CEDH · CASELAW;REPORTS;ENG — 14 mai 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  Applications Nos.     11209/84, 11234/84 11266/84, 11386/85   Terence BROGAN, Dermot COYLE, William McFADDEN, Michael TRACEY   against the UNITED KINGDOM     REPORT OF THE COMMISSION   (adopted on 14 May 1987)   TABLE OF CONTENTS                                                         Page I.       INTRODUCTION         (paras. 1 - 25) ..............................     1           A. The application (paras. 2 - 8) ............     1         B. The proceedings (paras. 9 - 20) ...........     1         C. The present Report (paras. 21 - 25) .......     3   II.      ESTABLISHMENT OF THE FACTS         (paras. 26 - 39) .............................     4           A. Prevention of terrorism legislation            (paras. 26 - 28) ...........................    4         B. Section 12 of the 1984 Act            (paras. 29 - 32) ...........................    4         C. Particular circumstances of the case            (paras. 33 - 39) ...........................    6   III.     SUBMISSIONS OF THE PARTIES         (paras. 40 - 76) .............................     7           A. The Applicants ............................     7            (paras. 40 - 58)         B. The respondent Government .................    10            (paras. 59 - 76)   IV.      OPINION OF THE COMMISSION         (paras. 77 - 121)..............................   15           Points at issue (para. 77).....................   15         General considerations (paras. 78 - 82)........   15           As regards Article 5 para. 1 (c)            (paras. 83 -98) ...........................    16         As regards Article 5 para. 3            (paras. 99 - 108) .........................    19         As regards Article 5 para. 4            (paras. 109 - 114) ........................    21         As regards Article 5 para. 5            (paras. 115 - 119) ........................    22         As regards Article 13            (paras. 120 - 123 ) .......................    23           Recapitulation (para. 124)....................    23   PARTLY DISSENTING OPINION of    MM. J. A. Frowein, S. Trechsel, H. G. Schermers and    Mrs.   G. H. Thune ..................................    24   PARTLY DISSENTING OPINION of Sir Basil Hall ...        26     APPENDIX 1: History of the Proceedings before the             Commission ................................   27   APPENDIX II: Decision on the admissibility of the              Applications .............................   28       I.       INTRODUCTION   1.       The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.           A.   The application   2.       The first applicant, Mr.   Terence Patrick Brogan, is a citizen of the United Kingdom, born in 1961.   He is a farmer by profession and lives in County Tyrone, Northern Ireland.   3.       The second applicant, Mr.   Dermot Coyle, is a citizen of the United Kingdom, born in 1953.   He is, at present, unemployed and lives in County Tyrone, Northern Ireland.   4.       The third applicant, Mr.   William McFadden, is a citizen of the United Kingdom, born in 1959.   He is, at present, unemployed and lives in Londonderry, Northern Ireland.   5.       The fourth applicant, Mr.   Michael Tracey, is a citizen of the United Kingdom, born in 1962.   He is an apprentice joiner by profession and lives in Londonderry, Northern Ireland.   6.       The applicants are represented before the Commission by J. Christopher Napier & Co., Solicitors, Belfast.   7.       The Government are represented by their Agent, Mr.   Michael Wood, Foreign and Commonwealth Office.   8.       All of the applicants were arrested and detained under Section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984 and informed that there were reasonable grounds for suspecting them to have been involved in the commission, preparation or instigation of acts of terrorism connected with the affairs of Northern Ireland.   The applicants allege that their arrest and detention was not justified under Article 5 para. 1 and that there have also been breaches of Article 5 paras. 3, 4 and 5 of the Convention.   They also complain that they have no effective remedy in respect of their complaints, contrary to Article 13 of the Convention.           B.   The proceedings   9.       The first application (Brogan) was introduced on 18 October 1984 and registered on 23 October 1984.   10.       The second application (Coyle) was introduced on 22 October 1984 and registered on 26 October 1984.   11.       The third application (McFadden) was introduced on 22 November 1984 and registered on 27 November 1984.   12.       The fourth application (Tracey) was introduced on 8 February 1985 and registered on 11 February 1985.   13.       On 11 March 1985 the Commission decided in accordance with Rule 42 para. 2(b) of its Rules of Procedure to give notice of the applications to the respondent Government and to invite them to present before 14 June 1985 their observations in writing on the admissibility and merits of the applicants' complaints under Articles 5 and 13.   The observations of the respondent Government were submitted on 30 July 1985.   The applicants' observations in reply were submitted on 6 September 1985.   14.       The Commission decided on 9 December 1985 to invite the parties to a joint oral hearing which took place in Strasbourg on 11 July 1986.   At the hearing, for which the applications were joined pursuant to Rule 29 of the Commission's Rules of Procedure, the applicants were represented by Mr.   R. Charles Hill, Q.C., Mr.   Seamus Treacy, Counsel, and Mr.   Christopher Napier, solicitor. One of the applicants, Mr.   Michael Tracey, was present during the hearing.   The Government were represented by their Agent, Mr.   Michael Wood, and by Mr.   Anthony Campbell, Q.C., and Mr.   Nicholas Bratza, Counsel.   Three Government advisers were also present.   15.       In the course of the hearing the applicants declared that they did not pursue the complaint they had first made under Article 5 para. 2 of the Convention.   16.       On 11 July 1986 the Commission declared the applications admissible.   17.       The Government submitted supplementary observations on the merits on 17 December 1986.   These observations were transmitted to the applicants' representatives for information.   Supplementary observations which had been submitted by the applicants on 27 April 1987 were not taken into consideration by the Commission as they had been sent too late.   18.       On 6 May 1987 the Commmission considered the merits of the case and took their final votes on the case.   On 6 May 1987 the Commission adopted the text of the Report.   19.       Legal aid under the Addendum to the Commission's Rules of Procedure was granted to the applicants Coyle, McFadden and Tracey on 9 June 1986.   20.       After declaring the case admissible, the Commission, acting in accordance with Article 28 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reaction, the Commission now finds that there is no basis upon which a settlement can be reached.             C. The present Report   21.      The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes in plenary session, the following members being present:                   MM. C. A. NØRGAARD, President                   J. A. FROWEIN                   E. BUSUTTIL                   G. JÖRUNDSSON                   S. TRECHSEL                   B. KIERNAN                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS                   G. BATLINER              Mrs.   G. H. THUNE              Sir   Basil HALL   22.       The text of the Report was adopted by the Commission on 14 May 1987 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   23.        The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is:   1.       To establish the facts, and   2.       To state an opinion as to whether the facts found disclose a         breach by the State concerned of its obligations under the         Convention.   24.      A Schedule setting out the History of the Proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the applications as Appendix II.   25.      The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.      ESTABLISHMENT OF THE FACTS           Relevant Domestic Law and Practice   Prevention of terrorism legislation   26.      In the United Kingdom special legislation has been introduced for the purpose of combating terrorism in Northern Ireland or connected with the affairs of Northern Ireland.   27.      The Prevention of Terrorism (Temporary Provisions) Act 1984 substantially re-enacted the 1976 Act of the same name which in turn had re-enacted the 1974 Act.   28.      The exceptional powers in the 1974 and 1976 Acts were subject to periodic renewal by Parliament and the operation of both Acts was a subject of reports first by Lord Shackleton in 1978 (Cmnd. 7324) and then in 1983 by Lord Jellicoe (Cmnd. 8803).   In re-enacting the 1976 Act, the 1984 Act takes account of recommendations made by Lord Jellicoe.   As in the case of the earlier Acts, the exceptional powers in the 1984 Act are subject to periodic renewal.   Under Section 17 of the 1984 Act they had an initial life of one year.   They were renewed on 22 March 1985 and 21 March 1986 in accordance with Section 17 (2) of the 1984 Act.   The Act as a whole will expire, under Section 17 (3), on 21 March 1989.   It cannot thereafter be renewed and primary legislation will be needed if these powers are still considered necessary.   In order to assist consideration of the need to renew the powers in the Act, Sir Cyril Philips was appointed to look annually at its operation.   He has reported on two occasions.   Section 12 of the 1984 Act   29.      The relevant parts of Section 12 of the 1984 Act provide as follows:   "(1)      A constable may arrest without warrant a person whom he reasonably suspects to be -           (a) a person guilty of an offence under section 1, 9, 10         or 11 of this Act;           (b) a person who is or has been concerned in the commission,         preparation or instigation of acts of terrorism;           (c) a person subject to an exclusion order.   .....   (3)      The acts of terrorism to which this Part of the Act applies are -           (a) acts of terrorism connected with the affairs of         Northern Ireland; and           (b) acts of terrorism of any other description except acts         connected solely with the affairs of the United Kingdom         or any part of the United Kingdom other than Northern         Ireland.   (4)      A person arrested under this section shall not be detained in right of the arrest for more than forty-eight hours after his arrest; but the Secretary of State may, in any particular case, extend the period of forty-eight hours by a further period or periods specified by him.   (5)      Any such further period or periods shall not exceed five days in all.   (6)      The following provisions (requirement to bring an accused person before the court after his arrest) shall not apply to a person detained in right of the arrest -   ...      (d)      Article 131 of the Magistrates' Courts (Northern         Ireland) Order 1981; ..."   30.      For an arrest made under Section 12 to be lawful it must comply with the provisions of the Section, in particular, as to the existence of reasonable grounds for the suspicion held.   In addition, an arrest is lawful only if the person arrested is informed of the true grounds for the arrest in accordance with the requirements of a valid arrest set down by the House of Lords in the decision of Christy v.   Leachinsky [1947] A.C. 573 (see, in this respect, Van Hout v.   Chief Constable of the R.U.C. and the Northern Ireland Office, decision of the Northern Ireland High Court of 28 June 1984).   31.       A person who considers that his arrest or detention under Section 12 is unlawful can challenge his arrest or detention by seeking the remedy of habeas corpus or by taking civil proceedings for damages for false imprisonment.   In addition, the decision of the Secretary of State to extend the period of detention under Section 12 (4) is reviewable by the High Court.   If the initial arrest is unlawful there is no power lawfully to extend the period of detention and a decision to do so would be quashed by a court on an application for judicial review.   32.       Paragraph 5 (2) of Schedule 3 to the 1984 Act provides that when a person is detained under Section 12 he is deemed to be in legal custody.   This provision does not, however, preclude the above remedies being sought by the arrested or detained person (see Van Hout v.   Chief Constable of the R.U.C. and the Northern Ireland Office, loc. cit.).   Particular circumstances of the case   33.      The first applicant, Mr.   Terence Patrick Brogan, was arrested at his home at 06.15 a.m. on 17 September 1984 by police officers under Section 12 of the 1984 Act.   He was taken to Gough Barracks, Armagh, where he was detained continuously until his release at 17.20 hours on 22 September 1984.   He had been informed on 18 September 1984 by police officers that the Secretary of State for Northern Ireland had agreed to extend the period of his detention for a further five days under Section 12 (4) of the 1984 Act.   He was detained for a period of five days and 11 hours.   34.      The second applicant, Mr.   Dermot Coyle, was arrested at his home at 06.35 hours on 1 October 1984 by police officers under Section 12 of the 1984 Act.   He was taken to Gough Barracks, Armagh, where he was detained continuously until his release at 23.05 hours on 7 October 1984.   He had been informed on 2 October 1984 by police officers that the Secretary of State for Northern Ireland had agreed to extend the period of his detention for a further five days under Section 12 (4) of the 1984 Act.   He was detained for a period of six days and 16½ hours.   35.      The third applicant, Mr.   William McFadden, was arrested at his home at 07.00 hours on 1 October 1984 by a police officer under Section 12 of the 1984 Act.   He was taken to Castlereagh Police Holding Centre, Belfast, where he was detained continuously until his release at 13.00 hours on 5 October 1984.   He had been informed on 2 October 1984 by police officers that the Secretary of State for Northern Ireland had agreed to extend the period of his detention for a further five days under Section 12 (4) of the 1984 Act.   He was detained for a period of four days and 6 hours.   36.      The fourth applicant, Mr.   Michael Tracey, was arrested at his home at 07.04 hours on 1 October 1984 by police officers under Section 12 of the 1984 Act.   He was taken to Castlereagh R.U.C. Station, Belfast, where he was detained continuously until his release at 18.00 hours on 5 October 1984.   He had been informed on 2 October 1984 by police officers that the Secretary of State for Northern Ireland had agreed to extend the period of his detention for a further five days under Section 12 (4) of the 1984 Act.   He was detained for a period of four days and 11 hours.   37.      All of the applicants were informed by the arresting officer that they were being arrested under Section 12 of the 1984 Act and that there were reasonable grounds for suspecting them to have been involved in the commission, preparation and instigation of acts of terrorism connected with the affairs of Northern Ireland.   They were cautioned that they need not say anything but that anything they did say might be used in evidence.   38.      The applicants were not informed by police officers of the details of any criminal offence that they were alleged to have committed, or given any other reason for their arrest and detention apart from the information set out above.   They were not brought before a judge or other officer authorised by law to exercise judicial power or given any opportunity for release on bail.   39.      Following their release they were not charged with any criminal offence.     III.     SUBMISSIONS OF THE PARTIES           The Applicants           Article 5 para. 1 (c)   40.      The applicants submit that they were arrested and detained solely for the purpose of interrogation and that their arrest was not used, as required by Article 5 para. 1 (c), to bring them before a competent legal authority.   41.      Under the ordinary criminal law an arrest will normally lead to a criminal prosecution, an appearance in court and a trial.   There must exist a firm intention to bring criminal proceedings at the time of the arrest.   In this sense the ordinary criminal law is fully compliant with Article 5 para. 1 (c).   42.      Thus Article 131 of the Magistrates' Court Order (NI) 1981 specifically provides that a person who is arrested without warrant shall be brought before a Magistrates' Court within 24 hours of his arrest or as soon as practicable thereafter but not later than 48 hours after his arrest.   43.      The purpose of arrest under common law has been described as follows by Lord Justice Lawton in the case of R v.   Houghton and Franciosy [1979] 68 CR.App.R. 197:           "We wish to state in the clearest possible terms that         police officers can only arrest for offences.   If they         think there is any difference between detaining and         arresting, they are mistaken. ...   They have no power,         save under the Prevention of Terrorism (Temporary         Provisions) Act 1976, to arrest anyone so that they can         make inquiries about him." (p. 205)   44.      Similarly Chief Justice O'Higgins in the case of the People v. Walsh [1980] I.R.294 - decision of the Irish Supreme Court - stated that:         "an arrest and subsequent detention is only justified         at common law if it is exercised for the purpose for         which the right exists which is bringing an arrested         person to justice before a court."   45.      It is clear, however, that the purpose of an arrest under Section 12 of the 1984 Act is to permit interrogation of persons who are not primarily arrested for the purpose of being brought before a competent legal authority.   This is reflected in the fact that the statutes dealing with emergency provisions such as the 1984 Act and the Northern Ireland (Emergency Provisions) Act 1976 contain no reference to the necessity to bring a suspect before a court.   In this connection Section 12 (6) specifically repeals Article 131 of the Magistrates' Court Order (NI) 1981 referred to above.   46.      The statistics relating to the numbers of persons arrested under the prevention of terrorism legislation and released without charge, support the view that there is a policy to detain for the purpose of interrogation.   Thus around 15 - 24 per cent of those arrested are brought to court.   In a radio interview the Secretary of State (Mr.   Leon Brittan), referring to the statistics, stated as follows:           "I think that is a very misleading figure because that         suggests that the purpose of the detention is simply         to bring a charge.   If that were so, there might almost         be no need for the legislation.   What the figures do not         tell is how much information was obtained not only about         the people concerned but about others and how many         threats were averted as a result of obtaining information         from those who were detained."             In another part of the interview he stated that           "the object of the exercise is not just to secure         convictions but to secure information."   47.       Northern Ireland courts have, moreover, consistently held that the purpose of arrest under Section 12 is that of interrogation.   Thus in Ex parte Lynch [1980] N.I.Rep, Lord Justice Lowry stated as follows:           "An arrest (under Section 12) is not necessarily ...         the first step in a criminal proceeding against a suspected         person on a charge which was intended to be judicially         investigated.   Rather it is usually the first step in the         investigation of the suspected person's involvement in         terrorism." (p. 126)   48.      This view was accepted by Mr.   Justice Higgins in the Van Hout case (loc. cit., p. 15) and also by Lord Justice Kelly in the case of McKearney v. the Chief Constable of the Royal Ulster Constabulary (decision of the Northern Ireland High Court, November 1985).   49.      It is submitted that under Article 5 para. 1 (c) there must exist a firm intention at the time of arrest to bring the applicant before a court as well as a firm intent to bring criminal proceedings against him.   In this connection reference is made to the report of the Commission in the case of McVeigh, O'Neill and Evans (Comm.   Report, 18.3.81, D.R. 25, para. 198).   50.      However, as the above references show, the purpose of arrest under Section 12 is merely to interrogate the person and the intention to bring criminal proceedings only arises if, after interrogation, there is sufficient evidence to bring the person before a court.   51.      Accordingly, the primary purpose of Section 12 is a radical departure from the common law view of arrest.   For this reason, the applicants' detention cannot fall within Article 5 para. 1 (c).           Article 5 para. 3   52.      The applicants point out that the arresting authorities had no intention of bringing them before a judge or other judicial officer promptly or at all unless they, by their own admission, provided admissible evidence of involvement in terrorist offences.   53.      It is submitted that the term "promptly" means acting with speed.   Thus Article 131 of the Magistrates' Court Order (NI) 1981 requires that a person charged with an ordinary criminal offence be brought before a magistrate within 24 hours of his arrest or, if this is not possible, no later than 48 hours after his arrest.   54.      Courts in Northern Ireland sit from early morning until late afternoon, Monday to Friday inclusive and for half a day on Saturday and occasionally, by special arrangements, at other times.   A court is therefore always available within 18 hours, at weekends within 42 hours and, by special arrangements, within a lesser period.   55.      The applicants further submit that the principal reason why they were not brought promptly before a court is because the purpose of arrest under Section 12 is to question the arrested person and not to bring him before a competent judicial authority.   Finally, they submit that they are entitled to benefit from the presumption of innocence since no criminal charges have been brought against them. They deny that they were skilled in anti-interrogation techniques or that they showed skill in resisting interrogation during their detention.           Article 5 para. 4   56.      The applicants submit that it is not open to them to challenge, before the Northern Ireland courts, the compatibility of their arrest with Article 5 paras. 1 (c) and 3 of the Convention.           Article 5 para. 5   57.      An action for damages for false imprisonment is dependent on their arrest and detention being unlawful and therefore, in the present case, would be bound to fail since they concede that they were validly arrested under the laws of Northern Ireland.   The applicants contend that they have no enforceable right to compensation under Northern Ireland law for an arrest and detention which is contrary to Article 5 para. 1.           Article 13   58.      The applicants maintain that they have no effective remedy in respect of their complaint that they have been arrested and detained in breach of Article 5 paras. 1 and 3 of the Convention.               The Respondent Government           As to Fact   59.      The Government state that all of the applicants were arrested because the police had reasonable grounds for suspecting them to have been involved in the commission, preparation or instigation of acts of terrorism in Northern Ireland.   The first applicant, Brogan, was suspected of involvement in an act of terrorism carried out in County Tyrone where, on 11 August 1984, a police mobile patrol was attacked.   A 500 lb bomb exploded under the roadway as a police vehicle was passing.   As a result of the attack, a police sergeant died and another police officer was seriously injured.   The second applicant, Coyle, was suspected of involvement in several acts of terrorism, including the planting of a land mine intended to kill members of the security forces in County Tyrone on 23 February 1984 and a blast incendiary bomb attack in County Tyrone on 13 July 1984. The third applicant, McFadden, was suspected of involvement in several acts of terrorism, including the murder of a soldier and a bomb attack in Londonderry on 15 October 1983 and the murder of another soldier during a petrol bomb and gunfire attack in Londonderry on 23 April 1984.   The fourth applicant, Tracey, was suspected of involvement in the armed robbery of post offices in Londonderry on 3 March 1984 and 29 May 1984 as well as a conspiracy to murder members of the security forces.   60.      During their detention the applicants were questioned about their involvement in the above-mentioned incidents and about suspected membership of the Provisional IRA - a terrorist organisation proscribed under Section 21 of the Northern Ireland (Emergency Provisions) Act 1978.   61.      The Government do not accept the applicants' claim not to be skilled in interrogation techniques.   In this respect they point out that in the course of the extensive interviews by the police during their periods of detention, the applicants maintained almost total silence and failed to respond in any way to the questions put to them. In addition, their behaviour made it difficult for the interviews to proceed.   For example, Mr.   Brogan turned away from his questioners during interviews and stared at the floor and periodically stood up to attention.   Mr.   Tracey sought to disrupt the interviews by rapping on heating pipes in the interview room, singing, whistling and banging his chair against the walls.   Mr.   Coyle and Mr.   McFadden behaved in a similar manner.   62.      Nevertheless the Government accept that, since the applicants have not been charged with any offence, it should be assumed that none of them was, in fact, involved in terrorist acts.             Article 5 para. 1 (c)   63.      The Government submit that the applicants' arrest and detention was justified under Article 5 para. 1 (c) for the purpose of bringing them before a court on reasonable suspicion of having committed an offence.   At the time of their arrest, there were insufficient grounds for arresting them on suspicion of having committed a specific offence.   There were, however, reasonable grounds for suspecting them of involvement in acts of terrorism, i.e. use of violence for political ends, a criterion which the Court has recognised to be in keeping with the idea of an "offence" (Ireland v. United Kingdom, para. 196).   They were arrested with a view to charging them with a specific offence if the necessary further evidence could be obtained.   In the event, no further admissible evidence was obtained and they were released as soon as it became apparent that no charges could be preferred against them.   64.      The Government recall the applicants' concession that the arresting officer had a reasonable suspicion that they had each been involved in acts of terrorism when effecting the arrest.   However the applicants submit that the concept of "reasonable suspicion" requires a suspicion on the part of the arresting authorities which is of itself sufficient to found a criminal prosecution before a court.   The Government contend that the applicants have confused the concept of "reasonable suspicion" and the concept of "admissible evidence" of an offence - which is what is required before a criminal prosecution can be initiated.   65.      Article 5 para. 1 (c) does not require that there must be sufficient admissible and usable evidence to bring immediate charges. Such an interpretation unjustifiably narrows the proper scope of this provision and would exclude numerous arrests even for offences wholly unconnected with terrorism, where the arresting officer has strong grounds for suspecting that a person has been involved in the commission of the offence but where it is necessary to question the suspect to carry out further inquiries before there is sufficient evidence to justify the bringing of charges.   66.      Under Section 12 not only is a reasonable suspicion required that the person arrested has been involved in a criminal act but there must also be a firm intention to charge and prosecute the person concerned with a criminal offence in the event that admissible and usable evidence becomes available.   There is no other purpose for the arrest.   This is made clear in a circular to police forces in England and Wales issued in March 1984 as a guidance to the 1984 Act.   Para. 92 of that circular states as follows:           "the prime objective of the exceptional powers in Section         12 is to enable proceedings to be instituted against persons         involved in terrorism as a result of the additional         investigations they make possible."   It is also borne out by statistics contained in the Jellicoe Report which show that in the period from November 1974 to September 1982 some 1,975 persons were detained under the Act in Northern Ireland. Of these, some 847 persons were charged with offences under the Act or with other serious offences.   67.      The particular dilemma which faces the police when effecting an arrest under Section 12 is that although there may be ample material to found a suspicion that a person is involved in terrorist offences, such material cannot be used in court either because it is inadmissible as evidence or because its use would reveal the identity of informants or endanger an informant's life or the lives and safety of his family or of other witnesses.   Consequently, although it is the firm purpose to bring charges, there is frequently insufficient admissible and usable evidence available at the time of arrest to give immediate effect to that purpose.   However, if the police consider that they have obtained sufficient evidence before the expiry of the seven-day period they must bring the person before a court.           Article 5 para. 3   68.      In determining the meaning of "promptness" it is clear from the decided case law that each case must be assessed according to its own features.   In normal circumstances, and in the absence of special features, periods of detention in excess of five days will not satisfy the requirement.   Thus, in the Commission's decisions on the admissibility of Applications Nos. 2894/66 (Yearbook IX, p. 564) and 4960/71 (Collection   Dec. 42, p.49) periods of four and five days respectively were held to satisfy the requirement of promptness.   It is submitted that, even in the absence of the special features which arise in relation to the detention of suspected terrorists, the requirement of promptness was satisfied in relation to Mr.   McFadden who was detained for four days and six hours, and Mr.   Tracey for four days and eleven hours.   69.      The Government further submit that in the case of arrest and detention of persons reasonably suspected of involvement in acts of terrorism very special features which were absent in cases previously examined by the Commission and the Court justify somewhat longer periods of detention before the person concerned is brought before a court or released.   Each of the previous cases determined by the European Court of Human Rights concerns detention for offences of a military character or offences under the ordinary criminal law (De Jong, Baljet and Van Den Brink judgment of 22 May 1984, Series A no. 77;   Duinhof and Duijf judgment of 22 May 1984, Series A no. 79; Van der Sluijs, Zuiderveld and Klappe judgment of 22 May 1984, Series A no. 78; Skoogström judgment of 2 October 1984, Series A no. 83; McGoff judgment of 26 October 1984, Series A no. 83).   None of these cases was concerned with terrorist offences and none had the special features which characterise such offences.   70.      A special feature of terrorist offences is the difficulty of obtaining evidence which is admissible and usable, given the training of major terrorist groups and the techniques of remaining silent under police questioning.   Such considerations are fully discussed in the Jellicoe and Shackleton reports.    Moreover, as Lord Jellicoe noted in paragraph 60 of his Report, even where initial admissions were made in the early stages of detention, there were often a number of reasons why a period of extension might prove essential.   These included the need for time to undertake any necessary scientific or forensic examinations, to co-relate intelligence from other detainees and to liaise with other security forces.   The conclusion in the Jellicoe Report as to the vital need for a power of extension is borne out by the statistics in Table 10 to the Report, from which it is apparent that some 772 charges out of the total of 847 charges preferred in the period from November 1974 to September 1982 were preferred after the grant of an extension.   71.      The Government contend that a second special feature of terrorist offences is the difficulty, in view of the acute sensitivity of some of the material on which the suspicion is based, of producing it to a court.    While there may be ample material to found a suspicion that a person is involved in terrorist offences, such material cannot be produced in court, since its use would compromise the source of the information and endanger the informant's life or the lives or safety of his family, or of other witnesses.   On the other hand, if such material is not produced, there is the equally real risk that a terrorist will go free even though there exists an overwhelming case against him.   72.      In the view of the Government, the above dilemma could not be satisfactorily resolved either by excluding the detainee and his advisers from any court proceedings or by entrusting to a court rather than to the Secretary of State the power to grant extensions under Section 12.   The former proposal would require a fundamental and undesirable change in the law and procedure in the United Kingdom under which an individual is entitled to attend in person and with his legal advisers any court proceedings relating to his continued detention.   As to the latter proposal, in addition to involving the disclosure of sensitive information outside a strict circle, such a change would inevitably lead to a lack of consistency of approach and to a weakening of the safeguards against abuse which the present arrangements are designed to achieve.   In this context the Government recall that the process of extension by the Secretary of State is not an automatic one.   Each application is carefully scrutinised.   73.      In the submission of the Government, by reason of these special features which are unique to cases of suspected terrorism, the requirement of promptness was met in each of the present cases.        Article 5 para. 4   74.      It is clear from the judgment in the Van Hout case that a court on a habeas corpus application could not only review the procedural lawfulness of the arrest and detention but could also have examined whether there existed any reasonable grounds for the suspicion on the basis of which the arrest was made.   In any such review the onus would have been on the respondent to satisfy the court by evidence that the suspicion was reasonable.   Accordingly, the remedy of habeas corpus satisfies the requirements of Article 5 para. 4 in the present case.           Article 5 para. 5   75.      It is clear from the constant jurisprudence of the Court and the Commission that this provision only has application insofar as an arrest or detention has been found by the domestic courts or by the Commission to fall outside Article 5.   As in the McVeigh case, the domestic courts have not found the present applicants' arrest and detention to have been contrary to either domestic law or the Convention.   If the arrests had been found to be contrary to domestic law, the applicants would have had an enforceable right to compensation in the form of damages for wrongful arrest and false imprisonment.   Accordingly, it is submitted that since the applicants' arrest and detention was not in contravention of Article 5 this provision has no application.           Article 13   76.      It is submitted inter alia that since the applicants have not established even an arguable claim to be victims of violations of Article 5 this provision does not apply.   In addition, if the remedies of habeas corpus and damages for false imprisonment are sufficient to satisfy Article 5 para. 4 of the Convention, they must equally satisfy the less strict requirements of Article 13.     IV. OPINION OF THE COMMISSION   Points at issue   77.      The following are the principal points at issue in the cases:*   1.       Article 5 (Art. 5) of the Convention   -        Whether the applicants' arrest and detention were justified under Article 5 para. 1 (c) (Art. 5-1-c);   -        whether the applicants were brought promptly before a judge or other officer authorised by law to exercise judicial power as required by Article 5 para. 3 (Art. 5-3);   -        whether the applicants were able to take proceedings by which the lawfulness of their detention could be decided speedily by a court within the meaning of Article 5 para. 4 (Art. 5-4);   -        whether the applicants had an enforceable right to compensation as required by Article 5 para. 5 (Art. 5-5).   2.       Article 13 (Art. 13) of the Convention           Whether the applicants had an effective remedy as regards their Convention complaints within the meaning of Article 13 (Art. 13).   General considerations   78.      The Commission recalls that its function is solely to consider whether the measures taken against the applicants constitute a breach of their rights under the Convention.   As the Commission and the Court have stated on numerous occasions, the Convention organs are not called upon to examine in abstracto the compatibility of legislation with the Convention (see in this context Eur.   Court H.R., Ashingdane judgment of 28 May 1985, Series A no. 93, para. 59).   The Commisison must, therefore, confine its attention to the concrete case.   At the same time the Commission, in the performance of its role under the Convention, must not lose sight of the general context of the case (ibid.).   79.      In this regard the Commission observes that all the applicants were arrested and detained under prevention of terrorism legislation.   As the Commission pointed out in the cases of McVeigh, O'Neill and Evans v. the United Kingdom: ______________ * The applicants declared, during the hearing, that they did not wish to pursue their complaint under Article 5 para. 2 (Art. 5-2) of the Convention (see above, para. 15).     "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 ... 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, para. 49) ..."   (Comm.   Report, 18.3.81, D.R. 25, p. 15, para. 157)   80.      It is against the background of a continuing terrorist threat in Northern Ireland and the particular problems confronting the security forces in bringing those responsible for terrorist acts to justice that the issues in the present case must be examined.   In such a situation the Convention organs must remain vigilant that a proper balance is struck between the protection of individ