55. The applicants further considered that there was no basis for the Government ’ s assertion that control of extended detention by a judge or other officer authorised by law to exercise judicial power was not possible or that a period of seven days ’ detention was necessary. They did not accept that the material required to satisfy a court of the justification for extended detention could be more sensitive than that needed in proceedings for habeas corpus. They and the Standing Advisory Commission on Human Rights also pointed out that the courts in Northern Ireland were frequently called on to deal with submissions based on confidential information - for example, in bail applications - and that there were sufficient procedural and evidential safeguards to protect confidentiality. Procedures also existed where judges were required to act on the basis of material which would not be disclosed either to the legal adviser or to his client. This was the case, for example, with claims by the executive to public interest immunity or application by the police to extend detention under the Police and Criminal Evidence (Northern Ireland) Order 1989 (see paragraph 19 above).
56. On this point the Government responded that none of the above procedures involved both the non-disclosure of material to the detainee or his legal adviser and an executive act of the court. The only exception appeared in Schedule 7 to the Prevention of Terrorism (Temporary Provisions) Act 1989 where inter alia the court may make an order in relation to the production of, and search for, special material relevant to terrorist investigations. However, paragraph 8 of Schedule 7 provides that, where the disclosure of information to the court would be too sensitive or would prejudice the investigation, the power to make the order is conferred on the Secretary of State and not the court (see paragraph 25 above).
It was also emphasised that the Government had reluctantly concluded that, within the framework of the common-law system, it was not feasible to introduce a system which would be compatible with Article 5 para. 3 (art. 5-3) but would not weaken the effectiveness of the response to the terrorist threat. Decisions to prolong detention were taken on the basis of information the nature and source of which could not be revealed to a suspect or his legal adviser without risk to individuals assisting the police or the prospect of further valuable intelligence being lost. Moreover, involving the judiciary in the process of granting or approving extensions of detention created a real risk of undermining their independence as they would inevitably be seen as part of the investigation and prosecution process.
In addition, the Government did not accept that the comparison with habeas corpus was a valid one since judicial involvement in the grant or approval of extension would require the disclosure of a considerable amount of additional sensitive information which it would not be necessary to produce in habeas corpus proceedings. In particular, a court would have to be provided with details of the nature and extent of police inquiries following the arrest, including details of witnesses interviewed and information obtained from other sources as well as information about the future course of the police investigation.
Finally, Lords Shackleton and Jellicoe and Viscount Colville in their reports had concluded that arrest and extended detention were indispensable powers in combating terrorism. These reports also found that the training of terrorists in remaining silent under police questioning hampered and protracted the investigation of terrorist offences. In consequence, the police were required to undertake extensive checks and inquiries and to rely to a greater degree than usual on painstaking detective work and forensic examination (see paragraph 15 above).
57. The Commission was of the opinion that the Government had not overstepped their margin of appreciation in this regard.
58. The Court notes the opinions expressed in the various reports reviewing the operation of the Prevention of Terrorism legislation that the difficulties of investigating and prosecuting terrorist crime give rise to the need for an extended period of detention which would not be subject to judicial control (see paragraph 15 above). Moreover, these special difficulties were recognised in its above-mentioned Brogan and Others judgment (see Series A no. 145-B, p. 33, para. 61).
It further observes that it remains the view of the respondent Government that it is essential to prevent the disclosure to the detainee and his legal adviser of information on the basis of which decisions on the extension of detention are made and that, in the adversarial system of the common law, the independence of the judiciary would be compromised if judges or other judicial officers were to be involved in the granting or approval of extensions.
The Court also notes that the introduction of a "judge or other officer authorised by law to exercise judicial power" into the process of extension of periods of detention would not of itself necessarily bring about a situation of compliance with Article 5 para. 3 (art. 5-3). That provision - like Article 5 para. 4 (art. 5-4) - must be understood to require the necessity of following a procedure that has a judicial character although that procedure need not necessarily be identical in each of the cases where the intervention of a judge is required (see, among other authorities, the following judgments: as regards Article 5 para. 3 (art. 5-3) Schiesser v. Switzerland of 4 December 1979, Series A no. 34, p. 13, para. 30 and Huber v. Switzerland of 23 October 1990, Series A no. 188, p. 18, paras. 42-43; as regards Article 5 para. 4 (art. 5-4), De Wilde, Ooms and Versyp v. Belgium of 18 June 1971, Series A no. 12, p. 41, para. 78, Sanchez- Reisse v. Switzerland of 21 October 1986, Series A no. 107, p. 19, para. 51, and Lamy v. Belgium of 30 March 1989, Series A no. 151, pp. 15-16, para. 28).
59. It is not the Court ’ s role to substitute its view as to what measures were most appropriate or expedient at the relevant time in dealing with an emergency situation for that of the Government which have direct responsibility for establishing the balance between the taking of effective measures to combat terrorism on the one hand, and respecting individual rights on the other (see the above-mentioned Ireland v. the United Kingdom judgment, Series A no. 25, p. 82, para. 214, and the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 23, para. 49). In the context of Northern Ireland, where the judiciary is small and vulnerable to terrorist attacks, public confidence in the independence of the judiciary is understandably a matter to which the Government attach great importance.
60. In the light of these considerations it cannot be said that the Government have exceeded their margin of appreciation in deciding, in the prevailing circumstances, against judicial control.
(e) Safeguards against abuse
61. The applicants, Amnesty International and Liberty and Others maintained that the safeguards against abuse of the detention power were negligible and that during the period of detention the detainee was completely cut off from the outside world and not permitted access to newspapers, radios or his family. Amnesty International, in particular, stressed that international standards such as the 1988 United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (General Assembly Resolution 43/173 of 9 December 1988) ruled out incommunicado detention by requiring access to lawyers and members of the family. Amnesty submitted that being brought promptly before a judicial authority was especially important since in Northern Ireland habeas corpus has been shown to be ineffective in practice. In their view Article 5 para. 4 (art. 5-4) should be considered non- derogable in times of public emergency.
In addition, it was contended that a decision to extend detention cannot in practical terms be challenged by habeas corpus or judicial review since it is taken completely in secret and, in nearly all cases, is granted. This is evident from the fact that, despite the thousands of extended detention orders, a challenge to such a decision has never been attempted.
62. Although submissions have been made by the applicants and the organisations concerning the absence of effective safeguards, the Court is satisfied that such safeguards do in fact exist and provide an important measure of protection against arbitrary behaviour and incommunicado detention.
63. In the first place, the remedy of habeas corpus is available to test the lawfulness of the original arrest and detention. There is no dispute that this remedy was open to the applicants had they or their legal advisers chosen to avail themselves of it and that it provides an important measure of protection against arbitrary detention (see the above-mentioned Brogan and Others judgment, Series A no. 145-B, pp. 34-35, paras. 63-65). The Court recalls, in this context, that the applicants withdrew their complaint of a breach of Article 5 para. 4 (art. 5-4) of the Convention (see paragraph 33 above).
64. In the second place, detainees have an absolute and legally enforceable right to consult a solicitor after forty-eight hours from the time of arrest. Both of the applicants were, in fact, free to consult a solicitor after this period (see paragraphs 10 and 11 above).
Moreover, within this period the exercise of this right can only be delayed where there exists reasonable grounds for doing so. It is clear from judgments of the High Court in Northern Ireland that the decision to delay access to a solicitor is susceptible to judicial review and that in such proceedings the burden of establishing reasonable grounds for doing so rests on the authorities. In these cases judicial review has been shown to be a speedy and effective manner of ensuring that access to a solicitor is not arbitrarily withheld (see paragraph 24 above).
It is also not disputed that detainees are entitled to inform a relative or friend about their detention and to have access to a doctor.
65. In addition to the above basic safeguards the operation of the legislation in question has been kept under regular independent review and, until 1989, it was subject to regular renewal.
(f) Conclusion
66. Having regard to the nature of the terrorist threat in Northern Ireland, the limited scope of the derogation and the reasons advanced in support of it, as well as the existence of basic safeguards against abuse, the Court takes the view that the Government have not exceeded their margin of appreciation in considering that the derogation was strictly required by the exigencies of the situation.
4. Other obligations under international law
67. The Court recalls that under Article 15 para. 1 (art. 15-1) measures taken by the State derogating from Convention obligations must not be "inconsistent with its other obligations under international law" (see paragraph 40 above).
68. In this respect, before the Court the applicants contended for the first time that it was an essential requirement for a valid derogation under Article 4 of the 1966 United Nations International Covenant on Civil and Political Rights ("the Covenant"), to which the United Kingdom is a Party, that a public emergency must have been "officially proclaimed". Since such proclamation had never taken place the derogation was inconsistent with the United Kingdom ’ s other obligations under international law. In their view this requirement involved a formal proclamation and not a mere statement in Parliament.
69. For the Government, it was open to question whether an official proclamation was necessary for the purposes of Article 4 of the Covenant, since the emergency existed prior to the ratification of the Covenant by the United Kingdom and has continued to the present day. In any event, the existence of the emergency and the fact of derogation were publicly and formally announced by the Secretary of State for the Home Department to the House of Commons on 22 December 1988. Moreover there had been no suggestion by the United Nations Human Rights Committee that the derogation did not satisfy the formal requirements of Article 4.
70. The Delegate of the Commission considered the Government ’ s argument to be tenable.
71. The relevant part of Article 4 of the Covenant states:
"In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed ..."
72. The Court observes that it is not its role to seek to define authoritatively the meaning of the terms "officially proclaimed" in Article 4 of the Covenant. Nevertheless it must examine whether there is any plausible basis for the applicant ’ s argument in this respect.
73. In his statement of 22 December 1988 to the House of Commons the Secretary of State for the Home Department explained in detail the reasons underlying the Government ’ s decision to derogate and announced that steps were being taken to give notice of derogation under both Article 15 (art. 15) of the European Convention and Article 4 of the Covenant. He added that there was "a public emergency within the meaning of these provisions in respect of terrorism connected with the affairs of Northern Ireland in the United Kingdom ..." (see paragraph 30 above).
In the Court ’ s view the above statement, which was formal in character and made public the Government ’ s intentions as regards derogation, was well in keeping with the notion of an official proclamation. It therefore considers that there is no basis for the applicants ’ arguments in this regard.
5. Summary
74. In the light of the above examination, the Court concludes that the derogation lodged by the United Kingdom satisfies the requirements of Article 15 (art. 15) and that therefore the applicants cannot validly complain of a violation of Article 5 para. 3 (art. 5-3). It follows that there was no obligation under Article 5 para. 5 (art. 5-5) to provide the applicants with an enforceable right to compensation.
II. ALLEGED VIOLATION OF ARTICLE 13 (art. 13)
75. In the proceedings before the Commission the applicants complained that they had no effective domestic remedy at their disposal in respect of their Article 5 (art. 5) claims. They requested the Court to uphold this claim but made no submissions in support of it.
Article 13 (art. 13) provides as follows:
"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."
76. The Court recalls that it was open to the applicants to challenge the lawfulness of their detention by way of proceedings for habeas corpus and that the Court in its Brogan and Others judgment of 29 November 1988 found that this remedy satisfied Article 5 para. 4 (art. 5-4) of the Convention (Series A no. 145-B, pp. 34-35, paras. 63-65). Since the requirements of Article 13 (art. 13) are less strict than those of Article 5 para. 4 (art. 5-4), which must be regarded as the lex specialis in respect of complaints under Article 5 (art. 5), there has been no breach of this provision (see the de Jong, Baljet and van den Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77, p. 27, para. 60).