Credit: Supreme Court

In the judgment delivered this morning, the Supreme Court unanimously held that the interim custody order (ICO) made in respect of Mr Adams in 1973 was invalid because it had not been considered by a Secretary of State.

Mr Adams brought the appeal following the publication under the “30-year rule” of a legal opinion from JBE Hutton QC (later Lord Hutton of Bresagh), dated 4 July 1974, that the making of an ICO required the personal consideration of a Secretary of State.

However, his appeal was dismissed by the Court of Appeal in Belfast in February 2018 on the basis that the ICO was valid when consideration is given to the Carltona principle, based on the decision in Carltona Ltd v Comrs of Works [1943] 2 All ER 560.

The Carltona principle states that the duties imposed on ministers are so multifarious that no minister could ever personally attend to them and that the duties are normally exercised under the authority of the ministers by responsible officials of the minister’s department.

In the Supreme Court judgment, Lord Kerr said the Court of Appeal had “approached the central issue in this case on the basis that there was a presumption that the Carltona principle would apply” to article 4(1) of the Detention of Terrorists (Northern Ireland) Order 1972.

Questioning “whether such a presumption exists”, he added that it was “clearly displaced” in any case “by the proper interpretation of article 4(1) and (2), read together”, which separated the functions of making and signing an ICO.

Lord Kerr concluded: “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.”