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Counter-Terrorism and Sentencing Bill: The Struggle to Balance Legislative Protection With Civil Liberties By Paul Canfield

Fri 29th May 2020

As the Government unveils a new Counter-Terrorism and Sentencing Bill, this article briefly looks at the struggle to balance legislative protection with civil liberties in light of the recent Supreme Court decision in R v Adams (Appellant) (Northern Ireland) [2020] UKSC 19

The UK has often struggled to balance the need for adequate legislative protection against the threat of terrorism while also maintaining individual civil liberties. Following the attacks on the World Trade Centre and Pentagon in 2001, a plethora of ‘reactive’ anti-terror legislation has been implemented in the UK, from the Terrorism Act 2000 to the Counter-Terrorism and Border Security Act 2019. With further legislation proposed recently by the government as a reaction to recent attacks in London, criticism and concern has already been expressed as the new bill plans to, inter alia, increase the terms of sentencing, and toughen terrorism prevention and investigation measures (“TPIMs”) by, lowering the standard of proof for imposing the measure from the current balance of probabilities, increasing the measures available and removing the maximum length they can last (currently 2 years, unless the person has re-engaged with terrorism).

TPIMs replaced control orders that were abolished in 2011 by the coalition government after they were recognised as a stain on the UK’s human rights record because they severely impacted civil liberties based on untested and undisclosed evidence, see Secretary of State for the Home Department v AP [2010] UKSC 24. Control orders were also only required to meet the standard of ‘reasonable suspicion’ to be implemented. It is argued by some civil liberty groups that the proposed increase of measures available to be included in a TPIM along with lowering the standard of proof would see the return of control orders in all but name, and while TPIMs have been in use since 2011 the threat level has remained high, which tends to suggest that they have a limited impact on reducing the risk of terrorism.

To prevent miscarriages of justice in the future, lessons can be learned by looking back at past examples when implementing similar reactive legislation to tackle threats of terrorism. In R v Adams (Appellant) (Northern Ireland) [2020] UKSC 19, the Supreme Court had to undertake such a task and decide whether making of an Interim Custody Order (“ICO”), part of the framework of internment, was a power that interfered so significantly with the fundamental right to liberty that each ICO required the personal consideration of the Secretary of State, or whether such matters could be devolved to junior ministers.

The Rise of Terrorism; the Erosion of Human Rights

TPIMs, and previously control orders, can trace their roots back to the policy of internment that was used in Northern Ireland periodically from the 1920s and notably during the 1970s, where individuals were held without charge for periods of up to 28 days because they were suspected of being involved with terrorism, often on outdated intelligence.

The UK has experienced acts of nationalist-terrorism related to Northern Ireland since the early 1900s culminating in a period of around forty years between 1968 and 1998 commonly known as ‘The Troubles’. The Troubles were an ethno-nationalist conflict centred in Northern Ireland, which spilt over into the Republic of Ireland, England and Mainland Europe. As terrorism attacks increased significantly in the early 1970s, becoming more volatile with little regard for innocent victims, there was a political outcry, which resulted in the implementation of ‘Emergency Powers’ legislation.

The ‘reactive’ legislation allowed the police to hold suspects without charge for up to 28 days, undermining human rights and ultimately resulting in miscarriages of justice. Investigations were rushed, negligent and ultimately fabricated as demonstrated by several high-profile cases being overturned decades later (R v Ward [1993] Cr. App. Rep. 1; R v McIlkenney & Others (1991) 93 Cr.App.R.; R v Richardson, Conlon, Armstrong and Hill (1989) EWCA Crim).

The emergency anti-terrorism laws implemented by the UK to combat the political violence in Northern Ireland saw several pieces of legislation being enacted from 1914, which were later incorporated into the Civil Authorities (Special Powers) Acts of 1922-1943 along with the Restoration of Order in Ireland Acts 1920. The adoption of the Prevention of Violence Act 1939 subsumed the deluge of previous laws and was itself eventually succeeded in 1973 by the Prevention of Terrorism (Temporary Provisions) Act 1974 as a response to the increasing violence in Northern Ireland during the 1970s.

The successive legislation led to the detention of around 2,000 people in Northern Ireland between 1971 and 1975 without trial under the policy of internment. ICOs were made on the foot of the initial internment under article 4 of the Detention of Terrorists (Northern Ireland) Order 1972, where the Secretary of State considered that an individual was involved in terrorism. That allowed the individual to be interred for up to 28 days, when either they would be released or detained for a further period under a Detention Order, if it was found that the person was involved in terrorism.

No appeal was available under the European Convention on Human Rights (“ECHR”) as the UK had derogated from their obligations using the emergency legislation.

The Appeal – R v Adams

The appeal concerned itself with the validity of the ICO that had been made in respect of the appellant on 21 July 1973, under the statutory scheme. The subsequent Detention Order was not challenged, as it would stand or fall on the validity of the ICO, as would the two convictions for attempting to escape lawful custody (the subject of the appeal).

The appellant’s ICO was made and signed by a Minister of State in the Northern Ireland Office following his initial internment. The main submissions by the appellant focussed on the wording of the legislation used to make the ICO, namely article 4 of the Detention of Terrorists (Northern Ireland) Order 1972, and the significance of depriving an individual’s liberty when making an ICO, which, it was submitted, required the legislation to be complied with meticulously. Therefore, the Secretary of State was required to consider and make each ICO personally rather than such decisions being devolved to a departmental official. Reliance was placed on McElduff’s Application [1972] NI 1, where it had been determined that a Detention Order could not be validly made if the initial arrest was not valid, ergo, the appellant’s ICO in R v Adams would need to be valid for the subsequent convictions for escaping lawful custody to be upheld.

The respondent argued that such powers were devolved by the Secretary of State under the ‘Carltona Principle’, which is the presumption that the actions or decisions of departmental officials were synonymous with those of the minister of that department and undertaken accordingly (Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 (CA)).

In Carltona, the Court of Appeal had to determine whether an order that requisitioned a factory during war-time was of such significance that the Minister of Works and Planning should have made the order personally rather than delegating it to a Ministry official. The Court of Appeal found that individual ministers could not be expected to turn their attention to every individual matter in their department and accepted that officials within that minister’s department were authorised to carry out such tasks on the minster’s behalf [Lord Green MR observing, at p 563].

In R v Adams, the arguments made by both parties in respect of the Carltona principle were considered initially by the Northern Ireland Court of Appeal in January 2018, where the Court dismissed the appeal on the basis that the Carltona principle had not been displaced and that subsequent case law had suggested that the seriousness of the subject to be considered by the minister was relevant but not determinative (re Golden Chemicals Products Ltd [1976] Ch 300 at p 310; R v Secretary of State for the Home Department, Ex p Oladehinde [1991] 1 AC 254), even where the loss of liberty was the subject (McCafferty’s Application [2009] NICA 59; R (Doody) v Secretary of State for the Home Department [1994] 1 AC 531).

Ultimately, the Supreme Court rejected the submissions made under the Carltona principle by the respondent and overturned the decision by the Northern Ireland Court of Appeal. In rejecting many of the authorities relied upon in the Court of Appeal (NI), Lord Kerr found that Parliament had intended that such an important decision to deprive an individual of their liberty for an indefinite period without trial should be exercised by the Secretary of State personally, and in such circumstances the Carltona principle did not apply.

Article 4 of the 1972 Order provides:

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 may make an order (hereafter 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.”

The appeal was allowed on the basis that the ICO was not validly made as although the minister could sign the order, he could not make it, only the Secretary of State could. This was demonstrated by the distinct and deliberate segregation of roles between paragraphs (1) and (2) of Article 4, and the clear wording in paragraph (2), which showed that it had been Parliament’s intention for any ICO to be ‘personal’ to the Secretary of State. Therefore, the convictions for attempting to escape from his ‘unlawful’ detention were quashed.

The Outcome

The judgment worryingly highlights that justice for the appellant was only satisfied after the disclosure of government documents under the ’30-year rule’ revealed previously undisclosed legal advice that had been provided to the Attorney General at the time. As almost 2,000 people were detained without trial between 1971 and 1975, similar appeals may follow.

Furthermore, the outcome of Adams throws the door open to grounds of appeal against other decisions enacted by junior ministers on behalf of the head of their government department, especially where such decisions have impinged civil liberties and where the legislation is constructed similarly to Article 4 of the 1972 Order.

One concern that the judgment did not answer, nor ever sought to, is whether TPIMs, which, similarly to its ICO predecessor, rely on closed material to impose significant restrictions on an individual’s civil liberty, should be allowed to rely on the Carltona principle when they are made, or, whether the significance of depriving individual freedoms without a trial should be subject to similar legislative scrutiny as Parliament intended when it enacted article 4 of the 1972 Order?

It is obvious that TPIMs are here to stay and the government has not yet ruled out derogating from the ECHR in order to impose their proposed legislative agenda. Because of this it is not yet clear whether the proposed ‘re-engineered’ TPIMs will be subject to the current level of judicial oversight or whether the legislation will require fresh legal challenges to prevent the trias politica principle being infringed.

Paul Canfield

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