Derogation from the convention
01 January 1991
Derogation from the convention
bacdoc September=1992
Brannigan and McBride v UK (3.12.91) No 14553/89
European Commission on Human Rights
Facts
Both applicants were detained for periods in excess of four days
under the PTA, without the protections provided by article 5(3),
in particular, without being brought promptly before a judge.
This practice was declared unlawful by the court in Brogan v UK
(29.11.88) Series A, Vol 145. The government took advantage of
the provisions of article 15 to derogate for PTA detentions. The
applicants challenged the lawfulness of this derogation.
Decision
The applicants did not challenge the existence of a `public
emergency threatening the life of the nation' and the commission
concluded that there continued to be a state of emergency. The
applicants contended that the derogation was issued not because
of the situation but merely because of the court's judgment in
Brogan. They also refuted the government's suggestion that the
independence and impartiality of judges would be undermined by
conferring detention powers on them. The judges currently had to
deal with search warrants, habeas corpus and false imprisonment
and were not undermined. It was also said that the executive's
extension powers are automatic and open to abuse.
The government argued that extended detentions up to seven days
are indispensable for combating terrorism. Often, although there
is ample material to found suspicion, it cannot be disclosed, as
it would compromise valuable sources of information and endanger
the lives and families of informants. If the judiciary were seen
to be exercising powers of extended detention on the basis of
undisclosed material, or sitting in camera, public trust in the
judiciary would be seriously undermined.
The commission decided that the case was admissible but accepted
the government's arguments on the merits. The matter will now be
considered by the court.
Comment
The power to derogate from the terms of the convention is very
important and it is unfortunate that the commission has allowed
the government to exercise it in this case.
EC Europe Law Civil liberties
Legal Action, John Wadham (legal officer Liberty)