In R v Adams [2020] UKSC 19 the Supreme Court considered the legality of an order made under the Northern Ireland regime of detention without trial which was in place between 1922 and 1971 (known as ‘internment’). The last instrument authorising internment permitted a person to be taken into custody on the basis of an interim custody order (ICO) made by the Secretary of State where he considered that the person was involved in terrorism.
On 21 July 1973, an ICO was made in respect of the appellant, who had been a prominent political leader in Northern Ireland and the Republic of Ireland for many years and who had consistently denied being a member of any terrorist organisation. He tried to escape from detention three times and was convicted of attempting to escape from lawful custody.
The original ICO was signed by a Minister of State in the Northern Ireland Office. While it was permitted for an ICO to be signed by a Minister of State, the legislation was phrased in such a way as to require that the Secretary of State himself must suspect that the appellant had been involved in terrorism. However, there was no evidence that the Secretary of State had personally considered the issue and the appellant challenged the ICO on the basis that it was not sufficient that the Minister of State who signed the ICO suspected him of being involved in terrorism.
The Court considered whether the Carltona principle applied so as the legislation should be read as permitting the statutory power to be exercised by responsible officials in the relevant Government department on behalf of the Secretary of State. It was noted that, in contrast to other cases, due to the scale of internment, it would not have placed an unduly onerous burden on the Secretary of State to have personally considered whether each ICO should be made. A distinction was therefore made between this and other cases where it would be impracticable to require the Secretary of State to personally exercise a statutory power.
The Court noted obiter that it did not consider that there was a presumption in law that the Carltona principle should apply unless it was disapplied by express statutory language. However, it did not find it necessary to come to a view on this issue since it considered that the language of the statute was clear that the principle should not apply in this case.
The 1972 instrument stated that the Secretary of State must consider the matter and make the ICO. It went on to state that the ICO could be signed by the Secretary of State, Minister of State or Under Secretary of State. This indicated a clear distinction in roles which would not have been necessary had the Carltona principle been intended to apply. Further, the language that the ICO was that ‘of the Secretary of State’ was considered to clearly indicate that the ICO was personal to him or her and not a generic order that could be made by others.
Accordingly, the Court considered that the making of the ICO in respect of the appellant was invalid as the Secretary of State had not considered the matter personally. The appellant had been therefore been detained unlawfully. A consequence of this was that the appellant’s convictions for trying to escape internment were also quashed.