The State’s attorneys have detailed three major grounds before the Privy Council for rejecting the Court of Appeal’s ruling ordering the conditional release of businessman Dominic Hadeed and his wife Genevieve.The State is represented by Sir James Eadie KC, Tom Richards KC and Gerald Ramdeen.GROUND ONEThe State’s first ground is that the Court of Appeal failed to properly apply the legal principles requiring “very great weight” to be given to the Executive’s assessment of what restrictions on liberty are necessary to protect against national security risks.
REPRESENTING THE STATE: Gerald Ramdeen and Sir James Eadie, KC.
The State is arguing that although the Court of Appeal recognised those principles and accepted the seriousness of the alleged threat, it failed to apply them when deciding whether the Hadeeds should remain in prison or be released to conditional house arrest.According to the State, the Executive is institutionally better placed to make such assessments because it has access to intelligence, expertise and other sensitive information which the courts may not possess.It is also arguing that national security decisions carry a constitutional dimension because responsibility for them has been placed in the hands of democratically accountable officials.The state attorneys said the Court of Appeal ultimately decided for itself that imprisonment was unnecessary and that detention at home was sufficient, describing this as “illegitimately substituting their own view of what was necessary.”According to the legal team, the Emergency Powers Regulations specifically entrust the minister with determining whether preventive detention is necessary and where and under what conditions a detainee should be held.The court should therefore not have substituted its assessment of how the alleged threat could be managed for that of the minister, they said.They added that the Court of Appeal “failed to recognise that it lacked either the institutional capability or the constitutional legitimacy to decide that house arrest under conditions was sufficient” to prevent the alleged risks.The State also rejected the suggestion that the absence of criminal charges against the Hadeeds undermined the minister’s assessment.Its attorneys are arguing that preventive detention under the emergency regulations is separate from the criminal justice process.According to the State, the minister is not required to prove, on a balance of probabilities, the allegations which led him to conclude that a person would present a public safety risk if not detained.Neither, they said, is the minister required to establish a realistic prospect of a criminal conviction before issuing a PDO.The State said the minister’s assessment was based on intelligence and argued that such material may be too sensitive to disclose publicly or to the subject of a PDO, because doing so could compromise intelligence sources, ongoing operations or international intelligence-sharing relationships.It also stressed that the Court of Appeal was not determining the substantive judicial review claim when it ordered the Hadeeds’ conditional release.The State’s evidence in response to that substantive challenge is due on September 14, 2026.Its attorneys are arguing that the court therefore could not properly make findings at the interim stage about whether the intelligence underpinning the PDOs was ultimately well-founded.The State also disclosed that the separate tribunal process reviewing the detention remains ongoing and that the minister has requested a reopening of the hearing, alleging procedural unfairness.GROUND TWOThe State’s second ground is that the Court of Appeal was “plainly wrong” to find that the Hadeeds’ liberty interests could outweigh the effective management of the alleged threat.The attorneys pointed to the Court of Appeal’s own recognition of the seriousness of the national security concerns.According to the Grounds of Appeal, the court acknowledged that if the allegations were true and subsequently substantiated, releasing the Hadeeds could enable them to continue planning or furthering the alleged conspiracy, resulting in “horrendous consequences which would result in irreparable harm.”According to the State, having accepted that risk, the balance could only sensibly have been struck in favour of protecting life and the democratic institutions of the State.The State is also challenging the Court of Appeal’s treatment of the Hadeeds’ loss of liberty, arguing that damages could compensate them if their detention is eventually found to have been unlawful.It said they could expect a substantial damages award if it is ultimately established that they were wrongfully detained.The State also questioned the court’s consideration of medical issues, saying it did not identify what, if any, medical condition required treatment at the Hadeeds’ home which could not be accommodated in prison.GROUND THREEThe State’s third ground is that the house arrest conditions imposed by the Court of Appeal were inadequate to manage the alleged threat and that the conditions were “considerably less effective than detention in prison.”Among its concerns is the possibility that communication could still take place from the Hadeeds’ home even if communication devices were prohibited.The State also noted that visitors appeared to be contemplated under the conditions, although they would require police permission.Once inside the property, the State is arguing that visitors could communicate freely with the Hadeeds.The attorneys also highlighted the physical characteristics of the property, describing it as a very large, seafront property comprising several buildings.They argue that this would create significant practical and resource difficulties for police attempting to effectively enforce the conditions.The State also raised the possibility of absconding, which it said could then provide an opportunity for unrestricted communication.It further contends that there was no evidence before the Court of Appeal capable of supporting a finding that the conditions imposed were sufficient to mitigate the risks associated with releasing the Hadeeds.The attorneys are therefore arguing that the Court of Appeal failed to recognise the reduction in public protection which would result from replacing prison detention with conditional house arrest.
