Thursday 24 February 2011

COURT RULES THAT TERRORIST DETENTION PROVISIONS ARE COMPATIBLE WITH ECHR

Summary of Judgment

The Divisional Court today ruled that the provisions of the Terrorism Act 2000 which deal with the circumstances in which a person arrested on suspicion of being a terrorist may have their period of detention extended for a period of up to 28 days were compatible with the European Convention on Human Rights..

The appeal was heard by the Lord Chief Justice, Lord Justice Higgins and Lord Justice Coghlin. 

The application was brought by Colin Duffy and five others who were arrested on 14 March 2009 on suspicion of involvement in the murders of two soldiers at Massereene Barracks on 7 March 2009 or the murder of a police officer in Craigavon on 9 March 2009.  They claimed that paragraphs 29(3) and 36(3)(b) of Schedule 8 to the Terrorism Act 2000 were incompatible with Article 5 of the European Convention on Human Rights. 

In delivering the judgment of the Court, the Lord Chief Justice, Sir Declan Morgan, reviewed the legislation which provides that the Director of Public Prosecutions may apply to a judicial authority for the issue of a warrant of further detention.  The initial period of further detention is 7 days from the time of arrest.  Further applications for extensions can be brought up to a maximum of 28 days.  Each such application may extend the period of detention for up to 7 days. 

Article 5 of the ECHR deals with the circumstances in which the state may deprive the citizen of his liberty.  The applicants claimed that the provisions in the Terrorism Act were incompatible with the provisions contained in Article 5.   The Divisional Court considered a number of challenges brought by the applicants. 

The applicatns firstly argued that the refusal by the court of an application by the DPP for a warrant of further detention should lead to the person being released.  The Divisional Court did not agree.  The Lord Chief Justice said that applications under paragraphs 29 and 36 of Schedule 8 to the 2000 Act are concerned with extensions to the permitted period of detention.  A judicial authority may well conclude that it is not necessary to extend the period of detention but that would not call into question the appropriateness of any extension already in force. 

The second challenge was that under Schedule 8 a person could be detailed for up to 28 days without any consideration of the proportionality or justification for such detention.  The Divisional Court again disagreed with this.  It stated that there is a continuing need to demonstrate reasonable suspicion:  “Issues of proportionality and justification are fundamental aspects of the review process”. 

The third challenge was to the provisions which enable the judicial authority to exclude the applicant or his legal representatives from any part of the hearing or which permitted the judicial authority to withhold information from the applicant or his legal representatives.  The Divisional Court concluded that the extent to which there may be a requirement for disclosure of information or the gist of it will vary from case to case.   The Lord Chief Justice said that it is for the court in each case to make a judgment having regard to the issues in the case and the stage which it has reached.  Where the court is satisfied that appropriate procedural protections are in place there will be no question of incompatibility arising.

The applicants proposed that Article 5 of the ECHR requires that a detained person should be charged well before the expiry of the 28 day period contemplated by the 2000 Act.  Again the Divisional Court did not agree with this proposition.  It considered the charging of a detainee was not relevant to the duration of a person’s detention. 

The final point made on behalf of the applicants was that there is no right of appeal and no opportunity to judicially review the decision if made by a High Court Judge where the detention has already been for longer than 14 days.  The Divisional Court agreed with the decision of the Divisional Court in England and Wales that the ECHR did not require a right of appeal or of review of the decision authorising an extension of the period of detention.

While the applicants did not challenge the lack of provision in the legislation for conditional release on bail, the Divisional Court said that it did not consider it would be appropriate to generalise and say that all persons arrested under the 2000 Act would not be suitable for bail.  The Lord Chief Justice said that there may be circumstances in which a person was arrested but was peripheral to the alleged serious terrorist activity or was vulnerable.  In such cases the imposition of bail conditions might deal with any relevant and sufficient reasons which would otherwise justify detention.  The Lord Chief Justice noted that this was a fact specific issue that would need to be addressed in any case in which it arose but concluded that it did not lead to any risk of incompatibility. 

The Divisional Court therefore did not consider that Colin Duffy and the other applicants had established any basis for contending that paragraphs 29 or 36 of Schedule 8 to the 2000 Act are incompatible with Article 5 of the ECHR.

NOTES FOR EDITORS

1.         This summary is provided to assist in understanding the Court’s decision.  It does not form part of the reasons for the decision.   The full judgment of the Court is the only authoritative document.  Judgments are public documents and are available on the NI Courts and Tribunals Service website (www.courtsni.gov.uk).

ENDS

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