Bail – Detention without charge – Right to liberty and security – Terrorism

R (on the application of I) (claimant) v (1) City Of Westminster Magistrates’ Court (2) Chief Constable of Manchester Police (defendants) and Crown Prosecution Service (interested party): QBD (Admin) (Mr Justice Collins): 28 August 2008.

The applicant (C) applied for permission to seek judicial review of a decision to detain him under section 41 of the Terrorism Act 2000.

C had been detained under section 41 and a senior district judge had approved a further detention of seven days. C applied for conditional bail. It was said that the provisions of the act precluded the district judge from releasing on conditions and that there was no power on the face of it for any court to make such an order. C submitted that there was or should be a power under the relevant provisions, particularly having regard to article 5 of the European Convention on Human Rights 1950, to enable the district judge to release upon conditions before any charge, and the absence of that power was such as to render section 41 and schedule 8 of the act incompatible with article 5.

Held: (1) On the face of it there was no power in the custody officer to grant bail on any conditions in relation to a detention under section 41. The detention was properly to be regarded as falling within article 5(1)(c) of the convention. It was not necessary within article 5(1)(c) that there should exist such reasonable suspicion to justify the initial detention. It was the purpose of the detention that mattered. Provided the law of the state in question made such an arrest lawful, then it fell properly within article 5(1)(c). There was clear compliance with the requirements of article 5 in that any detention had to be justified before a magistrate and then after a total of 14 days if an extension was granted before a High Court judge. The High Court judge had the power to decide, after the first 14 days, whether there should be a further extension for seven days and thereafter for a further seven, making a total of 28 days. There was no power to detain beyond 28 days. The decision must then be made whether to charge or release the detainee. (2) The legislation did contain the necessary safeguards, without there being a question of power to release on bail. The detention would not be authorised unless, in accordance with the principles that were clearly applicable under article 5, the court was satisfied that detention was justified and needed in order to enable there to be a proper examination of the terrorist offence. The protection of the individual lay in the judicial control over whether there should be further detention, McKay v United Kingdom (543/03) [2007] 44 EHRR 41 ECHR (Grand Chamber) considered.

Application refused.

David Gottlieb (instructed by Rustem Guardian) for the claimant; Jeremy Johnson (instructed by in-house solicitor) for the second defendant.