Duffy and Others: judicial review: High Court of Justice of Northern Ireland
Queen’s Bench Division
Judgment was given on March 25th, 2009, by the Lord Chief Justice, Sir Brian Kerr, sitting with Lord Justice Higgins and Lord Justice Coghlin.
Judgment
The conclusion of Judge Philpott that she was precluded from considering the lawfulness of the arrests of the applicants was incompatible with Article 5 (3) of the European Convention on Human Rights, and therefore her decision to extend the time of their detention should be quashed.
Background
The case was brought by Colin Duffy and five other applicants, who were not named as they had not been charged. Mr Duffy and the first three, known as C, D and D2, were arrested in connection with the murder of two British soldiers in Massereene Barracks, Antrim, on March 7th, 2009, and the other two, known as G and T, were arrested in connection with the murder of a police officer in Craigavon on March 9th, 2009.
On March 15th, the senior investigating officer of the PSNI sought a warrant of detention from a judge to allow the detention of Mr Duffy and the three arrested with him beyond 48 hours, as required under section 41 (3) of the Terrorism Act. The application was heard over two days, and Judge Smyth QC made extension orders of five days.
The interviews with the four suspects were concluded within the five days and the results of most of the forensic tests were available. However, analysis of about 100 swabs sent to Britain had not taken place, and the senior PSNI officer sought a further extension of seven days.
In seeking the extension he said that the results of the further forensic examinations would become available within the next seven days and that in an investigation of this importance, it was necessary to detain the arrestees in custody until the results were known, so that if the results were positive, they could either be questioned further or, if the evidence supported it, be charged.
The two other applicants, G and T, were also the subject of applications for extension of their detention on March 15th, which were granted. Further applications for extensions of seven days were also made in their case, again to permit further forensic analysis and to put the results of this analysis to them.
Judge Philpott heard the applications for the extensions of the detentions, hearing evidence from the senior investigating officers in each case. In relation to the case of T, Supt McCoy also said he needed the seven-day extension in relation to the examination of mobile phone traffic.
Judge Philpott granted the applications, giving ex tempore decisions in all cases, and written decisions in relation to G and D2. She cited case law in these rulings, including the case of Metropolitan Police Commissioner -v- Raissi, a civil case concerning the power of a police officer to arrest under section 41 of the Terrorism Act.
She said this case was authority for the proposition that if an arrest had been made unlawfully under the terrorism legislation, a court could, after the detention had expired, examine the reasonableness of the arrest and, if it was unlawful, the person would have 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,” she said.
She said the court was precluded from considering the lawfulness of the arrest and must confine itself to the issue of whether or not it was necessary to extend a detainee’s detention for more than the initial two days for investigative purposes. She was satisfied that the conditions of para 32(1) and 32(1A) of the legislation were met.
She was also satisfied that the provisions for extensions of detention were compatible with Article 5 of the European Convention on Human Rights and said that any issue as to the lawfulness of the initial arrest could be brought to the High Court.
In the D2 case, she said she relied on her reasoning in the G case.
Barry Macdonald QC, for the applicants, said that the application for an extension required an examination of the “relevant evidence” and this inevitably impelled an examination of the basis for the arrest.
He also said that the judge had failed to address the question as to whether the continued detention of the applicants was necessary while the results of the forensic analysis were awaited.
She had also failed to explain the reasons for her decision to grant the extension, including why the applicants had to be detained while the results were awaited.
Paul Maguire QC, for the respondents, said that a judge who decided to grant an extension was not required to examine the lawfulness of the original arrest.
He also said that the reasons for the continued detentions had been put forcefully to the judge and it was inconceivable that she was not alive to these when reaching her conclusions.
The jurisprudence of the European Court of Human Rights (ECHR) had recognised that, in dealing with terrorist crime, police may have to arrest a person on the basis of information that could not be disclosed to the suspect or produced in court without jeopardising the informant.
Decision
After summarising the relevant provisions of the Terrorism Act, Mr Justice Kerr considered whether the judicial authority, charged with dealing with an application for extension of a detention, was required to examine the lawfulness of the original arrest.
He cited the case, before the Court of Appeal in England and Wales, of Al-Fayed and others -v- Commissioner of Police of the Metropolis, whose reasoning could lead to the conclusion that a detained person could be deemed to be in legal custody throughout the period of his detention.
It could be argued that para 5 of schedule 8 of the Terrorism Act allowed for the fact that, even if the initial arrest was unlawful, the subsequent detention arising from that unlawful arrest was lawful, especially as the statute dictates that the detention arising out of the arrest is legal in any event.
“Such an approach neglects, in our opinion, the need for judicial superintendence of the lawfulness not only of the detention of the detained person but also of his arrest,” Mr Justice Kerr said.
“The need for such review derives from article 5 (3) of the ECHR which provides that everyone arrested or detained in according 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.”
He cited the ECHR case, decided by the Grand Chamber, of McKay -v- United Kingdom, where it was stated: “The initial automatic review of arrest and detention accordingly must be capable of examining lawfulness issues.”
Mr Justice Kerr continued: “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 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 28 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 the ECHR.”
He said, however, that the judge did address the question of whether the detention was necessary and that the reasons she gave were sufficient, as she accepted the submissions of the PSNI officers relating to the need for the detentions.
By reason only of the judge’s conclusion that she was precluded from considering the lawfulness of the applicants’ arrests, the court had decided that her decision on the continued detentions should be quashed.
Barry Macdonald QC, with Fiona Doherty BL and Andrew Moriarty BL, instructed by GR Ingram Co, solicitors, Kevin Winters Co, solicitors and O’Connor Moriarty, for the applicants; Paul Maguire QC, instructed by the Crown Solicitor’s Office, for the respondent.