Neutral Citation no

Neutral Citation no. [2009] NIQB 31	Ref:	KER7462

Judgment: approved by the Court for handing down	Delivered:	25/03/2009
(subject to editorial corrections)

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)

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IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW BY COLIN DUFFY and OTHERS

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Before Kerr LCJ, Higgins LJ and Coghlin LJ

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KERR LCJ

Introduction

[1] These applications for judicial review challenge the decision of Her Honour Judge Philpott QC to grant warrants of further detention of the applicants pursuant to paragraph 32 of Schedule 8 to the Terrorism Act 2000. Each of the applicants had been arrested on 14 March 2009 under section 41 of that Act. Colin Duffy and three other applicants (who shall be referred to as C, D and D2) were arrested on suspicion of involvement in the murders of two soldiers and the attempted murders of three soldiers and two civilians at Massereene Barracks, Antrim, and the wounding in the same incident of a number of civilians on 7 March 2009. The two remaining applicants (T and G) were arrested on suspicion of having been involved in the murder of a police officer in Craigavon on 9 March 2009.

[2] At the start of the hearings, applications were made on behalf of all applicants apart from Colin Duffy that their identities should not be revealed as they had been arrested on suspicion of having been involved in very serious offences; they had not yet been charged with those offences; and their identities (apart from that of Mr Duffy) had not been revealed. The respondent to the applications, the Police Service of Northern Ireland (PSNI) did not oppose the applications for anonymity and the court decided that their identities should not be disclosed at this stage. They have therefore been referred to by letter.

History of the detention of the applicants

[3] On 15 March 2009 Detective Superintendent Farrar of the Police Service of Northern Ireland (who is the senior investigating officer in the Massereene incident) decided to seek a warrant of detention from a judge to allow the detention of Colin Duffy, C, D and D2 to continue beyond the period of forty-eight hours from the date of their arrest. (By virtue of section 41 (3) of the Terrorism Act, a person detained under that section must be released within forty-eight hours unless an extension of detention is obtained.)

[4] The application began in the evening of 15 March and continued until the early hours of the following morning. It was resumed at 9.30 am on 16 March and continued until approximately 4.30 pm on the same day. It was heard by His Honour Judge Smyth QC and at the conclusion of the hearing he made extension orders of five days in respect of each of the applicants, Colin Duffy, C, D and D2.

[5] At the hearing evidence was given about seven phases of an interview strategy which had been developed; the process of review of each arrestee’s detention; and the nature of the forensic tests that had been undertaken and the dates on which it was anticipated the results of those tests would be known. Some of the evidence was given in the presence of the detained persons and their legal representatives and some was given when they were not present. (Under paragraph 33 (3) of Schedule 8 a judge who hears an application for an extension may exclude from any part of the hearing the person to whom the application relates or anyone representing him.) The judge was informed that the arrests of D, Colin Duffy and D2 were based on intelligence information whereas the arrest of C was based both on evidence and information.

[6] The interviews of these applicants were completed within the five day extensions granted by the judge. The results of many of the forensic examinations and analyses were provided within that time also. None of these provided evidence linking any of the detainees to involvement in the incident. At the expiry of the period of extension, however, examination and analysis of some 100 swabs which had been sent to a laboratory in Great Britain was still to take place. Detective Superintendent Farrar therefore decided to seek further warrants of detention for 7 days in respect of each of the detainees. He explained the reasons for this in paragraph 19 of an affidavit filed on behalf of the respondent: -

“The principal reason for [applying for the further extension] was that I was conscious that results of a wide range of further forensic examinations and analyses would become available within the next 7 days and that in an investigation of the importance of the Massereene investigation it was necessary to detain the arrestees in custody until results were known so that:

(i) in the event of there being evidence to support the charging of one or more or all of the arrestees charging could be effected; and

(ii) in the event of positive results one or more or all of the arrestees could be further interviewed in connection with the results as a means of obtaining further evidence.”

[7] The applicants, G and T, were also the subject of applications for extension on 16 March. Five day extensions were granted in both cases. It was decided to make applications for further warrants of detention for seven days. The reasons for this were given in affidavits of Temporary Superintendent Ernest Ian McCoy: -

“7. The basis for the said application was that there were reasonable grounds for believing that the further detention of the Applicant was necessary to obtain relevant evidence by questioning and pending the result of an examination or analysis of any relevant evidence, or with anything the examination or analysis of which is to be carried out with a view to obtaining relevant evidence.

8. In essence the PSNI’s application with respect to the Applicant for the further extension of [his/her] detention related to the requirement to put to [him/her] the results of various forensic examinations, which were pending at the time of the application.”

The hearings before Judge Philpott

[8] The evidence given to Judge Philpott in the cases of Colin Duffy, C, D and D2 was described by Detective Superintendent Farrar in the following paragraphs of his affidavit: -

“20. In the course of the hearing before the Judge - Her Honour Judge Philpott QC myself and Paul Wilson, Crime Scene management, gave evidence for the police in support of the seeking of the further warrants. I told the Judge of the matters referred to above [this was a reference to the evidence given to Judge Smyth] and provided the Court with a schedule of the material sent for forensic examinations or analyses in respect of which results were expected within the 7 day period. I explained the schedule in detail to the Judge and was extensively cross examined about it. I stressed to the Judge that the results of forensic examinations would assist in confirming or dispelling the suspicion upon which the arrestees had been arrested. Paul Wilson also gave evidence in relation to matters of forensic detail which Counsel for the detained persons and the Judge required clarification.

21. I recall, in particular, being challenged by D2’s solicitor about whether D2 represented a flight risk. I indicated that given the importance and seriousness of the investigation and the awareness that D2 would have of the material sent for forensic analysis and the potential seriousness of the matter for him this would be a factor.

22. My recall is that Counsel for the Police Service of Northern Ireland in the course of the hearings emphasised as matters relevant to the Court’s assessment the following:

(i) The importance of the investigation.

(ii) The potential seriousness of any charge.

(iii) The need to have the arrestee available for interview and/or charging in the event of any positive test results.”

[9] In his affidavit Superintendent McCoy described the evidence that he gave in support of the application for an extension in the case of G. He outlined the ongoing forensic examinations in some detail. He stated his conclusions on this in the following paragraphs: -

“11. It was my view as expressed to the Court during the course of my evidence in the application that it was necessary to secure the further detention of the Applicant for a further 7 days in order to obtain relevant evidence from him by questioning in relation to the results of the aforementioned forensic examinations or the analysis of same pursuant to paragraph 32 of Schedule 8 to the 2000 Act.

12. It is the PSNI’s contention that the further detention of the Applicant was necessary pending the availability of the results of the said forensic examinations and to question him accordingly following same and this process would have been disrupted severely if the Applicant was released and took flight.

13. This is self evidently an investigation into the most serious of matters and it is the Respondent’s view that it is vital that it is able to interview the Applicant in respect of the results of those forensic investigations.

[10] In relation to the case of T, Superintendent McCoy described in a second affidavit the evidence that he had given on the hearing before Judge Philpott. Again he outlined in detail the ongoing forensic examinations including the examination of a mobile phone. He then said: -

“It was my view as expressed to the Court during the course of my evidence in the application that it was necessary to secure the further detention of the Applicant for a further 7 days in order to question [T] in relation to the mobile phone traffic with a view to obtaining relevant evidence, and also for the purpose of obtaining relevant evidence from [T] by questioning in relation to the results of the aforementioned forensic examinations or the analysis of same pursuant to paragraph 32 of Schedule 8 to the 2000 Act.”

The judge’s ruling

[11] Judge Philpott gave ex tempore decisions in all cases and prepared written rulings in the cases of G and D2. In the case of G, she said: -

“[34] … Metropolitan Police Commissioner –v- Raissi [2008] EWCA Civ 1237 was a civil case dealing with the interpretation of what can in law amount to reasonable suspicion allowing a constable the power to arrest under Section 41 of the Terrorism Act 2000. The court at paragraph 20 at page 6 of the judgment stated that:

“the threshold for the existence of a reasonable ground for suspicion is low”.

The main issue in the case being whether the officer who made the arrest himself had to have the information actually within his own personal knowledge or whether the test for reasonable suspicion allowed him to rely on material in the knowledge of a superior officer could be used to justify the arrest.

[35] The Raissi case is clearly authority for the proposition that if an arrest has been made unlawfully under the Terrorism legislation a court can, after the detention has expired, examine the reasonableness of the arrest. If the arrest was unlawful, that is made without reasonable suspicion; the person detained has a right to damages.

I do not accept that this decision can be advanced for the proposition that a judge exercising the powers given by statute to grant an extension of detention under para 32 of the Terrorism Act has the power to investigate, at that stage, the lawfulness of the arrest.

[36] Paragraph 5 of Schedule 8 makes it clear that for the purposes of the Terrorism Act a detained person shall be deemed to be in legal custody throughout the period of his detention. This means the court considering whether or not an extension of detention should be granted is precluded from investigating the lawfulness of the arrest and must confine itself to the issue of whether or not it is necessary to extend a detainee's detention for more than the initial 2 days for investigative purposes.

[37] Re Cunningham’s application for Judicial Review [2004] NIQB7 is authority for the proposition that the provisions in respect of extended detention in the Terrorism Act 2000 are compatible with Article 5 of the Convention.

[38] I also consider that any issue as to the lawfulness of the initial arrest may be determined by the High Court either Habeas Corpus or Judicial Review Proceedings.

[39] I am satisfied that the conditions of para 32(1) and 32[1A] to extend the detention of the detainee were met. There were outstanding forensic results awaited which if positive in relation to the detainee the police would clearly require to question him about.

As the Lord Chief Justice said in Alexander (Silvana) & others (previously referred to in paragraph 32 herein), necessary can mean:

“that which is required for a given situation. As always, the meaning to be ascribed to a particular word such as ‘necessary’ must depend on the context in which it falls to be interpreted”.

In the context of this application for a further extension with relevant outstanding forensic evidence which could if positive connect the detainee with the offences with which he was arrested it was necessary to grant the further extension of detention which was requested.”

[12] In the D2 case the judge said: -

“[14] The court was told that the present interview processes had been completed on 20 March but that if positive results came back connecting the detainee to any of the items seized further questions would have to be put to him.

[15] The court was provided with a full schedule of outstanding forensic exhibits and when it was anticipated the results would be available. Most results were to be available between 24 and 26 March. However it was not anticipated that the forensic results from the Vauxhall Cavalier car which it was believed had been used to carry out the attack would be available before 30 or 31 March and that questioning may well be required in respect of any positive finding connecting the detainee to the vehicle.

…

[20] In relation to the other matters raised in respect of the Section 41 arrest in breach of Article 5 and the necessity for further detention I rely on the reasoning and decision I have reached in the case of [G] which I heard immediately before the application for a further extension of detention was made in respect of this detainee. The issues I have had to consider in reaching my decision on these points are the same in both cases.”

The application for judicial review

[13] For the applicants, Mr Barry Macdonald QC SC made four principal submissions. He argued that the learned judge was wrong in her conclusion that a court which is considering whether or not to grant an extension of detention was precluded from investigating the lawfulness of the arrest. In the context of the present case, the legislation governing the grant of an extension required the judge to be satisfied that the further detention was necessary pending the result of an examination or analysis of relevant evidence. ‘Relevant evidence’ meant evidence indicating that the applicants had committed an offence under any of the provisions mentioned in section 40 (1) (a) of the Terrorism Act – paragraph 32 (2) (a) of Schedule 8 to the Act. This inevitably impelled an examination of the basis for the arrest.

[14] Secondly, Mr Macdonald argued that the judge had failed to address the question whether detention of the applicants was required while the results of the forensic examination were expected. She had elided the need to await the forensic results with the need to detain the suspects while those results were pending. The judge should have focussed on the question whether detention was required rather than on the issue of whether the inquiry could progress without the forensic results.

[15] Mr Macdonald’s third point was related to his second. It was to the effect that the judge had failed to give reasons for her decision that detention was required. Although she had discussed the need to await the forensic results, what she had failed to do, said Mr Macdonald, was to explain why this could only take place while the detainees were in custody.

[16] The final argument advanced for the applicants was that Schedule 8 to the Terrorism Act was incompatible with article 5 of the European Convention on Human Rights and Fundamental Freedoms. It was recognised that, if this argument was to be pursued, it would be necessary to serve a notice on the government, signalling the intention of the court to consider whether a question of incompatibility arose and that this would inevitably delay judgment on the other grounds advanced. The parties therefore agreed that this issue should be deferred until a later date.

[17] For the respondent Mr Maguire QC argued that the judicial authority that decides whether to grant an extension is not required to examine the lawfulness of the original arrest. He relied on paragraph 5 of Schedule 8 which is to the effect that “a detained person shall be deemed to be in legal custody throughout the period of his detention”. At the time that the judge was dealing with the applications for extensions, all the applicants were detained persons. By operation of paragraph 5, therefore, they were to be deemed as being in lawful custody. This precluded any examination of the lawfulness of their arrest since that was a prerequisite to their detention in custody being lawful.

[18] Mr Maguire countered the second and third arguments of the applicants more robustly. He suggested that the reasons for the detention of the applicants pending the outcome of the forensic results had been put forcefully to the judge and that it was inconceivable that she had not been alive to these when reaching her conclusion on whether an extension of their detention was warranted. In this context Mr Maguire reminded us of the decision of ECtHR in O’Hara v United Kingdom [2001] ECHR 37555/97 in which the court had recognised that, in dealing with terrorist crime, the police may be called upon, in the interests of public safety, to arrest a suspected terrorist on the basis of information which is reliable but which cannot be disclosed to the suspect or produced in court, without jeopardising the informant. Contracting States cannot be required to establish the reasonableness of the suspicion grounding the arrest of a suspected terrorist by disclosing confidential sources of information. It was therefore open to a judge to accept without overly critical examination the estimate of police that suspects arrested for terrorist crime should remain in custody pending the production of forensic evidence which might prove critical either in further investigation by way of interview or in grounding a charge against the suspect.

The relevant statutory provisions

[19] Section 41 (1) of the Terrorism Act provides that a constable may arrest without a warrant a person whom he reasonably suspects to be a terrorist. Section 40 (1) defines a terrorist as (a) a person who has committed an offence under any of various stipulated sections of the Act, or (b) who is or has been concerned in the commission, preparation or instigation of acts of terrorism. By virtue of section 41 (2) where a person is arrested under the section the provisions of Schedule 8 in relation to detention, treatment, review and extension are to apply.

[20] Paragraph 29 of Schedule 8 to the Act deals with extensions to detention. It provides that in Northern Ireland, the Director of Public Prosecutions may apply to a judicial authority for the issue of a warrant of further detention. Paragraph 29 (2) (a) stipulates that a warrant of further detention must specify the period of further detention under section 41 of the person in respect of whom it is issued. Sub paragraph (3) provides that the specified period shall be seven days from his arrest unless (by virtue of sub-paragraph 3A) the period applied for is shorter or the judicial authority is satisfied that there are circumstances that would make it inappropriate for the specified period to be as long as the period of seven days.

[21] Paragraph 32 (1) provides that a judicial authority may issue a warrant of further detention only if satisfied that (a) there are reasonable grounds for believing that the further detention of the person to whom the application relates is necessary [as mentioned in sub-paragraph (1A)], and (b) the investigation in connection with which the person is detained is being conducted diligently and expeditiously. Sub-paragraph 1A deals with the circumstances in which the further detention of a person may be considered to be necessary. These are where it is necessary (a) to obtain relevant evidence whether by questioning him or otherwise; (b) to preserve relevant evidence; or (c) pending the result of an examination or analysis of any relevant evidence or of anything the examination or analysis of which is to be or is being carried out with a view to obtaining relevant evidence. In the present case the basis on which the warrant of further detention was applied for was the last of these.

[22] Relevant evidence for the purposes of paragraph 32 is defined in sub-paragraph (3) as evidence which (a) relates to the person’s commission of an offence under any of the provisions mentioned in section 40(1)(a), or (b) indicates that he is a person falling within section 40(1)(b).

Is the judicial authority required to examine the lawfulness of the original arrest?

[23] In the case of Al-Fayed and others v Commissioner of Police of the Metropolis [2004] EWCA Civ 1579 the Court of Appeal in England and Wales considered the question whether a custody officer, called upon to authorise the continued detention of a suspect without charge, was required to examine the lawfulness of the original arrest. At paragraph 101, Auld LJ said: -

“It is true that a custody officer's function under [the relevant statutory] provisions is to introduce an independent filter as to whether continued detention without charge is necessary and, if so, whether he should authorise it in the police station. But, in conducting that exercise, he is not required to inquire into the legality of the arrest and he is entitled to assume that it was lawful; see DPP v L, The Times, February 1, 1999, D.C. He is entitled to have regard to the arresting officer's assessment of the need for arrest for the purpose of interview. He is not bound by that assessment, but nor is he required to test it forensically as if it were an adversarial process.”

[24] In the case of DPP v L the defendant had been arrested and taken to a police station where her detention was authorised by the custody officer in accordance with the Police and Criminal Evidence Act 1984. She assaulted two police officers in the station and was prosecuted for these offences. She was acquitted on the grounds that the initial arrest had been unlawful and therefore her detention had been unlawful. The prosecution appealed by way of case stated to Divisional Court. Otton LJ (with whom Steel J agreed) stated:

“The third question raised is whether a custody officer must also satisfy himself that an arrest is lawful before he can hold a person in lawful custody and, if the arrest was not lawful, whether he is acting in the execution of his duty until such time as it is regularised in accordance with Kulynycz [R v Kulynycz [1970] 3 All ER 881]. In my judgment there is no express or implied requirement in either the codes or the Act which places a duty on a custody officer to enquire into the legality of the arrest of the subject brought before him. He is entitled to assume that the arrest was lawfully effected. The fact that it is subsequently found not to be so by virtue of non-compliance with section 28(3), does not invalidate anything that he has done thereafter in the execution of his duty. In other words, there is no requirement in law for a custody officer to satisfy himself of the lawfulness of an arrest before he can hold a person in lawful custody and continue to carry out the procedures laid down by the codes of practice and the Act.”

[25] Applying the reasoning of these passages to a consideration of paragraph 5 of Schedule 8 to the 2000 Act (that a detained person shall be deemed to be in legal custody throughout the period of his detention) it could be argued that that provision allows for the fact that even if the initial arrest is unlawful the subsequent detention arising from that unlawful arrest is lawful. On this basis the lawfulness of the arrest could be said to be an irrelevant factor in the judicial authority’s determination whether the detention should be extended because, regardless of the factual circumstances of the arrest, the statute dictates that the detention arising out of it is legal in any event.

[26] Such an approach neglects, in our opinion, the need for judicial superintendence of the lawfulness and justification not only of the detention of the detained person but also of his arrest. The need for such review derives from article 5 (3) of ECHR which provides that everyone arrested or detained in accordance with the provisions of paragraph 1(c) of article 5 shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time. (Article 5 (1) (c) provides that a person may be deprived of his liberty after lawful arrest or detention effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence.)

[27] Article 5 (3) has been considered by ECtHR in a large number of cases. It will suffice to refer to McKay v United Kingdom [2007] 44 EHRR 41, a decision of the Grand Chamber. In that case the applicant was arrested on suspicion of robbery. He admitted the offence and was charged. He subsequently instructed his solicitor to make an application for his release on bail. The application was not opposed, but the magistrate refused the application, holding that domestic law did not give him the power to order release. The applicant subsequently applied to the High Court and was granted bail. He sought judicial review of the decision of the magistrate not to release him on bail, contending that the inability to order his release was a violation of article 5. Although the application to ECtHR was dismissed, the court had this to say about the need for judicial supervision of the lawfulness of arrest: -

“35 The judicial officer must offer the requisite guarantees of independence from the executive and the parties and he or she must have the power to order release, after hearing the individual and reviewing the lawfulness of, and justification for, the arrest and detention.

…

40 The initial automatic review of arrest and detention accordingly must be capable of examining lawfulness issues and whether or not there is a reasonable suspicion that the arrested person had committed an offence, in other words, that detention falls within the permitted exception set out in article 5 (1) (c).” (emphasis added)

[28] It appears to us, therefore, that paragraphs 5 and 32 of Schedule 8 to the Terrorism Act must be read in conformity with the requirements of article 5 (3) of the Convention as they have been explained in the jurisprudence of the European Court. The review of the lawfulness of the detention must embrace an examination of the basis for the arrest. If it were otherwise, a person could be detained under the 2000 Act for up to twenty eight days without there having been any judicial review of the lawfulness of the original arrest and that, in our view, could not be compliant with article 5 of ECHR.

[29] We have concluded, therefore, that the learned judge was wrong to disavow any review of the lawfulness of the applicants’ arrest and on that account her decision must be quashed. In fairness to her, it should be recorded that she was urged by counsel for the respondent to that view and that paragraph 5 of Schedule 8, read in isolation, does appear to preclude such a review.

[30] We accept Mr Maguire’s argument that a review of the lawfulness of arrest need not involve a detailed analysis of the basis for the decision to arrest and it should reflect the constraints that necessarily apply in many arrests for terrorist offences where the full information on which a decision to arrest is taken cannot, for reasons of public safety, be revealed. It would be unwise to essay a more specific prescription than this, however, since much will depend on the particular facts of an individual arrest.

Did the judge address the question whether detention was necessary?

[31] We can deal with this argument briefly. Although the judge did not cast the issue in terms of a direct focus on whether the applicants had to be detained rather than released pending the outcome of the remaining forensic examinations, it seems to me clear that this must have underpinned her conclusion that an extension of their detention should be granted. As Mr Maguire pointed out, the burden of the application to her was that the applicants required to be detained for further interview or charge, depending on the outcome of the forensic tests. This was also evident from the affidavit of Superintendent Farrar. In these circumstances, we cannot believe that the judge would have failed to have regard to the need for detention as the basis for the grant of the warrant.

[32] In this context, it is to be remembered that what the judge required to be satisfied of was that there were reasonable grounds for believing that the further detention was necessary. She had received evidence which emphasised the importance of the results of the forensic examinations to the inquiry and she had been told that those results would prompt further interview of the detained persons or charges. She had also been told that police considered that those developments would be impeded if the applicants were released. It cannot be accepted that she left that evidence out of account in reaching her decision.

Were the reasons given by the judge sufficient?

[33] Again, this aspect of the case can be dealt with briefly. It is important, we believe, not to isolate the judge’s expressed reasons from the context in which they were given. As we have observed above, she had received evidence and argument as to why it was necessary to detain the applicants. Beyond signalling that she accepted those submissions, there was little for the judge to say. In the case of G, the judge said: -

“I am satisfied that the conditions of para 32(1) and 32[1A] to extend the detention of the detainee were met. There were outstanding forensic results awaited which if positive in relation to the detainee the police would clearly require to question him about.”

[34] And in D2’s case she said: -

“… if positive results came back connecting the detainee to any of the items seized further questions would have to be put to him.”

and

“The court was provided with a full schedule of outstanding forensic exhibits and when it was anticipated the results would be available. Most results were to be available between 24 and 26 March. However it was not anticipated that the forensic results from the Vauxhall Cavalier car which it was believed had been used to carry out the attack would be available before 30 or 31 March and that questioning may well be required in respect of any positive finding connecting the detainee to the vehicle.”

[35] The judge also indicated that her decision in D2’s case was based on the same reasoning as expressed in G’s case. Against the background of the submissions that had been made to her about the reasons that police considered further detention was necessary (and of which the applicants and their legal advisers were aware) we consider that the reasons given by the judge, although pithily stated, were sufficient to convey to the applicants the basis of her decision.

Conclusions

[36] By reason only of the judge’s conclusion that she was precluded from considering the lawfulness of the applicants’ arrests, we have decided that her decision must be quashed. The other grounds canvassed on behalf of the applicants in the hearing have not been established, in our opinion.

Judgment: approved by the Court for handing down