I, R (on the application of) v City of Westminster Magistrates' Court & Anor

MR JUSTICE COLLINS: This case was originally listed as an urgent application because it was said that the claimant, who was detained under section 41 of the Terrorism Act 2000 and in respect of whom the Senior District Judge had agreed that there should be a further detention of seven days, ought to have been able to be released on conditional bail. It was said that the provisions of the Terrorism Act precluded the District Judge from releasing on conditions, and indeed there was no power on the face of it for any court to make such an order.

The order of the District Judge was made last Thursday and runs until half past five this afternoon. It was unfortunate, perhaps, that the Bank Holiday weekend intervened and, for reasons into which I do not need to go, it was not possible for this matter to be listed before the court until this afternoon. As it happens, the information available now from Mr Johnson, who has appeared on behalf of the Greater Manchester Police, which is the force concerned in the investigation against the claimant, is that he is due to be charged this afternoon, of course before the period permitted by the Senior District Judge expires at half past five.

Accordingly, as Mr Gottlieb recognises, the need for the urgent application has disappeared and the matter to that extent has become academic. However, what the claim asserts is that there is or should be a power under the relevant provisions, particularly having regard to Article 5 of the European Convention on Human Rights, to enable the District Judge to release upon conditions before any charge, and the absence of that power is such as to render section 41 and Schedule 8 of the Terrorism Act, which contains the detailed provisions relating to the powers exercisable in relation to someone detained under section 41 incompatible with Article 5.

It seemed to me that as the matter was before me, it was desirable, if possible and if appropriate, that I should consider whether in reality there was any arguable claim. Mr Gottlieb, perfectly understandably, is not in a position to indicate whether, assuming his client is charged this afternoon, he would consider it appropriate to withdraw or to maintain the claim, perhaps with a view to determining whether there was any power to compensate his client in relation to a period he was in custody when, on his argument, he ought not to have been in custody. It is perfectly true that that claim has not been formulated, but the matter is clearly something which he might have to consider. But if there is no possible arguable claim, it is, in my judgment, sensible that that should be made clear at this stage.

Section 41 of the Terrorism Act gives a power to a police officer to arrest and to detain an individual whom he reasonably suspects to be a terrorist. That means that there is a power of arrest which does not depend upon reasonable suspicion of the commission of any particular offence, and is a power which is wider than that normally available to police officers. But if a person is arrested, he must, subject to powers contained in Schedule 8 to the Act, be released not later than the end of the period of 48 hours, beginning with the time of his arrest or, if he has been arrested under other powers, at the time his examination under Schedule 7 of the Act applied. In the circumstances of a case such as this, the period of 48 hours runs from the time he was arrested under section 41.

Schedule 8 of the Act contains detailed provisions relating to what should be done in relation to someone detained under section 41. As far as further detention is concerned, that is covered initially by Part 3 of the Schedule, starting with paragraph 29, which enables a police officer of at least the rank of superintendent to apply to a judicial authority for the issue of a warrant of further detention under that part of the Schedule. That can authorise a further detention under section 41 for a specified period not exceeding seven days. Such an application must be put before a District Judge. By paragraph 32 the District Judge can only issue a warrant of further detention if satisfied that (a) there are reasonable grounds for believing that the further detention of the person to whom the application relates is necessary, as mentioned in subparagraph (1A), and (b) the investigation in connection with which the person is detained is being conducted diligently and expeditiously. Subparagraph (1A) provides that such detention is necessary:

Those provisions identify a number of possible offences which he may have committed. Section 40(1)(b) is an offence involving concern in the commission, preparation or instigation of acts of terrorism, but is a specific criminal offence laid down by the Terrorism Act.

Thus, although the detention is justified where the belief is that the individual is a terrorist, even though there may not be sufficient material to justify an arrest for any particular offence, nevertheless the purpose of the detention is quite plainly to endeavour to produce evidence which justifies the charging of the individual in question. The whole purpose is to decide whether as a result of the investigation carried out whilst the individual is in detention, there is sufficient to justify the charging or, obviously, if the situation is reached where there is no further power to continue detention but there is still the possibility that further enquiries may turn up sufficient to justify such a charge, it may be necessary to release, but to keep the individual under surveillance of one sort or another.

Section 3 of the Bail Act 1976 deals with general powers to grant of bail, and the requirement that bail be considered and there is the possibility of various conditions being imposed in order to ensure that an individual does not abscond or does not commit further offences on bail. Section 3 itself applies on the face of it to bail granted by a court. But section 3A of the Act applies section 3, subject to certain modifications, to bail granted by a custody officer under Part 4 of the Police and Criminal Evidence Act 1984 or Part 3 of the Criminal Justice Act 2003. However, section 41 and Schedule 8 of the Terrorism Act is not legislation which is within the terms of section 3A of the Act.

It follows that, on the face of it, there is no power in the custody officer to grant bail on any conditions in relation to a detention under section 41. That that is the situation seems to be confirmed by paragraph 1.6 of Code H of the Codes of Practice under the 1984 Act, which is a Code in connection with the detention, treatment and questioning by police officers of persons under section 41 of, and Schedule 8 to, the Terrorism Act 2000. Paragraph 1.6 provides that there is no provision for bail under the Terrorism Act prior to charge. Normally speaking, a court would not be concerned with bail prior to charge because in cases which are not affected by the Terrorism Act, the power to detain in custody lasts only for a maximum of 48 hours. If there is a desire to detain further there must be a charge, and that carries with it the right to go to a court in order to obtain bail. The whole point of the Terrorism Act was that the period was extended to 28 days. It is possible that legislation may be passed in which that period of 28 days is lengthened somewhat. However, that is not a matter with which I have to concern myself directly.

The detention, as it seems to me, is properly to be regarded as falling within Article 5(1)(c) of the European Convention on Human Rights, which provides that:

The purpose of detaining an individual under section 41 is just that, namely it is for the purpose of bringing him before a competent legal authority on reasonable suspicion of having committed an offence. It is not necessary within Article 5(1)(c), as I see it, that there should exist such reasonable suspicion to justify the initial detention. It is the purpose of the detention that matters. Provided the law of the state in question makes such an arrest lawful, then it falls properly within Article 5(1)(c). But Article 5(3) provides that:

As far as trial or release pending trial is concerned, that is something which does not arise necessarily until a later stage. The important provision in Article 5(3) is the requirement that an individual must be brought promptly before a judge or other officer, and release may be conditioned by guarantees to appear for trial. As I say, that is, on the face of it, in the context of trial. But Article 5(4) provides that:

Articles 5(3) and (4) in their precise language are not necessarily explicitly applicable to circumstances such as this, but the principle behind them is perfectly clear, namely that anyone detained, and that will include anyone detained under section 41, must be able to have a court decide whether that detention should be allowed to continue or whether he should be released. That is precisely what the provisions of Schedule 8 provide for, namely that detention can only continue after 48 hours if a court so decides. It is perfectly clear from the Strasbourg jurisprudence that 48 hours is an entirely reasonable period and the requirement that he is brought before a court not later than 48 hours complies with the obligation that there should be a prompt consideration by a court or a judicial officer.

In those circumstances, as I say, it is, as I see it, clear that there is a compliance with the requirements of Article 5, in that any detention has to be justified before initially a magistrate and after a total of 14 days, if a magistrate decides that it is appropriate to grant the extension or extensions, a High Court judge. The High Court judge has the power to decide, after the first 14 days, whether there should be further extension for seven and thereafter for a further seven days, making a total of 28 days. There is no power to detain beyond 28 days. The decision must then be made whether to charge or whether there should be a release.

Mr Gottlieb relies on the decision of the European Court of Human Rights in McKay v United Kingdom, a decision of 3rd October 2006 (2006) ECHR 820. That case stemmed from Northern Ireland and the provisions of the Northern Irish relevant legislation. It involved the arrest of an individual who was suspected of having committed a robbery. It seems to me that the precise nature of the legislation is perhaps not of central materiality to what I have to decide. On the other hand, it is worth noting that the basis upon which the applicant's application was rejected by the High Court in Belfast was that there was nothing in the text of Article 5, nor in the jurisprudence of the European Court, which required that the court before which an arrested person must be brought should be the same court that had power to grant him bail. It was said that he must be brought promptly before a court or an officer authorised to exercise judicial power. He must also have the opportunity to apply for bail. It is not necessarily the case, said Kerr J, that these two separate and distinct rights required to be vindicated at the same time or in the same forum. Provided that the arrested person was brought promptly before a court that has power to review the lawfulness of his detention and he had the opportunity to apply without undue delay for release, the requirements of Article 5(3) were met.

The court made the point that the judicial control on the first appearance of an arrested individual must be prompt, and it indicated that periods of more than four days in detention without appearance before a judge were in violation of Article 5(3) even in the special context of terrorist investigations. It was said that the review had to be automatic and could not depend upon the application of the detained person. The judicial officer must offer the requisite guarantees of independence. There is no problem in relation to that.

The court went on to indicate that there was no ground for concluding that the review must as a matter of automatic obligation cover the release of the applicant pending trial, with or without conditions, for reasons aside from the lawfulness of the detention or the existence of reasonable suspicion that he had committed a criminal offence. Nor was there authority for finding that the first obligatory appearance before a judge had to encompass the power to grant release on bail. However, the initial automatic review of arrest and detention must be capable of examining lawfulness issues and whether or not there was a reasonable suspicion that the arrested person had committed an offence, i.e. that it fell within the permitted exceptions set out in Article 5(1)(c).

Then, in paragraph 45, the court said this:

It is that largely which persuades Mr Gottlieb to argue that the court must have power to be able to release on bail, and thus power to impose conditions if the court decides that such conditions are necessary.

As it seems to me, the legislation with which we are concerned does contain the necessary safeguards, without there being a question of power to release on bail. The purpose of the application before the judge is to persuade him that detention should continue in accordance with the powers contained in the Act and subject to the principles upon which those powers have to be exercised. Those principles are contained in paragraph 32 of Schedule 8, which indicates that detention can only be justified if it is for the purpose of obtaining relevant evidence of the commission of an offence and that it is necessary that he be detained in order to obtain that material.

If the judge were to decide that detention was not necessary, whether because there was non-compliance with any of the conditions set out in paragraph 32 for whatever reason or because it was not necessary that detention be maintained in order to pursue the investigations, whether because of the individual circumstances of a detainee or otherwise, then the judge would not permit the detention to continue. While there is no power in the custody officer in those circumstances without more to grant bail on conditions, that situation can be dealt with very simply in this way. Either there can be a charge, if there is sufficient evidence to justify such a charge, in which case the normal provisions of the Bail Act will apply and there will be a right to apply for bail when the individual is brought before the Magistrates' Court. Alternatively, if there is sufficient evidence to justify an arrest on suspicion of having committed a specific offence (whether an offence under the Terrorism Act or otherwise, but normally one would expect an offence under the Terrorism Act) that arrest can be effected, whereupon there would be the general powers provided for by section 3A of the Bail Act and the custody officer in those circumstances would have the normal powers to impose conditions. True, he would not be able to impose a condition of tagging because his powers are limited by section 3A. Nevertheless, conditions could be imposed. The District Judge, and equally a High Court judge if a further application had to be made before a High Court judge, will be aware of that situation.

The reality is that detention will not be authorised unless, in accordance with the principles that are clearly applicable under Article 5, the court is satisfied that detention is justified and needed in order to enable there to be a proper examination of the terrorist offence. The protection for the individual lies in precisely that, namely the judicial control over whether there should be further detention.

As it seems to me, the case of McKay was decided in the context of the factual situation where there was a particular offence, but does not as a matter of principle require that the District Judge or the judicial authority in circumstances arising under the Terrorism Act, section 41 detention, should have a power to release on conditional bail of one sort or another. He must decide, as I say, whether detention is justified. He may decide that it is not because it is not necessary that the individual be remanded in custody to enable the proper enquiries to continue to be carried out. In which case there are remedies, if the police consider that it is necessary for conditions to be imposed, which can be applied. If there is no justification for deciding that there is sufficient evidence to show reasonable suspicion that an offence has been committed, then it would be no surprise that there is no justification in detaining an individual further.

In those circumstances, I am entirely satisfied that this claim is an unarguable claim. Accordingly, as it seems to me, the right course for me to adopt is to make that clear and so to refuse permission for any form of judicial review.

MR GOTTLIEB: My Lord, I do not know if it will be possible to obtain a transcript of your Lordship's judgment, because I do know that there are two other people who are being charged in relation to the — or investigated who were arrested slightly later.

MR JUSTICE COLLINS: I think I read someone else has been arrested recently for some other matter. This is a point which — this is why I decided it was desirable to give this judgment because it may arise in future. The answer is, yes, of course. Let me just check with the shorthand writer. (The judge conferred with the shorthand writer)

MR GOTTLIEB: I have to say that I would rather be allowed to have time to reflect before I make this application, because I would like to know what has happened to my client and take instructions.

MR JUSTICE COLLINS: Yes, of course.

MR GOTTLIEB: But I suppose strictly speaking I have got to go through every single available remedy, even though I have to say I never heard of this ever happening where a court has said that it is not an arguable case. I do not know whether there could be a procedure whereby if my client wanted to pursue this application, I could come back to your Lordship and ask for a certificate.

MR JUSTICE COLLINS: Not to me. But you have the right to appeal against my decision because this was a decision made on an oral application. Normally, if you decide to pursue it, you can go to the Court of Appeal within seven days. There is, I suppose, a possible argument that this could be a criminal cause or matter.

MR GOTTLIEB: That is what I was not sure about.

MR JUSTICE COLLINS: Of course, if it is a criminal cause or matter then I suppose, strictly, there is no appeal because I am sitting in vacation, as it were, as a Divisional Court.

MR GOTTLIEB: That is why I wondered strictly speaking I would have to ask for a certificate of a general point --

MR JUSTICE COLLINS: I am not going to....

MR GOTTLIEB: I would rather not ask for it.

MR JUSTICE COLLINS: Let me put it this way, what I will do, Mr Gottlieb, I fully understand your concerns, is I will say that any time for appeal or deciding on what you should do will not run until you receive a copy of the transcript.

MR GOTTLIEB: Thank you very much.

MR JUSTICE COLLINS: Which I think is the best I can do for you.

Mr Johnson, I do not know how valuable this decision will be, but what I propose to do is to say that, because normally decisions on permission are not used as authorities or not published unless the court gives the go-ahead, and I propose to give the go-ahead for that.

MR JOHNSON: I am grateful, my Lord. My Lord, I hesitate to raise it, but in the light of what your Lordship has just said, can I make one trifling correction to a slip of the tongue.

MR JUSTICE COLLINS: Yes, of course.

MR JOHNSON: I think you referred to the European Court of Justice, of course it was the European Court of Human Rights.

MR JUSTICE COLLINS: I am sorry, yes.

MR JOHNSON: My Lord, I am asked to seek the second defendant's costs of the judicial review. I do not have a schedule, given the time. I am asked to seek a nominal sum of £500, which I am told is --

MR JUSTICE COLLINS: That is nominal nowadays, is it?

MR JOHNSON: It is in Manchester, according to my instructing solicitor.

MR JUSTICE COLLINS: Mr Gottlieb, is your client legally aided?

MR GOTTLIEB: I think legal aid has been applied for.

MR JUSTICE COLLINS: You are not sure what the position is.

MR GOTTLIEB: I assume I was here pro bono. We did get a note from the CPS saying, "As it is no urgent we are not going to be sending counsel down", so we were not actually expecting anybody.

MR JUSTICE COLLINS: No, but I do not think that frankly is the point. You may not have been expecting --

MR GOTTLIEB: If one were to order costs, one would need to know what the client's finances are and I am afraid to say I simply do not have instructions.

MR JUSTICE COLLINS: The normal rule, as you know, is that the costs of the acknowledgement of service, if there is one, are granted and in a situation such as this, it would be not unusual to consider favourably a grant of costs, but I am not going to make any final decision today about that. I do not think it would be appropriate to do so. I note the request.

What I think I should do, Mr Johnson, is if this to be pursued, put in a schedule.

MR JOHNSON: Certainly, my Lord.

MR JUSTICE COLLINS: Serve it on the other side, and then, Mr Gottlieb, you can make any written representations that you consider appropriate --

MR GOTTLIEB: Thank you.

MR JUSTICE COLLINS: -- against that. The only other thing to consider is that if this is a criminal cause or matter, it may be that there is the possibility of costs out of central funds. You better look at that carefully, because the legislation only permits a Divisional Court to make such an order. There is a lacuna in the legislation, as you may know.

MR JOHNSON: Yes.

MR JUSTICE COLLINS: But there are provisions, I think, somewhere that indicate that in vacation the single judge can sit as a Divisional Court.

MR JOHNSON: I think that is right, (inaudible) instructing solicitors.

MR JUSTICE COLLINS: But equally, if you decide that this is a criminal cause or matter, and it may well be I think, although there is a certain amount of learning on the subject, as you know. I did persuade the Court of Appeal a long time ago that judicial review seeking prohibition of a committal trial was not a criminal cause or matter. A case called McCann; is it McCann?

MR JOHNSON: I think McCann was the antisocial behaviour.

MR JUSTICE COLLINS: No, this was an Irish, an IRA case.

MR JOHNSON: Oh, yes.

MR JUSTICE COLLINS: It may not be McCann, but it was Mc something. But as I say, the law is not entirely clear on this subject. But if there is, you might like to consider whether you can redirect your application there, because if there is any question of whether you can get the money, it is more likely to be able to be obtained from central funds if there is power and it is appropriate than from, I would suspect, the individual.

MR JOHNSON: Yes.

MR JUSTICE COLLINS: It may be that when you look into his means you may decide that it is not worth powder and shot anyway.

MR JOHNSON: It may well be.

MR JUSTICE COLLINS: How long do you want to consider this question of costs?

MR JOHNSON: For us to put in a schedule, seven days, my Lord.

MR JUSTICE COLLINS: Obviously, you will want to consider whether it is worth it.

MR JOHNSON: Yes. I suspect --

MR JUSTICE COLLINS: Put your schedule in in seven days, but when you receive the other side's representations you can have a further seven days to consider them, as to what your reaction is --

MR JOHNSON: I am grateful, my Lord.

MR JUSTICE COLLINS: -- which I think is the sensible thing. What, 14 days after you receive the schedule?

MR GOTTLIEB: Yes.

MR JUSTICE COLLINS: So seven, 14, seven, and then if necessary — I will not be here by then until the beginning of next term anyway.

All right. Thank you both very much. I am sorry that to an extent I have perhaps bulldozed you into dealing with this matter when you would rather not have done, but I think it is important that it should have been dealt with.

Mr Gottlieb, your Police and Criminal Evidence Act, for which many thanks. Do you want your case of McKay back or is that a spare copy?

MR GOTTLIEB: It is a spare copy.

MR JUSTICE COLLINS: Thank you, I will hang on to that. Thank you both.