R (A and Others) v Lord Saville of Newdigate; R (on the application of Widgery Soldiers) v Members of The Tribunal Sitting as The Bloody Sunday Inquiry
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSE |
| Judgment Date | 16 November 2001 |
| Neutral Citation | [2001] EWHC 888 (Admin) |
| Docket Number | Case No: CO3742-01 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 November 2001 |
[2001] EWHC 888 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Royal Courts of Justice
The Strand
London WC2A 2LL
The Rt Hon Lord Justice Rose
The Hon Mr Justice Sullivan
Case No: CO3742-01
In The Matter Of An Application For Permission To Apply For Judicial Review Against A Decision Of The Bloody Sunday Inquiry Made On 1 August 2001 Concerning The Venue For Evidence Of Soldiers And Former Soldiers
Mr D Lloyd Jones Qc, Mr N Bools and Mr N Moss (instructed By The Treasury Solicitor) Appeared On Behalf Of The Claimants
Mr C Clarke Qc, Miss D Rose And Mr A Roxburgh (instructed By John Tate, London Sw1y) Appeared On Behalf Of The Defendants)
Interested Parties
Mr I Burnett Qc and Mr W Hoskins (instructed By Barrie Mckay) Appeared On Behalf Of The Ministry Of Defence
Mr M Lavery Qc, Mr S Treacy Qc Sc and Miss K Quinlivan (instructed By Madden & Finucane, Belfast) Appeared On Behalf Of Families Of The Dead And Wounded
Mr M Mansfield Qc, Mr J Coyle and Mr Kieran Mallon (instructed By Desmond J Doherty & Co, Londonderry; Mcdermott And Mcgurk, Derry City And Mccann & Mccann, Belfast) Appeared On Behalf Of The Family Of B Mcguigan, The Nash Family, Daniel Gillespie And Michael Quinn
Lord Gifford Qc and Mr R Harvey (instructed By Mccartney & Casey, Londonderry) Appeared On Behalf Of The Family Of James Wray
Mr D Morgan Qc and Mr B Kennedy (instructed By Brendon Kearney, Kelly & Co, Londonderry) Appeared On Behalf Of Michael Bridge And Michael Bradley
Sir Louis Blom-cooper Qc and Mr P O'hanlon (instructed By Frances Keenan, Belfast) Appeared On Behalf Of The Northern Ireland Civil Rights Association
This is the judgment of the court.
1. There is before the court, as a matter of urgency and with the permission of Sullivan J, a challenge by judicial review to a ruling of the Bloody Sunday Inquiry made on 1 st August and published on 2 nd August 200It ruled that the soldiers and former soldiers, whom, for convenience, we shall refer to as “the soldier witnesses”, between two hundred and four hundred in number, who are to give oral evidence before the Tribunal over a period of some six months or more starting in the Autumn of next year, should do so in Londonderry Guildhall where, hitherto, for the most part the Tribunal has sat, rather than in London or some other part of Great Britain.
2. The circumstances in which the Tribunal was established under the Tribunals of Inquiry (Evidence) Act 1921 are well known. They are set out, together with the history of the Tribunal and the nature and course of two previous applications for Judicial Review, in paragraphs 2 – 28 of the Court of Appeal's judgment in R v Lord Saville of Newdigate ex parte A [2000] 1 WLR 1855. These matters need not be repeated here. The Court of Appeal held that the soldier witnesses who were alleged to have fired rounds were entitled to anonymity. Subsequently, the Tribunal granted anonymity to all the soldier witnesses, (save four senior officers who were well known), whether they were said to have fired rounds or not. Since the Court of Appeal decision in July 1999 there has been one change in the constitution of the Tribunal. The Right Honourable Sir Edward Somers has retired and has been replaced by the Honourable Mr John Toohey.
3. The Tribunal has been sitting for the best part of 3 1/2 years. It is therefore exceptionally well qualified to make case management decisions as to how its proceedings should be conducted. Furthermore, its members are of the highest judicial standing. There is accordingly, at first blush, a degree of unreality in this court being invited to quash one of its decisions by means of a remedy developed, historically, for the control of inferior courts and tribunals. That said, save for the written submissions by Sir Louis Blom-Cooper QC on behalf of Northern Ireland's Civil Rights Association, to which in a moment we shall come, it is common ground before us, as it was in the earlier proceedings culminating in the Court of Appeal's decision in ex parte A, that this court has, properly, a reviewing jurisdiction in relation to decisions of the Tribunal.
4. Sir Louis Blom-Cooper's submission was that only in exceptional circumstances will the court exercise its supervisory role over Public Inquiries, which are of an inquisitorial nature. He referred, among other authorities, to Notts CC v S of S for the Environment [1986] AC 240 per Lord Scarman at 250 to 251 and Sir Richard Scott's report on the Arms to Iraq Inquiry, Volume IV Section 1.5. Tribunal witnesses, as such, have no rights or interests that require legal protection (Lawlor v Flood [1999] 3 IR 107 per Murphy J at 138 to 144). He accepted, however, that a tribunal under the 1921 Act has an overriding duty to act fairly (NSW v Canellis [1994] 181 CLR 309 at 330). The anonymity issue considered in ex parte A was an exceptional circumstance justifying the courts' jurisdiction by way of Judicial Review. He also submitted that the tribunal is not a public authority within the meaning of s6 of the Human Rights Act 1998, being neither a court or tribunal within ss6(3) and 21, as legal proceedings may not be brought before it, nor a public authority, as it possesses no powers to determine how others should act (see Aston Cantlow PCC v Wallbank [2001] 3 AER 393 at paragraphs 29, 35 and 36). The Tribunal exercises functions in connection with proceedings in Parliament and is therefore within the exemption in s6. Accordingly, none of the articles of ECHR has direct applicability. In any event, Article 2 of the Convention envisages operational not procedural safeguards – see Osman v UK 22 EHRR CD 137.
5. We reject these submissions. A possible threat to life which arises from a Tribunal decision is an exceptional circumstance requiring, when appropriate, the court's intervention. The Tribunal is master of its own procedure but the requirements of fairness are for determination by the courts (see ex parte A at 1868B) and procedural fairness involves an obligation to be fair to witnesses (ex parte A at 1868E). The Tribunal's preliminary decisions can be quashed if they cause real injustice (ex parte A at 1870C). The Tribunal is, plainly in our view, a public authority within s6(3)(b) of the Human Rights Act. We accept Mr Lloyd Jones QC's written submission that the Tribunal's functions are those of public not mutual governance, its relationship with witnesses is created by rules of law independently of the volition of the Tribunal or the witnesses, and the Tribunal possesses powers to determine how others should act (see Aston Cantlow PCC v Wallbank). Furthermore, the Tribunal was not created by Parliament under the 1921 Act but by the Secretary of State for Northern Ireland. The fact that it reports to Parliament does not mean it is exercising functions in connection with proceedings in Parliament: there are no proceedings in Parliament in connection with which the Tribunal exercises functions. A similar argument was rejected by Roch LJ in the Divisional Court in ex parte A on 17 th June 1999 (transcript 47H-48D).
6. Accordingly, the Tribunal has to comply with the Human Rights Act and this court has jurisdiction to entertain the present application.
7. Before turning to the rival submissions, it is convenient to refer to the terms of the Tribunal's ruling. In paragraph 5 they affirm the correctness of their preliminary view “that the natural place to hold an inquiry of the present kind was where the events in question occurred”. They go on:
“events of that day although of great national and international concern have undoubtedly had their most serious and lasting effects on the people of that city. It is there that the grief and outrage that the events occasioned are centred. It seems to us that the chances of this inquiry restoring public confidence in general and that of the people most affected in particular (which is the object of public inquiries of this kind) will be very seriously diminished (if not destroyed) by holding the inquiry or a major part of the inquiry far away and across the Irish sea, unless there were compelling reasons to do so. It is for similar reasons that public inquiries generally are held in or near to the place where the events to be investigated occurred.”
In paragraph 8, they refer to the central importance to local people of the Inquiry coming to where Bloody Sunday took place and, at paragraph 9, they say
“in our judgment, since the oral evidence of the soldiers will form a major part of the inquiry the starting point is that this evidence should be given at the Guildhall where all or virtually all the other oral evidence will be heard, unless indeed there are compelling reasons to take a different course”.
They refer to Article 2 of the European Convention and the dictum of Lord Phillips MR in R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 at 857:
“interference with human rights can only be justified to the extent permitted by the Convention itself. Some articles of the Convention brook no interference with the rights enshrined within them.”
At paragraph 15, they speak of the Tribunal making a decision “on venue by reference to the events which may or may not occur though of course the past may throw light on the likelihood of such events taking place in the future”. They point out that the safety of the soldiers is in the hands of state agencies rather than the Tribunal. “However that does not relieve the...
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