Neutral Citation no. (2002) NICA 25B
Ref:     
GIRC3691

 
Judgment: approved by the Court for handing down
Delivered:
08.05.2002
(subject to editorial corrections)

 
 
2002 No 27
 
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND 
 
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION (CROWN SIDE)
 
________ 
 
IN THE MATTER OF AN APPLICATION BY THE NEXT OF KIN OF GERARD DONAGHY FOR JUDICIAL REVIEW AND IN THE MATTER OF A DECISION OF THE BLOODY SUNDAY INQUIRY 
DATED 7 FEBRUARY 2002 
 
________ 
 
GIRVAN J
 
JUDGMENT
 
INTRODUCTION
 
            The background to this appeal emerges clearly from the judgment of Kerr J.  In this appeal the appellant seeks to quash the decision of the Bloody Sunday Tribunal which allowed certain police officers to give evidence to the Tribunal from behind screens (“the screening decision”).  
            This being a judicial review application it is appropriate to state at the outset that the function of the court is a supervisory and not an appellate function.  As in all judicial review applications the court must focus its attention on the questions whether the impugned decision is flawed by reason of illegality, irrationality or procedural irregularity (see Council of Civil Service Union v Minister of the Civil Service [1984] 3 All ER 935 at 950 per Lord Diplock).  The court may hold a decision unlawful because it was reached in an unfair or unjust manner.  In judging whether a decision made has exceeded the margin of appreciation of the relevant decision maker the human rights context is important.  The more substantial the interference with human rights the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense that it is within the range of responses open to a reasonable decision maker (see R v Ministry of Defence ex parte Smith [1996] QB 517 at 554 and R v Lord Saville of Newdigate [2000] 1 WLR 1855 at 1866).  The human rights context in which a decision falls to be reviewed gives rise to another factor as stated by Lord Woolf in the latter decision at 1867 E - G:
“When a fundamental right such as the right to life is engaged, the options available to the reasonable decision maker are curtailed.  They are curtailed because it is unreasonable to reach a decision which contravenes or could contravene human rights unless there are sufficiently significant countervailing considerations.  In other words it is not open to the decision maker to risk interfering with fundamental rights in the absence of compelling justification.  Even the broadest discretion is constrained by the need for there to be countervailing circumstances justifying interference with human rights.  The courts will anxiously scrutinise the strength of the countervailing circumstances and a degree of the interference with the human right involved and then apply the test accepted by Sir Thomas Bingham MR in R v Ministry of Defence ex parte Smith [1996] QB 517.”
 
            In his attack upon the screening decision Mr Treacy QC sought to argue that the Tribunal was in error in its understanding of the law to be applied in deciding the application whether the relevant officers should be screened.  He argued that in purporting to follow and apply the test stated by the English Court of Appeal in Lord Saville of Newdigate & Ors v Widgery Soldiers & Ors [2002] EWCA Civ 2048 (“the venue decision”) the Tribunal fell into error.  He sought to argue that that decision itself was wrong and should not have been followed or applied by the Tribunal.  The venue decision he argued was not binding upon this court.  In the alternative he contended that even if the Court of Appeal’s statement of law in the venue decision was correct the Tribunal failed to apply the test therein stated correctly.  Had it done so it would have been bound to refuse the screening application or would, at least, have made a more limited screening order.  Mr Treacy also attacks the decision on the grounds that no reasonable Tribunal presented with the material put before it on behalf of the relevant police officers could have reached the conclusion they had ultimately reached that the officers should be screened in the way directed by the decision.  He further contended that the Tribunal approached the application in the wrong way failing to properly investigate the applications which raise serious questions as to the good faith of the applications and failing to properly investigate the question whether a more restricted form of screening could be set in place allowing at least the families of the deceased and wounded to see the police witnesses giving evidence.
THE ILLEGALITY ISSUE
            In reaching its decision the Tribunal clearly proceeded upon the basis that the law to be applied was that stated by the Court of Appeal in the venue decision.  Lord Saville in giving the Tribunal’s decision stated:
“We, in short, accept that the applicants do have reasonable and genuine fears for their safety, and we further accept that these fears could be alleviated to a significant degree by screening.  There remains, therefore, the question of balancing these considerations against the adverse consequences to the inquiry of allowing screening to take place.”
 
The way Lord Saville on behalf of the Tribunal expressed the ruling makes clear that the Tribunal had in mind the test stated by Lord Phillips MR in the venue decision.
            Clearly if the venue decision is wrong as a matter of law then the Tribunal decision would have been based on an incorrect legal premise and would be erroneous in a point of law.
            Two questions arise.  Firstly, is it open to this court to hold that the Tribunal should not have followed and applied the law as stated by the English Court of Appeal in the venue decision?  Secondly, have the applicants in fact raised any sustainable argument that that decision was in fact  wrong?  
            It must be stated at the outset that for the court to come to a different conclusion from that reached by the English Court of Appeal in the venue decision would produce bizarre and wholly undesirable results which would make the working of the Tribunal almost impossible.  If the police officers’ application were revisited by the Tribunal and rejected as a result of a ruling by this court the police officers would presumably have the right to bring the matter back before the English courts for review and the English courts would be bound to apply and follow the venue decision until overruled by the House of Lords.  If this court enunciated a test differing from that stated in the venue decision the result would be that the Tribunal would have two inconsistent legal directions from courts of competent jurisdiction and could not apply both.  As it was, when it dealt with the screening application a court of competent jurisdiction had given a definitive ruling which the Tribunal was bound to apply.  
            It has been the practice in this jurisdiction for the Court of Appeal to follow and apply English Court of Appeal decisions on a common point of law (see Beaufort Development v Gilbert Ash [1997] NI 142, Northern Ireland Railway Transport Board v Century Insurance Company Ltd [1941] NI 77 and McGuigan v Pollock [1955] NI 74).  This practice followed from the approach adopted by the Irish Court of Appeal (see Holmes LJ in McCartan v Belfast Harbour Commissioners [1910] 2 IR 470 at 494-495).  It is not clear whether a similar approach is adopted by the English Court of Appeal in relation to decisions of this court.  It is true that in Re McKiernan [1985] NI 385 Lord Lowry put the position somewhat differently.  He pointed out that while the English Court of Appeal decisions traditionally and rightly are accorded the greatest respect this court is not bound to follow them and in that case the Court of Appeal differed from the conclusions reached by the English Court of Appeal in the Camphill Prison case [1985] 2 WLR 336.  It is interesting to note that the Northern Ireland Court of Appeal’s approach was ultimately accepted as correct by the House of Lords in a later case.
            In this case the desirability and wisdom of following the English Court of Appeal decision is all the stronger because the decision in each jurisdiction governs the one tribunal and as noted a difference of approach and the two jurisdictions would produce unworkable results.
            In deference to Mr Treacy’s forceful arguments and bearing in mind that the issue of the correctness of the test in the venue decision may arise again it is necessary to look at the substance of Mr Treacy’s contention that the decision in the venue decision was wrong.  At the outset I can state that Mr Treacy has failed to persuade me that the venue decision is wrong in law in the way in which the English Court of Appeal enunciated the proper approach to be adopted in applications such as the present one.
            In the venue decision a number of now incontestable points were established.  While the Tribunal was master of its own procedure and has considerable discretion as to what procedure it wishes to adopt it must still be fair.  Whether a decision reached in the exercise of its discretion is fair or not is ultimately one to be determined by the court.  Article 2 of the Convention places the Tribunal under a procedural obligation in so far as compatible with the substantive obligations imposed by article 2 to conduct an official inquiry that is open and effective.  When there is a “risk” to the lives of witnesses before the Tribunal the circumstances may call for the exercise of the Tribunal’s judgment as to how fairly to cater for that risk in the arrangement it makes for the conduct of the inquiry.  What is contentious in this appeal is what is the nature and extent of the risk that calls for the exercise of that judgment and how the nature of that risk affects the way in which the judgment should be exercised.  
            Mr Treacy argued that before article 2 is engaged there must be a “real and immediate risk” to the witnesses concerned.  He sought to argue that that phrase “real and immediate risk” pointed to a relatively high degree of risk.  He argued that the decision in Osman v UK [1998] 29 EHRR 245 made clear that that was the level of risk in question.  Lord Phillips MR in the venue case was prepared to accept that the real and immediate risk envisaged in Osman by the European Court of Human Rights (“the ECHR”) was a very high degree of risk calling for positive action from the authorities to protect life.  Such a degree of risk was well above the threshold that would engage article 2 when the risk was attendant on some action that an authority was contemplating putting into effect itself.  Such a test requiring a high degree of risk was not the appropriate test to invoke in that latter context. 
            In Osman it was accepted by the ECHR that the Convention may imply in certain well defined circumstances a positive obligation on the authority’s part to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of other individuals.  What was in issue in that case was the scope of the obligation.  Not every claimed risk to life can entail for the State authorities a Convention requirement to take operational measures to prevent that risk from materialising.  If the test of “real and immediate threat” envisaged in Osman indeed does point to a very high degree of risk (a point on which I would prefer to reserve my opinion) I respectfully agree with the approach adopted by the Court of Appeal in England that a different and lower threshold of risk will engage article 2 when the risk is attendant upon some action which a public authority is itself contemplating putting into effect.
            Having stated that the threshold of risk that would engage article 2 when the risk attendant on actions to be taken by an authority is well below a very high degree of risk, the Court of Appeal at paragraphs 30 and 31 set the position out thus:-
“30.     In the present appeal, the fact that the soldier witnesses will have subjective fears if called to give evidence in Londonderry is a relevant factor when considering whether it will be fair to require them to do so.  Those fears will, however, have much more significance if they are objectively justified.  A critical issue is whether such fears are objectively justified, and much of the submissions that we heard were addressed to this issue.
 
31.       We consider that the appropriate course is to consider first the nature of the subjective fears that the soldier witnesses are likely to experience if called to give evidence in the Guildhall, to consider the extent to which those fears are objectively justified and then to consider the extent to which those fears, and the grounds giving rise to them, will be alleviated if the soldiers give their evidence somewhere in Great Britain rather than in Londonderry.  That alleviation then has to be balanced against the adverse consequences to the inquiry of the move of venue, applying common sense and humanity.  The result of the balancing exercise will determine the appropriate decision.   This course will, we believe, accommodate both the requirements of article 2 and the common law requirement that the procedure should be fair.”
 
            The issue of the genuineness of the subjective fears of the witnesses and the issue of the objective grounds for such fears were much debated in this appeal.  The fact that a witness has a genuine subjective fear and how to deal with that fear are relevant considerations for the Tribunal in ensuring procedural fairness.  The requirement of procedural fairness involves a duty to be fair to witnesses including, for example, protecting them (see Lord Woolfe MR in R v Lord Saville of Newdigate [2000] 1 WLR 1855 at 1868).  In expressing itself as it did in paragraphs 30 and 31 the Court of Appeal sought to bring together the relevant principles to be applied in ensuring procedural fairness in a context where article 2 is engaged.  Nothing in Mr Treacy’s able submissions has persuaded me that there is any error in the approach adopted by the Court of Appeal in paragraphs 30 and 31.  
            The Tribunal (arguendo) and Kerr J expressed some difficulty with the approach set out in paragraph 31.  Kerr J stated:-
“The Court of Appeal in the venue application considered that a balancing exercise had to be carried out between the measures needed to alleviate the subjective fears of the witnesses and the grounds giving rise to them on the one hand and the adverse consequences that the measures would cause on the other.  Lord Saville had some difficulty with this concept as do I.  If the measure is needed to alleviate the fears and the reasons for them are to be regarded as the steps necessary to protect the witnesses’ substantive article 2 rights (in other words their right to have their life protected), I cannot accept that these can be mitigated by adverse consequences that might accrue to other procedural article 2 rights.  It surely cannot be right to refrain from taking precautions deemed necessary to protect someone’s life in order to cater even for the need to ensure the thorough and effective investigation of another’s death.”        
            
            As I read paragraph 31 of the judgment however it appears to me that no such difficulty arises.   What the Court of Appeal ruling calls for is a judgment by the Tribunal that properly weighs in the balance the rights of the witnesses and their rights to a fair procedure on the one hand and the rights of other interested parties before the Tribunal and the interests of a fair inquiry.  If the steps sought by the witnesses go beyond what is necessary for the proper protection and vindication of their article 2 rights and the right to fairness in the light of the risk and in the light of the countervailing rights of other interested parties then the Tribunal should not accede to the witnesses’ application in the form in which it is made and it would have to protect the rights in a more balanced way.  Thus, for example, if the police witnesses in the present case had sought not screening but a direction that their evidence be given in camera or that they should be excused from giving evidence at all then the Tribunal, when weighing the risk to their lives and their right to fairness on the one hand and the rights of the families and the interests of a fair inquiry, could conclude that the witnesses’ concerns would be adequately and properly catered for by a screening order.
            In the result the Tribunal was correct to apply the approach set out in the venue decision.  The Tribunal did not misunderstand the correct legal approach to be adopted in relation to determining the screening applications.  
THE VALIDITY OF THE IMPUGNED DECISION
            It is necessary then to consider whether the Tribunal correctly applied the law in deciding the screening applications and whether the decision is flawed on some other basis.  Much of the force of Mr Treacy’s submissions was directed to the question whether the police officers’ application was made in good faith and whether they genuinely entertained subjective fears as to their safety and whether the Tribunal adopted a fair procedure to probe the genuineness of their expressed fears.   The arguments forcefully put by Mr Treacy in this court had been put before the Tribunal before it reached its decision and the Tribunal was aware of the thrust and nature of the applicants’ case.  
            The Tribunal had before it the intelligent assessments the second of which dated 5 February 2002 stated:-
“As previously indicated a general threat exists to any police witness whose personal details, including appearance, might be disclosed.  The level of possible threat faced by these police witnesses is likely to vary dependent upon the following factors:  the nature of the evidence given by individual officers or ex-officers, the nature of their duties on the day in question, the media interest in their evidence and also whether the individual officer has been the subject of paramilitary attention in the past.  
 
It is judged that the level of threat faced by police witnesses to the Tribunal will be greater than that faced by military personnel.  This is due to the fact that a number of these witnesses live locally with their families and are likely to come into contact with terrorist suspects in the course of their ordinary lives, a situation that is not generally applicable to the military witnesses.”
 
            As expressed this assessment relates to all the police witnesses who thus face a risk to their lives which cannot be shrugged off as an unrealistic one.  Furthermore the risk is expressed to be greater than that faced by military personnel the risk to whom in the opinion of the English Court of Appeal in the venue decision justified the more draconian remedy of a change of venue.
            In stating the conclusions of the Tribunal on the application Lord Saville stated that the Tribunal was not persuaded that the delay in making the applications demonstrated or went to demonstrate that the fears now expressed were not reasonable.  The delay in making the applications did not show that the fears of the applicants are without foundation but went on to state:-
“The applicants unlike the soldiers do not have the protection of anonymity.  Again, unlike all or virtually all the soldiers, they live in Northern Ireland where some are still serving police officers; hundreds of their colleagues have died from terrorist activity over the last 30 years.  Thankfully, the terrorist at present appears to be reduced from that which existed before, but that it still exists cannot be denied, as is apparent from the information put before the inquiry today and the future of course is unknown.
 
The fear that the police officers have stems not so much from the evidence they can give about Bloody Sunday or indeed from their activities on that day, but from the opportunity, particularly since their names are known and since they live and some work here, that would be afforded to distant groups to identify them more closely where they not to be screened.  
            
We in short accept that the applicants do have reasonable and genuine fears for their safety, and we further accept that these fears could be alleviated to a significant degree by screening …”
 
            The conclusion that the fears were genuine could not be categorised as irrational or perverse particularly bearing in mind that it would be “unreasonable to reach a decision which could contravene human rights” (per Lord Woolf in R v Saville of Newdigate [2000] 1 WLR at 1867.  The conclusion that there was no objective reason for fear on the part of the officers would itself have been perverse in the light of the intelligence evidence.  The very fact that there was an objective basis for fear itself supports the Tribunal’s conclusion that there was a genuine subjective fear.
            Having material before it to justify its conclusion that there was subjective fear on the part of the officers with objective grounds for that fear the Tribunal then had to balance the rights of the police officers and the interests of the families and the interests of ensuring a fair and open inquiry.  The Tribunal properly bore in mind that screening was not something of little real importance.  It properly recognised the screening was a significant in road into the public nature of the proceedings.  Accordingly, the Tribunal did not lightly accede to the application.  It concluded however that it was not persuaded that the public confidence and inquiry would be undermined to such degree that the applicants’ genuine and reasonable fears should be overborne, a decision well within its margin of appreciation.
            It must be borne in mind that the police officers are named, will be giving evidence in person before the Tribunal, will be cross-examined by representatives of the next of kin, will be seen by the qualified lawyers acting for the next of kin and will be heard by the public (including the next of kin).  Their evidence will be transcribed and available to everyone.  While the families will not see the witnesses face to face and to that extent the transparency of the inquiry is affected, screening will not prejudice a full investigation before the inquiry.
            It is true that the next of kin have a procedural article 2 right that a full and proper investigation into the deaths of the deceased will be carried out (Jordan v UK [2001] ECHR 247).  The authorities make clear however that such a right does not necessarily carry with it a right to participate in the inquiry in a particular way or necessitate a particular form of inquiry or investigation.  The state’s investigation of the conduct of its representatives must be effective and independent but the steps which are required to achieve this will depend on the facts of the case and may vary enormously (per Carswell LCJ in Re Adams Application [2001] NI 1.)  If there is a conflict between the procedural rights of the next of kin and the substantive rights of individuals not to be exposed to a life threatening risk or to have the risk minimised the substantive right must prevail.  There is nothing in the reasoning of the Tribunal to indicate that it misunderstood the correct approach or having understood it correctly failed to apply the correct approach properly.
SHOULD THE SCREENING HAVE BEEN IN A MODIFIED FORM?
            By way of alternative arguments Mr Treacy contended that the Tribunal was wrong to treat all the police officers in that application as a class and should have distinguished the case of at least two officers who were it was contended well known individuals and who could not benefit from screening.  He argued that the Tribunal should have permitted the next of kin to see the police witnesses and that members of the families’ legal team who are not qualified should not have been covered by the screening order.
            So far as distinguishing between the applicants is concerned it must be recalled that the intelligence advice set out above applied to all officers giving evidence to the Tribunal.  The fact that some officers do not wish to avail of the opportunity to be screened cannot in itself detract from the interests of others who have a legitimate grounds for fear for their safety.  The Tribunal had been directed to the names of two officers who it was alleged on behalf of some of the next of kin (though not the next of kin represented by Mr Treacy) were well known faces.   The Tribunal did not exclude them from those covered by the screening order.  It cannot be said that the Tribunal was acting perversely in not excluding them bearing in mind the intelligence material available to the Tribunal.  
            In relation to permitting the next of kin to see the witnesses this was an idea raised by another counsel acting on behalf of some of the other next of kin not represented by Mr Treacy.  The Tribunal rejected the proposal as not a practical suggestion.
            Mr Clarke QC pointed that the physical layout of the Guildhall was such that it was not practically possible to treat the next of kin as a separate class.  He contended that the risk of details of appearances leaking out even inadvertently was such that it was not possible to say that there was no increased risk in allowing 127 persons seeing the witnesses.  Inadvertent disclosure could not be prevented.  An extensive vetting procedure would be called for and this in itself would present grave difficulties.  He contended that the decision of the Tribunal on this point was a common sense and practical one.
            If the circumstances call for screening (and the Tribunal has legitimately held that it did) then the Tribunal had to consider whether it would be practical to permit the families to see the screened witnesses.  This was par excellence a matter for the Tribunal which is familiar with the logistical and practical matters affecting the fair conduct of the hearings.  I have not been persuaded that the Tribunal fell into error in concluding that it was not practical to restrict the screening.
            On the issue of non legally qualified members of the families’ legal team Mr Clarke QC submitted that this had not been addressed by the Tribunal in its ruling.  The Tribunal ruled that the officers should be screened when they gave their evidence from all except the qualified lawyers acting on behalf of the interested parties and the Tribunal, its counsel and staff.  The Tribunal did not refer to the question of the presence of members of the families’ legal team and there was no argument on this issue before it.  Kerr J held that the Tribunal would have to decide whether they should be permitted to be present if an when any application was made on that topic.  I agree.
            If on behalf of the next of kin or any of them an application were made to modify the screening order grounded on alternative and potentially workable proposals affecting members of the families and unqualified lawyers such application would doubtless be considered by the Commission as would any application made to.  Our decision upholding the currently impugned decision of the Tribunal does not fetter the powers of the Tribunal in relation to any such further application which would have to be decided on the merits and on an application of the correct legal principles.  

2002 No 27
 
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND 
 
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION (CROWN SIDE)
 
________ 
 
IN THE MATTER OF AN APPLICATION BY THE NEXT OF KIN OF GERARD DONAGHY FOR JUDICIAL REVIEW AND IN THE MATTER OF A DECISION OF THE BLOODY SUNDAY INQUIRY 
DATED 7 FEBRUARY 2002 
 
________ 
 
J U D G M E N T   O F
 
GIRVAN J
 
________