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On appeal from: [2018] NICA 8

Under the Detention of Terrorists (Northern Ireland) Order 1972, art 4 an Interim Custody Order was made where the Secretary of State considered that an individual was involved in terrorism. On foot of an ICO, the person was taken into custody and had to be released within 28 days, unless the Chief Constable referred the matter to the Commissioner, who had the power to make a detention order if satisfied that the person was involved in terrorism.

An ICO had been made in respect to the appellant in this case in 1973. He was detained on foot of that ICO and was later twice convicted of attempting to escape from lawful custody. An opinion of JBE Hutton QC in 1974 suggested that it was a condition precedent to the making of an ICO that the Secretary of State should have considered the matter personally. The appellant later challenged the validity of the ICO because the Secretary of State did not personally consider whether he was involved in terrorism. As such, he argued that his detention and convictions were also unlawful.

The Supreme Court unanimously allowed the appeal. It held that the power under article 4 of the 1972 Order should be exercised by the Secretary of State personally, and, therefore, that the making of the ICO in respect of the appellant was invalid, and that his consequent detention and convictions were unlawful.

The question for the court was whether the making of an ICO under the 1972 Order, art 4 required personal consideration by 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, delivering judgment, held that even if a presumption exists that Parliament intends Carltona to apply, it was displaced by a proper interpretation of articles 4(1) and 4 (2) of the 1972 Order read together. The consideration that the power invested in the Secretary of State by article 4(1) – a power to detain without trial and potentially for a limitless period- was a momentous one and provided insight into Parliament’s intention that such a crucial decision should be made by the Secretary of State personally. There was moreover no evidence that this would place an impossible burden on the Secretary of State.

For judgment, please download: [2020] UKSC 19

For Court’s press summary, please download: Court’s Press Summary

For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing please visit: Supreme Court website, 19 November 2019 morning and afternoon session.

To watch the judgment summary, please visit: Supreme Court website, 13 May 2020