Deprivation of Liberty and the Carltona Principle: R v Adams [2020] UKSC 19

AuthorNeil Parpworth
Publication Date01 Oct 2020
SubjectCase Notes
CLJ939815 497..501 Case Note
The Journal of Criminal Law
2020, Vol. 84(5) 497–501
Deprivation of Liberty
ª The Author(s) 2020
Article reuse guidelines:
and the Carltona Principle
DOI: 10.1177/0022018320939815
R v Adams [2020] UKSC 19
Interim custody order, detention without trial, attempted escapes, criminal convictions,
Northern Ireland
Under Article 4(1) of the Detention of Terrorists (Northern Ireland) Order 1972 (SI 1972/1632 (NI 15)),
the executive had the power to make an interim custody order (ICO) where it was considered that a
person was involved in terrorism. A person detained under an ICO had to be released after 28 days unless
the Chief Constable (of what was at the time the Royal Ulster Constabulary) referred the matter to the
commissioner. Following a referral, where the commissioner was satisfied that the person was involved
in terrorism, they had the power to make an order to detain them without trial indefinitely.
The appellant, Gerry Adams, had been the subject of an ICO made on 21 July 1973. On 10 August
1973, a referral was made to the commissioner by an Assistant Chief Constable. The commissioner
decided that the appellant should continue to be detained rather than be released. During his detention,
the appellant made two unsuccessful attempts to escape. As a result, he was tried on separate occasions
and found guilty of two offences of attempting to escape lawful custody contrary to para.38(a) of Sch.1
to the Northern Ireland (Emergency Provisions) Act 1973. He was accordingly sentenced to 18 months’
and 3 years’ imprisonment, respectively, to run consecutively.
For many years, there was no apparent basis on which to bring an appeal against these convictions.
However, as a result of the operation of the ‘30-year rule’, under which government documents are only
released publicly once 30 years have passed since the date of their creation, the appellant obtained access
to a legal opinion which was written by the Senior Crown Counsel for Northern Ireland at the time, JBE
Hutton QC (later Lord Hutton), and addressed to the then Attorney General. In the opinion, it was
suggested that the proposed prosecution of the appellant was unlikely to succeed since the trial judge
would probably conclude that it was a condition precedent of making an ICO that the matter should have
been considered personally by the Secretary of State. On the basis of this opinion, therefore, the
appellant argued that his convictions ought to be quashed because at the relevant time, his detention
had been unlawful because it was authorised by an ICO made by a minister in the Northern Ireland
Department rather than by the Secretary of State. His appeal was rejected by the Northern Ireland Court
of Appeal ([2018] NICA 8), which held that his detention had been lawful because the Carltona
principle applied to the making of the ICO. The court certified the following question as one constituting
a point of law of public general importance for the determination of the Supreme Court: ‘Whether the
making of an interim custody Order under Article 4 of the Detention of Terrorists (Northern Ireland)
Order 1972 [SI 1972/1632 (NI 15)] required the 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 Journal of Criminal Law 84(5)
Held, allowing the appeal, that whether or not the Carltona principle applies in a particular case
depends upon an open-ended examination of three factors: (i) the framework of the relevant legislation,
(ii) the language of the pertinent provisions in that legislation and (iii) the importance of the subject
matter, in the sense of the gravity of the consequences flowing from the...

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