24 June 2024


International Cases

R v Adams

United Kingdom

13.05.2020

Criminal

Power under Article 4(1) of the 1972 Order should be exercised by the Secretary of State personally

In present case, an interim custody order (ICO) was made in respect of the Appellant on 21 July 1973. The order was signed by a Minister of State in the Northern Ireland Office. The matter was referred to a commissioner by an Assistant Chief Constable on 10 August 1973 and the commissioner decided that the Appellant should continue to be detained.

The appellant tried to escape from the place where he was detained on 24 December 1973. He was convicted of the offence of attempting to escape from lawful custody on 20 March 1975 and sentenced to 18 months’ imprisonment. He tried to escape again on 27 July 1974 and was convicted of a like offence on 18 April 1975, when a sentence of three years was passed, to be served consecutively to that imposed a month earlier.

At stake, on this appeal is the validity of the ICO made on 21 July 1973. Although an ICO could be signed by a Secretary of State, a Minister of State or an Under Secretary of State, the relevant legislation provided that the statutory power to make the ICO arose “where it appears to the Secretary of State” that a person was suspected of being involved in terrorism. There is no evidence that the Secretary of State personally considered whether the Appellant was involved in terrorism. On the assumption (which is common to the parties to the appeal) that he did not, the question arises whether the ICO was validly made.

Following the disclosure of an opinion of JBE Hutton QC dated 4 July 1974, published in line with the 30 years’ rule, and which suggested that it was a condition precedent to the making of an ICO that the Secretary of State should have considered the matter personally, the Appellant challenged the validity of the ICO dated July 1973. He argued that the ICO was invalid because the Secretary of State did not personally consider whether the appellant was involved in terrorism, and consequently argues that his following detention and convictions were also unlawful. The Court of Appeal in Northern Ireland dismissed his appeal. The Appellant appeals to present court against the Court of Appeal’s judgment.

Article 4(1) of the Detention of Terrorists (Northern Ireland) Order 1972 (1972 Order) provides that, where it appears to the Secretary of State that a person is suspected of having been concerned in the commission or attempted commission of any act of terrorism or in the direction, organisation or training of persons for the purpose of terrorism the Secretary of State may make an order ( ‘interim custody order’) for the temporary detention of that person.

The language in this paragraph is clear and precise. Its apparent effect is unambiguous. It is the Secretary of State who must consider whether the person concerned is suspected of being involved in terrorism etc. Absent the possible invocation of the Carltona principle, there could be no doubt that resort to the power to make an ICO was reserved to the Secretary of State alone.

The question for the court was whether the making of an ICO under article 4 of the 1972 Order required personal consideration by the Secretary of State of the case of the person subject to the order or whether the Carltona principle operated to permit the making of such an Order by a Minister of State. The “Carltona principle” relates to the decision of the Court of Appeal in Carltona Ltd v Comrs of Works, which accepted as a principle of law that the duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department.

Even if a presumption exists that Parliament intends Carltona to apply, it is clearly displaced on the facts by the proper interpretation of Article 4(1) and 4(2) read together. The consideration that the power invested in the Secretary of State by article 4(1) – a power to detain without trial and potentially for a limitless period – was a momentous one provides insight into Parliament’s intention and that the intention was that such a crucial decision should be made by the Secretary of State personally. There was no evidence that this would place an impossible burden on the Secretary of State.

It was Parliament’s intention that the power under Article 4(1) of the 1972 Order should be exercised by the Secretary of State personally. The making of the ICO in respect of the Appellant was invalid. It follows that he was not detained lawfully. It further follows that, he was wrongfully convicted of the offences of attempting to escape from lawful custody and his convictions for those offences must be quashed.

Tags : Detention Lawful custody Legality

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