PROCEDURE

The case originated in three applications (nos. 26289/12, 29062/12 and 29891/12) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Irish nationals, Mr Gabriel Magee, Mr Colin Francis Duffy and Ms Teresa Magee (“the applicants”), on 1 May 2012, 14 May 2012 and 10 May 2012 respectively.

The first and second applicants were represented by KRW Law-LLP, a firm of solicitors based in Belfast. The third applicant was represented by Mr P. Moriarty of O’Connor and Moriarty Solicitors, a firm practising in Lurgan. The United Kingdom Government (“the Government”) were represented by their Agent, Ms M. Addis of the Foreign and Commonwealth Office.

On 24 September 2012 notice of the applications of the first and second applicant was given to the Government. Notice of the third applicant’s application was given to the Government on 7 November 2012. The applicants and the Government each filed observations on the admissibility and merits of the cases (Rule 59 § 1 of the Rules of Court).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The first applicant was born in 1972 and lives in Craigavon. The second applicant was born in 1967 and lives in Lurgan. The third applicant was born in 1978 and lives in Craigavon.

A. The first and third applicants

On 14 March 2009 the first and third applicants were arrested under section 41 of the Terrorism Act 2000 (“the 2000 Act”) on suspicion of involvement in the murder of a police officer on 9 March 2009. They were detained at Antrim police station on the same day. The first applicant was interviewed twice on 15 March 2009 and once on 16 March 2009; the third applicant was interviewed three times on 15 March 2009 and once on 16 March 2009.

On 16 March 2009 the Director of Public Prosecutions (“DPP”) made applications to the County Court under paragraph 29 of Schedule 8 to the 2000 Act for warrants of further detention in respect of both applicants in order to carry out questioning and to conduct forensic examinations. The first applicant gave evidence on oath in the course of the hearing. Following the hearing, the County Court Judge granted warrants authorising a five-day extension of detention.

Each of the applicants was interviewed on twelve occasions in the following five days.

On 21 March 2009 the DPP made applications to the County Court under paragraph 36 of Schedule 8 to the 2000 Act for seven-day extensions to the periods specified in the warrants of further detention. The extensions were sought in order to facilitate further questioning of the applicants once the results of additional forensic tests were obtained. At separate hearings on 22 March 2009 a police superintendent gave evidence on oath as to the necessity of the extensions, and arguments were heard on behalf of the first and third applicants.

Following the hearings, Her Honour Judge Philpott QC delivered a written judgment in respect of the first applicant and an ex tempore decision in respect of the third applicant. She granted both applications, authorising the first applicant’s continued detention until 7.20 a.m. on 28 March 2009 and the third applicant’s continued detention until 5.52 a.m. on 28 March 2009. In her reasoning, Judge Philpott noted that the relevant forensic evidence was central to the investigation and that the investigation was being carried out diligently and expeditiously.

In the rulings Judge Philpott considered whether the 2000 Act or Article 5 of the Convention gave the court deciding whether or not to grant an extension of detention an express or implied power to examine the lawfulness of the arrest or to grant bail. She concluded that it did not as the 2000 Act only gave the judge the power to decide whether or not an extension of detention was necessary. Consequently, she had to confine herself to the issue of whether or not it was necessary to extend detention beyond forty-eight hours for investigative purposes, and any issue as to the lawfulness of the arrest would have to be determined by the High Court in either habeas corpus or judicial review proceedings.

B. The second applicant

On 14 March 2009 the second applicant was arrested under section 41 of the 2000 Act on suspicion of involvement in the murder of two soldiers at Masserene Barracks, Antrim, on 7 March 2009. He was detained at Antrim Police Station on the same day.

On 15 March 2009 the DPP made an application to the County Court under paragraph 29 of Schedule 8 to the 2000 Act for a warrant extending the second applicant’s detention as the results of a number of forensic tests were pending.

Following a hearing on 16 March 2009 a County Court Judge granted a warrant authorising a five-day extension to his detention.

The second applicant was interviewed on twelve occasions in the following five days. However, neither the interviews nor the results of the forensic tests provided any evidence linking the second applicant to the murders of the two soldiers.

On 21 March 2009 the DPP made an application to the County Court under paragraph 36 of Schedule 8 to the 2000 Act for a seven-day extension to the period specified in the warrant for further detention. The extension was sought as the results of further forensic tests which had been sent for analysis to a laboratory in Great Britain were expected to become available within the following seven days and detention was considered necessary to ensure that further questioning could take place and, if there was sufficient evidence, charges could be brought.

On 21 March 2009 Judge Philpott granted the application, authorising the second applicant’s continued detention until 7.20 on 28 March 2009.

C. Joint proceedings

The applicants sought permission to apply for judicial review of Judge Philpott’s decisions of 21 and 22 March 2009 granting further extensions to the warrants authorising their detention. They submitted, firstly, that Judge Philpott had been wrong to conclude that a court, in deciding whether or not to grant an extension of detention, was precluded from investigating the lawfulness of the arrest; secondly, that the judge had failed to address the question of whether the detention of the applicants was required while the results of the forensic examinations were expected; thirdly, that the judge had failed to give reasons for her decision that detention was required; and, finally, that Schedule 8 of the 2000 Act was incompatible with Article 5 of the Convention.

Permission to apply for judicial review was granted by the High Court of Northern Ireland on 24 March 2009 and the High Court heard the applications on 25 March 2009.

In respect of the applicants’ first submission, the High Court held that paragraphs 5 and 32 of Schedule 8 to the 2000 Act had to be read in conformity with the requirements of Article 5 § 3 of the Convention as explained in the jurisprudence of the Court. Thus, the review of the lawfulness of the detention had to embrace an examination of the basis of the arrest, otherwise a person could be detained under the 2000 Act for up to twenty-eight days without there having been any judicial review of the lawfulness of the original arrest and that could not be Convention compliant. The High Court therefore found that Judge Philpott had been wrong to disavow any review of the lawfulness of the applicants’ arrest and, as a consequence, her decision to grant extensions had to be quashed. The court accepted, however, that a review of the lawfulness of the arrest need not involve a detailed analysis of the basis for the decision to arrest and should reflect the constraints that necessarily apply in many arrests for terrorist offences.

With regard to the applicants’ second and third submissions, the High Court found that, although the judge had not focused directly on whether the applicants had to be detained rather than released pending the outcome of the remaining forensic examinations, she had not failed to have regard to the need for detention as the basis for the grant of the warrant. Moreover, although her reasons were pithily stated, they were sufficient to convey to the applicants the basis of her decision.

Consideration of the applicants’ fourth submission, namely the compatibility of Schedule 8 to the 2000 Act with Article 5 of the Convention, was adjourned. In a judgment delivered on 24 February 2011, the High Court of Northern Ireland found no basis for the submission that Schedule 8 was incompatible with Article 5 of the Convention. In particular, the court held that, although there was no doubt that the “competent legal authority” referred to in Article 5 § 1 (c) was the authority having competence to deal with a criminal charge (the magistrate in the United Kingdom), in Schiesser v. Switzerland (4 December 1979, § 29, Series A no. 34) and McKay v. the United Kingdom ([GC], no. 543/03, ECHR 2006‑X) the Court had made it clear that the function of “a judge or other officer” for the purposes of Article 5 § 3 of the Convention could be carried out by an officer authorised by law to exercise judicial power and did not necessarily have to be a person with power to conduct the trial of any eventual criminal charge; that, although there was no express power to order release in the 2000 Act as required by Article 5 § 3 of the Convention, such a power must be implied; that, as paragraph 32 of Schedule 8 to the 2000 Act provided that there must be reasonable grounds for believing that the further detention of a person was necessary, it therefore contained a requirement of proportionality; that, there was no provision for conditional release on bail within the statutory scheme, an issue which did not arise in the present case but would need to be addressed in any future case in which it arose; that, although paragraph 33(3) of Schedule 8 enabled a judicial authority to exclude an applicant or anyone representing him from any part of the hearing and paragraph 34 permitted information to be withheld from the applicant or anyone representing him, there were a range of tools available to the court to preserve to the necessary extent an adversarial procedure and equality of arms; and, finally, that there was no authority which supported the applicants’ contention that Article 5 required that a detained person be charged well before the expiry of the twenty‑eight day period contemplated in the 2000 Act.

On 4 April 2011 the High Court of Northern Ireland certified that it was satisfied that the decision given on 24 February 2011 involved the following points of law of general public importance. “a) Whether paragraphs 29(3) and 36(3)(b) of Part III of Schedule 8 to the Terrorism Act 2000 (‘the Act’) permitting extended detention for more than four days are compatible with the Applicant’s rights under Article 5(1)(c), 5(2) and 5(3) of the European Convention on Human Rights (‘the Convention’)

If compliance with Article 5(3) of the Convention can only be achieved by providing for a detainee to be brought before a judicial authority (i) other than the Magistrates’ Court and (ii) without any charges having been preferred against him;

If Articles 5(1)(c) and 5(3) of the Convention are required to be read together as linked provisions and understood as creating a scheme so that the ‘judge or other officer authorised by law to exercise judicial power’ referred to in Article 5(3) and ‘the competent legal authority’ referred to in Article 5(1)(c) are one and the same;

If the ‘judicial authority’ provided for in Schedule 8 to the Act is the ‘judge or other officer authorised by law to exercise judicial power’ within the meaning of Article 5(3) of the Convention;

If Articles 5(1)(c) and 5(3) of the Convention cannot be interpreted in such a way as to permit the detention of a suspect without charge for any period specified by Parliament, subject only to the requirement of periodic judicial approval of the kind specified in Article 8 to the Act. b) Whether the absence of a power to allow for conditional release on bail rendered the scheme for extending detention set out in Part III of Schedule 8 incompatible with Article 5 [of the Convention]; and c) Whether the procedure for granting an extension of detention, in circumstances where the suspect and legal representative have been excluded by the judge for a part of the hearing (as per Schedule 8, para 33(3)) and by reason of same information is made available to the judge but withheld from the suspect and his legal representative, Schedule 8, para 34(1) and (2)(f) is incompatible with the request for an adversarial hearing as required by Article 5 in light of Secretary of State for the Home Department v AF (FC) and Anor [2010] 2 AC 269.”

However, the High Court refused leave to appeal to the Supreme Court.

Permission to appeal was refused by the Supreme Court on 14 November 2011 on the basis that the applications did not raise an arguable point of law of general public importance.

D. The applicants’ release from detention

The applicants were released without charge on 25 March 2009. The first and third applicants were not subsequently charged with any offence related to the murder of the police officer.

The second applicant was immediately rearrested and interviewed over the following two days. On 27 March 2009 he was charged with the murder of the two soldiers, five attempted murders and possession of a firearm and ammunition. He was produced before a District Judge sitting at Larne Magistrates’ Court on 27 March 2009. His application for bail was refused. Following a hearing which took place on 6 and 23 November 2009, bail was refused by the High Court on the ground that there was a real risk of reoffending on account of his suspected involvement with a dissident republican organisation. The High Court again declined to grant bail on 8 October 2010.

On 7 November 2011 the second applicant stood trial before a judge sitting without a jury. On 20 January 2012 he was acquitted on all counts of the indictment.