Court of Appeal in Northern Ireland Decisions

Neutral Citation no. [2002] NICA 25(3)

Ref:    

HIGF3703

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

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HIGGINS J

I have had the advantage of reading in draft the judgments of Nicholson LJ and Girvan J.  Since I am in agreement with their analysis of the substantive legal issues and with the conclusions that they have reached on this appeal I need only add a few words of my own.

When Parliament decides on a motion of the Prime Minister that the executive actions of it servants and agents be subjected to an inquiry, it is only proper that such an inquiry be conducted in public and in an open manner. Section 2 of the Tribunal of Inquiries Act 1921 permits of an exception.  This provides that  where in the opinion of the Tribunal it is in the public interest expedient to do so it may refuse to allow the public or a section of the public to be present.  Otherwise a departure from the convention in which inquiries are conducted in public and are open fully to all, can only be justified in very exceptional circumstances.  There can be no doubt as to the genuineness of the concern expressed by the applicant and those wounded and by the families of those killed and wounded in Londonderry on 30 January 1972 about the effect that the screening of police witnesses will have on the conduct of the Inquiry.  They feel intensely that this will compromise the openness of the Inquiry and will inhibit the quest for truth on which the Inquiry is embarked.  This concern must be acknowledged and closely considered in any evaluation of the propriety of the Tribunal's decision to allow the police officers to be screened, not least because of the universally accepted proposition that a vital dimension to the Tribunal's work is the winning and maintenance of public confidence in its procedures.  While a Tribunal so established is the master of its own procedure it is nonetheless open to judicial review.  However the powers of a court either at first instance or on appeal are limited to reviewing the legality, rationality or procedure employed by a Tribunal in its decision-making process.  In this appeal the decision which the applicant seeks to quash is a decision that the police witnesses due to give evidence before the Tribunal should be screened from view by all save the members of the Tribunal and the qualified lawyers representing those concerned in the issue before the Tribunal namely the killing and wounding of civilians in Londonderry on 30 January 1972.  The applicant is the sister of one of the civilians killed on that date and it is alleged that explosive devices were found in his pockets some time after he was killed.

The application by the police witnesses to be screened from public when giving evidence was made a short time before the police witnesses were due to give evidence.  The bona fides of police witnesses in making that application occupied much of the hearing before this court.  The other substantive issue related to the legal test to be applied when a person raises an issue that his right to life is threatened by executive action of a public authority.  This latter issue was the subject of a decision in the Court of Appeal in England and Wales on an application by soldiers due to give evidence to the Inquiry, that their evidence be heard by the Inquiry otherwise than in Londonderry, where the Tribunal has sat since the Inquiry began – see Lord Saville of Newdigate and Others v Widgery Soldiers and Others 2001 EWCA 2048.  According to the Court of Appeal in England and Wales the test to be applied is that set out at paragraphs 30 and 31 of the judgment. It states -      

"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."

I am satisfied that is the correct test and was the test applied by the Tribunal in arriving at its decision.  Thus for me the question as to when this Court should depart from a decision of the Court of Appeal in England and Wales does not arise.  There was ample evidence before the Tribunal in the form of the police witnesses statements as to their fears and the two intelligence assessments for the Tribunal to conclude that the fears expressed by the police witnesses were real and genuine and that there was objective evidence to support them.

The views of the families, however genuine and strongly felt, must be weighed against the threat to the safety of the police officers if they are required to give evidence without screens and the perception of the police officers in relation to the assessed threat.  One may perhaps approach the issue of the police officers' perception of the threat to them by posing the question: what was the reaction of a police officer likely to be when confronted with information that PIRA was continuing to gather information about the movements of officers; that elements of PIRA were in contact with dissident republicans who are not on ceasefire; that police officers who gave evidence to the Inquiry were considered to be at greater risk than soldiers who have been permitted to give their evidence anonymously in Great Britain and that their personal details including their appearance would be "much sought after"?  Viewed thus it is impossible to escape the conclusion that any police officer due to give evidence would be extremely concerned for his safety.

To the question whether the fears can be said to be objectively justified an equally ready answer may be given.  The risk assessment reports provide such justification.  No inquiry is required to establish that those reports fully justify the expressed fears of the police officers.  The appellant's argument on this point appeared to suggest that the Tribunal was bound to inquire into the basis on which the reports were made but, in my opinion, this misconstrues the test laid down by the Court of Appeal in the venue case.  It enjoined the Tribunal to consider whether the fears were genuine, not whether the material that prompted the fears was authentic and verifiable.

Once it is accepted that the fears expressed by the police officers are genuine and objectively justified, the third limb of the test is easily disposed of in the present case.  If the police officers' Article 2 rights are engaged, the Tribunal is obliged to take sufficient precautions to protect their lives.  The police officers' Article 2 rights are engaged here.  The screening of the witnesses will make it more difficult for them to be identified.  Once that position is accepted the procedural rights of the public or a section of it, to see the police witnesses give their evidence before the Tribunal, must give way to the substantive rights of the police witnesses under Article 2 of the ECHR.  It appears to me that the Tribunal had no option but to permit them to be screened.

If the Tribunal, in order to protect the police officers' Article 2 rights, is obliged to take "sufficient precautions" to protect their lives, it is not easy to see how it can carry out any meaningful "balancing of the alleviation of the fears against the adverse consequences of the measures".  Be that as it may, I agree that the interests of the families, however, important and authentic, cannot displace the Convention rights of the police officers. 

No argument put before the Court persuades me that the Tribunal should have made an exception in its ruling for the wounded and the families of the killed and wounded. Thus in applying the test set out in paragraph 31 the Tribunal did not act illegally nor was its decision to screen the officers from the public or a section of it irrational or procedurally incorrect. This will be little comfort for the applicant, the wounded and the other families who have waited a long time and patiently for the truth about the events of 30 January 1972 to emerge and whose conduct throughout the Inquiry has been beyond reproach, but on the contrary the subject of much praise by everyone concerned with the Inquiry. While the police witnesses willed be screened from public view they will be heard by all and seen by the members of the Tribunal and the lawyers representing the applicant and the other interested parties. Such a procedure compromises the open and public nature of Tribunal hearings it does not destroy it. None of the arguments which have been presented to this Court have persuaded me that the ruling of the Tribunal was unlawful, erroneous or procedurally incorrect. I agree with the conclusion of Kerr J in the court below that the ruling on the screening of the police witnesses was one which, in the special circumstances before it, the Tribunal was entitled to reach. I therefore dismiss the appeal for the reasons stated.  The Tribunal ruled that the police witnesses should be screened from all but the qualified lawyers representing those concerned.  That ruling was consistent with an earlier ruling to which no objection was taken.  I agree with the view expressed by Kerr J that whether the ruling should include or exclude non-qualified lawyers engaged on behalf of some of those concerned is an issue for the Tribunal and not for this Court.  I too would dismiss the appeal.


 
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

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J U D G M E N T O F HIGGINS J  ________