Terrorism Act detention extension overturned by High Court
As the BBC report, following an emergency judicial review, a High Court panel headed by Northern Ireland’s Lord Chief Justice, Sir Brian Kerr, has overturned a County Court ruling allowing police to detain six people for questioning about recent republican paramilitary murders for an additional 7 days under the 2006 Terrorism Act. The six must now be charged or released. [Adds RTÉ report] Update Five released, Colin Duffy re-arrested. From the BBC report
After hearing an emergency judicial review application, a High Court panel headed by Northern Ireland’s Lord Chief Justice, Sir Brian Kerr, overturned the county court judge’s decision. “By reason only of the judge’s conclusion that she was precluded from considering the lawfulness of the applicants arrest I have decided that her decision must be quashed,” he said.A solicitor representing one of those being questioned over the murder of Constable Carroll said he now expected his client to be released. Joe McVeigh, of Kevin R Winters solicitors, welcomed the ruling. “We have always taken the view that not to examine the conduct of arresting officers when considering to detain people under the Terrorism Act has always been a breach of human rights,” he said.
Adds High Court ruling is online here. Extract below the fold.
Key paragraphs from the ruling
[28] It appears to us, therefore, that paragraphs 5 and 32 of Schedule 8 to the Terrorism Act must be read in conformity with the requirements of article 5 (3) of the Convention as they have been explained in the jurisprudence of the European Court. The review of the lawfulness of the detention must embrace an examination of the basis for the arrest. If it were otherwise, a person could be detained under the 2000 Act for up to twenty eight days without there having been any judicial review of the lawfulness of the original arrest and that, in our view, could not be compliant with article 5 of ECHR.
[29] We have concluded, therefore, that the learned judge was wrong to disavow any review of the lawfulness of the applicants’ arrest and on that account her decision must be quashed. In fairness to her, it should be recorded that she was urged by counsel for the respondent to that view and that paragraph 5 of Schedule 8, read in isolation, does appear to preclude such a review.
[30] We accept Mr Maguire’s argument that a review of the lawfulness of arrest need not involve a detailed analysis of the basis for the decision to arrest and it should reflect the constraints that necessarily apply in many arrests for terrorist offences where the full information on which a decision to arrest is taken cannot, for reasons of public safety, be revealed. It would be unwise to essay a more specific prescription than this, however, since much will depend on the particular facts of an individual arrest.
Rory (South Derry),
Your views are about as helpful as those from our resident nut job John O’Connell.
Whilst not knowing enough to understand the finer points of law in this case, I do know enough to see that the ruling of the Lord Chief justice et al illustrates that we have a fairer system of checks and balances than that of the past. It does not (as some sloggers are maintaining) show that ‘we beat the Brits’.
Nobody should give the prosecutors or PSNI a blank cheque and the ruling today tells them loudly that they are accountable.Picking up unpopular people without a good reason to do so leads to miscarriages of justice.
Anyone watching CSI gets educated on when and when not you can life someone for questioning and when it gets the cops in trouble. A global problem to grapple with. Doh.
we have a fairer system of checks and balances than that of the past
Very true Granni. It’s really not that long ago when the Home Affairs Minister at Stormont would tell the Chief Constable how to do his job and the CC would meekly comply. Many Judges were no better.
Rapunsel & X
I am for real (Make no mistake)
I absolutely hate Sinn Fein and would rejoice if Martin McGuinness & Adams died a horrible death in the near future!
Colin Duffy knows (Is well versed)how to handle himself in the hands of State.
The Conflict can not be solved by PSF sitting round a table playing YES games with the Brits or the refaced Orange state
Oglaigh Na hEireann have the RIGHT to take up arms in the struggle for Unity! War worked – It got PSF so far just a pity they had not got the balls to complete the job!
USA
John McConnell has the measure of the Bank Robbers (PSF) – The trash that they are in there lovely little suits!
RSD,
You are really bringing down the tone of this thread- but no more so than John O’Connell (what planet are you on?)
Any chance we can get a thread just for you two? Or perhaps another site?..
“I can picture him now, sitting in the interrogation room, driving the detectives nuts by reciting the Táin Bó Cuailnge i nGaeilge”
Guessing a reading from Peig would infringe their HR and add more claims for hearing damage to the pile.
I am beginning to get the impression that evidence is thin on the ground and Orde is doing this to be seen to be doing something. Reasons for my thinking is that there was more forensics with the soldiers ie a car, and the AK47 seems to have appeared from nowhere and isn’t been linked to the PSNI killing. If the link to the 2 charged is fingerprints it would take 2 minutes to confirm (I watch CSI)
Without getting my IRA’s confused, I can’t help referring back to the NI Bank Robbery on this one, no-one claimed responsibility for it but both governments, the IMC, and Orde could all confirm immediately it was the IRA, and that Adams knew of the plan. If they were been honest they’re either very good at their job or have pretty good intelligence, however now we have a case were the C/R IRA both put their hands up and say we did it and neither government, the IMC, the PSNI or unionists seem to be able to produce the goods.
I remember one piece of conclusive proof posted here from the MSM, which was someone who had met a well known republican shortly before the robbery noticed he had shaved his eyebrows off, the informed journo could tell us that it was standard procedure in the IRA before ‘a job’ to shave all your pubes so as not to leave any forensic evidence *ahem*, so surely the guilty party is the baldy one
“the refaced Orange state”
“War worked – It got PSF so far just a pity they had not got the balls to complete the job!”
Rory, you seem to be saying NI has changed and SF has made progress, are you getting soft in your old age.
Rory,
Self praise is no recommendation and self confirmation is equally as useless.
So back to what i said before – your ranting are so outrageous you gotta be a SF stooge – and not a good one – unless of course you’re a DUP stooge tryin to convince us the taigs are about to kick off again and they have DUPed us!!
Fin
Read the full sentences properly!
In 1994 the Brits were heard to say that they had no “strategic or economic interest” – then the Provos were getting somewhere.
They Bombed there way to the table and then lost the plot.
PSF are trash and will fade into the horizon hopefully very soon!
The DUP are the reface Orange State but under the mask lies the same orange bastards who just want a devolved North of Ireland where they can rule!
X
Not duping anyone!
Just hate PSF and the who illegal NI state.
Will be with Declan McGlinchey tonight celebrating his release (after all he is an innocent man)!
While you clowns on here play political football in your WEE ORANGE STATE!
One would question whether or not the shot that was made could indeed be made with an AKM rifle. Although the calibre, .223, is a match- a head shot at that kind of yardage, at night with metal sights seems a bit fanciful.
I would have thought the police would be looking for a Tikka T3-Lite or something similar.
Of course the strength of evidence will emerge with time…
Glensman
The Cops head would have been dust if an AKM or AK had have been used
Rory
Now i know more that ever that you’re talking b*****Ks naming idividuals to increase ur street cred – we all know you’ll be tucked up in your wee bed, probably in Ballymena or possibly Carrick, after your mammy’s brought you your holicks
You’ll never see South Londonderry as you would call it!!
Rory (South Derry),
Your views are about as helpful as those from our resident nut job John O’Connell.
This is from a person who signs themselves “USA”.
The nation with the most egomaniacs on the planet. Are there no courses for self awareness where you live, USA. You might learn something.
Nut job – Not according to Dr Seamus Hegarty, Bishop of Derry.
John,
Just before someone starts conducting a poll, I’m going to cast my vote. You are a nut job.
Glensman
Another egomaniac! Interesting. Do I offend you?
rory
“the brits were heard to say that they had ‘ no strategic or economic interest,’ ”
Sorry Rory, they never said that; they said that they had ‘no SELFISH strategic or ecomomic interest’ which is very different as the definition of selfish was their own and really was a case of ‘we are in Ireland for your own good…”
Rory, looks like your starting to fall for the Adams/ McGuinness line!
“They have tried every trick in the book from trying to discredit the republican credentials of activists down to having active service volunteers arrested and even ambushed in 1992!”
Is this true???
Earnan
This is true the operation was Coalisland Police station and the 4 young lads led by Kevin Barry O’Donnell were lambs to the slaughter.
The police station was empty and when they dumped the gear the SAS shot all 4 dead.
PSF were carrying out a PR stunt for Noraid and the lads were sacraficed
Thought you were away out with Declan McGlinchy, Rory?
O’Pague
9.30 if you fancy a beer – Wolfe Tones GAC (Social Club) in Bellaghy
I’m buying a chara!
I’ll be watching The Apprentice, Rory.You should watch. If you thought that Gerry A. was ruthless in dispensing with the services of loyal followers, you wanna see the Boy Sugar in action. Was one of the McGlincheys not charged with a number of incidents in Bellaghy last year?
O’Pague
Yes Dominic (Jnr), for Public disorder outside Stormont at an Eirigi Protest.
I thought I heard something on the news tonight relating to a McGlinchey and an attempted bomb attack in Bellaghy? I might be mistaken.
Yeah o’Paque
That was Declan who was accused again of explosive offences in 2007 – again bollocks charges – you’ ve more information than MI5 (infact probably more reliable)
It is interesting to see the debate here. These people who call them republicans/anti british are a joke. Who pays your JSA? You health Service? The roads you drive on? Your dentist? Your doctor? The fire service? The ambulance service? the leisure centre? The library? The British Government
The harsh reality is that the republic dont want the North. Sinn Fein stand for a united Ireland. At the last election Sinn Fein only polled 9% of the vote. 90% of the people in the South dont want anything to do with Northern Ireland.
despite what some people have suggested, this is not just a judgment against a poor decision by a county court judge, it is an important judgment about the failures of both the terrorism act 2006 and the police to uphold basic human rights.
the 2006 act gives a county court judge the power to extend detention up to 14 days. but the legislation says that all the judge has to be satisfied of is that the detention is reasonable in order to secure further evidence. Importantly, the judge does not have to be satisfied that there is already ANY evidence at all.
the point is that there was NO evidence against the six who were arrested. the police have already confirmed that the arrests were based on “intelligence”, and not on any evidence.
the county court judge followed the legislation to the letter, believed the police that another 7 days might turn some evidence up and granted the extensions. she ignored whether there was any evidence to start with because the legislation doesn’t mention it.
British law (the terrorism act) has been found in this judgment to be contrary to article 5 of the european convention. however, the human rights act (also british law) has come to the rescue.
the real criticism should not be directed towards the county court judge, it should be against the police for arresting people without any evidence, and against the government for trying to give the police excessive powers without proper safeguards.
if the terrorism act was allowed to stand and the police had their way, they could arrest and hold someone for 28 days before a judge could ask whether there was any evidence. this judgment has stopped that, and its value cannot be under-estimated.
also another important point to note is that when the high court quashed the county court extension, the police simply re-arrested colin duffy. you are only allowed to re-arrest someone if there is new evidence that has come to light, and your time-limits don’t start afresh. Its not clear whether he would be considered to be in his 11th day of custody, or whether it would be considered day 7 (as the high court has already found that after day 7 was unlawful), but regardless, he would still need a county court judge to have granted an extension, and the only extension that was applied for has been quashed by the high court, so whatever way you look at it, his re-arrest and continuing detention are unlawful. no doubt he’ll be back in the high court tomorrow.
over-estimated, sorry
“This is true the operation was Coalisland Police station and the 4 young lads led by Kevin Barry O’Donnell were lambs to the slaughter.
The police station was empty and when they dumped the gear the SAS shot all 4 dead.
PSF were carrying out a PR stunt for Noraid and the lads were sacraficed”
Just because an informer gave the SAS team advance notice or where they were gonna switch cars doesn’t mean the PSF sacrificed them. Just means an informer gave them away.
Rory-did you do time for your paramilitary activities?
and just in case anyone doesn’t believe me, the judgment has now been put up online
http://www.courtsni.gov.uk/NR/rdonlyres/ABB0936D-8B5D-40E4-9FF2-234271B82122/0/j_j_KER7462Final.htm
see paragraph 28.
“It appears to us, therefore, that paragraphs 5 and 32 of Schedule 8 to the Terrorism Act must be read in conformity with the requirements of article 5 (3) of the Convention as they have been explained in the jurisprudence of the European Court. The review of the lawfulness of the detention must embrace an examination of the basis for the arrest. If it were otherwise, a person could be detained under the 2000 Act for up to twenty eight days without there having been any judicial review of the lawfulness of the original arrest and that, in our view, could not be compliant with article 5 of ECHR”
Groundhog: Your points are well put but …….
1.the point is that there was NO evidence against the six who were arrested. the police have already confirmed that the arrests were based on “intelligence”, and not on any evidence.
if I’m not mistaken in the UK Police don’t need evidence to arrest.
Current terrorist legislation states they need a reasonable suspicion.
Whether guilty of this offence or not most people on the island of Ireland would reasonably suspect Duffy and the Fox cubs of being involved in terrorism
2.the real criticism should not be directed towards the county court judge, it should be against the police for arresting people without any evidence, and against the government for trying to give the police excessive powers without proper safeguards.
The safe guards are in place which is why out of 11 suspects only 1 remains in custody with out charge.
Rory from south derry surely there’s a republican web site you can go and post on to like minded people. This sites about debate not propaganda
groundhog day
Thanks for the link to the ruling.
I’ve added what look like the relevant paragraphs to the original post.
And now we see why 1) “shoot to kill” and 2) the murders of Pat Finucane and Rosemary Nelson were so important to the British war effort. The courts uphold human rights, while human rights got in the way of the British eliminating their enemies. Therefore, they had to bypass the courts or hamper the ability of the courts to do their jobs…
safeguards my arse. there are no safeguards for the right to liberty in the terrorism act as the judgment demonstrates. And the fact that colin duffy remains in detention despite a ruling from the high court shows that even the inherent jurisdiction of the high court doesn’t protect you from arbitrary detention!! The case shows how the system doesn’t work. But yes, five people have been released because they were able to expose this in the high court, and i welcome that and the independence which the high court has demonstrated.
As for suspicion, it has to be reasonable suspicion. reasonable means that it is based on some sort of evidence (whether the evidence is admissable or not is another question, and you regularly see people being arrested on evidence that would never see a court room).
i repeat, at the time of the arrest there was NO evidence against duffy and the other five who took the Judicial Review, and therefore NO reasonable suspicion. I doubt that there is any evidence now.
political bias and speculation do not equate to reasonable suspicion. just because someone is known to hold republican beliefs does not create a reasonable suspicion that he is a “terrorist”. The fact that he has twice been falsely accused and acquitted of similar allegations makes the point even clearer.
If there had been ANY reasonable suspicion, the police could have outlined it to the high court (or the county court) and there wouldn’t have been a problem continuing to detain. But there was nothing!!!
The fact that people have been held for so long without any evidence is a damning indictment of the new powers and of the attitude of the police, and will only reinforce the idea that political policing has not gone away.
Are the police trying to alienate the nationalist community? Are they trying to drive people into the ranks of the IRA? They’re doing a good job!
Feel free to quote the actual High Court ruling, groundhog, NCM, et al.
Pete Baker, I was just making a general observation that it is easier to fight a war when the courts aren’t a factor, and that this would explain why it made strategic sense for the British to bypass the courts entirely by having a policy of killing suspects, not arresting them, killing the lawyers that made life difficult.
Rory’s fifty bedroom house on eight hundred acres of prime land is in fact a windowless room in Palace Barracks. But the Dell PC is real.
9.30 if you fancy a beer – Wolfe Tones GAC (Social Club) in Bellaghy
Couldn’t make it.
However I’m sure that the patrons of this establishment will NOT be grateful for the plug. Particularly as the former chairman was abducted and murdered by loyalists a few years back.
Earnan
The swapping of cars had nothing to do with anything – A lorry with up to 20 men in it was used to attack Coalisland Polie station and the subsequent abush
Picador
Sure PSNI were all around Bellaghy GAC Club – sure weren’t we safe as houses in Sean Brown Park (who incidentally is the Former Chairman who you refer too)!
Being snooped on and protected at the same time is a bit perverse don’t you think???
Good night anyway – and it is clear from the sound of the line of questioning that the Brits have no idea who pulled the trigger in Antrim.
Same shit years on – arrest the first republican that comes to mind.
3 third person to be charged today, will that pesky AK47 and 26 rounds be a factor again I wonder.
quote from the judgment – paragraph 3
“The judge was informed that the arrests of D, Colin Duffy and D2 were based on intelligence information whereas the arrest of C was based both on evidence and information.”
paragraph 6
“The interviews of these applicants were completed within the five day extensions granted by the judge. The results of many of the forensic examinations and analyses were provided within that time also. None of these provided evidence linking any of the detainees to involvement in the incident.
paragraph 7 deals with G and T (not sure if this is two applicants, or one applicant with a cool name!) and mentions no evidence, so presumably the arrests here were also based on intelligence information.
Intelligence information, for the uninitiated, is the same kind of information that was relied upon to ground the war in iraq. It is never disclosed to the suspects or the court (unless the the suspects and their lawyers have already been excluded), so it can never be tested. It is in reality code for “we have nothing, but we want to arrest you anyway so that we look good” (that’s giving them the benefit of the doubt, as it could be said that the reasons for the arrest were more sinister).
The third person charged has been charged in connection with the murder, but his charge is withholding information, and the press are not reporting that he has been charged with murder or possession. If he was a suspect in a murder investigation, why is he not entitled to exercise his right to silence? Again, I would say that his defence will be that he had a reasonable excuse for withholding the information, given that he had been arrested without any evidence and held without charge for over a week without access to daylight or any meaningful stimulus.
Also a note for the record, the “evidence” against C was not sufficient to charge him (if there is sufficient evidence, there is an obligation on police to charge). Evidence which can possibly indicate guilt, can have many innocent explanations. Presumably C is the person who has been reported to the PPS. It is extremely rare for a person not to be charged with a terrorism offence by the police to be prosecuted later by the PPS (if they really thought he was a “terrorist” there’s no way the police would have released him.)
the re-arrest of duffy shows, in my opinion, that the police are intending on charging him (but they still have nothing or they would have done that already).
no doubt they’ll find something ropey to pin a charge on, and he’ll find himself on remand for months. When you’re charged, there is an extremely limited opportunity to challenge the evidence against you in the early stages. All that the police have to say is that they believe that they can connect him to the charge, and they are not open up to detailed cross examination.
they want duffy off-side. some safeguards!!
no doubt they’ll find something ropey to pin a charge on, and he’ll find himself on remand for months. They want duffy off-side.
You say that like its a bad thing
If Gerry and the peace makers had been able to plough on ahead since the GFA and not drag there heels trying to appease RSF and other hardliners with little vision we could have had the whole thing settled in an Easter 2016 referendum.
It looks to me like a very small group with little political agenda are going to blow the whole thing away.
I repulsed by their actions when we have come so far. I don’t think the Brits have the stomach for it either.
“Read all about it” PIRA/RIRA FUED
Next weeks headline guaranteed
As a Republican opposed to the strategies of CIRA/RIRA I have to state my abhorrence of stories coming out about the PSNI search of Colin Duffys home.
I have heard the same story more than once from people who would have little sympathy for the views of Mr Duffy. This is what I have been told:
Police in riot gear searched his house so aggressively that his wife and children had to leave it for 14 hours while they destroyed the place. Prior to leaving the officers dressed like Robocop shouted insults and threats to his wife and children.
The children were so scared and traumatised by this that they wet themselves, too frightened to move. When the Duffy family returned the house was in a mess, beyond what was necessary to search the place, and someone had defecated in the marital bed.
I know there will be no response to these very serious accusations from the PSNI, some will say this is CIRA propaganda etc.
What I say is that if this is true then it smacks of political policing which we had all hoped was a thing of the past.
I would ask one of the Slugger bloggers to start a new thread on this issue – maybe mark mcgregor could oblige.
Well I suppose the only way they will release him is two more are KIA then it cannot be Colin if he is in detention, then they would have to release him.
Public Meeting on recent arrests, detentions and implications for the PTA.
A public meeting will be held tonight, Thursday March 26th 8:30pm in the Kilwilke Community Centre, Lurgan, County Armagh.
This meeting has been called by the family of Colin Duffy – in conjunction with the families of others of the detainees.
The panel will be made up from some of the freed detainees, Duffy family members, legal profession and Human rights activists. Invitations have also been extended to local representatives of all political parties.
The cops are extremely dumb to make a martyr out of Colie Duffy yet again.
Have they learned nothing!?
SF must be livid.
Well I suppose the only way they will release him is two more are KIA then it cannot be Colin if he is in detention, then they would have to release him.
Posted by TCMSOLS on Mar 26, 2009 @ 02:13 PM
The Shankill Butchers followed that logic 35 years ago. Adair tried it too. Stands to reason Duffy might follow suit, in keeping with his equally pathetic and moronic contemporaries.
Nah, the legal consultation rooms are bugged these days.
“When the Duffy family returned the house was in a mess, beyond what was necessary to search the place, and someone had defecated in the marital bed.”
Posted by west belfast on Mar 26, 2009 @ 02:05 PM
If someone had murdered my mate, the least I would do is leave a turd in their bed.