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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> MURRAY v. THE UNITED KINGDOM - 14310/88 - Grand Chamber Judgment  ECHR 39 (28 October 1994)
Cite as: (1995) 19 EHRR 193, (1994) 19 EHRR 193,  19 EHRR 193,  ECHR 39, 19 EHRR 193
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COURT (GRAND CHAMBER)
CASE OF MURRAY v. THE UNITED KINGDOM
(Application no. 14310/88)
28 October 1994
In the case of Murray v. the United Kingdom*,
The European Court of Human Rights, sitting, in pursuance of Rule 51 of Rules of Court A**, as a Grand Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr F. Gölcüklü,
Mr R. Macdonald,
Mr A. Spielmann,
Mr S.K. Martens,
Mr I. Foighel,
Mr R. Pekkanen,
Mr A.N. Loizou,
Mr J.M. Morenilla,
Sir John Freeland,
Mr A.B. Baka,
Mr M.A. Lopes Rocha,
Mr L. Wildhaber,
Mr G. Mifsud Bonnici,
Mr J. Makarczyk,
Mr P. Jambrek,
Mr K. Jungwiert,
and also of Mr H. Petzold, Acting Registrar,
Having deliberated in private on 23 April and 21 September 1994,
Delivers the following judgment, which was adopted on the last-mentioned date:
The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 5 paras. 1, 2 and 5, Article 8 and Article 13 (art. 5-1, art. 5-2, art. 5-5, art. 8, art. 13) of the Convention.
There appeared before the Court:
- for the Government
Mr H. Llewellyn, Assistant Legal Adviser,
Foreign and Commonwealth Office, Agent,
Mr R. Weatherup, QC,
Mr J. Eadie, Barrister-at-law, Counsel;
- for the Commission
Mr M.P. Pellonpää, Delegate;
- for the applicants
Mr R. Weir, QC,
Mr S. Treacy, Barrister-at-law, Counsel,
Mr P. Madden, Solicitor.
The Court heard addresses by Mr Pellonpää, Mr Weir and Mr Weatherup.
Having taken note of the concurring opinions of the Agent of the Government, the Delegate of the Commission and the applicants, the Grand Chamber decided on 23 April 1994 that the consideration of the case should continue without resumption of the oral proceedings (Rule 26).
AS TO THE FACTS
I. PARTICULAR CIRCUMSTANCES OF THE CASE
B. First applicant’s arrest
C. First applicant’s questioning
At some stage during her stay in the centre she was photographed without her knowledge or consent. This photograph and the personal details about her, her family and her home were kept on record.
She was released at 9.45 a.m. without being charged.
D. Proceedings before the High Court
"The plaintiff’s counsel launched a series of attacks on the legality of the plaintiff’s arrest and detention which varied in thrust between the very broad and the very narrow. In the former class, for example, was an attack in which they alleged that the use of section 14 of the [1978 Act] in this case was an example of what they called ‘an institutionalised form of unlawful screening’ by the military authorities, with the intention of obtaining what counsel termed ‘low level intelligence’ from the plaintiff, and without (a) any genuine suspicion on the part of those authorities that she had committed a criminal offence or (b) any genuine intention on their part of questioning her about a criminal offence alleged to have been committed by her."
Under cross-examination Corporal D. maintained that the purpose of an arrest and detention under section 14 of the 1978 Act was not to gather intelligence but to question a suspected person about an offence. She stated that her suspicion of the first applicant had been formed on the basis of everything she had been told at the briefing and which she had read in a document which had been supplied to her then. Corporal D. stated that she would not have effected the arrest unless she had been given the grounds on which she was expected to arrest the person. Under repeated questioning, Corporal D. maintained that she had been informed at the briefing, and that she had formed the suspicion, that the applicant had been involved in the collection of money for the purchase of arms from America.
Q. "... Now while you were, just going back for a moment to the time when what I might call the interview, that’s when the three of you were in the room, and the two occasions you’ve said she had to leave, you took her to, she wanted to go to the lavatory. Do you just have no recollection of any of the questions that were asked?"
A. "I don’t remember the questions as they were asked. There was a question regards money. A question regards America."
No cross-examination by the first applicant’s counsel was directed to this reply of the witness.
Under cross-examination Sergeant B. did not accept that the main purpose of questioning a person arrested under section 14 of the 1978 Act was to gather general information about the background, family and associates of the arrested person. He maintained that persons were only arrested and detained if there existed a suspicion against them of involvement in a criminal offence.
"MR. CAMPBELL: My Lord ... your Lordship has the grounds upon which the arresting officer carries out (inaudible) she then gives evidence and is present throughout the interview ... now I talk about the interview on the very last stage.
JUDGE: At the table?
MR. CAMPBELL: At the table, and said that in the course of that interview money and arms that these matters were raised, I can’t ... hesitate to use the (inaudible) now that is one point. The other point is this, that this was a lady who on her own admission was not going to answer any questions. She agreed during cross-examination that that was the attitude and so one finds that an interview takes place with somebody who is not prepared to answer any questions but at least the questions are raised with her concerning the matter on which she was arrested.
JUDGE: Is the substance of that then that because of her fairly firm refusal you would say to answer any questions there was never any probing examination of her collecting money for example?
MR. CAMPBELL: No my Lord because she ... as she said she wasn’t going to answer any questions."
"quite satisfied that on the basis of her briefing at Musgrave Park she genuinely suspected the [first applicant] of having been involved in the offence of collecting money in Northern Ireland for arms".
Murray J. also believed the evidence of Corporal D. that there were questions addressed to the matters of which the applicant was suspected. He stated:
"As regards the interviewer, the plaintiff accepted that he was interested in the activities of her brothers who shortly before the date of the interview had been convicted on arms charges in the USA connected with the Provisional IRA but the [first applicant], who seems to have been well aware of her rights, obviously had decided not to co-operate with the military staff in the centre. In particular she had decided (it seems) not to answer any of their questions and in this situation, and with the short detention period permitted by the section, there was little that the interviewer or any of the other staff in the centre could do to pursue their suspicions."
E. Proceedings before the Court of Appeal
"(1) that the arresting officer did not have, or was not sufficiently proved to have, the requisite suspicion; (2) that she did not have sufficiently detailed knowledge or understanding of what was alleged against the plaintiff to warrant the conclusion that it was an offence which would justify arrest".
In its judgment of 20 February 1987 the Court of Appeal unanimously rejected both these grounds. In delivering judgment, Gibson LJ noted:
"[The trial judge had] found, and his finding was amply justified by the evidence, that [Corporal D.] genuinely suspected the plaintiff of having been involved in the offence of collecting money in Northern Ireland for arms to be purchased in America for use by a proscribed organisation."
In particular, as to the second ground Gibson LJ observed:
"Suspicion is something less than proof, and may exist without evidence, though it must be supported by some reason."
"Corporal D. who was present during the interview had very little recollection of the course of the questions. The only other witness as to the conduct of this interview was the [first applicant]. Her account also is sketchy, though in somewhat more detail. What is clear from both witnesses is that the [first applicant] was deliberately unhelpful and refused to answer most of the questions. What is certain is that she was asked about her brothers ... who in the previous month had been convicted of offences connected with the purchase of firearms in the USA for use by the IRA [and for which offences they had been sentenced to terms of two and three years’ imprisonment]. It is clear that it was for such a purchase that the [first applicant] was suspected of having collected money, as she stated the interviewer asked her whether she was in contact with them. There is no doubt, therefore, that the interviewer did attempt to pursue the subject of the suspicion which had been the occasion for her arrest but was unable to make any headway."
As regards the applicant’s complaint that she had been photographed without her knowledge, the Court of Appeal stated as follows:
"The act of taking the photograph involved nothing in the nature of a physical assault. Whether such an act would constitute an invasion of privacy so as to be actionable in the United States is irrelevant, because the [first applicant] can only recover damages if it amounts to a tort falling within one of the recognised branches of the law on the topic. According to the common law there is no remedy if someone takes a photograph of another against his will. Reliance was placed on section 11(4) of the  Act by counsel for the [first applicant] ... This provision gives power to the police to order [in addition to the taking of a photograph] the taking of finger prints without the necessity of charging the person concerned and applying for an order of the magistrate under article 61 of the Magistrates Courts (Northern Ireland) Order 1981, which contains no comparable provision as to the taking of photographs. The taking of finger prints otherwise than by consent must involve an assault and I am satisfied that section 11(4) was enacted not to legalise the taking of photographs without consent, but to legalise the taking of photographs or finger prints in circumstances where there would otherwise have been an illegal assault. It does not involve the implication that the taking of a photograph without violence and without consent is actionable."
F. Proceedings before the House of Lords
She did however pursue the complaint, previously raised before the Court of Appeal, that since she was only lawfully arrested at 7.30 a.m. she had been unlawfully detained between 7.00 and 7.30 a.m. The House of Lords found that a person is arrested from the moment he is subject to restraint and that the first applicant was therefore under arrest from the moment that Corporal D. identified her on entering the house at 7 a.m.. It made no difference that the formal words of arrest were communicated to the applicant at 7.30 a.m. In this respect Lord Griffiths stated (at pp. 698H-699A):
"If the plaintiff had been told she was under arrest the moment she identified herself, it would not have made the slightest difference to the sequence of events before she left the house. It would have been wholly unreasonable to take her off, half-clad, to the Army centre, and the same half-hour would have elapsed while she gathered herself together and completed her toilet and dressing. It would seem a strange result that in these circumstances, whether or not she has an action for false imprisonment should depend upon whether the words of arrest are spoken on entering or leaving the house, when the practical effect of the difference on the plaintiff is non-existent."
"It is a feature of the very limited power of arrest contained in section 14 that a member of the armed forces does not have to tell the arrested person the offence of which he is suspected, for it is specifically provided by section 14(2) that it is sufficient if he states that he is effecting the arrest as a member of Her Majesty’s forces.
Corporal D. was carrying out this arrest in accordance with the procedures in which she had been instructed to make a house arrest pursuant to section 14. This procedure appears to me to be designed to make the arrest with the least risk of injury to those involved including both the soldiers and the occupants of the house. When arrests are made on suspicion of involvement with the IRA it would be to close one’s eyes to the obvious not to appreciate the risk that the arrest may be forcibly resisted.
The drill the Army follow is to enter the house and search every room for occupants. The occupants are all directed to assemble in one room, and when the person the soldiers have come to arrest has been identified and is ready to leave, the formal words of arrest are spoken just before they leave the house. The Army do not carry out a search for property in the house and, in my view, they would not be justified in doing so. The power of search is given ‘for the purpose of arresting a person’, not for a search for incriminating evidence. It is however a proper exercise of the power of search for the purpose of effecting the arrest to search every room for other occupants of the house in case there may be those there who are disposed to resist the arrest. The search cannot be limited solely to looking for the person to be arrested and must also embrace a search whose object is to secure that the arrest should be peaceable. I also regard it as an entirely reasonable precaution that all the occupants of the house should be asked to assemble in one room. As Corporal D. explained in evidence, this procedure is followed because the soldiers may be distracted by other occupants in the house rushing from one room to another, perhaps in a state of alarm, perhaps for the purpose of raising the alarm and to resist the arrest. In such circumstances a tragic shooting accident might all too easily happen with young, and often relatively inexperienced, armed soldiers operating under conditions of extreme tension. Your Lordships were told that the husband and children either had commenced, or were contemplating commencing, actions for false imprisonment arising out of the fact that they were asked to assemble in the living-room for a short period before the plaintiff was taken from the house. That very short period of restraint when they were asked to assemble in the living room was a proper and necessary part of the procedure for effecting the peaceable arrest of the plaintiff. It was a temporary restraint of very short duration imposed not only for the benefit of those effecting the arrest, but also for the protection of the occupants of the house and would be wholly insufficient to found an action for unlawful imprisonment.
It was in my opinion entirely reasonable to delay speaking the words of arrest until the party was about to leave the house. If words of arrest are spoken as soon as the house is entered before any precautions have been taken to search the house and find the other occupants, it seems to me that there is a real risk that the alarm may be raised and an attempt made to resist arrest, not only by those within the house but also by summoning assistance from those in the immediate neighbourhood. When soldiers are employed on the difficult and potentially dangerous task of carrying out a house arrest of a person suspected of an offence in connection with the IRA, it is I think essential that they should have been trained in the drill they are to follow. It would be impracticable and I think potentially dangerous to leave it to the individual discretion of the particular soldier making the arrest to devise his own procedures for carrying out this unfamiliar military function. It is in everyone’s best interest that the arrest is peaceably effected and I am satisfied that the procedures adopted by the Army are sensible, reasonable and designed to bring about the arrest with the minimum of danger and distress to all concerned. I would however add this rider: that if the suspect, for any reason, refuses to accept the fact of restraint in the house he should be informed forthwith that he is under arrest."
"The member of the forces who carried out the interrogation between 8.20 and 9.35 a.m. was not called as a witness on behalf of the Ministry of Defence. There may have been sound reasons for this decision associated with preserving the confidentiality of interrogating techniques and the identity of the interviewer, but be that as it may, the only evidence of what took place at the interview came from Corporal D. and the [first applicant] and it is submitted that this evidence is insufficient to establish that the interview was directed towards an attempt to investigate the suspicion upon which the [applicant] was arrested. Corporal D. was present at that interview, she was not paying close attention but she gave evidence that she remembered questions about money which were obviously directed towards the offences of which the [applicant] was suspected. The [applicant] also said she was questioned about her brothers.
The judge also had before him a questionnaire that was completed by the interviewer. ... There is nothing in the questionnaire which the Army may not reasonably ask the suspect together with such particular questions as are appropriate to the particular case ..."
The conclusion of the trial judge that the applicant had not been asked unnecessary or unreasonable questions and the conclusion of the Court of Appeal that the interviewer had attempted to pursue with the applicant the suspicion which had been the occasion of the arrest, but had been unable to make any headway, were held by the House of Lords to be justified on the evidence.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The 1978 Act forms part of the special legislation enacted over the years in an attempt to enable the security forces to deal effectively with the threat of terrorist violence.
B. Entry and search; arrest and detention
"(1) A member of Her Majesty’s forces on duty may arrest without warrant, and detain for not more than four hours, a person whom he suspects of committing, having committed or being about to commit any offence.
(2) A person effecting an arrest under this section complies with any rule of law requiring him to state the ground of arrest if he states that he is effecting the arrest as a member of Her Majesty’s forces.
(3) For the purpose of arresting a person under this section a member of Her Majesty’s forces may enter and search any premises or other place -
(a) where that person is, or
(b) if that person is suspected of being a terrorist or of having committed an offence involving the use or possession of an explosive, explosive substance or firearm, where that person is suspected of being."
A similar provision had been in force since 1973 and had been considered necessary to deal with terrorist activities in two independent reviews (Report of the Diplock Commission 1972 which recommended such a power and a Committee chaired by Lord Gardiner 1974/1975).
(a) compliance with the formal requirements for arrest;
(b) the genuineness of the suspicion on which the arrest was based;
(c) that the powers of arrest and detention were not used for any improper purpose such as intelligence-gathering;
(d) that the power of search was used only to facilitate the arrest and not for the obtaining of incriminating evidence;
(e) that those responsible for the arrest and detention did not exceed the time reasonably required to reach a decision whether to release the detainee or hand him over to the police.
"Where a person is arrested under this section, an officer of the Royal Ulster Constabulary not below the rank of chief inspector may order him to be photographed and to have his finger and palm prints taken by a constable, and a constable may use such reasonable force as may be necessary for that purpose."
The common-law rule entitling the Army to take a photograph equally provides the legal basis for its retention.
D. Standard record form
PROCEEDINGS BEFORE THE COMMISSION
The first applicant complained that her arrest and detention for two hours for questioning gave rise to a violation of Article 5 paras. 1 and 2 (art. 5-1, art. 5-2), for which she had no enforceable right to compensation as guaranteed by Article 5 para. 5 (art. 5-5); and that the taking and keeping of a photograph and personal details about her was in breach of her right to respect for private life under Article 8 (art. 8).
The other five applicants alleged a violation of Article 5 paras. 1, 2 and 5 (art. 5-1, art. 5-2, art. 5-5) as a result of being required to assemble for half an hour in one room of their house while the first applicant prepared to leave with the Army. They further argued that the recording and retention of certain personal details about them, such as their names and relationship to the first applicant, violated their right to respect for private life under Article 8 (art. 8).
All six applicants claimed that the entry into and search of their home by the Army were contrary to their right to respect for their private and family life and their home under Article 8 (art. 8) of the Convention; and that, contrary to Article 13 (art. 13), no effective remedies existed under domestic law in respect of their foregoing complaints under the Convention.
The applicants also made complaints under Article 3 and Article 5 para. 3 (art. 3, art. 5-3), which they withdrew subsequently on 11 April 1990.
(a) in the case of the first applicant, there had been a violation of Article 5 para. 1 (art. 5-1) (eleven votes to three), Article 5 para. 2 (art. 5-2) (ten votes to four) and Article 5 para. 5 (art. 5-5) (eleven votes to three);
(b) there had been no violation of Article 8 (art. 8) (thirteen votes to one);
(c) it was not necessary to examine further the first applicant’s complaint under Article 13 (art. 13) concerning remedies for arrest, detention and the lack of information about the reasons for arrest;
(d) in the case of the first applicant, there had been no violation of Article 13 (art. 13) in relation to either the entry into and search of her home (unanimously) or the taking and keeping of a photograph and personal details about her (ten votes to four).
The full text of the Commission’s opinion and of the three partly dissenting opinions contained in the report is reproduced as an annex to this judgment*.
FINAL SUBMISSIONS TO THE COURT
"(1) that there has been no violation of Article 5 paras. 1, 2 or 5 (art. 5-1, art. 5-2, art. 5-5) of the Convention in the case of the [first] applicant;
(2) that there has been no violation of Article 8 (art. 8) of the Convention in the case of the [first] applicant or in the cases of the other applicants;
(3) that there has been no violation of Article 13 (art. 13) of the Convention in relation to the [first] applicant’s complaints concerning entry and search of her home and concerning the taking and retention of a photograph and personal details;
(4) that there has been no violation of Article 13 (art. 13) of the Convention in relation to the [first] applicant’s complaints concerning her arrest; alternatively, if a violation of Article 5 para. 5 (art. 5-5) is found, that no separate issue arises under Article 13 (art. 13) of the Convention".
"to decide and declare:
(1) that the facts disclose breaches of paragraphs 1, 2 and 5 of Article 5 (art. 5-1, art. 5-2, art. 5-5) of the Convention;
(2) that the facts disclose a breach of Article 8 (art. 8) of the Convention;
(3) that the facts disclose a breach of Article 13 (art. 13) of the Convention".
AS TO THE LAW
I. GENERAL APPROACH
The Court sees no reason to depart from the general approach it has adopted in previous cases of a similar nature. Accordingly, for the purposes of interpreting and applying the relevant provisions of the Convention, due account will be taken of the special nature of terrorist crime, the threat it poses to democratic society and the exigencies of dealing with it (see, inter alia, the Fox, Campbell and Hartley v. the United Kingdom judgment of 30 August 1990, Series A no. 182, p. 15, para. 28, citing the Brogan and Others v. the United Kingdom judgment of 29 November 1988, Series A no. 145-B, p. 27, para. 48).
II. ALLEGED VIOLATION OF ARTICLE 5 PARA. 1 (art. 5-1) OF THE CONVENTION
"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 ...
B. "Reasonable suspicion"
"The ‘reasonableness’ of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary arrest and detention which is laid down in Article 5 para. 1 (c) (art. 5-1-c). ... [H]aving a "reasonable suspicion" presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as ‘reasonable’ will however depend upon all the circumstances.
In this respect, terrorist crime falls into a special category. Because of the attendant risk of loss of life and human suffering, the police are obliged to act with utmost urgency in following up all information, including information from secret sources. Further, the police may frequently have to arrest a suspected terrorist on the basis of information which is reliable but which cannot, without putting in jeopardy the source of the information, be revealed to the suspect or produced in court to support a charge.
... [I]n view of the difficulties inherent in the investigation and prosecution of terrorist-type offences in Northern Ireland, the ‘reasonableness’ of the suspicion justifying such arrests cannot always be judged according to the same standards as are applied in dealing with conventional crime. Nevertheless, the exigencies of dealing with terrorist crime cannot justify stretching the notion of ‘reasonableness’ to the point where the essence of the safeguard secured by Article 5 para. 1 (c) (art. 5-1-c) is impaired ...
Certainly Article 5 para. 1 (c) (art. 5-1-c) of the Convention should not be applied in such a manner as to put disproportionate difficulties in the way of the police authorities of the Contracting States in taking effective measures to counter organised terrorism ... . It follows that the Contracting States cannot be asked to establish the reasonableness of the suspicion grounding the arrest of a suspected terrorist by disclosing the confidential sources of supporting information or even facts which would be susceptible of indicating such sources or their identity.
Nevertheless the Court must be enabled to ascertain whether the essence of the safeguard afforded by Article 5 para. 1 (c) (art. 5-1-c) has been secured. Consequently, the respondent Government have to furnish at least some facts or information capable of satisfying the Court that the arrested person was reasonably suspected of having committed the alleged offence. This is all the more necessary where, as in the present case, the domestic law does not require reasonable suspicion, but sets a lower threshold by merely requiring honest suspicion."
On the facts the Court found in that case that, although the arrest and detention of the three applicants, which lasted respectively forty-four hours, forty-four hours and five minutes and thirty hours and fifteen minutes, were based on an honest suspicion, insufficient elements had been furnished by the Government to support the conclusion that there had been a "reasonable suspicion" for the purposes of sub-paragraph (c) of Article 5 para. 1 (art. 5-1-c) (ibid., p. 18, para. 35).
The Court is accordingly prepared to attach some credence to the respondent Government’s declaration concerning the existence of reliable but confidential information grounding the suspicion against Mrs Murray.
In the action brought by Mrs Murray against the Ministry of Defence for false imprisonment and other torts, the High Court judge, after having heard the witnesses and assessed their credibility, found that she had genuinely been suspected of having been involved in the collection of funds for the purchase of arms in the USA for the Provisional IRA (see paragraph 24 above). The judge believed the evidence of the arresting officer, Corporal D, who was described as a "transparently honest witness", as to what she had been told at her briefing before the arrest (see paragraphs 11 and 24 above). Likewise as found by the judge, although the interview at the Army centre was later in time than the arrest, the line of questioning pursued by the interviewer also tends to support the conclusion that Mrs Murray herself was suspected of the commission of a specific criminal offence (see paragraphs 14 and 25 above).
C. Purpose of the arrest
The Government disputed this contention, pointing to the fact that it was a claim expressly raised by Mrs Murray in the domestic proceedings and rejected by the trial judge on the basis of evidence which had been tested by cross-examination of witnesses.
The Commission in its report did not find it necessary to examine this complaint in view of its conclusion as to the lack of "reasonable suspicion" for the arrest and detention.
The Court sees little merit in this argument. What counts for the purpose of compliance with Convention obligations is the substance rather than the form. Provided that the purpose of the arrest and detention is genuinely to bring the person before the competent legal authority, the mechanics of how this is to be achieved will not be decisive.
III. ALLEGED VIOLATION OF ARTICLE 5 PARA. 2 (art. 5-2) OF THE CONVENTION
"Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him."
"Paragraph 2 of Article 5 (art. 5-2) contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5 (art. 5): by virtue of paragraph 2 (art. 5-2) any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4 (art. 5-4)... . Whilst this information must be conveyed ‘promptly’ (in French: ‘dans le plus court délai’), it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features."
In that case the Court found on the facts that the reasons for the applicants’ arrest had been brought to their attention during their interrogation within a few hours of their arrest. This being so, the requirements of Article 5 para. 2 (art. 5-2) were held to have been satisfied in the circumstances (ibid., pp. 19-20, paras. 41-43).
In the Court’s view, it must have been apparent to Mrs Murray that she was being questioned about her possible involvement in the collection of funds for the purchase of arms for the Provisional IRA by her brothers in the USA. Admittedly, "there was never any probing examination of her collecting money" - to use the words of the trial judge - but, as the national courts noted, this was because of Mrs Murray’s declining to answer any questions at all beyond giving her name (see paragraphs 14, 23, 25, 29 and 34 in fine above). The Court therefore finds that the reasons for her arrest were sufficiently brought to her attention during her interview.
IV. ALLEGED VIOLATION OF ARTICLE 5 PARA. 5 (art. 5-5) OF THE CONVENTION
"Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."
This claim was accepted by the Commission but disputed by the Government. The Commission concluded that there was no enforceable right under Northern Ireland law for the breaches of Article 5 paras. 1 and 2 (art. 5-1, art. 5-2) which it considered to have occurred.
V. ALLEGED VIOLATION OF ARTICLE 8 (art. 8) OF THE CONVENTION
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
A. Arguments before the Court
C. "In accordance with the law"
The impugned measures thus had a basis in domestic law. The Court discerns no reason, on the material before it, for not concluding that each of the various measures was "in accordance with the law", within the meaning of Article 8 para. 2 (art. 8-2).
D. Legitimate aim
E. Necessity in a democratic society
Furthermore, the "conditions of extreme tension", as Lord Griffiths put it in his speech in the House of Lords, under which such arrests in Northern Ireland have to be carried out must be recognised. The Court notes the analysis of Lord Griffiths, when he said (see paragraph 33 above):
"The search cannot be limited solely to looking for the person to be arrested and must also embrace a search whose object is to secure that the arrest should be peaceable. I ... regard it as an entirely reasonable precaution that all the occupants of the house should be asked to assemble in one room. ... It is in everyone’s best interest that the arrest is peaceably effected and I am satisfied that the procedures adopted by the Army are sensible, reasonable and designed to bring about the arrest with the minimum of danger and distress to all concerned."
These are legitimate considerations which go to explain and justify the manner in which the entry into and search of the applicants’ home were carried out. The Court does not find that, in relation to any of the applicants, the means employed by the authorities in this regard were disproportionate to the aim pursued.
VI. ALLEGED VIOLATION OF ARTICLE 13 (art. 13) OF THE CONVENTION
"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."
A. Claims as to arrest, detention and lack of information about reasons for arrest (Article 5 paras. 1 and 2) (art. 5-1, art. 5-2)
The Government submitted that, if a breach of Article 5 para. 5 (art. 5-5) were found, the Commission’s approach was correct but that, if not, the requirements of Article 13 (art. 13) had been satisfied.
"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."
The scope of this specific entitlement in relation to arrest and detention under the emergency legislation in Northern Ireland has been considered by the Court, notably in the Brogan and Others and Fox, Campbell and Hartley judgments (loc. cit., pp. 34-35, para. 65, and pp. 20-21, para. 45, respectively).
No complaint however was made by the first applicant under Article 5 para. 4 (art. 5-4) at any stage of the proceedings before the Convention institutions. The Court sees no cause, either on the facts or in law, to examine whether the less strict requirements of Article 13 (art. 13) were complied with in the present case.
B. Claims as to entry and search (Article 8) (art. 8)
The Commission expressed the opinion that an appropriate remedy did exist under domestic law, notably in the form of an action for the tort of unlawful trespass to property.
The Government accepted and adopted the Commission’s reasoning.
C. Claims as to the taking and retention of a photograph and personal details (Article 8) (art. 8)
The Commission, citing the Court’s case-law (see the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, pp. 47-48, paras. 85-86), concluded that in so far as the first applicant’s complaint was directed against the content of Northern Ireland law, Article 13 (art. 13) did not confer any entitlement to a remedy; and that, if she could be taken to be objecting to the manner in which that law had been applied in her case, she could have brought an action before the Northern Ireland courts.
The Government accepted and adopted the Commission’s reasoning.
Whether the relevant domestic law as applied to Mrs Murray ensured her a sufficient level of protection of her right to respect for her private life is a substantive issue under Article 8 (art. 8). The matters complained of by Mrs Murray under Article 8 (art. 8) in this connection have already been found in the present judgment to have been compatible with the requirements of Article 8 (art. 8) (see paragraphs 83 to 95 above). Article 13 (art. 13) for its part does not go so far as to guarantee Mrs Murray a remedy allowing her to have challenged the content of Northern Ireland law before a national authority (see the James and Others judgment, loc. cit.). For the rest, effective remedies were available to her to raise any claim of non-compliance with the applicable domestic law.
FOR THESE REASONS, THE COURT
1. Holds, by fourteen votes to four, that there has been no breach of Article 5 para. 1 (art. 5-1) of the Convention in respect of the first applicant;
2. Holds, by thirteen votes to five, that there has been no breach of Article 5 para. 2 (art. 5-2) of the Convention in respect of the first applicant;
3. Holds, by thirteen votes to five, that there has been no breach of Article 5 para. 5 (art. 5-5-) of the Convention in respect of the first applicant;
4. Holds, by fifteen votes to three, that there has been no breach of Article 8 (art. 8) of the Convention in respect of any of the applicants;
5. Holds, unanimously, that it is not necessary to examine under Article 13 (art. 13) of the Convention the first applicant’s complaint concerning remedies for her claims under Article 5 paras. 1 and 2 (art. 5-1, art. 5-2);
6. Holds, unanimously, that, for the rest, there has been no breach of Article 13 (art. 13) of the Convention in respect of the first applicant.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 28 October 1994.
In accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 53 para. 2 of Rules of Court A, the following separate opinions are annexed to this judgment:
(a) joint dissenting opinion of Mr Loizou, Mr Morenilla and Mr Makarczyk;
(b) partly dissenting opinion of Mr Mifsud Bonnici;
(c) partly dissenting opinion of Mr Jambrek.
JOINT DISSENTING OPINION OF JUDGES LOIZOU, MORENILLA AND MAKARCZYK
1. Although we agree with the majority of the Court that, when interpreting and applying the Convention, due account should be taken of the special nature of terrorist crime, of the exigencies of investigating terrorist activities and of the necessity of not jeopardising the confidentiality of reliable sources of information, we cannot concur with its conclusion of no violation of Article 5 paras. 1, 2 and 5 (art. 5-1, art. 5-2, art. 5-5), and Article 8 (art. 8) of the Convention in the present case.
On the contrary, a violation of the applicants’ fundamental rights to liberty and security and to respect for private life is disclosed by the circumstances of the case, namely the Army’s entry into and search of the applicants’ home at 7 a.m. without warrant; the assembling of Mrs Murray’s husband and four children in a room of the house during half an hour; her arrest and detention during two hours for questioning in a military screening centre on suspicion of her involvement in terrorist activities because her brothers had been convicted in the United States of America of offences connected with the purchase of arms for the Provisional IRA; and the failure to inform her of the reasons for her arrest (paragraphs 9 to 34 of the judgment).
2. Regarding the arrest and detention of Mrs Murray, we regret that we are not convinced by the majority’s arguments, particularly in paragraphs 62 and 63, as to the reasonableness of the suspicion that she had committed the above-mentioned offence; nor do we find that the facts of this case are materially different from those in the Fox, Campbell and Hartley judgment*, where the Court found a violation of Article 5 para. 1 (art. 5-1) because it considered the elements furnished by the Government to be insufficient to support the conclusion that there had been a "reasonable suspicion" that the arrested persons had committed an offence.
3. The conviction in the United States of Mrs Murray’s two brothers of offences connected with the purchase of weapons for the Provisional IRA, her visit to her brothers there and the reference to the collaboration with "trustworthy" persons residing in Northern Ireland implied by such offences are not, in our opinion, sufficient grounds for reasonably suspecting the first applicant of involvement in the offence of collecting funds in Northern Ireland to buy arms in the United States for terrorist purposes. Family ties cannot imply a criminal relationship between the author of the offence and his or her relatives; nor can the "co-operative" nature of the crime be considered a valid basis for a reasonable suspicion of complicity on the part of members of the family or friends of the criminal. These circumstances may give rise only to a bona fide suspicion of such complicity. They do not give rise to a "reasonable" suspicion such as to justify the serious measures taken against the applicants unless they are connected with other facts in direct relation to the offence. No facts of this kind have however been furnished by the respondent Government, although, in our opinion, they could have been supplied without jeopardising the confidentiality of the source of information which is necessary to protect the life and personal safety of that source (paragraph 52 of the judgment).
4. The Court’s task, as stated by the majority (paragraph 66 of the judgment), is to determine whether the conditions laid down by sub-paragraph (c) of Article 5 para. 1 (art. 5-1-c) have been fulfilled in the circumstances of the particular case. With due respect to the review that the national courts have conducted of the facts of the case (paragraph 60 of the judgment) and to their findings and conclusions in the proceedings brought by Mrs Murray, it falls to our Court, pursuant to Article 19 (art. 19) of the Convention, to ensure the observance of the engagement undertaken by the States Parties under Article 1 (art. 1) to secure everyone within their jurisdiction, inter alia, the right to liberty and the right to respect for private life. In the exercise of this power of review the Court must ascertain whether the essence of the safeguard afforded by this provision of the Convention has been secured. "Consequently, the respondent Government have to furnish at least some facts or information capable of satisfying the Court that the arrested person was reasonably suspected of having committed the alleged offence" (Fox, Campbell and Hartley judgment, p. 18, para. 34).
5. In the instant case the specific circumstances of the entry into and search of the applicants’ home by the Army, the limited role of the Army in the investigation of terrorist crimes under United Kingdom law (paragraphs 36 to 38 of the judgment) and, moreover, the personal circumstances of Mrs Murray, a mother of four children with health problems and no criminal record (paragraph 9 of the judgment and document Cour (93) 290, Annexes A-B, pp.100 B-C, 116 B-C), required a higher level of suspicion and the application to the respondent Government of a stricter standard when justifying before this Court the "reasonableness" of the suspicion. Needless to say that the domestic courts examined the issue from the standpoint of section 14 of the 1978 Act, which required an honest and genuine, rather than a reasonable, suspicion. The scope of their examination was confined to that.
6. Regarding the alleged violation of Article 5 para. 2 (art. 5-2) of the Convention, in our view the evidence as to Mrs Murray’s questioning at the military screening centre (paragraphs 16 to 27 of the judgment), the vague indications and the questions put to her lack the necessary precision to justify a conclusion that she was informed of the reasons for her arrest. From the recorded questions about her brothers or "about money and about America", it is not possible for us to conclude that it was apparent to her "that she was questioned about her possible involvement in the collection of funds for the purchase of arms for the Provisional IRA by her brothers in the USA".
7. In the Fox, Campbell and Hartley judgment (paragraph 40) the Court declared that "[p]aragraph 2 of Article 5 (art. 5-2) contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5 (art. 5): by virtue of paragraph 2 (art. 5-2) any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4 (art. 5-4)".
In our opinion, bearing in mind the totality of the circumstances, including the nature of the questions put to Mrs Murray in the course of her interrogation (paragraphs 14 and 21 of the judgment), the information given to Mrs Murray did not meet this basic standard.
8. As to Article 5 para. 5 (art. 5-5) of the Convention, since Mrs Murray’s arrest and detention were in breach of paragraphs 1 and 2 of this Article (art. 5-1, art. 5-2), she was entitled to an enforceable right to compensation in accordance with this provision. We would recall, as did the Commission (report, paragraph 75), that in the similar case of Fox, Campbell and Hartley (paragraph 46) the Court found a violation of Article 5 para. 5 (art. 5-5).
9. The alleged violation of Article 8 (art. 8) of the Convention is directly linked with the issues under Article 5 para. 1 (art. 5-1) of the Convention. Consequently, our conclusion is that, a breach of this provision having been found to have occurred in the circumstances of the case, the above-mentioned measures taken by the Army interfering in Mrs Murray’s private life cannot, in the absence of an objective justification of the suspicions of Mrs Murray’s terrorist activity, be regarded as necessary in a democratic society for the prevention of crime in accordance with paragraph 2 of Article 8 (art. 8-2). We therefore also find a violation of this provision of the Convention.
PARTLY DISSENTING OPINION OF JUDGE MIFSUD BONNICI
1. I am in agreement with the majority on most of the points at issue in this case, starting with the finding that the arrest of the first applicant was carried out on a reasonable suspicion that she had committed an offence; thereby holding that Article 5 para. 1 (art. 5-1) was not violated.
2. I dissent, however, on the second point; that of Article 5 para. 2 (art. 5-2), which guarantees to "everyone who is arrested" the right to be "informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him".
The essential and relevant facts, as accepted in the judgment are that:
(a) When Corporal D. proceeded to the first applicant’s house, she said to her, "As a member of Her Majesty’s forces, I arrest you." And on being asked twice by the first applicant under what section, Corporal D. replied, "Section 14" (paragraph 12 of the judgment).
(b) Corporal D. told the domestic court that "the purpose of arrest and detention under section 14 was not to gather intelligence but to question a suspected person about an offence" (paragraph 20 of the judgment). This was confirmed by Sergeant B. (paragraph 22).
3. Now there is absolutely nothing in the whole proceedings to indicate that after the first applicant was arrested on the strength of section 14, she was thereafter promptly given the reasons for her arrest and/or informed of any offence with which she was charged.
In the concrete circumstances of the case, I am prepared to allow that promptness can be waived because of the short duration of the detention, but once the first applicant was arrested (and not merely asked to go voluntarily to a place designated for interrogation) she was entitled to be told why she was being arrested - which in effect means "that she was suspected of having committed a given offence". Once that is done, the further information that she was being charged with a given offence can, within a reasonable time, follow. This, however, must be preceded by the first phase, wherein the arrested person must be informed of the reasons for the arrest. This phase cannot be skipped, ignored or disregarded, especially when, as in this case, the person arrested is not charged with an offence.
4. In the view of the majority (paragraph 77 of the judgment) this guarantee was satisfied because
"it must have been apparent to Mrs Murray that she was being questioned about her possible involvement in the collection of funds for the purchase of arms for the Provisional IRA by her brothers in the USA",
which induces the Court to come to the conclusion that
"the reasons for her arrest were sufficiently brought to her attention during her interview".
And therefore there was no violation.
5. In my opinion this decision reduces the meaning of Article 5 para. 2 (art. 5-2) to such a low level that it is doubtful whether in fact it can, if it is adhered to in this form, have any possible concrete application in the future.
In fact what is being held here is that through the contents of an interrogation an accused person can, by inference or deduction, arrive, on his own, to understand "the reasons for his arrest and ... any charge against him". Since the Convention obliges the investigating officer "to inform" the arrested person, I cannot agree that the duty imposed on the investigating officer can be satisfied by the obligation of the arrested person to carry out a logical exercise so that he will thereby know of the charge against him - surmising both, from the contents of the interrogation.
6. It is not really possible to sustain this interpretation of Article 5 para. 2 (art. 5-2). If it is sustained, then it would mean that the guarantee therein contemplated will only come into play in situations such as that which is described in Franz Kafka’s masterpiece The Trial, where the Inspector, who is supposed to interrogate K (the accused person), tells K ,
"I can’t even confirm that you are charged with an offence, or rather I don’t know whether you are. You are under arrest certainly, more than that I do not know."*
7. Therefore, the interpretation arrived at is a substantial limitation of the purpose of Article 5 para. 2 (art. 5-2), to which I cannot subscribe, and I find that there was a violation of Article 5 para. 2 (art. 5-2).
8. On all the other points in this judgment, I form part of the majority.
PARTLY DISSENTING OPINION OF JUDGE JAMBREK
I subscribe to the joint dissenting opinion of Judges Loizou, Morenilla and Makarczyk as regards the violation of Article 5 paras. 1, 2 and 5 (art. 5-1, art. 5-2, art. 5-5).
I also wish to make some additional points, which reflect my own reasoning related to the case.
1. In the examination of the matter of "reasonable suspicion", the key issue seems to me to be whether "at least some facts or information" were furnished by the Government, which would satisfy an objective observer that the person concerned may have committed the offence. In my opinion this condition of reasonableness was not fulfilled. It was suggested by the representative of the Government that "primary facts", obtained from a reliable confidential source, which cannot be disclosed must be differentiated from "something other than the primary facts or information". Elements of the latter kind, he claimed, had been provided which should be capable of so satisfying an objective observer. He cited:
(a) the honest belief of the arresting officer,
(b) the briefing by a superior officer, and
(c) circumstances preventing disclosure of information.
In my view all three are capable of satisfying the condition of an honest or genuine suspicion, but do not constitute "at least some facts or information" on which a reasonable suspicion could be based. Neither honesty of an arresting officer, nor honesty of superior officer, nor the circumstances of a suspected terrorist crime fall into this category.
At the hearing the Government’s representative also identified three other kinds of more specific "objective evidence", namely the conviction of the first applicant’s brothers, her contacts with them and her visits to America. The problem with these facts, as I see it, is that none of them per se may be held against the first applicant to incriminate her. They rather resemble the incrimination of a person’s status, in this case the first applicant’s kinship relationship.
I am therefore led to conclude that there has been a violation of Article 5 para. 1 (art. 5-1) in respect of the first applicant, following the reasoning in the Fox, Campbell and Hartley v. the United Kingdom judgment (judgment of 30 August 1990, Series A no. 182).
2. Was it possible for the Court to set some modified standards for "reasonable suspicion" in the context of emergency laws enacted to combat terrorist crime?
At this point I wish to explain some of my "philosophic prejudices" related to this issue. Much was made in the Government’s memorial of the specific features of terrorist crime and the relevant emergency provisions, allowing for the tipping of the balance between State and individual interests in the direction of the raison d’Etat. However, the existence of an emergency may be used to argue in favour of both interests involved, namely that of the Government and that of the arrested person. For example, under emergency laws, individual rights may be abused even more easily and on a larger scale than in normal times. They should therefore be given an even more careful protection in view of the intensity of national interests in taking repressive measures against crime. Suspects should thus not be denied being provided with at least some evidence and grounds for their arrest, in order to be able to challenge the allegations against them. Neither should the competent domestic court be left without persuasive evidence supporting the required reasonableness of the arrest.
I also do not dispute that by and large intelligence-gathering organisations do indeed obtain "reliable" items of information which have to be kept confidential, and which should be trusted without closer examination.
But are the items obtained all and always relevant? We may assume that at least some of them are irrelevant or already notorious. Information on persons’ travel abroad or on their kinship relationships, for example, may be very reliable and also happen to be classified as secret, but it may be irrelevant or already notorious. Therefore I would hesitate to make life for the intelligence-gathering services too easy, at the expense of detainees and especially at the expense of the domestic courts.
3. My underlying philosophic approach having been identified, some more "technical" points about the case may be made.
The search for a balance between the State’s interest in fighting crime and the protection of the individual’s fundamental rights is the obvious task of the Strasbourg Court. To this end I would propose clarifying the following preliminary issues:
First, what is the relationship between the Article 5 para. 1 (c) (art. 5-1-c) requirement of "reasonable suspicion" and the Article 5 para. 2 (art. 5-2) right to be "informed promptly of the reasons for his arrest and of any charge against him"?
Are grounds for reasonable suspicion identical to reasons for arrest?
A usual consequence of the implementation of Article 5 para. 1 (c) (art. 5-1-c) is that the national courts will, if need be, be called on to decide whether the arresting officer entertained reasonable suspicion of an offence committed by the detainee, while the purpose of Article 5 para. 2 (art. 5-2) is to enable the arrested person to assess the lawfulness of the arrest and take steps to challenge it, if need be. This difference may justify differential treatment of evidence supporting such reasons in terms of their confidentiality.
A further point is that the Court referred in the Fox, Campbell and Hartley case to "information which ... cannot ... be revealed to the suspect or produced in court to support the charge".
Two questions seem to me relevant in this respect. First, is there a difference between revealing information to the suspect and then producing it in court? Probably not. And secondly, is there a difference between information made available to the court and information produced in a court, that is revealed to the suspect?
In this connection I see some scope for compromise between the wish to preserve the Fox, Campbell and Hartley standard and, at the same time, the need to expand and elaborate its reasoning in order to adapt it better to the Murray case and other similar cases.
The "technical" question could also be posed whether otherwise confidential information could not be rephrased, reshaped or tailored in order to protect its source and then be revealed. In this respect the domestic court could seek an alternative, independent expert opinion, without relying solely on the assertions of the arresting authority.
4. I voted for non-violation of Article 8 (art. 8) because I do not see a necessary link between the breach of the requirements of Article 5 para. 1 (art. 5-1) and the interference in the private and family life of Mrs Murray (and her family). I am satisfied with the approach of the Court in regard to Article 8 (art. 8), and, in particular, with its conclusion that the interference was in accordance with the law and that the contested measures pursued a legitimate aim and were necessary in a democratic society (paragraphs 88 to 94 of the judgment).
However, in the light of my views as to the violation of various provisions of Article 5 (art. 5), I cannot subscribe to the Court’s reasoning in paragraph 92 of the judgment, namely that Mrs Murray was reasonably suspected of the commission of a terrorist-linked crime and that this fact justified the need to enter and search her home. The finding of non-violation of Article 8 (art. 8) can be sufficiently well grounded regardless of the reasoning in paragraph 92 of the Court’s judgment.
* The case is numbered 13/1993/408/487. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.
** Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) and thereafter only to cases concerning States not bound by that Protocol (P9). They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.
* Note by the Registrar. For practical reasons this annex will appear only with the printed version of the judgment (volume 300-A of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.
* Fox, Campbell and Hartley v. the United Kingdom judgment of 30 August 1990, Series A no. 182.
* English translation by W. and E. Muir from the German original Der Prozess - Penguin reprint 1953, p. 18.