Prevention of terrorism
II. RELEVANT DOMESTIC LAW AND PRACTICE A. Arrest and detention under the Terrorism Act 2000 90. 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. 1. Power of arrest 91. 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)). 92. Terrorism itself is defined in section 1 of the Act in these terms: “(1) ... the use or threat of action where– (a) the action falls within subsection (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 (c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.” 93. Section 1(2) covers action which: “(a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person’s life, other than that of the person committing the action, (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.” 94. 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. 95. Section 41(3) stipulates, in so far as relevant to the present case, that a person detained under section 41 shall, subject to the other provisions of the section and unless detained under any other power, be released not later than a period of forty-eight hours beginning with the time of his arrest under that section. 2. Periodic review 96. Schedule 8, Part II, of the 2000 Act sets out detailed provisions governing the detention of any person arrested under the Act. 97. 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 twelve hours. No review of a person’s detention should be carried out after a warrant extending his detention has been issued by a court (see paragraph 100 below). 98. Paragraph 23 entitles 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; or (c) pending the result of an examination or analysis of any 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 evidence that relates to the commission by the detained person of an offence set out in the 2000 Act or indicates that the detained person has been concerned in the commission, preparation or instigation of acts of terrorism. 99. 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. 3. Warrants of further detention issued by a judicial authority 100. Paragraph 29 of Schedule 8 entitles a Crown Prosecutor or senior police officer to apply to a court for the issue of a warrant of further detention. 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. Section 41(7) of the 2000 Act provides that where an application under paragraph 29 or 36 of Schedule 8 is granted in respect of a person’s detention, he may be detained during the period specified in the warrant. 101. Pursuant to paragraph 31 of Schedule 8, a detained person must be given notice of the application for a warrant of further detention and the grounds on which further detention is sought. Paragraph 33 allows the detained person an opportunity to make oral or written representations about the application for a warrant of further detention and provides a general entitlement to legal representation at the hearing. Pursuant to paragraph 33(3), the court may exclude the detained person and his solicitor from any part of the hearing. 102. Paragraph 34 provides that the person who has made an application for a warrant may apply for an order that specified information upon which he relies be withheld from the detained person and his solicitor. A court may make such an order only if satisfied that there are reasonable grounds for believing that, if the information were disclosed, evidence would be interfered with or harmed; the apprehension, prosecution or conviction of a suspected terrorist would be made more difficult as a result of his being alerted; the prevention of an act of terrorism would be made more difficult as a result of a person being alerted; the gathering of information about the commission, preparation or instigation of an act of terrorism would be interfered with; or a person would be interfered with or physically injured. 103. Paragraph 32(1) provides that a warrant of further detention may be issued only if there are reasonable grounds for believing that the further detention of the person is necessary and the investigation 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. “Relevant evidence” is evidence that relates to the commission by the detained person of an offence set out in the 2000 Act or indicates that the detained person has been concerned in the commission, preparation or instigation of acts of terrorism. 104. In Ward v. Police Service of Northern Ireland ([2007] UKHL 50), the House of Lords considered the fairness of the provisions of Schedule 8 in a case where 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. The appellant sought judicial review of the decision to grant the warrant of further detention and his claim was refused. His appeal to the House of Lords was subsequently dismissed. The Appellate 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. ...” 105. After careful consideration of the provisions of the 2000 Act permitting the detained person and his representative to be excluded from part of a hearing, the Committee stated as follows. “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. ...” B. Search powers under the 2000 Act 106. 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 the issue of a warrant for the purposes of a terrorist investigation authorising any constable to enter premises, search them and seize and retain any relevant material found. Pursuant to paragraph 1(3), material is relevant if the constable has reasonable grounds for believing that it is likely to be of substantial value to a terrorist investigation and it must be seized in order to prevent it from being concealed, lost, damaged, altered or destroyed. 107. 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 the 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. C. Judicial review 1. Appropriateness of remedy (a) Decisions to arrest and detain 108. In R (Rawlinson & Hunter Trustees and Others) v. Central Criminal Court & Anor [2012] EWHC (Admin) 2254, the claimant had been arrested and sought to challenge by way of judicial review the decision to arrest him. Although there was some discussion of whether judicial review was the appropriate forum, the police accepted that judicial review was the appropriate way to challenge the arrest decision and the Divisional Court agreed. It appears that the claimant had accepted in the proceedings before the court that there was no significant factual dispute between the parties and the claim could be resolved on the basis of the documentary evidence. (b) Decisions to grant search warrants 109. In Bell v. Greater Manchester Police [2005] EWCA Civ 902, the claimant sought to challenge the validity of a search warrant in private law proceedings. He complained that the warrant had been obtained on a misleading basis and that it did not properly identify the material the subject of the search. The Court of Appeal agreed with the first-instance judge that the proper avenue for challenge to the validity of the warrant was by way of proceedings for judicial review. 110. In R (Goode) v. Crown Court at Nottingham [2013] EWHC 1726 (Admin) the Administrative Court said: “51. The issue of a [search] warrant is a judicial act. It would be a novel and surprising development of the law if a court of equal jurisdiction enjoyed the power to declare invalid the judicial act of another ...” 111. The court emphasised that while a seizure of property without judicial authority could be challenged in the Crown Court, a warrant issued with judicial authority could subsequently be quashed or declared unlawful only by the Administrative Court in proceedings for judicial review of the power exercised by the Magistrates Court or the Crown Court. 112. In R (Lees and Others) v. Solihull Magistrates’ Court and Another [2013] EWHC 3779 (Admin), the Divisional Court, citing R (Goode), said that it was clear that the only forum for a challenge to the validity of a search warrant was in judicial review proceedings. 2. Appeal against a refusal to grant permission 113. Rule 52.15 of the Civil Procedure Rules (“CPR”) provides: “(1) Where permission to apply for judicial review has been refused at a hearing in the High Court, the person seeking that permission may apply to the Court of Appeal for permission to appeal.” 114. Section 18(1) of the Senior Courts Act 1981 provides, in so far as relevant: “ No appeal shall lie to the Court of Appeal– (a) ... from any judgment of the High Court in any criminal cause or matter” 115. In Amand v. Home Secretary and Minister of Defence of Royal Netherlands Government [1943] A.C. 147, the House of Lords decided that the refusal of an application for habeas corpus by a person arrested with a view to extradition was a decision in a “criminal cause or matter” (as set out in a predecessor Act). Viscount Simon LC held: “This distinction between cases of habeas corpus in a criminal matter, and cases when the matter is not criminal goes back very far ... It is the nature and character of the proceeding in which habeas corpus is sought which provide the test. If the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal.” 116. Lord Wright explained: “The principle which I deduce from the authorities I have cited and the other relevant authorities which I have considered, is that if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment such as imprisonment or a fine, it is a ‘criminal cause or matter.’ The person charged is thus put in jeopardy. Every order made in such a cause or matter by an English court, is an order in a criminal cause or matter, even though the order, taken by itself, is neutral in character and might equally have been made in a cause or matter which is not criminal. The order may not involve punishment by the law of this country, but if the effect of the order is to subject by means of the operation of English law the persons charged to the criminal jurisdiction of a foreign country, the order is, in the eyes of English law for the purposes being considered, an order in a criminal cause or matter ...” 117. Finally, Lord Porter held: “... This does not mean that the matter, to be criminal, must be criminal throughout. It is enough if the proceeding in respect of which mandamus was asked is criminal, e.g., the recovery of a poor rate is not of itself a criminal matter, but its enforcement by magistrates by warrant of distress is, and if a case be stated by them as to their right so to enforce it and that the case is determined by the High Court, no appeal lies ... The proceeding from which the appeal is attempted to be taken must be a step in a criminal proceeding, but it need not of itself of necessity end in a criminal trial or punishment. It is enough if it puts the person brought up before the magistrate in jeopardy of a criminal charge ...” 118. In R (Guardian News and Media Ltd) v. City of Westminster Magistrates’ Court [2011] EWCA Civ 1188, a newspaper had unsuccessfully requested access to documents referred to by the Magistrates’ Court in extradition proceedings. The Divisional Court upheld the ruling of the District Judge. The question arose in the Court of Appeal whether the proceedings were a “criminal cause or matter”. The newspaper accepted that the extradition proceedings themselves were a “criminal cause or matter” but submitted that the order refusing journalistic access to the underlying material was not. Lord Neuberger, delivering the judgment of the court, undertook a review of the authorities in the area and considered that the newspaper’s application had been wholly collateral to the extradition proceedings and made by someone not a party to those proceedings. The order of the District Judge did not invoke the Magistrates’ Court’s criminal jurisdiction and had no bearing upon the criminal (i.e. extradition) proceedings themselves. Lord Neuberger expressed the opinion that “any sort of final coherence in relation to the scope and effect of section 18(1)(a) can only be provided by the Supreme Court” and concluded that the best way of applying the “rather tangled” jurisprudence developed over the past thirty-five years, and ensuring maximum coherence, was to hold that the Court of Appeal had jurisdiction to hear the appeal in the case. 119. In its December 2014 judgment in Panesar & Others v HM Revenue and Customs [2014] EWCA Civ 1613 the Court of Appeal considered the meaning of “criminal cause or matter” in a case concerning retention, under section 59 of the Criminal Justice and Police Act 2001, of property seized pursuant to search warrants that were subsequently quashed. The court found that the case concerned a “criminal cause or matter” and concluded that it had no jurisdiction to hear an appeal. The appellants were instead obliged to make their application to the Divisional Court for certification of a point of law of general importance and pursue their appeal to the Supreme Court. Lord Justice Burnett referred to the “ at times inconsistent authority on the meaning of ‘criminal cause or matter’” and acknowledged that the authorities on the meaning of “criminal cause or matter” had “given rise to some uncertainty and, as Lord Neuberger recognised in the Guardian case, some incoherence”. D. The Human Rights Act 1998 120. Section 3(1) of the Human Rights Act 1998 (“the Human Rights Act”) requires legislation to be “read down” so far as possible in order to be interpreted compatibly with the Convention. 121. Section 4 of the Act provides, in so far as relevant: “(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.” 122. Section 6(1) of the Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 6(2) clarifies that: “Subsection (1) does not apply to an act if– (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.” 123. Section 7(1) provides that a person who claims that a public authority has acted in a way made unlawful by section 6(1) may bring proceedings against the authority. 124. Section 8(1) of the Act permits a court to make a damages award in relation to any act of a public authority which the court finds to be unlawful. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 §§ 2 AND 4 OF THE CONVENTION IN RESPECT OF PROVISION OF INFORMATION 125. The applicants complained that they were not given adequate information by the police about the specific allegations against them to enable them to mount an effective challenge to the lawfulness of their detention. They relied on Article 5 §§ 2 and 4 of the Convention, which provide in so far as relevant as follows: “2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.” “4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. Admissibility 1. The parties’ submissions 126. The Government’s position was that the applicants had failed to exhaust available remedies as regards this complaint in two respects. First, they had failed to bring a private-law claim concerning their complaint about the provision of information regarding their arrest and detention. The Government pointed out that the Divisional Court had held that the complaints should have been brought by way of a private-law action because they raised fact-sensitive issues inappropriate for judicial review proceedings. In light of the Divisional Court judgment, the applicants could undoubtedly have brought a civil damages claim in respect of their arrest and initial detention. The Government emphasised that the applicants did not argue that their detention was lawful under domestic law irrespective of compliance with Article 5 of the Convention, such that the only appropriate remedy would be a declaration of incompatibility under the Human Rights Act (see paragraph 121 above). In so far as the applicants contended that they were unable to pursue a private-law claim from Pakistan and would not have been able to obtain legal funding, the Government pointed out that the applicants had pursued the judicial review claim and the case before this Court without difficulty. It was also relevant, the Government argued, that the applicants were not excluded in principle from obtaining legal aid and, in any case, refusal to grant legal aid would not have rendered the bringing of a private-law claim impractical. 127. Second, the Government argued that the applicants had failed to exhaust available remedies because they had not renewed their application for permission to bring judicial review to the Court of Appeal. The CPR made provision for renewal of an application for permission to the Court of Appeal under Rule 52.15(1) (see paragraph 113 above). Although section 18(1)(a) of the 1981 Act precluded such appeals in any “criminal cause or matter” (see paragraph 114 above), the Government did not agree that the applicants’ complaints before the Divisional Court concerned a “criminal cause or matter”. The Divisional Court had found that complaints in respect of the applicants’ arrest and initial detention should have been brought by private-law action and claims against the police, whether in judicial review or by way of private-law claims, were civil in nature. 128. The applicants did not accept that they could have brought a private-law action in respect of their complaints. In their view, the challenge brought could only have proceeded by way of judicial review. They referred to the Divisional Court’s judgment in Rawlinson (see paragraph 108 above) in support of their position that it was perfectly proper for matters of arrest and detention to be challenged by way of judicial review. They argued that it would not have been possible to seek a declaration of incompatibility as the basis for unlawful detention in a private-law action. They further contended that legal aid would have been impossible to obtain, particularly given budgetary cuts and the fact that the applicants were, by that stage, resident abroad. 129. The applicants also argued that, in light of section 18(1)(a) of the 1981 Act, they had no right to renew their application for permission before the Court of Appeal, permission having been refused by the Divisional Court in a “criminal cause or matter”. They insisted that there could be no doubt that all the matters that were before the Divisional Court were criminal causes or matters and referred to the Court of Appeal’s judgment in Panesar (see paragraph 119 above). 2. The Court’s assessment 130. It is primordial that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It cannot, and must not, usurp the role of Contracting States whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is therefore an indispensable part of the functioning of this system of protection. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, amongst many authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996 ‑ IV; and Gough v. the United Kingdom, no. 49327/11, § 137, 28 October 2014 ). 131. As stipulated in its Akdivar judgment (cited above, §§ 66-67), normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see also Gough, cited above § 138). 132. As the Court also held in Akdivar (cited above, § 68), in the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see also Gough, cited above § 139). 133. Finally, the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up and that it must therefore be applied with some degree of flexibility and without excessive formalism (see Akdivar, cited above, § 69; and Gough, cited above § 140). 134. In the present case the Government have argued that two remedies were open to the applicants to pursue further their complaints concerning the alleged inadequacy of the information provided to them at the time of their arrest and detention. The applicants contested the availability of either remedy on the facts of their case. 135. It is generally unsatisfactory for this Court to find itself in the position of being asked to pronounce on the correct interpretation of domestic law. Both the question whether the present complaint ought to have been pursued in private-law proceedings and the question whether it concerned a “criminal cause or matter”, thus excluding the jurisdiction of the Court of Appeal, are questions better resolved by the domestic courts. However, the Court is required to assess whether domestic remedies have been exhausted and where there is a dispute between the parties about the effectiveness of a particular remedy the Court will decide the matter in accordance with the principles outlined above (see paragraphs 130 - 133 ). 136. As regards the first question, the Divisional Court made its view that private-law proceedings were appropriate to challenge the arrest and detention decisions by the police in the applicants’ case very clear in its judgment. As noted above, it is in principle for the domestic courts to determine such questions and the finding of an independent and impartial superior court, such as that of the Divisional Court in the present case, that a remedy is available will generally constitute prima facie evidence of the existence of such remedy. The applicants referred to the case of Rawlinson (see paragraph 108 above) in support of their argument that judicial review, and not private-law proceedings, was the appropriate route to challenge arrest and detention decisions. However, it does not appear that the Divisional Court’s judgment in that case provides support for the general rule contended for by the applicants and the applicants did not point to any specific passage of that judgment which they contended could carry such an interpretation. Moreover, while in their initial application they claimed that it would have been impossible to obtain legal aid for private-law proceedings, as the Government pointed out (see paragraph 126 above), they were not excluded in principle from the possibility of applying for legal aid. In these circumstances; and in the absence of any cited authority or examples of a restrictive approach to the award of legal aid in cases such as the applicants’, the argument that legal aid would not have been available is wholly speculative. 137. Further, the Court is of the opinion that the applicants have failed to demonstrate that they were not able to renew their application for permission to bring judicial review to the Court of Appeal. The domestic judgment cited by the applicants and other judgments to which it refers (see paragraphs 115 - 119 above) are of little assistance, since the finding that a “criminal cause or matter” was at stake in those cases followed a careful discussion of the specific facts of the cases. The judgments themselves recognise the ambiguity surrounding the meaning of “criminal cause or matter”, with Lord Neuberger expressing the view that only the Supreme Court would be in a position to resolve the question (see paragraph 118 above). Subsequently, in Panesar, the Court of Appeal recognised the uncertainty and incoherence to which the existing, at times inconsistent, authorities had given rise (see paragraph 119 above). While the court in that case concluded that a “criminal cause of matter” was at stake, its conclusion followed a careful examination of section 59 of the Criminal Justice and Police Act 2001, the legislative provision in respect of which the proceedings had been brought. That provision is not implicated in the present case. Given the finding of the Divisional Court as to the private-law nature of the applicants’ claim, it cannot be said with any degree of certainty that the Court of Appeal would have found that the case concerned a “criminal cause or matter” and that that court accordingly had no jurisdiction in the case. 138. The rule of exhaustion in Article 35 § 1 reflects the fundamentally subsidiary role of the Convention mechanism. The fact that the applicants dispute the findings of the Divisional Court, adjudicating at first instance, as to the true nature of the claims advanced and the appropriate domestic remedy merely underlines the importance of review of that judgment by a more senior domestic court. The Court is satisfied that the Government have demonstrated the availability of remedies that were effective and available in theory and in practice at the relevant time, that is to say, that they were accessible, capable of providing redress in respect of the applicants’ complaint and offered reasonable prospects of success. The applicants have failed to establish that these remedies were inadequate and ineffective in the particular circumstances of their case or that there existed special circumstances absolving them from the requirement to pursue them. 139. The applicants’ complaints under Article 5 §§ 2 and 4 as regards provision of information by the police concerning the reasons for their arrest and detention are accordingly inadmissible and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION AS REGARDS THE PROCEDURE FOR GRANTING WARRANTS OF FURTHER DETENTION 140. The applicants complained that the procedure for hearing applications for warrants of further detention under Schedule 8 of the 2000 Act (see paragraphs 100 - 103 above) was incompatible with Articles 5 § 4 and 6 § 1 because it allowed evidence to be given in closed session and made no provision for special advocates. The Court considers that the complaint falls to be examined under Article 5 § 4 of the Convention only, which reads: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” 141. The Government contested the applicants’ argument. A. Admissibility 142. The Government accepted that section 18(1)(a) of the 1981 Act (see paragraph 114 above) was likely to have prevented an appeal to the Court of Appeal in respect of this complaint. They did not argue that this complaint was inadmissible on non-exhaustion grounds. 143. The Court is satisfied that the application raises arguable issues under Article 5 § 4 of the Convention, so that it cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. The Court further considers that the application is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicants 144. The applicants conceded that they did not make an application at either hearing before the City of Westminster Magistrates’ Court for a special advocate but argued that the right to a special advocate should have been explicit in the legislation. They accepted that the procedural safeguards in Article 5 § 4 were not unvarying. However, they maintained that if both domestic and European courts had held that the provision of special advocates and sufficient information in open session were necessary to safeguard Article 5 rights of individuals where there had been an interference with those rights falling short of a deprivation of liberty, then it had to follow that at least that level of protection was to be afforded where a deprivation of liberty was at stake. The failure to provide disclosure to the applicants compounded the problem. In these circumstances, decisions were made, or might be made, almost entirely based on evidence given in closed session. In the applicants’ view, the Government had failed to justify their position that their case could be distinguished from that in A. and Others v. the United Kingdom ([GC], no. 3455/05, ECHR 2009). (b) The Government 145. The Government argued that the procedural requirements of Article 5 § 4 were not unvarying but depended on the particular circumstances. They emphasised that the applicants’ case involved an extremely complex investigation into a suspected imminent terrorist attack. 146. Distinguishing A. and Others v. the United Kingdom, cited above, the Government pointed out that the applicants in the present case were detained for a total of thirteen days only and that the Article 5 § 4 requirements formulated in the context of the former case applied against the backdrop of lengthy or indefinite detention pending charge. Although the applicants had not been privy to all the information placed before the District Judges, they were not deprived of their Article 5 § 4 rights since (i) they were informed of the legal basis and reasons for their detention; (ii) they were legally represented and able to make submissions to the District Judges, as well as to call evidence or to cross-examine the police-officer witness; (iii) the more detailed explanation of the reasons for which detention was being sought was fully before the District Judges, even if it was withheld from the applicants; (iv) the procedure employed enabled the District Judges to be given a detailed explanation of the basis for suspicions so that they could ask questions and, if not satisfied, refuse to order detention; and (v) it was open to the District Judges to order the appointment of a special advocate if they considered it appropriate. 2. The Court’s assessment (a) General principles 147. As the Court explained in A. and Others v. the United Kingdom, cited above, § 203, the requirement of procedural fairness under Article 5 § 4 does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. As a general rule, an Article 5 § 4 procedure must have a judicial character but it is not always necessary that the procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation. The guarantees it provides must be appropriate to the type of deprivation of liberty in question. 148. A deprivation of liberty under Article 5 § 1 (c), as in the present case, is permitted where there is a reasonable suspicion that a person has committed an offence. A key question for a court reviewing the legality of detention is whether a reasonable suspicion exists. It will be for the authorities to present evidence to the court demonstrating grounds for such a reasonable suspicion. This evidence should in principle be disclosed to the applicant to enable him to challenge the grounds relied upon. 149. However, as the Court has explained, terrorist crime falls into a special category. Because of the attendant risk of loss of life and human suffering, the police are obliged to act with the utmost urgency in following up all information, including information from secret sources. Further, the police may frequently have to arrest a suspected terrorist on the basis of information which is reliable but which cannot, without putting in jeopardy the source of the information, be revealed to the suspect or produced in court. Article 5 § 1 (c) of the Convention should not be applied in such a manner as to put disproportionate difficulties in the way of the police authorities in taking effective measures to counter organised terrorism in discharge of their duty under the Convention to protect the right to life and the right to bodily security of members of the public. Contracting States cannot be asked to establish the reasonableness of the suspicion grounding the arrest of a suspected terrorist by disclosing the confidential sources of supporting information or even facts which would be susceptible of indicating such sources or their identity (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, §§ 32-34, Series A no. 182 ). It follows that Article 5 § 4 cannot require disclosure of such material or preclude the holding of a closed hearing to allow a court to consider confidential material. Pursuant to Article 5 § 4, the authorities must disclose adequate information to enable the applicant to know the nature of the allegations against him and have the opportunity to lead evidence to refute them. They must also ensure that the applicant or his legal advisers are able to participate effectively in court proceedings concerning continued detention. (b) Application of the general principles to the facts of the case 150. In A. and Others v. the United Kingdom (cited above, § 216) the Court took as its starting-point that, at the time of the detention of the applicants in that case, there was considered to be an urgent need to protect the population of the United Kingdom from terrorist attack by al-Qaeda and a strong public interest in obtaining information about al-Qaeda and its associates and in maintaining the secrecy of the sources of such information. The present case, like that in A. and Others v. the United Kingdom, concerned allegations of a planned large-scale terrorist attack which, if carried out, was likely to result in significant loss of life and serious injury. The applicants did not argue that the context of their arrests was inadequate to justify the holding of a closed hearing and restrictions on their right to disclosure. The Court is satisfied that the threat of an imminent terrorist attack, identified in the course of Operation Pathway, provided ample justification for the imposition of some restrictions on the adversarial nature of the proceedings concerning the warrants for further detention, for reasons of national security. 151. In terms of the applicable legal framework governing proceedings for warrants of further detention, Schedule 8 to the 2000 Act sets out clear and detailed procedural rules. Thus, a detained person must be given notice of an application for a warrant of further detention and details of the grounds upon which further detention is sought. He is entitled to legal representation at the hearing and has the right to make written or oral submissions. The possibility of withholding specified information from the detained person and his lawyer is likewise provided for in Schedule 8 and is subject to the court’s authorisation. Schedule 8 also sets out the right of the court to order that a detained person and his lawyer be excluded from any part of a hearing. The grounds for granting a warrant of further detention are listed in Schedule 8 (see paragraphs 100 - 103 above). 152. The proceedings in the present case, which took place before the City of Westminster Magistrates’ Court, were judicial in nature and followed the procedure set out in Schedule 8. An application for the warrants of further detention was made and served on the applicants the day before each of the two hearings (see paragraphs 39 and 58 above). The majority of each application was disclosed, with only information in section 9 of the application, concerning the further inquiries to be made, being withheld (see paragraphs 40 and 58 above). That information was provided to the District Judge and the applicants were given reasons for the withholding of the information (see paragraph 42 above). 153. It is true that part of the hearing on 10 April 2009 was closed to enable the District Judge to scrutinise and ask questions about the section 9 material (see paragraph 41 above). However, as the House of Lords explained in Ward (see paragraph 105 above), the procedure in Schedule 8 allowing the court to exclude the applicants and their lawyers from any part of a hearing was conceived in the interests of the detained person, and not in the interests of the police. It enabled the court to conduct a penetrating examination of the grounds relied upon by the police to justify further detention in order to satisfy itself, in the detained person’s best interests, that there were reasonable grounds for believing that further detention was necessary. The Court is further satisfied that the District Judge was best placed to ensure that no material was unnecessarily withheld from the applicants (see, similarly, A. and Others v. the United Kingdom, cited above, § 218). 154. The applicants complain specifically of the failure of the Schedule 8 procedure to make provision for the appointment of a special advocate. However, it is clear from the judgment of the Divisional Court that the District Judge had the power to appoint a special advocate if he considered such appointment necessary to secure the fairness of the proceedings (see paragraph 88 above). The applicants do not contest that finding. It is noteworthy that the applicants did not request the appointment of a special advocate at any stage in the proceedings in respect of either application. 155. At the open hearings, the senior police officer making the application explained orally why the application was being made and, at the second hearing, provided details regarding the progress of the investigation and the examination of material seized during the searches (see paragraphs 42 and 59 above). The applicants were legally represented and their solicitor was able to cross-examine the police-officer witness, and did so at the first hearing on 10 April 2009 (see paragraph 43 above). 156. In the light of the foregoing, the Court is satisfied that there was no unfairness in the proceedings leading to the grant of the warrants of further detention on 10 and 15 April 2009. In particular, the absence of express legislative provision for the appointment of a special advocate did not render the proceedings incompatible with Article 5 § 4 of the Convention. 157. There has accordingly been no violation of Article 5 § 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 158. The applicants complained 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; and (ii) the warrants were drawn too widely, thereby permitting search for, and seizure of, almost any item of property. They relied on Article 8 of the Convention, which provides: “ 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety ..., for the prevention of disorder or crime, ... or for the protection of the rights and freedoms of others.” 159. In respect of the latter complaint the applicants also relied on Article 1 of Protocol No. 1 but the Court considers that the matter is more appropriately examined from the standpoint of Article 8 of the Convention only. 160. The Government contested the argument that a violation of Article 8 had occurred. A. Admissibility 1. The parties’ submissions 161. The Government argued that the complaint as to the manner in which the searches were carried out was inadmissible because the applicants had failed to exhaust available remedies. They referred again to the possibility of bringing a private-law remedy and to the failure of the applicants to seek permission from the Court of Appeal (see paragraphs 126 ‑ 127 above). In so far as Mr Sher complained about the search of his business premises, the Government pointed out that this complaint had not been raised at all in the domestic proceedings. However, the Government accepted that the complaint in respect of the scope of the search warrants was amenable to judicial review and that section 18(1)(a) of the 1981 Act (see paragraph 114 above) was likely to have prevented any appeal to the Court of Appeal. 162. The applicants claimed that it had long been settled law that search warrants could only be challenged in proceedings for judicial review, because it was the lawfulness of an order of the court that was challenged. They referred to domestic case-law (see paragraphs 109 - 112 above) and argued that the Divisional Court and the Government were wrong on this point. The applicants also relied again on the effect of section 18(1)(a) of the 1981 Act. 2. The Court’s assessment 163. The Court reiterates its comments as regards the subsidiary nature of the Convention mechanism (see paragraph 138 above). It is significant that the Divisional Court considered the manner of execution of the warrant to be a private-law issue unsuitable for judicial review proceedings (see paragraph 83 above).The cases to which the applicants referred, which concerned the issues surrounding the validity and quashing of search warrants, do not appear sufficient to displace the evidence provided by the Divisional Court’s judgment of the prima facie existence of an available and effective remedy. The Court further reiterates its comments in respect of the application of section 18(1)(1a) of the 1981 Act (see paragraph 137 above). The complaint in respect of the manner of execution of the warrant must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention. 164. As regards the search of Mr Sher’s business premises, it is clear from the judgment of the Divisional Court that no relevant complaint was made in the domestic proceedings (see paragraph 73 above). This complaint must also be rejected, pursuant to Article 35 §§ 1 and 4, on account of the failure to exhaust domestic remedies. 165. Finally, the Court is satisfied that the complaint concerning the scope of the search warrants issued in respect of the applicants’ homes raises arguable issues under Article 8 of the Convention, so that it cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. The Court further considers that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicants 166. The applicants maintained that the warrants were unjustifiably wide in scope. (b) The Government 167. The Government accepted that the search of the applicants’ homes amounted to an interference with their Article 8 rights. The question was whether the reasons adduced to justify the measures were relevant and sufficient and whether the proportionality principle had been respected. The Government considered these conditions to be satisfied and made a number of points in this respect. 168. Firstly, they emphasised that the warrants were issued by a judicial authority which was satisfied that the relevant statutory criteria had been met, namely, that the warrants were sought for the purposes of a terrorist investigation; that there were reasonable grounds for believing that there would be material on the premises which was likely to be of substantial value to the investigation; and that the issue of a warrant was likely to be necessary in the circumstances of the case. Secondly, the warrants did not purport to grant authority to seize protected or privileged material. Thirdly, the warrant was expressly worded so that any constable was only authorised to seize articles in respect of which application had been made or to seize and retain “relevant” materials found during the search, thus excluding seizure or retention of material not justified by the terrorist investigation. Fourthly, the width of the description of relevant material was justified by the fact that the police had genuine and reasonable concerns about an imminent terrorist attack and elaborate reasoning as to precisely what items might prove to be relevant was not consistent with the urgency of the situation. The width was also justified by the nature of the investigation, which concerned a sophisticated terrorist plot in which different media (in particular electronic media) were reasonably suspected of being used by the plotters to communicate. Fifthly, the warrants and searches were subject to a further safeguard in the form of an ex post facto judicial review or claim for damages. In the present case the applicants were unable to identify any item seized or searched for that was not justified by reference to the particular nature of the investigation. 169. As regards the comments of the third-party intervener, the Government considered that they concerned an unjustified trawl and retention of personal data that was not the subject of the applicants’ complaint or the domestic proceedings. Notwithstanding the sincerity of the concerns raised, the Government maintained that there was no basis for concluding that searches of the applicants’ electronic data were not justified. (c) The third-party intervener 170. The third-party intervener, Privacy International, focused its comments on searches of electronic devices, which entailed access to personal and communications data. It emphasised the innovations in technology which had resulted in previously unimagined forms of collecting, storing, sharing and analysing data. Access by law-enforcement officers to an individual’s electronic devices could enable access to everything that person had ever digitally touched, encompassing data not stored on the device itself but on external networked servers. The combination of data available could be extremely revelatory. In light of the particularly intrusive nature of searches of electronic devices, Privacy International argued for a high threshold when determining whether an interference with Article 8 rights was justified. 2. The Court’s assessment 171. It is not contested that the search of the applicants’ homes amounted to an interference with their right under paragraph 1 of Article 8 to respect for their private lives and homes. 172. The applicants did not dispute that the issue of the search warrants was “in accordance with the law” and in pursuit of a legitimate aim, as required by paragraph 2 of Article 8. The question for the Court is whether the measure complained of was “necessary in a democratic society”, in other words, whether the relationship between the aim sought to be achieved and the means employed can be considered proportionate (see Robathin v. Austria, no. 30457/06, § 43, 3 July 2012). Elements taken into consideration are, in particular, whether the search was undertaken pursuant to a warrant issued by a judge and based on reasonable suspicion; whether the scope of the warrant was reasonably limited; and – where the search of a lawyer’s office was concerned – whether the search was carried out in the presence of an independent observer in order to ensure that materials subject to professional secrecy were not removed (see Robathin, cited above, § 44, and Wieser and Bicos Beteiligungen GmbH v. Austria, no. 74336/01, § 57, ECHR 2007 ‑ IV ). 173. The warrant in the present case was issued by a District Judge in the Magistrates’ Court, in the context of criminal proceedings against the applicants on suspicion of involvement in terrorism. The police officer making the application confirmed that he had reasonable grounds for believing that the material at the addresses identified was likely to be of substantial value to a terrorism investigation and the judge agreed (see paragraph 33 - 35 above). The applicants did not suggest that there were no reasonable grounds for granting the warrant. 174. It is true that the search warrant was couched in relatively broad terms. While limiting the search and seizure of files to specific addresses, it authorised in a general and unlimited manner the search and seizure of correspondence, books, electronic equipment, financial documents and numerous other items. However, the specificity of the list of items susceptible to seizure in a search conducted by law-enforcement officers will vary from case to case depending on the nature of the allegations in question. Cases such as the present one, which involve allegations of a planned large-scale terrorist attack, pose particular challenges, since, while there may be sufficient evidence to give rise to a reasonable suspicion that an attack is under preparation, an absence of specific information about the intended nature of the attack or its targets make precise identification of items sought during a search impossible. Further, the complexity of such cases may justify a search based on terms that are wider than would otherwise be permissible. Multiple suspects and use of coded language, as in the present case, compound the difficulty faced by the police in seeking to identify in advance of the search the specific nature of the items and documents sought. Finally, the urgency of the situation cannot be ignored. To impose under Article 8 the requirement that a search warrant identify in detail the precise nature of the items sought and to be seized could seriously jeopardise the effectiveness of an investigation where numerous lives might be at stake. In cases of this nature, the police must be permitted some flexibility to assess, on the basis of what is encountered during the search, which items might be linked to terrorist activities and to seize them for further examination. While searches of electronic devices raise particularly sensitive issues, and arguably require specific safeguards to protect against excessive interference with personal data, such searches were not the subject of the applicants’ complaints or the domestic proceedings in this case and, in consequence, no evidence has been led by the parties as to the presence or otherwise of such safeguards in English law. 175. Finally, it is of some relevance in the present case that the applicants had a remedy in respect of the seized items in the form of an ex post facto judicial review claim or a claim for damages (see paragraph 168 above). It is noteworthy that they did not seek to challenge the seizure of any specific item during the search, nor did they point to any item which they contend was seized or searched for unjustifiably by reference to the nature of the investigation. 176. For these reasons, the Court concludes that the search warrants in the present case cannot be regarded as having been excessively wide. The national authorities were therefore entitled to consider that the resultant “interference” with the applicants’ right to respect for their private lives and homes was “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention.
The Court held that there had been no violation of Article 8 (right to respect for private and family life and home) of the Convention. It found in particular that the fight against terrorism and the urgency of the situation had justified a search of the applicants’ homes pursuant to a search warrant framed in relatively broad terms. Moreover, there had been sufficient safeguards against the risk of arbitrariness in respect of the search warrants, which had been issued by a judge, without the applicants suggesting that there had been no reasonable grounds for doing so.