Margaret, Thomas, Mark, Alana, Michaela and Rossina Murray V. UK
Posted on September 21, 1994 byadmin
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:
Notes by the Registrar
* 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
** 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.
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 7 April 1993, within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 14310/88) against the United Kingdom of Great Britain
and Northern Ireland lodged with the Commission under Article 25
(art. 25) on 28 September 1988 by Mrs Margaret Murray,
Mr Thomas Murray, Mr Mark Murray, Ms Alana Murray, Ms Michaela Murray
and Ms Rossina Murray, who are all Irish citizens.
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
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of Rules of Court A, the applicants stated that
they wished to take part in the proceedings and designated the lawyers
who would represent them (Rule 30). The Government of Ireland, having
been reminded by the Registrar of their right to intervene (Article 48
(b) of the Convention and Rule 33 para. 3 (b)) (art. 48-b), did not
indicate any intention of so doing.
3. The Chamber to be constituted included ex officio
Sir John Freeland, the elected judge of British nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). On 23 April 1993, in the presence of the
Registrar, the President drew by lot the names of the other seven
members, namely Mr R. Bernhardt, Mr L.-E. Pettiti, Mr N. Valticos,
Mr J.M. Morenilla, Mr M.A. Lopes Rocha, Mr L. Wildhaber and
Mr G. Mifsud Bonnici (Article 43 in fine of the Convention and
Rule 21 para. 4) (art. 43).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the United Kingdom
Government ("the Government"), the applicants' lawyers and the Delegate
of the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). Pursuant to the orders made in consequence,
the Government's memorial was lodged at the registry on
3 November 1993, the applicants' memorial on 15 November and their
claims for just satisfaction under Article 50 (art. 50) of the
Convention on 23 December 1993, 18 and 20 January 1994. In a letter
received on 14 December 1993 the Secretary to the Commission informed
the Registrar that the Delegate did not wish to comment in writing on
the memorials filed.
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
24 January 1994. The Chamber had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) 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;
(b) for the Commission
Mr M.P. Pellonpää, Delegate;
(c) 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.
6. Following deliberations held on 28 January 1994 the Chamber
decided to relinquish jurisdiction forthwith in favour of a Grand
Chamber (Rule 51 para. 1).
7. The Grand Chamber to be constituted included ex officio
Mr Ryssdal, President of the Court, Mr Bernhardt, Vice-President of the
Court, and the other members of the Chamber which had relinquished
jurisdiction (Rule 51 para. 2 (a) and (b)). On 28 January 1994, in the
presence of the Registrar, the President drew by lot the names of the
ten additional judges called on to complete the Grand Chamber, namely
Mr R. Macdonald, Mr A. Spielmann, Mr S.K. Martens, Mr I. Foighel,
Mr R. Pekkanen, Mr A.N. Loizou, Mr A.B. Baka, Mr J. Makarczyk,
Mr P. Jambrek and Mr K. Jungwiert (Rule 51 para. 2 (c)). Mr Pettiti,
a member of the original Chamber, was unable to take part in the Grand
Chamber's consideration of the case and was replaced by Mr F. Gölcüklü
in accordance with the drawing of lots effected under Rule 51
para. 2 (c). Mr Valticos, also a member of the original Chamber, was
prevented at a later stage from continuing to take part in the Grand
Chamber's deliberations.
8. The Grand Chamber held a meeting devoted to procedural matters
on 24 March 1994.
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
9. The six applicants are members of the same family. The first
applicant, Mrs Margaret Murray, and the second applicant,
Mr Thomas Murray, are husband and wife. The other four applicants are
their children, namely their son Mark Murray (born in 1964), their twin
daughters Alana and Michaela Murray (born in 1967) and a younger
daughter Rossina Murray (born in 1970). At the relevant time in 1982
all six applicants resided together in the same house in Belfast,
10. On 22 June 1982 two of the first applicant's brothers were
convicted in the United States of America ("USA") of arms offences
connected with the purchase of weapons for the Provisional Irish
Republican Army ("Provisional IRA"). The Provisional IRA is included
among the organisations proscribed under the special legislation
enacted in the United Kingdom to deal with terrorism in Northern
Ireland (see paragraph 35 below).
B. First applicant's arrest
11. On 26 July 1982 at approximately 6.30 a.m. Corporal D., a
member of the Women's Royal Army Corps, attended an Army briefing at
which she was told that the first applicant was suspected of
involvement in the collection of money for the purchase of arms for the
IRA in the USA, this being a criminal offence under section 21 of the
Northern Ireland (Emergency Provisions) Act 1978 ("the 1978 Act") and
section 10 of the Prevention of Terrorism (Temporary Provisions) Act
1976. The corporal was instructed to go to the first applicant's
house, arrest her under section 14 of the 1978 Act (see
paragraphs 36-38 below) and bring her back to the Army screening centre
at Springfield Road in Belfast.
12. At 7 a.m. Corporal D., who was unarmed but accompanied by five
armed soldiers, arrived by Army vehicle at the applicants' home. The
first applicant herself answered the door and three of the male
soldiers, together with Corporal D., entered the house. Corporal D.
established the identity of the first applicant and asked her to get
dressed. Corporal D. went upstairs with the first applicant. The
other applicants were roused and asked to assemble in the living room.
The soldiers did not carry out any search of the contents of the house,
but made written notes as to the interior of the house and recorded
personal details concerning the applicants. At about 7.30 a.m. in the
hallway of the house Corporal D., with one of the soldiers acting as
a witness, said to the first applicant, "As a member of Her Majesty's
forces, I arrest you." On being asked twice by the first applicant
under what section, Corporal D. replied, "Section 14."
C. First applicant's questioning
13. The first applicant was then driven to the Army screening
centre at Springfield Road, Belfast. She was escorted into a building
and asked to sit for a short time in a small cubicle. At 8.05 a.m. she
was taken before Sergeant B. who asked her questions with a view to
completing part 1 of a standard form to record, inter alia, details of
the arrest and screening procedure and personal details. The first
applicant refused to answer any questions save to give her name and she
refused to be photographed. The interview ended four minutes later.
She was then examined by a medical orderly who endeavoured to establish
whether she suffered from certain illnesses, but she again refused to
co-operate and did not answer any of his questions.
14. At 8.20 a.m. she was taken to an interview room and questioned
by a soldier in civilian clothes in the presence of Corporal D. She
was asked, inter alia, about her brothers and her contacts with them,
but she still refused to answer questions. After the interview, which
ended at 9.35 a.m., she was returned to the reception area and then
taken back to the medical orderly who asked her if she had any
complaints. She did not reply to this query.
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.
15. The standard record form, called the "screening proforma",
recorded the first applicant's name, address, nationality, marital and
tenancy status, the chronological details about her arrest, the names
of the Army personnel involved, the names of the other applicants and
their relationship to her, her physique and her attitude to the
interview. Under the heading "Additional information … concerning
the arrestee (as reported by the arresting soldier)", it stated:
"Subject is the sister of C… M… who was arrested in USA.
Questioned on the above subject." Nothing however was recorded under
the heading "Suspected offence". It noted that the applicant had
refused to answer questions and that no information had been gained
from the interview.
D. Proceedings before the High Court
16. Some eighteen months later, on 9 February 1984, the first
applicant brought an action against the Ministry of Defence for false
imprisonment and other torts.
17. In those proceedings one of the principal allegations made by
the first applicant was that her arrest and detention had been effected
unlawfully and for an improper purpose. Her allegations were
summarised in the judgment of Murray J. given on 25 October 1985:
"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."
18. In support of this case the first applicant's counsel not only
called and examined the applicant herself but extensively
cross-examined the two witnesses called on behalf of the defendants,
namely Corporal D. and Sergeant B.
19. The evidence given by the first applicant is recorded in a note
drafted by the trial judge, there being no transcript of the first day
of the trial as a result of a technical mishap with the recording
equipment. The first applicant explained how she had found the
conditions of her arrest and detention distressing for her. She had
been angry but had not used strong language. She testified that whilst
at the Army centre she had refused to be photographed, to be weighed
by the medical orderly, to sign any documents and to answer questions,
whether put by Sergeant B., the medical orderly or the interviewer,
apart from giving her name. She had made it clear that she would not
be answering any questions. She alleged that Sergeant B. had told her
in so many words that the Army knew that she had not committed any
crime but that her file had been lost and the Army wanted to update it.
She said that she had been questioned about her brothers in the USA,
their whereabouts and her contacts with them, but not about the
purchase of arms for the Provisional IRA or about any offence. She
accepted that she had been in contact with her brothers and had been
to the USA, including a visit that year (1985). She believed that the
Army had wanted to obtain information about her brothers. On leaving
the centre, she had told the officials that she would be seeing them
in court.
20. As appears from the transcript of her evidence, Corporal D.
gave an account of her briefing on the morning of the arrest. She
stated that at the briefing she had been told the first applicant's
name and address and the grounds on which she was wanted for
questioning, namely her suspected involvement in the collection of
money for the purchase of weapons from America. She testified that "my
suspicions were aroused by my briefing, and my belief was that
Mrs Murray was suspected of collecting money to purchase arms".
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.
21. Corporal D. was further examined about the interrogation of the
first applicant at Springfield Road. She stated that she recalled that
questions had been asked of the applicant by the interviewer and that
the applicant had refused to answer any questions put to her. She
recalled that the interviewer had asked a few more questions when he
returned to the room after leaving it but that she could not really
remember what they were about. Counsel for the defence returned to the
question of the interview of the applicant towards the end of his
examination of Corporal D. in the following exchange:
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
No cross-examination by the first applicant's counsel was
directed to this reply of the witness.
22. Sergeant B. was examined and cross-examined about his
completion of part 1 of the standard record form when standing at the
reception desk. He said that the first applicant had stated her name
but refused to give her address or date of birth or any further
information. He expressly denied the applicant's allegation that he
had said to her that he knew she was not a criminal and that he just
wanted to update her files which had been lost. He gave evidence that
information recorded in 1980 on the occasion of a previous arrest of
the first applicant had in any event not been lost, since it had been
used to complete the details on the first page of the form when she had
refused to answer any questions.
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.
23. The issue of the interview of the first applicant was
specifically addressed in the final submission of defence counsel, in
which the following exchange is partially recorded in the transcript:
"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."
24. In his judgment of 25 October 1985 Murray J. gave detailed
consideration to the evidence of Corporal D. and Sergeant B. on the one
hand and the first applicant on the other. Murray J. "could not
possibly accept the [first applicant's] evidence" that she had been
told by Sergeant B. that she was not suspected of any offence and that
he was just updating his records. He similarly rejected the
applicant's claim that Corporal D. at no time genuinely suspected her
of having committed an offence. In the light of the evidence of
Corporal D. herself, who was described as a "transparently honest
witness", the judge was
"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".
25. Murray J. also rejected the first applicant's claim that
section 14 of the 1978 Act had been used with a view to screening in
order to gain low-level intelligence: he accepted the evidence of
Corporal D. and Sergeant B., which had been tested in
cross-examination, that the purpose of the applicant's arrest and
detention under the section had been to establish facts concerning the
offence of which she was suspected.
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."
26. Murray J. likewise rejected the first applicant's argument that
the photographing of her gave rise to a cause of action. His
understanding of the law was that merely taking the photograph of a
person, even against their will, without physically interfering with
or defaming the person was not tortious.
27. The first applicant's action before the High Court was
therefore dismissed.
E. Proceedings before the Court of Appeal
28. The first applicant thereupon appealed to the Court of Appeal.
She again challenged the legality of her arrest on the grounds,
"(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."
29. The Court of Appeal further unanimously rejected the first
applicant's complaint that the purpose of her arrest and detention, and
the whole purport of her questioning, was a fishing expedition
unrelated to the matters of which she was suspected and designed to
obtain low-grade intelligence about the applicant and others. In
rejecting this complaint, the Court of Appeal took account of the
evidence which had been adduced on both sides:
"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."
30. The first applicant's appeal to the Court of Appeal also
concerned certain related matters such as the legality of the search
of the applicants' house, in respect of which the Court of Appeal found
that there was a sufficient basis in section 14(3) of the 1978 Act
(see paragraphs 36 and 38(d) below). The Court of Appeal held that the
implied authority granted to the Army under section 14 included a power
to interrogate a detained person and, as a practical necessity, a power
to record personal particulars and details concerning the arrest and
detention. It further found that the standard record form known as the
"screening proforma" contained no information which might not have been
relevant to the resolution of the suspicion.
As regards the applicant's complaint that she had been
photographed without her knowledge, the Court of Appeal stated as
"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 [1978] 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
31. The first applicant was granted leave by the Court of Appeal
to appeal to the House of Lords. This appeal was rejected on
25 May 1988 (Murray v. Ministry of Defence, [1988] Weekly Law
Reports 692).
32. In the House of Lords the applicant did not pursue the
allegation that she had not been arrested on the basis of a genuine and
honest suspicion that she had committed an offence.
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."
33. The first applicant had also maintained that the failure to
inform her that she was arrested until the soldiers were about to leave
the house rendered the arrest unlawful. This submission was also
rejected by the House of Lords. Lord Griffiths held as follows (at
pp. 699H-701A):
"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."
34. Before the House of Lords the first applicant also pursued a
claim that her period of detention exceeded what was reasonably
required to make a decision whether to release her or hand her over to
the police. In this regard the applicant complained that the standard
record form (the "screening proforma") constituted an improper basis
for questioning a suspect on the ground that it asked questions not
directly relevant to the suspected offence; it was also suggested that
the evidence did not show that the questioning of the applicant was
directed to the matters of which she was suspected. The allegation was
unanimously rejected by the House of Lords. Lord Griffiths observed
as follows (at pp. 703F-704C):
"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
35. For more than twenty years the population of Northern Ireland,
which totals about one and a half million people, has been subjected
to a campaign of terrorism. During that time thousands of persons in
Northern Ireland have been killed, maimed or injured. The campaign of
terror has extended to the rest of the United Kingdom and to the
mainland of Europe.
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
36. The first applicant was arrested under section 14 of the 1978
Act, which at the relevant time provided as follows:
"(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).
37. In 1983 Sir George Baker, a retired senior member of the
judiciary, was invited by the Government to review the operation of the
1978 Act in order to determine whether its provisions struck the right
balance between the need, on the one hand, to maintain as fully as
possible the liberties of the individual and, on the other, to provide
the security forces and the courts with adequate powers to enable them
to protect the public from current and foreseeable incidence of
terrorist crime. In the resultant report specific consideration was
given to, inter alia, including a requirement in section 14 of the 1978
Act that an arrest should be based upon reasonable suspicion. While
expressly recognising the risk that the facts raising the suspicion
might come from a confidential source which could not be disclosed in
court in a civil action for wrongful arrest, Sir George Baker concluded
that the inclusion of a requirement of reasonableness would not in fact
make any difference to the actions of the military and recommended an
amendment to the 1978 Act accordingly. That recommendation was
implemented in June 1987.
38. The scope and exercise of the section 14 powers were considered
by the domestic courts in the proceedings in the present case. The
applicable law, as stated by the judgments in these proceedings, is
that when the legality of an arrest or detention under section 14 is
challenged (whether by way of habeas corpus or in proceedings for
damages for wrongful arrest or false imprisonment), the burden lies on
the military to justify their acts and, in particular, to establish the
following elements:
(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.
C. Photograph
39. Section 11 of the 1978 Act, which concerns police arrest,
provides in paragraph 4:
"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
40. In the general law of Northern Ireland, as in English law, it
is lawful to take a photograph of a person without his or her consent,
provided no force is used and the photograph is not exploited in such
a way as to defame the person concerned (see paragraphs 26 and 30 in
fine above).
The common-law rule entitling the Army to take a photograph
equally provides the legal basis for its retention.
D. Standard record form
41. As was confirmed in particular by the Court of Appeal and the
House of Lords in the present case, the standard record form (known as
the "screening proforma") was an integral part of the examination of
the first applicant following her arrest, and the legal authority for
recording certain personal details about her in the form derived from
the lawfulness of her arrest, detention and examination under section
14 of the 1978 Act (see paragraph 30, first sub-paragraph in fine, and
paragraph 34 above). The implied lawful authority conferred by
section 14 of the 1978 Act to record information about the first
applicant equally provided the legal basis for the retention of the
PROCEEDINGS BEFORE THE COMMISSION
42. The applicants applied to the Commission on 28 September 1988
(application no. 14310/88).
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.
43. On 10 December 1991 the Commission declared admissible all the
first applicant's complaints and the other applicants' complaint under
Article 8 (art. 8) in connection with the entry into and search of the
family home. The remainder of the application was declared
inadmissible.
44. In its report of 17 February 1993 (Article 31) (art. 31) the
Commission expressed the opinion that
(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*.
* 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.
FINAL SUBMISSIONS TO THE COURT
45. At the public hearing on 24 January 1994 the Government
maintained in substance the concluding submission set out in their
memorial, whereby they invited the Court to hold
"(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;
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".
46. On the same occasion the applicants likewise maintained in
substance the conclusions and requests formulated at the close of their
memorial, whereby they requested the Court
"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
47. The applicants' complaints concern the first applicant's arrest
and detention by the Army under special criminal legislation enacted
to deal with acts of terrorism connected with the affairs of Northern
Ireland. As has been noted in several previous judgments by the Court,
the campaign of terrorism waged in Northern Ireland over the last
quarter of a century has taken a terrible toll, especially in terms of
human life and suffering (see paragraph 35 above).
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
48. The first applicant, Mrs Margaret Murray, alleged that her
arrest and detention by the Army were in breach of Article 5 para. 1
(art. 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:
(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 …
A. Lawfulness
49. Before the Convention institutions the first applicant did not
dispute that her arrest and detention were "lawful" under Northern
Ireland law and, in particular, "in accordance with a procedure
prescribed by law", as required by Article 5 para. 1 (art. 5-1). She
submitted that she had not been arrested on "reasonable suspicion" of
having committed a criminal offence and that the purpose of her arrest
and subsequent detention had not been to bring her before a competent
legal authority within the meaning of paragraph 1 (c) (art. 5-1-c).
B. "Reasonable suspicion"
50. Mrs Murray was arrested and detained by virtue of section 14
of the 1978 Act (see paragraphs 11 and 12 above). This provision, as
construed by the domestic courts, empowered the Army to arrest and
detain persons suspected of the commission of an offence provided,
inter alia, that the suspicion of the arresting officer was honestly
and genuinely held (see paragraphs 36 and 38(b) above). It is relevant
but not decisive that the domestic legislation at the time merely
imposed this essentially subjective standard: the Court's task is to
determine whether the objective standard of "reasonable suspicion" laid
down in Article 5 para. 1 (art. 5-1) was met in the circumstances of
the application of the legislation in the particular case.
51. In its judgment in the above-mentioned case of Fox, Campbell
and Hartley, which was concerned with arrests carried out by the
Northern Ireland police under a similarly worded provision of the
1978 Act, the Court stated as follows (pp. 16-18, paras. 32 and 34):
"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
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).
52. In the present case the Government maintained that there
existed strong and specific grounds, founded on information from a
reliable but secret source, for the Army to suspect that Mrs Murray was
involved in the collection of funds for terrorist purposes. However,
the "primary" information so provided could not be revealed in the
interests of protecting lives and personal safety. In the Government's
submission, the fact that they had maintained that this was the
foundation of the suspicion should be given considerable weight by the
Court. They also pointed to a number of other facts capable of
supporting, albeit indirectly, the reasonableness of the suspicion,
including notably the findings made by the domestic courts in the
proceedings brought by Mrs Murray, the very recent conviction of her
brothers in the USA of offences connected with the purchase of weapons
for the Provisional IRA, her own visits to the USA and her contacts
with her brothers there (see especially paragraphs 10, 19, 24, 25, 28
and 29 above). They submitted that all these matters taken together
provided sufficient facts and information to satisfy an objective
observer that there was a reasonable suspicion in the circumstances of
the case. Any other conclusion by the Court would, they feared,
prohibit arresting authorities from effecting an arrest of a person
suspected of being a terrorist based primarily on reliable but secret
information and would inhibit the arresting authorities in taking
effective measures to counter organised terrorism.
53. The first applicant, on the other hand, considered that the
Government had failed to discharge the onus of disclosing sufficient
facts to enable the Convention institutions to conclude that the
suspicion grounding her arrest was reasonable or anything more than the
"honest" suspicion required under Northern Ireland law. As in the case
of Fox, Campbell and Hartley, the Government's explanation did not meet
the minimum standards set by Article 5 para. 1 (c) (art. 5-1-c) for
judging the reasonableness of her arrest and detention. She did not
accept that the reason advanced for non-disclosure was a genuine or
valid one. She in her turn pointed to circumstances said to cast doubt
on the reasonableness of the suspicion. Thus, had the suspicion really
been reasonable, she would not have been arrested under the four-hour
power granted by section 14 of the 1978 Act but under more extensive
powers; she would have been questioned by the police, not the Army;
time would not have been spent in gathering personal details and in
photographing her; she would have been questioned for more than one
hour and fifteen minutes; she would have been questioned about her own
alleged involvement and not just about her brothers in the USA; and she
would have been cautioned. In reply to the Government the first
applicant contended that the issue which the domestic courts inquired
into was not the objective reasonableness of any suspicion but the
subjective state of mind of the arresting officer, Corporal D.
54. For the Commission, the Government's explanation in the present
case was not materially distinguishable from that provided in the case
of Fox, Campbell and Hartley. It took the view that no objective
evidence to corroborate the unrevealed information had been adduced in
support of the suspicion that the first applicant had been involved in
collecting money for Provisional IRA arms purchases other than her
kinship with her convicted brothers. That, the Commission concluded,
was insufficient to satisfy the minimum standard set by
Article 5 para. 1 (c) (art. 5-1-c).
55. With regard to the level of "suspicion", the Court would note
firstly that, as was observed in its judgment in the case of Brogan and
Others, "sub-paragraph (c) of Article 5 para. 1 (art. 5-1-c) does not
presuppose that the [investigating authorities] should have obtained
sufficient evidence to bring charges, either at the point of arrest or
while [the arrested person is] 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"
(loc. cit., p. 29, para. 53). The object of questioning during
detention under sub-paragraph (c) of Article 5 para. 1 (art. 5-1-c) is
to further the criminal investigation by way of confirming or
dispelling the concrete suspicion grounding the arrest. Thus, facts
which raise a suspicion need not be of the same level as those
necessary to justify a conviction or even the bringing of a charge,
which comes at the next stage of the process of criminal investigation.
56. The length of the deprivation of liberty at risk may also be
material to the level of suspicion required. The period of detention
permitted under the provision by virtue of which Mrs Murray was
arrested, namely section 14 of the 1978 Act, was limited to a maximum
of four hours.
57. With particular regard to the "reasonableness" of the
suspicion, the principles stated in the Fox, Campbell and Hartley
judgment are to be applied in the present case, although as pointed out
in that judgment, the existence or not of a reasonable suspicion in a
concrete instance depends ultimately on the particular facts.
58. The Court would firstly reiterate its recognition that the use
of confidential information is essential in combating terrorist
violence and the threat that organised terrorism poses to the lives of
citizens and to democratic society as a whole (see also the Klass and
Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 23,
para. 48). This does not mean, however, that the investigating
authorities have carte blanche under Article 5 (art. 5) to arrest
suspects for questioning, free from effective control by the domestic
courts or by the Convention supervisory institutions, whenever they
choose to assert that terrorism is involved (ibid., p. 23, para. 49).
59. As to the present case, the terrorist campaign in Northern
Ireland, the carnage it has caused over the years and the active
engagement of the Provisional IRA in that campaign are established
beyond doubt. The Court also accepts that the power of arrest granted
to the Army by section 14 of the 1978 Act represented a bona fide
attempt by a democratically elected parliament to deal with terrorist
crime under the rule of law. That finding is not altered by the fact
that the terms of the applicable legislation were amended in 1987 as
a result of the Baker Report so as to include a requirement that the
arrest should be based on reasonable, rather than merely honest,
suspicion (see paragraph 37 above).
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.
60. Nevertheless, in the words of the Fox, Campbell and Hartley
judgment, the respondent Government must in addition "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" (see paragraph 51 above). In this connection, unlike
in the case of Fox, Campbell and Hartley, the Convention institutions
have had the benefit of the review that the national courts conducted
of the facts and of Mrs Murray's allegations in the civil proceedings
brought by her.
61. It cannot be excluded that all or some of the evidence adduced
before the national courts in relation to the genuineness of the
suspicion on the basis of which Mrs Murray was arrested may also be
material to the issue whether the suspicion was "reasonable" for the
purposes of Article 5 para. 1 (c) (art. 5-1-c) of the Convention. At
the very least the honesty and bona fides of a suspicion constitute one
indispensable element of its reasonableness.
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).
62. Some weeks before her arrest two of Mrs Murray's brothers had
been convicted in the USA of offences connected with purchase of arms
for the Provisional IRA (see paragraph 10 above). As she disclosed in
her evidence to the High Court, she had visited the USA and had
contacts with her brothers there (see paragraph 19 above). The
offences of which her brothers were convicted were ones that implied
collaboration with "trustworthy" persons residing in Northern Ireland.
63. Having regard to the level of factual justification required
at the stage of suspicion and to the special exigencies of
investigating terrorist crime, the Court finds, in the light of all the
above considerations, that there did exist sufficient facts or
information which would provide a plausible and objective basis for a
suspicion that Mrs Murray may have committed the offence of involvement
in the collection of funds for the Provisional IRA. On the particular
facts of the present case, therefore, the Court is satisfied that,
notwithstanding the lower standard of suspicion under domestic law,
Mrs Murray can be said to have been arrested and detained on
"reasonable suspicion" of the commission of a criminal offence, within
the meaning of sub-paragraph (c) of Article 5 para. 1 (art. 5-1-c).
C. Purpose of the arrest
64. In the first applicant's submission, it was clear from the
surrounding circumstances that she was not arrested for the purpose of
bringing her before a "competent legal authority" but merely for the
purpose of interrogating her with a view to gathering general
intelligence. She referred to the entries made in her regard on the
standard record form completed at the Army centre (see paragraph 15
above), to the failure of the Army to involve the police in her
questioning and to the short (one-hour) period of her questioning
(see paragraph 14 above).
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.
65. Under the applicable law of Northern Ireland the power of
arrest and detention granted to the Army under section 14 of
the 1978 Act may not be used for any improper purpose such as
intelligence-gathering (see paragraph 38(c) above). In the civil
action brought by Mrs Murray against the Ministry of Defence the trial
court judge found that on the evidence before him the purpose of her
arrest and detention under section 14 of the 1978 Act had been to
establish facts concerning the offence of which she was suspected (see
paragraph 25 above). In reaching this conclusion the trial judge had
had the benefit of seeing the various witnesses give their evidence and
of evaluating their credibility. He accepted the evidence of
Corporal D. and Sergeant B. as being truthful and rejected the claims
of Mrs Murray, in particular her contention that she had been told by
Sergeant B. that she was not suspected of any offence and had been
arrested merely in order to bring her file up to date (see
paragraphs 19, 20 to 22, 24 and 25 above). The Court of Appeal, after
reviewing the evidence, in turn rejected her argument that the purpose
of her arrest and detention had been a "fishing expedition" designed
to obtain low-grade intelligence (see paragraph 29 above). This
argument was not pursued before the House of Lords (see paragraph 32
66. The Court's task is to determine whether the conditions laid
down by paragraph (c) of Article 5 para. 1 (art. 5-1-c), including the
pursuit of the prescribed legitimate purpose, have been fulfilled in
the circumstances of the particular case. However, in this context it
is not normally within the province of the Court to substitute its own
finding of fact for that of the domestic courts, which are better
placed to assess the evidence adduced before them (see, among other
authorities, the X v. the United Kingdom judgment of 5 November 1981,
Series A no. 46, pp. 19-20, para. 43, in relation to Article 5
para. 1 (e) (art. 5-1-e); and the Klaas v. Germany judgment of
22 September 1993, Series A no. 269, p. 17, para. 29, in relation to
Article 3 (art. 3)). In the present case no cogent elements have been
produced by the first applicant in the proceedings before the
Convention institutions which could lead the Court to depart from the
findings of fact made by the Northern Ireland courts.
67. Mrs Murray was neither charged nor brought before a court but
was released after an interview lasting a little longer than one hour
(see paragraph 14 above). This does not necessarily mean, however,
that the purpose of her arrest and detention was not in accordance with
Article 5 para. 1 (c) (art. 5-1-c) since "the existence of such a
purpose must be considered independently of its achievement" (see the
above-mentioned Brogan and Others judgment, pp. 29-30, para. 53). As
the domestic courts pointed out (see paragraphs 25 in fine, 29 in fine
and 34 in fine above), in view of her persistent refusal to answer any
questions at the Army centre (see paragraphs 13, 14 and 19 above) it
is not surprising that the authorities were not able to make any
headway in pursuing the suspicions against her. It can be assumed
that, had these suspicions been confirmed, charges would have been laid
and she would have been brought before the competent legal authority.
68. The first applicant also alleged absence of the required proper
purpose by reason of the fact that in practice persons arrested by the
Army under section 14 were never brought before a competent legal
authority by the Army but, if the suspicions were confirmed during
questioning, were handed over to the police who preferred charges and
took the necessary action to bring the person before a court.
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.
69. The arrest and detention of the first applicant must therefore
be taken to have been effected for the purpose specified in
paragraph 1 (c) (art. 5-1-c).
D. Conclusion
70. In conclusion, there has been no violation of Article 5
para. 1 (art. 5-1) in respect of the first applicant.
III. ALLEGED VIOLATION OF ARTICLE 5 PARA. 2 (art. 5-2) OF THE
71. The first applicant also alleged a violation of Article 5
para. 2 (art. 5-2) of the Convention, which provides:
"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."
72. The relevant principles governing the interpretation and
application of Article 5 para. 2 (art. 5-2) in cases such as the
present one were explained by the Court in its Fox, Campbell and
Hartley judgment as follows (loc. cit., p. 19, para. 40):
"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).
73. The first applicant maintained that at no time during her
arrest or detention had she been given any or sufficient information
as to the grounds of her arrest. Although she had realised that the
Army was interested in her brothers' activities, she had not, she
claimed, understood from the interview at the Army centre that she
herself was suspected of involvement in fund-raising for the
Provisional IRA. The only direct information she was given was the
formal formula of arrest pronounced by Corporal D.
74. The Commission similarly took the view that it was impossible
to draw any conclusions from what it described as the vague indications
given by Corporal D. in evidence before the High Court as to whether
the first applicant had been able to understand from the interview why
she had been arrested. In the Commission's opinion, it had not been
shown that the questions asked of Mrs Murray during her interview were
sufficiently precise to constitute the information as to the reasons
for arrest required by Article 5 para. 2 (art. 5-2).
75. According to the Government, on the other hand, it was apparent
from the trial evidence that in the interview it was made clear to
Mrs Murray that she was suspected of the offence of collecting money
for the Provisional IRA. The Government did not accept the
Commission's conclusion on the facts, which was at variance with the
findings of the domestic courts. They considered it established that
Mrs Murray had been given sufficient information as to the grounds of
her arrest. In the alternative, even if insufficient information had
been given to her to avail herself of her right under Article 5
para. 4 (art. 5-4) of the Convention to take legal proceedings to test
the lawfulness of her detention, she had suffered no prejudice thereby
which would give rise to a breach of Article 5 para. 2 (art. 5-2) since
she had been released rapidly, before any determination of the
lawfulness of her detention could have taken place.
76. It is common ground that, apart from repeating the formal words
of arrest required by law, the arresting officer, Corporal D., also
told Mrs Murray the section of the 1978 Act under which the arrest was
being carried out (see paragraphs 12 and 36 above). This bare
indication of the legal basis for the arrest, taken on its own, is
insufficient for the purposes of Article 5 para. 2 (art. 5-2) (see the
above-mentioned Fox, Campbell and Hartley judgment, p. 19, para. 41).
77. During the trial of Mrs Murray's action against the Ministry
of Defence, evidence as to the interview at the Army centre was given
by Mrs Murray and Corporal D., but not by the soldier who had conducted
the interview (see paragraphs 14, 19 and 21 above). Mrs Murray
testified that she had been questioned about her brothers in the USA
and about her contacts with them but not about the purchase of arms for
the Provisional IRA or about any offence (see paragraph 19 above).
Corporal D. did not have a precise recollection as to the content of
the questions put to Mrs Murray. This is not perhaps surprising since
the trial took place over three years after the events – Mrs Murray
having waited eighteen months before bringing her action – and
Corporal D., although present, had not taken an active part in the
interview (see paragraphs 14, 16, 17 and 21 above). Corporal D. did
however remember that questions had been asked about money and about
America and the trial judge found her to be a "transparently honest
witness" (see paragraphs 21 and 24 above). Shortly before the arrest
two of Mrs Murray's brothers had, presumably to the knowledge of all
concerned in the interview, been convicted in the USA of offences
connected with the purchase of weapons for the Provisional IRA (see
paragraph 10 above).
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.
78. Mrs Murray was arrested at her home at 7 a.m. and interviewed
at the Army centre between 8.20 a.m. and 9.35 a.m. on the same day (see
paragraphs 12 and 14 above). In the context of the present case this
interval cannot be regarded as falling outside the constraints of time
imposed by the notion of promptness in Article 5 para. 2 (art. 5-2).
79. In view of the foregoing findings it is not necessary for the
Court to examine the Government's alternative submission.
80. In conclusion, there was no breach of Article 5 para. 2
(art. 5-2) in respect of the first applicant.
IV. ALLEGED VIOLATION OF ARTICLE 5 PARA. 5 (art. 5-5) OF THE
81. The first applicant finally alleged in relation to Article 5
a violation of paragraph 5 (art. 5-5) of the Convention, which reads:
"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.
82. As the Court has found no violation of Article 5 paras. 1
or 2 (art. 5-1, art. 5-2), no issue arises under Article 5 para. 5
(art. 5-5). There has accordingly been no violation of this latter
provision in the present case.
V. ALLEGED VIOLATION OF ARTICLE 8 (art. 8) OF THE CONVENTION
83. All six applicants claimed to be the victims of a violation of
Article 8 (art. 8) of the Convention, which provides:
"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
84. The first applicant complained of the manner in which she was
treated both in her home and at the Army centre; in the latter
connection she objected to the recording of personal details concerning
herself and her family, as well as the photograph which was taken of
her without her knowledge or consent (see paragraphs 12 to 15 above).
All six applicants contended that the entry into and search of their
family home by the Army, including the confinement of the second,
third, fourth, fifth and sixth applicants for a short while in one
room, violated Article 8 (art. 8) (see paragraph 12 above).
85. Both the Government and the Commission considered that the
matters complained of were justified under paragraph 2 of Article 8
(art. 8-2) as being lawful measures necessary in a democratic society
for the prevention of crime in the context of the fight against
terrorism in Northern Ireland.
B. Interference
86. It was not contested that the impugned measures interfered with
the applicants' exercise of their right to respect for their private
and family life and their home.
C. "In accordance with the law"
87. On the other hand, the applicants did not concede that the
resultant interferences had been "in accordance with the law". They
disputed that the impugned measures all formed an integral part of
Mrs Murray's arrest and detention or that the domestic courts had
affirmed their lawfulness, in particular as concerns the retention of
the records including the photograph of Mrs Murray.
88. Entry into and search of a home by Army personnel such as
occurred in the present case were explicitly permitted by
section 14 (3) of the 1978 Act for the purpose of effecting arrests
under that section (see paragraphs 36 and 38(d) above). The Court of
Appeal upheld the legality of the search in the present case (see
paragraph 30 above). The short period of restraint endured by the
other members of Mrs Murray's family when they were asked to assemble
in one room was held by the House of Lords to be a necessary and proper
part of the procedure of arrest of Mrs Murray (see paragraph 33 above).
The Court of Appeal and the House of Lords also confirmed that the
Army's implied lawful authority under section 14 extended to
interrogating a detained person and to recording personal details of
the kind contained in the standard record form (see paragraph 41 above
and also paragraphs 15, 30 and 34). It is implicit in the judgments
of the national courts that the retention of such details was covered
by the same lawful authority derived from section 14 (see paragraph 41
in fine above). The taking and, by implication, also the retention of
a photograph of the first applicant without her consent had no
statutory basis but, as explained by the trial court judge and the
Court of Appeal, were lawful under the common law (see paragraphs 26,
30, 39 and 40 above).
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
89. These measures undoubtedly pursued the legitimate aim of the
prevention of crime.
E. Necessity in a democratic society
90. It remains to be determined whether they were necessary in a
democratic society and, in particular, whether the means employed were
proportionate to the legitimate aim pursued. In this connection it is
not for the Court to substitute for the assessment of the national
authorities its own assessment of what might be the best policy in the
field of investigation of terrorist crime (see the above-mentioned
Klass and Others judgment, p. 23, para. 49). A certain margin of
appreciation in deciding what measures to take both in general and in
particular cases should be left to the national authorities.
91. The present judgment has already adverted to the responsibility
of an elected government in a democratic society to protect its
citizens and its institutions against the threats posed by organised
terrorism and to the special problems involved in the arrest and
detention of persons suspected of terrorist-linked offences (see
paragraphs 47, 51 and 58 above). These two factors affect the fair
balance that is to be struck between the exercise by the individual of
the right guaranteed to him or her under paragraph 1 of Article 8
(art. 8-1) and the necessity under paragraph 2 (art. 8-2) for the State
to take effective measures for the prevention of terrorist crimes (see,
mutatis mutandis, the above-mentioned Klass and Others judgment, p. 28,
92. The domestic courts held that Mrs Murray was genuinely and
honestly suspected of the commission of a terrorist-linked crime (see
paragraphs 24 and 28 above). The European Court, for its part, has
found on the evidence before it that this suspicion could be regarded
as reasonable for the purposes of sub-paragraph (c) Article 5 para. 1
(art. 5-1-c) (see paragraph 63 above). The Court accepts that there
was in principle a need both for powers of the kind granted by section
14 of the 1978 Act and, in the particular case, to enter and search the
home of the Murray family in order to arrest Mrs Murray.
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.
93. Neither can it be regarded as falling outside the legitimate
bounds of the process of investigation of terrorist crime for the
competent authorities to record and retain basic personal details
concerning the arrested person or even other persons present at the
time and place of arrest. None of the personal details taken during
the search of the family home or during Mrs Murray's stay at the Army
centre would appear to have been irrelevant to the procedures of arrest
and interrogation (see paragraphs 12 to 15 above). Similar conclusions
apply to the taking and retention of a photograph of Mrs Murray at the
Army centre (see paragraphs 13 and 14 above). In this connection too,
the Court does not find that the means employed were disproportionate
to the aim pursued.
94. In the light of the particular facts of the case, the Court
finds that the various measures complained of can be regarded as having
been necessary in a democratic society for the prevention of crime,
F. Conclusion
95. In conclusion there has been no violation of Article 8
(art. 8) in respect of any of the applicants.
VI. ALLEGED VIOLATION OF ARTICLE 13 (art. 13) OF THE CONVENTION
96. The first applicant submitted that, contrary to Article 13
(art. 13) of the Convention, she had no effective remedy under domestic
law in respect of her claims under Articles 5 and 8 (art. 5, art. 8).
Article 13 (art. 13) reads as follows:
"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)
97. The Commission did not consider it necessary to examine the
complaint under this head on the ground that no separate issue arose
under Article 13 (art. 13) in view of its conclusion that Article 5
para. 5 (art. 5-5) had been violated.
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.
98. Under the Convention scheme of protection of the right to
liberty and security of person, the lex specialis as regards
entitlement to a remedy is paragraph 4 of Article 5 (art. 5-4) (see the
Brannigan and McBride v. the United Kingdom judgment of 26 May 1993,
Series A no. 258-B, p. 57, para. 76), which provides:
"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)
99. The first applicant argued that effective remedies for her
claims under Article 8 (art. 8) regarding the Army's actions in
entering and searching her house were lacking since such domestic
proceedings as might have been taken in relation to entry and search
would have failed because domestic law provided lawful excuse for those
actions.
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.
100. The Court likewise arrives at the same conclusion as the
Commission. Article 13 (art. 13) guarantees the availability of a
remedy at national level to enforce the substance of the Convention
rights in whatever form they may happen to be secured in the domestic
legal order. Its effect is thus to require the provision of a domestic
remedy allowing the competent "national authority" both to deal
with the substance of the relevant Convention complaint and to grant
appropriate relief in meritorious cases (see, inter alia, the
Vilvarajah and Others v. the United Kingdom judgment of
30 October 1991, Series A no. 215, p. 39, para. 122, and the
authorities cited there). The remedy available to Mrs Murray would
have satisfied these conditions. As the Commission pointed out, her
feeble prospects of success in the light of the particular
circumstances of her case do not detract from the "effectiveness" of
the remedy for the purpose of Article 13 (art. 13) (ibid.).
C. Claims as to the taking and retention of a photograph and
personal details (Article 8) (art. 8)
101. As to her claims under Article 8 (art. 8) regarding the taking
and retention of a photograph and personal details, the first applicant
agreed with the separate opinion of Sir Basil Hall, who took the view
that since Northern Ireland law offered no protection for an individual
in her position, there being no general right to privacy recognised
under that law, Article 13 (art. 13) had been violated.
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.
102. On this point too the Court comes to the same conclusion as the
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.
103. The facts of the present case do not therefore disclose a
violation of Article 13 (art. 13) in respect of the first applicant.
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. 5 (art. 5-5-) of the Convention in
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.
Signed: Rolv RYSSDAL
Signed: Herbert PETZOLD
Acting Registrar
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.
Initialled: R. R.
Initialled: H. P.
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.
* Fox, Campbell and Hartley v. the United Kingdom judgment of
30 August 1990, Series A no. 182.
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
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."*
* English translation by W. and E. Muir from the German original
Der Prozess – Penguin reprint 1953, p. 18.
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.
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).
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.
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
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.
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