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

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Phillips MR
Judgment Date19 Dec 2001
Neutral Citation[2001] EWCA Civ 2048
Docket NumberCase No: C/2001/2538

COURT OF APPEAL

Before Lord Phillips of Worth Matravers, Master of the Rolls, Lord Justice Jonathan Parker and Lord Justice Dyson.

Regina (A and Others)
and
Lord Saville of Newdigate and Others

Evidence - witnesses - exposure to unacceptable risks - attendance - soldiers - commonsense and humanity criteria - Article 2 ECHR - Osman v UK TLR 5 Nov 98 (1998) 29 EHRR 245 - Ergi v Turkey (unreported) 28 July 1998 - Sernandez -v- Gov Singapore [1971] 1 WLR 987 at 994

Soldier witnesses need not go to Derry for inquiry

Rather than identifying a phrase which encapsulated the risk to the right to life in article 2 of the European Convention on Human Rights, the court would apply principles of common sense and humanity to the question whether soldier witnesses would be exposed to an unacceptable risk of attack by Republican dissidents if required to give evidence to the Bloody Sunday Inquiry in Londonderry.

Applying that approach and giving anxious scrutiny to the evidence, the risk posed in Londonderry to the soldier witnesses by dissident Republican terrorists constituted a compelling reason why their evidence should be taken in a venue other than Londonderry.

The Court of Appeal so held in a reserved judgment when dismissing an appeal against the order of the Queen's Bench Division (The Times November 21, 2001) granting an application by A and 35 other soldiers and former soldiers for judicial review of the decision on August 1, 2001 of the Bloody Sunday Inquiry Tribunal (Lord Saville of Newdigate, Mr Justice William L. Hoyt of New Brunswick, Canada and Mr Justice John L. Toohey of Western Australia), that the claimants should give oral evidence to the inquiry in Londonderry, Northern Ireland, in respect of events on "Bloody Sunday," January 30, 1972, when soldiers fired live rounds during an illegal march with consequent injury and loss of life to civilians.

The Court of Appeal remitted the matter to the tribunal with a direction that the soldier witnesses' evidence should not be taken in Londonderry.

The tribunal had accepted assessments by the security agencies that the threat from terrorist reprisals to soldier witnesses giving oral evidence to the inquiry was higher in Northern Ireland than in Great Britain, but concluded that as there was no real and immediate risk to the soldier witnesses' lives its decision was not incompatible with their rights under article 2, of the Human Rights Convention, as scheduled to the Human Rights Act 1998.

Mr Christopher Clarke, QC, Miss Dinah Rose and Mr Alan Roxborough for the tribunal; Mr David Lloyd Jones, QC, Mr Michael Bools and Mr Nicholas Moss for the soldier witnesses. Interested parties too numerous to mention, including the families of the dead and wounded, were represented by counsel and solicitors.

THE MASTER OF THE ROLLS, delivering the judgment of the court, said that the tribunal rightly recognised in its ruling on venue that article 2 of the Convention placed it under a procedural obligation in so far as compatible with the substantive obligations imposed by that article to conduct an official inquiry that was effective.

The duty of the state to protect against criminal acts that threatened life, as enunciated in Osman v United Kingdom (Case No 87/1997/871/1083)TLRHRC (The Times November 5, 1998; (1998) 29 EHRR 245, paragraphs 115-116), was also directly engaged in the present case.

The majority in Londonderry, including the families of those killed or injured on Bloody Sunday, were anxious that the inquiry should continue to be held peacefully in Londonderry.

But it was common ground that there were, in Londonderry in particular but also elsewhere, dissident Republican elements who were not prepared to observe the ceasefire, but were anxious to disrupt the peace process.

Those elements posed a threat to the inquiry and those who would be taking part in it, in particular soldier witnesses.

The security agencies considered that that threat was, and would be sufficiently real and imminent to call for precautionary measures to safeguard those taking part in the inquiry. They were plainly right to do so.

The tribunal's decision on venue was premised on its belief that the security measures which would be put in place would be adequate to reduce to a satisfactory extent the real and immediate risk to which they would otherwise be exposed.

The central issue was whether the tribunal applied too high a threshold of risk, and whether in all the circumstances it would be procedurally unfair and/or an infringement of the soldier witnesses' article 2 rights to require them to give evidence in Londonderry.

The European Court of Human Rights had also held, in relation to duties arising out of article 2, that there was an obligation to take all feasible precautions to minimise loss of life when carrying out an operation involving the use of force against armed opposition: seeErgi v TurkeyUNK (unreported, July 28, 1998) where the court held (at paragraph 79) that article 2 could be engaged where agents of the state failed to "take all reasonable precautions in the choice of means and methods of a security operation mounted against an opposing group with a view to avoiding and, in any event, to minimising incidental loss of civilian life".

Ergi opened the door to the argument that if a public authority was carrying out an operation which was going to invite an armed response from criminals, there was a duty to do all that was feasible to ensure that civilians were not thereby harmed.

In the present case the tribunal was proposing to carry out in Londonderry a peaceful activity that was not merely lawful but in the public interest, in the sense that it was designed to be part of an effective inquiry into the deaths that were caused on Bloody Sunday.

The soldier witnesses' application raised the issue of whether, and in what circumstances, article 2 could require a public authority to desist from a lawful and peaceful activity because of a terrorist threat.

The court was not aware of any jurisprudence of the European Court of Human Rights which bore directly on the question, but the answer had to turn on matters of fact and degree.

If, for example, a credible bomb threat was received in relation to a building where a court was sitting, article 2 would normally require the court to be cleared while the threat was investigated.

At the same time, the desirability of carrying on lawful activities in a democracy could constitute compelling justification for continuing to do so despite terrorist threats, leaving it to the security agencies to do their best to provide protection in conformity with their Osman duty.

The tribunal submitted that there had to be a real risk, as identified in Osman, before the requirement to give evidence in Londonderry would infringe the soldiers' rights: a real risk was more substantial than one that was merely not fanciful.

The tribunal referred to authorities which used terminology that described a real risk.

But in Fernandez v Government of SingaporeWLR ((1971) 1 WLR 987, 994) after adumbrating the various phrases which he considered expressed the same likelihood of risk, Lord Diplock referred to the alternative of applying, untrammeled by semantics, principles of common sense and humanity.

There was much to commend that approach in the present case. The search for a phrase which encapsulated a threshold of risk which engaged article 2 was a search for a chimera.

Of one thing the court was clear. The degree of risk described as "real and immediate" in Osman, as used in that case, was a very high degree of risk calling for positive action from the authorities to protect life.

It was the real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party which was or ought to have been, known to the authorities.

Such a degree of risk was well above the threshold that would engage article 2 when the risk was attendant upon some action that an authority was contemplating putting into effect itself. It was not an appropriate test to invoke in the present context.

The fact that the soldier witnesses would have subjective fears if called to give evidence in Londonderry was a relevant factor when considering whether it would be fair to require them to do so, but objectively justified fears would have much more significance.

In the circumstances it was plain that if the soldier witnesses had to go to Londonderry to give evidence many would subjectively be in fear for their lives.

Giving anxious scrutiny to the evidence, their Lordships concluded that there would be good cause for soldier witnesses called to give evidence at the Guildhall to have fears for their safety.

It was common ground that if the soldier witnesses gave evidence in London or at some other venue on the British mainland they would still be at risk to the extent that security precautions would have to be taken. But the risk, after security precautions had been put in place would be lower than it would be in Londonderry.

No one had suggested that changing the venue would reduce the likelihood of the tribunal gettting at the truth of what happened on Bloody Sunday, and that had to be the primary object of the inquiry.

Nor would a change of venue prevent the families and others in Londonderry from seeing what transpired. There would be facilities for family members to attend if they wished and there would be live video-linkage to Londonderry.

The essence of the downside was the tribunal's finding that "the chance of the inquiry restoring public confidence … would be very seriously diminished (if not destroyed) by holding … a major part of the inquiry far away and across the Irish Sea, unless there were compelling reasons so to do".

That was no light matter and their Lordships would hesitate long before taking a step that would be likely to rob it of credibility....

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