MARSHALL v. THE UNITED KINGDOM
Inadmissible
Georg Ress;Nicolas Bratza
The applicant, Mr Gary Marshall, is an Irish national, born in 1968 and living in Lurgan, Northern Ireland. He is represented before the Court by Mr Paul Mageean, a lawyer working with the Committee on the Administration of Justice, a non-governmental organisation based in Belfast, Northern Ireland. The Government are represented by their Agent, Mr C. Whomersley, Foreign and Commonwealth Office, London. The facts of the case, as submitted by the parties, may be summarised as follows. On 21 February 1998 around 3.15 p.m. the applicant was arrested under section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989 (“the 1989 Act”) by a military patrol accompanied by an officer of the Royal Ulster Constabulary (“RUC”). The applicant was brought to Castlereagh Holding Centre in Belfast where he was questioned about his involvement in serious paramilitary activity including the abduction and murder of an individual. On the morning of 23 February 1998 an application was made to the Secretary of State for an extension order under section 14(5) of the 1989 Act, extending the applicant’s detention for a further three days. Notice of the application was given to the applicant, who consulted his lawyer on the terms of the application. No representations were made by the applicant to the Secretary of State. The application was granted by the Secretary of State. At 11.40 a.m. on 26 February 1998 the applicant was given notice that a further application had been made to the Secretary of State for an extension order for a further period of forty-eight hours in order to check an alibi statement which the applicant had advanced during interview and to await the results of forensic tests. No representations were made by the applicant to the Secretary of State, who granted the extension requested. On 27 February 1998 at around 5.05 p.m. the applicant was released without charge. His period of detention from arrest was six days, one hour and fifty minutes. While in detention the applicant was never brought before any judicial authority. Throughout the period of detention the applicant was able to have access to a solicitor including before the start of each interview. The applicant saw his solicitor on ten occasions during his detention. His detention during the first forty-eight hours was regularly reviewed by senior police officers not directly involved in the case as required by the 1989 Act and the Code of Practice issued under section 52 of the Northern Ireland (Emergency Provisions) Act 1996. The applicant has drawn attention in his observations in reply to those of the Government to his claim that police officers made intimidating and abusive remarks about his solicitor during his detention and to the fact that she was subsequently murdered on 15 March 1999. The applicant also criticises the austerity of the holding conditions in the Castlereagh Centre where he was detained. In its Brogan and Others v. the United Kingdom judgment (29 November 1988, Series A no. 145), the Court held that there had been a violation of Article 5 § 3 of the Convention in the case of all four applicants, who had been detained under section 12 of the Prevention of Terrorism Act 1984, which was the predecessor provision of section 14 of the 1989 Act. The applicants had been held for periods ranging between six days and sixteen-and-a-half hours and four days and six hours without being brought before a judicial authority. The Court found that even the shortest of the periods of detention, namely four days and six hours, fell outside the strict constraints as to time permitted by the first part of Article 5 § 3. In the Court’s view, the undoubted fact that the arrest and detention of the applicants were inspired by the legitimate aim of protecting the community as a whole from terrorism was not on its own sufficient to ensure compliance with the specific requirements of Article 5 § 3. Following that judgment, the United Kingdom informed the Secretary General of the Council of Europe on 23 December 1988 that the Government had availed themselves of the right of derogation conferred by Article 15 § 1 to the extent that the exercise of powers under section 12 of the 1984 Act might be inconsistent with the obligations imposed by Article 5 § 3 of the Convention. Part of that declaration reads as follows: “... Following [the Brogan and Others judgment], the Secretary of State for the Home Department informed Parliament on 6 December 1988 that, against the background of the terrorist campaign, and the over-riding need to bring terrorists to justice, the Government did not believe that the maximum period of detention should be reduced. He informed Parliament that the Government were examining the matter with a view to responding to the judgment. On 22 December 1988, the Secretary of State further informed Parliament that it remained the Government’s wish, if it could be achieved, to find a judicial process under which extended detention might be reviewed and where appropriate authorised by a judge or other judicial officer. But a further period of reflection and consultation was necessary before the Government could bring forward a firm and final view. Since the judgment of 29 November 1988 as well as previously, the Government have found it necessary to continue to exercise, in relation to terrorism connected with the affairs of Northern Ireland, the powers described above enabling further detention without charge, for periods of up to 5 days, on the authority of the Secretary of State, to the extent strictly required by the exigencies of the situation to enable necessary enquiries and investigations properly to be completed in order to decide whether criminal proceedings should be instituted. To the extent that the exercise of these powers may be inconsistent with the obligations imposed by the Convention the Government have availed themselves of the right of derogation conferred by Article 15 § 1 of the Convention and will continue to do so until further notice...” In a further notice dated 12 December 1989 the United Kingdom informed the Secretary General that a satisfactory procedure for the review of detention of terrorist suspects involving the judiciary had not been identified and that the derogation would therefore remain in place for as long as circumstances require. The 1989 Act has been renewed annually ever since. Section 14 of the 1989 Act provides as follows: “14. (1) Subject to subsection (2) below, a constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be– (a) a person guilty of an offence under section 2, 8, 9, 10 or 11 above; (b) a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism to which this section applies; or (c) a person subject to an exclusion order. (2) The acts of terrorism to which this section applies are– (a) acts of terrorism connected with the affairs of Northern Ireland; and (b) acts of terrorism of any other description except acts connected solely with the affairs of the United Kingdom or any part of the United Kingdom other than Northern Ireland. (3) The power of arrest conferred by subsection (1)(c) above is exercisable only– (a) in Great Britain if the exclusion order was made under section 5 above; and (b) in Northern Ireland if it was made under section 6 above. (4) Subject to subsection (5) below, a person arrested under this section shall not be detained in right of the arrest for more than forty-eight hours after his arrest. (5) The Secretary of State may, in any particular case, extend the period of fortyeight hours mentioned in subsection (4) above by a period or periods specified by him, but any such further period or periods shall not exceed five days in all and if an application for such an extension is made the person detained shall as soon as practicable be given written notice of that fact and of the time when the application was made. (6) The exercise of the detention powers conferred by this section shall be subject to supervision in accordance with Schedule 3 to this Act. (7) The provisions of this section are without prejudice to any power of arrest exercisable apart from this section.” The notification made by the United Kingdom Government under Article 15 § 3 of the Convention was withdrawn on 19 February 2001, with effect from 26 February 2001. The political and security situation covering the years 1974-1987 is described in the Court’s Brannigan and McBride v. the United Kingdom judgment of 26 May 1993 (Series A no. 258, pp. 38-39, §§ 12-15). Official statistics indicate that between 1969 and 1999 (3 June) a total number of 3,295 persons (military and civilian) have died due to the security situation. The number of deaths (military and civilian) due to the security situation between 1989 and 1999 (3 June) is as follows: 1989: 62; 1990: 76; 1991: 94; 1992: 85; 1993: 84; 1994: 62; 1995: 9; 1996: 15; 1997: 22; 1998: 55; 1999: 6. Official statistics indicate that between 1968 and 1999 (3 June) a total of 42,766 persons (military and civilian) have been injured as a result of the security situation. The number of persons injured (military and civilian) over the period 1989 to 1999 (3 June) is as follows: 1989: 959; 1990: 906; 1991: 162; 1992: 1066; 1993: 824; 1994: 825; 1995: 937; 1996: 1419; 1997: 1237; 1998: 1564; 1999: 550. The reviews undertaken by the authorities of the Prevention of Terrorism (Temporary Provisions) Act 1974 and of the amending Act passed in 1976 are summarised at paragraphs 13 to 15 of the Brannigan and McBride judgment. Reviews of the operation of 1989 Act were undertaken by JJ Rowe QC for each of the years 1993 to 1998. In his 1996 Report, which was completed on 4 February 1997, the reviewer noted that there had been a marked increase in the level of terrorist activity in the wake of the IRA’s decision to end the cease-fire which it called in August 1994. In his 1997 Report, which was completed on 16 February 1998, the reviewer noted that the threat of terrorism continued to be real and observed that, while in principle, there should be judicial participation in the extension of detention, “this was not yet possible ... because the judges in [Northern Ireland] cannot yet be asked to do this work.” In his 1998 Report, which was completed on 11 February 1999, the reviewer observed that, despite the cease fire declared by the major paramilitary groups in 1994 “there are dissident elements who are intent upon causing injury and damage, and they have the capacity to do so. All in all there is a real threat that some terrorist activity will continue in Northern Ireland ... My conclusion is this, criminals with a terrorist or paramilitary disposition have the means to carry out attacks with explosives and firearms at any time; furthermore, some of them have maintained an organisation which has structure and influence.” As to the continuing use of the power of extended detention, the reviewer reiterated his view expressed in earlier reports, that he favoured judicial involvement in the decision-making process. He noted that the appropriate place to examine this issue thoroughly was in the Consultation Paper which the Government of the day had presented to Parliament in December 1998. The Consultation Paper proposed judicial participation in applications for extension. In their submissions in the instant case, the Government indicated that they envisage the introduction of legislation to include provisions for a form of judicial involvement in extensions of detention. An analysis of court remedies relevant to arrest and detention under the prevention of terrorism legislation including section 14 of the 1989 Act is contained in the above-mentioned Brannigan and McBride judgment (pp. 1645, §§ 16-29).