Puzzle of European law and On the Runs

Last week Northern Ireland Secretary of State Theresa Villiers made a speech declaring that the controversial administrative scheme for On the Runs is, so far as the government is concerned, over.

My guest on BBC Radio Ulster's Inside Politics was Deputy First Minister Martin McGuinness.

He told me he found the secretary of state's intervention "bizarre" given that Attorney General Dominic Grieve had described the scheme as lawful.

Mr McGuinness went on to argue that people had a right under European law to clarify whether or not they were wanted by the police.

The European law aspect of the On the Run story puzzles me. Away from the local context, you do not often hear about suspects phoning up the police just to check if the authorities are looking for them.

But if you look up the judgment by Mr Justice Sweeney in the John Downey case there is a direct reference in paragraph 76.

Mr Justice Sweeney notes that "the first Operation Rapid meeting took place on 7 February 2007. It was chaired by the Head of Branch C2, DCS Baxter and attended by among others ADCI Graham (who was appointed SIO).

"A note of the meeting was disclosed during the hearings. It recorded that: 'The HoB provided a brief background as to why a review would be taking place into those persons termed as being On the Run. He stated that Mr McGrory, solicitor, who acts on behalf of the OTRs, had requested information about the current legal status of his clients. Under Article 3 of the ECHR and Human Rights Act, all persons have a legal right upon request to be informed if police require them for questioning. He stated that police were therefore obliged to review all those cases and determine the current status of these persons…'."

Quite often European law comes down to complex case law that builds on the bare bones of the European Convention on Human Rights.

However, in this instance I thought it was worthwhile checking the original Article just in case it gave a clue about how this "right to know your status" is derived.

I was therefore a little surprised to find that Article 3 of the European Convention on Human Rights is self explanatory - "no-one shall be subjected to torture or to inhuman or degrading treatment or punishment".

Article 3 has been invoked before in relation to Northern Ireland - it was the basis of the 1978 European ruling that the UK had broken the convention by subjecting suspects to techniques such as hooding and sleep deprivation.

However, to expand the article to deal with the rights of paramilitary fugitives seems scarcely logical.

There may be a valid argument under some other part of European law to justify the OTR letters - perhaps Article 8 which deals with "the right to respect for private and family life" could be invoked.

But if the Downey judgment is accurate it could be that the police officers charged with putting Operation Rapid into action were briefed inaccurately at the very start of the process.