Adams (Appellant) (Northern Ireland) [2020] UKSC 19

R v Adams (Appellant) (Northern Ireland) [2020] UKSC 19 concerned an appeal against convictions for attempting to escape from lawful custody, raising the question whether an interim custody order made under internment legislation in 1973 required the personal consideration of the Secretary of State or whether the Carltona principle permitted its making by a junior minister. The Supreme Court allowed the appeal and quashed the convictions.

The appellant had been detained under an interim custody order signed by a Minister of State in the Northern Ireland Office on 21 July 1973, pursuant to article 4 of the Detention of Terrorists (Northern Ireland) Order 1972. He was convicted on 20 March 1975 of attempting to escape on 24 December 1973 and sentenced to 18 months’ imprisonment. He was convicted again on 18 April 1975 of attempting to escape on 27 July 1974 and sentenced to three years’ imprisonment consecutive to the earlier sentence. There was no evidence that the Secretary of State had personally considered whether the appellant was suspected of involvement in terrorism before the interim custody order was made.

In October 2009 the appellant discovered a legal opinion dated 4 July 1974 by JBE Hutton QC (later Lord Hutton) which had been released under the 30‑year rule. Mr Hutton had concluded that a court would probably hold it a condition precedent to the making of an interim custody order that the Secretary of State should have considered the matter personally. The appellant subsequently applied for and was granted an extension of time to appeal his convictions.

The Northern Ireland Court of Appeal dismissed the appeal on 16 January 2018. Delivering the judgment of the court, Sir Ronald Weatherup held that the Carltona principle applied and that subsequent case law suggested the seriousness of the subject matter was a relevant but not determinative factor in deciding whether Parliament intended to disapply the principle. The court relied on In re Golden Chemicals Products Ltd [1976] Ch 300 and R v Secretary of State for the Home Department, Ex p Oladehinde [1991] 1 AC 254. Sir Ronald held that there was nothing in the framework or language of the 1972 Order indicating a contrary Parliamentary intention.

The appellant appealed to the Supreme Court on a certified question of law of public general importance concerning whether article 4 of the 1972 Order required the personal consideration of the Secretary of State or whether the Carltona principle operated to permit the making of such an order by a Minister of State.

Lord Kerr (with whom Lady Black, Lord Lloyd‑Jones, Lord Kitchin and Lord Burnett agreed) began by examining the authorities relied upon by the Court of Appeal. He considered that Sir Ronald Weatherup had misread Brightman J’s judgment in Golden. Brightman J had not found that seriousness of subject matter was a relevant consideration; rather, he held that no distinction as a matter of law could be drawn between powers which the minister must exercise personally and those which could be exercised by an officer of his department based on the seriousness of the subject matter. Lord Kerr stated, however, that the Court of Appeal was right to hold that seriousness of consequences is a consideration to be taken into account in deciding whether a power must be exercised by the minister personally and that to the extent Brightman J suggested otherwise he was wrong.

Lord Kerr examined the decision in Oladehinde, where the House of Lords had rejected an argument that the structure of the Immigration Act 1971 carried a clear statutory implication that the Secretary of State’s powers were not to be exercised by immigration officers. That case turned on the presence of express exclusions of delegation in certain sections of the Act and the absence of such exclusion in others. Oladehinde did not address the question whether the exercise of the power had serious consequences for those affected.

Lord Kerr next considered Doody v Secretary of State for the Home Department [1993] QB 157, in which the Court of Appeal (endorsed by the House of Lords) had rejected an argument that the Secretary of State must personally fix the tariff period for life prisoners. Staughton LJ had noted that 274 mandatory life sentence cases were considered in 1990 alone, such that it would be rational for the Secretary of State to devolve the task to junior ministers. Importantly, there was no express or implied requirement in the Criminal Justice Act 1967 that such decisions must be taken by the Secretary of State personally. Lord Kerr observed that neither consideration obtained in the present case: there was no evidence that it would have been unduly onerous for the Secretary of State personally to consider each application for an interim custody order, and indeed the Rt Hon Merlyn Rees MP (who became Secretary of State in March 1974) considered all such orders personally. Lord Kerr noted that Staughton LJ had implicitly acknowledged that seriousness of consequences was a consideration to be taken into account, contrary to Brightman J’s view in Golden, though this was as a contribution to insight into Parliament’s intention rather than an autonomous factor.

Lord Kerr also examined R v Harper [1990] NI 28 and McCafferty’s Application [2009] NICA 59, both decisions of the Northern Ireland Court of Appeal. He concluded that neither case assisted in resolving the present appeal because the legislation in each case did not contain the distinctive features present in the 1972 Order.

Lord Kerr considered whether there was a presumption in law that the Carltona principle must be taken to apply unless removed by express statutory language. His provisional view was that the matter should be approached as a matter of textual analysis, unencumbered by the application of a presumption, though with Lord Griffiths’s observations in Oladehinde well in mind. He stated that whether the Carltona principle arises depends on an open‑ended examination of the framework of the legislation, the language of pertinent provisions and the importance of the subject matter. He concluded, however, that it was unnecessary to reach a final view on whether such a presumption exists because even if it did, the statutory language in the present case clearly displaced it.

Lord Kerr turned to the relevant legislation. Article 4(1) of the 1972 Order provided that where it appeared to the Secretary of State that a person was suspected of involvement in terrorism, the Secretary of State might make an interim custody order for that person’s temporary detention. Article 4(2) provided that an interim custody order of the Secretary of State should be signed by a Secretary of State, Minister of State or Under Secretary of State. Lord Kerr held that the language of article 4(1) was clear and precise: it was the Secretary of State who must consider whether the person concerned was suspected of being involved in terrorism. Absent the possible invocation of the Carltona principle, there could be no doubt that resort to the power was reserved to the Secretary of State alone.

Lord Kerr identified two noteworthy features when paragraphs 1 and 2 were read together. First, there was distinct segregation of roles: paragraph 1 provided for the making of the order; paragraph 2 set out the quite separate function of signing the interim custody order. If it had been intended that the Carltona principle should apply, there was no obvious reason these roles should be given discrete treatment. The answer was self‑evident: it was intended that the two functions called for quite distinct treatment. Secondly, article 4(2) stipulated that the interim custody order to be signed was that of the Secretary of State. The use of those words denoted that the order was one which was personal to the Secretary of State, not a generic order which could be made by any one of the persons named in paragraph 2.

Lord Kerr considered whether reference to Parliamentary materials was permissible under the rule in Pepper v Hart [1993] AC 593. He agreed with the Court of Appeal that the language of the 1972 Order was neither ambiguous nor obscure, though for different reasons: properly construed, article 4(1) unmistakably pointed to the conclusion that the power invested in the Secretary of State was one which should be exercised by him or her personally. He also agreed that the statements made in Parliament did not partake of the quality of certainty required to meet the third criterion of the Pepper v Hart test and were therefore inadmissible.

Lord Kerr held that even if a presumption existed that the Carltona principle would apply, it was clearly displaced by the proper interpretation of article 4(1) and (2) read together. The segregation of the two functions could not have been other than deliberate. When allied to the consideration that the power invested in the Secretary of State was momentous—deciding whether an individual should remain at liberty or be detained potentially for an indefinite period without trial—the answer was clear. This provided an insight into Parliament’s intention that such a crucial decision should be made by the Secretary of State personally. This contrasted with Doody, where at least the prisoner whose tariff period was to be determined had been convicted after due process. A further factor was that there was no reason to apprehend that personal consideration by the Secretary of State would place an impossible burden on him, as demonstrated by the subsequent experience of Mr Merlyn Rees who considered all such orders personally.

Lord Kerr concluded that 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 interim custody order in respect of the appellant was therefore invalid. It followed that he was not detained lawfully and that he was wrongfully convicted of the offences of attempting to escape from lawful custody.

In short, the Supreme Court allowed the appeal and quashed the convictions, holding that the segregation of functions in the 1972 Order and the gravity of detention without trial meant that only the Secretary of State personally could make an interim custody order, which had not occurred in this case.

Carltona Ltd v Comrs of Works [1943] 2 All ER 560
re Golden Chemicals Products Ltd [1976] Ch 300
R v Skinner [1968] 2 QB 700
Doody v Secretary of State for the Home Department [1993] QB 157
R v Harper [1990] NI 28
Pepper v Hart [1993] AC 593, [1992] 3 WLR 1032, [1993] 1 All ER 42, [1993] ICR 291
Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531

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