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Dismissing the appeal and finding that Mr Adams’ convictions were safe, the Court of Appeal applied the Carltona principle and held that the Minister for State was an appropriate person to make Mr Adams Interim Custody Order under the Detention of Terrorists (NI) Order 1972

Background

The Court of Appeal today dismissed an appeal by Gerry Adams against his convictions in the 1970s for attempting to escape from internment.

Pursuant to an Interim Custody Order (ICO) exercised under the Detention of Terrorists (NI) Order 1972, and signed by the Minister of State at the Northern Ireland Office, Mr Adams was detained on 21 July 1973. Thereafter, a Detention Order was made by a Commissioner on 16 May 1974, continuing Mr Adams’ detention.

Mr Adams made two escape attempts, in December 1973 and July 1974, for which he was sentenced to 18-months and three-years imprisonment, respectively.

Release of Government Papers

Mr Adams did not lodge an appeal against his convictions for over 40 years, and this appeal was triggered by the disclosure of Government papers under the “30 year rule”.

The papers revealed that a debate on ICO’s prompted a change of practice in 1974, and that rom then on “decisions on ICOs were made by the Secretary of State alone”. It was apparent that this change was based on legal advice which suggested that “the safer construction of is that only the Secretary of State can make the order”.

As such, Mr Adams contended that Article 4(1) of the Detention of Terrorists (NI) Order 1972 required the Secretary of State to consider personally each ICO. In this regard, it was notable that Mr Adams detention was signed by the Minister of State at the Northern Ireland Office.

He claimed that there was no proof that the ICO dated 21 July 1973 had been considered personally by the Secretary of State and was therefore invalid.

Considering the jurisprudence developing the Carltona principle “which 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” – the Court of Appeal concluded that the application of the Carltona principle could only be displaced or rebutted “by Parliament using express words or by necessary implication”.

The Detention of Terrorists (NI) Order 1972

Mr Adams contended that the wording of Article 4(1) of the Detention of Terrorists (NI) Order 1972 required personal consideration by the Secretary of State.

The Court of Appeal said that the wording of the legislation was a common formula and was not the basis for any necessary implication of personal consideration in previous cases.

Mr Adams also relied on the provision in Article 4(1) that the Secretary of State may make the order and the provision in Article 4(2) that the order may be signed by a Secretary of State, Minister of State or Under Secretary of State.

However, the Court of Appeal said that a distinction had clearly been drawn between the making of the order and the signing of the order:

“Clearly the making of the order is the more significant decision. The signing of the order is the authority on which officials act to detain the person subject to the order. The distinction indicates that the appropriate person who might act on behalf of the specified Minister may be more confined under Article 4(1) than under Article 4(2). It does not lead to the necessary implication that only the Secretary of State may make the order.”

On the gravity of an ICO involving the loss of liberty, the Court of Appeal agreed that the factors to be considered in determining the application of the Carltona principle included “the importance of the subject matter but said it was not satisfied that a decision that results in loss of liberty was in itself sufficient to displace it”.

In all the circumstances, the Court held that the Minister of State was an appropriate person to make the ICO on behalf of the Secretary of State, being a Minister appointed by the Crown and answerable to parliament.

Satisfied that the ICO was valid having been made by the Minister on behalf of the Secretary of State, the Court of Appeal held that Mr Adam’s convictions were safe and his appeal was dismissed.