R v Adams (Northern Ireland)

The Supreme Court held that the interim custody order (ICO) made under article 4 of the Detention of Terrorists (Northern Ireland) Order 1972 required the personal consideration of the Secretary of State and was not validly made by a Minister of State by operation of the Carltona principle. The court analysed article 4(1) and 4(2) together and concluded that Parliament had deliberately separated the function of deciding to make an ICO (vested in the Secretary of State personally) from the separate function of signing an ICO (which could be performed by specified office-holders). In consequence the ICO made on 21 July 1973 was invalid, the detention was unlawful and the appellant's convictions for attempting to escape from lawful custody were quashed.

Background and facts:

• From 1922 successive statutes authorised detention without trial in Northern Ireland; internment was last introduced in August 1971. An interim custody order (ICO) was made in respect of the appellant on 21 July 1973 and he was detained. The appellant made two escape attempts in December 1973 and July 1974 and was subsequently convicted of attempting to escape from lawful custody.
• An opinion of JBE Hutton QC dated 4 July 1974, uncovered under the 30-year rule, suggested a court would probably hold that the Secretary of State must personally consider the matter before making an ICO. The appellant learned of that opinion in 2009 and applied for an extension of time to appeal his convictions; that extension was granted.

Procedural posture: The appellant's conviction was appealed to the Northern Ireland Court of Appeal which dismissed the appeal ([2018] NICA 8). The Court of Appeal refused permission to appeal to the Supreme Court but certified a point of law of public general importance concerning whether article 4 required the Secretary of State personally to consider making an ICO or whether the Carltona principle permitted a Minister of State to do so.

Relief sought: The appellant sought to challenge the validity of the ICO and to have his subsequent convictions quashed on the ground that the ICO had not been validly made by the Secretary of State personally.

Issues framed:

• Whether article 4(1) of the 1972 Order required the Secretary of State personally to consider whether to make an ICO, or whether the Carltona principle permitted junior ministers to exercise that function.
• Whether Parliamentary material could be used under Pepper v Hart to displace the apparent meaning of article 4.

Court's reasoning (concise):

• The court treated the matter principally as one of statutory construction. Article 4(1) states the power arises "where it appears to the Secretary of State" and article 4(2) provides that an ICO "of the Secretary of State shall be signed by a Secretary of State, Minister of State or Under Secretary of State." Read together, the segregation of decision and signing functions showed Parliament intended distinct roles and that the decision-making function was personal to the Secretary of State.
• The court examined authority on the Carltona principle (including Carltona, Golden, Oladehinde, Doody and Northern Ireland authorities). It rejected any automatic presumption that Carltona applies and preferred an open-textual analysis guided by the statutory framework, the language and the gravity of the subject matter. The seriousness of detention without trial supported a conclusion that Parliament intended the Secretary of State personally to decide on ICOs.
• Pepper v Hart could not be used because the Parliamentary statements relied on were not sufficiently clear.
• Accordingly, the ICO of 21 July 1973 was held invalid; the appellant’s detention was unlawful and his escape convictions were therefore unsafe and quashed.

Wider context: The judgment addresses the proper approach to the Carltona principle and the weight to be given to the gravity of the consequences in deciding whether a minister must act personally. It emphasises textual analysis of statutory language and notes that Parliament has on occasion expressly displaced the Carltona principle.

The appeal was allowed. The Supreme Court held that article 4(1) of the Detention of Terrorists (Northern Ireland) Order 1972 required the Secretary of State personally to consider whether to make an interim custody order; the Carltona principle did not permit a Minister of State to make that decision. The ICO made on 21 July 1973 was therefore invalid, the appellant’s detention unlawful, and his convictions for attempting to escape from lawful custody were quashed.

Appeal from the Northern Ireland Court of Appeal [2018] NICA 8 (appeal dismissed). An application for permission to appeal to the Supreme Court was refused by the Court of Appeal on 16 April 2018 but a point of law of public general importance was certified. An extension of time to appeal was granted by Gillen LJ on 20 April 2017. The Supreme Court allowed the appeal on 13 May 2020.