Anti‐Terrorist Legislation and the European Convention on Human Rights
| Published date | 01 March 1991 |
| DOI | http://doi.org/10.1111/j.1468-2230.1991.tb02654.x |
| Date | 01 March 1991 |
Anti-Terrorist Legislation and the European
Convention on Human Rights
Wilson Finnie
*
The decision of the European Court of Human Rights
in
the case of
Fox,
Catnpbell
and
Hartleyl
adds
a
third finding by the court that the
UK’s
anti-terrorist laws
violate the European Convention on Human Rights, the other two being
Ireland
v
UK2
and
Brogan
v
UK.3
The
UK
response
to
the decision
in
Brogan
was,
as
predicted by the present author
in
a
note on the case,J
to
lodge
a
derogation under
Article
15
ECHR,5 an option not available
in
the wake of
Ireland
v
UK
since the
breach established
in
that case was of the non-derogable Article
3.
A further thrce
applications concerning detention under the Prevention of Terrorism Act were
declared admissible by
the
Commission
at
its
meeting of
2-13
July
1990.6
It
is
not clear whether these applications concern ‘inland’ or ‘port’ powers of detention
under the Act7;
if
the former,
it
is probable that the ambit and lawfulness of the
Article
15
derogation lodged following the decision
in
Brogan
will
have
to
be
considered;
if
the latter, the Commission’s decision
in
McVeigh
and
Vicar8
will
have
to
be, as
it
should be, reconsidered. Whichever is the case, both points are
ripe for consideration
in
due course. Add
to
this
the
arguments raised
in
the note
on
Brogan,
and those
to
be adduced below, and
it
begins
to
look
as
if
this is a saga
which
will
run and run!
The facts
in
Fox,
Campbell and
Hartley
derive from two separate incidents.
F
and C, estranged spouses, were stopped by police and takcn
to
a
police station where
their car was searched and where, twenty-five minutes after arrival, they were arrested
under the Northern Ireland (Emergency Powers) Act
1978
s
11.
They were told
the arrest was under the section and because the officer believed they were terrorists.
They were informed of their rights, but were not brought before
a
judge or permitted
to
apply for bail. On the day following their arrest they sought
habeas
corpus
but
were released before any hearing. During their detention they were questioned about
membership of the IRA and the suspected intelligence-gathering and courier work
for the
IRA
on which they were engaged when arrested. They were released
44
hours after arrest. Both
F
and C had criminal records.
F
had been convicted in
1979
of several explosives offences and of belonging
to
the IRA, for which he had
received several concurrent prison sentences of, respectively,
12
and
5
years. C
had received an
18
months’ suspended sentence
in
1979
for explosives offences.
H
was suspected of involvement
in
a
kidnapping of
a
young man and woman
by armed masked men. The motive was allegedly
to
force the woman
to
retract
an allegation of rape the previous year, which had led
to
a
conviction and
3
year
sentence. The kidnappers were believed
to
have connections
with
the Provisional
*Lccturcr
in
Constitutiontil Law, Univcrsity of Edinburgh.
I
2 (1978) 2
EHRR
25.
3
(1989)
11
EHRR
117.
Judgiiicnt
of
30
August
1990.
4
(1989j 52
MLR
703.
5
HC Dcb vol
180.
written nnswcrs
cols 207-210.
14
Novcnibcr
1990.
(The
rcfcrcnce
to
scven
.w”I)~’
detention is prcsuniably
ill1
crror!)
McGlirrclry,
Qriirrrr
cord
Bmww
v
UK
(Applications No
15096-8/89).
On
which,
scc
Finnic, ‘Old Wine in New
Bottles’
[I9901
Jur Rcv
1,
(It
13-20.
6
7
8
(1983)
5
EHRR
71.
288
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