CASE OF McKAY v. THE UNITED KINGDOM

1. The case originated in an application (no. 543/03) 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 a British national, Mr Mark McKay ( “ the applicant ” ), on 9 December 2002.
2. The applicant was represented by Mr P. McDermott, a lawyer practising in Belfast. The United Kingdom Government ( “ the Government ” ) were represented by their Agent, Mr J. Grainger, of the Foreign and Commonwealth Office.
3. Relying on Article 5 § 3 of the Convention, the applicant complained that after his arrest the magistrate had had no power to order his release on bail.
4. The application was allocated to the Fourth Section. It was declared admissible by a Chamber of that Section, composed of Josep Casadevall, Nicolas Bratza, Matti Pellonpää, Rait Maruste, Kristaq Traja, Ljiljana Mijović, Ján Šikuta, judges, and Michael O ’ Boyle, Section Registrar. On 17 January 2006 the Chamber relinquished jurisdiction in favour of the Grand Chamber, none of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72 of the Rules of Court ).
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.
6. The applicant and the Government each filed a memorial on the merits.
7. A hearing took place in public in the Human Rights Building, Strasbourg, on 14 June 2006 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government Mr J. Grainger, Agent,
(b) for the applicant Mr J. Larkin, QC
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
8. The applicant was born in 1983 and lives in Bangor, County Down, Northern Ireland.
9. On Saturday 6 January 2001 at 10 p.m., the applicant was arrested on suspicion of having carried out a robbery of a petrol station in Bangor. On Sunday 7 January 2001 he admitted being responsible for the robbery. He was charged at 12.37 p.m.
10. On Monday 8 January 2001 at 10 a.m., the applicant made his first appearance in the magistrates ’ court, where he instructed his solicitors to make an application for release on bail. The police officer gave evidence to the court stating that the robbery was not connected with terrorism and that, subject to the proper conditions, he would have no objection to bail. The sitting resident magistrate refused the application, indicating that the offence was a scheduled offence and that he therefore did not have the power to order release (section 67(2) of the Terrorism Act 2000 and section 3(2) of the Northern Ireland (Emergency Provisions) Act 1996).
11. On 8 January 2001 the applicant applied to the High Court for bail. On 9 January 2001 the High Court heard and granted his application.
12. On 12 April 2001 the applicant pleaded guilty in the Crown Court to an offence of robbery and was sentenced to two years ’ detention in a young offenders ’ institution, followed by a year of probation.
13. Meanwhile, on 9 January 2001, the applicant made an application for judicial review, seeking a declaration of incompatibility of the legislation cited above with Articles 5 and 14 of the Convention.
14. On 3 May 2002 the High Court rejected the applicant ’ s application. Mr Justice Kerr held:
“ There is nothing in the text of Article 5 nor in the jurisprudence of ECtHR 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 before the magistrate 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. ...”
15. The judge also rejected the arguments under Article 14 that accused members of the security forces were treated more favourably concerning bail than other accused persons and refused leave to appeal.
16. On 16 May 2002 the Divisional Court refused leave to appeal to the House of Lords, but certified as points of law of general public importance whether the legislation was compatible with the Convention and whether Article 5 required that the court before whom an accused person was brought pursuant to Article 5 § 3 should have the power to admit him to bail.
17. On 4 December 2002 leave to appeal was refused by the House of Lords.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Power to release on bail concerning scheduled offences
18. Section 67(2) of the Terrorism Act 2000 (which came into force on 19 February 2001 ) is substantially the same as section 3(2) of the Northern Ireland (Emergency Provisions) Act 1996 ( in force at the time of the applicant ’ s appearance), and provides:
“ 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. ”
19. The sole jurisdiction of the High Court, Court of Appeal and trial judge to grant bail in the case of scheduled offences dates from 1973 and is based on the original provisions of the Northern Ireland (Emergency Provisions) Act 1973. The rationale derives from the Diplock Report ( “ Report of the Commission to consider legal procedures to deal with terrorist activities in Northern Ireland ” (1972 Cmnd. 5185) ), which concluded that resident magistrates who heard bail applications were particularly susceptible to threats and intimidation (at the relevant time one had been shot and the homes of two others bombed). The 2000 Act provides for the position to be annually reviewed by Parliament. Annual reports on the working of the legislation are laid before Parliament for this purpose.
20. In the 2002 report of the Independent Reviewer, Lord Carlile of Berriew QC recommended the return of bail applications to the magistrates ’ court, noting that the requirement for all applications in scheduled offences to go before the High Court led in practice to some defendants spending additional days in custody and that a significant proportion of cases were ultimately not proceeded with, or defendants were acquitted or given non-custodial sentences. He recommended that the power be given to a small number of specially trained magistrates. However, in his 2004 report, he noted a continuing danger from sophisticated terrorist crime and numerous serious criminal offences with a strong terrorist link, with syndicated crime having a paramilitary connection increasing and significant levels of intimidation remaining. In considering whether or not to give resident magistrates the power to deal with bail applications, he did not repeat his earlier recommendation, observing that the security assessment was that there would be a significant threat of intimidation and violence towards them and those close to them. He did, however, agree that bail hearings should be available at the weekends and this change was brought into force immediately.
21. Robbery, in so far as it involves any explosive, firearm, imitation firearm or weapon of offence, is specified in paragraph 10 (b) of schedule 9 to the Terrorism Act 2000 as a scheduled offence.
B. Procedure for High Court bail applications
22. This was set out in the Rules of the Supreme Court (Northern Ireland) Order 79, supplemented by Practice Direction 1976 no. 1. This provided for the High Court to sit every day except Saturdays and Sundays for the purpose, inter alia, of hearing bail applications. The Practice Direction instituted a deadline for papers to be lodged by 11 a. m. on the day before bail applications were heard. From October 2000, the deadline was moved to noon and the office adopted the practice of accepting faxed applications. A bail judge would also consider admitting a late application in a genuinely exceptional case.
23. As from 31 January 2004, the High Court also sat on Saturdays to hear bail applications.
ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
24. The applicant complained that the magistrate before whom he had appeared after his arrest had had no power to release him on bail. He relied on Article 5 § 3 of the Convention, which provides:
“ 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. ”
The relevant parts of Article 5 § 1 of the Convention provide :
“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 ... ”
25. The applicant submitted that there was no justification in practice or under Strasbourg case-law for separating the power to review the lawfulness of detention from the power to grant bail. The latter was a much more practical facet of judicial supervision, there being a great many cases where on first appearance before a magistrate detention was formally lawful but where there were no reasons against bail. The regime of scheduled offences covered many cases, such as his, where there was not even a remote suspicion of connection with terrorism and accordingly the Government justification of the regime had no basis in fact or policy. Reliance on the possible intimidation of magistrates in terrorist cases could not logically justify the removal of their bail jurisdiction, where they remained able to determine the lawfulness of detention and to discharge an accused from custody.
26. The applicant argued that the judge before whom an accused appeared had to exercise a plenitude of judicial power, and had to have jurisdiction to pronounce not merely on the bare legality of detention but also on whether the detention was objectively justified on the merits. The Court ’ s case-law indicated that the review had to be sufficiently wide to encompass the various circumstances militating for and against detention. Even if the enquiry into formal lawfulness logically preceded an enquiry into the propriety of bail, it was perverse to interpret the case-law as allowing the removal of the jurisdiction to consider bail. The unconditional obligation that a detained person appear before such an officer fell upon the State and such appearance had to occur promptly and automatically.
27. The applicant submitted therefore that in his case it was a breach of Article 5 § 3 that the magistrate had had no power to consider bail and that he had been required, of his own motion, to make an application for bail. Such a requirement could impact particularly upon the most vulnerable of detained persons, such as the mentally weak or ill, those subjected to ill-treatment in custody or those unable to speak the language of the court.
28. The Government submitted that the purpose of Article 5 § 3 was to provide a safeguard against arbitrary detention by providing an independent scrutiny of the reasons for an accused ’ s detention and to ensure release if continued detention was not justified. The judicial officer concerned had to be independent and have the power to order release. However, nothing in the text of Article 5 or in the Court ’ s jurisprudence required that the court before which an arrested person was to be brought had to be the same court that had the power to grant bail. The detained person had to be brought promptly before a court or officer authorised to exercise judicial power; he also had to have the opportunity to apply for bail. Only the first was required to be automatic; the second, the question of bail, only came into play when the arrest and detention were lawful and did not necessarily form part of the prompt automatic review of the merits.
29. The Government submitted that Article 5 § 3 had therefore been complied with in the applicant ’ s case. The magistrate was able to review the legal basis on which the applicant was detained, and had to be satisfied that the arrest and detention were lawful and therefore not arbitrary; if he had not been so satisfied, he would have been obliged to order the applicant ’ s release. Thus the applicant obtained a prompt examination by a judge of the legal basis of his arrest and continued detention. He was also entitled to, and did obtain, a prompt examination by a judge of the High Court of his right to release on bail. Referring to the margin of appreciation, they concluded that the legislation represented a fair balance between individual rights and the requirements of defending society against a continuing danger from terrorist crime and a high level of intimidation and was entirely consistent with the aims and objectives of the Convention in promoting the rule of law.
30. Article 5 of the Convention is, together with Articles 2, 3 and 4, in the first rank of the fundamental rights that protect the physical security of an individual (see, for example, its link with Articles 2 and 3 in disappearance cases such as Kurt v. Turkey, 25 May 1998, § 123, Reports of Judgments and Decisions 1 998-III ) and as such its importance is paramount. Its key purpose is to prevent arbitrary or unjustified deprivations of liberty (see, for example, Lukanov v. Bulgaria, 20 March 1997, § 41, Reports 1997 ‑ II; Assanidze v. Georgia [GC], no. 71503/01, § 171, ECHR 2004 ‑ II; and Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 461, ECHR 2004 ‑ VII ). Three strands in particular may be identified as running through the Court ’ s case-law : the exhaustive nature of the exceptions, which must be interpreted strictly ( see Ciulla v. Italy, 22 February 1989, § 41, Series A no. 148 ) and which do not allow for the broad range of justifications under other provisions ( Articles 8-11 of the Convention in particular); the repeated emphasis on the lawfulness of the detention, procedurally and substantively, requiring scrupulous adherence to the rule of law (see Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33 ); and the importance of the promptness or speediness of the requisite judicial controls ( under Article 5 §§ 3 and 4).
31. Article 5 § 3 as part of this framework of guarantees 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 eventual trial before a criminal court during which the suspect 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 (see T.W. v. Malta [GC], no. 25644/94, § 49, 29 April 1999 ).
32. Taking the initial stage under the first limb, the Court ’ s case-law establishes that there must be protection of an individual arrested or detained on suspicion of having committed a criminal offence through judicial control. Such control serves to provide effective safeguards against the risk of ill-treatment, which is at its greatest in this early stage of detention, and against the abuse of powers bestowed on law enforcement officers or other authorities for what should be narrowly restricted purposes and exercisable strictly in accordance with prescribed procedures. The judicial control must satisfy the following requirements.
33. The judicial control on the first appearance of an arrested individual must above all be prompt, to allow detection of any ill-treatment and to keep to a minimum any unjustified interference with individual liberty. The strict time constraint imposed by this requirement leaves little flexibility in interpretation, otherwise there would be a serious weakening of a procedural guarantee to the detriment of the individual and the risk of impairing the very essence of the right protected by this provision ( see Brogan and Others v. the United Kingdom, 29 November 1988, § 62, Series A no. 145 ‑ B, where periods of more than four days in detention without appearance before a judge were held to be in violation of Article 5 § 3, even in the special context of terrorist investigations).
( ii ) Automatic nature of the review
34. The review must be automatic and cannot depend on the application of the detained person; in this respect it must be distinguished from Article 5 § 4 which gives a detained person the right to apply for release. The automatic nature of the review is necessary to fulfil the purpose of the paragraph, as a person subjected to ill-treatment might be incapable of lodging an application asking for a judge to review their detention; the same might also be true of other vulnerable categories of arrested person, such as the mentally frail or those ignorant of the language of the judicial officer ( see Aquilina v. Malta [GC], no. 25642/94, § 49, ECHR 1999 ‑ III ).
( iii ) The characteristics and powers of the judicial officer
35. The judicial officer must offer the requisite guarantees of independence from the executive and the parties and he or she must have the power to order release, after hearing the individual and reviewing the lawfulness of, and justification for, the arrest and detention ( see Assenov and Others v. Bulgaria, 28 October 1998, § 146, Reports 1998-VIII ). As regards the scope of that review, the formulation which has been at the basis of the Court ’ s long-established case-law dates back to the early case of Schiesser v. Switzerland ( 4 December 1979, § 31, Series A no. 34 ):
“ ... [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 ” ( see T.W. v. Malta, cited above, § 41, and Aquilina, cited above, § 47).
36. However, an examination of these cases gives no ground for concluding that the review must, as a matter of automatic obligation, cover the release of the applicant pending trial, with or without conditions, for reasons aside from the lawfulness of the detention or the existence of reasonable suspicion that the applicant has committed a criminal offence. The Schiesser case, cited above, made no reference to bail and although it attributes the general statement of principle above, which on its face appears capable of encompassing bail-type considerations, to Ireland v. the United Kingdom ( 18 January 1978, § 199, Series A no. 25 ), no basis for such statement appears in that judgment. Nor indeed was release on bail in issue in Schiesser, which was principally concerned with the question whether the District Attorney offered the guarantees of independence inherent in the notion of an officer authorised by law to exercise judicial power (§§ 33-35). There is nothing therefore to suggest that, when referring to “ the circumstances militating for or against detention ”, the Court was doing more than indicating that the judicial officer had to have the power to review the lawfulness of the arrest and detention under domestic law and its compliance with the requirements of Article 5 § 1 (c).
37. As regards the Maltese cases (see T.W. v. Malta and Aquilina, both cited above), the phrase “ merits of the detention ” must be read in their context. In both, the applicants appeared promptly before the judicial officer but, as found by the Court, neither the magistrate before whom the applicants first appeared nor any other judicial officer had the power to conduct a review, of his or her own motion, of whether there had been compliance with the requirements of Article 5 § 1 (c). According to the Government of Malta, release might have been ordered if the detained person faced charges which, according to Maltese law, did not even allow for detention. However the Court held that, even if this were the case, the scope of such powers of review was clearly insufficient to satisfy the requirements of paragraph 3 of Article 5, since, as the Government conceded, the judicial officer had no power to order release if there was no reasonable suspicion that the detained person had committed an offence. Further, the fact, relied on by the Government, that the applicants could request bail equally did not satisfy paragraph 3, since it depended on a previous application being made by the detained person, whereas the judicial control of the lawfulness and proper basis of the detention under the first limb of paragraph 3 had to be automatic.
38. This reading of the Grand Chamber ’ s judgments is supported by the subsequent case of Sabeur Ben Ali v. Malta ( no. 35892/97, 29 June 2000) where the Court, examining the compatibility with Article 5 § 3 of a similar arrest and detention of an applicant, quoted the relevant passage from Aquilina ( cited above, § 47) and found that this requirement had not been complied with since “ the applicant could not obtain an automatic ruling by a domestic judicial authority on whether there existed a reasonable suspicion against him ”.
39. Nor, on examination, does the case of S.B.C. v. the United Kingdom ( no. 39360/98, 19 June 2001 ) provide persuasive authority for finding that the first obligatory appearance before a judge must encompass the power to grant release on bail. This case concerned the Criminal Justice and Public Order Act 1994, which provided that persons charged with a serious offence such as murder, manslaughter or rape and who had previously been convicted of a similar offence were excluded from the grant of bail under any circumstances. This removal of judicial control throughout the period of pre-trial detention was found to violate Article 5 § 3 of the Convention. This denial of any access to bail clearly offended against the independent right which is conferred in the second limb of paragraph 3. In so far as it may be suggested that the power to grant bail was a power which the magistrates had to be able to exercise on the first court appearance of the detained person after arrest, the Grand Chamber is unable to agree with this interpretation.
40. The initial automatic review of arrest and detention accordingly must be capable of examining lawfulness issues and whether or not there is a reasonable suspicion that the arrested person has committed an offence, in other words, that detention falls within the permitted exception set out in Article 5 § 1 (c). When the detention does not, or is unlawful, the judicial officer must then have the power to release.
( b ) The pre-trial or remand period
41. The presumption is in favour of release. As established in Neumeister v. Austria ( 27 June 1968, p. 37, § 4, Series A no. 8 ), the second limb 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 pending trial. 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.
42. Continued detention therefore can 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, outweighs 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 ).
43. The responsibility falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must, paying due regard to the principle of the presumption of innocence, examine all the facts arguing for or against the existence of the above-mentioned demand of public interest justifying a departure from the rule in Article 5 and must set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions and of the established facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 (see, for example, Weinsztal v. Poland, no. 43748/98, § 50, 30 May 2006 ).
44. The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but with the lapse of time this no longer suffices and the Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “ relevant ” and “ sufficient ”, the Court must also be satisfied that the national authorities displayed “ special diligence ” in the conduct of the proceedings ( see, among other authorities, Letellier v. France, 26 June 1991, § 35, Series A no. 207, and Yağcı and Sargın v. Turkey, 8 June 1995, § 50, Series A no. 319 ‑ A ).
45. In sum, domestic courts are under an obligation to review the continued detention of persons pending trial with a view to ensuring release when circumstances no longer justify continued deprivation of liberty. For at least an initial period, the existence of reasonable suspicion may justify detention but there comes a time when this is no longer enough. As the question whether or not a period of detention is reasonable cannot be assessed in the abstract but must be assessed in each case according to its special features, there is no fixed time frame applicable to each case.
46. The Court ’ s case-law has not yet had occasion to consider the very early stage of pre-trial detention in this context, presumably as, in the great majority of cases, the existence of suspicion provides a sufficient ground for detention and any unavailability of bail has not been seriously challengeable. It is not in doubt, however, that there must exist the opportunity for judicial consideration of release pending trial as even at this stage there will be cases where the nature of the offence or the personal circumstances of the suspected offender are such as to render detention unreasonable, or unsupported by relevant or sufficient grounds. There is no express requirement of “ promptness ” as in the first sentence of paragraph 3 of Article 5. However, such consideration, whether on application by the applicant or by the judge of his or her own motion, must take place with due expedition, in order to keep any unjustified deprivation of liberty to an acceptable minimum.
47. In order to ensure that the right guaranteed is practical and effective, not theoretical and illusory, it is not only good practice, but highly desirable in order to minimise delay, that the judicial officer who conducts the first automatic review of lawfulness and the existence of a ground for detention also has the competence to consider release on bail. It is not, however, a requirement of the Convention and there is no reason in principle why the issues cannot be dealt with by two judicial officers, within the requisite time frame. In any event, as a matter of interpretation, it cannot be required that the examination of bail take place with any more speed than is demanded of the first automatic review, which the Court has identified as being a maximum of four days (see Brogan and Others, cited above).
2. Application in the present case
48. The Court notes that the applicant was arrested on 6 January 2001 at 10 p.m. on suspicion of having carried out a robbery of a petrol station. He was charged at 12.37 p.m. the next day. On 8 January 2001 at 10 a.m., the applicant made his first appearance in the magistrates ’ court which remanded him in custody. It is not in dispute that the magistrate had the competence to examine the lawfulness of the arrest and detention and whether there were reasonable grounds for suspicion and moreover that he had the power to order release if those requirements were not complied with. That alone provided satisfactory guarantees against abuse of power by the authorities and ensured compliance with the first limb of Article 5 § 3 as being prompt, automatic and taking place before a duly empowered judicial officer.
49. The question of release pending trial was a distinct and separate matter which logically only became relevant after the establishment of the existence of a lawful basis and a Convention ground for detention. It was, in the applicant ’ s case, dealt with some twenty-four hours later, on 9 January 2001, by the High Court which ordered his release. No element of possible abuse or arbitrariness arises from the fact that it was another tribunal or judge that did so nor from the fact that the examination was dependent on his application. The applicant ’ s lawyer lodged such an application without any hindrance or difficulty; it is not apparent, nor falls to be decided in this case, that the system in operation would prevent the weak or vulnerable from making use of this possibility.
50. While it is true that the police had no objection to bail and that if the magistrate had had the power to release on bail, the applicant would have been released one day earlier, the Court nonetheless considers that the procedure in this case was conducted with due expedition, leading to his release some three days after his arrest.
51. There has, accordingly, been no violation of Article 5 § 3 of the Convention.
Holds by sixteen votes to one that there has been no violation of Article 5 § 3 of the Convention.