Gerry Adams and the rule of law

IT was only to be expected that there would be an emotional reaction. On May 13, 2020 the Supreme Court quashed the 1975 convictions of Gerry Adams for attempting to escape from lawful custody.

The retired politician, for some a hero, for others a hate figure without comparison, was left with no criminal convictions and his internment without trial deemed unlawful.

That the highest UK court could exonerate this ‘enemy of the state’ might seem, to some, an indication of how far we have come in the past half century. To others it could be savoured as one of history’s delicious ironies but to others again, it appears to be a betrayal.

Nonetheless, the reaction of Trevor Ringland, known for peace campaigning, writing in the News Letter on May 16, seems a little extreme.

In a disturbing image, he argues that the decision “walked on…the graves of those who, throughout the history of Northern Ireland’s Troubles, strove to uphold the rule of law, whether it was soldiers, police officers or his (Lord Justice Brian Kerr) colleagues in the legal profession.

“Why was he not excused from this duty?”

Ringland pleaded on behalf of the judge, originally from Northern Ireland, who wrote and delivered the judgement of the court.

We will probably never be told the personal feelings of Brian Kerr, but it does seem inherently unlikely that a senior judge, doing his duty to interpret the law without fear or favour, would be terribly upset by the job.

It is also a strange idea that those who “strove to uphold the rule of law” would object to the law...being upheld. To be fair, Ringland seems in no doubt of the legality of the decision.

He said: “The Supreme Court’s decision was unanimous and it reminds us, if we ever needed reminding, of the inherent fairness of the British legal system.”

At some other time we may debate the validity of the term “inherent” and whether the British legal system was always fair, but Ringland seems a little confused about the meaning of the term.

He goes on to highlight the need to “address the unbalanced way that the narrative of the Troubles is being reshaped in our law courts”. Not so fair then?

His recipe is “a team of police officers… with a specific brief to find evidence to bring a successful prosecution against the republican terrorist leadership from those times”.

So, in circumstances where there is no new evidence to trigger a renewed investigation, a special team of police officers needs to be mobilised against a hazily and politically defined group of people in order to “find evidence”.

Forgive us if that proposal does not seem fair, just or even lawful.

Ringland’s article is extolled in the same day’s News Letter editorial. The newspaper says it “is a canary in the coalmine as to how public patience is close to snapping with the path legacy is taking”.

For some reason, the News Letter seems to think that the current pandemic should have made people agree with its very particular view of legacy matters.

“Things are still marching in an unacceptable direction regarding the legacy of terror, despite COVID-19,” states a subheading.

The leader itself starts off by noting, again with a rather weird reference to the virus: “Since the emergency began, the UK retreat from Stormont House legacy plans has been attacked by voices ranging from the Committee on the Administration of Justice (CAJ) to the Catholic bishops.”

We are unsure whether that particular formulation is designed to describe the broad range of opposition to the “UK retreat” or is a sectarian jibe designed to imply that all opposition comes from one (Catholic) side and that the secular, cross-community CAJ is as one with the bishops.

Either way, the editorial goes on to recite the usual litany of ways in which the “fair” British legal system is persecuting state actors with “no hint of coming trials of IRA leaders”.

There is certainly no hint of an appreciation of what the rule of law actually means and no glimmering of an understanding of the role actual evidence plays in the process of criminal investigation and prosecution.

It concludes with reference to the Gerry Adams case and Ringland’s response to it.

It would perhaps be useful to look dispassionately at what the Supreme Court found.

Internment without trial was last introduced in Northern Ireland on August 9, 1971. It was used on the initiative of the Unionist administration at Stormont and the legal authority came from regulations made under the Civil Authorities (Special Powers) Acts (Northern Ireland) 1922.

In March 1972, however, Stormont was prorogued and direct rule from London was instituted. A new piece of legislation, the Detention of Terrorists (Northern Ireland) Order 1972, allowed for detention (the new word for internment) on the basis of a process which began with the making of an Interim Custody Order (ICO) by the Secretary of State.

In the case of Gerry Adams, his second period of internment (he had been released in 1972 to take part in negotiations with the British Government) was effected by an ICO dated July 21, 1973.

On two occasions Adams tried to escape, in December 1973 and July 1974, and in March and April 1975 he was convicted of the two counts of attempting to escape from lawful custody.

In 2018 he appealed the convictions, lost by unanimous decision of the Northern Ireland Appeal Court and the case was heard in the Supreme Court on November 19, 2019. The judgement described the question at issue in the following way:

“At stake on this appeal is the validity of the ICO made on July 21, 1973. Although an ICO could be signed by a Secretary of State, a Minister of State or an Under Secretary of State, the relevant legislation provided that the statutory power to make the ICO arose ‘where it appears to the Secretary of State’ that a person was suspected of being involved in terrorism. There is no evidence that the Secretary of State personally considered whether the appellant was involved in terrorism. On the assumption (which is common to the parties to the appeal) that he did not, the question arises whether the ICO was validly made.”

It was common ground in the case that the making and signing of an ICO had been delegated by the then Secretary of State, William Whitelaw, to junior ministers.

However, it was argued that something called the Carltona principle applied. This was a reference to a wartime case Carltona Ltd v Comrs of Works [1943] 2 All ER 560.

This case held that, even in quite serious matters, something that legislation said had to be done by a Minister could, in fact, normally be done legally on his or her behalf by a junior minister or a departmental official. Of course, this principle was just jurisprudence and clear language of a statute could displace it.

Although Lord Kerr carefully considered the cases taken into account by the Court of Appeal, at the end of the day he decided that the matter was simply one of textual analysis of the legislation. He said:

“Article 4(1) of the 1972 Order provides:

“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...

“The language in this paragraph is clear and precise. Its apparent effect is unambiguous. It is the Secretary of State who must consider whether the person concerned is suspected of being involved in terrorism etc. Absent the possible invocation of the Carltona principle, there could be no doubt that resort to the power to make an ICO was reserved to the Secretary of State alone.

“Article 4(2) provides:

“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 question therefore arises, why was provision made for the different roles in two separate paragraphs of the article? The answer appears to me to be self-evident: it was intended that the two functions called for quite distinct treatment.”

He takes into account a few other arguments, including whether personally deciding on a case would put an unacceptable burden on the Secretary of State.

In fact, the reality that the following Secretary of State, Merlyn Rees, personally decided on each case meant that this argument could not fly. In the end, Lord Kerr is unambiguous:

“For these reasons, I have concluded that it was Parliament’s intention that the power under article 4(1) of the 1972 Order should be exercised by the Secretary of State personally.”

His conclusion was equally clear:

“The making of the ICO in respect of the appellant was invalid. It follows that he was not detained lawfully. It further follows that he was wrongfully convicted of the offences of attempting to escape from lawful custody and his convictions for those offences must be quashed.”

That’s it. It was a simple matter of interpreting the language of a statute – something that is the bread and butter work of a judge at any level. There was no emotion, no “walking over graves”.

Which is not to say that the judgement does not have some important consequences.

First, it is reported that up to 600 people may have been interned on the basis of unlawful ICOs and could be in line for consequent government compensation.

Second, the case revealed that the government knew the detentions were probably unlawful before Gerry Adams was prosecuted for attempting to escape from ‘lawful’ custody. In the Supreme Court judgement, Lord Kerr described the situation:

“The reason that this matter has come to light so many years after the appellant’s convictions is that under the ‘30-year rule’ an opinion of JBE Hutton QC (later Lord Hutton of Bresagh) was uncovered.

“The 30-year rule is the informal name given to laws in the UK and other countries which provide that certain government documents will be released publicly 30 years after they were created.

“Mr Hutton was the legal adviser to the Attorney General when he gave his opinion. It was dated July 4, 1974 and responded to a request for directions in relation to a proposed prosecution of the appellant and three others involved in the attempted escape on December 24, 1973.

“Mr Hutton concluded that a court would probably hold that it would be a condition precedent to the making of an ICO that the Secretary of State should have considered the matter personally.”

In spite of this advice, the two prosecutions of Gerry Adams and others went ahead.

So this is not a case of a long ago technical breach of an obscure condition that only came to light many years afterwards. The Government had advice – vindicated 45 years later by the Supreme Court – which it ignored, at least as far as legislation was concerned.

This therefore amounts to a wilful, or at least reckless (ignoring advice), breach of the rule of law. The fact that this relates to one of the basic human rights, the right to liberty, makes the breach all the more egregious.

Worse, the breach in the rule of law also relates to the right to life. On October 15, 1974, republican prisoners burnt and destroyed their areas of Long Kesh internment camp as a protest.

In the succeeding weeks the prisoners, who were living in makeshift shelters amongst the wreckage, took the ‘opportunity’ to excavate an escape tunnel.

A mass escape of 33 prisoners took place in the early hours of November 6, 1974.

All were eventually recaptured except Hugh Coney (aged 24) who was shot dead by a British soldier near the perimeter of the camp. His detention was in July 1973 so it is likely that the ICO in his case was also unlawful.

There was outrage at the time that a person could be killed while trying to escape from custody imposed on the decision of a government politician. If the custody turns out to have been unlawful, the shooter could be exposed to a charge of murder.

There is yet to be an inquest in this case, though it is one of more than 50 ‘legacy’ inquests in the queue for which extra funding was provided last year, and the facts of the case will be examined in that forum.

The post-conflict reforms in the inquest system means we can have confidence in the investigation and, whatever the conclusion, the rule of law will be upheld.

As a postscript to the discussion on upholding the law, the following may be of interest.

When the news of Hugh Coney’s death became known, a protest meeting was held in the Queen’s Student Union. Afterwards, several hundred students set off to march to the City Hall to protest about the killing.

The march got as far as Bedford Street where it was halted by British soldiers who, as their land rovers screeched to a halt, leapt out and levelled their rifles at the approaching young people.

Presumably these soldiers were prepared to kill to prevent the sacrilege of a non-unionist demonstration getting anywhere near the City Hall. Or perhaps they were upholding the rule of law?

The students did not press the point and sat down in the road while speakers, with their backs to the rifles, criticised internment without trial and capital punishment as a penalty for escaping from it, through a megaphone borrowed from the Civil Rights Association office in Marquis Street.

Perhaps they were upholding the rule of law?

• Brian Gormally is the director of the Committee on the Administration of Justice (CAJ).