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Cite as: [2002] WLR 1249, [2001] EWCA Civ 2048, [2002] ACD 22, [2002] 1 WLR 1249

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Lord Saville of Newdigate & Ors v Widgery Soldiers & Ors [2001] EWCA Civ 2048 (19th December, 2001)

		Neutral Citation Number: [2001] EWCA Civ 2048
		Case No: C/2001/2538

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
The Rt. Hon. Lord Justice Rose
The Hon. Mr Justice Sullivan

Royal Courts of Justice
Strand, London, WC2A 2LL

19th December 2001

B e f o r e :

LORD PHILLIPS MR
LORD JUSTICE JONATHAN PARKER
and
LORD JUSTICE DYSON
____________________

Lord Saville of Newdigate and Others
Appellants

- and -

Widgery Soldiers and Others
Respondents

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Christopher Clarke QC, Dinah Rose, and Alan Roxburgh (instructed by The Treasury Solicitors) for the Tribunal
David Lloyd Jones QC, Michael Bools and Nicholas Moss (instructed by The Treasury Solicitor) for various soldiers and former soldiers

Iain Burnett QC and William Hoskins for the Ministry of Defence
Michael Lavery QC, Seamus Treacy QC and Karen Quinlivan (instructed by Messers Madden & Finucane) for the various bereaved and wounded represented by Madden & Finucane
Michael Mansfield QC (instructed by Messers Desmond Doherty & Co) for the relatives of Bernard McGuigan, Alexander Nash & William Nash, deceased and Daniel Gillespie and Michael Quinn
Eilis MacDermott QC (instructed by Messers Brendan Kearney Kelly & Co) for the relatives of Patrick Doherty deceased
Declan Morgan QC and Brian Kennedy (instructed by Messers Frances Keenan) for Michael Bradley and Michael Bridge
Sir Louis Blom-Cooper QC and Henrietta Hill (instructed Messers Francis Keenan) For the various former officers of the Northern Ireland Civil Rights Association represented

____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Lord Phillips MR :

This is the judgment of the court

Introduction

Once again retired and serving soldiers, who are due to give oral evidence in the Bloody Sunday Inquiry (‘the soldier witnesses’), have sought judicial review in order to challenge a procedural order of the Tribunal. In R v Lord Saville of Newdigate ex p. A [2000] 1 WLR 1855 a number of soldiers, who had fired live rounds on Bloody Sunday, successfully challenged a decision of the Tribunal that soldier witnesses would be identified by their full names, subject to the right to apply for anonymity on special grounds. That decision, insofar as it related to soldiers who had fired live rounds, was quashed by the Divisional Court, whose decision was upheld on appeal. The Court of Appeal held that these soldiers had reasonable grounds for fearing for their lives if they were identified and that in those circumstances the Tribunal had to demonstrate that there were compelling reasons for naming them. This they had failed to do. In the light of that judgment the Tribunal decided to grant anonymity to all soldier witnesses.

On this occasion the decision that is challenged is that the soldier witnesses must give evidence in the Guildhall in Londonderry, rather than in London or in some other venue in Great Britain. Once again the primary ground of challenge is that the soldiers have reasonable grounds for fearing for their lives if they go to Londonderry to give evidence and that the Tribunal has failed to show that there are compelling grounds for requiring them to do so.

The Administrative Court has granted the soldier witnesses’ application, quashed the Tribunal’s decision and remitted the matter to them for further consideration. That Court held that the Tribunal misdirected itself in law, with the result that their decision was fundamentally flawed. Against that decision the Tribunal now appeals. It is supported in its appeal by a number of families of people who were killed or wounded on Bloody Sunday. These families are desperately concerned that the soldier witnesses should give evidence in the city where the tragedy occurred and where the families will be able to listen to their evidence. The respondents, for their part, are supported by the Ministry of Defence (‘MoD’), which contends that to make the soldier witnesses give their evidence in Londonderry will be to expose them to lethal danger and to consequent stress for which there can be no justification.

The hearing of this appeal has been expedited and our judgment is urgently awaited. In these circumstances we propose to follow the example of the Administrative Court and to refer anyone who is unaware of the background to this appeal to the account that is given in the first 28 paragraphs of the judgment of this court in ex parte A. Indeed there are so many parallels between that appeal and this that we would recommend anyone unfamiliar with it to read the judgment in that case as a precursor to our own.

Most of those before the court submitted that at the heart of this appeal lie the duties that are imposed on a public authority by virtue of Article 2 of the Human Rights Convention (“the Convention”); not everyone, however. We gave permission to intervene to the Northern Ireland Civil Rights Association. On their behalf Sir Louis Blom-Cooper Q.C. sought to persuade us that the Tribunal was not a public authority and therefore not subject to the Convention, as applied by the Human Rights Act 1998.

This argument was presented to the Administrative Court by written submission. It received short shrift – see paragraphs 4 and 5 of the judgment. We endorse the conclusions of the Administrative Court for the reasons given by it. The Tribunal is undoubtedly a public authority within section 6(3) of the 1998 Act, being a court or tribunal whose functions are of a public nature. In any event the Tribunal has founded its decision very largely on the premise that it is governed by the Convention and that decision falls to be reviewed in the light of the Convention obligations.

Sir Louis advanced a second submission. What was in play on this appeal was a matter of procedure. The Tribunal was the master of its own procedure. This was not an appropriate area for judicial review – see Lawlor v Flood [1999] 3 IR 107 per Murphy J. at p.139. We accept that, in general, the court will not interfere with procedural decisions of a tribunal. Here, however, what is in issue is the fairness of the Tribunal’s procedure. Furthermore it is in issue in an extreme form, for what is alleged is that the procedure of the Tribunal will expose witnesses to the fear of lethal danger, a fear that is both subjectively and objectively justified. As this court observed in ex parte A at p.1868, while the Tribunal “is 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 which will be determined by the courts”.

An allegation of unfairness which involves a risk to the lives of witnesses is pre-eminently one that the court must consider. It is also one which calls for the most anxious scrutiny, as all parties to this appeal have recognised. The decision under review has been reached by a tribunal of pre-eminent distinction and experience, not merely general judicial experience but, by now, personal experience of conditions, attitudes, emotions and reactions in the venue where the Inquiry is being held that extends over a period in excess of three years. These considerations call for particular care on our part when deciding whether to interfere with the decision that the Tribunal has made.

The manner in which Article 2 is engaged

Article 2 of the Convention provides:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

The European Court of Human Rights (“the Strasbourg Court”) has accepted as admissible applications involving the right to life in a number of different circumstances and its jurisprudence gives guidance as to the appropriate approach of a public authority in each of these circumstances. The Inquiry is, of course, concerned with the question of whether there was a breach of Article 2 by the deliberate taking of life resulting from the use of force by soldiers that was more than absolutely necessary. That issue is not, however, in play in this appeal. The circumstances in which the Strasbourg Court has found that the right to life was engaged that are relevant to this appeal are as follows.

The requirement to have an effective official investigation

“The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to ‘secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention’, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force…”

This passage from the decision of the Strasbourg Court in Hugh Jordan v. United Kingdom (Decision 4 May 2001) represents an area where the Strasbourg Court has only relatively recently held that Article 2 is engaged – see McCann and Others v. United Kingdom (1996) 21 EHRR 97 at p.163. The efficacy of the contemporary Widgery Inquiry into Bloody Sunday has not been generally accepted, which was one of the reasons for setting up the current Inquiry. The current Tribunal has rightly recognised at paragraph 26 of its Ruling on Venue that Article 2 places it under a procedural obligation, insofar as compatible with the substantive obligations imposed by that Article, to conduct an official Inquiry that is effective.

The duty to protect against criminal acts that threaten life

The recognition that this duty arises from Article 2 is another recent development of the jurisprudence of the Strasbourg Court. It was enunciated in the tragic case of Osman v. United Kingdom (1998) 29 EHRR 245. We shall, accordingly, describe the duty as ‘the Osman duty’. Because this decision has featured large in the arguments addressed to us, we propose to set out the material passage from the judgment of the Court at paragraphs 115-116:

“The Court notes that the first sentence of Article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. It is common ground that the State’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The scope of this obligation is a matter of dispute between the parties.

For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice including the guarantees contained in Article 5 and 8 of the Convention.

In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The Court does not accept the Government’s view that the failure to perceive the risk to life in the circumstances known at the time or to take preventive measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life. Such a rigid standard must be considered to be incompatible with the requirements of Article 1 of the Convention and the obligations of Contracting States under that Article to secure the practical and effective protection of the rights and freedoms laid down therein, including Article 2. For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case.”

We consider that the Osman duty is directly engaged in the present case. The majority in Londonderry, and that majority includes the families of those who were killed or injured on Bloody Sunday, wish the Inquiry well and are anxious that it should continue to be peacefully held in Londonderry. It is, however, common ground that there are, in Londonderry in particular but also elsewhere, dissident Republican elements who are not prepared to observe the cease-fire, but are anxious to disrupt the peace process. In particular, the Republican group that describes itself as the Continuity IRA is not observing the cease-fire. These elements pose a threat to the Inquiry and those who are or will be taking part in it, and in particular the soldier witnesses. The security agencies consider that this threat is, and will be, sufficiently real and imminent to call for precautionary measures to safeguard those taking part in the Inquiry. We consider that they are plainly right to do so.

The Tribunal’s decision on venue is premised on its belief that the security measures that will be put in place to protect the soldier witnesses, if they give evidence in Londonderry, will be adequate to reduce to a satisfactory extent the real and immediate risk to which they would otherwise be exposed. The central issues in the appeal are 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 soldier witnesses’ Article 2 rights to require them to give evidence in Londonderry.

The obligation to take all feasible precautions to minimise loss of life when carrying out an operation involving the use of force against armed opposition.

This is a third recent development of Strasbourg jurisprudence in relation to duties arising out of Article 2. The source is the case of Ergi v. Turkey (Decision 28 July 1998). The applicant’s sister had been killed by cross-fire in the course of an operation by Turkish security services against terrorists. It was not clear from which source the fatal bullet had come. The Court held at paragraph 79 that Article 2 could be engaged where agents of the state failed to “take all feasible 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”.

The facts of Ergi differ from those under consideration in this appeal in that in Ergi the state agents were undertaking an operation involving the use of armed force which was likely to produce a criminal response involving risk to the lives of civilians. Nonetheless, this and the earlier cases to which we have referred, demonstrate that the Strasbourg jurisprudence develops incrementally on a case by case basis. Ergi opens the door to the argument that if a public authority is carrying out an operation which is going to invite an armed response from criminals, there is a duty to do all that is feasible to ensure that civilians are not thereby harmed.

In Ergi there was no suggestion that the operation should not have been carried out at all if it was going to endanger civilian life. In this case the Tribunal is proposing to carry out in Londonderry a peaceful activity that is not merely lawful but in the public interest in that it is designed to be part of an effective inquiry into the deaths that were caused on Bloody Sunday. The soldier witnesses’ application raises the issue of whether, and in what circumstances, Article 2 can require a public authority to desist from a lawful and peaceful activity because of a terrorist threat. We are not aware of any Strasbourg jurisprudence which bears directly on this question, but we think that its answer must turn on matters of fact and degree. If, for example, a credible bomb threat is received in relation to a building where a court is sitting, we think that 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 can 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 approach of the Tribunal

At the beginning of their Ruling, the Tribunal gives reasons that lead to its conclusion in paragraph 8 that:

“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 evidence will be heard, unless indeed there are compelling reasons to take a different course.”

Those reasons appear principally from the following passage in paragraph 5:

“We are a tribunal comprised of members from three countries charged with seeking the truth about Bloody Sunday. On that day in a city in Northern Ireland, citizens of the United Kingdom were killed and wounded by British troops. The events of that day, though 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) would 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.”

The Tribunal goes on to cite the paragraphs from Osman that we have set out above, remarking that this is the most helpful judgment. At paragraph 20 the Tribunal observes:

“Osman recognises a principle of proportionate obligations on the authorities and the need to recognise the lawful constraints placed on the authorities in meeting those obligations. Authorities are not in breach of those obligations unless they knew or ought to have known of the existence of a real and immediate risk to life and failed to take measures which, judged reasonably, might have been expected to avoid that risk.”

The Tribunal then turns to evidence of the assessment of risk, to which we shall return in due course. The crux of the reasoning of the Tribunal appears in the following three paragraphs:

“23. As will be seen from the summary, it is the view of the concerned security agencies that the risk to soldier witnesses of terrorist reprisals would be higher in Northern Ireland than in Great Britain. The soldiers submit that accordingly it would be an infringement of their rights for the Tribunal to require them to give evidence at the Guildhall rather than in Great Britain. Their case is that the Tribunal is bound to take all feasible precautions to avoid or minimise, to the greatest extent possible, any risks to the life of the individual; and that this can only be done by hearing the evidence of the soldiers in Great Britain, where the risk is lower.

24. It seems to us that the fact that the risk is greater in the one place rather than the other is not of itself determinative of the matter. On the basis of the Osman decision, it is incumbent on the authorities (which in the present case include both the Tribunal and the agencies responsible for the protection of witnesses) to do all that can reasonably be expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. We are satisfied, on the basis of the security advice that we have received, that the security authorities in Northern Ireland can provide, for soldiers giving evidence at the Guildhall, a level of protection sufficient to avoid any such risk. In such circumstances we consider that the Tribunal would not be acting incompatibly with the rights of the soldiers by requiring them to give evidence at the Guildhall rather than in London, for in neither place would there be a real and immediate risk to them. Neither the MoD nor the RUC (the state authorities who have the duty to protect the soldiers while giving evidence and who must accordingly deploy the proper resources to do so) have advised us that, notwithstanding the security precautions that they could and would put in place for soldiers giving evidence at the Guildhall, the level of risk would be so high that it could be described as real and immediate or in terms to the same or similar effect.

25. We have of course borne in mind the history of terrorist attacks on military and other targets in Northern Ireland, particularly those that have recently taken place in and around the city, and the present situation with regard to terrorist organisations. We have also borne in mind that over at least the last thirty years, it appears that the protection afforded by state authorities to those required to attend courts in Northern Ireland, often in circumstances of the greatest controversy where the risk of terrorist attacks has clearly been high, has been sufficient to avert any loss of life or injury from terrorist organisations. In our judgment the authorities will have done all that could reasonably be expected of them by providing, as they say that they can, a level of security commensurate with what has regularly (and successfully) been provided for trials in Northern Ireland where persons at risk such as soldiers, security officers, informers and others have been required to attend.

Having regard to the level of security that the Tribunal finds will be provided, it concludes at paragraph 26 that requiring the soldiers to give evidence in Londonderry would not infringe their Article 2 rights. Accordingly:

“…it would be unreasonable and indeed in contravention of the Article 2 procedural requirements for the Tribunal to conduct a central part of the Inquiry at somewhere other than the natural and proper place for it”.

The Tribunal then proceeds to consider the common law test of fairness of the procedure, and concludes that it does not differ from the requirements under the Convention. The Tribunal observes at paragraph 34:

“Certainly there is every reason to conclude that the emphasis placed in Osman on a principle of proportionate obligations on an authority and the need for awareness, actual or imputed, of the existence of a real and immediate risk to life can fairly be seen as equally relevant to the common law. References to ‘compelling justification’ are made in the context of a decision that truly interferes with human rights. Since none of the concerned agencies has suggested that such a real and immediate risk would exist notwithstanding the precautions that would be put in place, it seems to us that to require the soldiers to give their oral evidence at the Guildhall would not offend their common law rights. In other words, we consider that we are justified in requiring of the soldiers no more than what has been required on many occasions of others who have had to give evidence of killings in Northern Ireland, namely to appear and testify where the events took place, with the security authorities doing all that can reasonably be expected of them to provide a safe environment.

Clearly the soldiers would prefer to give their evidence in Great Britain, but this does not demonstrate, nor do we accept, that they have reasonable fears for their safety while going to or from the Guildhall or actually giving their evidence there, in view of the security precautions that the RUC and MoD would have in place.”

The decision of the Administrative Court

The Administrative Court rightly decided that it should follow the approach to reviewing the decision of the Tribunal that this Court adopted in ex parte A and cited at length those parts of the judgment of the Court delivered by Lord Woolf which described that approach. The Court went on to give the reasons that led it to quash the Tribunal’s decision. We can summarise these as follows:

i) The Tribunal erroneously applied the Osman test and asked whether the soldiers would be exposed to ‘a real and immediate risk to life’ whereas ex parte A required them to ask whether there was ‘a real possibility of risk’. This misdirection fundamentally flawed the Tribunal’s decision.

ii) It was not reasonably open to the Tribunal to find that the soldiers’ fears were not reasonable.

iii) The Tribunal should not have started from the proposition that the soldier witnesses’ evidence should be given in the Guildhall unless they showed compelling reasons for a different course. Once the risk of death was a serious or real possibility it was for the Tribunal to find some compelling justification for interfering with the soldiers’ Article 2 rights by making them give evidence in the Guildhall.

iv) The Tribunal had failed to weigh against the confidence in the Tribunal’s findings of the families and of the people in Northern Ireland the confidence in those findings of the soldier witnesses and of the people in the remainder of Great Britain.

Submissions as to the test of risk

For the Tribunal Mr Christopher Clarke Q.C. submitted that, whether under Article 2 or at common law, there was a single test of the threshold of risk that had to be passed before the requirement to give evidence at the Guildhall would infringe the soldiers’ rights. The Tribunal had correctly identified this as the test in Osman. In asking whether the risk was ‘real and immediate’, the ‘immediate’ could be disregarded as not relevant. The risk had to be ‘real’. One did not move straight up the scale from a risk that was ‘fanciful’ to a risk that was ‘real’. A ‘real’ risk was more substantial than a risk that was merely ‘not fanciful’.

Mr Clarke referred to a number of authorities which, so he submitted, used terminology that described a ‘real’ risk: Soering v United Kingdom (1989) 11 EHRR 439 at 468 and Chahal v United Kingdom (1996) 23 EHRR 413 at 456 – ‘substantial grounds for believing’ that one would be in danger or subjected to ill-treatment; Fernandez v Government of Singapore (1971) 1 WLR 987 at p. 994 - ‘a reasonable chance’, ‘substantial ground for thinking’, ‘a serious possibility’ per Lord Diplock; R v. Home Secretary, ex parte Sivakumaran [1988] 1 AC 958 at p.994 – ‘a reasonable degree of likelihood’. He submitted that there was no basis in the authorities for the test advanced by the Administrative Court of ‘a real possibility of risk’. That test, which had an element of tautology, was almost bound to be satisfied however remote the risk.

For the soldier witnesses, Mr David Lloyd Jones Q.C. submitted, with particular reference to paragraphs 20 and 26 of its ruling, that the Tribunal had based the test of the risk that engaged Article 2 entirely on Osman and that the Administrative Court had correctly found that this was a misdirection. It was not the soldiers’ submission, however, that any risk of attack would suffice to engage Article 2. There had to be a serious or real possibility that the soldier witnesses would be attacked.

Our conclusion on the test

In Fernandez, after adumbrating the various phrases which he considered expressed the same degree of likelihood of risk, Lord Diplock referred to the alternative of “applying, untrammelled by semantics, principles of common sense and humanity”. We believe that there is much to commend that approach in the present case. The search for a phrase which encapsulates a threshold of risk which engages Article 2 is a search for a chimaera. The phrases advanced by Mr Clarke were all taken from decisions involving contexts quite different from the present. These decisions provide no authoritative basis for adopting the phrases as a threshold test for Article 2 purposes. Of one thing we are quite 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 is well above the threshold that will engage Article 2 when the risk is attendant upon some action that an authority is contemplating putting into effect itself. It was not an appropriate test to invoke in the present context.

In ex parte A at p.1877 Lord Woolf said:

“…the right approach here, once it is accepted that the fears of the soldiers are based on reasonable grounds, should be to ask: is there any compelling justification for naming the soldiers, the evidence being that this would increase the risk?”

The reference to reasonable grounds was, as we understand it, to grounds that were objectively reasonable, but Lord Woolf had earlier commented at p.1876:

“From their point of view it is what they reasonably fear which is important, not the degree of risk which the Tribunal identifies.”

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.

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 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.

Subjective fears

Probably no single event in the history of the troubles in Northern Ireland within our lifetime has given rise to as much passion as Bloody Sunday. Soldiers who took part in that event, and in particular those soldiers who fired live rounds, will be aware that there are many in Northern Ireland, and especially in Londonderry, who believe that they were party to murder. They will be aware that, as the Tribunal stated in its Ruling, it is in the city of Londonderry that Bloody Sunday has had its most serious and lasting effect. They will be aware, if they come to Londonderry to give evidence, that they are potential targets for terrorists. They will be aware of recent terrorist incidents and they will be aware, from personal experience of service in Northern Ireland, of the problems involved in safeguarding terrorist targets. They will be aware of some of the steps being taken to safeguard them, but this awareness may fuel rather than allay their apprehension. As the Administrative Court observed, security arrangements on the way to and from the Guildhall and the need for uniformed armed personnel in the Guildhall when the evidence is being given are likely to be seen as a hostile and intimidating environment by middle aged witnesses, many of whom have been civilians for many years.

In these circumstances we think that it must be plain that if soldier witnesses have to go to Londonderry to give evidence, many will subjectively be in fear for their lives. The Administrative Court held, in paragraph 33, that “it was not reasonably open to the Tribunal to conclude that the soldiers’ fears were not reasonable” and that “the soldier witnesses’ fears for their own safety must properly be characterised as reasonable”. There was an issue as to the purport of these findings. Mr Clarke submitted that they were findings that the soldiers’ fears were subjectively reasonable, and on that premise he did not seriously seek to challenge the Court’s finding. Mr Lloyd Jones, however, submitted that the Court had found that, objectively, there were good reasons for the soldiers’ fears.

We believe that Mr Lloyd Jones was correct. In this passage of its judgment the Court remarked “The recent history of events in the province, including the attacks on barracks at Ballykelly and Ebrington demonstrate that, despite intensive security precautions, terrorist activities put soldiers’ lives at risk”. At the end of the day, however, this issue is unimportant. We must ourselves give anxious scrutiny to the evidence and form our own views as to the extent to which it demonstrates that there are grounds for fearing for the safety of the soldier witnesses if they go to Londonderry to give evidence.

Grounds for fears

In considering the evidence of risk to soldier witnesses we are following in the footsteps of the Tribunal. The Tribunal considered, among other matters, assessments of the threat to soldiers, including former soldiers, giving evidence to the Inquiry provided by the security service and by what was then called the Royal Ulster Constabulary (‘RUC’). The Tribunal was also supplied by the MoD with details of terrorist attacks in Northern Ireland. The Tribunal then, on 18 June 2001, convened a meeting of all the agencies who might be responsible for the security of potential witnesses in order to be informed of the security that would be provided for witnesses at the Guildhall and at possible alternative venues. Some of this evidence was, of course, highly confidential. A summary of the meeting was prepared, excluding confidential matter, which was provided to the parties. For the purpose of the hearing before the Administrative Court a quite heavily redacted transcript of the 18 June meeting was prepared, which was also made available to the parties. The Administrative Court took advantage, however, of the opportunity of reading, in secure circumstances, the full transcript of this meeting, and we have done the same.

We have referred at paragraph 23 above to the conclusions that the Tribunal based upon this evidence. Mr Lloyd Jones challenged these conclusions on essentially two grounds. First he submitted that in attempting a quantitative assessment of risk the Tribunal applied a threshold test that was too high, based on Osman. Secondly he submitted that the Tribunal had erred in concluding that the evidence established that this threshold would not be reached. It was his submission that the security agencies at the 18 June meeting did not make any quantitative assessment of the residual risk to the soldier witnesses that would remain once security precautions had been put in place. They simply gave an assurance that they would be able to provide the same level of precautions that they had provided to those taking part in sensitive court proceedings in the past. This was not the same thing. Mr Lloyd Jones’ submission received support from observations of the Administrative Court that “the security agencies were not asked whether there was a real possibility of risk” and that “the question of whether the necessary security could be maintained for 6 months or more was never resolved”.

Assessment of terrorist risk involves consideration of both threat and vulnerability. Threat is the likelihood that terrorists will seek to attack an individual. Vulnerability is the susceptibility of that individual to an attack. It will depend in part upon the precautionary measures that are in place to protect against attack. Threat and vulnerability are interrelated in that terrorists will be more likely to attempt an attack where the target is vulnerable.

Threat

On 9 April 2001 the RUC provided the Tribunal with the following threat assessment:

“This department is not in possession of any specific intelligence concerning a threat to the inquiry itself or witnesses attending it…. The emotive nature of the incident to which these proceedings relate will attract the attention of all interested parties including republican terrorist groups such as the Continuity IRA, Real IRA and the Provisional IRA.

The capability of dissident republicans to carry out attacks has increased significantly since the 1999 assessment. They have mounted attacks, which range from bombings to shootings and attempted murder. Intelligence indicates that dissident republicans intend to escalate their level of operations.

It is known that republican terrorist groups still continue to carry out targeting of security force personnel and establishments.

In recent months, members of loyalist terrorist groups have been carrying out attacks on persons/premises whom they perceive to be republican/nationalist. Whilst we do not hold specific intelligence that these groups pose a threat to the inquiry/witnesses, the unpredictable nature of rogue elements within loyalists terrorist groups and the possible threat of attack on any protesters around the Guildhall area should be borne in mind.”

The Security Service added this in a threat assessment supplied three days earlier, which focussed on the mainland:

“All soldiers are considered ‘legitimate’ targets by republican terrorists. In the case of soldiers and ex-soldiers involved in the events of Bloody Sunday we assess that their actions at that time would make them stand out from the generality of soldiers and make them more attractive targets, if a successful attack could be carried out.”

The level of threat to soldier witnesses is assessed by the RUC as ‘moderate’, which is towards the lower end of the scale.

Vulnerability

Republican dissidents have repeatedly demonstrated their capacity to carry out effective terrorist attacks in Northern Ireland, and in particular in Londonderry, where between February 2000 and June 2001 they were responsible for 12 major incidents. On 24 May 2001 Mr Byatt, the Head of the Bloody Sunday Inquiry Unit at the MoD wrote to the Inquiry a letter that included the following statement:

“Of overriding concern is the threat from dissident republican terrorists. In Londonderry there have been six major attacks against the security forces since last Christmas. The mortar round that was fired at the local Brigade Headquarters at Ebrington Barracks on 23 January penetrated the perimeter security and landed inside the base close to living accommodation. The round failed to detonate; had it not done so, serious loss of life would have been inevitable. There was a grenade attack against Strand Road RUC station on 21 April, and only last week a further attack against an Army installation in the centre of Londonderry. There can be no doubt as to the determination and capability of terrorists in the Londonderry area to attack and kill members of the security forces and those closely associated with them.”

Counsel on behalf of some of the families have submitted that evidence provided by the MoD is not objective and should not be relied upon. We can understand the suspicion from this quarter that the MoD is concerned to support the soldier witnesses, but particulars of the attacks that have taken place are hard fact and demonstrate the accuracy of this passage.

The fact remains that over the last 30 years there has not been an attack, whether successful or unsuccessful, on parties or witnesses to legal proceedings, although in the case of some criminal trials these might have been expected to be prime targets. Mr Clarke submitted that this demonstrated the capability of the security agencies to reduce the risk to witnesses attending trials to a level where the risk could no longer be described as ‘real’.

The Tribunal at paragraphs 24 and 25 took the same view. They said that they were satisfied on the basis of the security advice received that the security authorities in Northern Ireland could provide for soldiers giving evidence at the Guildhall a level of protection sufficient to avoid a real and immediate risk to life, applying the Osman test. It is time to look at the advice that was given at the 18 June meeting.

The 18 June meeting

We propose to refer to the passages in the redacted transcript that are of particular relevance.

Early on in the meeting Lord Saville discussed the vulnerability of the Guildhall as a venue with one of the military participants. The latter said that even with the best sort of co-ordination and planning there would be a significant vulnerability either to the witnesses, but more probably to those seeking to safeguard the witnesses. “When you plan a military operation you plan it on the basis that you always try to choose the ground that you are going to operate on…In this case we would be operating on the ground that the terrorist believes is his”.

Later, an officer of the RUC said that they would be successful in reducing the vulnerability at the Guildhall. “We have been doing it for a long number of years and we have mounted operations to deal with particular threats, large scale general threats, for a long period, and we have to say honestly that, yes, we would be capable to deal with it”. Asked whether the RUC could provide the sort of protection that they provided for people giving evidence in the courts in Northern Ireland, he said that with the current scenario and the current resources they could meet the commitment and probably continue to do so for the period of six months to a year.

Later the following exchange took place between Lord Saville and a senior RUC officer:

“RUC Officer I guarantee putting in that sort of effort, nobody can guarantee the outcome. We can certainly guarantee that the effort would be put in. Now in terms of reducing the risk through any risk reduction exercise, be it on the Mainland or be it in Northern Ireland, then that’s likely to be effective in reducing the risk, but it’s unlikely to eliminate the relative risk if you like. But the risk at the end of that reduction exercise is still going to be higher in Northern Ireland than it is on the Mainland.

Lord Saville Would it be the equivalent to the risk run by witnesses giving evidence in trials over in Northern Ireland over the last thirty years?

RUC Officer That’s a difficult and to be honest a different question. One that we didn’t discuss. I think one issue that would be of relevance is the length and duration of the evidence to be given.”

His colleague added that the question was not whether they could do it but whether it could be sustained given the time span that was involved.

These are incidents of the 18 June meeting that have not been blanked out from the redacted transcript. They indicate that the agencies concerned with security would be able to provide at the Guildhall the same level of security as has been provided at high profile criminal trials. In 30 years there has never been a terrorist attempt on a witness at a criminal trial. Are these facts enough to allay concern? In our judgment they are not.

There are two special features in this case which make risk assessment particularly difficult. The first is that soldiers who took part in events on Bloody Sunday may well present to some terrorists as uniquely attractive targets. The second is the unprecedented scale of the security problem. Between 200 and 400 soldier witnesses are to be called to give evidence. They will be travelling to court sequentially day after day for a period of between 6 months and a year. It will be impossible to keep secret the routes being used to take witnesses to and from the Guildhall, or, we suspect, the accommodation in which the witnesses will be lodged. There will only be limited scope for varying the times of travel to and from the court. All these factors raise very real concerns for the security of soldier witnesses should a determined attack be planned and launched on one or more of them. The most critical question seems to us the degree of likelihood of Republican dissidents deciding to launch such an attack. That is incapable of assessment. Certainly it cannot be dismissed as remote.

It is right that we should state, shortly and simply, that the effect of the un-redacted portions of the transcript of the 18 June meeting that we have read is to increase the concerns expressed above. We can summarise our conclusion by saying that there would be good cause for soldier witnesses called to give evidence at the Guildhall to have fears for their safety.

Risk at the alternative venue

It is common ground that if the soldier witnesses give evidence in London or at some other venue on the British mainland they will still be at risk to the extent that security precautions will have to be taken. It is also common ground, however, that the risk, after security precautions have been put in place, will be lower than it would be in Londonderry. The Security Service put the matter thus in their risk assessment of 6 April 2001:

“…if the hearings at which these soldiers and ex-soldiers appear are held on the mainland, the terrorist groups will be deprived of some of the ease of operation which they enjoy on their home ground in Northern Ireland and the Republic. In consequence, the generally more difficult operating conditions on the mainland are likely to give rise to the perception that a successful terrorist attack against individual targets of this type will be harder to achieve than equivalent attacks against similar targets in Northern Ireland.”

This perception would reduce the likelihood of an attack being attempted, so that both threat and vulnerability would be reduced.

The downside of a change of venue

No-one has suggested that changing the venue of the soldier witnesses’ evidence would reduce the likelihood of the Tribunal getting at the truth of what happened on Bloody Sunday, and that must be the primary object of the Inquiry. Nor would a change of venue prevent the families and others in Londonderry from seeing what transpires when the soldier witnesses give their evidence. Facilities would be put in place to enable any family members who wished and were able to do so to attend the hearing. There would be live video-linkage to Londonderry and, with modern technology, this could and should be achieved to a high technical standard. We understand that at the present some choose to watch proceedings via a video link in a family room in Londonderry and that, even in the Guildhall itself, there is a video link so remote is the witness stand.

The essence of the downside is the Tribunal’s finding that “the chance of this Inquiry restoring public confidence in general and that of the people most affected in particular …would 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” [emphasis ours]. This is no light matter. The time and the expense already devoted to this Inquiry is without precedent, and we would hesitate long before taking a step that would be likely to rob it of credibility. We also sympathise with the desire of the people of Londonderry and, in particular the families, for the whole of this Inquiry to take place in their city. In their shoes we would share their emotion. But in our judgement the risk posed in Londonderry to the soldier witnesses by dissident Republican terrorists does constitute a compelling reason why their evidence should be taken in a venue other than Londonderry. In these circumstances we do not see why, should we direct a change of venue for these witnesses, this should threaten the credibility of the Tribunal or confidence in their Inquiry. The fairness and objectivity of this Tribunal must by now be quite clear to all in Londonderry. Those in the Province must also be only too sadly aware of the potential for mayhem of those dissidents who oppose the peace process.

Conclusion

The Administrative Court was correct to conclude that the Tribunal’s Ruling on venue did not comply with the requirements of Article 2 and of fair procedure and that it should accordingly be quashed. The appeal will be dismissed. We are, however, a little puzzled by the basis upon which the Administrative Court remitted this matter to the Tribunal. Mr Lloyd Jones submitted that the terms of the Court’s judgment left the Tribunal no scope for any decision other than one that the soldier witnesses’ evidence should not be taken in Londonderry. We agree with this submission. Accordingly we intend to remit this matter to the Tribunal with a direction that the soldier witnesses’ evidence should not be taken in Londonderry. This will leave it to the Tribunal to decide where and how this evidence should be taken and how best to make use of video facilities.

Order: Appeal dismissed. No order as to costs.