Caso Murray contra Reino Unido, de 28/10/1994
No violation of Art. 5-1
EUROPEAN COURT OF HUMAN RIGHTS
In the case of Murray v. the United Kingdom*,
The European Court of Human Rights, sitting, in pursuance of Rule 51 of Rules of
Court A**, as a Grand Chamber composed of the following judges:
Mr R. Ryssdal, President, Mr R. Bernhardt, Mr F. Gölcüklü, Mr R. Macdonald, Mr
A. Spielmann, Mr S.K. Martens, Mr I. Foighel, Mr R. Pekkanen, Mr A.N. Loizou, Mr
J.M. Morenilla, Sir John Freeland, Mr A.B. Baka, Mr M.A. Lopes Rocha, Mr L.
Wildhaber, Mr G. Mifsud Bonnici, Mr J. Makarczyk, Mr P. Jambrek, Mr K. Jungwiert,
and also of Mr H. Petzold, Acting Registrar,
Having deliberated in private on 23 April and 21 September 1994,
Delivers the following judgment, which was adopted on the last-mentioned date:
-------Notes by the Registrar
* The case is numbered 13/1993/408/487. The first number is the case's position
on the list of cases referred to the Court in the relevant year (second number).
The last two numbers indicate the case's position on the list of cases referred
to the Court since its creation and on the list of the corresponding originating
applications to the Commission.
** Rules A apply to all cases referred to the Court before the entry into force
of Protocol No. 9 (P9) and thereafter only to cases concerning States not bound
by that Protocol (P9). They correspond to the Rules that came into force on 1
January 1983, as amended several times subsequently.--------
PROCEDURE
1. The case was referred to the Court by the European Commission of Human Rights
("the Commission") on 7 April 1993, within the three-month period laid down by
Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It
originated in an application (no. 14310/88) against the United Kingdom of Great
Britain and Northern Ireland lodged with the Commission under Article 25 (art.
25) on 28 September 1988 by Mrs Margaret Murray, Mr Thomas Murray, Mr Mark
Murray, Ms Alana Murray, Ms Michaela Murray and Ms Rossina Murray, who are all
Irish citizens.
The Commission's request referred to Articles 44 and 48 (art. 44, art. 48) and
to the declaration whereby the United Kingdom recognised the compulsory
jurisdiction of the Court (Article 46) (art. 46). The object of the request was
to obtain a decision as to whether the facts of the case disclosed a breach by
the respondent State of its obligations under Article 5 paras. 1, 2 and 5,
Article 8 and Article 13 (art. 5-1, art. 5-2, art. 5-5, art. 8, art. 13) of the
Convention.
2. In response to the enquiry made in accordance with Rule 33 para. 3 (d) of
Rules of Court A, the applicants stated that they wished to take part in the
proceedings and designated the lawyers who would represent them (Rule 30). The
Government of Ireland, having been reminded by the Registrar of their right to
intervene (Article 48 (b) of the Convention and Rule 33 para. 3 (b)) (art.
48-b), did not indicate any intention of so doing.
3. The Chamber to be constituted included ex officio Sir John Freeland, the
elected judge of British nationality (Article 43 of the Convention) (art. 43),
and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 23 April
1993, in the presence of the Registrar, the President drew by lot the names of
the other seven members, namely Mr R. Bernhardt, Mr L.-E. Pettiti, Mr N.
Valticos, Mr J.M. Morenilla, Mr M.A. Lopes Rocha, Mr L. Wildhaber and Mr G.
Mifsud Bonnici (Article 43 in fine of the Convention and Rule 21 para. 4) (art.
43).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting through the
Registrar, consulted the Agent of the United Kingdom Government ("the Government"),
the applicants' lawyers and the Delegate of the Commission on the organisation
of the proceedings (Rules 37 para. 1 and 38). Pursuant to the orders made in
consequence, the Government's memorial was lodged at the registry on 3 November
1993, the applicants' memorial on 15 November and their claims for just
satisfaction under Article 50 (art. 50) of the Convention on 23 December 1993,
18 and 20 January 1994. In a letter received on 14 December 1993 the Secretary
to the Commission informed the Registrar that the Delegate did not wish to
comment in writing on the memorials filed.
5. In accordance with the President's decision, the hearing took place in public
in the Human Rights Building, Strasbourg, on 24 January 1994. The Chamber had
held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr H. Llewellyn, Assistant Legal Adviser, Foreign and Commonwealth Office, Agent,
Mr R. Weatherup, QC, Mr J. Eadie, Barrister-at-law, Counsel;
(b) for the Commission
Mr M.P. Pellonpää, Delegate;
(c) for the applicants
Mr R. Weir, QC, Mr S. Treacy, Barrister-at-law, Counsel, Mr P. Madden, Solicitor.
The Court heard addresses by Mr Pellonpää, Mr Weir and Mr Weatherup.
6. Following deliberations held on 28 January 1994 the Chamber decided to
relinquish jurisdiction forthwith in favour of a Grand Chamber (Rule 51 para.
1).
7. The Grand Chamber to be constituted included ex officio Mr Ryssdal, President
of the Court, Mr Bernhardt, Vice-President of the Court, and the other members
of the Chamber which had relinquished jurisdiction (Rule 51 para. 2 (a) and
(b)). On 28 January 1994, in the presence of the Registrar, the President drew
by lot the names of the ten additional judges called on to complete the Grand
Chamber, namely Mr R. Macdonald, Mr A. Spielmann, Mr S.K. Martens, Mr I. Foighel,
Mr R. Pekkanen, Mr A.N. Loizou, Mr A.B. Baka, Mr J. Makarczyk, Mr P. Jambrek and
Mr K. Jungwiert (Rule 51 para. 2 (c)). Mr Pettiti, a member of the original
Chamber, was unable to take part in the Grand Chamber's consideration of the
case and was replaced by Mr F. Gölcüklü in accordance with the drawing of lots
effected under Rule 51 para. 2 (c). Mr Valticos, also a member of the original
Chamber, was prevented at a later stage from continuing to take part in the
Grand Chamber's deliberations.
8. The Grand Chamber held a meeting devoted to procedural matters on 24 March
1994.
Having taken note of the concurring opinions of the Agent of the Government, the
Delegate of the Commission and the applicants, the Grand Chamber decided on 23
April 1994 that the consideration of the case should continue without resumption
of the oral proceedings (Rule 26).
AS TO THE FACTS
I. Particular circumstances of the case
A. Introduction
9. The six applicants are members of the same family. The first applicant, Mrs
Margaret Murray, and the second applicant, Mr Thomas Murray, are husband and
wife. The other four applicants are their children, namely their son Mark Murray
(born in 1964), their twin daughters Alana and Michaela Murray (born in 1967)
and a younger daughter Rossina Murray (born in 1970). At the relevant time in
1982 all six applicants resided together in the same house in Belfast, Northern
Ireland.
10. On 22 June 1982 two of the first applicant's brothers were convicted in the
United States of America ("USA") of arms offences connected with the purchase of
weapons for the Provisional Irish Republican Army ("Provisional IRA"). The
Provisional IRA is included among the organisations proscribed under the special
legislation enacted in the United Kingdom to deal with terrorism in Northern
Ireland (see paragraph 35 below).
B. First applicant's arrest
11. On 26 July 1982 at approximately 6.30 a.m. Corporal D., a member of the
Women's Royal Army Corps, attended an Army briefing at which she was told that
the first applicant was suspected of involvement in the collection of money for
the purchase of arms for the IRA in the USA, this being a criminal offence under
section 21 of the Northern Ireland (Emergency Provisions) Act 1978 ("the 1978
Act") and section 10 of the Prevention of Terrorism (Temporary Provisions) Act
1976. The corporal was instructed to go to the first applicant's house, arrest
her under section 14 of the 1978 Act (see paragraphs 36-38 below) and bring her
back to the Army screening centre at Springfield Road in Belfast.
12. At 7 a.m. Corporal D., who was unarmed but accompanied by five armed
soldiers, arrived by Army vehicle at the applicants' home. The first applicant
herself answered the door and three of the male soldiers, together with Corporal
D., entered the house. Corporal D. established the identity of the first
applicant and asked her to get dressed. Corporal D. went upstairs with the first
applicant. The other applicants were roused and asked to assemble in the living
room. The soldiers did not carry out any search of the contents of the house,
but made written notes as to the interior of the house and recorded personal
details concerning the applicants. At about 7.30 a.m. in the hallway of the
house Corporal D., with one of the soldiers acting as a witness, said to the
first applicant, "As a member of Her Majesty's forces, I arrest you." On being
asked twice by the first applicant under what section, Corporal D. replied, "Section
14."
C. First applicant's questioning
13. The first applicant was then driven to the Army screening centre at
Springfield Road, Belfast. She was escorted into a building and asked to sit for
a short time in a small cubicle. At 8.05 a.m. she was taken before Sergeant B.
who asked her questions with a view to completing part 1 of a standard form to
record, inter alia, details of the arrest and screening procedure and personal
details. The first applicant refused to answer any questions save to give her
name and she refused to be photographed. The interview ended four minutes later.
She was then examined by a medical orderly who endeavoured to establish whether
she suffered from certain illnesses, but she again refused to co-operate and did
not answer any of his questions.
14. At 8.20 a.m. she was taken to an interview room and questioned by a soldier
in civilian clothes in the presence of Corporal D. She was asked, inter alia,
about her brothers and her contacts with them, but she still refused to answer
questions. After the interview, which ended at 9.35 a.m., she was returned to
the reception area and then taken back to the medical orderly who asked her if
she had any complaints. She did not reply to this query.
At some stage during her stay in the centre she was photographed without her
knowledge or consent. This photograph and the personal details about her, her
family and her home were kept on record.
She was released at 9.45 a.m. without being charged.
15. The standard record form, called the "screening proforma", recorded the
first applicant's name, address, nationality, marital and tenancy status, the
chronological details about her arrest, the names of the Army personnel involved,
the names of the other applicants and their relationship to her, her physique
and her attitude to the interview. Under the heading "Additional information ...
concerning the arrestee (as reported by the arresting soldier)", it stated: "Subject
is the sister of C... M... who was arrested in USA. Questioned on the above
subject." Nothing however was recorded under the heading "Suspected offence". It
noted that the applicant had refused to answer questions and that no information
had been gained from the interview.
D. Proceedings before the High Court
16. Some eighteen months later, on 9 February 1984, the first applicant brought
an action against the Ministry of Defence for false imprisonment and other torts.
17. In those proceedings one of the principal allegations made by the first
applicant was that her arrest and detention had been effected unlawfully and for
an improper purpose. Her allegations were summarised in the judgment of Murray
J. given on 25 October 1985:
"The plaintiff's counsel launched a series of attacks on the legality of the
plaintiff's arrest and detention which varied in thrust between the very broad
and the very narrow. In the former class, for example, was an attack in which
they alleged that the use of section 14 of the [1978 Act] in this case was an
example of what they called 'an institutionalised form of unlawful screening' by
the military authorities, with the intention of obtaining what counsel termed 'low
level intelligence' from the plaintiff, and without (a) any genuine suspicion on
the part of those authorities that she had committed a criminal offence or (b)
any genuine intention on their part of questioning her about a criminal offence
alleged to have been committed by her."
18. In support of this case the first applicant's counsel not only called and
examined the applicant herself but extensively cross-examined the two witnesses
called on behalf of the defendants, namely Corporal D. and Sergeant B.
19. The evidence given by the first applicant is recorded in a note drafted by
the trial judge, there being no transcript of the first day of the trial as a
result of a technical mishap with the recording equipment. The first applicant
explained how she had found the conditions of her arrest and detention
distressing for her. She had been angry but had not used strong language. She
testified that whilst at the Army centre she had refused to be photographed, to
be weighed by the medical orderly, to sign any documents and to answer questions,
whether put by Sergeant B., the medical orderly or the interviewer, apart from
giving her name. She had made it clear that she would not be answering any
questions. She alleged that Sergeant B. had told her in so many words that the
Army knew that she had not committed any crime but that her file had been lost
and the Army wanted to update it. She said that she had been questioned about
her brothers in the USA, their whereabouts and her contacts with them, but not
about the purchase of arms for the Provisional IRA or about any offence. She
accepted that she had been in contact with her brothers and had been to the USA,
including a visit that year (1985). She believed that the Army had wanted to
obtain information about her brothers. On leaving the centre, she had told the
officials that she would be seeing them in court.
20. As appears from the transcript of her evidence, Corporal D. gave an account
of her briefing on the morning of the arrest. She stated that at the briefing
she had been told the first applicant's name and address and the grounds on
which she was wanted for questioning, namely her suspected involvement in the
collection of money for the purchase of weapons from America. She testified that
"my suspicions were aroused by my briefing, and my belief was that Mrs Murray
was suspected of collecting money to purchase arms".
Under cross-examination Corporal D. maintained that the purpose of an arrest and
detention under section 14 of the 1978 Act was not to gather intelligence but to
question a suspected person about an offence. She stated that her suspicion of
the first applicant had been formed on the basis of everything she had been told
at the briefing and which she had read in a document which had been supplied to
her then. Corporal D. stated that she would not have effected the arrest unless
she had been given the grounds on which she was expected to arrest the person.
Under repeated questioning, Corporal D. maintained that she had been informed at
the briefing, and that she had formed the suspicion, that the applicant had been
involved in the collection of money for the purchase of arms from America.
21. Corporal D. was further examined about the interrogation of the first
applicant at Springfield Road. She stated that she recalled that questions had
been asked of the applicant by the interviewer and that the applicant had
refused to answer any questions put to her. She recalled that the interviewer
had asked a few more questions when he returned to the room after leaving it but
that she could not really remember what they were about. Counsel for the defence
returned to the question of the interview of the applicant towards the end of
his examination of Corporal D. in the following exchange:
Q. "... Now while you were, just going back for a moment to the time when what I
might call the interview, that's when the three of you were in the room, and the
two occasions you've said she had to leave, you took her to, she wanted to go to
the lavatory. Do you just have no recollection of any of the questions that were
asked?"
A. "I don't remember the questions as they were asked. There was a question
regards money. A question regards America."
No cross-examination by the first applicant's counsel was directed to this reply
of the witness.
22. Sergeant B. was examined and cross-examined about his completion of part 1
of the standard record form when standing at the reception desk. He said that
the first applicant had stated her name but refused to give her address or date
of birth or any further information. He expressly denied the applicant's
allegation that he had said to her that he knew she was not a criminal and that
he just wanted to update her files which had been lost. He gave evidence that
information recorded in 1980 on the occasion of a previous arrest of the first
applicant had in any event not been lost, since it had been used to complete the
details on the first page of the form when she had refused to answer any
questions.
Under cross-examination Sergeant B. did not accept that the main purpose of
questioning a person arrested under section 14 of the 1978 Act was to gather
general information about the background, family and associates of the arrested
person. He maintained that persons were only arrested and detained if there
existed a suspicion against them of involvement in a criminal offence.
23. The issue of the interview of the first applicant was specifically addressed
in the final submission of defence counsel, in which the following exchange is
partially recorded in the transcript:
"MR. CAMPBELL: My Lord ... your Lordship has the grounds upon which the
arresting officer carries out (inaudible) she then gives evidence and is present
throughout the interview ... now I talk about the interview on the very last
stage.
JUDGE: At the table?
MR. CAMPBELL: At the table, and said that in the course of that interview money
and arms that these matters were raised, I can't ... hesitate to use the
(inaudible) now that is one point. The other point is this, that this was a lady
who on her own admission was not going to answer any questions. She agreed
during cross-examination that that was the attitude and so one finds that an
interview takes place with somebody who is not prepared to answer any questions
but at least the questions are raised with her concerning the matter on which
she was arrested.
JUDGE: Is the substance of that then that because of her fairly firm refusal you
would say to answer any questions there was never any probing examination of her
collecting money for example?
MR. CAMPBELL: No my Lord because she ... as she said she wasn't going to answer
any questions."
24. In his judgment of 25 October 1985 Murray J. gave detailed consideration to
the evidence of Corporal D. and Sergeant B. on the one hand and the first
applicant on the other. Murray J. "could not possibly accept the [first
applicant's] evidence" that she had been told by Sergeant B. that she was not
suspected of any offence and that he was just updating his records. He similarly
rejected the applicant's claim that Corporal D. at no time genuinely suspected
her of having committed an offence. In the light of the evidence of Corporal D.
herself, who was described as a "transparently honest witness", the judge was
"quite satisfied that on the basis of her briefing at Musgrave Park she
genuinely suspected the [first applicant] of having been involved in the offence
of collecting money in Northern Ireland for arms".
25. Murray J. also rejected the first applicant's claim that section 14 of the
1978 Act had been used with a view to screening in order to gain low-level
intelligence: he accepted the evidence of Corporal D. and Sergeant B., which had
been tested in cross-examination, that the purpose of the applicant's arrest and
detention under the section had been to establish facts concerning the offence
of which she was suspected.
Murray J. also believed the evidence of Corporal D. that there were questions
addressed to the matters of which the applicant was suspected. He stated:
"As regards the interviewer, the plaintiff accepted that he was interested in
the activities of her brothers who shortly before the date of the interview had
been convicted on arms charges in the USA connected with the Provisional IRA but
the [first applicant], who seems to have been well aware of her rights,
obviously had decided not to co-operate with the military staff in the centre.
In particular she had decided (it seems) not to answer any of their questions
and in this situation, and with the short detention period permitted by the
section, there was little that the interviewer or any of the other staff in the
centre could do to pursue their suspicions."
26. Murray J. likewise rejected the first applicant's argument that the
photographing of her gave rise to a cause of action. His understanding of the
law was that merely taking the photograph of a person, even against their will,
without physically interfering with or defaming the person was not tortious.
27. The first applicant's action before the High Court was therefore dismissed.
E. Proceedings before the Court of Appeal
28. The first applicant thereupon appealed to the Court of Appeal. She again
challenged the legality of her arrest on the grounds, inter alia
"(1) that the arresting officer did not have, or was not sufficiently proved to
have, the requisite suspicion; (2) that she did not have sufficiently detailed
knowledge or understanding of what was alleged against the plaintiff to warrant
the conclusion that it was an offence which would justify arrest".
In its judgment of 20 February 1987 the Court of Appeal unanimously rejected
both these grounds. In delivering judgment, Gibson LJ noted:
"[The trial judge had] found, and his finding was amply justified by the
evidence, that [Corporal D.] genuinely suspected the plaintiff of having been
involved in the offence of collecting money in Northern Ireland for arms to be
purchased in America for use by a proscribed organisation."
In particular, as to the second ground Gibson LJ observed:
"Suspicion is something less than proof, and may exist without evidence, though
it must be supported by some reason."
29. The Court of Appeal further unanimously rejected the first applicant's
complaint that the purpose of her arrest and detention, and the whole purport of
her questioning, was a fishing expedition unrelated to the matters of which she
was suspected and designed to obtain low-grade intelligence about the applicant
and others. In rejecting this complaint, the Court of Appeal took account of the
evidence which had been adduced on both sides:
"Corporal D. who was present during the interview had very little recollection
of the course of the questions. The only other witness as to the conduct of this
interview was the [first applicant]. Her account also is sketchy, though in
somewhat more detail. What is clear from both witnesses is that the [first
applicant] was deliberately unhelpful and refused to answer most of the
questions. What is certain is that she was asked about her brothers ... who in
the previous month had been convicted of offences connected with the purchase of
firearms in the USA for use by the IRA [and for which offences they had been
sentenced to terms of two and three years' imprisonment]. It is clear that it
was for such a purchase that the [first applicant] was suspected of having
collected money, as she stated the interviewer asked her whether she was in
contact with them. There is no doubt, therefore, that the interviewer did
attempt to pursue the subject of the suspicion which had been the occasion for
her arrest but was unable to make any headway."
30. The first applicant's appeal to the Court of Appeal also concerned certain
related matters such as the legality of the search of the applicants' house, in
respect of which the Court of Appeal found that there was a sufficient basis in
section 14(3) of the 1978 Act (see paragraphs 36 and 38(d) below). The Court of
Appeal held that the implied authority granted to the Army under section 14
included a power to interrogate a detained person and, as a practical necessity,
a power to record personal particulars and details concerning the arrest and
detention. It further found that the standard record form known as the
"screening proforma" contained no information which might not have been relevant
to the resolution of the suspicion.
As regards the applicant's complaint that she had been photographed without her
knowledge, the Court of Appeal stated as follows:
"The act of taking the photograph involved nothing in the nature of a physical
assault. Whether such an act would constitute an invasion of privacy so as to be
actionable in the United States is irrelevant, because the [first applicant] can
only recover damages if it amounts to a tort falling within one of the
recognised branches of the law on the topic. According to the common law there
is no remedy if someone takes a photograph of another against his will. Reliance
was placed on section 11(4) of the [1978] Act by counsel for the [first
applicant] ... This provision gives power to the police to order [in addition to
the taking of a photograph] the taking of finger prints without the necessity of
charging the person concerned and applying for an order of the magistrate under
article 61 of the Magistrates Courts (Northern Ireland) Order 1981, which
contains no comparable provision as to the taking of photographs. The taking of
finger prints otherwise than by consent must involve an assault and I am
satisfied that section 11(4) was enacted not to legalise the taking of
photographs without consent, but to legalise the taking of photographs or finger
prints in circumstances where there would otherwise have been an illegal
assault. It does not involve the implication that the taking of a photograph
without violence and without consent is actionable."
F. Proceedings before the House of Lords
31. The first applicant was granted leave by the Court of Appeal to appeal to
the House of Lords. This appeal was rejected on 25 May 1988 (Murray v. Ministry
of Defence, [1988] Weekly Law Reports 692).
32. In the House of Lords the applicant did not pursue the allegation that she
had not been arrested on the basis of a genuine and honest suspicion that she
had committed an offence.
She did however pursue the complaint, previously raised before the Court of
Appeal, that since she was only lawfully arrested at 7.30 a.m. she had been
unlawfully detained between 7.00 and 7.30 a.m. The House of Lords found that a
person is arrested from the moment he is subject to restraint and that the first
applicant was therefore under arrest from the moment that Corporal D. identified
her on entering the house at 7 a.m.. It made no difference that the formal words
of arrest were communicated to the applicant at 7.30 a.m. In this respect Lord
Griffiths stated (at pp. 698H-699A):
"If the plaintiff had been told she was under arrest the moment she identified
herself, it would not have made the slightest difference to the sequence of
events before she left the house. It would have been wholly unreasonable to take
her off, half-clad, to the Army centre, and the same half-hour would have
elapsed while she gathered herself together and completed her toilet and
dressing. It would seem a strange result that in these circumstances, whether or
not she has an action for false imprisonment should depend upon whether the
words of arrest are spoken on entering or leaving the house, when the practical
effect of the difference on the plaintiff is non-existent."
33. The first applicant had also maintained that the failure to inform her that
she was arrested until the soldiers were about to leave the house rendered the
arrest unlawful. This submission was also rejected by the House of Lords. Lord
Griffiths held as follows (at pp. 699H-701A):
"It is a feature of the very limited power of arrest contained in section 14
that a member of the armed forces does not have to tell the arrested person the
offence of which he is suspected, for it is specifically provided by section
14(2) that it is sufficient if he states that he is effecting the arrest as a
member of Her Majesty's forces.
Corporal D. was carrying out this arrest in accordance with the procedures in
which she had been instructed to make a house arrest pursuant to section 14.
This procedure appears to me to be designed to make the arrest with the least
risk of injury to those involved including both the soldiers and the occupants
of the house. When arrests are made on suspicion of involvement with the IRA it
would be to close one's eyes to the obvious not to appreciate the risk that the
arrest may be forcibly resisted.
The drill the Army follow is to enter the house and search every room for
occupants. The occupants are all directed to assemble in one room, and when the
person the soldiers have come to arrest has been identified and is ready to
leave, the formal words of arrest are spoken just before they leave the house.
The Army do not carry out a search for property in the house and, in my view,
they would not be justified in doing so. The power of search is given 'for the
purpose of arresting a person', not for a search for incriminating evidence. It
is however a proper exercise of the power of search for the purpose of effecting
the arrest to search every room for other occupants of the house in case there
may be those there who are disposed to resist the arrest. The search cannot be
limited solely to looking for the person to be arrested and must also embrace a
search whose object is to secure that the arrest should be peaceable. I also
regard it as an entirely reasonable precaution that all the occupants of the
house should be asked to assemble in one room. As Corporal D. explained in
evidence, this procedure is followed because the soldiers may be distracted by
other occupants in the house rushing from one room to another, perhaps in a
state of alarm, perhaps for the purpose of raising the alarm and to resist the
arrest. In such circumstances a tragic shooting accident might all too easily
happen with young, and often relatively inexperienced, armed soldiers operating
under conditions of extreme tension. Your Lordships were told that the husband
and children either had commenced, or were contemplating commencing, actions for
false imprisonment arising out of the fact that they were asked to assemble in
the living-room for a short period before the plaintiff was taken from the
house. That very short period of restraint when they were asked to assemble in
the living room was a proper and necessary part of the procedure for effecting
the peaceable arrest of the plaintiff. It was a temporary restraint of very
short duration imposed not only for the benefit of those effecting the arrest,
but also for the protection of the occupants of the house and would be wholly
insufficient to found an action for unlawful imprisonment.
It was in my opinion entirely reasonable to delay speaking the words of arrest
until the party was about to leave the house. If words of arrest are spoken as
soon as the house is entered before any precautions have been taken to search
the house and find the other occupants, it seems to me that there is a real risk
that the alarm may be raised and an attempt made to resist arrest, not only by
those within the house but also by summoning assistance from those in the
immediate neighbourhood. When soldiers are employed on the difficult and
potentially dangerous task of carrying out a house arrest of a person suspected
of an offence in connection with the IRA, it is I think essential that they
should have been trained in the drill they are to follow. It would be
impracticable and I think potentially dangerous to leave it to the individual
discretion of the particular soldier making the arrest to devise his own
procedures for carrying out this unfamiliar military function. It is in
everyone's best interest that the arrest is peaceably effected and I am
satisfied that the procedures adopted by the Army are sensible, reasonable and
designed to bring about the arrest with the minimum of danger and distress to
all concerned. I would however add this rider: that if the suspect, for any
reason, refuses to accept the fact of restraint in the house he should be
informed forthwith that he is under arrest."
34. Before the House of Lords the first applicant also pursued a claim that her
period of detention exceeded what was reasonably required to make a decision
whether to release her or hand her over to the police. In this regard the
applicant complained that the standard record form (the "screening proforma")
constituted an improper basis for questioning a suspect on the ground that it
asked questions not directly relevant to the suspected offence; it was also
suggested that the evidence did not show that the questioning of the applicant
was directed to the matters of which she was suspected. The allegation was
unanimously rejected by the House of Lords. Lord Griffiths observed as follows
(at pp. 703F-704C):
"The member of the forces who carried out the interrogation between 8.20 and
9.35 a.m. was not called as a witness on behalf of the Ministry of Defence.
There may have been sound reasons for this decision associated with preserving
the confidentiality of interrogating techniques and the identity of the
interviewer, but be that as it may, the only evidence of what took place at the
interview came from Corporal D. and the [first applicant] and it is submitted
that this evidence is insufficient to establish that the interview was directed
towards an attempt to investigate the suspicion upon which the [applicant] was
arrested. Corporal D. was present at that interview, she was not paying close
attention but she gave evidence that she remembered questions about money which
were obviously directed towards the offences of which the [applicant] was
suspected. The [applicant] also said she was questioned about her brothers.
The judge also had before him a questionnaire that was completed by the
interviewer. ... There is nothing in the questionnaire which the Army may not
reasonably ask the suspect together with such particular questions as are
appropriate to the particular case ..."
The conclusion of the trial judge that the applicant had not been asked
unnecessary or unreasonable questions and the conclusion of the Court of Appeal
that the interviewer had attempted to pursue with the applicant the suspicion
which had been the occasion of the arrest, but had been unable to make any
headway, were held by the House of Lords to be justified on the evidence.
II. Relevant domestic law and practice
A. Introduction
35. For more than twenty years the population of Northern Ireland, which totals
about one and a half million people, has been subjected to a campaign of
terrorism. During that time thousands of persons in Northern Ireland have been
killed, maimed or injured. The campaign of terror has extended to the rest of
the United Kingdom and to the mainland of Europe.
The 1978 Act forms part of the special legislation enacted over the years in an
attempt to enable the security forces to deal effectively with the threat of
terrorist violence.
B. Entry and search; arrest and detention
36. The first applicant was arrested under section 14 of the 1978 Act, which at
the relevant time provided as follows:
"(1) A member of Her Majesty's forces on duty may arrest without warrant, and
detain for not more than four hours, a person whom he suspects of committing,
having committed or being about to commit any offence.
(2) A person effecting an arrest under this section complies with any rule of
law requiring him to state the ground of arrest if he states that he is
effecting the arrest as a member of Her Majesty's forces.
(3) For the purpose of arresting a person under this section a member of Her
Majesty's forces may enter and search any premises or other place -
(a) where that person is, or
(b) if that person is suspected of being a terrorist or of having committed an
offence involving the use or possession of an explosive, explosive substance or
firearm, where that person is suspected of being."
A similar provision had been in force since 1973 and had been considered
necessary to deal with terrorist activities in two independent reviews (Report
of the Diplock Commission 1972 which recommended such a power and a Committee
chaired by Lord Gardiner 1974/1975).
37. In 1983 Sir George Baker, a retired senior member of the judiciary, was
invited by the Government to review the operation of the 1978 Act in order to
determine whether its provisions struck the right balance between the need, on
the one hand, to maintain as fully as possible the liberties of the individual
and, on the other, to provide the security forces and the courts with adequate
powers to enable them to protect the public from current and foreseeable
incidence of terrorist crime. In the resultant report specific consideration was
given to, inter alia, including a requirement in section 14 of the 1978 Act that
an arrest should be based upon reasonable suspicion. While expressly recognising
the risk that the facts raising the suspicion might come from a confidential
source which could not be disclosed in court in a civil action for wrongful
arrest, Sir George Baker concluded that the inclusion of a requirement of
reasonableness would not in fact make any difference to the actions of the
military and recommended an amendment to the 1978 Act accordingly. That
recommendation was implemented in June 1987.
38. The scope and exercise of the section 14 powers were considered by the
domestic courts in the proceedings in the present case. The applicable law, as
stated by the judgments in these proceedings, is that when the legality of an
arrest or detention under section 14 is challenged (whether by way of habeas
corpus or in proceedings for damages for wrongful arrest or false imprisonment),
the burden lies on the military to justify their acts and, in particular, to
establish the following elements:
(a) compliance with the formal requirements for arrest;
(b) the genuineness of the suspicion on which the arrest was based;
(c) that the powers of arrest and detention were not used for any improper
purpose such as intelligence-gathering;
(d) that the power of search was used only to facilitate the arrest and not for
the obtaining of incriminating evidence;
(e) that those responsible for the arrest and detention did not exceed the time
reasonably required to reach a decision whether to release the detainee or hand
him over to the police.
C. Photograph
39. Section 11 of the 1978 Act, which concerns police arrest, provides in
paragraph 4:
"Where a person is arrested under this section, an officer of the Royal Ulster
Constabulary not below the rank of chief inspector may order him to be
photographed and to have his finger and palm prints taken by a constable, and a
constable may use such reasonable force as may be necessary for that purpose."
40. In the general law of Northern Ireland, as in English law, it is lawful to
take a photograph of a person without his or her consent, provided no force is
used and the photograph is not exploited in such a way as to defame the person
concerned (see paragraphs 26 and 30 in fine above).
The common-law rule entitling the Army to take a photograph equally provides the
legal basis for its retention.
D. Standard record form
41. As was confirmed in particular by the Court of Appeal and the House of Lords
in the present case, the standard record form (known as the "screening
proforma") was an integral part of the examination of the first applicant
following her arrest, and the legal authority for recording certain personal
details about her in the form derived from the lawfulness of her arrest,
detention and examination under section 14 of the 1978 Act (see paragraph 30,
first sub-paragraph in fine, and paragraph 34 above). The implied lawful
authority conferred by section 14 of the 1978 Act to record information about
the first applicant equally provided the legal basis for the retention of the
information.
PROCEEDINGS BEFORE THE COMMISSION
42. The applicants applied to the Commission on 28 September 1988 (application
no. 14310/88).
The first applicant complained that her arrest and detention for two hours for
questioning gave rise to a violation of Article 5 paras. 1 and 2 (art. 5-1, art.
5-2), for which she had no enforceable right to compensation as guaranteed by
Article 5 para. 5 (art. 5-5); and that the taking and keeping of a photograph
and personal details about her was in breach of her right to respect for private
life under Article 8 (art. 8).
The other five applicants alleged a violation of Article 5 paras. 1, 2 and 5
(art. 5-1, art. 5-2, art. 5-5) as a result of being required to assemble for
half an hour in one room of their house while the first applicant prepared to
leave with the Army. They further argued that the recording and retention of
certain personal details about them, such as their names and relationship to the
first applicant, violated their right to respect for private life under Article
8 (art. 8).
All six applicants claimed that the entry into and search of their home by the
Army were contrary to their right to respect for their private and family life
and their home under Article 8 (art. 8) of the Convention; and that, contrary to
Article 13 (art. 13), no effective remedies existed under domestic law in
respect of their foregoing complaints under the Convention.
The applicants also made complaints under Article 3 and Article 5 para. 3 (art.
3, art. 5-3), which they withdrew subsequently on 11 April 1990.
43. On 10 December 1991 the Commission declared admissible all the first
applicant's complaints and the other applicants' complaint under Article 8 (art.
8) in connection with the entry into and search of the family home. The
remainder of the application was declared inadmissible.
44. In its report of 17 February 1993 (Article 31) (art. 31) the Commission
expressed the opinion that
(a) in the case of the first applicant, there had been a violation of Article 5
para. 1 (art. 5-1) (eleven votes to three), Article 5 para. 2 (art. 5-2) (ten
votes to four) and Article 5 para. 5 (art. 5-5) (eleven votes to three);
(b) there had been no violation of Article 8 (art. 8) (thirteen votes to one);
(c) it was not necessary to examine further the first applicant's complaint
under Article 13 (art. 13) concerning remedies for arrest, detention and the
lack of information about the reasons for arrest;
(d) in the case of the first applicant, there had been no violation of Article
13 (art. 13) in relation to either the entry into and search of her home
(unanimously) or the taking and keeping of a photograph and personal details
about her (ten votes to four).
The full text of the Commission's opinion and of the three partly dissenting
opinions contained in the report is reproduced as an annex to this judgment*.
_______________ * Note by the Registrar. For practical reasons this annex will
appear only with the printed version of the judgment (volume 300-A of Series A
of the Publications of the Court), but a copy of the Commission's report is
obtainable from the registry. _______________
FINAL SUBMISSIONS TO THE COURT
45. At the public hearing on 24 January 1994 the Government maintained in
substance the concluding submission set out in their memorial, whereby they
invited the Court to hold
"(1) that there has been no violation of Article 5 paras. 1, 2 or 5 (art. 5-1,
art. 5-2, art. 5-5) of the Convention in the case of the [first] applicant;
(2) that there has been no violation of Article 8 (art. 8) of the Convention in
the case of the [first] applicant or in the cases of the other applicants;
(3) that there has been no violation of Article 13 (art. 13) of the Convention
in relation to the [first] applicant's complaints concerning entry and search of
her home and concerning the taking and retention of a photograph and personal
details;
(4) that there has been no violation of Article 13 (art. 13) of the Convention
in relation to the [first] applicant's complaints concerning her arrest;
alternatively, if a violation of Article 5 para. 5 (art. 5-5) is found, that no
separate issue arises under Article 13 (art. 13) of the Convention".
46. On the same occasion the applicants likewise maintained in substance the
conclusions and requests formulated at the close of their memorial, whereby they
requested the Court
"to decide and declare:
(1) that the facts disclose breaches of paragraphs 1, 2 and 5 of Article 5 (art.
5-1, art. 5-2, art. 5-5) of the Convention;
(2) that the facts disclose a breach of Article 8 (art. 8) of the Convention;
(3) that the facts disclose a breach of Article 13 (art. 13) of the Convention".
AS TO THE LAW
I. GENERAL APPROACH
47. The applicants' complaints concern the first applicant's arrest and
detention by the Army under special criminal legislation enacted to deal with
acts of terrorism connected with the affairs of Northern Ireland. As has been
noted in several previous judgments by the Court, the campaign of terrorism
waged in Northern Ireland over the last quarter of a century has taken a
terrible toll, especially in terms of human life and suffering (see paragraph 35
above).
The Court sees no reason to depart from the general approach it has adopted in
previous cases of a similar nature. Accordingly, for the purposes of
interpreting and applying the relevant provisions of the Convention, due account
will be taken of the special nature of terrorist crime, the threat it poses to
democratic society and the exigencies of dealing with it (see, inter alia, the
Fox, Campbell and Hartley v. the United Kingdom judgment of 30 August 1990,
Series A no. 182, p. 15, para. 28, citing the Brogan and Others v. the United
Kingdom judgment of 29 November 1988, Series A no. 145-B, p. 27, para. 48).
II. ALLEGED VIOLATION OF ARTICLE 5 PARA. 1 (art. 5-1) OF THE CONVENTION
48. The first applicant, Mrs Margaret Murray, alleged that her arrest and
detention by the Army were in breach of Article 5 para. 1 (art. 5-1) of the
Convention, which, in so far as relevant, provides:
"Everyone has the right to liberty and security of person. No one shall be
deprived of his liberty save in the following cases and in accordance with a
procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the purpose of
bringing him before the competent legal authority on reasonable suspicion of
having committed an offence ...
..."
A. Lawfulness
49. Before the Convention institutions the first applicant did not dispute that
her arrest and detention were "lawful" under Northern Ireland law and, in
particular, "in accordance with a procedure prescribed by law", as required by
Article 5 para. 1 (art. 5-1). She submitted that she had not been arrested on
"reasonable suspicion" of having committed a criminal offence and that the
purpose of her arrest and subsequent detention had not been to bring her before
a competent legal authority within the meaning of paragraph 1 (c) (art. 5-1-c).
B. "Reasonable suspicion"
50. Mrs Murray was arrested and detained by virtue of section 14 of the 1978 Act
(see paragraphs 11 and 12 above). This provision, as construed by the domestic
courts, empowered the Army to arrest and detain persons suspected of the
commission of an offence provided, inter alia, that the suspicion of the
arresting officer was honestly and genuinely held (see paragraphs 36 and 38(b)
above). It is relevant but not decisive that the domestic legislation at the
time merely imposed this essentially subjective standard: the Court's task is to
determine whether the objective standard of "reasonable suspicion" laid down in
Article 5 para. 1 (art. 5-1) was met in the circumstances of the application of
the legislation in the particular case.
51. In its judgment in the above-mentioned case of Fox, Campbell and Hartley,
which was concerned with arrests carried out by the Northern Ireland police
under a similarly worded provision of the 1978 Act, the Court stated as follows
(pp. 16-18, paras. 32 and 34):
"The 'reasonableness' of the suspicion on which an arrest must be based forms an
essential part of the safeguard against arbitrary arrest and detention which is
laid down in Article 5 para. 1 (c) (art. 5-1-c). ... [H]aving a "reasonable
suspicion" presupposes the existence of facts or information which would satisfy
an objective observer that the person concerned may have committed the offence.
What may be regarded as 'reasonable' will however depend upon all the
circumstances.
In this respect, terrorist crime falls into a special category. Because of the
attendant risk of loss of life and human suffering, the police are obliged to
act with utmost urgency in following up all information, including information
from secret sources. Further, the police may frequently have to arrest a
suspected terrorist on the basis of information which is reliable but which
cannot, without putting in jeopardy the source of the information, be revealed
to the suspect or produced in court to support a charge.
... [I]n view of the difficulties inherent in the investigation and prosecution
of terrorist-type offences in Northern Ireland, the 'reasonableness' of the
suspicion justifying such arrests cannot always be judged according to the same
standards as are applied in dealing with conventional crime. Nevertheless, the
exigencies of dealing with terrorist crime cannot justify stretching the notion
of 'reasonableness' to the point where the essence of the safeguard secured by
Article 5 para. 1 (c) (art. 5-1-c) is impaired ...
...
Certainly Article 5 para. 1 (c) (art. 5-1-c) of the Convention should not be
applied in such a manner as to put disproportionate difficulties in the way of
the police authorities of the Contracting States in taking effective measures to
counter organised terrorism ... . It follows that the Contracting States cannot
be asked to establish the reasonableness of the suspicion grounding the arrest
of a suspected terrorist by disclosing the confidential sources of supporting
information or even facts which would be susceptible of indicating such sources
or their identity.
Nevertheless the Court must be enabled to ascertain whether the essence of the
safeguard afforded by Article 5 para. 1 (c) (art. 5-1-c) has been secured.
Consequently, the respondent Government have to furnish at least some facts or
information capable of satisfying the Court that the arrested person was
reasonably suspected of having committed the alleged offence. This is all the
more necessary where, as in the present case, the domestic law does not require
reasonable suspicion, but sets a lower threshold by merely requiring honest
suspicion."
On the facts the Court found in that case that, although the arrest and
detention of the three applicants, which lasted respectively forty-four hours,
forty-four hours and five minutes and thirty hours and fifteen minutes, were
based on an honest suspicion, insufficient elements had been furnished by the
Government to support the conclusion that there had been a "reasonable
suspicion" for the purposes of sub-paragraph (c) of Article 5 para. 1 (art.
5-1-c) (ibid., p. 18, para. 35).
52. In the present case the Government maintained that there existed strong and
specific grounds, founded on information from a reliable but secret source, for
the Army to suspect that Mrs Murray was involved in the collection of funds for
terrorist purposes. However, the "primary" information so provided could not be
revealed in the interests of protecting lives and personal safety. In the
Government's submission, the fact that they had maintained that this was the
foundation of the suspicion should be given considerable weight by the Court.
They also pointed to a number of other facts capable of supporting, albeit
indirectly, the reasonableness of the suspicion, including notably the findings
made by the domestic courts in the proceedings brought by Mrs Murray, the very
recent conviction of her brothers in the USA of offences connected with the
purchase of weapons for the Provisional IRA, her own visits to the USA and her
contacts with her brothers there (see especially paragraphs 10, 19, 24, 25, 28
and 29 above). They submitted that all these matters taken together provided
sufficient facts and information to satisfy an objective observer that there was
a reasonable suspicion in the circumstances of the case. Any other conclusion by
the Court would, they feared, prohibit arresting authorities from effecting an
arrest of a person suspected of being a terrorist based primarily on reliable
but secret information and would inhibit the arresting authorities in taking
effective measures to counter organised terrorism.
53. The first applicant, on the other hand, considered that the Government had
failed to discharge the onus of disclosing sufficient facts to enable the
Convention institutions to conclude that the suspicion grounding her arrest was
reasonable or anything more than the "honest" suspicion required under Northern
Ireland law. As in the case of Fox, Campbell and Hartley, the Government's
explanation did not meet the minimum standards set by Article 5 para. 1 (c)
(art. 5-1-c) for judging the reasonableness of her arrest and detention. She did
not accept that the reason advanced for non-disclosure was a genuine or valid
one. She in her turn pointed to circumstances said to cast doubt on the
reasonableness of the suspicion. Thus, had the suspicion really been reasonable,
she would not have been arrested under the four-hour power granted by section 14
of the 1978 Act but under more extensive powers; she would have been questioned
by the police, not the Army; time would not have been spent in gathering
personal details and in photographing her; she would have been questioned for
more than one hour and fifteen minutes; she would have been questioned about her
own alleged involvement and not just about her brothers in the USA; and she
would have been cautioned. In reply to the Government the first applicant
contended that the issue which the domestic courts inquired into was not the
objective reasonableness of any suspicion but the subjective state of mind of
the arresting officer, Corporal D.
54. For the Commission, the Government's explanation in the present case was not
materially distinguishable from that provided in the case of Fox, Campbell and
Hartley. It took the view that no objective evidence to corroborate the
unrevealed information had been adduced in support of the suspicion that the
first applicant had been involved in collecting money for Provisional IRA arms
purchases other than her kinship with her convicted brothers. That, the
Commission concluded, was insufficient to satisfy the minimum standard set by
Article 5 para. 1 (c) (art. 5-1-c).
55. With regard to the level of "suspicion", the Court would note firstly that,
as was observed in its judgment in the case of Brogan and Others, "sub-paragraph
(c) of Article 5 para. 1 (art. 5-1-c) does not presuppose that the
[investigating authorities] should have obtained sufficient evidence to bring
charges, either at the point of arrest or while [the arrested person is] in
custody. Such evidence may have been unobtainable or, in view of the nature of
the suspected offences, impossible to produce in court without endangering the
lives of others" (loc. cit., p. 29, para. 53). The object of questioning during
detention under sub-paragraph (c) of Article 5 para. 1 (art. 5-1-c) is to
further the criminal investigation by way of confirming or dispelling the
concrete suspicion grounding the arrest. Thus, facts which raise a suspicion
need not be of the same level as those necessary to justify a conviction or even
the bringing of a charge, which comes at the next stage of the process of
criminal investigation.
56. The length of the deprivation of liberty at risk may also be material to the
level of suspicion required. The period of detention permitted under the
provision by virtue of which Mrs Murray was arrested, namely section 14 of the
1978 Act, was limited to a maximum of four hours.
57. With particular regard to the "reasonableness" of the suspicion, the
principles stated in the Fox, Campbell and Hartley judgment are to be applied in
the present case, although as pointed out in that judgment, the existence or not
of a reasonable suspicion in a concrete instance depends ultimately on the
particular facts.
58. The Court would firstly reiterate its recognition that the use of
confidential information is essential in combating terrorist violence and the
threat that organised terrorism poses to the lives of citizens and to democratic
society as a whole (see also the Klass and Others v. Germany judgment of 6
September 1978, Series A no. 28, p. 23, para. 48). This does not mean, however,
that the investigating authorities have carte blanche under Article 5 (art. 5)
to arrest suspects for questioning, free from effective control by the domestic
courts or by the Convention supervisory institutions, whenever they choose to
assert that terrorism is involved (ibid., p. 23, para. 49).
59. As to the present case, the terrorist campaign in Northern Ireland, the
carnage it has caused over the years and the active engagement of the
Provisional IRA in that campaign are established beyond doubt. The Court also
accepts that the power of arrest granted to the Army by section 14 of the 1978
Act represented a bona fide attempt by a democratically elected parliament to
deal with terrorist crime under the rule of law. That finding is not altered by
the fact that the terms of the applicable legislation were amended in 1987 as a
result of the Baker Report so as to include a requirement that the arrest should
be based on reasonable, rather than merely honest, suspicion (see paragraph 37
above).
The Court is accordingly prepared to attach some credence to the respondent
Government's declaration concerning the existence of reliable but confidential
information grounding the suspicion against Mrs Murray.
60. Nevertheless, in the words of the Fox, Campbell and Hartley judgment, the
respondent Government must in addition "furnish at least some facts or
information capable of satisfying the Court that the arrested person was
reasonably suspected of having committed the alleged offence" (see paragraph 51
above). In this connection, unlike in the case of Fox, Campbell and Hartley, the
Convention institutions have had the benefit of the review that the national
courts conducted of the facts and of Mrs Murray's allegations in the civil
proceedings brought by her.
61. It cannot be excluded that all or some of the evidence adduced before the
national courts in relation to the genuineness of the suspicion on the basis of
which Mrs Murray was arrested may also be material to the issue whether the
suspicion was "reasonable" for the purposes of Article 5 para. 1 (c) (art.
5-1-c) of the Convention. At the very least the honesty and bona fides of a
suspicion constitute one indispensable element of its reasonableness.
In the action brought by Mrs Murray against the Ministry of Defence for false
imprisonment and other torts, the High Court judge, after having heard the
witnesses and assessed their credibility, found that she had genuinely been
suspected of having been involved in the collection of funds for the purchase of
arms in the USA for the Provisional IRA (see paragraph 24 above). The judge
believed the evidence of the arresting officer, Corporal D, who was described as
a "transparently honest witness", as to what she had been told at her briefing
before the arrest (see paragraphs 11 and 24 above). Likewise as found by the
judge, although the interview at the Army centre was later in time than the
arrest, the line of questioning pursued by the interviewer also tends to support
the conclusion that Mrs Murray herself was suspected of the commission of a
specific criminal offence (see paragraphs 14 and 25 above).
62. Some weeks before her arrest two of Mrs Murray's brothers had been convicted
in the USA of offences connected with purchase of arms for the Provisional IRA
(see paragraph 10 above). As she disclosed in her evidence to the High Court,
she had visited the USA and had contacts with her brothers there (see paragraph
19 above). The offences of which her brothers were convicted were ones that
implied collaboration with "trustworthy" persons residing in Northern Ireland.
63. Having regard to the level of factual justification required at the stage of
suspicion and to the special exigencies of investigating terrorist crime, the
Court finds, in the light of all the above considerations, that there did exist
sufficient facts or information which would provide a plausible and objective
basis for a suspicion that Mrs Murray may have committed the offence of
involvement in the collection of funds for the Provisional IRA. On the
particular facts of the present case, therefore, the Court is satisfied that,
notwithstanding the lower standard of suspicion under domestic law, Mrs Murray
can be said to have been arrested and detained on "reasonable suspicion" of the
commission of a criminal offence, within the meaning of sub-paragraph (c) of
Article 5 para. 1 (art. 5-1-c).
C. Purpose of the arrest
64. In the first applicant's submission, it was clear from the surrounding
circumstances that she was not arrested for the purpose of bringing her before a
"competent legal authority" but merely for the purpose of interrogating her with
a view to gathering general intelligence. She referred to the entries made in
her regard on the standard record form completed at the Army centre (see
paragraph 15 above), to the failure of the Army to involve the police in her
questioning and to the short (one-hour) period of her questioning (see paragraph
14 above).
The Government disputed this contention, pointing to the fact that it was a
claim expressly raised by Mrs Murray in the domestic proceedings and rejected by
the trial judge on the basis of evidence which had been tested by
cross-examination of witnesses.
The Commission in its report did not find it necessary to examine this complaint
in view of its conclusion as to the lack of "reasonable suspicion" for the
arrest and detention.
65. Under the applicable law of Northern Ireland the power of arrest and
detention granted to the Army under section 14 of the 1978 Act may not be used
for any improper purpose such as intelligence-gathering (see paragraph 38(c)
above). In the civil action brought by Mrs Murray against the Ministry of
Defence the trial court judge found that on the evidence before him the purpose
of her arrest and detention under section 14 of the 1978 Act had been to
establish facts concerning the offence of which she was suspected (see paragraph
25 above). In reaching this conclusion the trial judge had had the benefit of
seeing the various witnesses give their evidence and of evaluating their
credibility. He accepted the evidence of Corporal D. and Sergeant B. as being
truthful and rejected the claims of Mrs Murray, in particular her contention
that she had been told by Sergeant B. that she was not suspected of any offence
and had been arrested merely in order to bring her file up to date (see
paragraphs 19, 20 to 22, 24 and 25 above). The Court of Appeal, after reviewing
the evidence, in turn rejected her argument that the purpose of her arrest and
detention had been a "fishing expedition" designed to obtain low-grade
intelligence (see paragraph 29 above). This argument was not pursued before the
House of Lords (see paragraph 32 above).
66. The Court's task is to determine whether the conditions laid down by
paragraph (c) of Article 5 para. 1 (art. 5-1-c), including the pursuit of the
prescribed legitimate purpose, have been fulfilled in the circumstances of the
particular case. However, in this context it is not normally within the province
of the Court to substitute its own finding of fact for that of the domestic
courts, which are better placed to assess the evidence adduced before them (see,
among other authorities, the X v. the United Kingdom judgment of 5 November
1981, Series A no. 46, pp. 19-20, para. 43, in relation to Article 5 para. 1 (e)
(art. 5-1-e); and the Klaas v. Germany judgment of 22 September 1993, Series A
no. 269, p. 17, para. 29, in relation to Article 3 (art. 3)). In the present
case no cogent elements have been produced by the first applicant in the
proceedings before the Convention institutions which could lead the Court to
depart from the findings of fact made by the Northern Ireland courts.
67. Mrs Murray was neither charged nor brought before a court but was released
after an interview lasting a little longer than one hour (see paragraph 14
above). This does not necessarily mean, however, that the purpose of her arrest
and detention was not in accordance with Article 5 para. 1 (c) (art. 5-1-c)
since "the existence of such a purpose must be considered independently of its
achievement" (see the above-mentioned Brogan and Others judgment, pp. 29-30,
para. 53). As the domestic courts pointed out (see paragraphs 25 in fine, 29 in
fine and 34 in fine above), in view of her persistent refusal to answer any
questions at the Army centre (see paragraphs 13, 14 and 19 above) it is not
surprising that the authorities were not able to make any headway in pursuing
the suspicions against her. It can be assumed that, had these suspicions been
confirmed, charges would have been laid and she would have been brought before
the competent legal authority.
68. The first applicant also alleged absence of the required proper purpose by
reason of the fact that in practice persons arrested by the Army under section
14 were never brought before a competent legal authority by the Army but, if the
suspicions were confirmed during questioning, were handed over to the police who
preferred charges and took the necessary action to bring the person before a
court.
The Court sees little merit in this argument. What counts for the purpose of
compliance with Convention obligations is the substance rather than the form.
Provided that the purpose of the arrest and detention is genuinely to bring the
person before the competent legal authority, the mechanics of how this is to be
achieved will not be decisive.
69. The arrest and detention of the first applicant must therefore be taken to
have been effected for the purpose specified in paragraph 1 (c) (art. 5-1-c).
D. Conclusion
70. In conclusion, there has been no violation of Article 5 para. 1 (art. 5-1)
in respect of the first applicant.
III. ALLEGED VIOLATION OF ARTICLE 5 PARA. 2 (art. 5-2) OF THE CONVENTION
71. The first applicant also alleged a violation of Article 5 para. 2 (art. 5-2)
of the Convention, which provides:
"Everyone who is arrested shall be informed promptly, in a language which he
understands, of the reasons for his arrest and of any charge against him."
72. The relevant principles governing the interpretation and application of
Article 5 para. 2 (art. 5-2) in cases such as the present one were explained by
the Court in its Fox, Campbell and Hartley judgment as follows (loc. cit., p.
19, para. 40):
"Paragraph 2 of Article 5 (art. 5-2) contains the elementary safeguard that any
person arrested should know why he is being deprived of his liberty. This
provision is an integral part of the scheme of protection afforded by Article 5
(art. 5): by virtue of paragraph 2 (art. 5-2) any person arrested must be told,
in simple, non-technical language that he can understand, the essential legal
and factual grounds for his arrest, so as to be able, if he sees fit, to apply
to a court to challenge its lawfulness in accordance with paragraph 4 (art.
5-4)... . Whilst this information must be conveyed 'promptly' (in French: 'dans
le plus court délai'), it need not be related in its entirety by the arresting
officer at the very moment of the arrest. Whether the content and promptness of
the information conveyed were sufficient is to be assessed in each case
according to its special features."
In that case the Court found on the facts that the reasons for the applicants'
arrest had been brought to their attention during their interrogation within a
few hours of their arrest. This being so, the requirements of Article 5 para. 2
(art. 5-2) were held to have been satisfied in the circumstances (ibid., pp.
19-20, paras. 41-43).
73. The first applicant maintained that at no time during her arrest or
detention had she been given any or sufficient information as to the grounds of
her arrest. Although she had realised that the Army was interested in her
brothers' activities, she had not, she claimed, understood from the interview at
the Army centre that she herself was suspected of involvement in fund-raising
for the Provisional IRA. The only direct information she was given was the
formal formula of arrest pronounced by Corporal D.
74. The Commission similarly took the view that it was impossible to draw any
conclusions from what it described as the vague indications given by Corporal D.
in evidence before the High Court as to whether the first applicant had been
able to understand from the interview why she had been arrested. In the
Commission's opinion, it had not been shown that the questions asked of Mrs
Murray during her interview were sufficiently precise to constitute the
information as to the reasons for arrest required by Article 5 para. 2 (art.
5-2).
75. According to the Government, on the other hand, it was apparent from the
trial evidence that in the interview it was made clear to Mrs Murray that she
was suspected of the offence of collecting money for the Provisional IRA. The
Government did not accept the Commission's conclusion on the facts, which was at
variance with the findings of the domestic courts. They considered it
established that Mrs Murray had been given sufficient information as to the
grounds of her arrest. In the alternative, even if insufficient information had
been given to her to avail herself of her right under Article 5 para. 4 (art.
5-4) of the Convention to take legal proceedings to test the lawfulness of her
detention, she had suffered no prejudice thereby which would give rise to a
breach of Article 5 para. 2 (art. 5-2) since she had been released rapidly,
before any determination of the lawfulness of her detention could have taken
place.
76. It is common ground that, apart from repeating the formal words of arrest
required by law, the arresting officer, Corporal D., also told Mrs Murray the
section of the 1978 Act under which the arrest was being carried out (see
paragraphs 12 and 36 above). This bare indication of the legal basis for the
arrest, taken on its own, is insufficient for the purposes of Article 5 para. 2
(art. 5-2) (see the above-mentioned Fox, Campbell and Hartley judgment, p. 19,
para. 41).
77. During the trial of Mrs Murray's action against the Ministry of Defence,
evidence as to the interview at the Army centre was given by Mrs Murray and
Corporal D., but not by the soldier who had conducted the interview (see
paragraphs 14, 19 and 21 above). Mrs Murray testified that she had been
questioned about her brothers in the USA and about her contacts with them but
not about the purchase of arms for the Provisional IRA or about any offence (see
paragraph 19 above). Corporal D. did not have a precise recollection as to the
content of the questions put to Mrs Murray. This is not perhaps surprising since
the trial took place over three years after the events - Mrs Murray having
waited eighteen months before bringing her action - and Corporal D., although
present, had not taken an active part in the interview (see paragraphs 14, 16,
17 and 21 above). Corporal D. did however remember that questions had been asked
about money and about America and the trial judge found her to be a
"transparently honest witness" (see paragraphs 21 and 24 above). Shortly before
the arrest two of Mrs Murray's brothers had, presumably to the knowledge of all
concerned in the interview, been convicted in the USA of offences connected with
the purchase of weapons for the Provisional IRA (see paragraph 10 above).
In the Court's view, it must have been apparent to Mrs Murray that she was being
questioned about her possible involvement in the collection of funds for the
purchase of arms for the Provisional IRA by her brothers in the USA. Admittedly,
"there was never any probing examination of her collecting money" - to use the
words of the trial judge - but, as the national courts noted, this was because
of Mrs Murray's declining to answer any questions at all beyond giving her name
(see paragraphs 14, 23, 25, 29 and 34 in fine above). The Court therefore finds
that the reasons for her arrest were sufficiently brought to her attention
during her interview.
78. Mrs Murray was arrested at her home at 7 a.m. and interviewed at the Army
centre between 8.20 a.m. and 9.35 a.m. on the same day (see paragraphs 12 and 14
above). In the context of the present case this interval cannot be regarded as
falling outside the constraints of time imposed by the notion of promptness in
Article 5 para. 2 (art. 5-2).
79. In view of the foregoing findings it is not necessary for the Court to
examine the Government's alternative submission.
80. In conclusion, there was no breach of Article 5 para. 2 (art. 5-2) in
respect of the first applicant.
IV. ALLEGED VIOLATION OF ARTICLE 5 PARA. 5 (art. 5-5) OF THE CONVENTION
81. The first applicant finally alleged in relation to Article 5 a violation of
paragraph 5 (art. 5-5) of the Convention, which reads:
"Everyone who has been the victim of arrest or detention in contravention of the
provisions of this Article shall have an enforceable right to compensation."
This claim was accepted by the Commission but disputed by the Government. The
Commission concluded that there was no enforceable right under Northern Ireland
law for the breaches of Article 5 paras. 1 and 2 (art. 5-1, art. 5-2) which it
considered to have occurred.
82. As the Court has found no violation of Article 5 paras. 1 or 2 (art. 5-1,
art. 5-2), no issue arises under Article 5 para. 5 (art. 5-5). There has
accordingly been no violation of this latter provision in the present case.
V. ALLEGED VIOLATION OF ARTICLE 8 (art. 8) OF THE CONVENTION
83. All six applicants claimed to be the victims of a violation of Article 8
(art. 8) of the Convention, which provides:
"1. Everyone has the right to respect for his private and family life, his home
and his correspondence.
2. There shall be no interference by a public authority with the exercise of
this right except such as is in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety or the
economic well-being of the country, for the prevention of disorder or crime, for
the protection of health or morals, or for the protection of the rights and
freedoms of others."
A. Arguments before the Court
84. The first applicant complained of the manner in which she was treated both
in her home and at the Army centre; in the latter connection she objected to the
recording of personal details concerning herself and her family, as well as the
photograph which was taken of her without her knowledge or consent (see
paragraphs 12 to 15 above). All six applicants contended that the entry into and
search of their family home by the Army, including the confinement of the
second, third, fourth, fifth and sixth applicants for a short while in one room,
violated Article 8 (art. 8) (see paragraph 12 above).
85. Both the Government and the Commission considered that the matters
complained of were justified under paragraph 2 of Article 8 (art. 8-2) as being
lawful measures necessary in a democratic society for the prevention of crime in
the context of the fight against terrorism in Northern Ireland.
B. Interference
86. It was not contested that the impugned measures interfered with the
applicants' exercise of their right to respect for their private and family life
and their home.
C. "In accordance with the law"
87. On the other hand, the applicants did not concede that the resultant
interferences had been "in accordance with the law". They disputed that the
impugned measures all formed an integral part of Mrs Murray's arrest and
detention or that the domestic courts had affirmed their lawfulness, in
particular as concerns the retention of the records including the photograph of
Mrs Murray.
88. Entry into and search of a home by Army personnel such as occurred in the
present case were explicitly permitted by section 14 (3) of the 1978 Act for the
purpose of effecting arrests under that section (see paragraphs 36 and 38(d)
above). The Court of Appeal upheld the legality of the search in the present
case (see paragraph 30 above). The short period of restraint endured by the
other members of Mrs Murray's family when they were asked to assemble in one
room was held by the House of Lords to be a necessary and proper part of the
procedure of arrest of Mrs Murray (see paragraph 33 above). The Court of Appeal
and the House of Lords also confirmed that the Army's implied lawful authority
under section 14 extended to interrogating a detained person and to recording
personal details of the kind contained in the standard record form (see
paragraph 41 above and also paragraphs 15, 30 and 34). It is implicit in the
judgments of the national courts that the retention of such details was covered
by the same lawful authority derived from section 14 (see paragraph 41 in fine
above). The taking and, by implication, also the retention of a photograph of
the first applicant without her consent had no statutory basis but, as explained
by the trial court judge and the Court of Appeal, were lawful under the common
law (see paragraphs 26, 30, 39 and 40 above).
The impugned measures thus had a basis in domestic law. The Court discerns no
reason, on the material before it, for not concluding that each of the various
measures was "in accordance with the law", within the meaning of Article 8 para.
2 (art. 8-2).
D. Legitimate aim
89. These measures undoubtedly pursued the legitimate aim of the prevention of
crime.
E. Necessity in a democratic society
90. It remains to be determined whether they were necessary in a democratic
society and, in particular, whether the means employed were proportionate to the
legitimate aim pursued. In this connection it is not for the Court to substitute
for the assessment of the national authorities its own assessment of what might
be the best policy in the field of investigation of terrorist crime (see the
above-mentioned Klass and Others judgment, p. 23, para. 49). A certain margin of
appreciation in deciding what measures to take both in general and in particular
cases should be left to the national authorities.
91. The present judgment has already adverted to the responsibility of an
elected government in a democratic society to protect its citizens and its
institutions against the threats posed by organised terrorism and to the special
problems involved in the arrest and detention of persons suspected of
terrorist-linked offences (see paragraphs 47, 51 and 58 above). These two
factors affect the fair balance that is to be struck between the exercise by the
individual of the right guaranteed to him or her under paragraph 1 of Article 8
(art. 8-1) and the necessity under paragraph 2 (art. 8-2) for the State to take
effective measures for the prevention of terrorist crimes (see, mutatis
mutandis, the above-mentioned Klass and Others judgment, p. 28, para. 59).
92. The domestic courts held that Mrs Murray was genuinely and honestly
suspected of the commission of a terrorist-linked crime (see paragraphs 24 and
28 above). The European Court, for its part, has found on the evidence before it
that this suspicion could be regarded as reasonable for the purposes of
sub-paragraph (c) Article 5 para. 1 (art. 5-1-c) (see paragraph 63 above). The
Court accepts that there was in principle a need both for powers of the kind
granted by section 14 of the 1978 Act and, in the particular case, to enter and
search the home of the Murray family in order to arrest Mrs Murray.
Furthermore, the "conditions of extreme tension", as Lord Griffiths put it in
his speech in the House of Lords, under which such arrests in Northern Ireland
have to be carried out must be recognised. The Court notes the analysis of Lord
Griffiths, when he said (see paragraph 33 above):
"The search cannot be limited solely to looking for the person to be arrested
and must also embrace a search whose object is to secure that the arrest should
be peaceable. I ... regard it as an entirely reasonable precaution that all the
occupants of the house should be asked to assemble in one room. ... It is in
everyone's best interest that the arrest is peaceably effected and I am
satisfied that the procedures adopted by the Army are sensible, reasonable and
designed to bring about the arrest with the minimum of danger and distress to
all concerned."
These are legitimate considerations which go to explain and justify the manner
in which the entry into and search of the applicants' home were carried out. The
Court does not find that, in relation to any of the applicants, the means
employed by the authorities in this regard were disproportionate to the aim
pursued.
93. Neither can it be regarded as falling outside the legitimate bounds of the
process of investigation of terrorist crime for the competent authorities to
record and retain basic personal details concerning the arrested person or even
other persons present at the time and place of arrest. None of the personal
details taken during the search of the family home or during Mrs Murray's stay
at the Army centre would appear to have been irrelevant to the procedures of
arrest and interrogation (see paragraphs 12 to 15 above). Similar conclusions
apply to the taking and retention of a photograph of Mrs Murray at the Army
centre (see paragraphs 13 and 14 above). In this connection too, the Court does
not find that the means employed were disproportionate to the aim pursued.
94. In the light of the particular facts of the case, the Court finds that the
various measures complained of can be regarded as having been necessary in a
democratic society for the prevention of crime, within the meaning of Article 8
para. 2 (art. 8-2).
F. Conclusion
95. In conclusion there has been no violation of Article 8 (art. 8) in respect
of any of the applicants.
VI. ALLEGED VIOLATION OF ARTICLE 13 (art. 13) OF THE CONVENTION
96. The first applicant submitted that, contrary to Article 13 (art. 13) of the
Convention, she had no effective remedy under domestic law in respect of her
claims under Articles 5 and 8 (art. 5, art. 8). Article 13 (art. 13) reads 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."
A. Claims as to arrest, detention and lack of information about reasons for
arrest (Article 5 paras. 1 and 2) (art. 5-1, art. 5-2)
97. The Commission did not consider it necessary to examine the complaint under
this head on the ground that no separate issue arose under Article 13 (art. 13)
in view of its conclusion that Article 5 para. 5 (art. 5-5) had been violated.
The Government submitted that, if a breach of Article 5 para. 5 (art. 5-5) were
found, the Commission's approach was correct but that, if not, the requirements
of Article 13 (art. 13) had been satisfied.
98. Under the Convention scheme of protection of the right to liberty and
security of person, the lex specialis as regards entitlement to a remedy is
paragraph 4 of Article 5 (art. 5-4) (see the Brannigan and McBride v. the United
Kingdom judgment of 26 May 1993, Series A no. 258-B, p. 57, para. 76), which
provides:
"Everyone who is deprived of his liberty by arrest or detention shall be
entitled to take proceedings by which the lawfulness of his detention shall be
decided speedily by a court and his release ordered if the detention is not
lawful."
The scope of this specific entitlement in relation to arrest and detention under
the emergency legislation in Northern Ireland has been considered by the Court,
notably in the Brogan and Others and Fox, Campbell and Hartley judgments (loc.
cit., pp. 34-35, para. 65, and pp. 20-21, para. 45, respectively).
No complaint however was made by the first applicant under Article 5 para. 4
(art. 5-4) at any stage of the proceedings before the Convention institutions.
The Court sees no cause, either on the facts or in law, to examine whether the
less strict requirements of Article 13 (art. 13) were complied with in the
present case.
B. Claims as to entry and search (Article 8) (art. 8)
99. The first applicant argued that effective remedies for her claims under
Article 8 (art. 8) regarding the Army's actions in entering and searching her
house were lacking since such domestic proceedings as might have been taken in
relation to entry and search would have failed because domestic law provided
lawful excuse for those actions.
The Commission expressed the opinion that an appropriate remedy did exist under
domestic law, notably in the form of an action for the tort of unlawful trespass
to property.
The Government accepted and adopted the Commission's reasoning.
100. The Court likewise arrives at the same conclusion as the Commission.
Article 13 (art. 13) guarantees the availability of a remedy at national level
to enforce the substance of the Convention rights in whatever form they may
happen to be secured in the domestic legal order. Its effect is thus to require
the provision of a domestic remedy allowing the competent "national authority"
both to deal with the substance of the relevant Convention complaint and to
grant appropriate relief in meritorious cases (see, inter alia, the Vilvarajah
and Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215,
p. 39, para. 122, and the authorities cited there). The remedy available to Mrs
Murray would have satisfied these conditions. As the Commission pointed out, her
feeble prospects of success in the light of the particular circumstances of her
case do not detract from the "effectiveness" of the remedy for the purpose of
Article 13 (art. 13) (ibid.).
C. Claims as to the taking and retention of a photograph and personal details
(Article 8) (art. 8)
101. As to her claims under Article 8 (art. 8) regarding the taking and
retention of a photograph and personal details, the first applicant agreed with
the separate opinion of Sir Basil Hall, who took the view that since Northern
Ireland law offered no protection for an individual in her position, there being
no general right to privacy recognised under that law, Article 13 (art. 13) had
been violated.
The Commission, citing the Court's case-law (see the James and Others v. the
United Kingdom judgment of 21 February 1986, Series A no. 98, pp. 47-48, paras.
85-86), concluded that in so far as the first applicant's complaint was directed
against the content of Northern Ireland law, Article 13 (art. 13) did not confer
any entitlement to a remedy; and that, if she could be taken to be objecting to
the manner in which that law had been applied in her case, she could have
brought an action before the Northern Ireland courts.
The Government accepted and adopted the Commission's reasoning.
102. On this point too the Court comes to the same conclusion as the Commission.
Whether the relevant domestic law as applied to Mrs Murray ensured her a
sufficient level of protection of her right to respect for her private life is a
substantive issue under Article 8 (art. 8). The matters complained of by Mrs
Murray under Article 8 (art. 8) in this connection have already been found in
the present judgment to have been compatible with the requirements of Article 8
(art. 8) (see paragraphs 83 to 95 above). Article 13 (art. 13) for its part does
not go so far as to guarantee Mrs Murray a remedy allowing her to have
challenged the content of Northern Ireland law before a national authority (see
the James and Others judgment, loc. cit.). For the rest, effective remedies were
available to her to raise any claim of non-compliance with the applicable
domestic law.
D. Conclusion
103. The facts of the present case do not therefore disclose a violation of
Article 13 (art. 13) in respect of the first applicant.
FOR THESE REASONS, THE COURT
1. Holds, by fourteen votes to four, that there has been no breach of Article 5
para. 1 (art. 5-1) of the Convention in respect of the first applicant;
2. Holds, by thirteen votes to five, that there has been no breach of Article 5
para. 2 (art. 5-2) of the Convention in respect of the first applicant;
3. Holds, by thirteen votes to five, that there has been no breach of Article 5
para. 5 (art. 5-5-) of the Convention in respect of the first applicant;
4. Holds, by fifteen votes to three, that there has been no breach of Article 8
(art. 8) of the Convention in respect of any of the applicants;
5. Holds, unanimously, that it is not necessary to examine under Article 13
(art. 13) of the Convention the first applicant's complaint concerning remedies
for her claims under Article 5 paras. 1 and 2 (art. 5-1, art. 5-2);
6. Holds, unanimously, that, for the rest, there has been no breach of Article
13 (art. 13) of the Convention in respect of the first applicant.
Done in English and in French, and delivered at a public hearing in the Human
Rights Building, Strasbourg, on 28 October 1994.
Signed: Rolv RYSSDAL President
Signed: Herbert PETZOLD Acting Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 53
para. 2 of Rules of Court A, the following separate opinions are annexed to this
judgment:
(a) joint dissenting opinion of Mr Loizou, Mr Morenilla and Mr Makarczyk;
(b) partly dissenting opinion of Mr Mifsud Bonnici;
(c) partly dissenting opinion of Mr Jambrek.
Initialled: R. R.
Initialled: H. P.
JOINT DISSENTING OPINION OF JUDGES LOIZOU, MORENILLA AND MAKARCZY
k1. Although we agree with the majority of the Court that, when interpreting and
applying the Convention, due account should be taken of the special nature of
terrorist crime, of the exigencies of investigating terrorist activities and of
the necessity of not jeopardising the confidentiality of reliable sources of
information, we cannot concur with its conclusion of no violation of Article 5
paras. 1, 2 and 5 (art. 5-1, art. 5-2, art. 5-5), and Article 8 (art. 8) of the
Convention in the present case.
On the contrary, a violation of the applicants' fundamental rights to liberty
and security and to respect for private life is disclosed by the circumstances
of the case, namely the Army's entry into and search of the applicants' home at
7 a.m. without warrant; the assembling of Mrs Murray's husband and four children
in a room of the house during half an hour; her arrest and detention during two
hours for questioning in a military screening centre on suspicion of her
involvement in terrorist activities because her brothers had been convicted in
the United States of America of offences connected with the purchase of arms for
the Provisional IRA; and the failure to inform her of the reasons for her arrest
(paragraphs 9 to 34 of the judgment).
2. Regarding the arrest and detention of Mrs Murray, we regret that we are not
convinced by the majority's arguments, particularly in paragraphs 62 and 63, as
to the reasonableness of the suspicion that she had committed the
above-mentioned offence; nor do we find that the facts of this case are
materially different from those in the Fox, Campbell and Hartley judgment*,
where the Court found a violation of Article 5 para. 1 (art. 5-1) because it
considered the elements furnished by the Government to be insufficient to
support the conclusion that there had been a "reasonable suspicion" that the
arrested persons had committed an offence.
_______________ * Fox, Campbell and Hartley v. the United Kingdom judgment of 30
August 1990, Series A no. 182. _______________
3. The conviction in the United States of Mrs Murray's two brothers of offences
connected with the purchase of weapons for the Provisional IRA, her visit to her
brothers there and the reference to the collaboration with "trustworthy" persons
residing in Northern Ireland implied by such offences are not, in our opinion,
sufficient grounds for reasonably suspecting the first applicant of involvement
in the offence of collecting funds in Northern Ireland to buy arms in the United
States for terrorist purposes. Family ties cannot imply a criminal relationship
between the author of the offence and his or her relatives; nor can the
"co-operative" nature of the crime be considered a valid basis for a reasonable
suspicion of complicity on the part of members of the family or friends of the
criminal. These circumstances may give rise only to a bona fide suspicion of
such complicity. They do not give rise to a "reasonable" suspicion such as to
justify the serious measures taken against the applicants unless they are
connected with other facts in direct relation to the offence. No facts of this
kind have however been furnished by the respondent Government, although, in our
opinion, they could have been supplied without jeopardising the confidentiality
of the source of information which is necessary to protect the life and personal
safety of that source (paragraph 52 of the judgment).
4. The Court's task, as stated by the majority (paragraph 66 of the judgment),
is to determine whether the conditions laid down by sub-paragraph (c) of Article
5 para. 1 (art. 5-1-c) have been fulfilled in the circumstances of the
particular case. With due respect to the review that the national courts have
conducted of the facts of the case (paragraph 60 of the judgment) and to their
findings and conclusions in the proceedings brought by Mrs Murray, it falls to
our Court, pursuant to Article 19 (art. 19) of the Convention, to ensure the
observance of the engagement undertaken by the States Parties under Article 1
(art. 1) to secure everyone within their jurisdiction, inter alia, the right to
liberty and the right to respect for private life. In the exercise of this power
of review the Court must ascertain whether the essence of the safeguard afforded
by this provision of the Convention has been secured. "Consequently, the
respondent Government have to furnish at least some facts or information capable
of satisfying the Court that the arrested person was reasonably suspected of
having committed the alleged offence" (Fox, Campbell and Hartley judgment, p.
18, para. 34).
5. In the instant case the specific circumstances of the entry into and search
of the applicants' home by the Army, the limited role of the Army in the
investigation of terrorist crimes under United Kingdom law (paragraphs 36 to 38
of the judgment) and, moreover, the personal circumstances of Mrs Murray, a
mother of four children with health problems and no criminal record (paragraph 9
of the judgment and document Cour (93) 290, Annexes A-B, pp.100 B-C, 116 B-C),
required a higher level of suspicion and the application to the respondent
Government of a stricter standard when justifying before this Court the
"reasonableness" of the suspicion. Needless to say that the domestic courts
examined the issue from the standpoint of section 14 of the 1978 Act, which
required an honest and genuine, rather than a reasonable, suspicion. The scope
of their examination was confined to that.
6. Regarding the alleged violation of Article 5 para. 2 (art. 5-2) of the
Convention, in our view the evidence as to Mrs Murray's questioning at the
military screening centre (paragraphs 16 to 27 of the judgment), the vague
indications and the questions put to her lack the necessary precision to justify
a conclusion that she was informed of the reasons for her arrest. From the
recorded questions about her brothers or "about money and about America", it is
not possible for us to conclude that it was apparent to her "that she was
questioned about her possible involvement in the collection of funds for the
purchase of arms for the Provisional IRA by her brothers in the USA".
7. In the Fox, Campbell and Hartley judgment (paragraph 40) the Court declared
that "[p]aragraph 2 of Article 5 (art. 5-2) contains the elementary safeguard
that any person arrested should know why he is being deprived of his liberty.
This provision is an integral part of the scheme of protection afforded by
Article 5 (art. 5): by virtue of paragraph 2 (art. 5-2) any person arrested must
be told, in simple, non-technical language that he can understand, the essential
legal and factual grounds for his arrest, so as to be able, if he sees fit, to
apply to a court to challenge its lawfulness in accordance with paragraph 4
(art. 5-4)".
In our opinion, bearing in mind the totality of the circumstances, including the
nature of the questions put to Mrs Murray in the course of her interrogation
(paragraphs 14 and 21 of the judgment), the information given to Mrs Murray did
not meet this basic standard.
8. As to Article 5 para. 5 (art. 5-5) of the Convention, since Mrs Murray's
arrest and detention were in breach of paragraphs 1 and 2 of this Article (art.
5-1, art. 5-2), she was entitled to an enforceable right to compensation in
accordance with this provision. We would recall, as did the Commission (report,
paragraph 75), that in the similar case of Fox, Campbell and Hartley (paragraph
46) the Court found a violation of Article 5 para. 5 (art. 5-5).
9. The alleged violation of Article 8 (art. 8) of the Convention is directly
linked with the issues under Article 5 para. 1 (art. 5-1) of the Convention.
Consequently, our conclusion is that, a breach of this provision having been
found to have occurred in the circumstances of the case, the above-mentioned
measures taken by the Army interfering in Mrs Murray's private life cannot, in
the absence of an objective justification of the suspicions of Mrs Murray's
terrorist activity, be regarded as necessary in a democratic society for the
prevention of crime in accordance with paragraph 2 of Article 8 (art. 8-2). We
therefore also find a violation of this provision of the Convention.
PARTLY DISSENTING OPINION OF JUDGE MIFSUD BONNICI
1. I am in agreement with the majority on most of the points at issue in this
case, starting with the finding that the arrest of the first applicant was
carried out on a reasonable suspicion that she had committed an offence; thereby
holding that Article 5 para. 1 (art. 5-1) was not violated.
2. I dissent, however, on the second point; that of Article 5 para. 2 (art.
5-2), which guarantees to "everyone who is arrested" the right to be "informed
promptly, in a language which he understands, of the reasons for his arrest and
of any charge against him".
The essential and relevant facts, as accepted in the judgment are that:
(a) When Corporal D. proceeded to the first applicant's house, she said to her,
"As a member of Her Majesty's forces, I arrest you." And on being asked twice by
the first applicant under what section, Corporal D. replied, "Section 14"
(paragraph 12 of the judgment).
(b) Corporal D. told the domestic court that "the purpose of arrest and
detention under section 14 was not to gather intelligence but to question a
suspected person about an offence" (paragraph 20 of the judgment). This was
confirmed by Sergeant B. (paragraph 22).
3. Now there is absolutely nothing in the whole proceedings to indicate that
after the first applicant was arrested on the strength of section 14, she was
thereafter promptly given the reasons for her arrest and/or informed of any
offence with which she was charged.
In the concrete circumstances of the case, I am prepared to allow that
promptness can be waived because of the short duration of the detention, but
once the first applicant was arrested (and not merely asked to go voluntarily to
a place designated for interrogation) she was entitled to be told why she was
being arrested - which in effect means "that she was suspected of having
committed a given offence". Once that is done, the further information that she
was being charged with a given offence can, within a reasonable time, follow.
This, however, must be preceded by the first phase, wherein the arrested person
must be informed of the reasons for the arrest. This phase cannot be skipped,
ignored or disregarded, especially when, as in this case, the person arrested is
not charged with an offence.
4. In the view of the majority (paragraph 77 of the judgment) this guarantee was
satisfied because
"it must have been apparent to Mrs Murray that she was being questioned about
her possible involvement in the collection of funds for the purchase of arms for
the Provisional IRA by her brothers in the USA",
which induces the Court to come to the conclusion that
"the reasons for her arrest were sufficiently brought to her attention during
her interview".
And therefore there was no violation.
5. In my opinion this decision reduces the meaning of Article 5 para. 2 (art.
5-2) to such a low level that it is doubtful whether in fact it can, if it is
adhered to in this form, have any possible concrete application in the future.
In fact what is being held here is that through the contents of an interrogation
an accused person can, by inference or deduction, arrive, on his own, to
understand "the reasons for his arrest and ... any charge against him". Since
the Convention obliges the investigating officer "to inform" the arrested
person, I cannot agree that the duty imposed on the investigating officer can be
satisfied by the obligation of the arrested person to carry out a logical
exercise so that he will thereby know of the charge against him - surmising
both, from the contents of the interrogation.
6. It is not really possible to sustain this interpretation of Article 5 para. 2
(art. 5-2). If it is sustained, then it would mean that the guarantee therein
contemplated will only come into play in situations such as that which is
described in Franz Kafka's masterpiece The Trial, where the Inspector, who is
supposed to interrogate K (the accused person), tells K ,
"I can't even confirm that you are charged with an offence, or rather I don't
know whether you are. You are under arrest certainly, more than that I do not
know."*
_______________ * English translation by W. and E. Muir from the German original
Der Prozess - Penguin reprint 1953, p. 18. _______________
7. Therefore, the interpretation arrived at is a substantial limitation of the
purpose of Article 5 para. 2 (art. 5-2), to which I cannot subscribe, and I find
that there was a violation of Article 5 para. 2 (art. 5-2).
8. On all the other points in this judgment, I form part of the majority.
PARTLY DISSENTING OPINION OF JUDGE JAMBRE
k I subscribe to the joint dissenting opinion of Judges Loizou, Morenilla and
Makarczyk as regards the violation of Article 5 paras. 1, 2 and 5 (art. 5-1,
art. 5-2, art. 5-5).
I also wish to make some additional points, which reflect my own reasoning
related to the case.
1.
In the examination of the matter of "reasonable suspicion", the key issue seems
to me to be whether "at least some facts or information" were furnished by the
Government, which would satisfy an objective observer that the person concerned
may have committed the offence. In my opinion this condition of reasonableness
was not fulfilled. It was suggested by the representative of the Government that
"primary facts", obtained from a reliable confidential source, which cannot be
disclosed must be differentiated from "something other than the primary facts or
information". Elements of the latter kind, he claimed, had been provided which
should be capable of so satisfying an objective observer. He cited:
(a) the honest belief of the arresting officer,
(b) the briefing by a superior officer, and
(c) circumstances preventing disclosure of information.
In my view all three are capable of satisfying the condition of an honest or
genuine suspicion, but do not constitute "at least some facts or information" on
which a reasonable suspicion could be based. Neither honesty of an arresting
officer, nor honesty of superior officer, nor the circumstances of a suspected
terrorist crime fall into this category.
At the hearing the Government's representative also identified three other kinds
of more specific "objective evidence", namely the conviction of the first
applicant's brothers, her contacts with them and her visits to America. The
problem with these facts, as I see it, is that none of them per se may be held
against the first applicant to incriminate her. They rather resemble the
incrimination of a person's status, in this case the first applicant's kinship
relationship.
I am therefore led to conclude that there has been a violation of Article 5
para. 1 (art. 5-1) in respect of the first applicant, following the reasoning in
the Fox, Campbell and Hartley v. the United Kingdom judgment (judgment of 30
August 1990, Series A no. 182).
2.
Was it possible for the Court to set some modified standards for "reasonable
suspicion" in the context of emergency laws enacted to combat terrorist crime?
At this point I wish to explain some of my "philosophic prejudices" related to
this issue. Much was made in the Government's memorial of the specific features
of terrorist crime and the relevant emergency provisions, allowing for the
tipping of the balance between State and individual interests in the direction
of the raison d'Etat. However, the existence of an emergency may be used to
argue in favour of both interests involved, namely that of the Government and
that of the arrested person. For example, under emergency laws, individual
rights may be abused even more easily and on a larger scale than in normal
times. They should therefore be given an even more careful protection in view of
the intensity of national interests in taking repressive measures against crime.
Suspects should thus not be denied being provided with at least some evidence
and grounds for their arrest, in order to be able to challenge the allegations
against them. Neither should the competent domestic court be left without
persuasive evidence supporting the required reasonableness of the arrest.
I also do not dispute that by and large intelligence-gathering organisations do
indeed obtain "reliable" items of information which have to be kept
confidential, and which should be trusted without closer examination.
But are the items obtained all and always relevant? We may assume that at least
some of them are irrelevant or already notorious. Information on persons' travel
abroad or on their kinship relationships, for example, may be very reliable and
also happen to be classified as secret, but it may be irrelevant or already
notorious. Therefore I would hesitate to make life for the
intelligence-gathering services too easy, at the expense of detainees and
especially at the expense of the domestic courts.
3.
My underlying philosophic approach having been identified, some more "technical"
points about the case may be made.
The search for a balance between the State's interest in fighting crime and the
protection of the individual's fundamental rights is the obvious task of the
Strasbourg Court. To this end I would propose clarifying the following
preliminary issues:
First, what is the relationship between the Article 5 para. 1 (c) (art. 5-1-c)
requirement of "reasonable suspicion" and the Article 5 para. 2 (art. 5-2) right
to be "informed promptly of the reasons for his arrest and of any charge against
him"?
Are grounds for reasonable suspicion identical to reasons for arrest?
A usual consequence of the implementation of Article 5 para. 1 (c) (art. 5-1-c)
is that the national courts will, if need be, be called on to decide whether the
arresting officer entertained reasonable suspicion of an offence committed by
the detainee, while the purpose of Article 5 para. 2 (art. 5-2) is to enable the
arrested person to assess the lawfulness of the arrest and take steps to
challenge it, if need be. This difference may justify differential treatment of
evidence supporting such reasons in terms of their confidentiality.
A further point is that the Court referred in the Fox, Campbell and Hartley case
to "information which ... cannot ... be revealed to the suspect or produced in
court to support the charge".
Two questions seem to me relevant in this respect. First, is there a difference
between revealing information to the suspect and then producing it in court?
Probably not. And secondly, is there a difference between information made
available to the court and information produced in a court, that is revealed to
the suspect?
In this connection I see some scope for compromise between the wish to preserve
the Fox, Campbell and Hartley standard and, at the same time, the need to expand
and elaborate its reasoning in order to adapt it better to the Murray case and
other similar cases.
The "technical" question could also be posed whether otherwise confidential
information could not be rephrased, reshaped or tailored in order to protect its
source and then be revealed. In this respect the domestic court could seek an
alternative, independent expert opinion, without relying solely on the
assertions of the arresting authority.
4.
I voted for non-violation of Article 8 (art. 8) because I do not see a necessary
link between the breach of the requirements of Article 5 para. 1 (art. 5-1) and
the interference in the private and family life of Mrs Murray (and her family).
I am satisfied with the approach of the Court in regard to Article 8 (art. 8),
and, in particular, with its conclusion that the interference was in accordance
with the law and that the contested measures pursued a legitimate aim and were
necessary in a democratic society (paragraphs 88 to 94 of the judgment).
However, in the light of my views as to the violation of various provisions of
Article 5 (art. 5), I cannot subscribe to the Court's reasoning in paragraph 92
of the judgment, namely that Mrs Murray was reasonably suspected of the
commission of a terrorist-linked crime and that this fact justified the need to
enter and search her home. The finding of non-violation of Article 8 (art. 8)
can be sufficiently well grounded regardless of the reasoning in paragraph 92 of
the Court's judgment.
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