A and Others' Application (Nelson Witnesses) [CA(NI)]
| Jurisdiction | Northern Ireland |
| Judgment Date | 11 February 2009 |
| Date | 11 February 2009 |
| Court | Court of Appeal (Northern Ireland) |
: [2009] NICA 6
Court and Reference: Northern Ireland Court of Appeal (KER7405; HIG7410; GIR7408)
: Kerr LCJ, Higgins and Girvan LJJ
Appearances:Mr Swift QC and Mr Scoffield for the appellants, Mr Eadie QC and Ms Grange for the respondents.
: Whether, where some risk to life was identified, the test for refusing anonymity of witnesses to an inquiry was that there was a 'compelling justification' for refusing anonymity or whether the decision should be a balancing exercise weighing up the risks to the witness against the interests of openness.
: The appellants were former members of the Royal Irish Regiment. They had sought judicial review of the decision of the Panel of Inquiry investigating the death of a murdered solicitor, Ms Nelson, to refuse them anonymity. It had been alleged that state agencies had been complicit in the murder or had obstructed its investigation. All the appellants had provided witness statements giving uncontroversial evidence as to their duties at the relevant time. The appellants' actions did not form the main focus of the Inquiry and none were required to give oral evidence. However, it was intended that their written statements would form part of the Inquiry's background evidence and would be published. The appellants did not object to their statements being made public, but they were concerned that if they were named this could identify them as former members of the regiment and put their lives at risk.
A generic risk assessment identified a "moderate" risk, meaning that harm was considered to be possible but unlikely. The Inquiry had found that there was no real or immediate risk to the lives of the appellants such as would give rise to an obligation under Art 2 ECHR to take measures to protect them. That conclusion was not challenged but the appellants submitted that there was an additional duty of fairness owed to them at common law which required that there should be compelling reasons to justify the refusal to grant anonymity. The 'routine' nature of the evidence the appellants could give should have led to the conclusion that there was no compelling justification for refusing their applications for anonymity.
The respondent submitted that what was required was a balancing exercise, weighing the risk to the applicant against the factors which favoured openness. This exercise had been correctly carried out by the Inquiry panel who had considered a generic risk assessment and also specific factors such as where the appellants lived and worked.
Weatherup J dismissed the application for judicial review and the appellants appealed.
Kerr LCJ:
Introduction
1. This is an appeal from a judgment of Weatherup J whereby he dismissed an application by former members of the Royal Irish Regiment which sought judicial review of the decision of the Inquiry panel that is conducting an investigation into the death of Rosemary Nelson. Mrs Nelson was a prominent solicitor in Northern Ireland. She was murdered on 15 March 1999. Each of the applicants for judicial review (and the appellants before this court) was a member of the Royal Irish Regiment at the time of her death and all were then based in Portadown, County Armagh.
2. Mrs Nelson was murdered outside her home in Lurgan, County Armagh when a booby trap bomb exploded under her car. At that time, all of the appellants were performing patrol, checkpoint or other duties in and around Lurgan. At the request of the Inquiry panel each appellant provided a witness statement relating to his general duties at that time, and the duties that he had undertaken on the day that Rosemary Nelson was killed. It has been decided that none of the appellants will be required to give oral evidence. The written statements that they have made will form part of the material to be published by the Inquiry, however.
3. The single issue before Weatherup J and this court has been whether the appellants should be identified as persons who had previously served in the regiment. This will occur if, as is its current intention, the Inquiry publishes their statements without redaction. The appellants do not object in principle to their statements being made publicly available. Their concern is that their names should not be disclosed and that nothing should be published that could identify them as former members of the regiment.
Background to the panel's decision
4. The terms of reference for the Inquiry were set out in a statement published by the Secretary of State for Northern Ireland on 16 November 2004: -
"To inquire into the death of Rosemary Nelson with a view to determining whether any wrongful act or omission by or within the Royal Ulster Constabulary, Northern Ireland Office, Army or other state agency facilitated her death or obstructed the investigation of it, or whether attempts were made to do so; whether any such act or omission was intentional or negligent; whether the investigation of her death was carried out with due diligence; and to make recommendations"
5. In the course of the Inquiry, the Ministry of Defence made a number of applications for anonymity for military witnesses (including the appellants) who were to provide evidence to the Inquiry. The Inquiry gave a generic ruling on the question of anonymity on 21 February 2008 and at the same time issued individual decisions refusing anonymity to each of the appellants. The Ministry of Defence renewed its applications on their behalf and on 28 March 2008, the Inquiry dealt with these. They maintained their decision to refuse anonymity but indicated that none of the appellants would be required to give oral evidence. The only references to their names would be in the witness statements and in the Inquiry bundle. It was also indicated that none of the appellants was 'in the spotlight' of the investigation and that the conduct of the appellants did not form 'the main focus of the Inquiry'.
6. The Inquiry panel asked more than 350 people to provide witness statements. Of these, a total of 145 applied for anonymity. One hundred and eleven of these have been determined by the Inquiry. Sixty-four individuals have been granted anonymity and 47 have been refused. In relation to MoD personnel, 43 applications for anonymity have been received. Two of these were withdrawn, five are currently outstanding. Seventeen have been granted anonymity and 19 have been refused. These include the present appellants.
7. In the case of former or current members of the regiment, a single generic threat assessment was submitted to the Inquiry panel. It was based on a threat risk analysis by the security sub-branch of the Police Service of Northern Ireland and stated that the threat to members of the regiment attending to give evidence at the Inquiry was assessed as "moderate". This means that an attack is thought to be unlikely but possible. It was made clear that the assessment did not take cognisance of the particular circumstances of individual members of the regiment nor did it take into account the evidence that they were to give to the Inquiry.
8. The Inquiry considered it necessary to assess where a particular applicant for anonymity lay within the broad category of moderate risk since some of the soldiers were deeply involved in intelligence gathering and had been in possession of sensitive intelligence information. Others, such as the appellants in this case, were engaged on routine tasks. Where it felt able to do so, therefore, and when it was deemed appropriate, the panel assessed whether the risk to an individual applicant for anonymity was relatively high or relatively low within the moderate category.
9. The panel accepted that all members of the Royal Irish Regiment were perceived by some terrorist groups, in particular republican dissidents, as legitimate targets. Having made this general acknowledgment, the panel then considered the individual circumstances of each applicant. This particular consideration covered the evidence that they were likely to be required to give to the Inquiry, the role that they had played in the regiment and the area in Northern Ireland in which they lived. Some soldiers had a particularly sensitive role. Some lived in what has been described as the mid-Ulster triangle where the risk to members of the security forces has been deemed to be particularly acute. The panel concluded that all the appellants fell within the relatively low range of the moderate category.
The decision to refuse anonymity
10. In its generic ruling the Inquiry found that there was no real or immediate risk to the lives of the appellants such as would prompt an obligation under Art 2 of the European Convention on Human Rights to take measures to protect them, including permission that they remain anonymous. That conclusion has not been challenged.
11. The focus of the appellants' attack has been on the Inquiry panel's findings in relation to the duty of fairness owed to them at common law. On this issue, the Inquiry panel accepted that paramilitary activity and paramilitary violence continued to be a feature of life in Northern Ireland. Dissident republican groups continued to target and undertake attacks on police officers. The Inquiry noted the announcement in February 2008 by the Real IRA that it was planning to launch a new offensive. It also took into account the warning given at that time by the Chief Constable that there was a "serious" threat from "disorganised but dangerous" dissident republicans. The panel accepted that the targeting and attacks on the Police Service were relevant to the "continuing threat posed to security forces generally in Northern Ireland, whether the police or army personnel". It further acknowledged that service in the Royal Irish Regiment was perceived to involve sympathy with "loyalist aspirations"; it accepted that the Third Battalion, Royal Irish Regiment (to which each of the appellants had...
To continue reading
Request your trial