Law Report: Terrorism provisions upheld: Brannigan and McBride v United Kingdom - European Court of Human Rights, 26 May 1993

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The United Kingdom's derogation from its obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms, in order to permit continued use of the powers of arrest and extended detention under the Prevention of Terrorism (Temporary Provisions) Act 1984, was a measure required by the exigencies of a situation amounting to a 'public emergency' under article 15 of the Convention, and therefore did not violate the right to liberty and security of the person guaranteed by article 5.

The European Court of Human Rights ruled, by 22 votes to four, that in view of the UK's derogation of 23 December 1988, there had been no violation of article 5 when the two applicants, Peter Brannigan and Patrick McBride, were arrested on suspicion of involvement in terrorist acts, and then detained for a period extended by order of the Secretary of State for Northern Ireland, under section 12(1)(b) and (4) of the 1984 Act.

Article 5 of the Convention provided that 'Everyone has the right to liberty and security of person', and, inter alia, that a person arrested or detained on reasonable suspicion of having committed an offence should be brought promptly before a judge.

Article 15 provided that 'In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation . . .'

THE COURT considered that in the light of the extent and impact of terrorist violence in Northern Ireland and elewhere in the UK, there could be no doubt that there was a 'public emergency' within the meaning of article 15. Judicial control of interferences by the executive with the individual's right to liberty, provided for by article 5, was implied by one of the fundamental principles of a democratic society, namely the rule of law.

The power of arrest and extended detention had been considered necessary by the UK government since 1974 in dealing with the threat of terrorism. Following the court's decision in Brogan (Case No 10/1987/133/184-187), the Government had been faced with the option of either introducing judicial control of the decision to detain, or lodging a derogation from their Convention obligations in this respect. There was no indication that the derogation was other than a genuine response to an emergency situation.

It was not the court's role to substitute its view, as to what measures were most appropriate or expedient at the relevant time in dealing with an emergency, for that of the government having direct responsibility for establishing the balance between the taking of effective measures to combat terrorism on the one hand, and respectiving individual rights on the other.

In the context of Northern Ireland, where the judiciary was small and vulnerable to terrorist attacks, public confidence in the independence of the judiciary was understandably a matter which the government attached great importance. It could not be said that the government had exceeded the margin of appreciation in deciding, in the prevailing circumstances, against judicial control.

The court noted that the remedy of habeas corpus was available to test the lawfulness of the original arrest and detention of suspects under the Act, that this remedy satisfied the requirements of article 13, and that the operation of the Act had been kept under regular independent review.

Having regard to all the circumstances, the court considered that the government had not exceeded its margin of appreciation in considering that the derogation was strictly required by the exigencies of the situation.

Paul Magrath, Barrister