R v Lord Saville of Newdigate, ex parte A

JurisdictionEngland & Wales
Judgment Date28 July 1999
Judgment citation (vLex)[1999] EWCA Civ J0728-13
Docket NumberQBCOF 1999/0653/4
CourtCourt of Appeal (Civil Division)
Date28 July 1999

In the matter of an application for judicial review

Regina
and
The Right Honourable Lord Saville of Newdigate
Sir Edward Somers
Mr Justice William Hoyt (Sitting as the Saville Inquiry)
(Ex Parte a and Ors)

[1999] EWCA Civ J0728-13

Before:

The Master of the Rolls

(Lord Woolf)

Lord Justice Robert Walker

Lord Justice Tuckey

QBCOF 1999/0653/4

IN THE SUPREME COURT OF JUDICATURE

ON APPEAL FROM THE QUEEN'S BENCH DIVISION(CROWN OFFICE LIST)

(LORD JUSTICE ROCH AND MAURICE KAY AND HOOPER JJ)

Royal Courts of Justice

The Strand

MR CHRISTOPHER CLARKE QC with MR A ROXBURGH and MR J GRIERSON (Instructed by Mr John Tate, Solicitor to The Inquiry, London SW1Y 4WG) appeared on behalf of the Appellant.

SIR SYDNEY KENTRIDGE QC with MR D LLOYD JONES QC and MR M BOOLS and MISS M GRAY (Instructed by A D Lawton, Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Respondents.

MR IAN BURNETT QC and MR W HOSKINS (Instructed by the Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Ministry of Defence as an interested party.

MR J COYLE (Instructed by Messrs Desmond J Doherty & Co, Derry BT48) appeared on behalf of the family of B McGuigan; MacDermott & McGurk on behalf of the family of A & W Nash; McCartney & Casey on behalf of the family of J Wray and Madden and Finucane on behalf of most of the remainder of the deceased and injured).

Wednesday 28 July 1999

LORD WOOLF, MR:

1

This is the judgment of the court on an appeal from a decision of a majority of the Divisional Court (Roch LJ and Maurice Kay J, Hooper J dissenting).

The Background

2

The order of the Divisional Court, made on 17 June 1999, partially quashed a decision of the tribunal sitting as The Bloody Sunday Inquiry ("the Tribunal"). The Tribunal was established under the Tribunals of Inquiry (Evidence ) Act 1921 ("the 1921 Act") following a statement made by the Prime Minister in the House of Commons on 29 January 1998, and a resolution adopted by both Houses of Parliament. The members of the Tribunal are the Rt Hon Lord Saville of Newdigate (a Lord of Appeal in Ordinary), the Rt Hon Sir Edward Somers (a retired judge of the Court of Appeal of New Zealand) and the Hon William L Hoyt (a former Chief Justice of the Supreme Court of New Brunswick).

3

The resolution establishing the Tribunal referred (following the language of s. 1(1) of the 1921 Act) to:

"a definite matter of urgent public importance, namely the events on Sunday, 30 January 1972 which led to the loss of life in connection with the procession in Londonderry on that day, taking account of any new information relevant to events on that day."

4

In the course of those events, thirteen persons (none of them a member of the British armed forces) were shot and killed and at least that number were shot and wounded on the streets of Londonderry. 30 January 1972 has become known as 'Bloody Sunday'. In the words of the written submission made to this court on behalf of the Tribunal,

"It is not in dispute that the majority, at least, of the casualties were the result of shooting by the British Army, but the circumstances of the shootings are, and always have been, acutely controversial. In broad terms, the Army version of events has been that soldiers fired only aimed shots at identified gunmen and nail and petrol bombers. The relatives of the dead and the injured, and many civilian witnesses, have maintained that the victims were innocent of any wrongdoing and that the shootings were unjustified and criminal."

5

Immediately after this very grave incident both Houses of Parliament resolved to establish a tribunal of inquiry under the 1921 Act, and Lord Widgery, then the Lord Chief Justice of England and Wales, was appointed to conduct the inquiry. He held public hearings at Coleraine (which is about 30 miles from Londonderry) during February and March 1972, and later heard submissions in London. During the hearings in Coleraine, 114 witnesses gave oral evidence and were cross-examined. The witnesses fell (as Lord Widgery recorded in his report):

"into six main groups; priests; other people from Londonderry; press and television reporters, photographers, cameramen and sound recordists; soldiers, including the relevant officers; doctors, forensic experts and pathologists."

6

Forty soldiers gave oral evidence to Lord Widgery. Five were senior officers who gave evidence under their own names, without making any application for anonymity. The others were permitted to identify themselves, and were referred to throughout the inquiry, by a system of code names. 28 soldiers admitted that they had fired live rounds on that day (rubber bullets were also fired) and 23 of them gave oral evidence; all these 28 were designated by letters of the alphabet ("lettered soldiers"). Other soldiers who gave evidence or were referred to in evidence were designated by numbers ("numbered soldiers").

7

The anonymity accorded to the lettered and numbered soldiers does not appear to have been regarded by Lord Widgery as particularly controversial. He stated in his report:

"Since it was obvious that by giving evidence soldiers and police officers might increase the dangers which they, and indeed their families, have to run, I agreed that they should appear before me under pseudonyms. This arrangement did not apply to the senior officers, who are well known in Northern Ireland. Except for the senior officers, the individual soldiers and police officers are referred to in my Report by the letter or number under which they gave evidence in the Tribunal."

8

As a result of observations made when an earlier application was considered by this court, further enquiries have been made about the original grant of anonymity and an affidavit has been sworn by Lieutenant Colonel Overbury, who then held the post of Assistant Director Army Legal Services (ADALS1) and was closely involved in the Army's preparations for Lord Widgery's inquiry. Colonel Overbury makes clear that soldiers were ordered to give evidence.

9

Under s. 1(1) of the 1921 Act the Tribunal presided over by Lord Saville has all the powers of the High Court in respect of enforcing the attendance of witnesses and compelling the production of documents. Under s.2(a) the Tribunal "shall not refuse to allow the public or any portion of the public to be present unless in the opinion of the tribunal it is in the public interest expedient so to do for reasons connected with the subject matter of the inquiry or the nature of the evidence to be given".

10

Because of the way in which this matter has evolved, it is necessary to set out in some detail the course of the Tribunal's proceedings since its establishment. The Tribunal delivered an opening statement in Londonderry on 3 April 1998. It has established an office in London and has instructed solicitors and counsel to the Tribunal. It has been engaged on the very onerous task of gathering and analysing documentary and written evidence (including films, sound recordings and still photographs), locating and interviewing witnesses (both civilian and military) and selecting and instructing expert witnesses. The Tribunal has also had to deal with various preliminary matters, including applications for anonymity. The public hearing was due to commence in September 1999 but has now been postponed.

11

The Tribunal held a preliminary hearing in Londonderry on 20 and 21 July 1998, having first circulated a memorandum listing and commenting on the matters to be addressed at the preliminary hearing. The memorandum covered representation of interested parties, documentary evidence and witness statements. Paragraphs 20, 21 and 22 dealt with applications for anonymity, for immunity from prosecution and for evidence to be heard in camera. Paragraph 20 was in the following terms:

"20.1 If any potential witness wishes to give evidence without revealing publicly his or her name and/or from behind a screen in order to conceal his or her face, an application should be made to the Tribunal in writing, explaining the reasons why this is considered necessary.

20.2 Each such application will be considered on its merits and, if anonymity is granted, the Tribunal will state the reasons in public.

20.3 If the interested parties have any general observations or submissions to make as to the circumstances in which such applications should or should not be granted, they are invited to do so in their written summaries."

Paragraph 22 was in the following terms:

"22.1 It would only be in exceptional circumstances that the Tribunal would accede to an application by a witness or interested party for evidence to be given in camera. If the Tribunal were to accede to any such application, its reasons for doing so would be publicly stated.

22.2 The parties are again asked to set out in their written summaries any general submissions they may wish to make on this matter."

12

On 24 July 1998 the Tribunal issued an 18 page document ("the preliminary ruling") containing its rulings and observations on the matters raised at the preliminary hearing. The Tribunal rejected the suggestion that it should approach its task on the footing that the inquiry should be regarded as ordinary adversarial litigation between the families of the dead and the wounded (on the one hand) and the soldiers and the Ministry of Defence (on the other hand). The preliminary ruling quoted from the Report of the Royal Commission on Tribunals of Inquiry chaired by Lord Justice Salmon (1966, Cmnd 3121) and from a paper by Professor Walsh which was very critical of Lord Widgery's inquiry. The Tribunal agreed with Professor Walsh's general views on the function of an inquiry of this kind:

"The Tribunal of Inquiry by contrast is set up...

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