Neutral Citation No:  NICA 8
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Sir Ronald Weatherup (delivering the judgment of the Court)
The legislative framework for detention
Regulation 11(1) provided for the arrest without warrant of any person suspected of acting or of having acted or of being about to act in a manner prejudicial to the preservation of the peace or the maintenance of order.
Regulation 11(2) provided that any person so arrested may on the order of the Minister of Home Affairs be detained until he has been discharged by direction of the Attorney General or brought before a court of summary jurisdiction.
Regulation 12(1) provided that, where it appeared to the Minister of Home Affairs, on the recommendation of an officer of the RUC not below the rank of County Inspector or of an Advisory Committee, that for securing the preservation of the peace and of the maintenance of order in Northern Ireland, it was expedient that a person who was suspected of acting or having acted or being about to act in a manner prejudicial to the preservation of the peace and the maintenance of order, be interned, the Minister of Home Affairs may order that the person be interned. The order made was required to include express provision for the due consideration by an Advisory Committee of any representations which the person detained may make against the order.
"(1) Where it appears to the Secretary of State that a person is suspected of having been concerned in the commission or attempted commission of any act of terrorism or in the direction, organisation or training of persons for the purpose of terrorism the Secretary of State make an order (hereinafter in this order referred to as an "interim custody order") for the temporary detention of that person.
(2) An interim custody order of the Secretary of State shall be signed by a Secretary of State, Minister of State or Under Secretary of State.
(3) A person shall not be detained under an interim custody order for a period of more than 28 days from the date of the order unless his case is referred by the Chief Constable to a Commissioner for determination and where a case is so referred the person concerned may be detained under the order only until his case is so determined.
(4) A reference to a Commissioner shall be by notice in writing, of which a copy shall be sent to the Secretary of State and to the person to whom it relates."
Article 5 contained provision for adjudication by a Commissioner as follows:
"(1) Where the case of a person detained under an interim custody order is referred to a Commissioner, the Commissioner shall enquire into the case for the purpose of deciding whether or not he is satisfied that
(a) that person has been concerned in the commission or attempted commission of any act of terrorism or the direction, organisation or training of persons for the purpose of terrorism; and
(b) his detention is necessary for the protection of the public.
(2) Where a Commissioner decides that he is satisfied as aforesaid he shall make an order (hereafter in this order referred to as 'detention order') for the detention of the person in question, and otherwise shall direct his discharge."
The delegation of the powers of detention
The Carltona principle
"In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them. To take the example of the present case no doubt there have been thousands of requisitions in this country by individual ministers. It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer for that in Parliament. The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against them."
The release of government papers
The use of parliamentary materials for interpretation
"(1) In arriving at the legal meaning of an enactment to which this section applies the court may have regard to any statement, as set out in the official report of debates (Hansard) on the Bill for the Act, which satisfies the requirements of sub-sections (3) to (5) below, together with such other Parliamentary material (if any) as is relevant for understanding that statement and its effect. In allowing an advocate to cite the material the court must ensure that he or she does not in any way impugn or criticise the statement or the reasoning of the person making it.
(2) This section applies to an enactment contained in an Act where, in the opinion of the court construing the enactment, it is ambiguous or obscure, or its literal meaning leads to an absurdity.
(3) The statement must be made by or on behalf of the Minister or other person who is the promoter of the Bill.
(4) The statement must disclose the mischief aimed at by the enactment, or the legislative intention underlying its words.
(5) The statement must be clear."
Grounds of appeal
(1) The conviction of the appellant on 20 March 1975 of the offence of attempting to escape from detention contrary to paragraph 38(a) of Schedule 1 to the Northern Ireland (Emergency Provisions) Act 1973 and common law (Bill No. 799/74) is unsafe in that:
(i) The prosecution failed to prove that the interim custody order dated 21 July 1973, on the basis of which the appellant's detention had been authorised, was a valid interim custody order.
(ii) Article 4(1) of the Detention of Terrorists (Northern Ireland) Order 1972, under which the interim custody order had been made, required the Secretary of State personally to consider whether the person subject to the order was suspected of having been concerned in the commission or attempted commission of any act of terrorism or in the direction, organisation or training of persons for the purposes of terrorism.
(iii) Proof of compliance with Article 4(2) of the Order, in respect of the signing of the interim custody order by a Minister of State, did not constitute proof of the matter required by Article 4(1).
(iv) The prosecution failed to adduce proof of the above condition precedent to the making of the interim detention order under which the appellant was held; in the absence of such proof the conviction of the appellant was wrong in law and the evidence available to the learned trial judge.
(2) The subsequent conviction of the appellant on 18 April 1975 of the offence of attempting to escape from detention contrary to paragraph 38(a) of Schedule 1 of the Northern Ireland Emergency Provisions Act 1973 (Bill No. 140/75) is unsafe on the same basis as the above.
The appellant's submissions
In summary, this is said to arise in the first place from the wording of Article 4(1) which specifies the Secretary of State as making an order where certain matters appear to the Secretary of State.
Secondly, this is said to arise from the framework of Article 4 and the wording of Article 4(2) which refers to an order of the Secretary of State and then to the signing of that order by the Secretary of State or the Minister of State or the Under Secretary of State. Had the making of the order, as opposed to the signing of the order, been intended to be carried out by anyone other than the Secretary of State then it is argued that it could have been so stated.
Thirdly, that the decision to make an ICO is of such import and gravity, interfering so significantly with a fundamental to liberty, that it requires the personal consideration of the Secretary of State.
Further in relation to the second attempt to escape on 26 July 1974 the appellant was by then subject to the Detention Order made by the Commissioner on 16 May 1974. The appellant contends that a valid ICO was a condition precedent to the making of the Detention Order. Reliance is placed on McElduff's Application  NI 1 where McGonigal J considered an application for a writ of habeas corpus after an arrest under the 1922 Act. There was then a re-arrest of the applicant under Regulation 11(1) of the Special Powers Regulations and subsequent detention under Regulation 11(2) of the Special Powers Regulations. McGonigal J concluded that a Detention Order could not be made under Regulation 11(2) if the purported arrest under Regulation 11(1) was not a valid arrest.
The respondent's submissions
In summary, reliance was placed on an earlier decision of this court in McCafferty's Application  NICA 59 in relation to what was said to be similar wording and similar gravity, involving loss of liberty by the revocation of a licence and recall to prison.
In the alternative the respondent relied on the presumption of regularity by which the ICO signed by the Minister in accordance with Article 4(2) was sufficient to satisfy the presumption on the face of the document that it was lawfully made in the absence of proof to the contrary.
Further in relation to the second attempt to escape on 26 July 1974 the respondent argued that by that date the Commissioner had made a Detention Order under a distinct statutory procedure by which he had been satisfied that the appellant had been concerned in the commission or attempted commission of an act of terrorism or the direction, organisation or training of persons for the purposes of terrorism and that his detention was necessary for the protection of the public. Thus the respondent contends that the Detention Order overtook any irregularity in the ICO.
The Regulation 18B cases
The development of the Carltona principle
"Every such case demands serious consideration and the burden of considering them all must be substantial. I can see nothing irrational in the Secretary of State devolving the task upon junior ministers. They too are appointed by the Crown to hold office in the Department, they have the same advice and assistance from departmental officials as the Secretary of State would have, and they too are answerable to Parliament."
"Some matters, however, are so important that the Minister must address himself to them personally. It may be that orders drastically affecting the liberty of the person – eg deportation orders, detention orders made under wartime security regulations and perhaps discretionary orders for the rendition of fugitive offenders – fall into this category"
By the time of the decision in McCafferty's Application in 2009 the text of De Smith's 6th Edition referred to in the judgment (and later appearing in the 7th Edition) was less emphatic -
"It may be that there are, however, some matters of such importance that the Minister is legally required to address himself to them personally, despite the fact that many dicta that appear to support the existence of such an obligation are at best equivocal. It is however possible that orders drastically affecting the liberty of the person – eg deportation orders, detention orders made under wartime security regulations and perhaps discretionary orders for the rendition of fugitive offenders require the personal attention of the Minister."
(i) The Carltona principle establishes that where Parliament specifies that a decision is to be taken by a specified Minister, generally that decision may be taken by an appropriate person on behalf of the Minister.
(ii) The decision taken by the appropriate person is constitutionally that of the specified Minister.
(iii) The starting point, if not the presumption, is that the Carltona principle applies.
(iv) The application of the Carltona principle may be displaced (or rebutted) by Parliament using express words or by necessary implication.
(v) The necessary implication that Parliament intended to exclude the Carltona principle may be derived from the wording of the legislation and the framework of the legislation and the context.
(vi) The seriousness of the subject matter is an aspect of the context and may be taken into account in determining whether it is a necessary implication that Parliament intended to exclude the Carltona principle, although it is not determinative.
The wording, framework and context of the legislation
The effect of the later Detention Order
The effect of the presumption of regularity