High Court of Justice in Northern Ireland Queen's Bench Division Decisions

(a) Had the Inquiry Panel misdirected itself in law as to the correct test to be applied in the applicants' applications?

(b) Had the Inquiry Panel failed to discharge its duty of inquiry and/or failed to take relevant considerations into account by failing to seek or receive from the PSNI an individualised risk assessment in relation to each of the applicants?

(c) Had the Inquiry Panel reached it decisions in a procedurally unfair manner by failing to disclose to the applicants, in advance of its respective decisions, certain materials relied upon by the Panel?

(d) Had the Inquiry Panel misdirected itself in law and/or fact as to the meaning and effect of the reports published by the Independent Monitoring Commission?

Factual Background

"On 21 October 1998 three members of the Irish National Liberation Army, who were also serving prisoners at HMP The Maze, were convicted of the murder of Billy Wright. On 1 August 2001 the Governments of the United Kingdom and the Republic of Ireland reached an agreement at Weston Park in England. Among other matters both Governments agreed to appoint a judge of international standing to undertake `a thorough investigation of allegations of collusion (by the security forces) in the cases of the murders of' (a number of persons including Billy Wright). … Subsequently the Honourable Peter Cory, a retired judge of the Canadian Supreme Court, accepted this task and delivered reports on the six remaining cases on 7 October 2003. Her Majesty's Government published these reports on 1 April 2004 with some redaction of passages relating in particular to the names of those involved. On that occasion the then Secretary of State announced that the Inquiry into the death of Billy Wright would be established under the Prison Act (NI) 1953. On 8 July 2004 the Secretary of State made a statement on the governing principles for the Inquiry and on 16 November 2004 he announced the names of the Chairman and Panel members of the Inquiry and what the terms of reference would be. The Inquiry Panel consists of Lord MacLean, a Senator of the College of Justice in Scotland, 1990-2005, sitting with Professor Andrew Coyle and the Right Reverend John Oliver. At a preliminary hearing held in Belfast on 22 June 2005 Lord MacLean announced that he proposed to ask the Secretary of State to convert the Inquiry to an Inquiry under the Inquiries Act 2005 as the `list of issues requires examination of matters that go beyond the provisions of the Prison Act.' Such a request was formally made on 13 July 2005. The Secretary of State issued his decision to convert the Billy Wright Inquiry to an Inquiry under the 2005 Act on 23 November 2005."

That conversion decision was the subject of the challenge which Deeny J heard. He determined, inter alia, that the decision to convert the Inquiry into one under the 2005 legislation was unlawful. It is against that background that the ongoing proceedings were heard and the impugned decisions now under consideration determined.

The Applicants

The Inquiry Protocol on Anonymity of Witnesses

"2. As previously indicated in earlier Protocols, this is a public inquiry and, as far as possible, it will conduct its business in an open manner. Accordingly, as a general rule, all witness statements and other relevant documents to be considered by the Inquiry will be distributed to represented parties, referred to at the Inquiry's Public Hearing and thereafter published on the inquiry's website. Personal information other than that relating to the name and designation of a witness, such as private addresses, telephone numbers, contact details or other information that might identify where an individual resides, will never be disclosed and will always be redacted or removed from statements or documents.

…

4. Any witness who considers s/he should be granted anonymity must make a written application to the Inquiry for anonymity and set out in full their reasons in support of that claim. An application should also be supported by any relevant evidence in support e.g. medical evidence.

…

6. In considering applications for anonymity, the Panel will take account of all relevant matters, including;

(1) the principle of open justice;

(2) whether the applicant's name has already entered the public domain;

(3) the level of any risk to the applicant that may arise through his/her name entering the public domain;

(4) the rights of the witness;

(5) the applicant's involvement in the matters under investigation, and whether there is a public interest in his/her name being known or not being known;

(6) any person making an application for anonymity must also consider whether if s/he is called to give oral evidence, s/he should be permitted to give his/her evidence behind screens thereby disclosing his/her identity to the Inquiry Panel and legal representatives only. The use of screens can be an alternative to anonymity, in that although a person's name becomes known, his/her identity does not. The use of screens can also be additional to anonymity;

(7) any grant of anonymity will be subject to review by the Inquiry Panel throughout the Inquiry proceedings. The individual concerned will be notified and given the opportunity to make further representations should the proposal be to review anonymity that has previously been granted".

The Application of A

Applicant A sought both screening and anonymity. He informed the Inquiry that he was a Prison Officer, having been appointed as such in 1982. His application included the following:

"The applicant has experienced the general threat posed by terrorists to serving and former Prison Officers in Northern Ireland over the years. Depending on circumstances the intensity of the threat has varied from time to time, both generally and in relation to individuals, but it has never gone away. The need to be vigilant and to take precautions of one kind or another has been and still is, for him, a daily fact of life. The applicant lives in Northern Ireland and will continue to live in Northern Ireland after he has given his evidence. The future course of events in Northern Ireland is uncertain and the possibility of a return to widespread terrorist violence cannot be ruled out. 29 Prison Officers and one civilian member of staff have been killed by terrorists and countless more have been attacked and intimidated. Over the last four years alone, over 450 Prison Officers have had to move home on occasions when their security has been compromised. The prospect of such a step represents a considerable threat."

He went on to record the large number of homes of Prison Officers that have been attacked, and Prison Officers threatened. At paragraph 4 he stated:

"It is not possible to publicly disclose the individual reasons because they relate to the personal circumstances and experiences of the applicant. These reasons are set out in a separate sheet which is contained in a sealed envelope comprised in appendix A. He is only prepared to furnish these to the Inquiry provided they remain confidential and are only seen by the members of the Inquiry and its legal team".

"On the Loyalist side we are particularly concerned that the oral hearings of the Inquiry are likely to lead to heightened emotions among LVF members and sympathisers. If any NIO officials are criticised for actions or omissions that might be perceived as having contributed to Billy Wright's death, the risk to them of attack by the LVF or a sympathiser will in turn increase. Whilst the current status of the LVF is unclear, it remains a specified organisation."

The author of the letter went on to record that it was not uncommon for NIO members of staff to withhold even from close friends and family the fact that they worked for the NIO. They will generally say that they work for the Civil Service in order to give the impression that they work for the much larger Northern Ireland Court Service which carries none of the stigma or connotations of the NIO.

"As a consequence of the discovery of these documents 669 of our staff are admitted to the Key Persons Protection Scheme … a further 451 chose to move house under the Special Purchase of Evacuated Dwelling Scheme …"

The letter also made reference to the review headed by John Steele which resulted in the Government accepting that paramilitary affiliated prisoners could be held separately from each other in segregated wings and as a result of this a significant proportion of prison staff either have or will shortly be engaged in managing terrorist prisoners who, the letter alleges, because of their cohesion and political motivations pose a much greater risk than the same number of integrated high risk prisoners.

"As a result of our meeting at Dundonald on Monday 11 September 2006 and to clarify your questions, I can confirm that a threat risk analysis was conducted by Security Sub Branch of the PSNI.

This analysis assessed the level of threat to witnesses in the categories outlined below whilst giving evidence to the Inquiry as `moderate' … However I would point out that this is a generic assessment. It is not possible to predict the exact level of threat which may present itself when witnesses give evidence in public and their identities and the nature of that evidence enters the public domain."

"… The Inquiry has been advised by PSNI that the most significant factor likely to give rise to an increase in the present threat is the nature of the evidence to be given by the witness. Witness A is being called to speak principally to the collection of documents after HMP Maze closed and was not involved in any of the substantive issues which the Inquiry will address at its full hearings. It is not anticipated this witness will be required to testify at those hearings".

Mr Maguire asserted this to be a contentious statement which had not been revealed to the applicant and which he had not been afforded an opportunity to rebut.

"Criteria

9. The Inquiry being conducted by the Panel is a public inquiry and that there is an assumption that its proceedings should be conducted insofar as it is possible openly and in public. However, the panel also has a duty as a public body to act in a manner compatible with the European Convention of Human Rights (ECHR). So far as individual witnesses are concerned, due regard must be had to their rights under Articles 2 and 8 of the ECHR and to the Inquiry's obligation to treat witnesses fairly.

"16. Although it is recognised that anonymity, once lost, is lost for all time, and that there is a possibility that the nature of risk may change and in particular may increase, the Inquiry has been advised by PSNI that the most significant factor likely to give rise to an increase in the present threat is the nature of the evidence to be given by the witness. Witness B is being called to speak principally to the policy for destruction of documents devised for NIPS in 2003. She was not involved in any of the substantive issues that the Inquiry will address at its full hearings. It is not anticipated that the witness will be required to testify at those hearings.

17. The thrust of witness B's application is the threat posed to her and her family by virtue of the fact of her employment since 2004 with NIPS in the administrative post. The Threat Risk Assessment provided to the Panel states that there is a moderate risk to her safety by virtue of that employment. The supporting material for that assessment, however, states that Civil Servants would not normally attract the same level of threat as those more directly involved in the prison regime in Northern Ireland and that the current threat to Civil Servants is likely to be low. Nevertheless, witness B is not at present generally known to be a public servant associated with NIPS. Should she be required to give evidence at the Preliminary Hearing without some protection a risk to her by disclosure of her employment with NIPS would be created whereas, without identification it does not exist at present. The issue for the Panel in this case, therefore, is whether by requiring this witness to give evidence openly and without protection of identity, there is a serious possibility that any latent risk to her will become real.

18. On the basis of all the material we have considered, including the nature of the evidence that this witness will be expected to give at the Preliminary Hearing, the Panel are of the opinion, even considering that the risk to her is graded as low, that there is an objective risk for witness B's fears for the safety of herself or her family and that it is unfair to require her to give evidence without some protection of identity.

19. We consider, however in the circumstances of this case that those fears can be adequately alleviated by protecting her identity in allowing her to give evidence in circumstances where she will be fully screened from members of the public, including the family of the deceased and representatives of the media. We do not consider that the non disclosure of her name would alleviate to any extent any risk to her safety. Accordingly the application is granted to the extent that witness B will be allowed to give her evidence behind screens."

The Decision in C

"The issue for the Panel in this case, therefore is whether by requiring this witness to give evidence to the Inquiry openly and without protection of identity, there is a serious possibility that any present risk to him will be increased or heightened".

"It is clear that there is some risk. That is a risk which exists at present and will exist whether or not he was required to give evidence to the Inquiry. Disclosure of his involvement as a Civil Servant on the Web has had the effect that his anonymity as a Civil Servant has already been `lost'."

The Decision in K

"The thrust of witness K's application is the threat posed to him and his family by virtue of the fact of his employment with NIPS as a Prison Officer. It is clear from the Threat Risk Assessment provided to the Panel that there is a moderate risk to his safety by virtue of that employment. That risk exists at present and would exist whether or not he was required to give evidence to the Inquiry. The issue for the Panel in this case, therefore, is whether by requiring this witness to give evidence openly and without protection of identity, there will be an increased or heightened risk to him".

The same 5 criteria at paragraph 11 as in all the other cases were contained in K's decision.

The Decision in N

"Disclosure of his involvement as a Civil Servant associated with NIPS on the Web has had the effect that his anonymity has been 'lost'. This issue for the Panel in this case, therefore, is whether by requiring this witness to give evidence to the Inquiry openly and without protection of identity, there is a serious possibility that any present risk to him will be increased or heightened."

The same 5 criteria at paragraph 11 as in all the other cases were contained in N's decision.

The Applicants' Case

Misdirection as to the correct test

(1) The Panel had been in error and had applied the incorrect test of law in the quest to discover whether Article 2 of the ECHR was engaged in this case. Article 2 of the Convention, as relevant, 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."

"The issue for the Panel in this case, therefore, is whether by requiring this witness to give evidence openly and without protection of identity, there will be an increased or heightened risk to him."

Mr Maguire asserted that this was clearly contrary to the test outlined by the Court of Appeal in Northern Ireland in Re L. In the case of B, a different test had been applied at paragraph 17 namely:

"The issue for the Panel in this case, therefore, is whether by requiring this witness to give evidence openly and without protection of identity, there is a serious possibility that any latent risk to her will become real".

It was Mr Maguire's submission that this was yet a further variation on what the real test ought to be and served to conflate the common law principle of fairness with the obligation under Article 2 of the Convention. Counsel argued that only the purity of the test set out in Re L should be adopted.

Failure to carry out an Inquiry

"2. Alleged failure to protect right to live: failure in protective measures; adequate investigation (Art 2).

(a) The court recalls 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. This involves a primary duty on the State 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 punishment of breaches of such provisions. It also extends in appropriate circumstances to a positive obligation on the authorities to take preventive operational measures to protect an individual or individuals whose life is at risk from the criminal acts of another.

(b) … The scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Not every reclaimed risk to life therefore can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate threat 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."

(2) Relying on that proposition, Mr Maguire submitted that in this case once the threshold risk had been found the Inquiry was obliged to take reasonable steps to inquire into the risk when confronted with it. It was his submission that no such steps had been taken in this case.

The Meaning and Effect of the Independent Monitoring Commission Reports

(3) Counsel submitted that on assessing the risk to the applicants from paramilitary organisations, the Panel took into account certain reports of the Independent Monitoring Commission (IMC). He submitted that the 11^th report had been summarised in a way that did not accurately reflect the full nature of the threat which still exists in relation to Prison Service staff. He instanced this with reference to paragraph 3.4 of Chapter 3 of the 11^th report which noted that IMC's assessment of the military threat was dealt with "only in so far as it bears directly on the implementation of the security normalization programme". The IMC continues that the assessment made in that report therefore "is necessarily narrower than it is in the reports (it makes) on paramilitary activity as a whole". Mr Maguire argued that heavy reliance on this report as a means of determining the threats to Prison Service staff was clearly misplaced.

"The Panel has studied that report (the 12^th) and considers that it does not contain any information which might give them cause to reconsider the decision they have reached".

Procedure unfairness

"A proper hearing must always include `a fair opportunity to those who are parties for correcting or contradicting anything prejudicial to their view'."

Was there a misdirection in law?

The Failure to Carry out an Individual Threat Assessment

Failure to Disclose Materials to the Applicants

Conclusion

(i) Although I have been informed that the approach adopted by the Northern Ireland Court of Appeal in Re L is the subject of an appeal to the House of Lords to be heard in May 2007, the doctrine of precedent applies. This court is bound by the result and decisive reasoning in the Court of Appeal in Northern Ireland in Re L. Whilst I recognise that in judicial review the law is evolving and contextual so that much depends on the particular facts of the case, nonetheless I am satisfied that the reasoning in Re L should govern my approach in this case. Accordingly the indispensable first step in the quest to discover whether Article 2 was engaged in this case was for the Panel to address the question whether there is a risk to life. In my view the Panel did not do this.In all cases except that of B not only did they express the query in terms of whether there were subjective fears that were objectively justified, but the matter was also visited in terms of an increased risk implying that the existing threat could not play a part in the assessment and that a risk of a greater order or magnitude of a different character was needed to engage Article 2. In my view this approach runs contrary to the reasoning in Re L. The issue should have been dealt with by posing the simple question "will there be a real risk to the life of the applicant if he/she is required to give evidence under his/her own name and unscreened" Simple forms often provide the ideal lexicon and this is a sound example of this principle. Insofar as applicant B's request was met by the Panel asking whether there was a serious possibility that any latent risk to her would become real, I consider that constitutes a forbidden variation on the simple question that needs to be addressed namely whether there is a risk to life irrespective of whether there is any pre-existing latent risk or not. I recognise that the Panel did not have the advantage of the decision in Re L at the time that it made its decisions. I venture to suggest that had that decision been before it, the approach adopted would have been a different one.

(ii) I am not persuaded, despite Mr Larkin's eloquence, that the ratio decidendi in Begum's case relegates the approach of the Panel to a mere matter of procedural propriety in circumstances where in substance the test of real and immediate threat to life was dealt with by the Panel. I distinguish this instant case from Begum's case for two reasons:

(a) The issue being dealt with by the Panel in this instance was a matter of substance. It was seeking to determine whether Article 2 was engaged if the threshold criteria were passed. The question which they failed to ask in my view was neither a procedural matter nor a method of arriving at the right question. It was a substantive ruling of law about the threshold test. I respectfully borrow again the approach adopted by Lord Bingham of Cornhill in Begum's case at paragraph 68 where he said:

"In domestic judicial review, the court is usually concerned with whether the decision-maker reached his decision in the right way rather than whether he got what the court might think to be the right answer. But Article 9 is concerned with the substance, not procedure. It confers no right to have a decision made in any particular way. What matters is the result: was the right to manifest a religious belief restricted in a way which is not justified under article 9.2? The fact that the decision-maker is allowed an area of judgment in imposing requirements which may have the effect of restricting the right does not entitle a court to say that a justifiable and proportionate restriction should be struck down because the decision-maker did not approach the question in the structured way in which a judge might have done."

The Panel was not dealing merely with the way the decision was to be made. On the contrary it was dealing with the substantive decision itself In my view it fell into error in the result it reached because it failed to appreciate the decision it was being called upon to make .

(b) No question of proportionality arises in this case and, unlike the situation in Begum's case, the Panel was dealing with the unqualified right of Article 2. Moreover it should be borne in mind that the Panel was making a judicial decision which does perhaps require a somewhat more structured approach than was necessary in the case of laypersons in Begum's case.

(i) The failure to carry out or procure an individual threat assessment.

In this context it is important to remind the parties of the role of judicial review. The courts have invented the remedies of judicial review not to provide an appeal machinery but to ensure that the decision-maker does not exceed or abuse his powers. Only if the decisions given by the decision-maker disclose illegality, irrationality or procedural impropriety can the decision be open to judicial review. An applicant for judicial review must show more than a mistake on the part of the decision-maker or his advisers. Where a decision is made in good faith following a proper procedure and as a result of conscientious consideration, an applicant for judicial review is not entitled to relief save on the grounds established in Wednesbury (see Lord Templeman in Regina v ITC ex parte TSW Broadcasting Limited [1994] 2 LRC 414 at 424).

The issue here is whether or not the Panel ought to have obtained personalised risk assessments in relation to each individual applying for anonymity or screening. The case made by the applicants is that the police were not presented with the applicants' application including all of the relevant personal circumstances on which he or she relied and they were not asked to give a predictive judgment expressly related to each applicant's case. In essence the case made on behalf of the applicants is that the decisions were based on a generic assessment by reference to categories into which the witnesses might fall. In an affidavit made by Mr Palin, Solicitor to the Inquiry, dated 7 December 2006 he said at paragraph 8:

"A specific threat risk analysis in respect of the applicants was not sought from the PSNI as none of the applicants in their application had made any suggestion that they were subject to any specific threat or risk. The nature of their application was that a risk or threat existed solely by virtue of their employment with NIPS. In other cases, where witnesses who sought anonymity or screening have specifically raised the question of a threat or risk to them, a specific threat risk analysis was requested from the PSNI by the Inquiry."

Mr Maguire had argued that at least in the case of witness A, a specific threat in the past which meant that he was never assigned to an LVF wing had been made.

Whilst a plausible argument has been raised by Mr Maguire that the rudimentary step of informing the police of the names of the applicants, their functions and/or where they lived might have been a step that the Panel could have considered, nonetheless I am not persuaded that the generous ambit of discretion which must be vested in the fact finding and decision-making body has been exercised in this instance in such an irrational or unreasonable manner so as to invoke the Wednesbury principle. It would seem obvious that if there was some specific risk, the applicants would have been aware of it and were therefore in a position to draw the attention of the Panel to it in the circumstances where they were afforded the opportunity to so do.Thereafter the PSNI could have been requested to assess the specific risk. Indeed Mr Larkin made the point that in the case of A he had specifically indicated that certain confidential papers upon which he relied were for the eyes of the Inquiry only and thus specifically removed the possibility of independent scrutiny by outside bodies of his claim .In the event therefore no specific risk surfaced from any of the applicants which the Panel was called upon to furnish ot the police . This factually distinguishes the case from Norfolk's case. Had I been required to determine the case on this basis therefore I would have refused the relief sought.

Failure to Disclose Materials to the Applicants

(ii) Insofar as the Panel received materials which were taken into account by it in its anonymity and screening decisions but were not provided to the applicants, either by way of documentation themselves or the gist thereof (see paragraphs 10 and 11 of the judgment), the Panel risks offending he principle of procedural fairness. In the context of the court refusing a remedy if it is established that an irregularity makes no difference to the outcome of the process, Bingham LJ (as he then was) set out certain comments which I consider relevant to this case in an article headed `Should Public Law Remedies be Discretionary' (1999 PL64 at 72) –

"(1) Unless the subject of the decision has had an opportunity to put his case, it may not be easy to know what case he could have or would have put if he had had the chance.

(2) As memorably pointed out by Megarry J in John v Ross [1970] Ch 345 at 402 experience shows that that which is confidently expected is by no means always that which happens.

(3) It is generally desirable that the decision-maker should be reasonably receptive to argument and it would therefore be unfortunate if the complainant's position became weaker as the decision-maker's mind became more closed.

(4) In considering whether the complainant's representations would have made any difference to the outcome, the court may unconsciously stray from its proper province of reviewing the propriety of the decision-making process into the forbidden territory of evaluating the substantial merits of the decision.

(5) This is a field in which appearances are generally thought to matter.

(6) Where a decision-maker is under a duty to act fairly the subject of the decision may properly be said to have a right to be heard, and rights are not to be lightly denied."