Court of Appeal in Northern Ireland Decisions

Factual background

"To inquire into the death of Robert Hamill with a view to determining whether any wrongful act or omission by or within the Royal Ulster Constabulary facilitated his death or obstructed the investigation of it, or whether attempts were made to do so; whether any such act or omission was intentional or negligent; whether the investigation of his death was carried out with due diligence; and to make recommendations."

"PSNI is not aware of any information at this time which would indicate a specific threat to the Robert Hamill Inquiry or to those witnesses connected to it"

•    An account of the role of each witness in relation to the incident in which Mr Hamill had been killed, including the extent to which they had been referred to by other witnesses;

•    Documents such as police statements and transcripts of evidence of witnesses given at the trial of a man called Hobson who had been charged in relation to the killing;

•    Individual risk assessments where these were available;

•    Medical reports where relevant;

•    Other materials touching on the question whether the identity of individual witnesses was already in the public domain in relation to the killing of Mr Hamill;

•    The index of the oral evidence given publicly at the Hobson trial by a number of witnesses under their own names with extracts of illustrative passages of their testimony;

•    Documents which formed part of the Inquiry materials and which demonstrated that some of the applicants for anonymity had acted in connection with the Robert Hamill investigation using their own names;

•    Documents from the British Irish Rights Watch in which that organisation demonstrated how it was possible to name many of the witnesses connected with the Inquiry by reference to their role as described in the Cory Report, although in that report they had been referred to by letter.

The Inquiry's ruling

"Article 2 ECHR

I (a). The evidence from the PSNI in relation to the assessment of risk was that all police officers and former police officers and their families in Northern Ireland are at some risk of death or injury from attacks upon them by paramilitaries, whether republican or loyalist, and that in the Portadown and Armagh areas there has been an enhancement of those risks arising out of the death of Rosemary Nelson. No evidence was adduced in contradiction of this, however, it is acknowledged that views may differ in this regard. On the basis of the evidence, which we accept, the following question arises: is that risk materially increased in the case of an officer or former officer or his or her family if he or she is required to give evidence to the Inquiry either because he or she (i) is named in public or (ii) is able to be seen by the public when entering the Inquiry chamber and giving evidence or (iii) by a combination of these?

(b). So far as those witnesses are concerned who are not and never have been police officers and who are referred to in Counsel to the Inquiry's fourth group of witnesses the question of the risks to which all serving and former police officers in Northern Ireland are subject does not come into play. The question becomes for them: is there in the case of a witness or members of his or her family any real risk to life or limb if he or she is required to give evidence to the Robert Hamill Inquiry either because he or she (i) is named in public or (ii) is able to be seen by the public when entering the Inquiry chamber and giving evidence or (iii) by a combination of these?

II. If the answer to any parts of the question set out at I (a) or (b) above is 'yes' then, depending on the answers to the three parts of the question, the applicant should be allowed to give evidence without being named and/or behind a screen.

III. If the answer to all parts of the question set out at I(a) or (b) above is 'no' then, in so far as the application is based on Article 2 it must fail. The application must then be considered at common law."

"(i) Are we helped … by the conclusions reached in the Bloody Sunday judicial reviews as a result of applying the relevant legal principles to the facts of those cases?

(ii) The present situation in Northern Ireland.

(iii) The significance of the risk assessments with which we have been provided.

(iii) The reports of the International Monitoring Commission.

(iv) Recent terrorist activity in Northern Ireland.

(v) The stance of the PSNI in relation to these applications.

(vi) The extent of the publicity given in the media to the Robert Hamill case at the time of his death and in the years since and the extent of the publicity given to calls made for a public inquiry and to the Robert Hamill Inquiry once it was set up towards the end of 2004.

(vii) Whether condemnatory attitudes towards the police have grown stronger as a result of or since the setting up of this Inquiry and the attendant publicity and interest it has generated.

(viii) Has the public perception of the police involvement in the investigations which followed Robert Hamill's death which was formed before this Inquiry was set up been altered for the worse by the use of the word "collusion" in the Cory Report, to which many of the witnesses have referred mistakenly as being included in our terms of reference?

(ix) The extent to which the names of the applicants are already in the public domain.

(x) Whether it is relevant that no harm has been suffered by any of the applicants arising out of their involvement in the Robert Hamill case.

(xi) If terrorists had wished or wish to target those who were part of the Portadown police force in 1997 would they have had or have any difficulty in identifying and locating them, regardless of whether or not witnesses give evidence unnamed and screened?

(xii) The facts that, save for one officer, no other officers or former officers have claimed anonymity and that although consideration was given to making an application for anonymity at the Hobson trial it was not pursued.

(xiii) The extent to which the names of police officers giving evidence in criminal proceedings are reported by the media."

"Common Law

IV(a) In the case of a serving or former police officer - does the applicant have a fear that, if he or she has to give evidence (i) as a named witness or (ii) without being screened or (iii) both as a named and unscreened witness, the general risk referred to in question I above will be materially increased?

(b). Does an applicant referred to in the fourth group have a fear that, if he or she is required to give evidence (i) as a named witness or (ii) without being screened or (iii) both as a named and unscreened witness, there will be a risk to life or limb of him or her or to the members of his or her family?

V. In answering question IV above it will be material, but not necessarily decisive, to take account of the fact that question I has been answered in the negative as being relevant to answering the question IV. We remind ourselves, though, of a passage from Lord Woolf's judgment in ex parte A set out on page 8 of Mr O'Hare's second submission:

"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, however, have much more significance if they are objectively justified."

VI. If the answer to question IV is 'no' then the application fails.

VII. If the answer to the question IV is 'yes' there has to be a balancing exercise and the applicant's fear has to be considered along with the following factors in order to determine whether the interest of justice and fairness to the applicant require that he or she should remain anonymous or be screened or both:

(i) the seriousness of the applicant's fear and its impact on him or her;

(ii) the reason for the applicant's fear;

(iii) the likely effect of granting anonymity in removing or reducing that fear;

(iv) the effect on the public's perception of the impartiality of the Inquiry, having regard to the factors which led to the Minister's decision to hold a public inquiry and to its terms of reference;

(v) the likely effect on the applicant of refusing his or her application in whole or in part;

(vi) the likely effect on the Inquiry's ability to arrive at the truth if it refuses or grants the application in whole or in part;

(vii) the likely effect on the ability of the public to follow the evidence if the Panel refuses or grants the application in whole or in part;

(viii) the fact that the answer to question I above was 'no'."

Morgan J's judgment

"[31] In my view these authorities make it plain that the Tribunal should first have established the nature of the subjective fears of the applicants. It should then have asked in respect of each of the applicants whether there was objective evidence that the requirement that they give evidence named and unscreened gave rise to any increased risk to life. If the answer to that question was no it is in my view clear that article 2 would neither have been engaged nor breached. In those circumstances the common law rights of the applicants would have fallen to be considered. If, however, there was any objective evidence of an increased risk to life in any case it would have been necessary for the Tribunal to carry out the balancing exercise which was set out by the Court of Appeal in the Widgery soldiers' case and which has been approved both in this jurisdiction and in England and Wales. It is not possible to avoid this obligation by the assertion of a threshold risk to life below which article 2 will not be engaged. As the court said in Meehan the principal task for the Tribunal was to establish whether article 2 would be breached rather than devising tests as to whether the article was engaged. The obligation on the Tribunal to carry out the balancing exercise where there is objective justification of any increased risk to life properly reflects the fundamental nature of the right to life in the convention. In this case I find that the Tribunal has not reached any determination in respect of each applicant as to whether there was any objective justification for the fears which each of these applicants has expressed. It has avoided doing so by asking itself whether the giving of evidence unscreened and named would materially increase the risk to life in respect of each of the applicants. Accordingly I consider that the Tribunal's approach to the article 2 issue in this case was flawed and that its decision should be quashed. In those circumstances the issue as to irrationality does not arise but I should make it clear that the evaluation of the evidence is very much a matter for the Tribunal."

The arguments on the appeal

"We are not persuaded that for [Officer L] to give evidence named and unscreened would add materially to the general risk from terrorism which she faces, along with other police officers in Northern Ireland."

Subjective fears/objective justification

"… in our judgment 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?"

"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."

"If the measures 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 others' procedural Article 2 rights."

"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."

A balancing exercise?

The panel's approach

Is it necessary that the risk be increased?

The use of the expression 'material increase'

"In the challenged ruling of 3 August 2006 the test recognises the general risk to which all police officers and former police officers are subject and asks whether "that risk is materially increased in the case of an officer or former officer or his or her family if he or she is required to give evidence to the Inquiry". The context strongly supports the view that the word "materially" is inserted to establish some form of threshold in relation to risk. I have also considered the approach of the Tribunal to the individual cases within the ruling. By way of example the approach in relation to officer L sets out a number of competing factors. In its conclusion the panel stated that it was not persuaded that giving evidence named and unscreened would add materially to the general risk from terrorism which the officer faces. Given the context of the preceding discussion in relation to that officer I consider that it is at the very least unclear that this is an indication that the Tribunal concluded that there was no added risk. I conclude, therefore, that the word "materially" is inserted to establish some form of threshold and that the threshold is lower than the "real and immediate risk" test set out in Osman v United Kingdom."

Did the panel's approach require the respondents to discharge an onus of proof?

"We are not persuaded that for [Officer L] to give evidence named and unscreened would add materially to the general risk from terrorism which [Officer L] faces, along with other police officers in Northern Ireland."

"There is no question of an applicant having to prove that the risk would materialise absent anonymity and this has not been suggested."

Conclusions