Case / Brannigan and McBride v. The United Kingdom (no. 14553/89; 14554/89)
Parities / Applicant: Mr. Peter Brannigan
Mr. Patrick McBride’s mother and personal representative on behalf of the deceased Mr. McBride
Amnesty International, Liberty, Interights and the Committee on the Administration of Justice
Facts / Both applicants were detained under section 12(1)(b) of the 1984 Act (Prevention of Terrorism: Temporary Provisions) in early January 1989. Brannigan’s detention, after a two-day extension and a further extension of three-days granted by the Secretary of State, lasted for six days and fourteen hours at an interrogation centre. He was served with a copy of “Notice to Persons in Police Custody” which informed him of his legal rights. He was interrogated 43 times, denied access to books, newspapers, writing materials, television, and radio. He was not allowed to associate with other prisoners. He was visited by a solicitor within 48 hours and was seen by a medical practitioner 17 times.
McBride’s detention was extended by three-days by the Secretary of State; he thus spent four days and six hours in custody at an interrogation centre. Within that time he was served with a “Notice to Persons in Police Custody,” was interrogated 22 times, received two visits from his solicitor, and was seen by a medical practitioner 8 times.
The original Prevention of Terrorism: Temporary Provisions Act of 1974 was instituted because of the emergency terrorist situation in N. Ireland in the 1970s. In the mid 1980’s the number of deaths due to terrorism fell, but organized terrorism continued to grow. There is a considerable scale of terrorist violence in N. Ireland and in parts of the UK. The 1974 Act “conferred special powers of arrest and detention on the police so they could deal more effectively with the threat of terrorism.” The 1974 was replaced by the 1989 Act which contains similar provisions. The periodic reviews of the legislation had indicated that such measures were indispensable to the prevention and investigation of terrorism. (para 12-15)
The 1984 Act allows arrest without a warrant in certain situations regarding terrorism connected with the affairs of N. Ireland. It allows such a person to be held in custody for up to seven days (with extensions) while suspending the requirement to bring the person before the court (see para 16). In reference to this law, terrorism means “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” (see para 17).
Arrests made under the 1984 Act require the person being arrested to be informed of the true grounds for his/her arrest at the time that they are taken into custody, the information provided does not need to be very specific, but rather more of general substance.
Under ordinary law there is no mechanism to arrest and hold a person simply for the purpose of questioning him/her. The 1984 allows a “…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” (para 20-22).
Under ordinary criminal law a person arrested on suspicion of his involvement with an offense may not be kept in detention an extended period of 36 hours for reasons concerning the securing or preserving of evidence. This extension is authorized by a court. Detention is only justified if the detainee is furnished with a copy of the complaint and brought before the court for a hearing to which he/she is entitled to be legally represented. The court may extend the detention even further, for another 36 hours (not to exceed 96 hours in total) based on a complaint by a constable (see para 18-19).
Persons arrested under the 1984 Act can avail themselves of an application for a writ of habeas corpus and a civil action claiming damages for false imprisonment. “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” (para 28). Habeas Corpus review does not consider the substantive issues of the case but rather the technical requirements of the law regarding that particular detention though a detention that is technically legal may also be reviewed on the basis of an alleged misuse of power (bad faith) (para 28).
The Court considered a very similar issue to this case in Brogan and Others v. UK in November 1988. In that case the Court held that the UK was in violation of Art. 5.3 and 5.5 ECHR. The UK government found it especially difficult to bring terrorists to justice while limiting the time of detention to an amount that would be acceptable under ECHR commitments. The government also found it difficult to find an acceptable alternative to the 1984 Act-style detention procedure. In response to this, the UK government derogated (Art. 15) from Art 5.3 in reference to section 12 of the 1984 Act.
The applicants argue that the derogation is invalid.
Arguments / Applicants / Government
·  The periods of detention and absence of an enforceable right to compensation are in violation of Art. 5.3 and 5.5 of the ECHR / ·  Based on the Brogan and Others decision, the UK admits the contravention of Art 5.3, 5.5 but argues that the State’s obligations under the ECHR have been met by their derogation
·  the derogation is invalid because it violates the stipulation in Art 15.2 by derogating from safeguards recognized as essential for the protection of non-derogable rights (Art 2 +3) (para 41)
·  the Brogan and Others judgment set judicial review as one of the fundamental principles of a democratic society and in that case the margin of appreciation for the government was not enough to outweigh the importance of the right (para 41)
·  Amnesty: strict scrutiny should be required by the Court when examining derogation from fundamental procedural guarantees that are essential for the protection of detainees, if States are allowed a margin of appreciation at all, it should be narrower the more permanent the emergency becomes (para 42) / No response
How shall the Court determine the margin of appreciation?
ROL: It falls to each Contracting State to determine whether the life of the nation is threatened by a “public emergency” and what is necessary to overcome such an emergency. The national authorities are in a better position to judge the emergency and the scope of necessary measures. However it is for the Court to rule on whether the State has gone beyond what is strictly required by the emergency, taking note of the nature of the rights affected, the circumstances leading to the emergency, and the duration of the emergency.
H+R: The State is awarded a wide margin of appreciation though not an unlimited power of appreciation.
ROL: Judicial control of interferences by the executive with an individual’s right to liberty is implied by one of the fundamental principles of a democratic society, namely the rule of law (para 48).
H+R: “…it must be observed that the central issue in the present case is not the existence of the power to detain a suspected terrorist for up to seven days…but rather the exercise of this power without judicial intervention.” (para 48)
·  No dispute that a public emergency exists
·  Liberty and Others: The government withdrew a derogation on August 1984, unless there had been a deterioration of the situation since then, which there has not been, there is no basis to derogate now (para 44-47) / ·  There is a public emergency regarding the public disturbance in N. Ireland
·  Commission agreed (para 46)
Is there a public emergency threatening the life of the nation?
ROL: The decision to withdraw a derogation is, in principle, a matter within the discretion of the State.
H+R: The Court considers there can be no doubt that a public emergency existed at the relevant time. The fact of withdrawing a derogation has no bearing on this matter, it is clear that the Government believed (at the time of withdrawal) that the legislation in question was compatible with the Convention.
·  The derogation was not a response to an altered state of affairs but rather was a reaction to the Brogan and Others case and was an attempt to try to circumvent the consequences of it / ·  The judgment did trigger the derogation only because it exposed the fact that the legislation was not consistent with the ECHR but the legislation and the derogation are in direct response to the emergency situation
Was the derogation a genuine response to an emergency situation (strictly required)?
H+R: The derogation is clearly linked the persistence of an emergency situation, there is no indication that this is not a genuine response. (para 51)
·  The derogation is an interim measure because the government had not issued a final view on whether there was a viable alternative. / ·  The examination of the possibility of judicial control of extended detention does not invalidate the derogation, noting especially that derogations are meant to remain under constant review
Was the derogation premature (strictly required)?
ROL: Art 15 does not envisage an interim suspension of Convention guarantees pending consideration of the necessity to derogate. Art 15.3 requires permanent review of the need for emergency measures. (para 54)
H+R: The validity of the derogation cannot be called into question for the sole reason that the government has decided to examine alternative methods, reflection is in conformity with the review called for in Art 15.3 and is inherent in the notion of proportionality.
·  The material required to satisfy a court of the justification for extended confinement isn’t more sensitive than that required for habeas corpus proceedings
·  The courts in N. Ireland often dealt with submissions based on confidential information and has managed sufficient safeguards, procedures also existed where judges were required to act on the basis of material not disclosed to the legal advisor or his client / ·  judicial involvement in the granting or approval of an extended stay would require the disclosure of a significant amount of information (more so than that required for habeas corpus)
·  There is no procedure that involves both the non-disclosure of material and an executive act of the court (Secretary of State).
·  It is not feasible to introduce a system that is compatible with Art 5.3 and would not weaken the effective response to the terrorist threat
·  disclosure of certain information would put at risk both the attainable information and the individuals assisting the police
·  Involving the judiciary in the process of granting or approving extensions creates a risk of undermining their independence as they would be inevitably seen as part of the investigation and prosecution process
·  arrest and detention are indispensable powers in combating terrorism. Terrorists are trained to remain silent under police questioning and thus the police need to undertake extensive checks and inquiries and to rely on a greater degree of detective work and forensic examination. (para 56)
Was the absence of judicial control of extended detention justified (strictly required)?
ROL: It is not the Court’s role to substitute its view for what the Government believes to be the measures that are most appropriate or expedient at the relevant time when balancing the combating of terrorism and the respect for individual rights. (para 59)
H+R: The Court notes that the Government has expressed in various reports the difficulties of investigating and prosecuting terrorist crime and that it has held that it is essential to prevent the disclosure of certain information to the detainee and his legal advisor. The Court also notes that the introduction of a “judge or other officer authorized by the law to exercise judicial power” into the process would not necessarily mean compliance with Art 5.3. It is appropriate for the Government to want to protect the public confidence in the independence of the judiciary in N. Ireland where the judiciary is small and vulnerable to terrorist attacks. In light of these considerations, the Government has not exceeded its margin of appreciation.
·  Amnesty and Liberty: There are international standards (1988 UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment) that have ruled out incommunicado detention.
·  A&L: Habeas corpus in N. Ireland has proven to be ineffective in practice
·  A&L: Art 5.4 should be considered non-derogable in times of public emergency
·  decisions to extend can not be challenged by habeas corpus or by judicial review / no response
Are there appropriate safeguards against abuse (strictly required)?
H+R: The remedy of habeas corpus is available to test the lawfulness of the original arrest and detention. Detainees have an absolute and enforceable right to consult a solicitor after 48 hours; the delay of this right is only possible if reasonable grounds exist. The delay of access to a solicitor is susceptible to judicial review. It is not disputed that detainees are entitled to inform a relative or friend about their detention and to have access to a doctor. The operation of this legislation has been kept under regular independent review and has been subject to regular renewal.