FOURTH SECTION
CASE OF MAGEE AND OTHERS v. THE UNITED KINGDOM
(Applications nos. 26289/12, 29062/12 and 29891/12)
JUDGMENT
STRASBOURG
12 May 2015
FINAL
12/08/2015
This judgment has become final under Article 44 § 2 of the Convention. It may be
subject to editorial revision.
MAGEE AND OTHERS v. THE UNITED KINGDOM JUDGMENT
1
In the case of Magee and Others v. the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting as a
Chamber composed of:
Päivi Hirvelä, President,
George Nicolaou,
Ledi Bianku,
Nona Tsotsoria,
Paul Mahoney,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,
Having deliberated in private on 14 April 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in three applications (nos. 26289/12, 29062/12
and 29891/12) against the United Kingdom of Great Britain and Northern
Ireland lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the Convention”)
by three Irish nationals, Mr Gabriel Magee, Mr Colin Francis Duffy and
Ms Teresa Magee (“the applicants”), on 1 May 2012, 14 May 2012 and
10 May 2012 respectively.
2. The first and second applicants were represented by KRW Law - LLP,
a firm of solicitors based in Belfast. The third applicant was represented by
Mr P. Moriarty of O’Connor & Moriarty Solicitors, a firm practising in
Lurgan. The United Kingdom Government (“the Government”) were
represented by their Agent, Ms M. Addis of the Foreign & Commonwealth
Office.
3. On 25 September 2012 the applications of the first and second
applicant were communicated to the Government. The third applicant’s
application was communicated to the Government on 7 November 2012.
The applicants and the Government each filed observations on the
admissibility and merits of the cases (Rule 59 § 1).
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MAGEE AND OTHERS v. THE UNITED KINGDOM JUDGMENT
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The first applicant was born in 1972 and lives in Belfast. The second
applicant was born in 1967 and lives in Lurgan. The third applicant was
born in 1978 and lives in Craigavon.
A. The first and third applicants
5. On 14 March 2009 the first and third applicants were arrested under
section 41 of the Terrorism Act 2000 (“the 2000 Act”) on suspicion of
involvement in the murder of a police officer on 9 March 2009. They were
detained at Antrim police station on the same day. The first applicant was
interviewed twice on 15 March 2009 and once on 16 March 2009; the third
applicant was interviewed three times on 15 March 2009 and once on
16 March 2009.
6. On 16 March 2009 the Director of Public Prosecutions (“DPP”) made
applications to the County Court under paragraph 29 of Schedule 8 to the
2000 Act for warrants of further detention in respect of both applicants in
order to carry out questioning and to conduct forensic examinations. The
first applicant gave evidence on oath in the course of the hearing. Following
the hearing, the County Court Judge granted warrants authorising a five-day
extension of detention.
7. Each of the applicants was interviewed on twelve occasions in the
following five days.
8. On 21 March 2009 the DPP made applications to the County Court
under paragraph 36 of Schedule 8 to the 2000 Act for seven-day extensions
to the periods specified in the warrants for further detention. The extensions
were sought in order to facilitate further questioning of the applicants once
the results of additional forensic tests were obtained. At separate hearings
on 22 March 2009 a police Superintendent gave evidence on oath as to the
necessity of the extensions and arguments were heard on behalf of the first
and third applicants.
9. Following the hearings Her Honour Judge Philpott QC delivered a
written judgment in respect of the first applicant and an ex tempore decision
in respect of the third applicant. She granted both applications, authorising
the first applicant’s continued detention until 7.20 on 28 March 2009 and
the third applicant’s continued detention until 5.52 on 28 March 2009. In
her reasoning, Judge Philpott noted that the relevant forensic evidence was
central to the investigation and that the investigation was being carried out
diligently and expeditiously.
MAGEE AND OTHERS v. THE UNITED KINGDOM JUDGMENT
3
10. In the rulings Judge Philpott considered whether the 2000 Act or
Article 5 of the Convention gave the court deciding whether or not to grant
an extension of detention an express or implied power to examine the
lawfulness of the arrest or to grant bail. She concluded that it did not as the
2000 Act only gave the judge the power to decide whether or not an
extension of detention was necessary. Consequently, she had to confine
herself to the issue of whether or not it was necessary to extend detention
beyond forty-eight hours for investigative purposes and any issue as to the
lawfulness of the arrest would have to be determined by the High Court in
either Habeas Corpus or judicial review proceedings.
B. The second applicant
11. On 14 March 2009 the second applicant was arrested under
section 41 of the 2000 Act on suspicion of involvement in the murder of
two soldiers at Masserene Barracks, Antrim, on 7 March 2009. He was
detained at Antrim Police Station on the same day.
12. On 15 March 2009 the DPP made an application to the County Court
under paragraph 29 of Schedule 8 to the 2000 Act for a warrant extending
the second applicant’s detention as the results of a number of forensic tests
were pending.
13. Following a hearing on 16 March 2009 a County Court Judge
granted a warrant authorising a five-day extension to his detention.
14. The second applicant was interviewed on twelve occasions in the
following five days. However, neither the interviews nor the results of the
forensic tests provided any evidence linking the second applicant to the
murders of the two soldiers.
15. On 21 March 2009 the DPP made an application to the County Court
under paragraph 36 of Schedule 8 to the 2000 Act for a seven-day extension
to the period specified in the warrant for further detention. The extension
was sought as the results of further forensic tests which had been sent for
analysis to a laboratory in Great Britain were expected to become available
within the following seven days and detention was considered necessary to
ensure that further questioning could take place and, if there was sufficient
evidence, charges could be brought.
16. On 21 March 2009 Judge Philpott granted the application,
authorising the second applicant’s continued detention until 7.20 on
28 March 2009.
C. Joint proceedings
17. The applicants sought permission to apply for judicial review of
Judge Philpott’s decisions of 21 and 22 March 2009 granting further
extensions to the warrants authorising their detention. They submitted first,
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MAGEE AND OTHERS v. THE UNITED KINGDOM JUDGMENT
that Judge Philpott had been wrong to conclude that a court, in deciding
whether or not to grant an extension of detention, was precluded from
investigating the lawfulness of the arrest; secondly, that the judge had failed
to address the question of whether the detention of the applicants was
required while the results of the forensic examinations were expected;
thirdly that the judge had failed to give reasons for her decision that
detention was required; and finally, that Schedule 8 of the 2000 Act was
incompatible with Article 5 of the Convention.
18. Permission to apply for judicial review was granted by the
High Court of Northern Ireland on 24 March 2009 and the High Court heard
the applications on 25 March 2009.
19. In respect of the applicants’ first submission, the High Court held
that paragraphs 5 and 32 of Schedule 8 to the 2000 Act had to be read in
conformity with the requirements of Article 5 § 3 of the Convention as
explained in the jurisprudence of the Court. Thus, the review of the
lawfulness of the detention had to embrace an examination of the basis of
the arrest, otherwise a person could be detained under the 2000 Act for up to
twenty-eight days without there having been any judicial review of the
lawfulness of the original arrest and that could not be Convention
compliant. The High Court therefore found that Judge Philpott had been
wrong to disavow any review of the lawfulness of the applicants’ arrest and,
as a consequence, her decision to grant extensions had to be quashed. The
court accepted, however, that a review of the lawfulness of the arrest need
not involve a detailed analysis of the basis for the decision to arrest and
should reflect the constraints that necessarily apply in many arrests for
terrorist offences.
20. With regard to the applicants’ second and third submissions, the
High Court found that although the judge had not focused directly on
whether the applicants had to be detained rather than released pending the
outcome of the remaining forensic examinations, she had not failed to have
regard to the need for detention as the basis for the grant of the warrant.
Moreover, although her reasons were pithily stated, they were sufficient to
convey to the applicants the basis of her decision.
21. Consideration of the applicants’ fourth submission, namely the
compatibility of Schedule 8 to the 2000 Act with Article 5 of the
Convention, was adjourned. In a judgment delivered on 24 February 2011,
the High Court of Northern Ireland found no basis for the submission that
Schedule 8 was incompatible with Article 5 of the Convention. In particular,
the court held that although there was no doubt that the “competent legal
authority” referred to in Article 5 § 1(c) was the authority having
competence to deal with a criminal charge (the Magistrate in the United
Kingdom), in Schiesser v. Switzerland, 4 December 1979, § 29, Series A
no. 34 and McKay v. the United Kingdom [GC], no. 543/03, ECHR 2006-X
the Court had made it clear that the function of “a judge or other officer” for
MAGEE AND OTHERS v. THE UNITED KINGDOM JUDGMENT
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the purposes of Article 5 § 3 of the Convention could be carried out by an
officer authorised by law to exercise judicial power and did not necessarily
have to be a person with power to conduct the trial of any eventual criminal
charge; that, although there was no express power to order release in the
2000 Act as required by Article 5 § 3 of the Convention, such a power must
be implied; that, as paragraph 32 of Schedule 8 to the 2000 Act provided
that there must be reasonable grounds for believing that the further
detention of a person was necessary, it therefore contained a requirement of
proportionality; that, there was no provision for conditional release on bail
within the statutory scheme, an issue which did not arise in the present case
but would need to be addressed in any future case in which it arose; that,
although paragraph 33(3) of Schedule 8 enabled a judicial authority to
exclude an applicant or anyone representing him from any part of the
hearing and paragraph 34 permitted information to be withheld from the
applicant or anyone representing him, there were a range of tools available
to the court to preserve to the necessary extent an adversarial procedure and
equality of arms; and, finally, that there was no authority which supported
the applicants’ contention that Article 5 required that a detained person
should be charged well before the expiry of the twenty-eight day period
contemplated in the 2000 Act.
22. On 4 April 2011 the High Court of Northern Ireland certified that it
was satisfied that the decision given on 24 February 2011 involved the
following points of law of general public importance:
“(a) Whether paragraphs 29(3) and 36(3)(b) of Part III of Schedule 8 to the
Terrorism Act 2000 (“the Act”) permitting extended detention for more than four days
are compatible with the Applicant’s rights under Article 5(1)(c), 5(2) and 5(3) of the
European Convention on Human Rights (“the Convention”)
1. If compliance with Article 5(3) of the Convention can only be achieved by
providing for a detainee to be brought before a judicial authority (i) other
than the Magistrate’s Court and (ii) without any charges having been
preferred against him;
2. If Articles 5(1)(c) and 5(3) of the Convention are required to be read
together as linked provisions and understood as creating a scheme so that
the “judge or other officer authorised by law to exercise judicial power”
referred to in Article 5(3) and “the competent legal authority” referred to in
Article 5(1)(c) are one and the same;
3. If the “judicial authority” provided for in Schedule 8 to the Act is the
“judge or other officer authorised by law to exercise judicial power” within
the meaning of Article 5(3) of the Convention;
4. If Articles 5(1)(c) and 5(3) of the Convention cannot be interpreted in such
a way as to permit the detention of a suspect without charge for any period
specified by Parliament, subject only to the requirement of periodic judicial
approval of the kind specified in Article 8 to the Act.
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MAGEE AND OTHERS v. THE UNITED KINGDOM JUDGMENT
(b) Whether the absence of a power to allow for conditional release on bail
rendered the scheme for extending detention set out in Part III of Schedule 8
incompatible with Article 5 ECHR; and
(c) Whether the procedure for granting an extension of detention, in circumstances
where the suspect and legal representative have been excluded by the judge for a part
of the hearing (as per Schedule 8, para 33(3)) and by reason of same information is
made available to the judge but withheld from the suspect and his legal representative,
(Schedule 8, para 34(1) and (2)(f) is incompatible with the request for an adversarial
hearing as required by Article 5 in light of Secretary of State for the Home
Department v AF (FC) & Anor [2010] 2 AC 269.”
23. However, the High Court refused leave to appeal to the Supreme
Court.
24. Permission to appeal was refused by the Supreme Court on
14 November 2011 on the basis that the applications did not raise an
arguable point of law of general public importance.
D. The applicants’ release from detention
25. The applicants were released without charge on 25 March 2009. The
first and third applicants were not subsequently charged with any offence
related to the murder of the police officer.
26. The second applicant was immediately re-arrested and interviewed
over the following two days. On 27 March 2009 he was charged with the
murder of the two soldiers, five attempted murders and possession of a
firearm and ammunition. He was produced before a District Judge sitting at
Larne Magistrates’ Court on 27 March 2009. His application for bail was
refused. Following a hearing which took place on 6 and 23 November 2009,
bail was refused by the High Court on the ground that there was a real risk
of re-offending on account of his suspected involvement with a dissident
republican organisation. The High Court again declined to grant bail on
8 October 2010.
27. On 7 November 2011 the second applicant stood trial before a judge
sitting without a jury. On 20 January 2012 he was acquitted on all counts on
the indictment.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Powers of arrest and detention of terrorist suspects under the
Terrorism Act 2000
28. Section 40 of the 2000 Act defines a terrorist as a person who has
committed an offence under various sections of the Act or who is or has
been concerned in the commission, preparation or instigation of acts of
terrorism.
MAGEE AND OTHERS v. THE UNITED KINGDOM JUDGMENT
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29. Section 41(1) of the Act provides that a constable may arrest without
warrant a person whom he reasonably suspects to be a terrorist.
30. Part II of Schedule 8 to the 2000 Act deals with the detention of such
a person by police during the first forty-eight hours.
31. Section 41 (3) of the Act provides that a detained person must be
released not later than the end of the period of forty-eight hours beginning
with the time of the arrest subject to subsections (4) to (7) set out below:
“(4) If on a review of a person’s detention under Part II of Schedule 8 the review
officer does not authorise continued detention, the person shall (unless detained in
accordance with subsection (5) or (6) or under any other power) be released.
(5) Where a police officer intends to make an application for a warrant under
paragraph 29 of Schedule 8 extending a person’s detention, the person may be
detained pending the making of the application.
(6) Where an application has been made under paragraph 29 or 36 of Schedule 8 in
respect of a person’s detention, he may be detained pending the conclusion of
proceedings on the application.
(7) Where an application under paragraph 29 or 36 of Schedule 8 is granted in
respect of a person’s detention, he may be detained, subject to paragraph 37 of that
Schedule, during the period specified in the warrant.”
32. Paragraph 29 of Schedule 8 to the Act provides that the Director of
Public Prosecution for Northern Ireland (“DPP”) may apply to a judicial
authority for the issue of a warrant of further detention. Pursuant to
paragraph 29(3), the period of further detention shall be seven days from the
time of the arrest under section 41 of the 2000 Act unless the application is
for a shorter period or the judicial authority is satisfied that there are
circumstances that would make it inappropriate for the specified period to
be as long as the period of seven days.
33. In Northern Ireland the judicial authority under the 2000 Act is a
County Court Judge or a District Judge (Magistrates’ Court) who has been
designated for the purposes of the Act.
34. Paragraph 30 of Schedule 8 requires the application for the warrant
to be made during the period of the initial detention or within six hours of
the end of that period.
35. Paragraph 31 ensures that an application for a warrant cannot be
heard until the person to whom it relates has been given a notice stating that
the application has been made, the time at which it was made, the time at
which it is to be heard and the grounds upon which further detention is
sought.
36. Paragraph 32(1) provides that a judicial authority may only issue a
warrant of further detention if satisfied that there are reasonable grounds for
believing that the further detention of the person is necessary and that the
investigation in connection with which the person is detained is being
conducted diligently and expeditiously.
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MAGEE AND OTHERS v. THE UNITED KINGDOM JUDGMENT
37. Paragraph 32(1A) provides that the further detention of a person is
required if it is necessary:“(a) to obtain relevant evidence whether by questioning him or otherwise;
(b) to preserve relevant evidence; or
(c) pending the result of an examination or analysis of any relevant evidence or of
anything the examination or analysis of which is to be or is being carried out with a
view to obtaining relevant evidence.”
38. Relevant evidence is evidence which relates to the commission of an
offence under section 40 or an indication that the person detained is a
person falling within that section.
39. Paragraph 33 requires that a person to whom an application relates
be given an opportunity to make oral or written representations to the
judicial authority and be legally represented at the hearing. Paragraph 33(3)
provides that the judicial authority may exclude the person to whom the
application relates or anyone representing him from the hearing.
40. Likewise, paragraph 34 enables the DPP to apply to the judicial
authority for an order that specified information upon which he intends to
rely be withheld from the person to whom the application relates and
anyone representing him. The judicial authority may make such an order
only if satisfied that there are reasonable grounds for believing that if the
information were disclosed:“(a) evidence of an offence under any of the provisions mentioned in
section 40(1)(a) would be interfered with or harmed,
(b) the recovery of property obtained as a result of an offence under any of those
provisions would be hindered,
(c) the recovery of property in respect of which a forfeiture order could be made
under section 23 or 23A would be hindered,
(d) the apprehension, prosecution or conviction of a person who is suspected of
falling within section 40(1)(a) or (b) would be made more difficult as a result of his
being alerted,
(e) the prevention of an act of terrorism would be made more difficult as a result of
a person being alerted,
(f) the gathering of information about the commission, preparation or instigation of
an act of terrorism would be interfered with, or
(g) a person would be interfered with or physically injured.”
41. Paragraph 36 deals with extensions of warrants of further detention
up to a maximum of twenty-eight days. Each application for an extension
may extend the period of detention for up to seven days. Any application
which would extend the then total period beyond fourteen days must be
made to a judge of the High Court; otherwise the application is made to a
specially designated County Court Judge or a District Judge (Magistrates’
Court).
MAGEE AND OTHERS v. THE UNITED KINGDOM JUDGMENT
9
B. Ward v. Police Service of Northern Ireland [2007] 1 WLR 3013;
[2007] UKHL 50
42. In Ward v. Police Service of Northern Ireland the House of Lords
held that the procedure contemplated by paragraph 33 of Schedule 8 was
conceived in the best interests of the detained person and not those of the
police. It stated:
“27. The answer to this question is that the procedure before the judicial authority
which para 33 contemplates has been conceived in the interests of the detained person
and not those of the police. It gives the person to whom the application relates the
right to make representations and to be represented at the hearing. But it recognises
too the sensitive nature of the inquiries that the judicial authority may wish to make to
be satisfied, in that person’s best interests, that there are reasonable grounds for
believing that the further detention that is being sought is necessary. The more
penetrating the examination of this issue becomes, the more sensitive it is likely to be.
The longer the period during which an extension is permitted, the more important it is
that the grounds for the application are carefully and diligently scrutinised.
28. As in this case, the judicial authority’s need to scrutinise may trespass upon the
right of the police to withhold from a suspect the line of questioning they intend to
pursue until he is being interviewed. If it does, it will not be to the detained person’s
disadvantage for him to be excluded so that the judicial authority may examine that
issue more closely to see whether the exacting test for an extension that para 32 lays
down is satisfied. The power will not in that event be being used against the detained
person but for his benefit. As Hart J said in his ex tempore judgment, that person’s
safeguard is the judge, whose function it is rigorously and comprehensively to
examine the basis on which the application is being made.
29. There may be cases where there is a risk that the power given to the judicial
authority by para 33(3) will operate to the detained person’s disadvantage. Those
cases are likely to be rare, but the judicial authority must always be careful not to
exercise it in that way.”
THE LAW
I. JOINDER OF THE APPLICATIONS
43. The three applications in the present case (nos. 26289/12, 29062/12
and 29891/12) raise the same issues. For the reasons set out at
paragraphs 47-59 below, the Court finds that the second applicant’s
complaints are inadmissible. It considers, however, that the remaining
applications (nos. 26289/12 and 29891/12) should be joined pursuant to
Rule 42 § 1 of the Rules of Court.
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MAGEE AND OTHERS v. THE UNITED KINGDOM JUDGMENT
II. ALLEGED VIOLATION OF ARTICLE 5 § 1(c), 5 § 2 AND 5 § 3 OF
THE CONVENTION
44. The applicants complained that their detention was in breach of
Article 5 § 1(c), 5 § 2 and 5 § 3 of the Convention, which read as follows:
“1. Everyone has the right to liberty and security of person. No one shall be
deprived of his liberty save in the following cases and in accordance with a procedure
prescribed by law:
... ... ...
(c) the lawful arrest or detention of a person effected for the purpose of bringing
him before the competent legal authority on reasonable suspicion of having
committed an offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
... ... ...
2. Everyone who is arrested shall be informed promptly, in a language which he or
she understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of
paragraph 1 (c) of this Article shall be brought promptly before a judge or other
officer authorised by law to exercise judicial power and shall be entitled to trial within
a reasonable time or to release pending trial. Release may be conditioned by
guarantees to appear for trial.”
45. The Court is not bound by the legal characterisation given by an
applicant to the facts of the case (see, for example, Margaretić v. Croatia,
no. 16115/13, § 75, 5 June 2014). Therefore, as the substance of the
applicants’ complaint under Article 5 § 1(c) was that they were not brought
promptly before a “judge or other officer”, it considers that it would be
more appropriate to examine that complaint under Article 5 § 3.
46. The Government contested the applicants’ arguments.
A. Admissibility
1. Six months (the second applicant)
47. The Government argued that the second applicant failed to lodge his
complaint within the six-month time-limit prescribed in Article 35 § 1 of the
Convention. In the present case, given that the final domestic decision was
the refusal by the Supreme Court on 14 November 2011 to grant the
applicants permission to appeal (see paragraph 24 above), that time-limit
expired at midnight on 14 May 2012.
48. The Government submitted that the second applicant’s first letter to
the Court, which was dated 14 May 2012, could not have been faxed to the
Court on that date as the Court’s stamp indicated that it had been received
on 21 May 2012, which was outside the six-month time-limit. In any case,
that letter did not set out even summarily the subject-matter of the
MAGEE AND OTHERS v. THE UNITED KINGDOM JUDGMENT
11
application as required by Rule 47 § 5 of the Rules of Court and could not,
therefore, constitute a “letter of introduction” of the complaint. Indeed, the
Government was not aware of any correspondence from the second
applicant received within the six-month time-limit which met the
requirements of Rule 47 § 5 of the Rules of Court.
49. The second applicant maintained that the letter of 14 May 2012 had
been sent to the Court at 12.09 pm on that day. He submitted a confirmation
slip which clearly recorded the date, time and successful transmission of the
letter.
50. Although the second applicant accepted that this letter did not set out
the object of the application, he argued that pursuant to Rule 47 he had
received a letter from the Registry requiring him to submit a duly completed
application form within eight weeks of the date of the letter. This request
was complied with within the requisite time-frame, as the completed
application was sent to the Court on 6 July 2012.
51. It is clear from the documents submitted by the second applicant,
and from the Court’s own records, that the letter dated 14 May 2012 was
sent by fax to the Registry at 12.09 pm that day and was received at that
same time. A hard copy followed by post, which was received by the
Registry on 21 May 2012. Consequently, there is no doubt that this letter
was received by the Court within the six-month time limit. However, it
remains for the Court to decide whether or not this letter constituted a “letter
of introduction” for the purposes of Rule 47 § 5 of the Rules of Court.
52. In the version in force at the relevant time, Rule 47 § 5 of the Rules
of Court provided as follows:
“The date of introduction of the application for the purposes of Article 35 § 1 of the
Convention shall as a general rule be considered to be the date of the first
communication from the applicant setting out, even summarily, the subject matter of
the application, provided that a duly completed application form has been submitted
within the time-limits laid down by the Court. The Court may for good cause
nevertheless decide that a different date shall be considered to be the date of
introduction.”
53. The accompanying Practice Direction on the Institution of
Proceedings further provided that:
“An application should normally be made on the form referred to in Rule 47 § 1 of
the Rules of Court and be accompanied by the documents and decisions mentioned in
Rule 47 § 1 (h).
Where an applicant introduces his or her application in a letter, such letter must set
out, at least in summary form, the subject matter of the application in order to
interrupt the running of the six-month rule contained in Article 35 § 1 of the
Convention.
If an application has not been submitted on the official form or an introductory letter
does not contain all the information referred to in Rule 47, the applicant may be
required to submit a duly completed form. It must be despatched within eight weeks
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MAGEE AND OTHERS v. THE UNITED KINGDOM JUDGMENT
from the date of the Registry’s letter requesting the applicant to complete and return
the form.
Failure to comply with this time-limit will have implications for the date of
introduction of the application and may therefore affect the applicant’s compliance
with the six-month rule contained in Article 35 § 1 of the Convention.”
54. Finally, the Guidance Notes which accompanied application forms
in May 2012 advised applicants that:
“[The] six-month period will be interrupted when you send to the Court either a first
letter clearly setting out – even if only in summary form – the subject-matter of the
application you may wish to lodge or a completed application form. A mere request
for information is not sufficient to stop time running for the purposes of complying
with the six-month time-limit.”
55. It is clear that Rule 47 § 5, read together with the Practice Direction
and the Guidance Notes accompanying the application form, required that a
letter of introduction should set out the subject-matter of the complaint in
order to stop the six-month time-limit from running. This was recently
confirmed by the Court, which held that in accordance with the established
practice of the Convention bodies and Rule 47 § 5 of the Rules of Court as
worded at the relevant time, it would normally consider the date of
introduction of an application to be the date of the first communication
indicating an intention to lodge an application and giving some indication of
the nature of the application. Such first communication, which could take
the form of a letter sent by fax, would in principle interrupt the running of
the six-month period (see Abdulrahmen v. the Netherlands (dec.),
no. 66994/12 of 5 February 2013).
56. The letter sent by the applicant on 14 May 2012 reads as follows:
“We refer to the above-named and an application for judicial review which was
refused by the Divisional Court in Northern Ireland on the 24th February 2011. We
were not previously the solicitors on record. Mr Duffy has now instructed us. We do
not have the papers from the previous solicitor.
Subsequent to that an application for leave to appeal to the Supreme Court of the
UK was made in additional [sic] to an application to Certify Points of Law of General
Public Importance. This application was lodged with the Court in March 2011. In
April 2011 the Divisional Court considered the application for leave to appeal to the
Supreme Court and the certified questions and reserved their decision.
In April 2011 the Divisional Court refused leave to appeal to the Supreme Court but
Certified Points of Law of General Public Importance.
An application for Permission to Appeal to the Supreme Court was lodged in
July 2011. The Appeal Panel of the Supreme Court considered the application for
Permission to Appeal to the Supreme Court and an Order was made by the Supreme
Court on the 15th November 2011 refusing Permission to Appeal.
It is now our intention to lodge an application with the European Court of Human
Rights. We note that the application to the European Court of Human Rights must be
lodged within 6 months of the final decision in which all domestic remedies were
MAGEE AND OTHERS v. THE UNITED KINGDOM JUDGMENT
13
exhausted. Therefore the application must be lodged with the Court no later than the
15th May 2012.
Under the circumstances and in view of the urgency of this case we would be
grateful if you could confirm that the Court will accept the completed application
form which has been printed from the European Court website.
In addition to that we would also ask the Court to confirm if you can provide us with
the details of the Courts [sic] file reference, so that we can include this on the
correspondence and the application form which we hope to submit to you within the
next few days.
We thank you for your assistance and await your reply.
We would be grateful if you would confirm the position by fax or email.”
57. The letter did not, therefore, give any indication of the nature or
subject-matter of the second applicant’s complaints. The solicitor has stated
that at the time of writing he had not received papers from his client’s
previous solicitor. However, this fact alone does not explain the failure to
provide a basic outline of the complaints the second applicant was intending
to make against the respondent State. Consequently, the Court considers
that the letter of 14 May 2012 did not stop the six-month time-limit from
running; on the contrary, no communication capable of having such an
effect, that is to say, one setting out the nature of the application, be it in a
summary manner, was received at the Court until the submission of a
completed application form on 6 July 2012, by which stage the six-month
time-limit had well expired.
58. Although the reply sent to the second applicant by the Registry on
15 May 2012 asked him to submit a completed application form within
eight weeks, it did not expressly confirm that the letter of 14 May 2012
satisfied the requirements of Rule 47 § 5. While the second applicant’s
argument invoking the Registry’s reply as an indication of compliance with
Rule 47 is understandable, it was at all times open to the Government to
challenge the contents of the letter of 14 May 2014 and for the Court,
having considered the parties’ arguments in full, to uphold the
Government’s objection.
59. Accordingly, by virtue of Article 35 §§ 1 and 4 of the Convention,
the Court is not empowered to entertain the second applicant’s complaints
as they have been lodged out of time.
2. Manifestly ill-founded
60. The Government further submitted that the first and third applicants’
(hereafter “the applicants”) complaints under Article 5 were manifestly
ill-founded. Insofar as the applicants have complained under Article 5 § 2 of
the Convention, the Court agrees that their complaints are manifestly
ill-founded, as there is no suggestion that they were not promptly informed
14
MAGEE AND OTHERS v. THE UNITED KINGDOM JUDGMENT
of the reasons for their arrest. It therefore declares this complaint to be
inadmissible pursuant to Article 35 § 3(a).
61. However, the Court is satisfied that the complaints under
Article 5 § 3 raise complex issues of fact and Convention law calling for
examination on the merits. As such, they cannot be rejected as manifestly
ill-founded. Since this part of the application is not inadmissible on any
other grounds, it must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicants
62. The applicants relied on Schiesser v. Switzerland, 4 December 1979,
Series A no. 34 as authority for the proposition that “competent legal
authority” (in paragraph 1(c) of Article 5) was a synonym, of abbreviated
form, for “judge or other officer authorised by law to exercise judicial
power” (in paragraph 3 of Article 5). Pursuant to the scheme for
commencement of criminal proceedings in Northern Ireland, the
Magistrates Court was where a defendant was produced on a first
appearance following charge. The applicants therefore submitted that in
Northern Ireland the Magistrates Court was both the “competent legal
authority” for the purposes of Article 5 § 1(c) and the “judge or other
officer” for the purposes of Article 5 § 3 of the Convention and, as they
were never brought before a Magistrates Court, their pre-charge detention
was in breach of Article 5 § 3.
63. The applicants further submitted that it made perfect sense for the
first post-charge appearance before the Magistrates Court to be the
appearance before the “judge or other officer”, as it would provide further
additional safeguards against arbitrary detention. In particular, it would
ensure the prompt and public announcement of the charge against the
detainee; it would ensure consideration of the detainee’s continued
detention and, importantly, the possibility of conditional release; and if
further detention was authorised it would be in prison rather than a police
station, which was unlikely to be adequate for prolonged periods of
detention.
64. Even if the Court were to accept that the judicial control of detention
contemplated by Article 5 § 3 of the Convention did not have to be fulfilled
by a Magistrates Court, the applicant submitted that the “judicial authority”
as constituted under the 2000 Act did not have the powers and
characteristics to fulfil the requirements of that Article.
65. First, they argued that the scope of the inquiry carried out by the
judicial authority at the first automatic review of detention was not
compliant with Article 5 § 3 of the Convention. In the present case the High
MAGEE AND OTHERS v. THE UNITED KINGDOM JUDGMENT
15
Court found that a review of the lawfulness of arrest need not involve a
detailed analysis of the basis for the decision to arrest and should reflect the
necessary constraints that applied in many arrests for terrorist offences,
where reasons of public safety prevented the disclosure of the full
information upon which the decision to arrest was taken. The applicants
submitted that this was not compliant with Article 5 § 3, as such a test
prevented the effective review of arrest and detention required by that
Article on the first automatic review by a judge and in subsequent reviews.
Therefore, even if the Country Court Judge had proceeded on the basis
approved by the High Court, it would not have been sufficient to comply
with Article 5 § 3.
66. Secondly, the logical consequence of the creation of a separate and
distinct mechanism outside the normal legal processes was that the “judicial
authority” had to fulfil two separate judicial-supervision roles required by
Article 5 § 3 of the Convention; the automatic review of detention and
consideration of whether the detainee should be released on bail pending
trial. Convention case-law established that the latter role had to be carried
out with due expedition (McKay v. the United Kingdom [GC], no. 543/03,
ECHR 2006-X). There was no dispute between the parties that the “judicial
authority” as constituted under the 2000 Act did not possess the power to
order conditional release; however, without the possibility of imposing
conditions of release the judicial authority could only order unconditional
release or continued detention. The position was particularly stark in a case
such as the present, where the applicants should, at the very least, have been
conditionally released. In this regard the applicants submitted that the police
had sought to extend their detention when they had already been detained
for seven days without charge; police interviews had come to an end save
for the receipt of the results of forensic tests; the investigations had not
produced any or sufficient evidence to charge the applicants; they were of
good character and did not pose a flight risk; and they were entitled to the
presumption of innocence.
(b) The Government
67. The Government submitted that the essential requirement in
Article 5 § 3 of the Convention was for the arrested person to be brought
promptly before “a judge or other officer authorised by law to exercise
judicial
power”.
The
judicial
bodies
contemplated
by
Article 5 § 1(c) and 5 § 3 did not have to be identical; as Schedule 8
required a detained person to be brought before a judge, it conformed to the
essential requirement contained in Article 5 § 3. In support of this assertion
the Government relied on the wording of Article 5; the purpose underlying
Article 5; and the Court’s judgments in Aquilina v. Malta [GC],
no. 25642/94, ECHR 1999-III and Schiesser v. Switzerland, cited above.
16
MAGEE AND OTHERS v. THE UNITED KINGDOM JUDGMENT
68. First, the fact that different language was used in Article 5 § 1(c) on
the one hand and in Article 5 § 3 on the other demonstrated that the two
judicial bodies referred to in those provisions did not need to be identical.
69. Secondly, in Medvedyev and Others v. France [GC], no. 3394/03,
ECHR 2010 the Court stated that the purpose of Article 5 § 3 was to ensure
that arrested persons were physically brought before a judicial officer
promptly and the provisions of Schedule 8 served this purpose. In particular,
they provided a safeguard against arbitrary detention, as there was
independent judicial scrutiny of the reasons for a suspect’s detention and
release had to be ordered if a suspect’s continued detention was not
justified. To suggest that the “judge or other officer” in Article 5 § 3 should
be the same as the “competent legal authority” in Article 5 § 1(c) would add
nothing to the protection afforded to a detained person, would give priority
to form over substance, and would limit for no good reason the organisation
of judicial resources by the State concerned.
70. Thirdly, there was nothing in either Schiesser v. Switzerland or
Aquilina v. Malta to suggest that the judicial body in Article 5 § 3 should be
identical to that in Article 5 § 1(c). On the contrary, the Court had made it
clear in those judgments that the important question was whether the
judicial or other officer had the requisite independence from the executive
and the parties.
71. The Government further submitted that the applicants had
misunderstood the nature of the compulsory first review under Article 5 § 3
of the Convention. First, there was no requirement that a person detained
pursuant to Article 5 § 1(c) must have been – or must eventually be –
charged (Brogan and Others v. the United Kingdom, 29 November 1988,
§ 53, Series A no. 145-B). Accordingly, prompt and public announcement
of a criminal charge as part of the review of the lawfulness of detention
under Article 5 § 3 was irrelevant.
72. Secondly, there was no ground for concluding that the review under
Article 5 § 3 must, as a matter of automatic obligation, cover the release of
the detainee pending trial, with or without conditions, for reasons aside from
the lawfulness of the detention or the existence of reasonable suspicion that
he or she had committed a criminal offence (McKay v. the United Kingdom,
cited above, §§ 38 – 39). The requirements of Article 5 § 3 in relation to
detention under Article 5 § 1(c) and the requirements of Article 5 § 3 in
relation to continuing pre-trial detention (which did encompass
consideration of conditional release) conferred distinct rights and were not
on their face logically or temporally linked (Medvedyev and Others
v. France, cited above, § 119). In the present case, although the applicants’
pre-trial detention was at a very early stage, the judge could only issue a
warrant of further detention if satisfied that each applicant was a person
reasonably suspected of having committed a terrorist offence or of being a
terrorist; that there were reasonable grounds for believing that the further
MAGEE AND OTHERS v. THE UNITED KINGDOM JUDGMENT
17
detention of each applicant was necessary; and that the investigation was
being conducted diligently and expeditiously. In these circumstances it was
not necessary for the judge to have the additional power to release the
applicant on conditional bail.
2. The Court’s assessment
(a) General principles
73. The Court reiterates that Article 5 of the Convention is in the first
rank of the fundamental rights that protect the physical security of an
individual, and that three strands in particular may be identified as running
through the Court’s case-law: the exhaustive nature of the exceptions, which
must be interpreted strictly and which do not allow for the broad range of
justifications under other provisions (Articles 8 to 11 of the Convention in
particular); the repeated emphasis on the lawfulness of the detention,
procedurally and substantively, requiring scrupulous adherence to the rule
of law; and the importance of the promptness or speediness of the requisite
judicial controls under Article 5 §§ 3 and 4 (see McKay, cited above, § 30).
74. The Court notes the importance of the guarantees afforded by
Article 5 § 3 to an arrested person. The purpose of this provision is to
ensure that arrested persons are physically brought before a judicial officer
promptly. Such automatic expedited judicial scrutiny provides an important
measure of protection against arbitrary behaviour, incommunicado detention
and ill-treatment (see, among other authorities, Brogan and Others, cited
above, § 58; Brannigan and McBride v. the United Kingdom, 26 May 1993,
§§ 62-63, Series A no. 258-B; Aquilina v. Malta, cited above, § 49; and
Dikme v. Turkey, no. 20869/92, § 66, ECHR 2000-VIII).
75. Article 5 § 3, as part of this framework of guarantees, is structurally
concerned with two separate matters: the early stages following an arrest,
when an individual is taken into the power of the authorities, and the period
pending any trial before a criminal court, during which the individual may
be detained or released with or without conditions. These two limbs confer
distinct rights and are not on their face logically or temporally linked (see
T.W. v. Malta [GC], no. 25644/94, § 49, 29 April 1999, McKay, cited above,
§ 31 and Medvedyev v. France, cited above, § 119).
76. Taking the initial stage under the first limb, the Court’s case-law
establishes that there must be protection, through judicial control, of an
individual arrested or detained “on reasonable suspicion of having
committed [a criminal] offence”, that is to say, even before any criminal
charge may have been brought (see Brogan and Others, cited above, § 53).
Such control serves to provide effective safeguards against the risk of
ill-treatment, which is at its greatest in this initial stage of a perhaps
continuing deprivation of liberty following the bringing of a criminal
charge, and against the abuse of powers bestowed on law enforcement
18
MAGEE AND OTHERS v. THE UNITED KINGDOM JUDGMENT
officers or other authorities for what should be narrowly restricted purposes
and exercisable strictly in accordance with prescribed procedures. The
judicial control must satisfy the requirements set out below (see McKay,
cited above, § 32).
(α) Promptness
77. The judicial control on the first appearance of an arrested individual
must above all be prompt, to allow detection of any ill-treatment and to keep
to a minimum any unjustified interference with individual liberty. Although
each case has to be assessed according to its special features (Belousov
v. Ukraine, no. 4494/07, § 94, 7 November 2013), the strict time-constraint
imposed by this requirement leaves little flexibility in interpretation,
otherwise there would be a serious weakening of a procedural guarantee to
the detriment of the individual and the risk of impairing the very essence of
the right protected by this provision (see Brogan and Others, cited above,
§ 62, where periods of four days and six hours in detention without
appearance before a judge were held to be in violation of Article 5 § 3, even
in the special context of terrorist investigations).
78. The implication of Brogan (cited above) is that, even where, as in
the context of anti-terrorism legislation, there exist exceptional
circumstances or special difficulties justifying a longer period than normal
before the authorities bring the arrested person before a judge, the first
review must take place within a maximum of four days after the arrest. In
McKay, cited above, the Court found no violation of Article 5 § 3 of the
Convention in circumstances where a non-terrorist suspect was brought
before the judicial officer within forty-eight hours of his arrest. Likewise, in
Aquilina, cited above, the Court accepted that the applicant’s appearance
before a Magistrate two days following his arrest satisfied the requirement
of promptness. Nevertheless, while any period in excess of four days is
prima facie too long, in certain circumstances shorter periods can also be in
breach of the promptness requirement (see Ipek and Others v. Turkey,
§§ 36-37, in which a period of three days and nine hours was not
sufficiently prompt in relation to applicants who were minors;
Kandzhov v. Bulgaria, no. 68294/01, § 66, 6 November 2008, in which a
period of three days and twenty-three hours was not sufficiently prompt
where the applicant, who was arrested on charges of a minor and
non-violent offence, had already spent twenty-four hours in custody when
the police proposed to the prosecutor in charge of the case to request the
competent court to place the applicant in pre-trial detention; and Hassan
and Others v. France, no. 46695/10, § 89, 4 December 2014, in which the
applicants had already been detained for long periods before being taken
into police custody).
MAGEE AND OTHERS v. THE UNITED KINGDOM JUDGMENT
19
(β) Automatic nature of the review
79. The review must be automatic and not depend on the application of
the detained person; in this respect it must be distinguished from
Article 5 § 4, which gives a detained person the right to apply for release.
The automatic nature of the review is necessary to fulfil the purpose of that
paragraph, as a person subjected to ill-treatment might be incapable of
lodging an application asking for a judge to review their detention; the same
might also be true of other vulnerable categories of arrested person, such as
the mentally frail or those ignorant of the language of the judicial officer
(see Aquilina, cited above).
(γ) The characteristics and powers of the judicial officer
80. Since Article 5 § 1 (c) forms a whole with Article 5 § 3, “competent
legal authority” in paragraph 1 (c) is a synonym, of abbreviated form, for
“judge or other officer authorised by law to exercise judicial power” in
paragraph 3 (see, among other authorities, Lawless v. Ireland (no. 3), 1 July
1961, Series A no. 3, and Schiesser, cited above, § 29).
81. The judicial officer must offer the requisite guarantees of
independence from the executive and the parties, which precludes his or her
subsequent intervention in criminal proceedings on behalf of the
prosecuting authority, and he or she must have the power to order release,
after hearing the individual and reviewing the lawfulness of, and
justification for, the arrest and detention (see, among many other authorities,
Assenov and Others v. Bulgaria, 28 October 1998, §§ 146 and 149,
Reports 1998-VIII). As regards the scope of that review, the formulation
which has been at the basis of the Court’s long-established case-law dates
back to the early Schiesser case (cited above, § 31):
“In addition, under Article 5 § 3, there is both a procedural and a substantive
requirement. The procedural requirement places the ‘officer’ under the obligation of
hearing himself the individual brought before him [...]; the substantive requirement
imposes on him the obligations of reviewing the circumstances militating for or
against detention, of deciding, by reference to legal criteria, whether there are reasons
to justify detention and of ordering release if there are no such reasons [...].”
82. In other words, “Article 5 § 3 requires the judicial officer to consider
the merits of the detention” (see T.W. v. Malta and Aquilina, both cited
above, § 41 and § 47 respectively).
83. The initial automatic review of arrest and detention accordingly must
be capable of examining lawfulness issues and whether or not there is a
reasonable suspicion that the arrested person has committed an offence; in
other words, whether detention falls within the permitted exceptions set out
in Article 5 § 1 (c). When the detention does not, or is unlawful, the judicial
officer must then have the power to release (see McKay, cited above, § 40).
84. However, an examination of the relevant case-law gives no ground
for concluding that the review must, as a matter of automatic obligation,
20
MAGEE AND OTHERS v. THE UNITED KINGDOM JUDGMENT
cover the release of the applicant pending trial, with or without conditions,
for reasons aside from the lawfulness of the detention or the existence of
reasonable suspicion that the applicant has committed a criminal offence.
There is nothing therefore to suggest that, when referring in its Schiesser
judgment to “the circumstances militating for or against detention”, the
Court was doing more than indicating that the judicial officer had to have
the power to review the lawfulness of the arrest and detention under
domestic law and its compliance with the requirements of Article 5 § 1 (c)
(McKay, cited above, § 36).
85. The Court has noted on several occasions that the investigation of
terrorist offences undoubtedly presents the authorities with special problems
(see Brogan and Others, cited above, § 61; Murray v. the United Kingdom,
28 October 1994, § 58, Series A no. 300-A; and Aksoy v. Turkey,
18 December 1996, § 78, Reports 1996-VI). In Brogan and others (cited
above, § 61) the Court specifically acknowledged that “the difficulties ... of
judicial control over decisions to arrest and detain suspected terrorists may
affect the manner of implementation of Article 5 § 3, for example, in calling
for appropriate procedural precautions in view of the nature of the suspected
offences. This does not mean, however, that the investigating authorities
have “carte blanche” under Article 5 to arrest suspects for questioning, free
from effective control by the domestic courts and, ultimately, by the
Convention supervisory institutions, whenever they choose to assert that
terrorism is involved (see Öcalan v. Turkey [GC], no. 46221/99, § 104,
ECHR 2005-IV).
(δ) The pre-trial or remand period
86. The presumption is in favour of release. As established in
Neumeister v. Austria (27 June 1968, p. 37, § 4, Series A no. 8), the second
limb of Article 5 § 3 does not give judicial authorities a choice between
either bringing an accused to trial within a reasonable time or granting him
or her provisional release pending trial. Until conviction, he or she must be
presumed innocent, and the purpose of the provision under consideration is
essentially to require his provisional release once his continuing detention
ceases to be reasonable.
87. Continued detention therefore can be justified in a given case only if
there are specific indications of a genuine requirement of public interest
which, notwithstanding the presumption of innocence, outweighs the rule of
respect for individual liberty laid down in Article 5 of the Convention
(see, among other authorities, Kudła v. Poland [GC], no. 30210/96, §§ 110
et seq., ECHR 2000-XI).
88. The persistence of reasonable suspicion that the person arrested has
committed an offence is a condition sine qua non for the lawfulness of the
continued detention, but with the lapse of time this will no longer be enough
to justify continued detention. The Court has not attempted to translate this
MAGEE AND OTHERS v. THE UNITED KINGDOM JUDGMENT
21
concept into a fixed number of days, weeks, months or years, or into various
periods depending on the seriousness of the offence (Stögmüller v. Austria,
no. 1602/62, § 4, 10 November 1969). Once the existence of “reasonable
suspicion” is no longer enough, the Court must establish whether the other
grounds given by the judicial authorities continued to justify the deprivation
of liberty. In particular, they must determine whether such grounds were
“relevant” and “sufficient”, and whether the national authorities displayed
“special diligence” in the conduct of the proceedings (see, among other
authorities, Letellier v. France, 26 June 1991, § 35, Series A no. 207, and
Yağcı and Sargın v. Turkey, 8 June 1995, § 50, Series A no. 319-A).
89. The Court’s case-law has not yet had occasion to consider the very
early stage of pre-trial detention in this context, presumably as, in the great
majority of cases, the existence of suspicion provides a sufficient ground for
detention and any unavailability of bail has not been seriously
challengeable. It is not in doubt, however, that there must exist the
opportunity for judicial consideration of release pending trial as even at this
stage there will be cases where the nature of the offence or the personal
circumstances of the suspected offender are such as to render detention
unreasonable, or unsupported by relevant or sufficient grounds. There is no
express requirement of “promptness” as in the first sentence of
paragraph 3 of Article 5. However, such consideration, whether on
application by the applicant or by the judge of his or her own motion, must
take place with due expedition, in order to keep any unjustified deprivation
of liberty to an acceptable minimum (see McKay, cited above, § 46).
90. In order to ensure that the right guaranteed is practical and effective,
not theoretical and illusory, it is not only good practice, but highly desirable
in order to minimise delay, that the judicial officer who conducts the first
automatic review of lawfulness and the existence of a ground for detention
also has the competence to consider release on bail. It is not, however, a
requirement of the Convention and there is no reason in principle why the
issues cannot be dealt with by two judicial officers, within the requisite time
frame. In any event, as a matter of interpretation, it cannot be required that
the examination of bail take place with any more speed than is demanded of
the first automatic review, which the Court has identified as being a
maximum of four days (see Brogan and Others, cited above).
(b) Application of the general principles to the present case
(α) Were the applicants brought promptly before a judge or other judicial
officer satisfying the requirements of Article 5 § 3 of the Convention?
91. Although, as noted above (at paragraph 80), the “competent legal
authority” in paragraph 1(c) of Article 5 § 3 is to be taken as a synonym of
the “judge or other officer authorised by law to exercise judicial power” in
paragraph 3, it does not follow that the judicial bodies to carry out the
22
MAGEE AND OTHERS v. THE UNITED KINGDOM JUDGMENT
various judicial functions contemplated by the two provisions must
necessarily be identical. On the contrary, in its case-law the Court has
repeatedly stressed that the specific purpose of the first limb of Article 5 § 3
is limited to ensuring that a detained person is brought promptly before a
judicial authority with the power to assess the lawfulness of the arrest, to
review the merits of the detention, and to order release if continued
detention would be unlawful. Where this is the case, the Court has found the
requirements imposed by this first part of Article 5 § 3 to be satisfied.
Accordingly, it considers that the correct question in the present case is not
whether the applicants should have been brought before the Magistrates
Court, the judicial authority in Northern Ireland before which an accused is
to be produced on a first appearance following a criminal charge, but
whether they were in fact brought before a judge or other officer satisfying
the requirements of the first limb of Article 5 § 3 of the Convention in
relation to an initial deprivation of liberty of the kind covered by
Article 5 § 1(c).
92. Before addressing this question, the Court observes that during their
detention the applicants were brought twice before a specially designated
County Court Judge: forty-eight hours after their arrest, when the DPP made
applications for warrants of further detention under paragraph 29 of
Schedule 8, and five days later, when the DPP made applications under
paragraph 36 of Schedule 8 for extensions to those warrants (see
paragraphs 6-8 and 33 above). Although it was the paragraph 36 order
which the applicants subsequently challenged by way of judicial review, the
High Court held that paragraph 32, which sets out the grounds for granting a
warrant of further detention, had to be interpreted in conformity with
Article 5 § 3 of the Convention (see paragraphs 19 and 21 above). The
Court will therefore proceed on the basis that there is no difference in the
competency of the judge under paragraph 29 and the judge under
paragraph 36.
93. With regard to the requirement of “promptness”, the Court notes that
in the present case the applicants were adults who were brought before a
judge within forty-eight hours of their arrest on suspicion of having
committed a serious terrorism-related crime. Bearing in mind the principles
set out at paragraphs 77 and 78 above, the Court accepts that they were
brought “promptly” before the judge.
94. The second requirement of Article 5 § 3 is that the first appearance
of the detained person before the judicial officer should be automatic. In the
present case the applicants have not sought to argue the contrary. Police
officers were required by paragraph 29 of Schedule 8 to the 2000 Act to
apply to the County Court Judge to extend the initial period of detention
beyond forty-eight hours (see paragraph 32 above); the applicants could not,
therefore, have been detained any longer than forty-eight hours without first
appearing before a judge.
MAGEE AND OTHERS v. THE UNITED KINGDOM JUDGMENT
23
95. Thirdly, the Court has repeatedly held that the judicial officer in
Article 5 § 3 of the Convention must offer the requisite guarantees of
independence from the executive and the parties; he or she must be able to
review the lawfulness of, and justification for, the arrest and detention
(to include a review of the circumstances militating for or against detention
in order to decide whether there were reasons to justify detention); and, if
there were insufficient reasons to justify detention, he or she must have the
power to order release.
96. It is common ground that the County Court Judge was independent.
Therefore, the two principal questions for the Court to address are first,
whether she had adequate jurisdiction to review the lawfulness of the
applicants’ detention; and secondly, whether she had the necessary power to
order their release.
97. Although the High Court held that paragraph 32 had to be
interpreted in conformity with Article 5 § 3 (see paragraphs 19 and 21
above), the applicants take issue with its subsequent suggestion that a
review of the lawfulness of the arrest need not involve a detailed analysis of
the basis for the decision to arrest and should reflect the constraints that
necessarily apply in many arrests for terrorist offences.
98. The Court observes that the guidance given by the High Court was
given in the abstract and, as such, it has not had the benefit of seeing how it
would be applied by the domestic courts in practice. Nevertheless, in
principle the Court sees nothing in the ruling of the High Court which
contradicts its own jurisprudence. In particular, it notes that in previous
cases it has stopped short of defining the exact content and/or form of
analysis required by Article 5 § 3; rather, it has simply stated that the
judicial officer must be able to review the lawfulness of, and the
justification for, the arrest and detention, review the circumstances
militating for or against detention, including the existence of reasonable
suspicion, and decide whether there are reasons justifying detention.
Moreover, as noted above (at paragraph 83), while it has stated that the
authorities do not have a “carte blanche” when investigating terrorist
offences, it has specifically acknowledged the special problems that the
investigation of such offences often present to the authorities. Therefore, on
the evidence before it, the Court cannot agree with the applicants that the
review foreseen by the High Court as being inherent in the impugned
legislation would necessarily fall short of the standard required by
Article 5 § 3 of the Convention.
99. In the present case the High Court, while quashing the County Court
Judge’s extensions of the detention on account of her failure to address the
initial lawfulness of the arrest, was satisfied that the County Court Judge
had not failed to have regard to the need for detention as the basis for the
grant of the warrant and that her decision was adequately reasoned (see
paragraphs 19 – 20 above).
24
MAGEE AND OTHERS v. THE UNITED KINGDOM JUDGMENT
100. With regard to the question of whether the County Court Judge had
the power to order release in the event of an unlawful arrest or detention, the
Court recalls that while there is no such express power stated in the 2000
Act, in the present case the High Court accepted that since the provisions of
that Act had to be read in conformity with the requirements of Article 5 § 3
of the Convention, the County Court Judge must have power to order
release if there was no lawful basis for the initial arrest or continued
detention (see paragraphs 19 and 21 above). In addition, it notes that where
a warrant (or a further warrant) is either not sought or not granted, the
person must be released as there is no longer any legal basis for continued
detention.
101. The applicants have suggested that the County Court Judge should
also have had the power to order conditional release. However, as noted at
paragraph 84 above, there is no support in the Court’s case-law for the
applicants’ assertion that the judicial authority conducting the first review of
deprivation of liberty should have had power to order conditional release.
The Court stated in McKay (cited above, § 47) that it would be “highly
desirable” for the judicial officer conducting the first automatic review of
lawfulness to also have competence to consider release on bail for reasons
other than the lawfulness of the detention or the existence of a reasonable
suspicion that the applicant had committed a criminal offence, but stressed
that this was not a requirement of the Convention and there was no reason
in principle why the issues could not be dealt with by two judicial officers.
(β) Should there have been a possibility of conditional release during the period
of the applicants’ detention?
102. Following the first review of their detention the applicants
remained in police custody for a further ten days. Although they were
brought for a second time before a County Court Judge after they had been
in detention for seven days, it is accepted that at no time during their
detention were they brought before a judge with power to order conditional
release. The applicants have therefore complained that insofar as the scheme
under Schedule 8 to the 2000 Act permitted their detention for a maximum
period of twenty-eight days without charge, during which no consideration
had to be given to their conditional release, it was not compatible with
Article 5 § 3 of the Convention.
103. The Court cannot consider the scheme under Schedule 8 in
abstracto; rather, it must confine itself to the facts of the case before it.
Therefore, although the applicants could have been detained for a maximum
of twenty-eight days, it cannot overlook the fact that in the present case they
were released after twelve days. Moreover, it does not consider the absence
of any eventual charge to be material; nothing in Article 5 § 3 suggests that
detainees must be charged with a criminal offence in order for their
detention to be compatible with that provision (Brogan, cited above, § 53).
MAGEE AND OTHERS v. THE UNITED KINGDOM JUDGMENT
25
104. As noted at paragraph 75 above, Article 5 § 3 is structurally
concerned with two separate matters which confer distinct rights and which
are not temporally linked: the early stages following an arrest on suspicion
of having committed a criminal offence, and the period pending any trial
before a criminal court, during which the individual may be detained or
released with or without conditions (see T.W. v. Malta, cited above, § 49,
McKay, cited above, § 31 and Medvedyev v. France, cited above, § 119).
During the initial stage under the first limb of Article 5 § 3, the detainee’s
detention may be justified by the existence, on its own, of a “reasonable
suspicion” that he had committed a criminal offence. However, the
persistence of suspicion will not suffice to justify, after a certain lapse of
time, the prolongation of the detention, although the Court has not
attempted to translate this concept into a fixed number of days, weeks,
months or years, or into various periods depending on the seriousness of the
offence (Stögmüller v. Austria, cited above, § 4). It therefore falls to the
Court in the present case to decide whether the applicants were at all times
detained under the first limb of Article 5 § 3, or whether at some point their
continued detention could no longer be justified by the existence of
“reasonable suspicion”.
105. In the present case the applicants were detained for twelve days,
which was a relatively short period of time. As such, the Court considers
that they were at all times in “the early stages” of the deprivation of liberty,
when their detention could be justified by the existence of a reasonable
suspicion that they had committed a criminal offence; it was not, therefore,
necessary that any consideration be given to their conditional release during
this period.
106. In any case, the Court notes that during the period of their detention
there were a number of safeguards in place to protect the applicants against
arbitrary detention. First, under the Schedule 8 scheme the judge could only
extend detention for a maximum of seven days and the overall period could
not exceed twenty-eight days. Before granting any extension the judge had
to be satisfied that there were reasonable grounds for believing that further
detention was necessary and that the investigation was being conducted
diligently and expeditiously (see paragraph 36 above). Furthermore,
following the ruling of the High Court, the judge also had to be satisfied that
the arrest was lawful and consider the merits of detention. Although in
certain cases detainees and/or their representatives could be excluded from
the hearings, in the present case the first applicant gave evidence on oath
during the first review and arguments from both applicants were heard
during the second reviews (see paragraph 8 above). Finally, the applicants
were able to challenge their continued detention by way of judicial review.
107. Stricter safeguards were in place for any extension that would
prolong detention beyond fourteen days; however, that was not necessary in
the present case as the applicants were released after twelve days.
26
MAGEE AND OTHERS v. THE UNITED KINGDOM JUDGMENT
108. In light of the factors set out above, the Court does not consider that
the absence of a possibility of conditional release during the period of the
applicants’ deprivation of liberty gave rise to any issues under Article 5 § 3
of the Convention.
(γ) Conclusion
109. The foregoing considerations are sufficient to enable the Court to
conclude that the applicants’ detention under Schedule 8 to the 2000 Act did
not breach Article 5 § 3 of the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Joins the applications nos. 26289/12 and 29891/12 lodged respectively
by the first and third applicants;
2. Declares the second applicant’s application (application no. 29062/12)
inadmissible;
3. Declares the first and third applicants’ complaints under Article 5 § 2 of
the Convention inadmissible as manifestly ill-founded;
4. Declares the first and third applicants’ complaints under Article 5 § 3 of
the Convention admissible;
5. Holds that there has been no violation of Article 5 § 3 of the Convention.
Done in English, and notified in writing on 12 May 2015, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos
Registrar
Päivi Hirvelä
President