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.

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  • picador

    Well, there it is. Duffy charged. It seems the cops have decided to go ahead with the martyrdom operation.

    What did they have today that they didn’t have yesterday? Was his re-arrest legal? And will the charges stick?

    Last night 200 people attended a meeting in support of Duffy.

    This has all the makings of a dissident cause celebre.

    Policing & Justice must be devolved ASAP.

  • groundhog day

    yeah, because our justice minister designate will do things differently!!! He’s already come out and stood by the police on their handling of these cases. And the Unionnists will use their veto to ensure that nobody who doesn’t fully support the securocrats ever gets the brief.

    The alliance party are a creation of the british government for exactly this purpose, to continue to have a say in things here, but giving the impression that it is in the hands of locals.

    The other recent alliance party/british government tool (the IMC) shows you exactly how security and justice issues will remain politicised here until there is real british disengagement from ireland! And that will never happen while there is a Unionist veto.

    devolve policing and justice by all means, but what we’re about to get is not devolution, its retention of policing and justice at westminster by another name. Or even worse than that, its placing policing and justice where it is only going to cause even more incidents like the past couple of weeks, back in control of a gerrymanderred Unionist majority.

    they will never trust the irish with policing and justice. If devolution of policing and justice cannot be devolved in the same manner as any other department, then it exposes the true nature of this “new” northern ireland.

    This is not the Good Friday Agreement, this is not what the people voted for in the referendum, it is a new version somewhere between direct rule and the Orange State. Democracy is being undermined and violence will fill the vacuum.

    There will be a lot of causes celebres to come, and the meetings will get bigger!

  • groundhog day

    http://www.guardian.co.uk/uk/2009/mar/23/northernireland-northernireland

    Ford’s position on policing.

    “You only have to look at the history of successive British home secretaries, some of whom came from a liberal background. Very few of them left office with their reputations enhanced, but the reality is that it’s a job that someone is going to have to do if this society remains stable for the future”

    He’s not even trying to hide the fact that he sees his role as essentially the latest in a long line of British liberal home secretaries.

    What planet does this man live on? When did we ever see liberalism when it came to policing and justice. What part of his position on detention without charge is supposed to liberal? And does he think that either he or his party have a reputation to put on the line. They certainly don’t have a mandate.

  • Lionel Huts

    “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.
    Posted by Albert on Mar 27, 2009 @ 03:30 AM

    The clearest explanation ever of the British concept of innocent until proven guilty.

  • horse eye

    So, Duffy’s DNA was found on a glove inside the car which the killers used to get to and from the scene of the murders.

    “This is not trace elements – this is a full DNA profile,” the officer told the court.

    What say you now, apologists?

  • Suilven

    “The clearest explanation ever of the British concept of innocent until proven guilty.”

    As opposed to what? Real IRA gunmen acting as judge, jury and (literally) executioner?

  • picador

    Suilven,

    Mr Duffy has not been convicted of anything yet so it is inappropriate to shit on his marital bed.

  • horse eye

    Suilven,

    Mr Duffy has not been convicted of anything yet so it is inappropriate to shit on his marital bed.

    Posted by picador on Mar 27, 2009 @ 12:40 PM

    If the murders of the policeman and two soliders were an “inevitable consequence of British occupation” then the turd in Duffy’s bed was an inevitable consequence of his dissent.

    Anyway, I dismiss such reports as pathetic propaganda.

  • horse eye

    Well, there it is. Duffy charged. It seems the cops have decided to go ahead with the martyrdom operation.

    Last night 200 people attended a meeting in support of Duffy.

    This has all the makings of a dissident cause celebre.

    Posted by picador on Mar 27, 2009 @ 05:13 AM

    So, given that his DNA was found on a glove in the murder car, are you saying that you’d prefer if he WASN’T charged?

  • groundhog day

    “The chief inspector later conceded that only the tip of the glove had been found. ”

    if we are even to believe the police – remember how they orchastrated evidence against sean hoey, dna on the tip of a glove (a movable object) is never going to be enough to prove someone is guilty.

    not sure how only a tip of a glove would be found either.

    Sounds as if this prosecution is going nowhere. Lets see if the PPS do their job with any kind of independence. nothing will be achieved by another high profile case falling apart after a couple of years.

  • horse eye

    “Sounds as if this prosecution is going nowhere. ”

    Of course what you mean is you hope it goes nowhere.

    Regardless of whether the DNA came from the tip of a glove or a dingleberry from Duffy’s ass, it was still in the murder car.

    They should send him and his cronies to Bagram, and enact a zero tolerance approach to all the little drug dealing car thieving DLA dole hopping hoods that form his support base and hey presto, the dissidents will be done with.

  • picador

    So, given that his DNA was found on a glove in the murder car, are you saying that you’d prefer if he WASN’T charged?

    Given that they had part of this glove for a week before they arrested him, why did it take FIFTEEN days to bring charges? And why was he not charged before the court ordered that he be set free?

  • horse eye

    Given that they had part of this glove for a week before they arrested him, why did it take FIFTEEN days to bring charges? And why was he not charged before the court ordered that he be set free?

    Posted by picador on Mar 27, 2009 @ 02:12 PM

    Yawn. So when the police jump the gun you complain, and when they don’t… you complain. It’s funny how seemingly intelligent people can be so blind in their own hypocrisy.

  • picador

    Given the lasting suspicious that arise from previous attempts to deal with Mr Duffy including:
    – the murder of Sam Marshall and wounding of Colin Duffy
    – the payments to a UVF witness in the Lyness case
    – the assassination of Duffy’s solicitor, Rosemary Nelson

    It is very important that police are seen to behave with absolute impropriety with regard to Duffy. Otherwise they stand the risk of making him a martyr, which is very dangerous.

    I make the point that they have not followed proper procedure. They have arrested Duffy before gathering the evidence. As a result they ended up holding him for two weeks and then treating a court order to release him with contempt. There are a lot of people who believe the police have not really changed, that they would go to any lengths to fit up Colin Duffy including planting of DNA evidence. The way the police have handled this will only encourage these suspicions.

  • groundhog day

    no, if its not going to stand up in court, he shouldn’t be charged. If there’s not a reasonable prospect of a conviction, then there shouldn’t be a prosecution. that’s how the law works, and it shouldn’t be any different for duffy or anyone. but we don’t have the rule of law here, we have political policing and a political PPS.

    the reason he wasn’t charged before the court ordered his release was because there was no dna at that stage, even according to the police version of events. I still doubt that there is. it is too convenient that this materialised at the exact point they needed it. Police seem to have been in a mess over the whole thing, i don’t think they expected the high court to order release.

    I’ll save my conspiracy theories for later, but i don’t believe everything the police tell me (can i be blamed for that?) The only thing that is certain is that the police are determined to put duffy behind bars, and even in the unlikely event that he is convicted, they have handed the republicans a PR victory by their whole handling of it all.

    And can you imagine the PR points scored when he walks free, after three attempts by the state to convict him?

  • groundhog day

    picador, the police have been shown to be acting with absolute impropriety

    your point is a good one though, but the damage is already done. the police have undermined this prosecution more than republicans ever could. Further damage will be done as the trial slowly falls apart.

    the damage is also wider than duffy. raids, mistreatment, the others held for so long without charge, the other three charges which seem to be just as politically motivated.

    we’ll see if the lessons have been learned for next time. I doubt it. republicans will have learned their lessons, they’ll do exactly what they did before!!