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You are here: BAILII >> Databases >> European Court of Human Rights >> Bernard Leo McVEIGH, Oliver Anthony O'NEILL and Arthur Walter EVANS against the UNITED KINGDOM - 8022/77 [1981] ECHR 11 (18 March 1981) URL: http://www.bailii.org/eu/cases/ECHR/1981/11.html Cite as: 5 EHRR 71, (1983) 5 EHRR 71, (1982) DR 25, [1981] ECHR 11 |
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APPLICATIONS Nos. 8022/77, 8025/77 and 8027/77 Bernard Leo McVEIGH, Oliver Anthony O'NEILL and Arthur Walter EVANS against the UNITED KINGDOM I. Report of the European Commission of Human Rights adopted on (Article 31 of the Convention page 1 II. Resolution DH (82) 1 of the Committee of Ministers adopted on 24 March 1982 (Article 32 of the Convention) ........ page 116 This publication contains the report of the European Commission of Human Rights drawn up in accordance with Article
31 of the Conyention for the Protection of Human Rights and Fundamental Freedoms, relating to the applications
(Nos. 8022/77, 8025/77 and 8027/77) lodged with, the Commission by MM Bernard Leo McVeigh, Oliver Anthony O'Neill
This report was transmitted to the Committee of Ministers on 24 April 1981. As the case was not referred to the European Court of Human Rights, it was for the Committee of Ministers to decide,
under the provisions of Article 32, paragraph 1, of the Convention "whether there has been a violation of the
The decision of the Committee of Ministers was taken by Resolution DH (82) 1 of 24 March 1982, the text of which
is reproduced at page 116 of the present publication.
The Committee of Ministers also authorised publication of the Commission's report on this case. Page i TABLE OF CONTENTS Page INTRODUCTION (Paras. 1-18) ............................................1 A. The substance of the applications (Paras. 2-5) ........................................1 B. Proceedings before the Commission (Paras. 6-13) ........................................2 C. The present Report (Paras. 14-18) ......................................3 II. ESTABLISHMENT OF THE FACTS (Paras. 19-70) ..... A. General background (Paras. 20-26) . . . B. Relevant domestic law and practice (Paras. 27-49) ......................................7 1. Description of the 1976 legislation (Paras. 27-38) ..................................7 2. Use in practice of the powers of arrest etc. for examination (Paras. 39-42) ..................................U 3. Contact between persons detained and their families etc. (Paras. 42-46) ..................................12 4. Practice concerning fingerprints and photographs (Paras. 47-49) ..................................13 C. The arrest and detention of the applicants (Paras. 50-70) ............. 1. The arrests at Liverpool (Paras. 50-54) ........... Page ii 2. The detention of the applicants at the Bridewell police station (Paras. 55-70) ..................................15 (a) Reception procedure and duration of detention (Paras. 55-56) ............................15 (b) Fingerprinting, photography and questioning (Paras, 5 7-61) ............................16 (c) Alleged refusal to allow contact with wives (Paras. 62-70) ............................17 III. SUBMISSIONS OF THE PARTIES (Paras. 71-151)..........................................20 A. General submissions (Paras. 71-78) ......................................20 1. The respondent Government (Paras. 71-75)......................20 2. The applicants (Paras. 76-78) ................................21 B. Submissions concerning the facts (Paras. 79-83) ......................................22 1. The respondent Government (Paras. 80-81) ................................22 2. The applicants (Paras. 82-83) ................................23 C. Art. 5 (1) and (3) of the Convention (Paras. 84-109) ....................................23 1. The respondent Government (Paras. 85-99) ................................23 2. The applicants (Paras. 100-109) ..............................28 Page iii D. Art. 5 (2) of the Convention (Paras. 110-116) ..................................31 1. The applicants (Paras. 110-112) ............................31 2. The respondent Government (Paras. 113-116) ............................31 E. Art. 5 (4) of the Convention (Paras. 117-123) ..................................32 1. The applicants (Paras. 117-119) ............................32 2. The respondent Government (Paras. 120-123) ............................33 F. Art. 5 (5) of the Convention (Paras. 124-125) ..................................34 1. The applicants (Para. 124)..................................34 2. The respondent Government (Para. 125)..................................34 G. Art. 8 of the Convention - fingerprinting, photography, etc. (Paras. 126-141) ..................................35 1. The applicants (Paras. 126-134) ............................35 2. The respondent Government (Paras. 135-141) ............................37 H. Arts. 8 and 10 of the Convention - contact with wives (Paras. 142-151) ..................................39 1. The applicants (Paras. 142-144) ............................39 2. The respondent Government (Paras. 144-151) ............................40 Page iv IV. OPINION OF THE COMMISSION (Paras. 152-238) ........................................43 A. Paints at Issue (Para. 152)........................................43 B. The Background and General Approach (Paras. 153-158) ..................................44 C. Art. 5 (1) and (3) of the Convention (Paras. 159-202) ..................................46 D. Art. 5 (2) of the Convention. (Paras. 203-212) ..................................59 E. Art. 5 (4) of the Convention (Paras. 213-218) ..................................61 F. Art. 5 (5) of the Convention (Paras. 219-221) ..................................62 G. Art. 8 of the Convention - searching, questioning, etc. and retention of records (Paras. 222-232) ..................................63 H. Arts. 8- and 10 - contact with wives (Paras. 233-241) ..................................66 Dissenting Opinion of Mr. Trechsel under Art. 5..............70 Dissenting Opinion of Mr. Klecker under Art. 8 (retention of records).....72 Separate Opinion of MM. Klecker, Tenekides, Melchior and Carrillo under Art. 8 (contact with wives) ..................73 Appendix I - History of Proceedings..........................74 Appendix II - Partial Decision on Admissibility (McVeigh Case)........................................................78 Appendix III - Final Decision on Admissibility, (three cases) . 89 I, REPORT OF THE COMMISSION Page 1 I. INTRODUCTION 1. The following is an outline of the case as it has been submitted by the parties to the European Commission
of Human Rights.
A. The substance of the application 2. The first applicant, Mr. Bernard Leo McVeigh, was aged 42 years at the introduction of his application. He
is a United Kingdom citizen resident in London. The second applicant, Mr. Oliver Anthony O'Neill, was aged 31
years at the introduction of his application and is an Irish citizen also resident in London. The third applicant,
Mr. Arthur Walter Evans, was born in 1919 and is a United Kingdom citizen now resident in Devon. At the relevant
time the applicants were all post-office employees.
3. The applicants were originally represented by Mr. Cedric Thornberry, barrister-at-law, assisted by Mr. Jonathan
Woodcock and acting on the instructions of Ms. Hilary Kitchin, solicitor to the National Council for Civil Liberties.
They have since been represented by Ms. Kitchin and Dr. Paul O'Higgins of Christ's College Cambridge and, at
the hearing on admissibility and merits, Mr. William Nash, solicitor. They are now represented by Ms. Harriet
Harman, solicitor to the National Council for Civil Liberties.
4. The applications arise from the arrest and detention of the applicants under powers conferred by the Prevention
of Terrorism (Temporary Provisions) Act 1976 ("the 1976 Act") and the Prevention of Terrorism (Supplemental Temporary
Provisions) Order 1976 ("the 1976 Order").
5. The applicants were arrested on 22 February 1977 when they arrived at Liverpool on a boat from Ireland and
they were held for some 45 hours for the purpose of "examination" under the .1976 Order. During their detention
they were searched, questioned, photographed and fingerprinted. Two of the applicants, Mr. McVeigh and Mr. Evans,
allege that they were also denied the opportunity to contact their wives. They maintain that their arrest and
detention were in breach of paras. (1) - (5) of Art. 5 of the Convention. They also maintain that there were
breaches of their right to respect
Page 2 the authorities retained relevant records. Mr. McVeigh and Mr. Evans also complain of the alleged refusal to allow
them to contact their wives and invoke Arts. 8 and 10 of the Convention in this respect. Mr. McVeigh also made
certain complaints concerning his treatment in custody, which were declared inadmissible.
B. Proceedings before the Commission 6. Each of the applications was introduced on 29 July 1977 and registered on 16 September 1977. 7. On 14 December 1977 the Commission examined the admissibility of the applications. It decided, in accordance
with Rule 42 (2) (b) of its Rules of Procedure, to give notice of the 0'Neill application (No. 8025/77) to the
respondent Government and to invite them to submit written observations on its admissibility. The Government's
observations were received on 26 May 1978 and the applicant's observations in reply were received on 16 November 1978.
8. On 15 December 1978 the Commission further considered the cases and decided to invite the Government to submit
written observations on the admissibility of the McVeigh and Evans cases (Nos. 8022 and 8027/77). The observations
of the respondent Government on these cases were submitted on 7 February 1979 and the applicants' observations
in reply were received on 2 April 1979.
9. On 5 July 1979 the Commission declared the McVeigh case (No. 8022/77) partially inadmissible (1). It decided
to hold a hearing on the admissibility and merits of the remaining parts of the McVeigh case and the 0'Neill
and Evans cases. The hearing was held on 7 December 1979. The applicants were represented by Mr. William Nash
and Ms. Hilary Kitchin, solicitors and Mr. Jonathan Woodcock. Two of the applicants, Mr. O'Neil] and Mr. Evans,
were also present in person. The respondent Government were represented by Mr. David Edwards, Agent and Mrs.
Audrey Glover, Deputy Agent, both of the Foreign and Commonwealth Office, Sir Vincent Evans, Q.C., Mr. N. Bratza,
barrister-at-law, Mr. D. Michaels, Treasury Solici-tor and Mr. A. Hammond, Miss P. Drew and Mr. A. Cole of the Home
Office.
10. On 8 December 1979 the Commission ordered the joinder of the three applications under Rule 29 of its Rules
of Procedure and declared them admissible (2).
(1) See Partial Decision on Admissibility, Appendix II. (2) See Decision on Admissibility, Appendix III. Page 3 11. Following its decision on admissibility the Commission deliberated on the cases and decided to inform the
parties that it did not require any further submissions on the issues arising under Art. 5 of the Convention,
although it would be open to either party, if they wished, to make additional submissions on those issues. It
also decided to request the Government to submit certain further information relating to the complaints under
Arts. 8 and 10 of the Convention.
12. On 8 January 1980 the applicants' representatives stated that they did wish to make further submissions under
Art. 5 of the Convention. On 23 January 1980 the respondent Government submitted a Memorandum containing the
information requested by the Commission. On 14 February 1980 the text of the decision on admissibility was
communicated to the parties and, on the instructions of the Acting President, the applicants' representatives
were invited to submit any further observations they wished to make on behalf of the applicants, on the merits
of the cases, including any comments on the information submitted by the Government. The applicants' observations
on the merits were submitted on 18 April 1980 and the observations of the respondent Government were submitted on
3 June 1980. On 21 July 1980 the Rapporteur, acting under Rule 46 of the Rules of Procedure, noting that there was a
dispute as to the relevant facts, asked the Government to state whether they wished the opportunity to submit any
further evidence in relation to the complaint of two of the applicants that they were not allowed to contact their
wives. On 3 September 1980 the Government stated that they did not wish to submit further evidence on the matter.
13. Following the decision on admissibility the Commission, acting in accordance with Art. 28 (b) of the Convention,
placed itself at the disposal of the parties with a view to securing a friendly settlement of the matter. In
the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report 14. The present Report has been drawn up by the Commission in pursuance of Art. 31 of the Convention and after
deliberations and votes in plenary session, the following members being present:
Page 4 MM. C.A. N0RGAARD, Acting President (Rules 7 and 9 of the Rules of Procedure) MM. C.A. N0RGAARD, Acting President (Rules 7 and 9 of the Rules of Procedure) J.E.S. FAWCETT G. SPERDUTI E. BUSUTTIL L. KELLBERG B, DAVER J.A. FROWEIN G. JORUNDSSON G. TENEKIDES S. TRECHSEL B. KIERNAN N. KLECKER M. MELCHIOR J.A. CARRILLO 15. The text of the Report was adopted by the Commission on 18 March 1981 and is now transmitted to the Committee
of Ministers in accordance with Art. 31 (2).
16. A friendly settlement of the case not having been reached, the purpose of the present Report, pursuant to
Art. 31 of the Convention, is accordingly:
(1) to establish the facts; and (2) to state an opinion as to whether the facts found disclose a breach by the respondent Government of its obligations17. A schedule setting out the history of proceedings before the Commission is attached hereto as Appendix I.
under the Convention.
The Commission's partial decision on the admissibility of the McVeigh case (No. 8022/77) and the decision whereby
the three applications were declared admissible form Appendices II and III respectively.
18. The full text of the pleadings of the parties, together with the documents lodged as exhibits, are held in
the archives of the Commission and are available to the Committee of Ministers, if required.
Page 5 II. ESTABLISHMENT OF THE FACTS 19. This section of the Report contains details of the facts found by the Commission on the basis of the information
submitted by the parties. In general, save where otherwise indicated, the facts are not in dispute between the
parties.
A. General background 20. On 29 November 1974 the Prevention of Terrorism (Temporary Provisions) Act 1974 came into effect. This Act
was repealed and replaced, with some amendments, by the 1976 Act, which came into effect on 25 March 1976. The
1976 Act is supplemented by the 1976 Order, a Statutory Instrument made by the Home Secretary under powers conferred
by the Act. This came into force on 27 March 1976.
21. The 1974 legislation was introduced essentially for the purpose of combatting terrorist acts perpetrated in
Great Britain in connection with Northern Irish affairs. From 1970 onwards the IRA had been conducting a campaign
of terrorism in Northern Ireland with the object of forcing the unification of Northern Ireland with the Republic
of Ireland (1). This campaign was later extended into Great Britain. The first IRA bomb attack on the mainland
took place in February 1972 and killed 7 people. In 1973 there were 86 bombing and shooting incidents resulting
in one death and 383 injuries. The IRA further intensified their activities on the mainland in 1974. In the first
ten months of that year they killed 19 people and injured 145 others in a total of 99 bombing and shooting incidents.
11 further attacks occurred in the first 20 days of November 1974, causing a further 4 deaths and injuring 35 people.
On 21 November 1974 they placed bombs in two public houses in Birmingham which killed 21 people and injured 183
others. The 1974 legislation was introduced and passed by Parliament in the immediate aftermath of these incidents.
22. There has been a diminution of IRA activity on the mainland since. However, incidents have continued to occur.
In particular in January 1977 14 incendiary devices were placed in shops in central London. In August 1977 a
considerable quantity of equipment for a terrorist group, including 2301bs of explosives and 91 incendiary bombs
was discovered
(1) Cf. Case of Ireland v. the United Kingdom, Report of the Commission, pp. 162-202; Eur. Court H.R., SeriesPage 6 in Dublin. According to the Government it was established beyond doubt that this equipment was to be brought to
A, No. 25, pp. 9-31.
Great Britain. There have also been incidents subsequently including 9 bomb explosions in London and other cities
in December 1978, and 2 explosions at industrial installations (a gas holder and an oil terminal) in January 1979.
23. Various forms of device have been used to carry out these acts. In some cases car bombs have been used, cars
locked with explosives being left parked in city streets and detonated. The Government state that some of these
cars were brought into Great Britain from Ireland on car ferries, already loaded with their explosives. Incendiary
devices and letter bombs have also been used. The violence has been directed against selected individuals on
some occasions, and has been used indiscriminately, by means of bombs left in crowded public places, on others.
According to the Government it has been apparent that most of those who committed these acts came from Ireland,
bringing with them weapons, bomb making equipment and explosives.
24. There is a "common travel area" between the United Kingdom and the Republic of Ireland. No general system
of immigration control thus applies to travel between Great Britain, Northern Ireland and the Republic of Ireland.
25. Before the 1974 legislation was passed, the IRA, although proscribed in Northern Ireland and the Republic
of Ireland, was not proscribed in Great Britain. It was free to organise demonstrations and collect money.
26. The operation of the legislation has been subject to a review carried out by Lord Shackleton, who was appointed
for this purpose by the Home Secretary in December 1977. His Report (referred to herein as "the Shackleton Report")
was published in August 1978 (1). In it Lord Shackleton generally reviewed the way in which the legislation had
been operated and made a number of recommendations. The operation of the legislation has also been the subject
of various questions and debates.in Parliament, notably when draft Orders for its renewal have been before Parliament
(para. 27 below).
(1) Review of the Operation of the Prevention of Terrorism (Temporary Provisions) Act 1974 and 1976, August 1978,Page 7 B, Relevant domestic law and practice 1. Description of the 1976 legislation 27. The 1976 legislation, like the 1974 legislation which preceded it, is temporary in character. The 1976 Act
Cmnd. 7324.
was initially enacted for a period of twelve months (so far as concerns the substantive provisions) and has been
renewed subsequently for further twelve month periods. Under the relevant provisions such renewals have been
effected by means of Orders approved by both Houses of Parliament. The Act has been thus kept' In force continuously
since it was passed.
28. The Act is generally concerned with prevention of "terrorism". This, as defined in the Act (S.14) means "the
use of violence for political ends and includes any use of violence for the purpose of putting the public or
any section of the public in fear".
29. The Act is divided into three Parts, Part I being concerned with the proscription of organisations, Part II
with "exclusion orders" and Part III with general and miscellaneous matters, including the port controls and
powers of detention at issue in the present case. The Act is also supplemented by a number of Schedules.
30. Part I of the Act provides for the proscription of organisations concerned in terrorism occurring in the United
Kingdom and connected with the IRA. The IRA is proscribed under Schedule 1 to the Act and, at the relevant time,
was the only organisation so proscribed, S.l of the Act creates certain offences concerning membership of, and
assistance to, proscribed organisations and S-2 creates offences connected with the public display of support
for a proscribed organisation.
31. Part II of the 1976 Act confers powers on the Secretary of State to make "exclusion orders" in order to prevent
acts of terrorism designed to influence public opinion or Government policy with respect to affairs in Northern
Ireland. An "exclusion order" is an order prohibiting the person concerned from being in or entering the United
Kingdom (S.6), Northern Ireland only (SJ5) or Great Britain only (S.4). The grounds on which an exclusion order
may be made are set out in each section. In general terms, the Secretary of State may make such an order if he
is "satisfied" that the person concerned "has been concerned ... in the commission, preparation or instigation
of acts of terrorism" or that the person Is attempting or may attempt
Page 8 to enter the territory in question "with a view to being concerned in the commission, preparation or instigation
of acts of terrorism". There are certain restrictions on the persons in respect of whom an exclusion order under
each section may be made. Thus an order under S.4 or S.5 may not be made against inter alia a person who has
been ordinarily resident in the territory in question (Great Britain or Northern Ireland) throughout the past
20 years. An order under S.6, excluding a person from the United Kingdom, may not be made against a citizen of
the United Kingdom and Colonies. S.8 of the Act provides powers to remove persons subject to exclusion orders
from the territory in question. S.9 creates certain offences concerning failure to comply with an exclusion.order.
32. Part III of the Act contains general and miscellaneous provisions including provisions relative to arrest
and detention. SS.10 and 11 create certain offences in connection with contributions towards acts of terrorism
and failure to give information about acts of terrorism. In general terms it is an offence under S.ll for a person
not to disclose to the competent authorities information which he knows or believes might be of material assistance
in preventing an act of terrorism or securing the arrest etc. of any person for a terrorist offence.
33. S.12 of the Act empowers a constable to arrest without warrant a person whom he reasonably suspects to be
guilty of an offence under S.l, 9, 10 or 11 of the Act, to have been concerned in terrorism or to be subject
to an exclusion order. A person arrested under the section may be held for up to 48 hours, which period may be
extended for a further 5 days by the Secretary of State. By virtue of S.12(3), various statutory provisions requiring
that an arrested person be brought before a court after his arrest do not apply to persons detained in right
of an arrest under S.12.
34. S.13 empowers the Secretary of State to make provision, by order, for the "examination" of persons arriving
in or leaving Great Britain or Northern Ireland and also for their arrest and detention in certain circumstances.
It forms the statutory basis for the port controls, powers of arrest etc. at issue in the present case. In the
exercise of the powers conferred on him by S.13 and other provisions of the 1976 Act, the Home Secretary made
the 1976 Order.
Page 9 35.' Art. 5 of the Order confers powers on "examining officers" (under Art. 4 these are police constables, immigration
officers and certain customs officers) to examine persons who have arrived in, or are seeking to leave Great
Britain. Art. 6 imposes certain duties on persons who are examined. These provisions are in the following terms:
"Examination of persons arriving in or leaving Great Britain 5.-(l) An examining officer may examine any persons who have arrived in or are seeking to leave Great BritainPage 10
by ship or aircraft for the purpose of determining -
(a) whether any such person appears to be a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism; or (b) whether any such person is subject to an exclusion order; or (c) whether there are grounds f or suspecting that any such person has committed an offence under section 9 or 11The reference in this paragraph to persons who have arrived in Great Britain shall include a reference to transit
of the Act.
passengers, members of the crew of the ship or aircraft and others not seeking to enter Great Britain.
(2) Any person, on being examined under paragraph (1), may be required in writing to submit to further examination. Production of information and documents 6.-(l) It shall be the duty of any person examined under Article 5 to furnish to the person carrying out the examination
all such information in his possession as that person may require.for.the purpose of his functions under that
Article.
(2) A person on his examination under Article 5 by an examining officer shall", if so required by the examining
officer, -
(a) produce either a valid passport with photograph or some other document satisfactorily establishing his identity
and nationality or citizenship; and
(b) declare whether or not he is carrying or conveying documents of any relevant description specified by the
examining officer, and produce any documents of that description which he is carrying or conveying.In sub-paragraph (b), "relevant description" means any description appearing to the examining officer to be relevant36. Art. 7 of the Order confers various powers of search on examining officers including, in Art. 7(2), power
for the purposes of the examination."
to search persons who are examined, their baggage etc. Art. 9 provides for the making of directions for the removal
from the relevant territory of any person subject to an exclusion order. By virtue of Art. 9(1)(a) such directions
may be made by an examining officer "in the case of a person who is found to be subject to an exclusion order
on examination under Art; -5 or against whom an exclusion order is made following such examination". In other
cases directions for removal are to be given by the Secretary of State.
37. Art. 10 of the Order provides for the detention of persons liable to examination or removal. Paras. (1) and (2)
of this Article provided (at the relevant time) as follows:
"10.-(1) A person who may be required to submit to examination under Article 5 may be detained, under the authorityPage 11 The period for which a person may be detained on the authority of an-examining'officer, under Art. 10(1)(a), has*since
of an examining officer, pending his examination or pending consideration of the question whether to make an
exclusion order against him for whichever is the longer of the following periods, that is to say -
(a) a period not exceeding seven days; or (b) if the Secretary of State so directs, a period not exceeding that expiring on the expiry of the period of(2) A person in respect of whom directions for removal may be given under- Article;9 may-be detained pending the
five days beginning at the end of the day on which his examination is concluded.
giving-of such directions and pending removal in pursuance thereof under the authority -
(a) in the case of such a person as is mentioned in Article 9(1)(a), of an examining officer; or (b) in such or any other case, of the Secretary of State."
been'reduced, on. the'recommendation of Lord Shackleton, from seven days to'two days, subject to extension for
a further five days by the Secretary of State. A' person liable to be detained under Art. 10 may, by virtue of
Art. 11, be arrested without warrant by an examining officer.
38. Para. 5 of Schedule 3 to the 1976 Act also makes supplemental provision for detention under the 1976 Act and
orders made under S.13 thereof (i.e. the 1976 Order). In particular, para. 5(3) of the Schedule provides as follows:
"(3) Where a person is so detained, any examining officer, constable or prison officer, or any other person authorised2. The use in practice of the powers of arrest and detention for examination 39. In practice the powers of arrest and detention for purposes of examination under thel976 Order are operated
by the Secretary of State, may take all such steps as may be reasonably necessary for photographing, measuring
or otherwise identifying him."
selectively. The Shackleton Report records that in 1977, out of a total of 3,967,583 people passing through six
major ports (including airports) in Great Britain dealing with passengers to and from Northern Ireland and the
Republic of Ireland, only 308 were detained (para. 98). The total number detained in Great Britain under the
Order during that year was 661 (ibid., Appendix E, Table 1).
40. The powers of arrest and detention are operated in conjunction with other means of control at the ports, such
as the selective use of embarkation and landing cards and the inspection of other documents produced by passengers
(see generally paras. 94-97 of the Shackleton Report).
41. From the information given by the Government it appears that in practice arrest or detention under the Order
will, at least in the normal case, have been preceded by an initial or preliminary examination by the examining
officer. He will decide whether to ask a particular passenger to identify himself. He may allow the passenger
to proceed or may ask him for further information, such as the reason for his journey, details of his travel
arrangements etc., and may have his
Page 12 name checked against police records. The passenger and his vehicle may also be searched at this initial stage.
When the preliminary enquiries or investigations are complete the examining officer decides whether to allow
the passenger to proceed or whether to require him to submit to further more detailed examination. According
to the Government the examining officer will not in practice detain a person under the Order unless his suspicions
have been aroused in respect of one of the matters set out in paras, (a), (b) or (c) of Art. 5(1) of the Order (see
para. 35 above for text).
3. Contact between persons detained and their families, etc. 42. At the relevant time there was no statutory provision governing the question of contact between a person detained
under the Order and members of his family or other persons outside.
43. The Judges Rules and Administrative Directions to the Police annexed thereto are applicable in the case of
a person detained under the Order. The Judges Rules, which were drawn up by Judges of the High Court, are essentially
concerned with the conditions under which statements should be taken from arrested persons if they are to be
accepted by the courts as admissible in evidence. They contain guidance on the procedures to be followed in questioning
and taking statements from persons in custody. They provide, for example, for the administration of a caution
to a suspected person at various stages. The Administrative Directions to the Police were formulated by the Home
Office and approved by the Judges. They contain more detailed instructions to the police as to the facilities
to be afforded to a suspected person.
43. In the Introduction to the Judges Rules it is stated that the Rules do not affect a number of principles including
the following:
"(c) That every person at any stage of an investigation should be able to communicate and to consult privately
with a solicitor. This is so even if he is in custody, provided that in such a case no unreasonable delay or
hindrance is caused to the processes of investigation or the administration of justice by his doing so."
44. The Administrative Directions also provide that a person in custody should be allowed to speak on the telephone
to his solicitor or to his friends provided that no hindrance is likely to be caused to the process of investigation,
or to the administration of justice by his doing so. They also provide that detained persons should be informed
of their rights both orally and by means of notices.
Page 13 45. Neither the Judges Rules nor the Administrative Directions have force of law, but breaches thereof can be
taken into account by the courts when deciding whether to admit or exclude evidence. Thus if a statement is obtained
in breach of the Rules, although this does not per se render the statement inadmissible as evidence, the courts
may exercise their discretion so as to exclude it.
46. The Judges Rules and Administrative Directions are also generally incorporated into the General Orders of
individual police forces prescribing their detailed practice and procedures. Breach of the Rules or Directions
by a police officer may thus amount to a disciplinary offence.
47. The legal position has changed since the events which gave rise to the present case. On 19 June 1978 S.62
of the Criminal Law Act 1977 came into force. This provides that an arrested person "shall be entitled to have
intimation of his arrest and of the place where he is being held sent to one person reasonably named by him,
without delay, or, where some delay is necessary in the interests of the investigation, or prevention of crime
or the apprehension of offenders, with no more delay than is so necessary".
4. Practice concerning fingerprints and photographs 47. No legal provision requires the destruction or disposal of fingerprints or photographs lawfully taken by the
police. In the case of normal criminal investigations, prints taken during the investigation are in practice
destroyed unless the person in question is convicted of an offence. In that event they are stored in the National
Fingerprint Collection at New Scotland Yard in London. However, the fingerprints and photographs of persons detained
under the 1976 legislation are retained after their release, whether or not the detainee has been charged with,
or convicted of, any offence.
48. Details of the practice followed in the case of fingerprints taken under-the 1976 legislation are set out
in the Government's Memorandum of
23 January 1980. The prints are held centrally in the national collection. However they are separately identified
and, where the person concerned does not have a criminal conviction, they are used solely for purposes of prevention
of terrorism. For the purpose of initially identifying a person arrested under the legislation, his fingerprints
are compared with
-/- Page 14 those of convicted persons. Thereafter they are retained for comparison with identified fingerprints from past
terrorist incidents, for comparison with fingerprints recovered from the scene of any future incident and also
for the purpose of identifying persons arrested under the legislation.
49. The photographs of persons arrested under the legislation are held centrally by the Metropolitan Police Special
Branch. They are held separately from those of persons with criminal records. Some police forces also retain
a copy of the photographs of persons who have been detained in their own area. They are used solely for the purpose
of prevention of terrorism and chiefly for the purpose of identification.
C. The arrest and detention of the applicants 1. The arrests at Liverpool 50. On 22 February 1977, between about 18.00 and 19.00 hours, the three applicants arrived together at Liverpool
in Mr. McVeigh's car on a ferry from Dublin. According to the statements they have submitted to the Commission
they had been together on a motoring holiday in Ireland. They had left England on 15 February 1977. They had
stayed in Dublin, Mr. McVeigh staying in hotels, whilst MM. O'Neill and Evans stayed with Mr. O'Neill's family
there. They had also travelled about in Ireland and made two trips to the North. They deny having had any contact (to
their knowledge) with political extremists. They maintain that they were simply on an innocent holiday.
51. When they arrived at Liverpool on their return they drove off the ferry, passed through customs and were then
stopped by a plainclothes police officer. He asked them for proof of identity. Each applicant produced some form
of identification. According to their statements Mr. McVeigh produced a package of personal documents, including
his driving licence, a post office security pass and gun licence, Mr. O'Neill produced a post office pass and
Mr. Evans a driving licence. In response to questions from the police officer they gave details of their trip
to Ireland, explaining where they had been and the purpose of their visit. They also gave him various personal
particulars such as their names, addresses and occupations.
52. The applicants were then kept waiting for about an hour whilst the police made telephone enquiries. They were
then taken, one at a time, into a police office. There, according to their statements, each was searched and
questioned about his belongings. A brief search was also made of the .car.
Page 15 53. The applicants were then told that they were being arrested under "the Prevention of Terrorism Act" and that
they were being taken to a place of detention where they would be fingerprinted, photographed, questioned and
otherwise checked up on. They were not at that stage, so far as appears from the parties' submissions, given
any more precise information as to the reasons for their arrests or the legal basis therefor.
54. The parties are not agreed as to what, if any, reason the police had for deciding to arrest the applicants.
Broadly speaking the Government"suggest"that there was some suspicion that the applicants might have been involved
with terrorism, whilst the applicants suggest that, as a matter of fact, there can have been no proper ground
for suspicion against them. Further details of the parties' submissions on this point are set out in Part III
of this Report (paras. 80 - 83).
2. The detention of the applicants at the Bridewell police station (a) Reception procedure and duration of the detention 55. Following their arrest the applicants were driven to the Bridewell police station nearby. There they each
went through a routine reception procedure. They were searched. Items of personal property were taken and recorded.
Their personal particulars were also again taken and recorded. Each of the applicants was also handed a form
entitled "Notification of further examination". This document referred to the 1976 Act and Order and required
the person to whom it was addressed, being a person who had arrived in Great Britain by ship "and^ being a person
who has been examined under Article 5(1) of the j_1976 Order;/ to submit to further examination in accordance with
Art. 5(2) of the said Order". The form further stated that "Pending further examination you will be detained under
Art. 10(1) of the Order". These forms were handed to the applicants at about 20.15 hours. They were then transferred
to cells-¢
56. The applicants were detained at the police station until about 16.00 hours on 24 February 1977 and were thus
under arrest or detention for a total of some 45 hours.
Page 16 (b) Fingerprinting, photography and questioning of the applicants 57. During the first morning of their detention each of the applicants was photographed and had his fingerprints
taken. During the period of their detention they were also questioned by police. Details of their interviews
with the police are set out in the statements :they have submitted to the Commission.
58. Mr. McVeigh states that he was interviewed by a man in plain clothes about two hours after lunch on the second
day of their detention (23 February 1977). This man took down all his "routine particulars" again and questioned
him very closely on whether he had "ever belonged to any Irish political party". The applicant states: "I told
him that when I first came to this country I had lived in an almost entirely Irish community and had joined
Clann-n-h'Eirennein which I remained for most of 1964/5/6 but I had then moved and since had no further connection".
Mr. McVeigh also states that on the following day, shortly, before their release, a Special Branch policeman
"questioned me about my common law wife and her parents, where she worked, etc.".
59. Mr. O'Neill also states that he was interviewed on the afternoon of 23 February by a plain clothes man who
"took down all my particulars again and asked me a number of questions on whether I had ever been associated
with any Irish political parties". He states that he asked the officer, at this interview, why they had been
arrested and that the officer said "the only reason he could see was that they had not liked the look of our
faces".
60. Mr. Evans states that he too was interviewed on the same afternoon by a plain clothes man who "went through
the usual routine details plus various employments I have had since leaving school. He then said he saw no reason
for detaining me ...".
61. Each of the applicants also describes various other contacts with police officers or "prison staff" during
their detention. However it appears from their statements that they were not interviewed or interrogated on any
occasion except as mentioned above.
Page 17 (c) Alleged refusal to allow contact with wives 62. Mr. McVeigh and Mr. Evans each allege that during their detention they attempted to contact their wives (common
law wife in Mr. McVeigh's case) but were denied the possibility of doing so. They each allege that as from about
the time when they were given the written notifications of further examination, they made various requests to
be allowed to telephone their wives, but that these requests led to no result. The respondent Government have
contested these allegations and maintain that records kept at the time indicate that no such requests were made.
63. The applicants' version of events, as set out in their respective statements, may be summarised as follows: 64. Mr. McVeigh alleges that on being first taken to his cell he "told the warder that it was imperative that
I telephoned my common law wife who was expecting me home and would be frantic if she did not hear from me".
When being interviewed after lunch on the next day he asked the officer if his common law wife had been telephoned
"and he said he was sure this would have been done". On arriving back in London he found that she had not received
any telephone call and was "frantic with worry", having telephoned hotels in Dublin and the applicant's place
of work.
65. Mr. Evans states that he asked, both before being taken to his cell and on arriving there, to be allowed to
telephone his wife. On the latter occasion he explained that it was imperative that he be allowed to do so because
of her mental condition. He was told that he could ask the Inspector later. He repeated his request to the warder
bringing his breakfast the following morning but the warder indicated that only the Special Branch could give
the necessary authority. Later in the morning, after Mr. Evans had been fingerprinted and photographed, the warder
informed him that he had passed his message to the Special Branch. At about 1.00 p.m. a Special Branch officer came to
his cell. Mr. Evans explained that his wife suffered from a manic depressive condition and that he feared for the
consequences if he was not able to contact her. The officer offered to make a telephone call for Mr. Evans but
explained that all he could say was that Mr. Evans was detained under the Prevention of Terrorism Act. Mr. Evans
felt that this would do more harm than good and eventually, Mr. Evans states, the officer agreed to telephone a
trade union official. Mr. Evans hoped this person would pass a tactful message to his wife and "could quite probably
work out where we were and get the
Page 18 trade union solicitors on to getting us out". The officer later told him the call had been made but, on release,
Mr. Evans found that it had not. He suggests in his statement that the police officer's talk of passing on messages
was merely a trick to try to obtain information and that it was particularly ruthless in view of the possible
damage to his wife's mental condition.
66. The respondent Government have submitted that the applicants' allegations are unsubstantiated. They observe
that there is no record of the applicants having asked to contact anyone, but that the Chief Constable had stated
that had such a request been made, "it would have received sympathetic consideration". They have explained that
at the relevant time it was the practice for a "detention log" to be kept in respect of each person detained
under the 1976 Act at the Main Bridewell Police Station. The constable in charge of the detainee was instructed
to maintain a record of various matters including requests such as those referred to by the applicants.
67. Copies of the log sheets kept in respect of the three applicants have been produced. The logs are entered
on forms which contain the following instruction: "All requests, visits, periods of exercise, washing, cell transfer
etc. will be recorded by the Main Bridewell Constable in Charge". The forms contain columns in which the appropriate
details are to be entered.
68. The completed forms contain entries recording that the applicants were placed in their cells and supplied
with bedding on the evening of 22 February. It is recorded that the same evening Mr. McVeigh asked to be, and
was, seen by a doctor and returned to his cell. For the period thereafter there is a total of five entries on
the form kept for each applicant. In each case two of them relate to meals and one records a "wash". The remaining
entries record two visits by the "examining officer" to each applicant. In respect of each of these visits the
entry made is "no request" or "no requests". There is no record of any request such as those spoken to by
the applicants.
69. The applicants submit that the log sheets are clearly defective and that the Commission should accept the
accounts given by them in their statements. The Government for their part accept that the log sheets do not provide
a comprehensive record of events. They observe that it is intended that they should record such requests and
that the Constable in Charge is instructed to maintain a-record accordingly. They submit that the log sheets
Indicate that no such requests were made by the applicants.
Page 19 70. The Commission considers that the accounts given by the two applicants are prima facie credible. It would
have been natural for them in the circumstances to have wished to inform their wives of their whereabouts. Furthermore
the absence of any record of the requests spoken to by the applicants is of little significance in the Commission's
opinion since, whatever should have been recorded, the detention logs were evidently not fully completed in accordance
with the instructions on them. No other evidence has been adduced to cast doubt on the applicants' statements.
The Commission therefore finds that the two applicants in question asked to contact their wives as alleged by them,
and that they were not allowed to do so.
Page 20 III. SUBMISSIONS OF THE PARTIES A. General submissions 1. The respondent Government 71. The Government submit that in interpreting and applying the Convention the Commission should take into account
the exceptional situation in Great Britain resulting from terrorism. They emphasise that the legislation in question
is temporary and preventive in character, that it is intended to meet the situation referred to, and that its
continuance is justified only so long as that situation persists.
72. The general situation in Western Europe, in which all states are threatened by terrorism, which has reduced
the civil liberties of everyone, should also be taken into account, in their submission. They refer in this context
to legislative and other action against terrorism taken by Member States at the national and international levels,
within the Council of Europe, the United Nations and the International Civil Aviation Organisation. In particular
they recall that the Political Affairs Committee of the Parliamentary Assembly of the Council of Europe has emphasised
the importance of port or border controls as a first line of defence against terrorism (1) and that their opinion
was endorsed by the Assembly (2).
73. The Government submit that the approach they suggest would be consistent with that adopted.by the Commission
in the Klass Case (Report, para. 68).
74. They believe that the legislation in question has made a decisive contribution to the protection of people
in Great Britain from terrorist attack and refer to the reduction in the number of incidents since the legislation
came into effect. Nonetheless it is clear, they submit, from statements by the terrorist groups that they do
not intend to halt acts of violence in Great Britain. It would therefore be irresponsible now to abandon the
powers in the legislation. In this context they refer to the conclusion In the Shackleton Report that "whilst
the threat from terrorism continues, the powers in this Act cannot be dispensed with" (ibid., para. 160).
(1) Report on terrorism in Europe of 5 December 1978, Assembly Doc. 4258. (2) See Parliamentary Assembly Recommendation 852. Page 21 75. Although the matter is kept under review, the Government do not seek to invoke Art. 15 in connection with
the situation. The law and practice at any given time must, they submit, be responsive to the requirements of
the situation. Departures from normal standards may be appropriate to meet exceptional circumstances and it does
not follow that the measures taken are incompatible with the Convention unless Art. 15 is invoked. The measures
in question here are, the Government.argue, fully compatible with the Convention.
2. The applicants 76. The applicants stress that the question at issue is not the necessity for the legislation but the question
whether it is consistent with the Convention, or whether it has been applied in a manner contrary thereto. In
any event the Government's action in the present case must be judged in the light of the situation at the relevant
time, not in the light of subsequent events.
77. They submit that the exceptional powers referred to by the Government are such as may enable innocent people
to be detained without reasons being given, and also enable people to be detained for questioning on a random
basis. Referring to reports of Parliamentary debates and other material (1), they submit that there is great
potential for misuse of the legislation. Furthermore, they argue, there is no effective judicial control.
78. Referring' to a question put by the Commission concerning the possible relevance of Art. 15 of the Convention,
the applicants submit that the conditions for its application have not been fulfilled since (a) there has been
no declaration under Art. 15 (3) and the Government have not sought to invoke It, (b) in any event no state of
emergency threatening the life of the nation existed and (c) even if there was it was not established that the
measures in question were strictly required, in view of the high proportion of those detained who were released.
(1) Report (Hansard) of Debate in House of Commons on 15 March 1978; NCCL booklet on the operation of the legislation by Catherine Scorer, published November 1976; NCCL Memorandum of Evidence to Lord Shackleton, March 1978.Page 22 B. Submissions concerning the facts 79. The parties' submissions concerning the facts are for the most part incorporated in Part II of this Report,
above. However, the following further submissions concerning the background to the arrests may be noted.
1. The respondent Government 80. The Government state that during the applicants' initial conversations with the examining officer at the quayside,
the suspicions of the examining officer were aroused and he decided to make further inquiries. These revealed
that, in the case of at least one of the applicants, the police had information suggesting possible involvement
in matters connected with terrorism in the United Kingdom. Whilst not sufficiently specific to justify the laying
of a charge, this information had been sufficient to afford reasonable suspicion that the applicants had been
concerned in the commission of an offence or offences. The police therefore had to investigate whether there had been
involvement in the course of the holiday with matters connected with terrorism, and whether the party was engaged in
terrorist activity, such as- bringing in bombs in the car. It had been necessary to ascertain whether the information
appeared well-founded. After such investigation the police would be able to decide whether to prefer charges against
the applicants and bring them before the competent legal authority or whether to institute exclusion proceedings.
81. The Government have indicated that it is not possible, in such cases, to disclose all the information available
to the police. However they could disclose one matter of which they were aware in the present case. This was
that Mr. McVeigh, in the mid-1960s, had been a member of an organisation known as Clann-na-h'Eireann. This was
referred to in the applicant's statement (see para. 58 above). This organisation, according to the Government,
embraced a number of Irish Republican social clubs and groups in Britain. Following the split in the Republican
movement in 1969-70 many of its members had left to join the Provisional IRA. The Government suggest that this
information alone, coupled with the information given by the applicants concerning their visit to Ireland, could
reasonably be considered to merit arrest and detention for further examination. They recall that less than a month
previously thirteen devices had exploded in London and on 2 February 1977 one device had exploded in Liverpool. The
police had thus been very much on the alert at the time.
Page 23 2. The applicants 82. The applicants observe that no reasonable suspicion was required for their arrest and detention under the
1976 Order and that the Government have not stated in detail what the alleged suspicion was. If there had been
grounds for suspicion, they could have been arrested under S.12 of the 1976 Act.
83. They also submit that, as a matter of fact, there can have been no proper ground for suspicion against them.
They refer to their background as people without criminal convictions. They observe that during the initial questioning
Mr. McVeigh produced a gun licence. Before such a licence was issued the police carried out checks and they were
unlikely to issue one to a suspected terrorist. The Government referred only to Mr. McVeigh's membership, 11
years previously, of an organisation which was entirely legal. Mr. Evans and Mr. O'Neill appeared to have been
detained purely because of their association with Mr. McVeigh. Whatever grounds for suspicion there were it was in
any event clear that they fell far short of being sufficiently concrete to form the basis of any allegation of an
offence, or to found an exclusion order, since they had been released.
C. Art. 5 (1) and (3) of the__Convention 84. In their applications the applicants alleged that their detention was contrary to. Art. 5 (1) of the Convention,
not having fallen under any of paras, (a) to (f) thereof. They also alleged, as an alternative to their main
argument under Art. 5 (1)(c), that there had been a breach of Art. 5 (3). The Government have denied any breach
of these provisions and have submitted that the detention was justified at all times under one or other or each
of sub-paras (b), (c) and (f) of Art. 5 (1). Details of the submissions made by the Government in justification of
the applicants' detention are set out below, followed by the applicants' reply.
1. The respondent Government 85. The Government submit that paras, (b), (c) and (f) of Art. 5 (1) are all relevant to justify the applicants'
arrest and detention. These provisions are not mutually exclusive in the sense that an
Page 24 arrest or detention must be justified in the first Instance in relation to one only of them. Provided detention
is always compatible with at least one of the sub-paras, of Art. 5 (1), it is justifiable under the Convention.
86. As to Art. 5 (1) (b), the Government submit that the applicants' arrest and detention were justified on the
ground that they.fell within the category of "lawful arrest or detention ... in order to secure the fulfilment
of any obligation prescribed by law".
87. They recall the case-law of the Commission and Court to the effect that Art. 5 (1) (b) does not authorise
a person's detention in order to secure fulfilment of his general duty of obedience to the law or to prevent
his committing offences, but that it permits detention only "to compel him to fulfil a specific and concrete
obligation which he has until then failed to satisfy" (1). However they contrast general "obligations", such
as the obligation not to belong to a proscribed organisation (2) with two other obligations under the legislation
which are, they submit, "specific and concrete" obligations such as were contemplated by the Court in the Engel Case.
These are:
88. The obligation under Art. 5 (2) of the Order was, the Government observe, set out in the "Notification of1. the obligation "to submit to further examination" specified in Art. 5 (2) of the 1976 Order; and 2. the duty specified in Art. 6 of the Order to furnish information required by the examining officer; (see para. 35 above for text of these provisions).
Further Examination" served on each applicant (see para. 55 above). The duty to furnish information is expressly
related to the functions of an examining officer, which in turn are carefully prescribed in limited terms. The
obligation and duty are thus "specific and concrete" in the Government's submission.
(1) Engel Case, Series A, Vol. 22, para. 69; Lawless Case, Report of Commission, Series B, p. 64. (2) S.l and Schedule 1 of the 1976 Act, see para. 30 above.Page 25 89. Furthermore a breach of the duty under Art. 6 (1) of the Order does not necessarily involve the commission
of an offence under S.ll of the Act, according to the Government. It is an essential element of an offence under
S.ll that the person concerned "knows" or "believes" that the information he has might be of material assistance
in preventing an act of terrorism etc. Under Art. 6 of the Order the duty is to furnish information which the
examining officer may require and it was the examining officer who assessed the matter. The detainee might be
unaware that he possessed significant information. There might be circumstances which made it essential to detain
a person temporarily in order to secure fuilfilment of the "duty" prescribed in Art. 6 (1) of the Order.
A person might not divulge information speedily precisely because he was unaware of its significance, for instance
if he was being "used" unwittingly by a terrorist organisation as a carrier of information. An initial examination
might also prompt the police to pursue other lines of inquiry, necessitating an interval before examination could
be resumed. The examination could be prejudiced if the detainee were released in the Interim.
90. The Government observe that in Application No. 5025/71 the Commission held that Art. 5 (1) (b) applied in
a case of detention to secure fulfilment of an obligation to provide information, namely an affidavit of
possessions (1).
91. The Government submit that Art, 6 (1) of the Order is strictly ancillary to and limited by the purposes of
Art. 5 of the Order. Insofar as a person may be detained to secure the requirement under Art. 5 (2) and the duty
prescribed in Art. 6 (1), detention is only lawful to the extent that it is authorised by Art. 10 of the Order,
read in conjunction with Art. 5. The combined effect of these provisions brought the applicants' arrest and detention
within Art. 5 (1) (b).
92. As to Art. 5 (1) (c) and (f) in general the Government state that, depending on the information available,
an examining officer may conduct his enquiries with a view to prosecution or exclusion. A change of emphasis
from one purpose to another may occur during the examination. Provided the arrest or detention is always
(1) Yearbook XIV, p. 692.Page 26 compatible with the purposes mentioned in either sub-para, (c) or sub-para, (f), it is justified under Art. 5
(1) notwithstanding that it may not be known whether deportation or prosecution is intended. Examination and
detention under the Order complies, the Government submit, with either sub-para, (c) or sub-para, (f).
93. As to Art. 5 (1) (c) they submit that a person may properly be detained where there exists reasonable suspicion
of his having committed a serious offence, and the purpose of the detention is to enable further evidence to
be obtained sufficient to justify bringing him before the competent legal authority. Particularly in the case
of terrorist offences the police may have concrete information as to a person's involvement in an offence, but
still need to investigate further to obtain sufficient admissible evidence to bring him before a court.
94. The Government accept that the powers of arrest and detention under the 1976 Order are not expressly made
dependent on the existence of any "reasonable suspicion". Nevertheless in practice a passenger will not be detained,
they state, unless the suspicions of the examining officer have been aroused in respect of one of the matters
specified in Art. 5 (1) of the Order. They submit that it is also evident from the figures in the Shackleton
Report (1) that the powers are used with great discretion. They observe that the criteria in category (a) under
Art. 5 (1) of the Order are in almost identical terms to those contained in Northern Irish legislation which were
held by the Court to be "well in keeping with the idea of an offence" (2). Category (c) concerns examination
regarding certain criminal offences and category (f) concerns exclusion orders.
95. Reasonable suspicion of having committed an offence is, they point out, only one of the grounds for a lawful
arrest under Art. 5 (1) (c) of the Convention. In the context of legislation primarily designed to prevent terrorism,
the provision permitting a person's arrest or detention "when it is reasonably considered necessary to prevent
his committing an offence ..." is particularly relevant. No requirement of "reasonable suspicion" of a person's
having "committed an offence" needs to be satisfied in order to comply with
(1) See para. (2) Ireland v. the United Kingdom, Series A, No. 25, para. 196.Page 27 this provision. The question whether an arrest is "reasonably considered necessary" to prevent the commission
of an offence must, the Government submit, depend very much on the circumstances of the case. The question as
to how strong a suspicion must be before an examining officer could reasonably act on it must be assessed in
the context of the gravity and nature of the offence which it was sought to prevent. The Commission should therefore
in the present case have regard to the particular context in which the provisions were invoked. In this context they
refer to Lord Shackleton's reference to the need, in cases of terrorism, "to take immediate action to prevent loss
of life, serious injury and acute suffering" (1). To prevent such acts it might well be necessary to arrest a person
for further examination under the Order in circumstances where there was not yet reasonable suspicion of his having
committed an offence. In the case of the applicants the Government were satisfied that there were in fact reasonable
grounds for suspicion.
96. As to the requirement that deprivation of liberty under Art. 5 (1) (c) must be effected for the purpose of
bringing the person concerned before a competent legal authority, the Government submit that the requirement
under Art. 5 (1) (c), read in conjunction with Art. 5 (3), is that the person should be brought before such an
authority unless he is released within the time within which this should have been done. They observe that the
applicants were detained for less than 48 hours, whereas the Commission has previously held (2) that detention for
a period of four days before the detainee was produced before a judge was acceptable under Art. 5 (3). They submit
that in the special context of terrorist offences the provisions of Art. 10 satisfy the Convention in this respect.
97. As to Art. 5 (1) (f) the Government submit that removal under an exclusion order is in effect "deportation"
and that an exclusion order is the equivalent of a deportation order. Whilst, under the 1976 Act, a person may
be excluded from one part only of United Kingdom territory, and removed to another, i.e. from Great Britain to
Northern Ireland or vice versa, that is, they submit, consistent
(1) Shackleton Report, para. 135. (2) Application No. 2894/66, Collection of Decisions 21, p. 53.Page 28 with the concept of deportation. In this respect they point out that Northern Ireland is a distinct and separate
geographical unit with its own system of law and that it was treated as a separate entity for the purposes of
Art. 15 of the Convention in the case of Ireland v. the United Kingdom.
98. The Government, referring to Art. 5(1) (b) of the 1976 Order, submit that a person's arrest and detention
for the purpose of ascertaining whether he is subject to an exclusion order, falls within Art. 5 (1) (f) of the
Convention because entry in breach of an exclusion order amounts to an "unauthorised entry into the country"
for the purposes of that provision. Furthermore they point out that another possible outcome of examination,
which is seriously pursued, is to determine whether an exclusion order should be made. So long as the determination
of this matter remains a purpose of the examination, the detention is justified on the ground that action is being
taken against the person concerned with a view to deportation.
99. The Government submit that for all these reasons the applicants' arrest and detention were compatible with
Art. 5 (1) and (3) of the Convention.
2. The applicants 100. The applicants contend that their arrest and detention did not fall within any of the sub-paragraphs of Art.
5 (1) of the Convention invoked by the Government. They submit that the powers in question are analogous to those
described by the Commission in the case of Ireland v. the United Kingdom on page 88 of its Report. The deprivation
of liberty was "in essence a form of initial arrest for the purpose of interrogation in the context of preservation
of the peace and maintenance of order, i.e. combatting terrorism".
101. As to Art. 5 (1) (b), they refer to previous case-law of the Commission and Court, and in particular to the
Court's Judgment in the Engel Case (sup. cit.). They submit that arrest and detention under the 1976 Order is
not effected to compel a person "to fulfil a specific and concrete obligation which he has until then failed
to satisfy". In the first place they submit that the only substantive obligation here is an obligation to be
detained for interrogation. This
Page 29 is a kind of administrative detention to discharge a general duty to co-operate in the investigation process and
is neither a specific nor a concrete obligation. Secondly they submit that the obligation must be an antecedent
one and that there must have been an initial voluntary failure to comply with it on the part of the detainee.
Here there was no failure on the applicants' part to comply with any obligation incumbent on them up to and including
the time of their arrest. They furnished the information required of them at the initial examination. The obligations
incumbent on them in relation to further examination were not antecedent, as had been the obligation to furnish an
affidavit in the case referred to by the Government (Application No. 5025/71, sup, cit-).
102. The applicants submit that their detention accordingly did not fall within the scope of Art. 5 (1) (b). 103. As to Art. 5 (1) (c), they submit that the purpose of an arrest must be to bring a person before a "competent
legal authority". The purpose of examination is to see whether there is evidence which could possibly be used
to found a charge and the process is one stage removed from that at which a police officer could say he proposed
bringing the detainee before a court. A series of options are open to the examining officer, including release.
However under Art. 5 (1) (c) there must, the applicants submit, be an intention to bring the person before the
competent authority. The 1976 Order provides, the applicants submit, for an investigation process and not for an
ordinary arrest procedure such as would lead to appearances before a court. The absence in the Order of any
requirement for a suspicion means that it is not necessary for a person detained to have got anywhere near the
competent legal authority.
104. It could not be said that the purpose in the examining officer's mind was to bring the arrestee before a
court. If it were, he could not at the same time be considering an exclusion order involving no judicial process.
That involved setting off along a different channel. If there was such a dual purpose, it was one stage removed
from the intention required by Art. 5 (1) (c).
Page 30 105. It is clear, in the applicants' submission, that the real purpose of their detention was "examination". The
Government themselves said as much. In any event no provision complying with Art. 5 (3) read in conjunction with
Art. 5 (1) (c) is applicable, the provisions of the Magistrates' Courts Act 1952 not being applicable to detention
under the 1976 legislation. Furthermore the high proportion of detainees released, as shown by the statistics,
tended to show that the purpose of the detention was distinct from that or normal arrest under the general law.
106. As to Art. 5 (1) (f) the applicants submit that there was clearly no question of their effecting an "unauthorised
entry".
107. They further submit that exclusion is not equivalent to "deportation" for the purposes of this provision.
The concept of deportation should be confined, in their submission, to inter-State removals and does not include
what is tantamount
to administrative or internal exile. They refer in this respect to Art. 2 of Protocol No. 4. Hiey also observe
that exclusion is a different concept in United Kingdom law to deportation under the normal immigration laws.
In the ordinary and natural meaning of the words, exclusion and deportation are, they submit, different concepts.
108. Furthermore the applicants did not fall within the scope of the words "person against whom action is being
taken" in Art. 5 (1) (f). When they were examined action might have been contemplated for the future but that
was all. In accordance with the Commission's case-law only the existence of (deportation) proceedings justifies
detention under this part of Art. 5 (1) (f) (Application No. 8081/77, X. v. the United Kingdom, Decisions & Reports 12,
p. 207). No proceedings existed in the applicants' case and for this reason also Art. 5 (1) ' (f) was inapplicable.
109. The applicants argue that their arrest and detention were accordingly in breach of Art. 5 (1) of the Convention. Page 31 D. Art. 5 (2) of the Convention 1. The applicants 110. In their applications the applicants complained that no attempt was made to inform them of the reasons for
their arrest, save that it was under the 1976 Act.
111. They submit that Art. 5 (2) goes beyond an obligation to refer to the statutory provision permitting detention.
They submit that they should also have been informed of the reasons for their arrest namely the grounds for suspicion
against them.
112. Referring to the previous case-law of the Commission relied on by the Government (see para; 114 below), the
applicants accept that there is no set formula for the way in which reasons should be given. However they observe
that in Application No 1211/61 the applicant was informed in detail of the reasons for his arrest and intended
deportation the day after his arrest (1). In the Neumeister Case (2) the applicant was questioned and confronted
with his accuser long before his arrest. -In the Nielsen Case (3) the applicant was informed -in general, terms
of the charge against him at the time of his arrest. Here such information was not given, and the whole object of
the relevant legislation is to obviate the need for giving it. The reasons given were not sufficient and there
was a breach of Art. 5 (2).
2. The respondent Government 113. The Government submit that the information given, which included both the specific legal basis for the detention
and the reason for it, namely "pending further examination" was sufficient.
114. According to the Commission's case-law, Art. 5 (2) does not require the information to be given in any special
form or that a all charges be given at the moment of arrest (4). arrests must also have become apparent from
by the police, as in the Neumeister Case (sup. cit.)
224 1936/63, Yearbook VII, p. .224 343/57, Yearbook II, p. 412 2621/65, Yearbook IX, p. 474; Application No 4220/69, Collection of Decisions 37, p. 61. full description of The reasons for the the questions asked (1) Yearbook V, p. (2) Application No (3) Application No (4) Application NoPage 32 115. In the context of inquiries into terrorism it would frequently prejudice police investigations and could
endanger life if full details of the grounds for an arrest always had to be given at the time. Witnesses might
be threatened, interfered with or even murdered. Further information must be given if charges were preferred,
but in this context the distinction between Art. 5 (2) and Art. 6 (3)(a), referred to by the Commission in the
Nielsen Case (sup. cit.), is relevant.
116. Here, as in the case of Caprino v. the United Kingdom (1), the applicants were given the "essential facts
relevant to the lawfulness" of their detention. The reasons given were sufficient and there was no breach of
Art. 5 (2).
E. Art. 5 (4) of the Convention 1, The applicants 117. The applicants submit that no procedure was available in which they could effectively test the "lawfulness"
of their detention since (a) there was an"< administrative practice whereby persons detained under the legislation
were denied access to a lawyer or other person who might apply for habeas corpus and (b) habeas corpus was not
in any event an effective remedy'since- their'detention'appeared incontestably lawful in domestic law.
118. As to the former point the applicants refer to passages in various official reports and other publications
concerning the denial of access to solicitors to people held in police custody (2). In their submission- 'these
support their-contention _ that there is an administrative practice to deny such access to persons detained under
the 1976 legislation. They submit Furthermore that it is the eosnmon experience of solicitors acting for persons
detained under the legislation that their clients are not allowed to contact them from custody. They also refer
in this context to the statements of MM McVeigh and Evans concerning the question of contact with their wives and
Mr Evans' wish to contact a trade union official (see paras. 64 and 65 above).
(1) Application No 6871/75, Decision of 3 March 1978 (Extracts published in Decisions and Reports 12, p. 14) (2) Shackleton Report, para. 92; Report by Sir Henry Fisher into circumstances leading to the trial of three personsPage 33 119. As to the effectiveness of habeas corpus as a remedy the applicants rely generally on their arguments at
on charges arising out of the death of Maxwell ConfaitHMSO 1977; Report of the Committee of Inquiry into Police
Interrogation Procedures in Northern Ireland, (1979) Cmnd. 7497; "Police Interrogation and the Right to See a
Solicitor", 1979 Criminal Law Review, p. 145.
the admissibility stage on the question of domestic remedies (see Decision on Admissibility, Appendix III). At
that stage they suggested inter alia that in cases involving national security the courts were reluctant to intervene
and would accept statements by the authorities that, for instance, they had acted on information which could
not be disclosed for security reasons. They submitted that in the case of detention under the 1976 Act the detainee
could not challenge the action taken as he was not told, except in vague terms, the grounds on which the authorities
had acted. They suggested that it would not have been possible to pursue a habeas corpus application without legal
aid, which was unlikely to be granted in face, of an adverse opinion by counsel. They also referred to para. 5 of
Schedule 3 to the 1976 Act and submitted that its provision that persons detained under the Act or Order should be
"deemed to be in legal custody" would prevent habeas corpus from lying.
2. The respondent Government 120. The Government submit that the existence of inter alia the remedy of habeas corpus is an answer to the applicants'
complaint under Art. 5 (4). Habeas corpus has the fundamental features referred to by the Court in para. 76 of
its Judgment in the Vagrancy Case (1). The reason underlying the decision giving rise to the detention is not
a matter within Art. 5 (4). In this respect the Government refer to the Commission's decision in Application
No 858/60, a case concerning detention pending deportation, where the Commission stated that the inquiry provided
for in Art. 5 (4) was concerned "with the lawfulness of the measures taken, but not necessarily with the grounds
on which they were taken" (2), In para. 78 of its Judgment in the Vagrancy Case the Court stated that regard must be
had to the particular circumstances and, in the Government's submission, the circumstances of the present case are
more comparable to those of Application No 858/60 than to cases of long detention. The jud icial enquiry therefore
need not extend beyond the lawfulness of the measures in question.
121. Referring to the applicants' submissions the Government observe that the applicants' statements do not show
that they informed the police that they wished to take legal proceedings and submit that the allegation that
they were prevented from applying for habeas corpus by an administrative practice is unsubstantiated. They also
submit that the provision in Schedule 3 to the Act that a detained person should be "deemed to be in lawful custody"
could not block the remedy of habeas corpus. This is a technical provision concerning
(1) Series A, Vol. 12. (2) Yearbook IV, p. 224 at p. 238Page 34 the status of a person validly detained. If he considers that his detention is not valid he can still apply for
habeas corpus, as is shown by the many applications by persons detained under the Immigration Act 1971,
notwithstanding a similar provision.
122. The Government further submit that in any event the present cases fall within the principle laid down in
Application No 7376/76 (1) whereby there is no violation of Art. 5 (4) if the detention ceases within a period
shorter than would be required for even a very speedy procedure.
123. They submit that there was therefore no breach of Art. 5 (4) here. F. Art. 5 (5) of the Convention 1. The applicant 124. The applicants submit that since they had no enforceable right to compensation in respect of the contraventions
of Art. 5 (1) - (4) of which they complained, there was a breach of Art. 5 (5). In this respect they refer to
the Commission's decision in Application No 5962/72 (2).
2. The respondent Government 125. The Government submit that since there was no violation of Art. 5, no right to compensation arises under
Art. 5 (5). In any event they submit that the Commission is not competent to consider this complaint until the
question whether the detention contravened Art. 5 (5) has been finally determined by the Court or by the Committee
of Ministers. In this respect they refer to para. 76 of the Commission's Report in the Wemhoff Case (3).
(1) X and Y v. Sweden, Decisions and Reports 7, p. 123. (2) X v. Norway, Decisions and Reports 2, p. 52. (3) Series B, p. 90.Page 35 G. Art. 8 of the Convention - searching, questioning, fingerprinting and photography of the applicants and retention of relevant records 1. The applicants 126. In their original applications the applicants maintained that they were victims of unjustified interferences
with their respect for private life, contrary to Art. 8, during their detention. They argued that compulsorily
to fingerprint a person without rational basis for arrest and detention (grounds for which were exhaustively
set out in Art. 5) was in breach of Art. 8. Alternatively, fingerprinting was not justified under Art. 8 (2).
Photographing them was also in breach of their right to private life. In contrast to Application No 5877/72
(X. v. the United Kingdom, Collection of Decisions 45, p. 90), where the Commission appeared to have accepted
in principle that photography of an individual without his consent could breach his right to private life, there
was no question of any "public activity" on the applicants' part. If the initial deprivation of liberty was in breach
of Art. 5, consequent photography of the applicants was also unlawful. Alternatively, no justifiable basis for the
interference could be advanced under Art. 8 (2). Art. 8 had also been breached in that, whilst in custody
contravening Art. 5, they had been (a) searched and (b) required under threat of continuing unlawful custody to
answer questions about their private life.
127. In subsequent submissions they reiterate that if the original detention involves breach of Art. 5, subsequent
searching, fingerprinting and photographing is in breach of Art. 8 unless justified under para. 2 thereof. In
that respect it must be shown that the measures in question were necessary not merely helpful or desirable in
protecting the interests enumerated in Art. 8 (2).
128. They further submit that even if fingerprinting, photographing etc, of persons detained on suspicion but
not charged is found not to be a violation of Art. 8, the subsequent retention of the relevant records after
their release is such a violation. They specify that the records with which they are concerned are those of fingerprints
and photographs and of information obtained in the course of their questioning. They submit that para. 5 (3)
of Schedule 3 to the 1976 Act authorises the taking of fingerprints, etc, primarily for purposes of identification
and that the wording of the provision shows this. They observe that under current practice, this is the only instance
in which an unconvicted person's fingerprints come to be retained on the records.
129. As to the question whether fingerprinting and photography fall within the scope of Art. 8 at all, the applicants
observe that the Commission has not held, in its previous case-law, that such measures fall outside the scope
of Art. 8, (Application No 5877/72, sup.cit.; Application No 1307/61, Yearbook V, p. 230). They observe that
there is
Page 36 growing concern, nationally and internationally, about basic issues of privacy and submit that such measures should
not lightly be excluded from the concept of private life. In days of computerised records, no one knew exactly
what invasions of privacy might result from the retention of records. The capabilities of cross-referencing material
in data banks were known and concern relating to such matters had led to publication of the report of the Committee
on Data Protection (Cmnd. 'No, 7341). This Committee recommended the imposition of substantial safeguards in
relation to police records.
130. The applicants observe that they have no means of knowing how the fingerprints, photographs and other details
obtained during their detention will be used. Recent United Kingdom cases concerning the vetting of potential
jurors reveal,- they submit, the staggering extent of information on police records.
131. Referring to submissions by the Government under Art. 8 (2), the applicants submit that the retention of
fingerprints is not in accordance with any procedure prescribed by law. Whilst there is nothing compelling the
police to destroy them, there is no legal provision justifying or regulating their detention. Furthermore the
absence of legal controls or safeguards is, they submit, also relevant under Art. 8 (2) in accordance with the
principles laid down by the Court in the Klass Case in relation to secret surveillance measures. In particular
they refer to passages in paras. 49 and 50 of the Court's judgment to the effect that there must be adequate and
effective safeguards against abuse in any system of secret surveillance.
132. As to the administrative practice referred to by the Government," whereby such records are used only for
the purpose of prevention of terrorism, the applicants observe that even if such a practice exists, it can be
changed at any time without the need for legislation, or even any announcement. It could be changed so that records
were retained beyond the period when the legislation remained in force. The Government have not, the applicants
submit, stated what administrative safeguards exist to prevent unauthorised access to the records, or what authority
has to be produced by persons wishing to obtain access to them. They refer to a book, entitled "Policing the Police"
(1), and submit that from the analysis contained therein it appears that the names of persons detained under the
legislation may well appear in the "wanted/missing index" of the police national computer (p. 83). Information
concerning their detention may thus be available through normal police channels without specific safeguards.
Furthermore they state that the "Stolen/ suspect Vehicle Index" is known to contain information relating to
organisations to which the registered owner of a vehicle may belong, (ibid. p. 77). Whilst there is no specific
information as to how such material comes to be placed on the computer, the applicants submit that
(1) Policing the Police, Volume 2, ed. Peter Hain, published by John Calder, London 1980.Page 37 it appears not impossible that information obtained during interview from persons detained under the 1976 Act
could find its way into the computer and become available to any police officer making a routine enquiry.
133. The applicants state that they quote these examples only to show the potential for use or misuse of information
obtained from them. They have no way of knowing whether details obtained from them are recorded in this way but
submit that it is clear from the analysis in "Policing the Police" that the potential for this and other uses
exists. They also point out that the Committee on Data Protection referred in their Report to the lack of safeguards
concerning linkage of information held on police records with other information (1).
134. The applicants submit that, in the absence of adequate safeguards, the retention of the material obtained
as a result of their detention cannot, in light of the principles laid down in the Klass Case, be justified under
Art. 8 (2). It is thus in breach of this provision.
2. The respondent Government 135. The Government first request the Commission to bear in mind the context in which the alleged violations of
Art. 8 are said to have taken place.
136. As to the complaints in the applications concerning the measures taken during the applicants' detention,
the Government deny that any of the applicants were threatened with continued detention if they failed to answer
questions. Furthermore they submit that no evidence has been produced by the applicants which in any way substantiates
their complaints concerning questions about private life. As to the taking of fingerprints, and photographs,
the Government submit that there was a rational basis for detention and that it was lawful. The taking of fingerprints
from suspects forms a normal part of a conscientious investigation, and can be compared in this respect to a medical
examination (Application No 986/61, Yearbook V, p. 198). It is not contrary to Art. 8. As to the photography of the
applicants, the Government submit that the applicants have unjustifiably extended the scope of the Commission's
decision in Application No 5877/72, (sup. cit.), and do not accept that the applicant's situation was encompassed
by "private life". Referring to the Commission's previous case-law (Application No 986/61, sup, cit. and Application
No 1307/61, Yearbook V, p. 230) they submit that in any event the taking of fingerprints and photographs is justified
under Art. 8 (2) as necessary for the prevention of crime. As to the searching of the applicants, the Government
submit that they have- adduced no evidence showing a violation of Art. 8 (I) and in any event any such interference
would have been justified under Art. 8 (2).
(1) Command 7341, para. 23..09.Page 38 137. As to the retention of records, the Government first point out that the records in question are obtained
in accordance with law and that there is no provision requiring their destruction. They recall that in the Belgian
Linguistic Cases the Court held that the object of Art. 8 (1) is essentially to protect the individual against
arbitrary interference in his private or family life (1). Since the taking of fingerprints and photographs was
fully in accordance with law, their retention could not be regarded as arbitrary nor could it seriously be claimed
to interfere with their private and family lives. How did it affect their private and family lives? There is
accordingly no interference with the rights protected by Art. 8 (1) in the Government's submission.
138. ih any event the retention of the records is justified under Art. 8 (2), they submit, as necessary in the
interests of national security, public safety and the prevention of disorder and crime. The exceptional practice
of retaining such records in respect of persons detained under the 1976 legislation is justified by the nature
of the activities the legislation is designed to combat. Terrorism cannot be tackled effectively by relying wholly
on traditional police methods and powers. The fact that a person is not charged or excluded does not necessarily
mean that he has no involvement in terrorism and there may even be good reasons for deciding against prosecution
or exclusion where the police have substantial evidence.
139. The retention of the records, the Government state, assists the police in enquiries about persons detained
under the legislation, in tracking down persons responsible for terrorist acts and in eliminating persons from
their enquiries. The Government stress the importance in this context of rapid identification of likely culprits
and recall that identity cards are not required in the United Kingdom. Furthermore, due to the very nature of
terrorist offences forensic evidence is of paramount importance. The retention of the records is thus vital to
assist police in the fight against terrorism and the United Kingdom is by no means alone in retaining such records
where the person concerned has not been charged and convicted.
(1) Judgment of 23 July 1968, Series A, No. 6, p. 33.Page 39 140. The Government also recall that the Commission has previously held that the keeping of records, including
documents, photographs and fingerprints is not in violation of Art. 8 (Application No. 1307/61, sup, cit.). They
point out that in that case the applicant's conviction had been quashed on appeal but the records were retained.
It also appeared to have been the Commission's view there that Art. 8 (1) normally had no relevance to the retention
of police records. In addition in Application No. 5877/72 (sup, cit.) photographs of the applicant were retained
although there was no criminal conviction and the Commission found no interference under Art. 8 (1). Further, if
the police were required to destroy the case-file In any case where they decided not to prosecute, it would be
difficult for the Government to deal with cases such as the present ones before the Commission.
141. Finally the Government do not accept the applicant's suggestions to the effect that the system governing
the retention and use of such records is not properly applied and is open to abuse. They submit that these
insinuations are irrelevant'to the issues raised by the present applications and declared admissible by the
Commission.
H. Arts. 8 and 10 of the Convention - contact of the applicants McVeigh and Evans with their wives 1. The applicants 142. In their original applications MM. McVeigh and Evans complained that they had been prevented from joining
their wives when detained contrary to Art. 5 and had also been prevented from communicating with them, in breach
of their rights to respect for private and family life under Art. 8 of the Convention. To prevent them from
communicating with their wives when in unlawful custody (in terms of Art. 5) was also in breach of Art. 10. 143. Tbe applicants further submit that the restriction on their ability to communicate with their wives was not
justified under Art. 8 (2). In the first place they submit that it was not "in accordance with the law". The
Judges Rules and Administrative Directions referred to by the Government are not legal rules, they point out.
Page 40 They are not relevant except in case of a prosecution and also confer a discretion on the police to deny access
to a solicitor. They further submit that there is in any event an administrative practice of ignoring the relevant
provisions, and that that is sufficient to prevent their being in accordance with the law. They refer in this
respect to their suggestion that it is the common practice for persons detained under the legislation to be denied
access to their solicitors (see above para.118). They suggest that S.62 of the Criminal Law Act 1977 was passed
because of widespread feeling that the corresponding part of the Administrative Directions was not being complied
with.
144. The applicants submit that no information has been produced by the Government upon which even a subjective
decision could have been taken to the effect that a refusal to allow contact was necessary for any of the purposes
referred to in the Administrative Directions.
2. The respondent Government 145. As to the complaint that the applicants were prevented from joining their wives, the Government submit that
the detention was lawful, and insofar as its alleged unlawfulness is the basis of this complaint, the complaint
is ill-founded. Furthermore, the enforced separation was not of such duration and nature as to amount to an
interference with the right under Art. 8 (1). In any event the separation was justifiable under Art. 8 (2) since
lawful detention inevitably Interferes with private and family life (Application No. 8186/78, Decisions & Reports
13, p. 241). To hold otherwise would render examination under the legislation impossible in practice and hinder the
apprehension of terrorists.
146. As to the complaint concerning hindrance on the applicants' communication with their wives, the Government
submit that the facts alleged, even if true, would not be sufficient to amount to an interference with private
and family life under Art. 8 (1). In this respect they refer to a previous finding by the Commission to the effect
that a deportation involving "disturbance" to family life was not an interference under Art. 8 (1) (Application
No. 7729/76, Agee v. the United Kingdom, Decisions & Reports 7, p. 164). The interference must, they submit, be
"substantial" (Application No. 7729/76; Application No. 6870/75, Decisions & Reports 10, p. 37 at p. 65; Application
No. 6357/73, Decisions & Reports 1, p, 77 at p. 78).
Page 41 147. The Government submit alternatively that any interference was justified by Art. 8 (2). In this respect they
argue that notwithstanding that the Judges Rules and Administrative Directions are not in themselves rules of
law, the arrangements covered by them are nonetheless "in accordance with the law" for the purposes of Art, 8
(2). In the first place, these provisions are recognised by the courts as laying down standards which the courts
seek to ensure are upheld. Secondly a breach of the Rules or Directions can be countered by an effective legal
sanction in that failure to conform with them may render statements obtained inadmissible as evidence. Finally
a breach of them may result in disciplinary proceedings against the police officer concerned.
148. As to the other criteria contained in Art. 8 (2), the Government submit that the measures complained of were
necessary for the prevention of disorder or crime for the protection of the rights and freedoms of others and
in the interests of national security. The police had information suggesting the applicants were possibly involved
in matters connected with terrorism. In such circumstances there is a risk that if immediate intimation of the
detention is allowed to a detainee's family or solicitor, before the value of the information relied on can be
ascertained, other persons involved in terrorism may be warned of the action being taken and take steps to avoid
detection.
149. The Government submit that the provisos attaching to the Judges Rules and (now) to S.62 of the Criminal Law
Act 1977 allowing delay in Intimation of a person's arrest are essential in certain circumstances to avoid the
risk that evidence may be destroyed, that other offenders may escape or that other offences may be committed.
They submit that they are not dissimilar in concept and form to Art. 8 (2) itself and entirely consistent with
it. If any arrested person had an absolute right to contact a third person with information of the fact and place
of his arrest, investigation of crime would be seriously hindered. The decision must rest with the police conducting
the investigation. It involves a subjective appreciation of the facts and a margin of appreciation must be allowed.
Page 42 150. Reasons why access to a solicitor might he denied to a person detained under the legislation are set out
in the Shackleton Report, paras. 85-92. The Government draw attention in particular to passages concerning dangers
that information may be passed on and the dangers when part only of a terrorist group has been apprehended (para.
92). They also draw attention to the conclusions in paras. 147 and 148 of the Shackleton Report. In particular
para. 148 recommends that requests for notification of an arrest to the detainee's family should be fulfilled unless
there are specific reasons relating to the danger that accomplices will be alerted. They point out that it may take
some time before the police are in a position to satisfy themselves that there will be no such danger.
151. In light of these arguments the Government submit that the measures in question were thus not in breach of
the applicants' rights under Art, 8. They rely on the same arguments under Art. 10.
Page 43 IV. OPINION OF THE COMMISSION A. Points; at -Issue 152. The following are the principal points at issue under the Convention in the present case: - 1. Whether the arrest and detention of the applicants was compatible with Art. 5 (1) of the Convention, and in
particular whether it was justified under any of sub-paras, (b), (c) or (f) of that provision;
- 2. Whether the applicants were informed of the reasons for their arrest as required by Art. 5 (2); - 3. Whether there was any breach of Art. 5 (3) insofar as it guarantees a right to persons detained
under Art. 5 (1) (c) to be brought promptly before a judge or other judicial
officer;
- 4. Whether the applicants were deprived of their right, under Art. 5 (4), to take proceedings whereby the
lawfulness of their detention could be determined;
- 5. Whether there was any breach of Art. 5 (5) insofar as it guarantees an enforceable right to compensation; - 6. Whether the searching, questioning, fingerprinting and photographing of the applicants and the retention of
relevant records involved an interference with their right to respect for private life guaranteed by Art. 8 (1)
of the Convention and, if so, whether such interference was justified under Art. 8 (2);
- 7. Whether the fact that Mr. McVeigh and Mr. Evans were prevented from joining their wives was an interference
with their right to respect for private and family life under Art. 8 (1) and, if so, whether such interference was
justified under Art. 8 (2);
- 8. Whether the fact that Mr. McVeigh and Mr. Evans were prevented from communicating with their wives was: Page 44 a. an interference with their right to respect for private and family life under Art. 8 (1) and, if so, whether
such interference was justified under Art. 8 (2); or
b. an interference with their freedom of expression under Art. 10 (1) and, if so, whether such interference was
justified under Art. 10 (2).
B. The Background - and - General Approach 153. In the course of the proceedings both parties have made various submissions concerning the background to
the case, in particular the terrorist activity which has taken place in Great Britain, and its relevance to the
Convention issues. Before entering on its consideration of the specific issues outlined above the Commission
finds it appropriate to make certain general remarks concerning its approach to the case.
154. In the first place the Commission observes that its function is solely to consider whether the measures taken
in respect of the present applicants violated their rights under the Convention. .In accordance with the consistent
case-law of the Court and Commission, it is not the task of the Convention organs, in an application under Art.
25 of the Convention, to examine in abstracto whether domestic legislation is, in itself, in conformity with
the Convention. They must, as far as possible, confine their examination of such a case to the manner in which the
legislation In question has actually been applied to the individual applicant (see e.g. Marckx Case, Judgment of
Court, Series A, No. 31, p. 13, para. 27; Guzzardi Case, Judgment of 6 November 1980, para. 88).
155. In the second place the Commission notes that the measures at issue here were taken under legislation which
was enacted, and has been applied, for the purpose of combatting a campaign of terrorism. This legislation admittedly
involves temporary and abnormal restrictions within the field of Convention rights. There is no question but
that the right to personal liberty as normally applied within the United Kingdom has been to some extent circumscribed
by the legislation, and by
Page 45 the powers of arrest and detention applied to the present applicants in particular. The terrorist campaign in
Great Britain, which has led to the introduction and continuance of the legislation, has arisen out of, and is
in reality merely an extension of, the emergency situation in Northern Ireland. Various derogations from the
Convention have been made by the respondent Government under Art. 15 of the Convention in respect of that situation
(see e.g. Case of Ireland v. the United Kingdom, Series A, Vol. 25). Nonetheless, the Government have not sought
to invoke Art. 15 in respect of the situation in Great Britain. In respect of the present applications they have
based their case solely on the contention that the measures taken did not breach the applicants' rights under the
substantive provisions of the Convention.
156. in these circumstances the Commission considers it is not called upon to consider any question under Art.
15 and will confine itself to considering whether the measures taken against the applicants breached their rights
under Arts. 5, 8 or 10 of the Convention, as alleged by them.
157. Nonetheless, in examining that question the Commission must still take into account the general context of
the case, including the purpose of and general background to the legislation whose application is at issue. It
is well established in the case-law of the Court that the Convention must be interpreted and applied in the light
of present day conditions (e.g. Tyrer Case, Series A, No. 26, p. 15, para. 31; Marckx Case, Series A, No. 31,
p. 19, para. 41). The existence of organised terrorism is a feature of modern life whose emergence since the
Convention was drafted cannot be ignored any more than the changes in social conditions and moral opinion which have
taken place in the same period (c.f. Handyside Case, Judgment of Court, Series A, Vol. 24, p. 22, para. 48; Klass
Case, Judgment of Court, Series A, Vol. 28, p. 23, para. 48; Marckx Case, sup, cit.). It faces democratic Governments
with a problem of serious organised crime which they must cope with in order to preserve the fundamental rights
of their citizens. The measures they take must comply with the Convention and the Convention organs must always be
alert to the danger in this sphere adverted to by the Court, of "undermining or even destroying democracy
on the ground of defending it" (Klass Case,
Page 46 sup. cit. , para. 49). However as both the Commission and Court observed in that case, some compromise between
the requirements for defending democratic society and individual rights is inherent in the system of the Convention
(ibid., para. 59, Report of the Commission, para. 68). Particularly in assessing such matters as the "necessity"
for a given measure in a "democratic society" (c.f. para. (2) of Art. 8 etc.), specific requirements of the
situation facing the society in question must be taken into account.
158. Finally the Commission notes that, according to the Government, the present applicants were arrested and
detained because some suspicion arose that they were involved in terrorist activities. In this respect the Commission
emphasises that, whatever the belief of the authorities at the relevant time may have been, there is no evidence
before it and it has not even been alleged, that in fact the applicants had been so involved. The Commission
accordingly approaches the case on the basis that the applicants were, as stated by them, innocent holidaymakers.
C. Art. 5 (1) and (3) of the Convention - the deprivation of liberty 159. The Commission has first considered the applicants' complaint to the effect that their arrest and detention
were contrary to Art. 5 (1) and their alternative argument to the effect that If their detention was authorised
under Art. 5 (l)(c), there was a breach of Art. 5 (3).
160. Paras (1) and (3) of Art. 5 of the Convention, so far as relevant, are in the following terms:"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save inPage 47
the following cases and in accordance with a procedure prescribed by law:
(b) the lawful arrest or detention of a person for noncompliance with the lawful order of a court or in order
to secure the fulfilment of any obligation prescribed by law;161. The first question which arises is whether the applicants' arrest and detention was compatible with Art.(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be
authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary
to prevent his committing an offence or fleeing after having done so;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country
or of a person against whom action is being taken with a view to deportation or extradition.
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 or to release pending trial. Release may be conditioned by guarantees to appear
for trial."
5 (1). The Government have maintained that it was justified under one or other or each of sub-paras, (b), (c)
and (f) of this provision. The Commission does not find that any of sub-paras, (a), (d) or (e) are relevant and
accordingly confines itself to examining the applicants' detention In the light of the provisions invoked by
the Government.
162. In the Commission's opinion for a deprivation of liberty to be permissible under Art. 5 (1) it is necessary
that at any given time, throughout its duration, it should fall within one of the categories of arrest or detention
enumerated in sub-paras, (a) to (f) thereof. These form an exhaustive list of exceptions to a fundamental Convention
right, and as such fall to be narrowly interpreted (see e.g. Winterwerp Case, Judgment of Court, Series A, Vol. 33,
p. 16, para. 37).
162. If is true, as the Government have suggested,that they are not mutually exclusive. Thus it is quite conceivable
that a person may, at a given time, be deprived of his liberty in accordance with more than one of the sub-paragraphs,
or that the purpose or character of
Page 48 his detention may change so that what was initially justified under one sub-paragraph ceases to be so, but comes
to be justified under another one. This happens for instance when a person detained on remand under Art. 5 (1)
(c) is convicted and sentenced to imprisonment by a competent court, as envisaged in Art. 5 (1) (a). Nonetheless,
it is essential that at any given time the requirements of at least one sub-paragraph should be fully satisfied.
164. Before considering the applicants' detention under the individual sub-paragraphs, it Is appropriate to make
certain observations concerning its purpose or nature as a matter of fact and in domestic law.
165. Each of the applicants was detained "under the authority of an examining officer pending his examination
..." in accordance with Art. 10 (1) of the 1976 Order (see para. 37 above). This was the reason for the detention
given by the authorities in the forms of notification served on the applicants, where it was stated that they
would be detained "pending further examination". The purpose of such examination, as set out in Art. 5 of the 1976
Order (see para. 35 above) is in broad terms to determine (a) whether the person examined appears to be concerned
in terrorism, (b) whether he is subject to an exclusion order or (c) whether there are grounds for suspecting that
he has committed an offence under S.9 or S.ll of the Act. Those sections relate, respectively, to non-compliance
with exclusion orders and failure to disclose information concerning terrorism.
166. It is not necessary, as a matter of domestic law, that the examining officer should suspect or believe that
a person has been concerned in terrorism, or is subject to an exclusion order or has committed an offence before
he can lawfully effect an arrest under Art. 10 of the Order. On the other hand, the Government state that in
practice an examining officer will not make such an arrest unless his suspicions are aroused in respect of one
of these matters. On the information before it the Commission sees no reason to doubt this, particularly in view of
the selective way in which the powers are actually used (see para. 39 above). However, in law no suspicion is
required and the purpose of the detention is, in essence, to allow an "examination" or investigation to take place so
as to ascertain whether grounds for suspicion exist sufficient to justify either the bringing of a criminal charge
or the making of an exclusion order.
Page 49 167. The Commission further notes that under Art. 10 (1) of the Order a person may be detained "pending his examination
or pending consideration of the question whether to make an exclusion order against him". In the present case
the applicants were informed that they were being detained pending their "examination". No suggestion has been
made that the purpose of the detention was to consider whether to make exclusion orders against them, except
insofar as a purpose of "examination" is to consider whether there are grounds on which an application can be made
to the Secretary of State to make an exclusion order. However the sole legal basis for the detention put forward
in the present case is that it was detention pending "examination". Art. 5 (1) (b)
168. Under this sub-paragraph the Government submit that the applicants' arrest and detention was justified on
the ground that its purpose was to secure the fulfilment of certain obligations prescribed by law. These are
the obligation "to submit to further examination" prescribed in Art. 5 (2) of the 1976 Order and the duty to
furnish information required by the examining officer, which is prescribed in Art. 6 (1) of the Order (see para. 35
above).
169. The applicants submit, with reference to the Court's Judgment in the Engel Case in particular, (a) that the
obligations referred to by the Government are not "specific and concrete" and (b) that there had not been any
pre-existing failure on their part to fulfil any obligations incumbent on them. They submit that the detention
was not therefore justified under this provision.
170. The Commission first notes that there is no question of the applicants having failed to comply with the lawful
order of a court. The only question is whether there was "lawful arrest or detention ... in order to secure the
fulfilment of any obligation prescribed by law". The Commission will first consider the general interpretation
of this phrase.
171. As both parties have pointed out, the Court held in the Engel Case that these words "concern only cases where
the law permits the detention of a person to compel him to fulfil a specific and concrete obligation which he
has until then failed to satisfy" (Judgment, para. 69) . The equivalent passage in the (authentic) French text
of the Judgment refers to "les cas ou la loi autorise a detenir quelqu'un pour le forcer a executer une obligation
specifique et concrete qu'il a neglige
Page 50 jusqu'ici a remplir". Both the Commission and the Court have consistently rejected a wide interpretation of the
phrase such as would, for instance, authorise administrative internment for the purpose of compelling a citizen
to comply with general obligations arising from criminal law (see e.g. Lawless Case, Report of Commission, Series
B, p. 64; Engel Case, Judgment of Court, sup, cit.; Guzzardi Case, Report of Commission, para. 103, Judgment
of Court, para. 101).
172. Although the "obligation" must thus be "specific and concrete", Art. 5 (1) (b) does not require that it should
arise from a court order. The case of non-compliance with such an order is covered specifically in the first
leg of this provision. However detention is authorised only to "secure the fulfilment" of the obligation. It
follows that, at the very least, there must be an unfulfilled obligation incumbent on the person concerned and
the arrest and detention must be for the purpose of securing its fulfilment and not, for instance, punitive in
character. As soon as the relevant obligation has been fulfilled the basis for detention under this leg of Art. 5 (1)
(b) ceases to exist.
173. The applicants submit, however, that Art. 5 (1) (b) goes further than this and that the obligation in question
must be an antecedent one and some voluntary failure to comply with it must already have taken place before detention
to secure its fulfilment is justified. The Commission considers that there is much force in this argument, which
is supported by the above-quoted dicta of the Court in the Engel Case, and particularly the Court's use of the
words "neglige ... a remplir" and "failed to satisfy" in the passages referred to. This branch of Art. 5 (1) (b)
is primarily intended, in the Commission's opinion, to cover the case where the law permits detention as a coercive
measure to induce a person to perform a specific obligation which he has wilfully or negligently failed to perform
hitherto.
174. Nonetheless, the wording of Art. 5 (1) (b) does not expressly require that there should have been such deliberate
or negligent failure on the part of the detainee. It requires only that the purpose of the detention should be
to secure the fulfilment of the obligation. This does not expressly exclude the possibility of detention in the
absence of a prior breach of legal duty. However in the Commission's opinion the mere combination of an unfulfilled
Page 51 obligation (even if "specific and concrete"), coupled with the relevant purpose, is not enough -¢ for the purposes
of Art. 5 (1) (b). To hold that it was would open up a clear possibility of arbitrary detention, thus ignoring
the object and purpose of Art. 5 (1) and the importance of the right to liberty in a democratic society (cf.
Winterwerp Case, Series A, Vol. 33, p. 16, para. 37).
175. In the Commission's opinion there must accordingly be specific circumstances such as to warrant the use of
detention as a means of securing the fulfilment of an obligation before detention on this ground can be justified
under Art. 5 (1) (b). In this respect the Commission follows the Court's approach in the Winterwerp Case where
it held that the nature and degree of a mental disorder must be such as to warrant detention before a person
could be detained as being of "unsound mind" under Art. 5 (1) (f) (sup, cit., p. 18, para. 39). The mere existence
of a mental disorder was not itself enough. Similarly the mere fact that an unfulfilled obligation is incumbent
on a person is not enough to justify detention in order to secure its fulfilment. In the Commission's opinion
the person concerned must normally have had a prior opportunity to fulfil the "specific and concrete" obligation
incumbent on him and have failed, without proper excuse, to do so before it can be said in good faith that his
detention is "in order to secure the fulfilment" of the obligation. However, there may, in the Commission's opinion,
be other limited circumstances of a pressing nature which could warrant detention in order to secure fulfilment of
an obligation.
176. Finally, on the general question of interpretation, the Commission notes that the nature of the obligation
whose fulfilment is sought must itself be compatible with the Convention. The obligation in.question cannot-,
in particular, consist in substance merely of-, an obligation to submit- to detention.
177. As to the present case, the Commission has first examined the "obligations" arising from the relevant legislation.
It notes that Art. 5 (1) of thel976 Order empowers an examining officer to examine persons who have arrived in,
or are seeking to leave, Great Britain by ship or aircraft for certain limited purposes. Art. 5 (2) provides
that a person examined under Art. 5 (1) may be "required" to submit
Page 52 to "further examination". Art. 6 (1) imposes a duty on any person examined to furnish information to the examining
officer and Art. 6 (2) imposes further obligations to produce proof of identity etc. and to declare and produce
documents of specified descriptions. Art. 7 (2) empowers the examining officer to search any person he examines.
178. In the Commission's view these provisions create an overall obligation, arising in specified circumstances,
to submit to "examination". Where a person is examined he is subject to subsidiary obligations to provide information,
to submit to being searched etc.
179. The concept of "examination" is not expressly defined in the legislation. However, it clearly includes questioning
and searching of the examinee for the purpose of determining the matters set out in sub-paras, (a) - (c) of Art.
5 (1) of the Order. If the person examined is detained it may also include measures such as fingerprinting and
photography. In practice it also includes checking of police records and other external investigations. In essence
it is thus a process of investigation or a form of security check limited in scope inter alia by the purposes set
out in Art. 5 (1) of the Order.
180. Any person who has arrived in or is seeking to leave Great Britain by ship or aircraft is liable to be examined
under Art. 5. In practice the powers of examination are operated selectively (see e.g. the Shackleton Report,
Chapter 7). It appears that many passengers entering Great Britain from Ireland are not "examined" at all and
are not even required to complete landing cards (cf. Art;. 8 of the Order). It further appears that the majority
of those who are subjected to an initial "examination" are not detained. Arrest and detention is thus not an
inherent feature of "examination" as such. It appears that the general practice, as followed In the present case,
is that a person is only arrested or detained where, following an initial examination, the examining officer
considers that a more prolonged examination is necessary for the purpose of determining the matters set out in
Art. 5 (1) of the Order than could reasonably be carried out at - the - quayside. Arrest and detention are effected
to enable that more prolonged examination be carried out.
Page 53 181. The Commission finds that the purpose of the detention "pending ... examination" of the present applicants
was essentially to secure their compliance with the overall obligation to submit to examination. It was not based
on any specific failure on their part to fulfil the legal obligations incumbent on them in connection with their
initial examination. The basis of the arrest was not, for instance, any refusal or failure to answer questions
or produce evidence of their identity. The examining officer may_have suspected that they had not answered
his initial questions correctly, but he was not in a position to say with any certainty that this was the case.
The purpose of their arrest was not therefore to compel them to rectify any specific prior breach of legal duty.
It was to compel them to submit to the further examination which the examining officer considered necessary.
182. In these circumstances the Commission must first consider whether the obligation was sufficiently "concrete
and specific" to be capable in principle of falling within the scope of Art. 5 (1) (b), and if so whether there
were circumstances sufficient to warrant the applicants' detention in order to secure its fulfilment.
183. The applicants have submitted that in reality the only substantive obligation is to be detained for purposes
of interrogation and that there is merely a general duty to co-operate in the investigation process and not a
specificand concrete obligation. The Government have suggested that the obligations they have referrred to are
specific and concrete and comparable to other obligations to furnish information, such as the obligation to make
an affidavit of property in Application No. 5025/71 (Yearbook XIV, p. 692).
184. In the Commission's opinion the obligation to submit to examination is, as a matter of both form and substance,
distinct from the obligation to submit to detention. As it has already noted, detention is not an inherent feature
of examination (para.176 above).
185. The obligation to submit to examination incumbent on the applicants was not a general obligation arising
under criminal or disciplinary law comparable to those considered by the Commission and Court in other cases
(see e.g. para. 103 of the Commission's Report in the Guzzardi Case and other cases referred to in para.l71above).
It arose only in circumstances specified by law, in this case on the applicants' entry Into Great Britain, and
on the requirement of an examining officer.
Page 54 It can to some extent be seen as comparable In character to other obligations to furnish information in specific
circumstances, such as obligations to produce evidence of identity, to make customs declarations or tax returns,
or the obligation to furnish an affidavit referred to by the Government. On the other hand in the present case
the information to be furnished is not precisely specified in a comparable manner to the above cases. Furthermore
the Commission has already noted that "examination"involves a process of Investigation going beyond questioning
and eliciting information from the person examined (para.179 above). It is clear that an important part of the
process consists in the checking of records and the verification of information given by the person examined. There
is therefore also a certain analogy between the detention power at issue in the present case and the powers of
initial arrest and detention for interrogation and investigation purposes which were at issue in the case of
Ireland v. the United Kingdom (see Report of the Commission, p. 88) and to which the applicants have referred.
However, the powers at issue in the present case are more closely circumscribed, inter alia as to their purpose,
and neither analogy is thus precise.
186. The obligation to submit to examination does not amount to a general obligation to submit to questioning
or interrogation on any occasion, or for any purpose. In this respect it can be contrasted with the power of
arrest for interrogation under Regulation 10 of the Special Powers Regulations considered in the Irish inter-State
Case (supâ– cit.). It is in essence an obligation to submit to a security check (if so required) on entering or
leaving Great Britain. The purpose of the check is limited to determining the matters set out in Art. 5 of the 1976 Order. The scope of the obligation is furthermore effectively limited by the limitation set on the duration of detention permitted under Art. 10 of the 1976 Order. At the relevant time the maximum period permitted on the authority of an examining officer was seven days. Whilst this could be extended by the Secretary of State, his power to do so was not exercised in the present case, which in any event concerns a period of some 45 hours only. The Commission is only called upon to express an opinion in relation to the actual period at issue here.
187. Haying regard to the submissions made..in connection with Art. 5 (1) (c) of the Convention, and the general
context of the examination process, the Commission has also considered whether the
Page 55 measures in question here were not in reality a preparatory stage of criminal proceedings and "situated in a punitive
context", as the Court found to be the case in connection with the measures at issue in the Engel Case (para.
69 of the Judgment, sup. cit.). However, for the reasons which it gives below in connection with the issues under
Art. 5 (1) (c) and (f), it has not been established that there was any sufficiently firm suspicion or intention
to institute criminal proceedings for it to be said that the arrests fell within the criminal sphere.
188. In all the circumstances, the Commission considers that the obligation imposed on the present applicants
to submit to examination was a specific and concrete obligation and that the United Kingdom authorities were
therefore in principle entitled under Art. 5 (1) (b) to resort to detention to secure its fulfilment. In reaching
this conclusion the Commission has particularly taken into account the fact that the obligation in question arises
only in limited circumstances, namely in the context of passage over a clear geographical or political boundary. Furthermore the purpose of the examination is limited and directed towards an end of evident public importance in the context of a serious and continuing threat from organised terrorism.
189. However, as the Commission has already observed, the mere existence of an unfulfilled obligation (albeit
"specific and concrete") is not of itself enough to justify arrest or detention under Art. 5 (1) (b). There must
be specific circumstances which warrant the use of detention as a means of securing the fulfilment of the obligation.
The Commission must therefore still consider whether such circumstances were present in this case.
190. The Commission has already observed that the applicants' detention was not based on any prior voluntary failure
to fulfil obligations incumbent on them such as a refusal to co-operate in the initial examination. It reiterates
that in the absence of such circumstances detention cannot normally be justified under Art. 5 (1) (b). In general
only a person's refusal or neglect to comply with an obligation can justify his detention in order to secure
its fulfilment. However as the Commission has indicated above, the possibility that there may be other circumstances justifying detention under this provision is not excluded by the wording of Art. 5 (1) (b) and in its view there may be other limited circumstances of a pressing nature which could justify such detention.
Page 56 191. In considering whether such circumstances exist, account must be taken, in the Commission's opinion, of the
nature of the obligation. It is necessary to consider whether its fulfilment is a matter of immediate necessity
and whether the circumstances are such that no other means of securing fulfilment is reasonably practicable.
A balance must be drawn between the importance in a democratic society of securing the immediate fulfilment of
the obligation in question, and the importance of the right to liberty. The duration of the period of detention is also a relevant factor in drawing such a balance.
192. The Commission has already noted that the obligation imposed on the applicants in the present case was, in
essence, an obligation to submit to a security check on entering Great Britain, the scope of the check being
limited (broadly speaking) to the 'prevention of terrorism. The importance in present day conditions of controlling
the international movement of terrorists has been widely recognised in Western Europe, in'particular by the Parliamentary
Assembly of the Council of Europe (1). In the particular context of the United Kingdom there is also evident importance in controlling and detecting the movement of terrorists not only between the United Kingdom and the Republic of Ireland but also between Great Britain and Ireland as a whole, including Northern Ireland. The necessary checks must obviously be carried out as the person concerned enters or leaves the territory in question and there is a legitimate need to obtain immediate fulfilment of the obligation to submit to such checks.
193. The Commission'further notes that, from the information before it, it appears that the powers of examination
are, so far as reasonably practicable, exercised without resort to detention, the majority of persons examined
being subjected only to a relatively short examination at the port of entry'or departure. It is true that where
the authorities consider a prolonged examination to be necessary, detention is apparently used invariably. There
is no provision for release on bail pending examination, in contrast to the position under the normal immigration legislation in the United Kingdom (2). However, release on bail scarcely seems compatible with the effective operation of the limited security check at issue in the present case.
(1) See Report of Political Affairs .Committee of 5 December 1978, Doc. 4258, para. 17; Recommendation 852 (1979),Page 57 194. It" takes into account furthermore the practice whereby an examining officer does not exercise the powers
para. 15 (ix).
(2) Immigration Act 1971, Schedule 2, Art. 22 (1).
of arrest and detention unless he is left in some suspicion as to the matters specified in Art. 5 (1) (a) - (c)
of the Order. In the context of such a security check it is obvious that a person engaged in terrorist activity
is unlikely openly to refuse to reply to questions or otherwise fail to comply with the obligations incumbent
on him. However he may well give false or incomplete information. Accordingly in order effectively to secure the fulfilment of the obligation in question it may therefore be necessary to resort to detention even where it cannot be said with certainty that there has already been any culpable failure on the part of the detainee to fulfil the obligations incumbent on him.
195. The Commission finds no indication that the detention- of the present applicants was arbitrary or effected
for any improper purpose. It accepts that it was based on the examining officer's appreciation on the basis of
the information available to him, that there was a necessity to examine them in greater depth than was practicable
at the port. In the exceptional context of the case it concludes that there were thus sufficient circumstances
to warrant their arrest and detention for some 45 hours for the purpose of securing fulfilment of the obligation incumbent- on them -¢to submit to examination.
196. It is not in dispute that the arrest and detention were in accordance with domestic law and the Commission
finds nothing to suggest that it was not both "in accordance with a procedure prescribed by law" and "lawful"
as these concepts in Art. 5 (1) have been interpreted by the Court (see e.g. Winterwerp Case, sup, cit., paras.
39 and 45). It concludes that their arrest and detention were justified under Art. 5 (1) (b) in order to secure
the fulfilment of an'obligation prescribed by law. Art. 5 (1) (c) and (f)
197. The Commission has also considered whether the arrest and detention were justified under Art. 5 (1) (c) or
(f). However, in its view the purpose of the detention was essentially to secure the applicants' fulfilment of
the obligation to submit to examination. The examination might or might not have revealed grounds for criminal
proceedings or exclusion proceedings, but in the event did not do so.
Page 58 198. As to Art. 5 (1) (c) the Commission also notes that neither suspicion of an offence nor any belief that a
person is about to commit an offence is a necessary pre-condition for a lawful arrest under the 1976 Order, Whilst
the applicants' arrest and detention was apparently prompted by the existence of some form of suspicion against
them, the Commission does not consider in all the circumstances that it is established that there was any sufficiently
precise suspicion or belief to satisfy the requirements of Art. 5 (1) (c). Furthermore, the Commission does not consider that the existence of any sufficiently firm intention to bring the applicants before a "competent legal authority" on the basis of such a reasonable suspicion or belief has been established.
199. As to Art. 5 (1) (f) the Commission notes that under the legislation only the Secretary of State has power
to make an exclusion order. No application had been made to him by the police for such an order and the appliants
were detained pending their examination and not pending consideration of the question whether exclusion orders
should be made against them. Nor were they detained pending removal. Accordingly even if any of the various forms
of "exclusion" could be considered as equivalent to "deportation" there was, in the Commission's opinion, no sufficiently firm intention to operate the relevant powers against the applicants for it to be said that the action taken against the applicants was taken with a view to their deportation. Furthermore, even though one purpose of examination under the Order is to establish whether the person examined is already subject to an exclusion order, it has not been suggested that in- the present case the applicants' -arrest and detention was based on any belief that they were subject to exclusion orders. It is not therefore shown that its purpose was to prevent them making an "unauthorised entry".
200. In short, the Commission considers that the applicants were detained for a form of security check or screening
process. As the applicants have put it, the measures were one step back from criminal or deportation proceedings.
The authorities' intentions had not, in the Commission's view, developed sufficiently to bring their detention
within the scope of sub-para, (c) or (f) of Art. 5 (1). Art. 5 (3)
201. Since it thus considers that the detention did not fall within the scope of Art. 5 (1) (c), no question arises
under Art. 5 (3). Conclusion
202. The Commission concludes by thirteen votes against one that the facts of the case do not disclose any breach
of Art. 5 (1) or Art. 5 (3) of the Convention.
Page 59 D. Article 5 (2) - the reasons given for the arrests 203. Art. 5 (2) of the Convention is in the following terms: "2. 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."
204. The applicants submit that the reasons which they were given for their arrests were not sufficient to satisfy
the requirements of this provision since they were not informed of the grounds for suspicion against them. The
Government maintain that the reasons given were sufficient.
205. The Commission notes that at the moment of the arrests the applicants were informed, in general terms, of
the legal basis for their arrest and were told that they were to be fingerprinted, photographed, questioned and
"otherwise checked up on", (see para. 53 above). In substance this was a description of "examination" under the
1976 Order. When they arrived at the Bridewell Police Station they were given in written form precise details
of the legal basis for their detention and of its purpose, "pending further examination", (para. 55 above). This written information was given th em within an hour, at the most, of the actual arrests.
206. The Commission is of the opinion that this information was given sufficiently "promptly" for the purposes
of Art. 5 (2). This has not been disputed. The only question at issue is its sufficiency.
207. The Government have suggested that the reasons for the arrests would also have become apparent to the applicants
from the questions they were asked. Having regard to the information available as to the applicants' interrogation
on the following day (paras. 58-60 above), the Commission does not consider it established that any further information
of substance became available to them at that stage. It will therefore consider whether the information given
initially was sufficient in itself.
208. The Commission recalls that it has recently stated that the purpose of Art. 5 (2) is to inform a detainee
adequately of the reason for his arrest "so that he may judge the lawfulness of the measure and take steps to
challenge it if he sees fit, thus availing himself of the right guaranteed by Art. 5 (4)" (Application No 6998/75,
X v. the United Kingdom, Report of the Commission adopted on 16 July 1980).
Page 60 In the case of Caprino v. the United Kingdom, to which the Government have referred, the Commission found that
it was sufficient that the applicant, detained under Art. 5 (1)(f), was informed of the legal basis for his detention
as well as "the essential facts relevant to the lawfulness of his detention",(Decision of 3 March 1978).
209. There is no dispute in the present case that the applicants were sufficiently informed of the legal basis
for their detention. The sole question is whether they should have been informed of the grounds for suspicion
against them. The Commission has already observed in its decision on admissibility that such information does
not appear relevant to the lawfulness of their detention in domestic law, since the existence of "suspicion"
is not a prerequisite for a lawful arrest under the 1976 Order. Equally the existence of "suspicion" is not a substantive requirement of Art. 5 (1)(b) of the Convention. Only Art. 5 (1)(c) requires it and in the Commission's opinion the applicants' detention was not covered by that provision.
210. In the present case the applicants were informed of the nature of the obligation incumbent on them. In the
written notifications served on them they were expressly required to submit to "further examination". Furthermore,
as a matter of substance, the Commission considers that the information given them was quite sufficient in the
circumstances to make it clear that this consisted of a form of security check to establish whether they were
involved in terrorism.
211. The applicants were, in the Commission's opinion, thus sufficiently informed of the legal basis for the detention
in domestic law and of the substantive reasons for their detention under Art. 5 (1)(b) of the Convention. They
were given the essential facts relevant to the lawfulness of their detention under both domestic law and the
Convention. That is sufficient for the purposes of Art. 5 (2).
Conclusion 212. The Commission concludes by thirteen votes with one abstention that there has not been a breach of Art. 5 (2)
of the Convention in the present case.
Page 61 E. Art. 5 (4) of the Convention - review of the lawfulness of detention 213. Para. (4) of Art. 5 of the Convention is in the following terms: "4. 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."
214. In principle it was open to the applicants in the present case to apply for habeas corpus. If successful,
such an application would have resulted in their release. However they maintain that there was an administrative
practice whereby they were prevented from obtaining access to this remedy and that in any event it would not
have provided an effective review of "lawfulness" in the case of detention under the 1976 Act.
215. The Commission finds that it is not established that the present applicants were prevented from applying
for habeas corpus during their detention. Whilst, as has-been found (see para. 70.above), two of them were prevented
from contacting their wives, it does not appear from their statements that any of them asked to contact a lawyer
or otherwise intimated that they wished to take steps to challenge the lawfulness of their detention. Accordingly
the suggestion that they were prevented, by an administrative practice or otherwise, from obtaining access to this remedy is not substantiated.
216. The applicants have also submitted that such proceedings would not have provided an effective review of the
lawfulness of their detention. The Commission recalls that it has held that Art. 5 (4) requires that there should
be a judicial review sufficient in scope to cover both the formal legality of the detention in domestic law and
the substantive justification for the detention under Art. 5 (1) of the Convention (see e.g. Application No. 6998/75,
X. v. the United Kingdom, Report of the Commission adopted on 16 July 1980, paras. 125-133). However in the Commission's opinion, the nature of the review necessary must depend on the nature of the detention, just as the nature of the procedural guarantees necessary to satisfy Art. 5 (4) may also vary according to the type of detention (cf. De Wilde, Poms and Versyp Cases, Series A, No. 12, paras, 76 and 78; Winterwerp Case, Series A, No. 33, para. 57),
Page 62 217. The Commission finds no reason to suppose that the review of lawfulness available in habeas corpus proceedings
would as a matter of principle have been insufficient in the context of the present case, which, as the Commission
has found, concerns detention falling within the scope of Art. 5 (1) (b) of the Convention. In particular, it
finds no reason to doubt that the courts could have examined whether the applicants had been lawfully required
to submit to examination and, as a matter of substance, whether they were detained for the purpose of securing fulfilment of that obligation, that being the substantive justification for the detention under Art. 5 (1) (b). It is true that the extent to which the courts could have reviewed the background to the applicants' arrests, including such matters as the justification for any suspicion against them, may have been limited. However such matters are not. relevant to- the- lawfulness of- their detention under the relevant domestic law or under Art. 5 (1) (b) of the Convention.
218. Conclusion The Commission concludes by twelve votes with two abstentions that there has not been a breach of Art. 5 (4) of
the Convention in the present case.
F. Art. 5 (5) of the Convention - the existence of an enforceable right to compensation 219. Para. (5)of Art. 5 of the Convention is in the following terms: "5. Everyone who has been the victim of arrest or detention in contravention of this Article shall have an enforceable
right to compensation."
220. The applicants maintain that their arrest and detention was in breach of paras. (1) - (4) of Art. 5 and that,
because they had no enforceable right to compensation in respect of their detention under the domestic legal
system, there was a breach of Art. 5 (5). There is no question in the present case of any domestic court having
found the applicants' arrest or detention to have been contrary to either domestic law or the Convention (cf.
Application No. 6821/74, Huber ' v. Austria, 6 Decisions and Reports, p. 65). The Commission has expressed its opinion that there has been no violation of Art. 5 (1) -(4) and it follows from that conclusion that the applicants have no right to compensation under Art. 5 (5), not having been victims of arrest or detention in contravention of Art. 5.
Page 63 221. Conclusion The Commission concludes by thirteen votes with one abstention that there has not been a breach of Art. 5 (5)
in the present case.
G; Art. 8 of the Convention - searching, questioning, fingerprinting and photography during the applicants' detention
and subsequent retention of relevant records
222. Art. 8 of the Convention Is in the following terms:"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 accordance223. The applicants maintain that certain measures taken during their detention were in violation of their right
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."
to respect for private life, as guaranteed by the above provision. They complain in this respect of having been
searched, questioned about their "private lives", fingerprinted and photographed. They also complain of the retention
by the authorities, following their release, of records of their examination, including in particular their fingerprints
and photographs. They maintain that the retention of such records is also in breach of their right to respect for private life under Art. 8. The respondent Government maintain, with regard to both the measures taken during the applicants' detention and the subsequent retention of records, firstly that there has been no interference with the applicants' right to respect for private life under Art. 8 (1) and secondly that the authorities' actions were in any event justified under Art. 8 (2).
224. The Commission has first considered whether the measures taken during the applicants' detention were themselves
compatible with Art. 8. It recalls that it has previously recognised that measures such as the search of a person's
motor car (1), or the temporary
(1) Application No. 5488/72, X. v. Belgium, Collectionof Decisions 45, p. 20.Page 64 confiscation of personal papers (1), may involve interference with the right to respect for private life. In the
light of this case-law it accepts that some at least of the measures at issue in the present case being similar
in character, involved interference with the applicants' right to respect for private life. However the measures
at issue all formed an integral part of the applicants' "examination" under the 1976 Order. The Commission finds
nothing to indicate that they exceeded what was necessary for the purposes of that examination, namely (in substance) to identify the applicants and ascertain whether or not they were involved in terrorist activities. In particular the applicants' account of the questions put to them (see paras. 58-60 above) does not disclose that the questioning went beyond what was proper in the circumstances. It appears on the contrary to have been somewhat cursory. The measures were authorised by the 1976 legislation. In all the circumstances the Commission is satisfied that, whilst they may have involved interference with the rights guaranteed by Art. 8 (1), they were justified under Art. 8 as being "in accordance with the law and ... necessary in a democratic society ... for the prevention of ... crime".
225. Conclusion The Commission concludes by a unanimous vote that the searching, questioning, fingerprinting and photography of
the applicants during their detention were not in breach of Art. 8 of the Convention.
226. However the question remains whether the retention by the police of records of the applicants' examination
after their release was in breach of Art. 8. In this context the applicants have complained primarily of the
retention of their fingerprints and photographs. However they have also specified in the course of their submissions,
both at the hearing on admissibility and merits and in their written observations on the merits, that they are
also concerned that information obtained from them during their examination is retained in police records. The respondent Government have not denied this. In these circumstances the Commission considers that it is called upon to consider whether the retention in police records of the applicants' fingerprints and photograph and information given by them during their examination is compatible with Art. 8. However in the context of the present case it is not called upon to make any general examination of the extent of information held in police records or the use which is made of it. Nor does the present case concern records obtained by the use of secret surveillance measures such as those at issue in the Klass case, to which the applicants have referred (cf, also Application No. 8290/78, A. and others v. the Federal Republic of Germany, 19 Decisions and Reports, p. 176). The Commission is here concerned solely
(1) Application No. 6794/74, X. v. the Federal Republic of Germany, 3 Decisions and Reports, p. 104.Page 65 with the retention of the information which the applicants themselves provided during their examination, together
with fingerprints and photographs.
227. The Commission considers that it is open to question whether the retention of fingerprints, photographs
and records of such information amounts to an interference with the applicants' right to respect for private
life under Art. 8 (1) of the Convention. However it finds it unnecessary to decide this matter in the light of
the conclusion which it has reached under Art. 8 (2).
228. As to Art. 8 (2), the first question which arises is whether the retention of such records is "in accordance
with the law". The applicants submit that it is not because the 1976 Act and Order merely authorise the taking
of fingerprints, photographs etc. and there is no legal provision authorising their subsequent retention or regulating
their subsequent use. They do not, however, dispute that, having lawfully obtained the relevant material, the
authorities are entitled under domestic law to retain it. In the Commission's opinion the 1976 Act and Order, which lay down the specific circumstances in which fingerprints, photographs and other information may be obtained, provide a sufficient legal basis for the subsequent retention of such material, which is therefore "in accordance with the law" for the purpose of Art. 8 (2).
229. The next question to be considered is whether the retention of such records is "necessary in a democratic
society" in the interests of "national security or public safety" or for the "prevention of disorder or crime".
In this respect the Commission recalls that in Application No. 1307/61 (X. v. the Federal Republication of Germany,
Collection of Decisions 9, p. 53), it held that "the keeping of records, including documents, photographs and
fingerprints, relating to criminal cases of the past is necessary in a modern democratic society for the prevention of crime and is therefore in the interests of public safety". It found that the retention of such records in that case was justified under Art. 8 (2). It notes that the applicant in that case had been tried on a criminal charge in connection with which the relevant records had been compiled, although ultimately his conviction was quashed on appeal.
230. In the present case no criminal proceedings were brought against the applicants and, furthermore, it is not
established that there was any "reasonable suspicion" against them in relation to any specific offence (see para. 198
above). However, the Commission
Page 66 accepts that the specific purpose of retaining the records in question is the prevention of terrorism. In particular
it notes the use which is made of fingerprints and photographs for identification purposes and the fact that
where the arrestee does not have a criminal conviction: such records are separated from those kept under the
normal system of criminal records and reserved exclusively for use in the campaign against terrorism (see paras. 48
and 49 above). The Commission is aware of the critical importance which intelligence material and forensic evidence may have in the detection of those responsible for terrorist offences (see e.g. Shackleton Report, paras. 71-73). Bearing in mind also the serious threat to public safety posed by organised terrorism in the United Kingdom, the Commission considers that the retention for the time being of records such as those at issue in the present case can properly be considered necessary in the interests of public safety and for the prevention of crime.
231. In reaching this conclusion the Commission recognises that this involves the retention of records in respect
of some persons against whom no suspicion exists following their release. It approaches the present case on the
basis that that is the case in respect of the applicants (cf. para. 158 above). However, taking into account
the nature of the records at issue, it must balance what, in its view, is at most a relatively slight interference
with the applicants' right to respect for their private life against the pressing necessity to combat terrorist activity.
Conclusion 232. The Commission concludes by eleven votes against one with two abstentions that the retention after the applicants'
release of their fingerprints, photographs and information obtained during their examination was not in breach
of Art. 8 of the Convention.
H. Arts. 8 and 10 of the Convention - contact of MM. McVeigh and Evans with their wives 233. In their applications MM. McVeigh and Evans maintained that their right to respect for family life was breached
since they were prevented from joining their wives during their detention. However their separation from their
wives was the direct and inevitable result of the fact that they were detained. The Commission has already held
that the detention was as such compatible with the Convention and in these circumstances it does not consider
that the applicants' separation from their wives can be considered as an interfer ence with their right to respect for family life under Art. 8 (1).
Page 67 Conclusion 234. The Commission concludes by a unanimous vote that the fact that the applicants McVeigh and Evans were prevented
from joining their wives',did not involve any breach of their rights under Art. 8 of the Convention.
235. MM. McVeigh and Evans also maintain that the refusal to allow them to contact their wives was a breach of
their.right to respect for family life as guaranteed by Art. 8 of the Convention. The Commission .has'already
found that such refusal -did.occur (para. 70 above). The crespondent Government maintain that even if that-was
the case, it did not amount to an- interference with-the applicants'1 rights under Art. 8 (1) and was in any
event justified under Art. 8 (2).
236. The Commission notes as a preliminary matter that Mr. McVeigh's complaint concerns attempts to contact his
"common-law wife". It has not been disputed that his relationship with her was such as to fall within the field
of "family life" covered by Art. 8 (1). In any event the applicants' attempts to contact their wives also fell,
in the Commission's opinion, within the field of "private life" and "correspondence" covered by Art. 8 (1) (see
Klass Case, Series A, Vol. 28, p. 21, para. 41).
237. The Commission has next considered whether the authorities' action amounted in the circumstances to an "interference"
with the applicants' exercise of their rights under Art. 8 (1). It is true that the applicants' detention, and
the denial of contact with their wives, lasted only for a relatively short time. However at the time when a person
is arrested his ability to communicate rapidly with his family may be of great importance. The unexplained disappearance
of a family member even for a short period of time may provoke great anxiety. The situation of the present applicants cannot therefore be compared to that of the applicant in Application No. 6870/75 (10 Decisions and Reports, at p. 65), who was already detained and had various means of communicating with his family at his disposal. The present applicants had no means at all of communicating their whereabouts to their wives and in the Commission's opinion the authorities' failure to allow them the means of doing so amounted, .in the circumstances, to an interference with their exercise of the right to respect for private and family life and correspondence guaranteed by Art. 8 (1).
Page 68 238. The Commission has next considered whether that interference was justified under Art. 8 (2). The respondent
Government submit that, if there was an interference, it was justified as being "in accordance with law" and
necessary in a democratic society for the prevention of disorder or crime, for the protection of the rights and
freedoms of others and in the interests of national security. Essentially they submit that if a terrorist suspect
is allowed immediately to intimate the fact of his arrest to outsiders, there is or may be a risk that accomplices will be alerted and may escape, destroy or remove evidence,or commit offences.
239. The Commission recognises that in certain circumstances the existence of such risks may justify refusing
for a time to allow an arrestee to contact the outside world. - However this is not always the case and the respondent
Government themselves do not appear to suggest that it is. As a general matter the Commission agrees with the
following statement in para. 147 of the Shackleton Report:
"The effect on the family of the detained person must not be overlooked. Unless there are specific reasons, relating
to the danger that accomplices will be alerted, the police should fulfil any request from the person detained
that his family be notified of his arrest and should be prepared to answer any reasonable request for information
about him from his close relatives throughout the period."
Unless there are such reasons it cannot, in the Commission's opinion, be considered "necessary" under Art. 8 (2)
to deny an arrestee the possibility of notifying his family of his whereabouts. Whilst the Government have referred
in general terms to the nature of the risks which may arise from allowing such notification, there is no evidence
before the Commission to suggest that there were specific reasons why in the present case the wives of the two
applicants could not be notified of their whereabouts. In the Commission's opinion the interference with the applicants' rights under Art. 8 (1) is not therefore shown to have been "necessary" for any of the purposes mentioned in Art. 8 (2).
Conclusion 240. The Commission concludes by twelve votes against two that the applicants McVeigh and Evans were victims of
a breach of Art. 8 of the Convention through having been denied the possiblity of contacting their wives throughout
the period of their detention.
Page 69 241. Having reached the above conclusion under Art. 8 of the Convention the Commission considers it unnecessary
to decide whether the same facts also involved a violation of Art. 10.
Secretary to the Commission Acting President of the Commission (H.C. KRUGER) (C.A. N0RGAARD) Page 70 Dissenting Opinion by Mr. Trechsel on the complaints under Art. 5 of the Convention To my regret, I am not able to agree with the finding of the majority on the compatibility of the detention complained
of in the present case with Art. 5 (1) (b). Nor do I consider that it fell within any provision of Art. 5 (1)
of the Convention.
Art. 5 (1) (b) permits "lawful arrest or detention" in order to "secure the fulfilment of any obligation prescribed
by law". In the Engel Case, the Court held that these words only cover "cases where the law permits the detention
of a person to compel him to fulfil a specific and concrete obligation which he has until then failed to satisfy" (Judgment,
para. 69).
I quite agree with the finding of the majority according to which "the person concerned must normally have had
a prior opportunity to fulfil the 'specific and concrete' obligation incumbent on him and have failed, without
proper excuse, to do so before it can be said in good faith that his detention is 'in order to secure the fulfilment'
of the obligation", (para. 175). However, I find it dangerous to extend the permission to arrest and detain "to
other limited circumstances of a pressing nature" (loc. cit.).
In the present case,the obligation at issue was that to submit to "further examination". In the view of the majority,
this "clearly includes questioning and searching" (para. 179). With regard to searching, it is difficult to conceive
how it could necessitate deprivation of liberty in excess of, at most, a few hours. As far as questioning is
concerned, however, it is very doubtful whether this could involve a "specific and concrete" obligation to disclose
information. Of necessity, the information to be sought by questioning cannot be specified in advance. The course of the interview will depend on the answers obtained and the knowledge of the person concerned, both of which are unknown beforehand, in the particular case of the applicants, regard must further be had to the fact that they were identified as employees of the Post Office, living together with family members at normal addresses. No reasons have been submitted to suggest that it would not have been possible to request further information from them at a later stage, i.e. after letting them return to their homes.
Detention for the purpose of questioning raises an additional problem in that the persons concerned might have
knowledge of facts the disclosure of which would involve self-incrimination or would at least be likely to raise
suspicion against them. They would then be in a very serious conflict having to decide on one of the following
three courses of action, each of them harmful or dangerous for themselves: withhold information and accept detention;
disclose information truthfully and risk immediate prosecution; give false information and risk prosecution at a later stage.
-ii- Page 71 This aspect establishes indeed the general proximity of arrest and detention such as complained of in the present
case to that envisaged in Art. 5 (1) (c). However, in the applicants' cases, no "reasonable suspicion" has been
found and the legislation did not require the existence of any suspicion at all. It appears thus that the deprivation
of liberty imposed upon them in fact amounted to what is sometimes referred to as a "fishing expedition": measures
of coercion which are normally admissible only on condition that there exists reasonable suspicion against the person concerned are applied not in order to ascertain whether such suspicion is well-founded, but in order to find out whether there are any grounds for suspicion at all.
However, this is a procedure which the Convention clearly wanted to outlaw, as the reference to "reasonable suspicion"
/ "raisons plausibles de soup^onner" Indicates. The condition thus set ought not to be frustrated by what I consider
to be an excessively broad construction of Art. 5 (1) (b) .
I therefore conclude that, in the present case, there has been a violation of Art. 5 (1) of the Convention. As the case was discussed in the Commission on the basis of the majority opinion under Art. 5 (1), 1 have abstained
in the vote on other questions related to the legality of the detention (i.e. the questions raised under Arts. 5 (2), (4)
and (5)).
Page 72 Dissenting Opinion of Mr. Klecker relating to the complaint under Art. 8 of the Convention concerning the retention
of records of the examination after releaseof the applicants
The majority of the, members of the Commission have found that the searching, questioning, fingerprinting and
photography of the applicants and the subsequent retention of relevant records was not in breach of Art. 8 of
the Convention.
In my opinion, the five elements mentioned above call for distinct consideration. Searching and questioning are security control measures. Fingerprinting and photography are used for identification
purposes. The retention of fingerprints, photographs and other records is a different thing. Once the security
and identification measures have been taken and, as in the case here, no substantiation of suspicion has resulted
and the persons initially suspected have been released, the question arises how retention of records can be justified.
While I am not contesting the majority's opinion that there was a sufficient legal basis for the retention of
the material, I have no concrete elements at hand on the basis of which I could say that it was necessary to
retain the material in question.
The majority of the Commission find that the retention of the records could be considered necessary in the interests
of public safety and for the prevention of crime. They say that "in reaching this conclusion the Commission recognises
that this involves the retention of records in respect of some persons against whom no suspicion exists following
their release. It approaches the present case on the basis that that is the case in respect of the applicants".
The majority refers to para. 158 of the Report where it is said that the Commission "approaches the case on the basis that the applicants were, as stated by them, innocent holidaymakers".
Now, in the course of the examination of the case, no element appeared which could show that the applicants, at
the time of their release, were not completely cleared of any suspicion. Furthermore, I should recall that no
substantial safeguards in relation to police records seem to exist in the United Kingdom, which is why the Committee
on Data Protection has recommended that such safeguards be imposed. In the absence of adequate safeguards and
the applicants being cleared of suspicion, the retention of the material obtained as a result of detention cannot be justified under Art. 8 (2).
Page 73 Separate Opinion of MM. Klecker, Tenekides, Melchior and Carrillo on the complaint under Art. 8 of the Convention
relating to the contact of MM. McVeigh and Evans with their wives
We form part of the majority of the Commission which has expressed the opinion that Art. 8 was violated in the
present cases insofar as the applicants were not allowed to contact their wives during their detention.
We consider the reasoning in para. 237 of the Report to be satisfactory from a technical point of view. The Government
have not in fact given specific reasons to justify not authorising these contacts, and in particular reasons
why it was necessary that the applicants' wives should not be informed of their arrest and detention.
Nonetheless this attitude was very probably based on the consideration that if the persons interrogated were members
of a terrorist organisation, their close relatives would be likely to be aware of this. There would be a serious
risk that they could themselves be members of the organisation and that, on being informed of these arrests,
they would take steps to thwart any police action which might be based on information obtained from the persons
under interrogation.
In our view such reasoning can only be valid in relation to the first hours after the arrest. It ceases to be
so once the detention has lasted a substantial number of hours and the absence of the spouse becomes "abnormal".
In such a situation, if the wives and family are part of a terrorist organisation, they will be led to suppose
that the abnormal absence is probably caused by an arrest. Accordingly, in face of the disappearance of their
relatives, they would then take the "security" measures required to protect the interests of the terrorist organisation.
It is not improbable either that, in the case.of an efficient terrorist organisation, an arrest would immediately
be brought to the notice of the organisers through the use of surveillance agents.
In any case it appears to us, for the reasons given in para. 237 of the Report, supplemented by those set out
above, that the refusal to allow these arrestees contact with their families cannot be considered justified under
Art. 8 (2) of the Convention after the expiry of a number of hours (e.g. eight hours), following the arrests.
