Adams, R v (Northern Ireland) [2020] UKSC 19

Gerry Adams was detained in 1973 under an Interim Custody Order signed by a Minister of State, not the Secretary of State personally. The Supreme Court held the ICO was invalid, quashing his convictions for attempting to escape from lawful custody.

Facts

From 1922, legislation authorised detention without trial in Northern Ireland, known as internment. Internment was reintroduced on 9 August 1971. Under the Detention of Terrorists (Northern Ireland) Order 1972, an Interim Custody Order (ICO) could be made where it appeared to the Secretary of State that a person was involved in terrorism. On foot of the ICO, the person would be detained, with the matter referred to a commissioner within 28 days.

An ICO in respect of the appellant, Gerry Adams, was made on 21 July 1973, signed by a Minister of State in the Northern Ireland Office rather than the Secretary of State personally. The appellant attempted to escape on 24 December 1973 and again on 27 July 1974, being convicted of attempting to escape from lawful custody on each occasion, receiving sentences of 18 months and three years respectively.

Under the ’30-year rule’, an opinion of JBE Hutton QC dated 4 July 1974 was uncovered. Mr Hutton had concluded that a court would probably hold that it was a condition precedent to the making of an ICO that the Secretary of State consider the matter personally. The appellant became aware of this opinion in October 2009 and successfully applied for an extension of time to appeal.

Issues

The certified question was whether the making of an ICO under article 4 of the 1972 Order required personal consideration by the Secretary of State, or whether the Carltona principle operated to permit the making of such an Order by a Minister of State.

The Carltona Principle

Under Carltona Ltd v Comrs of Works [1943] 2 All ER 560, functions given to ministers may normally be exercised by responsible officials of the department, as public business could not otherwise be carried on.

Judgment

The Supreme Court unanimously allowed the appeal, with Lord Kerr giving the leading judgment (with whom Lady Black, Lord Lloyd-Jones, Lord Kitchin and Lord Burnett agreed).

Reasoning

Lord Kerr analysed article 4 of the 1972 Order. Article 4(1) provided that ‘where it appears to the Secretary of State’ that a person is suspected of terrorism, the Secretary of State may make an ICO. Article 4(2) provided that an ICO ‘of the Secretary of State’ shall be signed by a Secretary of State, Minister of State or Under Secretary of State.

The Court identified two significant features. First, there was a distinct segregation of roles: making the order (article 4(1)) and signing it (article 4(2)) were treated separately. Had the Carltona principle been intended to apply, there was no obvious reason for this separation. Secondly, the reference to the ICO being ‘of the Secretary of State’ indicated that the order was personal to the Secretary of State.

Lord Kerr considered the seriousness of the consequences a relevant factor, the power being ‘a momentous one’ involving detention without trial potentially for an indefinite period. He contrasted this with Doody, where tariff-setting concerned prisoners already convicted after due process. Further, there was no evidence that personal consideration would impose an impossible burden on the Secretary of State; Merlyn Rees, who became Secretary of State in March 1974, personally considered all ICOs.

The Court questioned whether there is a presumption that the Carltona principle applies, preferring textual analysis of the legislation. Even if such a presumption existed, it was displaced by the clear statutory language.

The Pepper v Hart argument was rejected as the parliamentary statements lacked the requisite clarity.

Implications

The decision confirms that the Carltona principle is not a presumption of universal application but depends on proper construction of the relevant legislation, having regard to its framework, language, and the gravity of consequences. Where legislation distinguishes between functions reserved to the Secretary of State and those that may be discharged by junior ministers, the former must be exercised personally. The decision has significant implications for historical internment-era detentions in Northern Ireland.

Verdict: Appeal allowed. The making of the ICO in respect of the appellant was invalid; he was not lawfully detained; and his convictions for attempting to escape from lawful custody were quashed.

Source: Adams, R v (Northern Ireland) [2020] UKSC 19