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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 involvem | | |
