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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
    1. European Convention on Human Rights Art 5
    2. Guzzardi v Italy (1980) 3 EHRR 333
    3. R v Howell [1982] QB 416; [1981] 3 All ER 383
    4. Foulkes v Chief Constable of Merseyside [1998] 3 All ER 705
    5. DPP v Redmond-Bate (1999) 163 JP 789: [2000] HRLR 249
    6. Bibby v Chief Constable of Essex (2000) 164 JP 297; [2000] Po LR 107; The Times April 24 2000
    7. Police and Criminal Evidence Act 1984 ss 24-25; original versions
    8. Hough v Chief Constable of the Staffordshire Constabulary [2001] EWCA Civ 39
    9. Police and Criminal Evidence Act 1984 s 24A
    10. Christie v Leachinsky [1947] AC 573
    11. Police and Criminal Evidence Act 1984 s 28
    12. Kenlin v Gardner [1967] 2 QB 510; [1966] 3 All ER 931
    13. Albert v Lavin [1982] AC 546; [1981] 3 All ER 878
    14. McKee v Chief Constable for Northern Ireland [1984] 1 WLR 1358; [1985] 1 All ER 1
    15. Fox, Campbell and Hartley v United Kingdom (1990) 13 EHRR 157
    16. O'Hara v United Kingdom (2002) 34 EHRR 32
    17. Brogan v United Kingdom (1989) 11 EHRR 117
    18. A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68
  24. Chapter twenty-three: Leaving the European Union

O'Hara v United Kingdom (2002) 34 EHRR 32

The circumstances of the case

8 The applicant was, and still is, a prominent member of Sinn Fein. He has been arrested by the police on a number of occasions and has issued proceedings relating to his allegations, inter alia , of arbitrary arrest, assault and ill-treatment arising out of six incidents. In proceedings lodged for incidents in 1988 and on 19 March 1993, he received an award of damages (amount unspecified). In or about January 1994, he was awarded damages of 2,500 for an incident in Guildhall Square on 16 March 1993 when the judge found that he had been wrongfully arrested by police officers who had purported to arrest the applicant for obstruction in failing to give his name when in fact they were fully aware of his identity. This case concerns his arrest in 1985 in relation to the murder of Mr Kurt Konig.

9 Kurt Konig was a German citizen working for the caterers of canteens in police stations in Londonderry. He was murdered on 21 November 1985. The Provisional IRA claimed responsibility for his death.

10 The Government submitted that Special Branch received intelligence that the applicant and three other persons were involved in the murder. The intelligence derived from four informants who had proved reliable in the past and had provided information leading to seizures of explosives or firearms and to prosecutions. None of the informants had a criminal record. The information given by these four informants was consistent, in that all gave the same names as being involved, and independent, in that none was aware of the existence of the others and each gave the information at separate meetings with police officers.

11 Detective Superintendent R of the Royal Ulster Constabulary ("the RUC") was briefed by Special Branch concerning this intelligence that the applicant was a member of the Provisional IRA and had been implicated in the murder.

12 Detective Superintendent R briefed Inspector B who in turn briefed Detective Constable S.

13 On 28 December 1985, at about 6.00-6.15 am, Detective Constable S visited the applicant's house and conducted a search. At the *816 conclusion of the search at 8.05 am, S arrested the applicant. He told the applicant that he was arresting him under section 12(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1984 ("the 1984 Act") which empowered a police constable to arrest, without a warrant, a person whom he had reasonable grounds for suspecting of being concerned in the commission, preparation or instigation of acts of terrorism.

14 The applicant was taken to Castlereagh detention centre where he was questioned about his possible membership of the IRA, his suspected involvement in Kurt Konig's murder and also his possible involvement in the murder of two soldiers on 1 April 1982. He was interviewed on 34 occasions.....

15 On 29 December 1985, the Secretary of State for Northern Ireland extended the applicant's period of detention beyond the initial 48 hour period, by five days. The applicant was released without charge on 3 January 1986 at 9 pm, after six days and 13 hours in custody.

16 By a writ issued on 20 August 1986 against the Chief Constable of the RUC, the applicant instituted a civil action for damages before the High Court in Northern Ireland in respect of, inter alia , assault, seizure of documents, false imprisonment and unlawful arrest.

17 Before the High Court, the submissions of the applicant's counsel concentrated, as the trial judge found, on the issues of assault and confiscation of documents. He did however raise the argument, in the context of the lawfulness of the arrest, that Detective Constable S did not have sufficient grounds for suspicion that the applicant had committed an offence to justify the arrest. The evidence before the court from Detective Constable S was to the effect that he attended a briefing at 5.30 am on 28 December 1985 in which he was told that he was to carry out a search to find evidence and arrest persons, including the applicant, suspected of involvement in the murder of Kurt Konig. He had been told that the applicant was involved in the murder by his superior officer, Inspector B, at that briefing and stated that these were the reasonable grounds for suspecting the applicant. He did not state that Inspector B had told him the grounds for his own suspicion, nor was he asked by counsel for either party. It was common ground that the murder was a terrorist offence. The superior officer was not called as a witness in the proceedings.

18 On 14 November 1990, McCollum J. found that there had been an unlawful taking of the applicant's notes by a police officer and awarded 100 in damages. He rejected the applicant's claims of assault and ill-treatment, finding that he had not satisfied him on the balance of probabilities that his version of events was right and that of the police officers, wrong.

As regards the allegations of wrongful arrest, the judge noted:

'... while [the applicant's counsel] submitted that the officer who arrested the [applicant] was required, in order to render the arrest lawful, in addition to holding the suspicion grounding the arrest of the [applicant], [to] have reasonable grounds for that suspicion, based on his own knowledge of facts giving rise to that suspicion. He accepted that both Mr Justice Carswell and the Lord Chief Justice had previously rejected the same submission in similar cases.

While he reserved his position on this issue he made no new submissions and produced no new arguments to me which would cause me to depart from the reasoning in their decisions, and in the circumstances I am satisfied in this case on the evidence of Detective Constable [S] that as a result of the information he had been given he had reasonable grounds for suspecting that the [applicant] had been concerned in the commission, preparation or instigation of acts of terrorism....

I find on the evidence that the detective constable had a suspicion that the [applicant] was involved in the murder of Kurt Konig and that this suspicion was reasonably based on information given to him by a superior officers at the briefing that morning.....

I would not wish to lay down the proposition that reasonable suspicion could in all circumstances be based on the opinion of another officer expressed without any supporting allegations of fact. But it does seem to me that a briefing officially given by a superior officer would give reasonable grounds for suspicion of the matters stated therein'. ....

19 On 24 October 1990, the applicant gave notice of appeal to the Court of Appeal in Northern Ireland concerning the claim of unlawful arrest and false imprisonment.

20 On 6 May 1994, the Court of Appeal dismissed the appeal, upholding the decision of the High Court that reasonable suspicion could be derived from information provided by a superior officer and that the arrest was lawful....

21 An appeal to the House of Lords against the decision of the Court of Appeal was dismissed on 12 December 1996. In his judgment, with which the others judges agreed, Lord Hope of Craighead held that it was not necessary for an arresting officer to possess all the information which had led to the decision to arrest, but that the arresting officer must have equipped himself with sufficient information so that he had reasonable cause to suspect before exercising the power of arrest. The information acted upon by the arresting officer need not be based on his own observations, as he is entitled for form a suspicion based on what he has been told; his reasonable suspicion may be based on information which has been given to him anonymously, or it may be based on information which turns out later to be wrong. While the evidence about the matters disclosed at the briefing was indeed scanty, he found that the trial judge was entitled to weigh up the evidence in the light of the surrounding circumstances and, having regard to the source of that information, and to draw inferences as to what a reasonable man, in the position of the independent observer, would make of it.

Relevant domestic law and practice

23 Section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984 provided at the relevant time:

Subject to sub-section (2) below, a constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be:

  1. ...
  2. (b) a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism to which this Part of this Act applies; ...

(4) A person arrested under this section shall not be detained in right of the arrest for more than forty eight hours after his arrest; but the Secretary of State may, in any particular case, extend the period of forty eight hours by a period or periods specified by him.

24 This provision sets a test of an honest suspicion upon reasonable grounds, involving an objective element. Domestic case law indicates that an arrest will be unlawful where, although there was an honest suspicion on the part of the arresting officer, that suspicion was not objectively reasonable.


The alleged violation of Article 5(1) of the Convention

26 The applicant complained about his arrest on 28 December 1985, invoking Article 5(1) , which provides as relevant:

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: ...

  1. (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; ....

The Court's assessment

34 The court emphasises that the "reasonableness" of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary arrest and detention laid down in Article 5(1)(c) of the Convention. This requires the existence of some facts or information which would satisfy an objective observer that the person concerned may have committed the offence, though what may be regarded as reasonable will depend on all the circumstances of the case.

35 In that context, terrorist crime poses particular problems, as the police may be called upon, in the interests of public safety, to arrest a suspected terrorist on the basis of information which is reliable but which cannot be disclosed to the suspect or produced in court, without jeopardising the informant. However, though Contracting States cannot be required to establish the reasonableness of the suspicion grounding the arrest of a suspected terrorist by disclosing confidential sources of information, the Court has held that the exigencies of dealing with terrorist crime cannot justify stretching the notion of "reasonableness" to the point where the safeguard secured by Article 5(1)(c) is impaired. Even in those circumstances, the respondent Government has 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.

36 It may also be observed that the standard imposed by Article 5(1)(c) does not presuppose that the police have sufficient evidence to bring charges at the time of arrest. The object of questioning during detention under sub-paragraph (c) of Article 5(1) 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.

37 In the present case, the Court recalls that the applicant was arrested by Detective Constable S on suspicion of having committed a terrorist offence, namely the murder of Mr Konig. After six days and 13 hours in detention, during which time he was questioned by police officers without making any reply, the applicant was released. The lawfulness of the arrest was challenged by the applicant in domestic proceedings, where the courts rejected his complaints.

38 The Court notes, first of all, that the standard of suspicion set by domestic law for arrest is that of honest suspicion on reasonable grounds. The present application is therefore to be distinguished from the previous cases of Fox, Campbell and Hartley and Murray v. United Kingom in which the Court examined complaints about arrest effected under provisions requiring only an honest suspicion. In the applicant's case, his claims that his arrest was not justified by a suspicion, held on reasonable grounds, that he had committed an offence, was examined by three levels of domestic courts. In those proceedings, evidence was given by the arresting officer, Detective Constable S, concerning the circumstances of the arrest and the applicant was given the opportunity to cross-examine. This must be disregarded per se as providing a signficant safeguard against arbitrary arrest.

39 As regards the basis for the applicant's arrest, the arresting officer Detective Constable S gave evidence that he had been given information by a superior officer, at a briefing prior to the arrest, that the applicant was suspected of involvement in the murder of Kurt Konig. No further questions were asked by the applicant's counsel as to what information passed at the briefing. Nor were any steps taken to have other officers involved in the arrest and detention, such as the briefing officer, called to give evidence. Furthermore, the applicant did not make any requests for discovery in relation to the existing documentary evidence concerning the arrest. The applicant argued before the Court that it was for the defendant police authorities to call the necessary witnesses to establish the lawfulness of the arrest. The Government pointed out that it had no reason to call any other officers as no issue had been raised concerning their role in events. The Court observes that indeed very little ("scanty" in the words of the High Court judge) evidence was produced concerning the background to the applicant's arrest, largely because at the trial level the applicant was in fact concentrating on his claims of assault and ill-treatment. The defendants in that action, not unreasonably, would have geared their response to the allegations which he was making. To the extent therefore that the applicant complains before this Court that no information was elicited during the domestic proceedings concerning the briefing, the Court considers that this was the consequence of the way in which the applicant pursued his claims.

40 In the proceedings before the Court, the Government has explained that the information which led the police to arrest the applicant was obtained independently from four separate informers, who had proved previously reliable and whose information concerning the murder was consistent. It was this information which was the basis of the decision to arrest the applicant and in respect of which instructions were given by the briefing officer to the arresting officer Detective Constable S. The applicant has disputed that this information was in fact received or that it could be regarded as reliable, since he was not involved in the incident. He argued that he was arrested as part of an arbitrary police policy which targeted him as a prominent member of Sinn Fein. The Court recalls, however, that no challenge was made in the domestic proceedings by the applicant to the good faith of any of the officers involved in the arrest or detention. It was never suggested, for example, that the arrest had been motivated by malice or was an arbitrary abuse of power, as the applicant had succeeded in proving concerning an incident on 16 March 1993. It had not been disputed by the applicant that a briefing had occurred, attended by police officers, at which information was passed on concerning the identity of persons involved in the murder of Kurt Konig and steps taken to plan a number of arrests.

42 The suspicion in the present case was based on information passed on at a police briefing from informers which identified the applicant as one of a number of persons suspected of involvement in a specific terrorist event, the murder of Mr Konig. There is no basis in the material provided for the Court to reject the Government's sub-missions on this point. The arrest was therefore a preplanned operation, more akin to the arrest in the Murray case, and was based on slightly more specific detail than in the Fox, Campbell and Hartley case. In these circumstances,.... the Court considers that the domestic courts' approach-that the judge was entitled on the sparse materials before him to infer the existence of reasonable grounds of suspicion-was not incompatible with the standard imposed by Article 5(1)(c) of the Convention.

43 The applicant argued, with some force, that police officers should not be able to hide behind references to anonymous informants by way of justifying abuse of their power of arrest. The Court re-iterates, however, that the applicant did not attempt to raise in the domestic proceedings any complaints concerning bad faith or oppression. His claim was based on the narrow legal argument concerning the state of mind of the arresting officer relevant under section 12(1)(b) of the 1984 Act. Nor is the Court persuaded that there was any immunity conferred on other police officers as a result of the finding by the domestic courts that the arresting officer had the required suspicion. If the briefing officer, or any other superior officer, had deliberately passed on misleading or inaccurate information to the arresting officer, the police authorities would have been liable for wrongful arrest or false imprisonment in respect of that misconduct.

44 The Court does not find therefore that the approach of the domestic courts to the standard of suspicion in this case removed the accountability of the police for arbitrary arrest or conferred on the police any impunity with regard to arrests conducted on the basis of confidential information. In the circumstances, the suspicion against the applicant reached the required level as it was based on specific information that he was involved in the murder of Kurt Konig and the purpose of the deprivation of liberty was to confirm or dispel that suspicion. The applicant can accordingly be said to have been arrested and detained on "reasonable suspicion" of a criminal offence, within the meaning of sub-paragraph (c) of Article 5(1) .

Accordingly, there has been no violation of that provision.