SHER AND OTHERS v. THE UNITED KINGDOM - 5201/11 - Communicated Case [2013] ECHR 1001 (02 October 2013)

FOURTH SECTION

Application no. 5201/11
Sultan SHER and Others
against the United Kingdom
lodged on 17 January 2011

STATEMENT OF FACTS

A list of the applicants is set out in the appendix.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarized as follows.

The three applicants are nationals of Pakistan who resided in the United Kingdom on student visas.

1. The applicants’ arrests and initial detention

On 8 April 2009, the applicants were arrested, along with nine others, under the Terrorism Act 2000, as amended (“the 2000 Act”) in various locations in the North West of England. The arrests occurred in the context of Operation Pathway.

(a) Mr Sher

Mr Sher was arrested at 6.35p.m. under section 41 of the 2000 Act on suspicion of being involved in the commission, preparation and instigation of terrorism. Upon arrival at the police station, he was given a copy of a notice setting out his rights and his entitlements while in custody. He requested access to a solicitor. According to the custody record, his detention was authorised to secure and preserve evidence and to obtain evidence by way of questions.

At around 10p.m. a review of Mr Sher’s detention was carried out by a senior police officer. Mr Sher made no representations. His continued detention was authorised as necessary in order to secure and preserve evidence and to obtain evidence by questioning.

At 7.40a.m. on 9 April a notice (“TACT 5 form”) was served on the applicant’s solicitor, Mr Yousaf. The notice set out, inter alia, the following:

“You are hereby informed that

...

SULTAN SHER

has been arrested under the provisions of Section 41 of the Terrorism Act 2000 as it is reasonably suspected that he is or has been involved in the commission, preparation or instigation of acts of terrorism.”

Mr Yousaf confirmed that he was happy for further reviews of detention to take place in his absence and that he had no representations to make at that time.

At 9.35a.m. a further review of Mr Sher’s detention took place. Mr Sher was advised that his continued detention was believed to be necessary to obtain relevant evidence by questioning; to preserve relevant evidence; while awaiting the results of examination or analyses of relevant evidence; and for the examination/analysis of anything with a view to obtaining evidence.

At around 4p.m., Mr Yousaf was provided with a copy of a pre-interview briefing document (“brief”). The third paragraph of the brief said:

“Your client has been arrested on suspicion of being concerned in the commission, preparation or instigation of an act of terrorism contrary to section 41 of the Terrorism 2000. Your client was informed that the arrest was necessary to allow the prompt and effective investigation of the offence. After caution your client made no reply. The arrest followed an Intelligence Operation conducted by the North West Counter Terrorism Unit.”

It went on to identify a list twelve names of people under arrest at different locations and said that their homes and associated premises were the subject of search, recovery and forensic scrutiny. Ten properties were the subject of such searches, although it was said that this was likely to increase “as further intelligence associating individuals to various premises come to the attention of the investigative team”. It added:

“Your client should be made aware that such examinations of scenes will include searches for bomb making equipment, devices, explosives, composite material, recipes, documentary evidence, computers and IT storage devices and mobile telephones ...”

It concluded:

“Your client will be asked questions relating to his access and association to various properties and individuals subject of this investigation. Your client will be asked about computer usage and methods of communication but most significantly, he will be asked questions relating to his knowledge or any information he might have in relation to the commission, preparation or instigation of acts of terrorism ...”

At around 5p.m. a further review of Mr Sher’s detention took place. His continued detention was deemed necessary for the reasons previously set out.

Shortly after 6p.m. a first police interview began. Mr Sher was asked detailed questions about other people arrested, the various premises being searched and his knowledge of bomb making equipment. He made no comment in response to these questions. Following a break, the interview continued. The interview lasted for around one and a half hours in total.

Shortly before midnight, a further review of Mr Sher’s detention took place. His continued detention was deemed necessary for the reasons previously set out.

(b) Mr Sharif

Mr Sharif was arrested at 5.37p.m. on 8 April under section 41 of the 2000 Act on suspicion of being involved in the commission, preparation and instigation of terrorism. Upon arrival at the police station, he was given a copy of a notice setting out his rights and his entitlements while in custody. He requested access to a solicitor. According to the custody record, his detention was authorised to secure and preserve evidence and to obtain evidence by way of questions and the applicant was informed.

At 11p.m. a review of Mr Sharif’s detention was carried out by a senior police officer. Mr Sharif made no representations. His continued detention was authorised as necessary in order to secure and preserve evidence and to obtain evidence by questioning.

At 7.40a.m. on 9 April, a TACT 5 form was served on Mr Yousaf in respect of Mr Sharif in the same terms as the form served as regards Mr Sher. Again Mr Yousaf confirmed that he was happy for further reviews of detention to take place in his absence.

At 9.50a.m. a further review of Mr Sharif’s detention took place. Mr Sharif was advised that his continued detention was believed to be necessary to obtain relevant evidence by questioning; to preserve relevant evidence; while awaiting the results of examination or analyses of relevant evidence; and for the examination/analysis of anything with a view to obtaining evidence.

At 4.50p.m. a further review of Mr Sharif’s detention took place. His continued detention was deemed necessary for the reasons previously set out.

At some point in the afternoon, Mr Sharif received a brief in almost the same terms as that received by Mr Sher. He was subsequently interviewed for around half an hour and was asked in particular about other people arrested. He made no comment.

At 11.45p.m. a further review of Mr Sharif’s detention took place. His continued detention was deemed necessary for the reasons previously set out.

Mr Farooq was arrested at 5.35p.m. on 8 April under section 41 of the 2000 Act on suspicion of being involved in the commission, preparation and instigation of terrorism. Upon arrival at the police station, he was given a copy of a notice setting out his rights and his entitlements while in custody. He requested access to a solicitor. According to the custody record, the reasons for his detention were explained to him.

At around 9.45p.m. a review of Mr Farooq’s detention was carried out by a senior police officer. Mr Farooq made no representations. His continued detention was authorised as necessary in order to secure and preserve evidence and to obtain evidence by questioning.

At 9.15a.m. a further review of Mr Farooq’s detention took place. Mr Farooq was advised that his continued detention was believed to be necessary to obtain relevant evidence by questioning; to preserve relevant evidence; while awaiting the results of examination or analyses of relevant evidence; and for the examination/analysis of anything with a view to obtaining evidence.

At 5.40p.m. a further review of Mr Farooq’s detention took place. His continued detention was deemed necessary for the reasons previously set out.

At some point in the afternoon, Mr Farooq received a brief in almost the same terms as that received by Mr Sher. A subsequent police interview lasted for around half an hour and Mr Farooq and was asked in particular about other people arrested. He made no comment

Shortly before midnight, a further review of Mr Farooq’s detention took place. His continued detention was deemed necessary for the reasons previously set out.

2. The search warrants

Meanwhile, on 8 April 2009, the police applied for and were granted search warrants by the Manchester Magistrates’ Court in respect of a number of addresses connected with the applicants. The police officer making the application indicated that he had reasonable grounds for believing that the material was likely to be of substantial value to a terrorist investigation and that it had to be seized in order to prevent it from being concealed, lost, damaged, altered or destroyed.

The relevant material was defined as:

“Correspondence, leaflets, posters, magazines, subscription forms, identification documents, travel documents, passports, maps, sketches, plans, telephone records, accommodation details, literature/books, vehicle documents in relation to use/control, correspondence in relation to other properties/lock ups/garages and their keys, receipts for purchased goods, records of religious/political beliefs, handwritten notes, receipts, invoices, order forms, delivery notes, adverts, travel information land sea and air. Computers, computer equipment, PDA’s software, hardware, digital storage, faxes, printers, scanners, copiers, printer paper, DVDs, CDs, CD Roms, video/audio cassettes, memory sticks, mobile phones, sim cards, evidence of purchase of mobile phones and registration and billing, credit cards, top-up cards, cash, cheque books, money transfer documents, financial documents, cameras/video equipments, photographs/negatives, communication devices, chemical or pre cursor materials, memorabilia/ornaments/flags, items to conceal or transport items, any item believed to be connected to terrorism ...”

Search warrants were granted in those terms. The warrants included these words:

“Authority is hereby given for any constable, accompanied by such person or persons as are necessary for the purposes of the search, to enter the said premises on one occasion only within one month from the date of issue of this warrant and to search the premises, and any person from the date of issue of this warrant and to search the premises, and any person found there, for the articles in respect to which the application was made and to seize and retain relevant material found during the said search.”

The search of Mr Sher’s address was conducted over a ten-day period between 8 April and 18 April. The search at his place of work was conducted between 11 and 14 April.

Mr Sharif and Mr Farooq shared an address. Their residence was the subject of a search between 8 April and 19 April.

In relation to all of the properties that were searched, the police went to the property first thing in the morning and worked in shifts until about 7p.m. They then closed up the property it was cordoned off. They resumed their work at the property again the next morning, and worked in this way until the search was concluded.

3. The applicants’ further detention

(a) The first application for further detention

On 9 April the applicants were informed that an application would be made at the Magistrates’ Court for a warrant of further detention for the period of seven days beginning with their day of arrest; and that a hearing would take place on 10 April. The notice of the application and the hearing went on to explain:

“"Both yourself and your legal representative may make written or oral representations and attend a hearing, subject to the provision of Schedule 8 para 33(3) of the Terrorism Act 2000, which provides that the judicial authority may exclude you or your legal representative from any part of the hearing. Your legal representative has been informed by written notice of his, and your, right to attend the hearing, subject to the provision mentioned above. Police are seeking a Warrant of Further Detention for the period of seven days beginning with the time of your arrest because it is necessary in order to obtain or preserve relevant evidence or pending the result of an examination or analysis of any relevant evidence or of anything the examination or analysis of which is to be or is being carried out with a view to obtaining relevant evidence relating to the commission of an offence or offences under the provisions of Section 40(1)(a) or which indicates you are a person who falls within the provisions of Section 40(1)(b) of the Terrorism Act 2000.”

The application to the Magistrates’ Court contained, at section 9 under a heading “Further Enquiries to be made”, a lengthy description of the police operation and the current state of play in the ongoing investigation. The section 9 material was not provided to the applicants or Mr Yousaf.

The hearing was fixed for 9.30a.m. on 10 April 2009. Part of the hearing was closed to allow the District Judge to scrutinise and ask questions about the material in section 9. The applicants and Mr Yousaf were therefore excluded from this part of the hearing. They made no complaint about the procedure at that time.

At the open part of the hearing, a senior police officer made an oral application for further detention which was reduced to writing and a copy of the note was provided to the applicants and to Mr Yousaf at the time of his hearing. The written note explained why the section 9 material was being withheld and provided some details about the police operation. It also gave details of all the property seized so far and explained that the investigation contained:

“intelligence and evidence that support[ed] the premise that [the applicants] through significant association with other detained persons [were] conspiring to plan a terrorist attack within the UK.”

Mr Yousaf cross-examined the police officer during the hearing and did not complain about the detention process or suggest that the applicants should not be further detained.

At 1.20p.m. the District Judge granted the warrants for further detention until 15 April. The formal notification of the decision explained:

“On application by a police officer of at least the rank of Superintendent, and having taken account of representations made by or on behalf of the person named above concerning the grounds upon which further detention is sought, I am satisfied that in accordance with paragraphs 30 and 32 of Schedule 8 to the Terrorism Act 2000, that:

...

(ii) the investigation in connection with which the person is detained is being conducted diligently and expeditiously;

(iii) there are reasonable grounds for believing that the further detention of the person named above is necessary to obtain relevant evidence whether by questioning him or otherwise or to preserve relevant evidence, or pending a result of an investigation or analysis of any relevant evidence or of anything the examination or analysis of which is to be or is being carried out with a view to obtaining relevant evidence...”

(b) The detention from 10 April to 15 April

(i) Mr Sher

On 10 April 2009 Mr Sher was provided with a second brief. It indicated that one of the other arrested suspects had said that he had lived with Mr Sher at two addresses and that he had knowledge another arrested suspect. This document formed the basis of a subsequent interview with Mr Sher which began shortly after 6p.m. and concluded one and a half hours later. During the interview, Mr Sher was asked about his acquaintance with some of the other arrested suspects and his familiarity with some of the searched premises. He made no reply to the questions put.

No interviews were carried out over 11 and 12 April, which was the weekend of Easter.

On 13 April Mr Sher received a third brief which contained details of material found at various searched properties which could allegedly be linked to him. The brief was used as the basis of a further series of interviews which began at around 1p.m. and lasted for about four hours in total. Again Mr Sher answered no comment to the points put to him.

On 14 April 2009 Mr Sher was provided with a fourth brief. It identified a number of items which were said to be “areas of interest” to the investigation, including: text messages between detainees; maps outlining designated areas of interest which significant numbers of the public would be expected to frequent; a detailed handwritten document depicting a militaristic zone abroad; access to and movements around the security industry including access to airports; mobile telephone use; international travel, including visits to Pakistan, and the purpose of travel; suspected reconnaissance at public locations; meetings of significance; and money transfers abroad. The document went on to say:

“Evidence exists linking your client to persons currently in custody. Direct evidence exists of the detainees meeting on a number of occasions both in Liverpool and Manchester. Mobile telephone pictures exist illustrating further associations between those persons arrested on this operation.

The purpose of this briefing is to broadly outline the police investigation and its strong belief that preparatory acts for an attack plan were in place. A significant amount of exhibits are still currently being assessed and may form part of further pre-interview briefing.”

Again, the document provided the basis of an interview with Mr Sher which began shortly before 1p.m. and lasted for about an hour and twenty minutes. Mr Sher declined to comment.

(ii) Mr Sharif

On 10 April 2009 Mr Sharif was provided with a second brief. It was based on information provided by some of the other detainees and concerned his acquaintance with them. It formed the basis of a subsequent interview with Mr Sharif which began at around 4p.m. and concluded one and a half hours later. During the interview, Mr Sharif was asked about his acquaintance with some of the other arrested suspects and made no reply to the questions put.

Again, no interviews were carried out over the Easter weekend of 11 and 12 April.

On 13 April Mr Sharif received a third brief. It provided details of material found at his place of residence. The document was used as the basis of a further series of interviews which began at around 1.30p.m. and lasted for about three hours in total. Mr Sharif answered no comment to the points put to him.

On 14 April 2009 Mr Sharif was provided with a fourth brief. It contained details of information provided by other detainees and otherwise reproduced the content of Mr Sher’s fourth brief. It provided the basis of an interview with Mr Sharif which lasted for about three hours. Mr Sharif declined to comment.

(iii) Mr Farooq

On 10 April 2009 Mr Farooq was provided with a second brief. It was based on information provided by some of the other detainees and concerned his acquaintance with them. It formed the basis of a subsequent interview with Mr Farooq which began at around 4p.m. and concluded just over an hour later. During the interview, Mr Farooq was asked about his acquaintance with some of the other arrested suspects and made no reply to the questions put.

Again, no interviews were carried out over the Easter weekend of 11 and 12 April.

On 13 April Mr Farooq received a third brief which set out details of exhibits recovered from properties linked to him. The briefing document was used as the basis of a further series of interviews which lasted for just over two hours. Again Mr Farooq answered no comment to the points put to him.

On 14 April 2009 Mr Farooq was provided with a fourth brief in terms almost identical to that provided to Mr Sharif. It provided the basis of an interview with Mr Farooq which lasted for just over an hour. Mr Farooq declined to comment.

On 14 April 2009 the applicants and Mr Yousaf were informed that an application had been made to the Magistrates’ Court to extend the warrant of further detention for a further seven days. Notification of this application was in similar terms to the earlier notice. The documents provided to the applicants contained detailed information at section 9 (which was not withheld) about the background to the investigation, the associations of the applicants, the scenes that had been searched, the forensic analysis, and the phones, computers, DVDs and documents that had been recovered. Under section 10, there was a list of bullet points under the heading “Reason Detention is Necessary Whilst Enquiries Made”, which included the need to await the conclusion of forensic searches and examination and the outcome of analyses instructed and the need to question the applicants concerning items found in their possession or at premises linked with them. It is not clear whether any documents were withheld from the applicants.

The application was heard on 15 April at around 9.30a.m. and the applicants attended by video link. The hearing was entirely open. A senior police officer made the oral application, which had again been reduced to writing and provided to the applicants and Mr Yousaf. He said that the police operation in question was the most significant counter-terrorism investigation since a plot in 2006 to cause explosions on aeroplanes through the use of liquid bombs; and that the North West Counter Terrorism Unit had never undertaken an investigation of this size. He explained that searches had taken place at the various properties and that only one scene had been completed and released. Three were still awaiting results of forensic results and seven scenes were still being searched. A total of 3,887 exhibits had been recovered to date. Priority was being given to exhibits such as documents, computers, mobile phones, sim cards and data storage devices. A large number of computers were being searched as well as DVDs and CDs. 127 phone or sim cards had been recovered and were being forensically examined, some with large memories. The written note concluded by seeking the extension to the warrant on the grounds that it was necessary to obtain relevant evidence by questioning, to preserve relevant evidence, and pending the result or analysis of any further evidence.

At around 10.15a.m. the Senior District Judge granted the extensions sought. The formal notification in relation to each applicant confirmed in writing that the judge was satisfied that the investigation was being conducted diligently and expeditiously and that there were reasonable grounds for believing that the further detention of the applicants was necessary to obtain relevant evidence. The warrants were extended by seven days, until 22 April 2009.

(d) The detention from 15 April to 21 April

(i) Mr Sher

Mr Sher was not interviewed on 15, 16, 17 or 18 April. However, on 18 April, further briefs were provided. The documents referred to his arrest on 8 April on suspicion of commission, preparation and instigation of terrorism and continued:

“... It has been made apparent throughout the interview process, including safety interview conducted ... and in warrant applications, that we strongly believe that your client was involved in an attack plan.”

The document referred specifically to a wordpad document recovered from a pen drive (“the Buddy email”), which appeared to be a personal email discussing the weather and plans for an Islamic wedding “after 15^th and before 20^th of this month”. The police believed this to be code and considered that it suggested an imminent attack. The document continued:

“Specifically we believe that your client has been part of a conspiracy with others currently in custody to murder with explosives. He is also suspected of possessing articles considered to be of use in terrorist activity.”

It identified various maps found with locations highlighted and photographs of other public places in the North West of England. There was also a reference to a mobile phone, which belonged to another of the suspects, which was found to contain Mr Sher’s telephone number.

The briefing formed the basis of a series of interviews on 19 April in which specific questions were put as to Mr Sher’s knowledge of these documents and the other materials. No answers were forthcoming. The total duration of the interviews was about four and a half hours.

On 20 April there was a final round of briefing documents, again referring to emails and computer communications, in particular via a specific and identified user name belonging to Mr Sher. In a subsequent interview lasting around one and a quarter hours, Mr Sher made no comment.

(ii) Mr Sharif

Mr Sharif was not interviewed on 15, 16 or 17 April. A further brief was provided on 18 April. The document summarised information provided by some of the other detainees; set out details of significant text messages received and sent from mobile telephones which were either in Mr Sharif’s possession at the time of arrest or discovered during the search of his residence; and gave details of other documents found during the searches, including maps of Manchester with locations highlighted. The briefing formed the basis of interviews on 18 April lasting for a total of almost three hours. At the beginning of the interviews, Mr Sharif was told that the police specifically believed that he had been conspiring with others to cause explosions. No responses were forthcoming during the interviews.

On 19 April Mr Sharif received a final briefing document. The document referred to his arrest on 8 April on suspicion of commission, preparation and instigation of terrorism and continued:

The document referred to the Buddy email and continued:

In a subsequent interview lasting around one and a quarter hours, Mr Sharif made no comment.

No interview took place on 20 April.

(iii) Mr Farooq

Mr Farooq was not interviewed on 15, 16 or 17 April. On 18 April a further brief was provided. It summarised information provided by some of the other detainees; set out details of significant text messages received and sent from various mobile telephones; and gave details of other documents found during the searches, including maps of Manchester with locations highlighted. The briefing formed the basis of an interview on 18 April lasting for one and a half hours. At the beginning of the interview, Mr Farooq was told that the police specifically believed that he had been conspiring to commit murder by causing explosions in the North West of England. No responses were forthcoming during the interview.

On 19 April Mr Farooq received a final briefing document. The document referred to his arrest on 8 April on suspicion of commission, preparation and instigation of terrorism and continued:

The document referred to the Buddy email and continued:

A further interview of around one hour and fifteen minutes took place on 19 April. Mr Farooq made no comment.

No interview took place on 20 April.

4. The applicants’ release

On 21 April 2009 the applicants were released without charge and were served with deportation orders. They were then detained under immigration legislation and transferred into immigration service custody pending deportation on 22 April 2009.

5. The judicial review proceedings

On 26 June 2009 the applicants commenced two sets of judicial review proceedings. In one (“the first action”), they sought to challenge the deportation orders. That action does not form the basis of their application to this Court. In the other (“the second action”), they sought to challenge the legality of their treatment between 8 and 21 April. They contended in particular that their rights under Articles 5 §§ 2 and 4 and 6 § 1 of the Convention had been breached because they had not been provided with sufficient information at the time of arrest or detention as to the nature of the allegations against them; and because of the closed procedure permitted in hearing applications for warrants of further detention. They further argued that the searches were unlawful because the search warrants had been granted in terms that were too wide; because the terms of the warrants had been breached in that although the police had permission to undertake a search on one occasion they had actually occupied the premises for many days; and because of the seizures themselves.

On 21 July 2009 permission to apply for judicial review in the second action was refused by the Divisional Court. The judge addressed each of the applicants’ complaints in detail.

In respect of their complaints concerning the provision of information, the court held that judicial review was not the appropriate forum since the cases were likely to give rise to a high degree of factual debate and there were private law remedies available. However, the court nonetheless considered whether there were any arguable claims which would justify granting permission to seek judicial review. It referred to this Court’s judgment in Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, Series A no. 182, and continued:

“91. Each claimant was told that he was being arrested under section 41 of the Terrorism Act 2000 because the officer arresting him reasonably suspected that he was a terrorist. In my judgment, nothing more was required at that moment. As the decision in Fox and Others makes plain, a general statement of that sort will not usually amount to a breach of Article 5.2, provided of course that, thereafter, further information as to how and why such suspicions are held is promptly given to the suspect. For the reasons given in the next section of this Judgment, I am in no doubt that, on the material available to the court, such further information was given promptly to the claimants.

Concerning the lawfulness of the initial 48 hours of detention, the court said:

“94. The custody logs demonstrate that, during the first 38 hours of the claimants’ detention, the reviews were carried out at 12 hourly intervals and that all the appropriate and relevant information was taken into account. The records also reveal that neither the claimants nor their solicitor took any point as to their continuing detention during this period of 38 hours or so. On the face of the documents, therefore, I consider that it is impossible to say that any sustainable Wednesbury case as to absence of information emerges at all.

95. That view is confirmed by a consideration of the documents provided to the claimants during this early period. As noted above ..., on 9th April 2009 the claimants were given [the first brief] and, having had a chance to consider the material there contained, they were interviewed at length about it. From this information, the claimants would have been in no doubt that they were being detained under suspicion of being involved, with other named conspirators, in a plan to plant a terrorist bomb. In all the circumstances, it seems to me that this was sufficient information to satisfy Article 5.2 and Article 5.4, at least at that early stage.”

In response to the applicants’ allegation that their detention after 10 April was unlawful because it was on the basis of information solely derived from closed hearings, the court emphasised that only part of the hearing on 10 April was closed and that the hearing on 15 April was entirely open. The court therefore considered that the applicants were being provided with sufficient information during this period to justify their continuing detention. It continued:

“98. ... [I]t is plain from all that material that the allegations being made, and the questions being asked, were becoming more and more specific as the days passed, and that by the end of the 13 day period of detention, the claimants were each aware that they were being detained on suspicion of being involved, with other named co-conspirators, to cause imminent bomb explosions at certain specified public locations in the North West of England.

99. Mr Jones [counsel for the applicants] submitted that the claimants should have been given detailed information at the outset of their detention, with a level of specificity that was akin to the information in an indictment ... I consider that that submission is wrong in principle. The whole purpose of those parts of the ... [2000 Act] is to allow suspects to be detained after arrest without being charged because, at the time of their arrest, and perhaps for many days thereafter, it may not be possible to formulate charges against them as specifically as would appear on an indictment. That is precisely why Parliament has said that suspects can be detained without charge for up to 28 days, in order to allow further information as to the proposed charges to be obtained. Provided that sufficient information is provided to allow those detained under the [2000 Act] to challenge the lawfulness of that detention, if that is what they wish to do, then that is sufficient to satisfy both Article 5.2 and Article 5.4.

100. Of course ... the time will always come when more specific details of the suspected offences must be provided to the detainees. In this case, for the reasons that I have given, I consider that sufficient information was provided to the claimants to allow them to know why they were being detained and to challenge the lawfulness of the decision to detain them. They knew who the other conspirators were alleged to be, what the suspected crime was (intending explosions in particular public places in the North West), and what at least some of the evidence was ... that directly linked them to these allegations.”

In respect of the searches and seizures, the court similarly considered that claims concerning their lawfulness could and should be decided in private law proceedings. In any event, it found that neither claim would have led to the granting of permission to seek judicial review. In this respect, it noted that the words “on one occasion” in the warrant authorised the police go to the property in question, undertake the search, and, when they had concluded that search, restore the property to the control of its occupiers. That was precisely what had happened here. The fact that the “occasion” lasted for more than one calendar day was irrelevant since there was nothing temporal about the word “occasion”. The court further considered that the complaint that certain seized items had not been returned could and would have been resolved had the applicants followed the judicial review pre-action protocol.

As to the complaint that the warrant was too wide, a complaint which was amenable to judicial review, the court observed that the criticism appeared to be that because the warrant contained a lengthy list of references to common household items, such a list must, of itself, be too extensive or onerous. It rejected that submission for three reasons. First, it considered the assertion to be too general since a list that was too onerous in one case might be entirely appropriate in another. It continued:

“109. Secondly, in a situation like this, the police will be unlikely to know precisely what they are looking for. So they will identify those sorts of items which, in the past, have been relevant to searches such as this. Thus there are specific references to travel documents, computers, books, DVDs and the like. But it would be unrealistic for this court now to say, over a year later, that one or two of these items might, with hindsight, have been irrationally included in a list produced at the outset of a major terrorism investigation.

110. Thirdly, the court must recognise, in undertaking these urgent investigations, the police are not hamstrung by an artificially restricted list of items that they can investigate and/or seize. It would be contrary to the public interest if, on a search of premises in the context of an ongoing and urgent terrorism investigation, the police were inhibited because item A was on the list but item B was not. There is a clear public interest in ensuring that, within properly defined limits, the list is not restricted.”

Finally, the court addressed the claim that the procedure for hearing applications for warrants of further detention under Schedule 8 of the 2000 Act was incompatible with section 5 § 4 of the Convention because although it allowed for a closed procedure, there was no system of special advocates in place. It found this to be a matter which, if it was appropriate to grant permission, would justify judicial review proceedings. However, on the substance it considered the claim to be unarguable. It referred to the judgment of the House of Lords in Ward (see below) which made clear that the Schedule 8 process was compatible with the Convention. It therefore rejected the submission that the provision of a special advocate was essential to ensure the fairness of the proceedings. It further noted that the applicants had not explained why the absence of a provision for a special advocate led inevitably to the conclusion that the scheme was incompatible with Article 5 §4; and held that such an advocate could have been appointed by the District Judge in any event had such a course been considered necessary in the interests of justice. In any case, the court reiterated that in the applicants’ case, the warrants of further detention were not made entirely on the basis of closed information.

In September 2009, all three applicants voluntarily returned to Pakistan.

B. Relevant domestic law and practice

1. Arrest and detention without a warrant under the 2000 Act

The 2000 Act allows for the arrest and detention without charge of suspected terrorists for a maximum of twenty-eight days. The relevant provisions are set out in more detail below.

(a) Power of arrest

Section 41(1) of the 2000 Act allows a constable to arrest without a warrant a person whom he reasonably suspects to be a terrorist. The 2000 Act defines a terrorist as either someone who has committed an offence under certain sections of the Act (section 40(1)(a)), or someone who “is or has been concerned in the commission, preparation or instigation of acts of terrorism” (section 40(1)(b)).

Terrorism itself is defined in section 1 of the Act in these terms:

“(1) In this Act ‘terrorism’ means the use or threat of action where-

(a) The action falls within sub-section (2),

(b) The use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and

Section 1(2) provides:

“(2) Action falls within this sub-section if it-

(a) involves serious violence against a person,

(b) involves serious damage to property,

(d) creates a serious risk to the health or safety of the public or a section of the public, or

(e) is designed seriously to interfere with or seriously to disrupt an electronic system.”

Pursuant to section 1(3), the use or threat of action which involves the use of firearms or explosives is terrorism, whether or not section 1(1)(b) is satisfied.

Section 41(3) stipulates, in so far as relevant to the present case, that a person detained under section 41 shall (unless detained under any other power) be released not later than a period of 48 hours beginning with the time of his arrest under that section.

(b) Periodic review

Schedule 8, Part II of the 2000 Act sets out detailed provisions governing the detention of any person arrested under the Act.

Pursuant to paragraph 21, a person’s detention should be periodically reviewed by a review officer. The first review should be carried out as soon as reasonably practicable after the time of the person’s arrest. Subsequent reviews must, except in specific limited cases, be carried out at intervals of not more than 12 hours. No review of a person’s detention should be carried out after a warrant extending his detention has been issued by a court.

Paragraph 23 entitled a review officer to authorise a person’s continued detention only if satisfied that it is necessary: (a) to obtain relevant evidence whether by questioning him or otherwise; (b) to preserve relevant evidence; (c) pending the result of an examination or analysis of any relevant evidence or of anything the examination or analysis of which is to be or is being carried out with a view to obtaining relevant evidence. Continued detention cannot be authorised under (a) or (b) unless the review officer is satisfied that the investigation is being conducted diligently and expeditiously. “Relevant evidence” is defined as evidence which:

“(a) relates to the commission by the detained person of an offence under any of the provisions mentioned in section 40(1)(a), or

(b) indicates that the detained person falls within section 40(1)(b) ...”

Pursuant to paragraph 26, before determining whether to authorise a person’s continued detention, a review officer must give the detained person or his solicitor an opportunity to make oral or written representations about the detention

Paragraph 29 entitles a Crown Prosecutor or a police officer of at least the rank of Superintendent to apply to a judicial authority for the issue of a warrant for further detention. That warrant “shall authorise further detention under section 41 of the specified person for a specified period”.

Pursuant to paragraph 31, a detained person must be given notice of the application and the grounds on which further detention is sought.

Paragraph 32(1) provides:

“A judicial authority may issue a warrant of further detention only if satisfied that-

(a) there are reasonable grounds for believing that the further detention of the person to whom the application relates is necessary ..., and

(b) the investigation in connection with which the person is detained is being conducted diligently and expeditiously.”

Pursuant to paragraph 32(1A), the further detention of a person is “necessary” if it is necessary to obtain relevant evidence whether by questioning him or otherwise; to preserve relevant evidence; or pending the result of an examination or analysis of any relevant evidence or of anything the examination or analysis of which is to be or is being carried out with a view to obtaining relevant evidence. “Relevant evidence” means evidence which relates to the detained person’s commission of an offence under section 40(1)(a) or indicates that he is a person failing within section 40(1)(b).

Paragraph 33 allows the detained person an opportunity to make oral or written representations to the judicial authority about the application for a warrant of further detention and provides a general entitlement to legal representation at the hearing. However, pursuant to paragraph 33(3), a judicial authority may exclude the detained person and his solicitor from any part of the hearing.

Paragraph 34 provides that the person who has made an application for a warrant may apply to the judicial authority for an order that specified information upon which he relies be withheld from the detained person and his solicitor. A judicial authority may make an order granting the application only if satisfied that there are reasonable grounds for believing that if the information were disclosed:

“(a) evidence of an offence under any of the provisions mentioned in section 40(1)(a) would be interfered with or harmed,

...

(d) the apprehension, prosecution or conviction of a person who is suspected of falling within section 40(1)(a) or (b) would be made more difficult as a result of his being alerted,

(e) the prevention of an act of terrorism would be made more difficult as a result of a person being alerted,

(f) the gathering of information about the commission, preparation or instigation of an act of terrorism would be interfered with, or

(g) a person would be interfered with or physically injured.”

Under paragraph 36, where the application is to extend the detention up to a maximum of fourteen days from the date of arrest, it can be made to a District Judge. Applications for further detention beyond fourteen days must be put before a High Court judge, who may authorise detention up to a maximum of twenty-eight days in total from the date of arrest.

In Ward v Police Service of Northern Ireland [2007] UKHL 50, the Appellate Committee of the House of Lords considered the provisions of Schedule 8 in the context of an appeal from Northern Ireland. In that case, the judge had excluded the appellant and his solicitor from a hearing on an application to extend a warrant of detention for about ten minutes to consider closed information. When the hearing resumed, they were not informed of what had transpired during their absence. The application for an extension of the warrant was granted. The appellant sought judicial review of that decision. Judicial review was refused by the High Court of Northern Ireland and the appellant’s appeal was dismissed by the House of Lords.

The Committee explained at the outset:

“11. Section 41 of the Act ... enables a constable to arrest without warrant a person whom he reasonably suspects to be a terrorist. The length of the detention that may follow on such an arrest is the subject of a carefully constructed timetable. This timetable, in its turn, is the subject of a series of carefully constructed procedural safeguards. The detained person’s right to liberty demands that scrupulous attention be paid to those safeguards ...”

After careful discussion of the provisions of the 2000 Act permitting the detained person and his representative to be excluded from part of a hearing, the Committee said:

“27. ... [T]he procedure before the judicial authority which para 33 contemplates has been conceived in the interests of the detained person and not those of the police. It gives the person to whom the application relates the right to make representations and to be represented at the hearing. But it recognises too the sensitive nature of the inquiries that the judicial authority may wish to make to be satisfied, in that person’s best interests, that there are reasonable grounds for believing that the further detention that is being sought is necessary. The more penetrating the examination of this issue becomes, the more sensitive it is likely to be. The longer the period during which an extension is permitted, the more important it is that the grounds for the application are carefully and diligently scrutinised.

28. As in this case, the judicial authority’s need to scrutinise may trespass upon the right of the police to withhold from a suspect the line of questioning they intend to pursue until he is being interviewed. If it does, it will not be to the detained person’s disadvantage for him to be excluded so that the judicial authority may examine that issue more closely to see whether the exacting test for an extension that para 32 lays down is satisfied. The power will not in that event be being used against the detained person but for his benefit ...

29. There may be cases where there is a risk that the power given to the judicial authority by para 33(3) will operate to the detained person’s disadvantage. Those cases are likely to be rare, but the judicial authority must always be careful not to exercise it in that way ...”

2. Search powers under the 2000 Act

Schedule 5 of the 2000 Act sets out powers relating to searches. Paragraph 1 of Schedule 5 allows a constable to apply to a justice of the peace for an issue of a warrant for the purposes of a terrorist investigation authorising any constable:

“2(a) to enter premises [specified in the application or occupied or controlled by a person specified in the application],

(b) to search the premises and any person found there, and

Pursuant to paragraph 1(3), material is relevant if the constable has reasonable grounds for believing that-

“(a) it is likely to be of substantial value, whether by itself or together with other material, to a terrorist investigation, and

(b) it must be seized in order to prevent it from being concealed, lost, damaged, altered or destroyed....”

Paragraph 1(5) provides that a justice may grant an application if satisfied that the warrant is sought for the purposes of a terrorist investigation; that there are reasonable grounds for believing that there is material on premises which is likely to be of substantial value, whether by itself or together with other material, to a terrorist investigation; and that the issue of a warrant is likely to be necessary in the circumstances of the case.

3. The report by Lord Carlile of Berriew

In October 2009 a report on the working of the 2000 Act in the context of Operation Pathway, prepared by Lord Carlile, was published. Lord Carlile received cooperation from, inter alia, the relevant police forces, the Security Service, the Home Office and some of the detainees.

The report set out the lead up to the arrests, referring to the Buddy email and the intelligence assessment that it was a coded reference to an imminent terrorist attack. Discussing the basis of the arrests, the report said:

“26. The authorities had no specific information as to where the suspected terrorist event was to occur, nor any precise knowledge as to its nature. Nevertheless, they believed that they had reasonable grounds to suspect a terrorism plot planned to be brought to fruition at the imminent holiday time. Therefore, after extensive consultation, they decided to carry out the arrests ...

...

30. None of the arrests was made on a full evidential foundation, as at the time of the arrests no specific offence had been identified. The decision to arrest was made on the basis of the intelligence assessment provided and in the perceived interests of public safety.”

The report addressed the issue of the adequacy of the information given to the arrestees by the police and the consequent lawfulness of their detention. It explained that while, pursuant to section 41 of the 2000 Act, a person could be arrested on suspicion of being a “terrorist”, being a “terrorist” was not in itself a crime in the United Kingdom. It continued:

“64. Thus [the 2000 Act] section 41 may provide the reasons, or the essential legal grounds, for an arrest; but not the factual grounds or any possible charge. It follows that at some point between arrest and the end of his detention period the suspect must be told the offence or offences of which he is suspected. The grounds of arrest pursuant to section 41, namely being a terrorist, is no more adequate for this purpose than is the general description of being dishonest in a case falling under the Theft Act 1968. This places section 41, and the period of detention under that section, in tension with the general law.

65. The point at which the suspect has to be given this information varies according to the facts and circumstances of the case, and has been the subject of discussion between the police and the [Crown Prosecution Service] in the context of this operation.”

The report summarised what had happened in the applicants’ cases, and concluded:

“89. ... In relation to arrest and charge, it is a matter for the Courts as to what can properly be characterised as ‘promptly’ in a particular context: it is likely to be case specific and therefore elastic, but in every case there must be a point at which continued and (particularly) extended detention, far beyond the normal periods for non-terrorism cases, will be subjected to a requirement to set out the evidential basis. In relation to evidence, I doubt that it could seriously be argued that continued detention is proportionate where there is no reasonable basis for expecting material evidence to emerge during the extended period of custody applied for.”

COMPLAINTS

The applicants complain under Article 5 §§ 2 and 4 of the Convention that they were not given adequate information about the specific allegations against them to enable them to mount an effective challenge to the lawfulness of their detention.

They also argue that the procedure for hearing applications for warrants of further detention under Schedule 8 of the 2000 Act was incompatible with Articles 5 § 4 and 6 § 1 because it allows evidence to be given in closed session and makes no provision for special advocates.

Finally, the applicants complain under Article 8 that the searches of their premises violated their right to respect for their private lives and homes because: (i) the warrants permitted entry and search “on one occasion” only which could not be equated with continuous occupation; (ii) the warrants were drawn too widely permitting search for, and seizure of, almost any item of property. In respect of the latter complaint the applicants also invoked Article 1 of Protocol No. 1.

QUESTIONS TO THE PARTIES

1. Were the applicants informed promptly of the reasons for their arrest and detention, as required by Article 5 § 2 of the Convention?

2. Did the alleged inadequacy of the reasons for their arrest and detention prevent them from being able effectively to challenge the lawfulness of their detention, as required by Article 5 § 4 of the Convention?

3. As regards the hearing before the Senior District Judge on 15 April 2009:

(a) were any documents/parts of documents provided to the court but withheld from the applicants and their legal representative; and

(b) were the applicants and their legal representative excluded from any part of the hearing?

4. Having regard to the possibility to withhold information from the applicants and their legal representative and to exclude them from parts of the hearings, was the procedure concerning the applications for warrants of further detention before the District Judge and the Senior District Judge, pursuant to Schedule 8 of the 2000 Act, compatible with Article 5 § 4 of the Convention?

5. Having regard to the scope of the search warrants, were the searches of the applicants’ places of residence and, in the case of Mr Sher, work compatible with Article 8 of the Convention?

Appendix

1. Sultan Sher is a Pakistani national who was born in 1987, lives in Pakistan and represented by Chambers Solicitors.

2. Mohammed Rizwan Sharif is a Pakistani national who was born in 1980, lives in Pakistan and represented by Chambers Solicitors.

3. Mohammed Umer Farooq is a Pakistani national who was born in 1983, lives in Pakistan and represented by Chambers Solicitors.

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You are here: BAILII >> Databases >> European Court of Human Rights >> SHER AND OTHERS v. THE UNITED KINGDOM - 5201/11 - Communicated Case [2013] ECHR 1001 (02 October 2013) URL: http://www.bailii.org/eu/cases/ECHR/2013/1001.html Cite as: [2013] ECHR 1001

European Court of Human Rights