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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

Brogan v United Kingdom (1989) 11 EHRR 117

Particular circumstances of the case

11. The first applicant, Mr. Terence Patrick Brogan, was born in 1961. He is a farmer and lives in County Tyrone, Northern Ireland.

12. He was arrested at his home at 6.15 a.m. on 17 September 1984 by police officers under section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984 ( 'the 1984 Act' ). He was then taken to Gough Barracks, Armagh, where he was detained until his release at 5.20 p.m. on 22 September 1984, that is a period of detention of five days and eleven hours.

13. Within a few hours of his arrest, he was questioned about his suspected involvement in an attack on a police mobile patrol which occurred on 11 August 1984 in County Tyrone and resulted in the death of a police sergeant and serious injuries to another police officer....

14. The second applicant, Mr. Dermot Coyle,....

15.....was arrested at his home by police officers at 6.35 a.m. on 1 October 1984 under section 12 of the 1984 Act. He was then taken to Gough Barracks, Armagh, where he was detained until his release at 11.05 p.m. on 7 October 1984, that is a period of detention of six days and sixteen and a half hours.

16. Within a few hours of his arrest, he was questioned about the planting of a land-mine intended to kill members of the security forces on 23 February 1984 and a blast incendiary bomb attack on 13 July 1984, both of which occurred in County Tyrone. He was also interrogated about his suspected provision of firearms and about his suspected membership of the Provisional IRA.....

17. The third applicant, Mr. William McFadden....

18.....was arrested at his home at 7.00 a.m. on 1 October 1984 by a police officer under section 12 of the 1984 Act. He was then taken to Castlereagh Police Holding Centre, Belfast, where he was detained until his release at 1.00 p.m. on 5 October 1984, that is a period of four days and six hours.

19. Within a few hours of his arrest, he was questioned about the murder of a soldier in a bomb attack in Londonderry on 15 October 1983 and the murder of another soldier during a petrol bomb and gunfire attack in Londonderry on 23 April 1984. He was also interrogated about his suspected membership of the Provisional IRA.....

20. The fourth applicant, Mr. Michael Tracey.....

21. ....was arrested at his home at 7.04 a.m. on 1 October 1984 by police officers under section 12 of the 1984 Act. He was then taken to Castlereagh Royal Ulster Constabulary ('RUC' ) Station, Belfast, where he was detained until his release at 6.00 p.m. on 5 October 1984, that is a detention period of four days and eleven hours.

22. Within a few hours of his arrest, he was questioned about the armed robbery of post offices in Londonderry on 3 March 1984 and 29 May 1984 and a conspiracy to murder members of *122 the security forces. He was also interrogated concerning his suspected membership of the Irish National Liberation Army (INLA), a proscribed terrorist organization.....

23. All of the applicants were informed by the arresting officer that they were being arrested under section 12 of the 1984 Act and that there were reasonable grounds for suspecting them to have been involved in the commission, preparation or instigation of acts of terrorism connected with the affairs of Northern Ireland.....

24. On the day following his arrest, each applicant was informed by police officers that the Secretary of State for Northern Ireland had agreed to extend his detention by a further five days under section 12(4) of the 1984 Act. None of the applicants was brought before a judge or other officer authorised by law to exercise judicial power, nor were any of them charged after their release.

Relevant domestic law and practice

25. The emergency situation in Northern Ireland in the early 1970s and the attendant level of terrorist activity form the background to the introduction of the Prevention of Terrorism (Temporary Provisions) Act 1974 (the 1974 Act). Between 1972 and 1983, over two thousand deaths were attributable to terrorism in Northern Ireland as compared with about one hundred in Great Britain. In the mid 1980s, the number of deaths was significantly lower than in the early 1970s but organised terrorism continued to thrive.

26. The 1974 Act came into force on 29 November 1974. The Act proscribed the IRA and made it an offence to display support in public for that organisation in Great Britain.... The Act also conferred special powers of arrest and detention on the police so that they could deal more effectively with the threat of terrorism.

27. The 1974 Act was subject to renewal every six months by Parliament so that, inter alia, the need for continued use of the special powers could be monitored. The Act was thus renewed until March 1976 when it was re-enacted with certain amendments.

28. The 1976 Act was reviewed by Lord Shackleton in a report published in July 1978 and subsequently by Lord Jellicoe in a report published in January 1983. .....

Power to arrest without warrant under the 1984 and other Acts

30. The relevant provisions of section 12 of the 1984 Act, substantially the same as those of the 1974 and 1976 Acts, are as follows:

'... [A] constable may arrest without warrant a person who 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;

The acts of terrorism to which this Part of this Act applies are:

  1. (a) acts of terrorism connected with the affairs of Northern Ireland....'

(4) A person arrested under this section shall not be detained in right of the arrest for more than 48 hours after his arrest; but the Secretary of State may, in any particular case, extend the period of 48 hours by a period or periods specified by him.

(5) Any such further period or periods shall not exceed five days in all.....

31. According to the definition given in section 14(1) of the 1984 Act, 'terrorism' means of the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear' . An identical definition of terrorism in the Northern Ireland (Emergency Provisions) Act 1978 was held to be 'in wide terms' by the House of Lords, which rejected an interpretation of the word 'terrorist' that would have been 'in narrower terms than popular usage of the word "terrorist" might connote to a police officer or a layman' .

33. The Northern Ireland (Emergency Provisions) Act 1978 also conferred special powers of arrest without warrant. Section 11 provided that a constable could arrest without warrant any person who he suspected of being a terrorist. Such a person could be detained for up to 72 hours without being brought before a court.

The 1978 Act has been amended by the Northern Ireland (Emergency Provisions) Act 1987, which came into force on 15 June 1987. The powers of arrest under the 1978 Act have been replaced by a power to enter and search premises for the purpose of arresting a suspected terrorist under section 12 of the 1984 Act.

Exercise of the power to make an arrest under section 12(1)(b) of the 1984 Act

34. In order to make a lawful arrest under section 12(1)(b) of the 1984 Act, the arresting officer must have a reasonable suspicion that the person being arrested is or has been concerned in the commission, preparation or instigation of acts of terrorism. In addition, an arrest without warrant is subject to the applicable common law rules laid down by the House of Lords in the case of Christie v. Leachinsky. The person being arrested must in ordinary circumstances be informed of the true ground of his arrest at the time he is taken into custody or, if special circumstances exist which excuse this, as soon thereafter as it is reasonably practicable to inform him. This does not require technical or precise language to be used provided the person being arrested knows in substance why.

In the case of ex parte Lynch [1980] N.I.R. 126 at 131 , in which the arrested person sought a writ of habeas corpus, the High Court of Northern Ireland discussed section 12(1)(b) . The arresting officer had told the applicant that he was arresting him under section 12 of the 1976 Act as he suspected him of being involved in terrorist activities. The High Court held that the officer had communicated the true ground of arrest and had done what was reasonable in the circumstances to convey to the applicant the nature of his suspicion, namely that the applicant was involved in terrorist activities. Accordingly, the High Court found that the lawfulness of the arrest could not be inpugned in this respect.

35. The arresting officer's suspicion must be reasonable in the circumstances and to decide this the court must be told something about the sources and grounds of the suspicion.

Purpose of arrest and detention under section 12 of the 1984 Act

36. Under ordinary law, there is no power to arrest and detain a person merely to make enquiries about him. The questioning of a suspect on the ground of reasonable suspicion that he has committed an arrestable offence is a legitimate cause for arrest and detention without warrant where the purpose of such questioning is to dispel or confirm such a reasonable suspicion, provided he is brought before a court as soon as practicable.

On the other hand, Lord Lowry C.J. held in the case of Ex parte Lynch that under the 1984 Act no specific crime need be suspected to ground a proper arrest under section 12(1)(b). He added:

'... [I]t is further to be noted that an arrest under section 12(1) leads ... to a permitted period of detention without preferring a charge. No charge may follow at all; thus an arrest is not necessarily ... the first step in a criminal proceeding against a suspected person on a charge which was intended to be judicially investigated.'

Extension of period of detention

37. In Northern Ireland, applications for extended detention beyond the initial 48 hour period are processed at senior police level in Belfast and then forwarded to the Secretary of State for Northern Ireland for approval by him or, if he is not available, a junior minister.

There are no criteria in the 1984 Act (or its predecessors) governing decisions to extend the initial period of detention, though strict criteria that have been developed in practice are listed in the reports and reviews appended to the government's memorial.

According to statistics quoted by the Standing Advisory Commission on Human Rights in its written submissions, just over 2 per cent. of police requests for extended detention in Northern Ireland between the entry into force of the 1984 Act in March 1984 and June 1987 were refused by the Secretary of State.

Remedies

38. The principal remedies available to persons detained under the 1984 Act are an application for a writ of habeas corpus and a civil action claiming damages for false imprisonment.

Habeas corpus

39. Under the 1984 Act, a person may be arrested and detained in right of arrest for a total period of seven days. Paragraph 5(2) of Schedule 3 to the 1984 Act provides that a person detained pursuant to an arrest under section 12 of the Act 'shall be deemed to be in legal custody when he is so detained' . However, the remedy of habeas corpus is not precluded by paragraph 5(2) cited above. If the initial arrest is unlawful, so also is the detention grounded upon that arrest.

40. Habeas corpus is a procedure whereby a detained person may make an urgent application for release from custody on the basis that his detention is unlawful.

The court hearing the application does not sit as a court of appeal to consider the merits of the detention: it is confined to a review of the lawfulness of the detention. The scope of this review is not uniform and depends on the context of the particular case and, where appropriate, the terms of the relevant statute under which the power of detention is exercised. The review will encompass compliance with the technical requirements of such a statute and may extend, inter alia , to an inquiry into the reasonableness of the suspicion on which the arrest is based. Detention that is technically legal may also be reviewed on the basis of an alleged misuse of power in that the authorities may have acted in bad faith, capriciously or for an unlawful purpose.

The burden of proof is on the respondent authorities which must justify the legality of the decision to detain, provided that the person applying for a writ of habeas corpus has firstly established a prima facie case.

False imprisonment

41. A person claiming that he has been unlawfully arrested and detained may in addition bring an action seeking damages for false imprisonment. Where the lawfulness of the arrest depends upon reasonable cause for suspicion, it is for the defendant authority to prove the existence of such reasonable cause.

In false imprisonment proceedings, the reasonableness of an arrest may be examined on the basis of the well-established principles of judicial review of the exercise of executive discretion.

JUDGMENT

48. The government has adverted extensively to the existence of particularly difficult circumstances in Northern Ireland, notably the threat posed by organised terrorism.

The Court, having taken notice of the growth of terrorism in modern society, has already recognised the need, inherent in the Convention system, for a proper balance between the defence of the institutions of democracy in the common interest and the protection of individual rights.

The government informed the Secretary General of the Council of Europe on 22 August 1984 that it was withdrawing a notice of derogation under Article 15 which had relied on an emergency situation in Northern Ireland. The government indicated accordingly that in their opinion 'the provisions of the Convention are being fully executed' . In any event, as they pointed out, the derogation did not apply to the area of law in issue in the present case.

Consequently, there is no call in the present proceedings to consider whether any derogation from the United Kingdom's obligations under the Convention might be permissible under Article 15 by reason of a terrorist campaign in Northern Ireland. Examination of the case must proceed on the basis that the Articles of the Convention in respect of which complaints have been made are fully applicable. This does not, however, preclude proper account being taken of the background circumstances of the case. In the context of Article 5, it is for the Court to determine the significance to be attached to those circumstances and to ascertain whether, in the instant case, the balance struck complied with the applicable provisions of that Article in the light of their particular wording and its overall object and purpose.

Alleged breach of Article 5(1)

49. The applicants alleged breach of Article 5(1) of the Convention, which, in so far as relevant, provides:

'Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

  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 ...; '

There was no dispute that the applicants' arrest and detention were 'lawful' under Northern Ireland law and, in particular, 'in accordance with a procedure prescribed by law' . The applicants argued that the deprivation of liberty they suffered by virtue of section 12 of the 1984 Act failed to comply with Article 5(1)(c) , on the ground that they were not arrested on suspicion of an 'offence' , nor was the purpose of their arrest to bring them before the competent legal authority.

50. Under the first head of argument, the applicants maintained that their arrest and detention were grounded on suspicion, not of having committed a specific offence, but rather of involvement in unspecified acts of terrorism, something which did not constitute a breach of the criminal law in Northern Ireland and could not be regarded as an 'offence' under Article 5(1)(c).

The government has not disputed that the 1984 Act did not require an arrest to be based on suspicion of a specific offence but argued that the definition of terrorism in the Act was compatible with the concept of an offence and satisfied the requirements of paragraph (1)(c) in this respect, as the Court's case law confirmed. In this connection, the government pointed out that the applicants were not in fact suspected of involvement in terrorism in general, but of membership of a proscribed organisation and involvement in specific acts of terrorism, each of which constituted an offence under the law of Northern Ireland and each of which was expressly put to the applicants during the course of their interviews following their arrests.

51. Section 14 of the 1984 Act defines terrorism as 'the use of violence for political ends' , which includes 'the use of violence for the purpose of putting the public or any section of the public in fear' . The same definition of acts of terrorism-as contained in the Detention of Terrorists (Northern Ireland) Order 1972 and the Northern Ireland (Emergency Provisions) Act 1973 -has already been found by the Court to be 'well in keeping with the idea of an offence' .

In addition, all of the applicants were questioned within a few hours of their arrest about their suspected involvement in specific offences and their suspected membership of proscribed organisations.

Accordingly, the arrest and subsequent detention of the applicants were based on a reasonable suspicion of commission of an offence within the meaning of Article 5(1)(c).

52. Article 5(1)(c) also requires that the purpose of the arrest or detention should be to bring the person concerned before the competent legal authority.

The government and the Commission have argued that such an intention was present and that if sufficient and usable evidence had been obtained during the police investigation that followed the applicants' arrest, they would undoubtedly have been charged and brought to trial.

The applicants contested these arguments and referred to the fact that they were neither charged nor brought before a court during their detention. No charge had necessarily to follow an arrest under section 12 of the 1984 Act and the requirement under the ordinary law to bring the person before a court had been made inapplicable to detention under this Act. In the applicants' contention, this was therefore a power of administrative detention exercised for the purpose of gathering information, as the use in practice of the special powers corroborated.

53.....The fact that the applicants were neither charged nor brought before a court does not necessarily mean that the purpose of their detention was not in accordance with Article 5(1)(c) . As the government and the Commission have stated, the existence of such a purpose must be considered independently of its achievement and sub-paragraph (c) of Article 5(1) does not presuppose that the police should have obtained sufficient evidence to bring charges, either at the point of arrest or while the applicants were in custody.

Such evidence may have been unobtainable or, in view of the nature of the suspected offences, impossible to produce in court without endangering the lives of others. There is no reason to believe that the police investigation in this case was not in good faith or that the detention of the applicants was not intended to further that investigation by way of confirming or dispelling the concrete suspicions which, as the Court has found, grounded their arrest. Had it been possible, the police would, it can be assumed, have laid charges and the applicants would have been brought before the competent legal authority.

Their arrest and detention must therefore be taken to have been effected for the purpose specified in paragraph (1)(c).

54. In conclusion, there has been no violation of Article 5(1).

Alleged breach of Article 5(3)

55. Under the 1984 Act, a person arrested under section 12 on reasonable suspicion of involvement in acts of terrorism may be detained by police for an initial period of 48 hours, and, on the authorisation of the Secretary of State for Northern Ireland, for a further period or periods of up to five days.

The applicants claimed, as a consequence of their arrest and detention under this legislation, to have been the victims of a violation of Article 5(3) which provides;

'Everyone arrested or detained in accordance with the provisions of paragraph (1)(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.'

The applicants noted that a person arrested under the ordinary law of Northern Ireland must be brought before a Magistrates' Court within 48 hours; and that under the ordinary law in England and Wales the maximum period of detention permitted without charge is four days, judicial approval being required at the 36 hour stage. In their submission, there was no plausible reason why a seven-day detention period was necessary, marking as it did such a radical departure from ordinary law and even from the three-day period permitted under the special powers of detention embodied in the Northern Ireland (Emergency Provisions) Act 1978. Nor was there any justification for not entrusting such decisions to the judiciary of Northern Ireland.

56. The government has argued that in view of the nature and extent of the terrorist threat and the resulting problems in obtaining evidence sufficient to bring charges, the maximum statutory period of detention of seven days was an indispensable part of the effort to combat that threat, as successive parliamentary debates and reviews of the legislation had confirmed. In particular, they drew attention to the difficulty faced by the security forces in obtaining evidence which is both admissable and usable in consequence of training in anti-interrogation techniques adopted by those involved in terrorism. Time was also needed to undertake necessary scientific examinations, to correlate information from other detainees and to liaise with other security forces. The government claimed that the need for a power of extension of the period of detention was borne out by statistics. For instance, in 1987 extensions were granted in Northern Ireland in respect of 365 persons. Some 83 were detained in excess of five days and of this number 39 were charged with serious terrorist offences during the extended period.

As regards the suggestion that extensions of detention beyond the initial 48-hour period should be controlled or even authorised by a judge, the government pointed out the difficulty, in view of the acute sensitivity of some of the information on which the suspicion was based, of producing it in court. Not only would the court have to sit in camera but neither the detained person nor his legal advisers could be present or told any of the details. This would require a fundamental and undesirable change in the law and procedure of the United Kingdom under which an individual who is deprived of his liberty is entitled to be represented by his legal advisers at any proceedings before a court relating to his detention. If entrusted with the power to grant extensions of detention, the judges would be seen to be exercising an executive rather than a judicial function. It would add nothing to the safeguards against abuse which the present arrangements are designed to achieve and could lead to unanswerable criticism of the judiciary. In all the circumstances, the Secretary of State was better placed to take such decisions and to ensure a consistent approach. Moreover, the merits of each request to extend detention were personally scrutinised by the Secretary of State or, if he was unavailable, by another Minister.

57. The Commission, in its report, cited its established case law to the effect that a period of four days in cases concerning ordinary criminal offences and of five days in exceptional cases could be considered compatible with the requirement of promptness in Article 5(3). In the Commission's opinion, given the context in which the applicants were arrested and the special problems associated with the investigation of terrorist offences, a somewhat longer period of detention than in normal cases was justified. The Commission concluded that the periods of four days and six hours (Mr. McFadden) and four days and eleven hours (Mr. Tracey) did satisfy the requirement of promptness, whereas the periods of five days and eleven hours (Mr. Brogan) and six days and sixteen and a half hours (Mr. Coyle) did not.

58. The fact that a detained person is not charged or brought before a court does not in itself amount to a violation of the first part of Article 5(3) . No violation of Article 5(3) can arise if the arrested person is released 'promptly' before any judicial control of his detention would have been feasible. If the arrested person is not released promptly, he is entitled to a prompt appearance before a judge or judicial officer.

The assessment of 'promptness' has to be made in the light of the object and purpose of Article 5 . The Court has regard to the importance of this Article in the Convention system: it enshrines a fundamental human right, namely the protection of the individual against arbitrary interferences by the State with his right to liberty. Judicial control of interferences by the executive with the individual's right to liberty is an essential feature of the guarantee embodied in Article 5(3), which is intended to minimise the risk of arbitrariness. Judicial control is implied by the rule of law, 'one of the fundamental principles of a democratic society ..., which is expressly referred to in the Preamble to the Convention' and 'from which the whole Convention draws its inspiration'.

59. The obligation expressed in English by the word 'promptly' and in French by the word ' aussitôt ' is clearly distinguishable from the less strict requirement in the second part of paragraph 3 ('reasonable time' / 'délai raisonnable') and even from that in paragraph 4 of Article 5 ('speedily' / 'à bref délai'). The term 'promptly' also occurs in the English text of paragraph 2, where the French text uses the words 'dans le plus court délai'. As indicated in the Ireland v. United Kingdom judgment, 'promptly' in paragraph 3 may be understood as having a broader significance than 'aussitôt', which literally means immediately. ....

The use in the French text of the word aussitôt , with its constraining connotation of immediacy, confirms that the degree of flexibility attaching to the notion of 'promptness' is limited.....

60. The instant case is exclusively concerned with the arrest and detention, by virtue of powers granted under special legislation, of persons suspected of involvement in terrorism in Northern Ireland. The requirements under the ordinary law in Northern Ireland as to bringing an accused before a court were expressly made inapplicable to such arrest and detention by section 12(6) of the 1984 Act. There is no call to determine in the present judgment whether in an ordinary criminal case any given period, such as four days, in police or administrative custody would as a general rule be capable of being compatible with the first part of Article 3(3).

None of the applicants was in fact brought before a judge or judicial officer during his time in custody. The issue to be decided is therefore whether, having regard to the special features relied on by the government, each applicant's release can be considered as 'prompt' for the purposes of Article 5(3) .

61. The investigation of terrorist offences undoubtedly presents the authorities with special problems, partial reference to which has already been made under Article 5(1). The Court takes full judicial notice of the factors adverted to by the government in this connection. It is also true that in Northern Ireland the referral of police requests for extended detention to the Secretary of State and the individual scrutiny of each police request by a Minister do provide a form of executive control. In addition, the need for the continuation of the special powers has been constantly monitored by Parliament and their operation regularly reviewed by independent personalities. The Court accepts that, subject to the existence of adequate safeguards, the context of terrorism in Northern Ireland has the effect of prolonging the period during which the authorities may, without violating Article 5(3), keep a person suspected of serious terrorist offences in custody before bringing him before a judge or other judicial officer.

The difficulties, alluded to by the government, 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. However, they cannot justify, under Article 5(3), dispensing altogether with 'prompt' judicial control.

62. As indicated above, the scope for flexibility in interpreting and applying the notion of 'promptness' is very limited. In the Court's view, even the shortest of the four periods of detention namely the four days and six hours spent in police custody by Mr. McFadden, falls outside the strict constraints as to time permitted by the first part of Article 5(3). To attach such importance to the special features of this case as to justify so lengthy a period of detention without appearance before a judge or other judicial officer would be an unacceptably wide interpretation of the plain meaning of the word 'promptly' . An interpretation to this effect would import into Article 5(3) a serious weakening of a procedural guarantee to the detriment of the individual and would entail consequences impairing the very essence of the individual and would entail consequences impairing the very essence of the right protected by this provision. The Court thus has to conclude that none of the applicants was either brought 'promptly' before a judicial authority or released 'promptly' following his arrest. The undoubted fact that the arrest and detention of the applicants were inspired by the legitimate aim of protecting the community as a whole from terrorism is not on its own sufficient to ensure compliance with the specific requirements of Article 5(3).

There has thus been a breach of Article 5(3) in respect of all four applicants.

Alleged breach of Article 5(4)

63. The applicants argued that as Article 5 had not been incorporated into United Kingdom law, an effective review of the lawfulness of their detention, as required by paragraph (4) of Article 5, was precluded. Article 5(4) provides as follows:

'Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.'

64. The remedy of habeas corpus was available to the applicants in the present case, though they chose not to avail themselves of it. Such proceedings would have led to a review of the lawfulness of their arrest and detention under the terms of the 1984 Act and the applicable principles developed by case law.

The Commission found that the requirements of Article 5(4) were satisfied since the review available in Northern Ireland would have encompassed the procedural and substantive basis, under the Convention, for their detention. The government have adopted the same reasoning.

65. According to the Court's established case law, the notion of 'lawfulness' under paragraph (4) has the same meaning as in paragraph 1; and whether an 'arrest' or 'detention' can be regarded as 'lawful' has to be determined in the light not only of domestic law, but also of the text of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5(1) . By virtue of paragraph (4) of Article 5, arrested or detained persons are entitled to a review hearing upon the procedural and substantive conditions which are essential for the 'lawfulness' , in the sense of the Convention, of their deprivation of liberty. This means that, in the instant case, the applicants should have had available to them a remedy allowing the competent court to examine not only compliance with the procedural requirements set out in section 12 of the 1984 Act but also the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention.

As is shown by the relevant case law, in particular the Van Hout and Lynch judgments, these conditions are met in the practice of the Northern Ireland courts in relation to the remedy of habeas corpus.

Accordingly, there has been no violation of Article 5(4)....