IN THE HIGH COURT OF JUSTICE CO/0358/99
QUEEN’S BENCH DIVISION
Royal Courts of Justice
Tuesday, 16th March 1999
B e f o r e:
LORD JUSTICE KENNEDY
MR JUSTICE OWEN
MR JUSTICE BLOFELD
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R E G I N A
LORD SAVILLE OF NEWDIGATE, THE RT HON SIR EDWARD,
THE HON MR JUSTICE HOYT
(THE MEMBERS OF THE TRIBUNAL SITTING AS THE BLOODY SUNDAY INQUIRY)
EX PARTE ‘B’, ‘O’, ‘U’ & ‘V’
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Computer-Aided Transcript of the Stenograph notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 831 3183
Official Shorthand Writers to the Court)
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MR EDWIN GLASGOW QC, MR DAVID LLOYD JONES & MR MICHAEL BOOLS (Instructed by the Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Applicants; and instructed by Jacqueline Duff Solicitors, Lynnholm, Thropton, Northumberland NE65 7JE for Soldier ‘H’.
MR CHRISTOPHER CLARKE QC, MR ALAN ROXBURGH & JACOB GRIERSON
(Instructed by Philip Ridd, Solicitor to the Inquiry, London EC3V 9JB) appeared on behalf of the Respondents.
MR I BURNETT QC (Instructed by the Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Ministry of Defence as an interested party.
LORD GIFFORD QC & MR MARTIN WYNN-JONES (Instructed by BM Birnberg & Co., London NW1 7HG, London Agents for McCartney & Casey, Derry, Northern Ireland BT48 6HG) appeared, on behalf of the late James Wray, as an interested party.
MR MICHAEL LAVERY QC & MR SEAMUS TREACY (Instructed by BM Birnberg & Co., London NW1 7HG, London Agents for Madden & Finucane, Belfast BT1 1HE) appeared, on behalf of some of the families, as interested parties.
MR JOHN COYLE (Instructed by BM Birnberg & Co., London NW1 7HG, London Agents for Desmond J Doherty & Co., Derry, Northern Ireland BT4A 6HG) appeared, on behalf of McGuigan, as an interested party.
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J U D G M E N T
(As approved by the Court)
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Tuesday, 16th March 1999
LORD JUSTICE KENNEDY:
1. This is an application for Judicial Review of the decision of the Bloody Sunday Inquiry taken on 14th December 1998 in relation to applications for anonymity made on behalf of certain individuals who were on 30th January 1972 soldiers serving in the city of Londonderry, and who on that day fired live ammunition. The Inquiry is still at an early stage. Solicitors acting on behalf of the Inquiry have yet to interview and take statements from the applicants, after which the statements will be circulated and some at least of the applicants may be called to give evidence, as they did in 1972 before the Tribunal of Lord Widgery C.J. Before that Tribunal, and in its report, steps were taken to ensure that the applicants remained anonymous, and in particular their names were not used. They were referred to only by a letter of the alphabet, hence the five letters used for the purposes of this application.
Before us a preliminary point was taken by Mr Lavery QC, supported by Lord Gifford QC and Mr Coyle, as to the jurisdiction of this Court to review a decision of an Inquiry which has been set up to investigate an event in Northern Ireland, and which is expected to hold most of its public hearings there. If there is to be any judicial review Mr Lavery contended that it should by the High Court sitting in Belfast, which has already accepted jurisdiction in relation to at least one other matter.
Having heard submissions from the three advocates, who represent between them many, if not all, of the families of those who were killed or injured on Bloody Sunday, and having also heard from Mr Glasgow QC on behalf of the applicants before us, we were satisfied that we have jurisdiction to entertain this application, and we so ruled. We give our reasons for that ruling later in this judgment.
3. Issues before us.
Mr Glasgow, supported by Mr Burnett QC, instructed by the Ministry of Defence on behalf of soldiers in the same position as the applicants but not yet identified, made a number of submissions which can be briefly identified as follows:
(1) The Inquiry misunderstood the nature of the anonymity granted to the applicants by Lord Widgery.
(2) Having set out in a public statement what the applicants would have to establish in order to be granted anonymity, and having given a clear indication as to the extent of the anonymity which would be granted to the applicants if they satisfied the test, the Inquiry acted quite differently when it came to give its decision.
(3) Before giving its decision the Inquiry rightly sought assistance from the Security Service as to the extent to which the applicants would be in jeopardy if identified, and the Security Service produced a threat assessment which, the applicants contend, the Inquiry misunderstood.
(4) When giving its decision the Inquiry placed undue weight upon what it described as the absence of “concrete evidence of a specific threat”. In fact it had never previously suggested that it required such evidence. For obvious reasons very little if any of that type of evidence was likely to be available to the applicants, and such evidence of that type as the Inquiry had it undervalued.
(5) Having found that the applicants satisfied the Inquiry’s own test, and so were entitled to some protection, the Inquiry, by requiring disclosure of surnames only, adopted a position for which no one had argued, and in relation to which there was no evidence of the risks involved.
(6) The Inquiry’s ruling, which should have been informed by Article 2 of the European Convention on Human Rights, does not sufficiently recognise its potential impact upon the lives of the applicants.
(7) Just before the Inquiry gave its ruling it received a letter from Desmond J. Doherty and Co. The applicants contend that the letter itself and their comments upon it were not properly taken into consideration by the Inquiry in reaching its decision, and indeed that the procedure adopted by the Inquiry just before its ruling was made public indicates a lack of procedural propriety which, given the seriousness of the issues involved, was entirely inappropriate.
(8) Finally it is contended that the ruling, which was made before many of those most affected had been identified by the Inquiry, was premature.
The order in which we have set out the submissions is not quite the same as that adopted by those who made submissions to us, but our summary does we believe cover the principal points which were made.
4. The Widgery Assurance.
As Mr Clarke QC, for the Inquiry, pointed out, Sunday 30th January 1972 in Londonderry was a tragic day. British soldiers who were present in the city in large numbers fired 108 rounds of live ammunition. Thirteen civilians were killed and another thirteen were injured, most if not all of them being shot by soldiers. In the minds of many people what happened that day was an outrage, and the dead were simply murdered. The government of the day acted swiftly, and Lord Widgery was appointed to conduct a tribunal of inquiry. It was an inquiry to which the provisions of the Tribunals of Inquiry (Evidence) Act 1921 applied, as they apply to the present Inquiry, and, as Lord Gifford urged upon us, it is worth taking a little time to look at the nature and powers of such tribunals.
As is clear from section 1(1) of the Act, such tribunals are only established by resolution of both Houses of Parliament “that it is expedient that a tribunal be established for enquiring into a definite matter described in the resolution as of urgent public importance.” The expectation clearly is that such tribunals will normally sit in public because section 2(a) of the Act states that a tribunal to which the Act applies –
“Shall not refuse to allow the public or any portion of the public to be present at any of the proceedings of the Tribunal unless in the opinion of the Tribunal it is in the public interest expedient to do so for reasons connected with the subject matter of the inquiry or the nature of the evidence to be given.”
In order to discharge its functions a tribunal of inquiry is given very wide powers, as is clear from section 1(2) of the Act. If any one summoned as a witness fails to attend, or having attended fails to answer any questions to which the tribunal may legally require an answer, he can be punished as if guilty of contempt of court. There is therefore considerable pressure on any one regarded by a tribunal as a potential witness to co-operate.
In 1966 a Royal Commission headed by Salmon L.J., as he then was, reported on Tribunals of Inquiry, and justified their continued existence to deal with amongst other things –
“matters causing public concern which cannot be dealt with by ordinary civil or criminal processes but which require investigation in order to allay public anxiety.”
Lord Gifford invites our attention to the object of allaying public anxiety, which he submits necessarily involves a public process. In paragraphs 27 and 28 of its report the Salmon Commission said –
“27. The exceptional inquisitorial powers conferred upon the Tribunal of Inquiry under the Act of 1921 necessarily expose the ordinary citizen to the risk of having aspects of his private life uncovered which would otherwise remain private, and to the risk of having baseless allegations made against him. This may cause distress and injury to reputation. For these reasons, we are strongly of the opinion that the inquisitorial machinery set up under the Act of 1921 should never be used for matters of local or minor public importance but always be confined to matters of vital public importance concerning which there is something in the nature of a nation-wide crises of confidence. In such cases we consider that no other method of investigation would be adequate.
28. Normally persons cannot be brought before a tribunal and questioned save in civil or criminal proceedings. Such proceedings are hedged around by long standing and effective safeguards to protect the individual. The inquisitorial procedure is alien to the concept of justice generally accepted in the United Kingdom. There are, however, exceptional cases in which such procedures must be used to preserve the purity and integrity of our public life without which a successful democracy is impossible. It is essential that on the very rare occasions when crises of public confidence occur, the evil, if it exists, shall be exposed so that it may be rooted out; or if it does not exist, the public shall be satisfied that in reality there is no substance in the prevalent rumours and suspicions by which they have been disturbed. We are satisfied that this would be difficult if not impossible without public investigation by an inquisitorial Tribunal possessing the powers conferred by the Act of 1921. Such a Tribunal is appointed by Parliament to inquire and report. The task of inquiring cannot be delegated by the Tribunal for it is the Tribunal which is appointed to inquire as well as to report. The public reposes its confidence not in some other body or person but in the Tribunal to make and direct all the necessary searching investigations and to produce the witnesses in order to arrive at the truth. It is only thus that public confidence can be fully restored.”
The observations of the Commission were of course not directed to a particular Tribunal of Inquiry, but they do, as Lord Gifford points out, stress that whenever a Tribunal of Inquiry is set up the gravity of the situation must be such as to call for exceptional measures, and that in such a situation loss of privacy is a price which has to be paid to restore public confidence. However, the Salmon Commission was not, so far as we are aware, directing its mind to a loss of privacy which would result in a risk to personal safety, and no doubt that is what caused Lord Widgery in 1972 to grant anonymity to those who gave evidence before him, including in particular the soldiers who had fired live ammunition. The present Inquiry had very little information as to what was said by or on behalf of Lord Widgery in 1972 to those who testified, but his report contains this paragraph –
“Since it was obvious that by giving evidence soldiers and police officers might increase the dangers which they, and indeed their families, have to run, I agreed that they should appear before me under pseudonyms”.
We now have rather more information as to what went on in 1972 than may have been available to the present Inquiry when it made its decision last December. In particular soldier ‘H’, recently identified, on 10th February 1999 swore an affidavit, part of which at paragraph 3 reads :-
“I know that I and other soldiers were told quite clearly at the time, that the Lord Chief Justice had agreed that we would be anonymous if we gave evidence to the Tribunal. Although my recollection is not clear at this remove I believe that I was also told this by the Solicitor from Treasury Solicitors Department who took my statement.”
Paragraphs 5 to 7 of the affidavit read :-
“5. It did not occur to me to ask for how long this protection would last because I was under the clear impression that my anonymity would be maintained in the future.
6. If I had not been told that I was going to be granted anonymity I would have asked what precautions were going to be taken to give me and my family protection. At that time my new wife was pregnant with our first child. If I had been told that after I had given my evidence I would be named or otherwise identified at some time in the future I would have asked what protection my family and I would be given at that time and in the future.
7. I do not pretend to be able now to remember precisely what was said but my firm understanding was that I would never be identified and until now it has never been suggested that I should be.”
As to what was done at the hearings before Lord Widgery we have information from Mr Lawton of the Treasury Solicitors Department who acts for the applicants. He says in his second affidavit of 27th January 1999 at paragraph 8 –
“The pseudonyms used to refer to the applicants were those by which they are referred to in the present application, namely soldiers ‘B’, ‘O’, ‘U’ and ‘V’. I understand that, in addition to being assigned a letter or number by which he was referred to by all concerned throughout that Inquiry, each military witness arrived at the hearings of the Inquiry wearing a combat jacket without insignia of rank or regiment. They were accompanied by a group of about five or six other soldiers similarly dressed and all wore dark glasses. Once called to give evidence the witness took the stand away from the group, removed his glasses and gave evidence facing Lord Widgery. Throughout the proceedings the military witnesses were referred to only by their letter or number.”
As a result of the precautions taken in 1972 the applicants have never been identified as the soldiers who fired live ammunition so, of course, they have never been threatened in that capacity. According to paragraph 9 of Mr Lawton’s second affidavit, and according to the affidavit of soldier ‘H’, they have all now left the armed forces, and are living as civilians. That, as it seems to us, is all important background material against which the decision now under challenge falls to be considered. It seems to us to be clear that in 1972 each of the applicants was led to believe that if he co-operated with the Tribunal, by answering questions, giving a statement, and giving evidence if called upon to do so, his identity and in particular his name as well as his address, would not be revealed by anyone in authority as the source of the information obtained by the Tribunal so long as the danger which led to the grant of anonymity continued to exist. In other words, subject to some compelling unforeseen circumstance, so long as there was any danger of reprisals being taken against him or his family because he fired live rounds on Bloody Sunday, no one in authority would do anything which would enable anyone to attach his name to that of a soldier previously identified only by letter who gave evidence before the Widgery Tribunal in 1972. If that is a correct analysis of the assurance given to the applicants in 1972 then, as it seems to us, any decision which involves disclosure of their surnames for the purposes of this present Inquiry is on the face of it a breach of the 1972 assurance because, once their surnames are revealed, together with such information as they may now give, it will be possible to discover who appeared under which letter in 1972. Indeed it seems almost inevitable that if the present decision stands each applicant will now be cross-examined publicly about what he said in 1972. It may be that at the present time circumstances are such as to justify that course, that is not for us to decide, but we do have a clear view about the assurances given in 1972, and, as will became apparent, our understanding of the position differs in significant respects from that of the present Inquiry.
5. Establishment of this Inquiry.
The proposal to establish the present Inquiry was announced to Parliament by the Prime Minister on 29th January 1998, and part of what he said, as reported in Hansard, reads thus –
“It is for the Tribunal to decide how far its proceedings will be open, but the Act requires them to be held in public unless there are special countervailing considerations.
The hearings are likely to be partly here and partly in Northern Ireland, but, again, that is largely for the Tribunal. Questions of immunity from prosecution for those giving evidence to the Inquiry will be for the Tribunal to consider in individual cases, and to refer to my Right Honourable and learned friend the Attorney General as necessary. The Inquiry will report its conclusions to my Right Honourable friend the Secretary of State for Northern Ireland, and our intention is that they will be made public.
Let me make it clear that the aim of the Inquiry is not to accuse individuals or institutions, or to invite fresh recriminations, but to establish the truth about what happened on that day, so far as that can be achieved at 26 years distance. It will not be easy, and we are all well aware that there were particularly difficult circumstances in Northern Ireland at that time.
Bloody Sunday was a tragic day for all concerned. We must all wish that it had never happened. Our concern now is simply to establish the truth, and to close this painful chapter once and for all. Like the honourable member for Foyle, members of the families of the victims have conducted a long campaign for that end. I have heard some of their remarks over recent years and have been struck by their dignity. Most do not want recriminations; they do not want revenge; but they want the truth.
I believe that it is every one’s interests that the truth be established and told. That is also the way forward to the necessary reconciliation that will be such an important part of building a secure future for the people of Northern Ireland.”
The resolution which was duly passed by both Houses of Parliament was –
“That it is expedient that a Tribunal be established for inquiring into a definite matter of urgent public importance, namely the events on Sunday 30th January 1972 which led to the loss of life in connection with the procession in Londonderry on that day, taking account of any new information relevant to events on that day.”
The remit of the Inquiry is therefore reasonably clear, and it is also clear that Parliament did nothing to fetter its discretion in relation to, for example, the grant of anonymity to individual witnesses, bearing in mind the statutory background to which we have referred.
6. The July Statement.
The Inquiry delivered an opening statement on 3rd April 1998, and held a preliminary hearing in July 1998 which dealt with a number of matters of no concern to us, but one of the issues raised was the question of anonymity, and in its ruling and observations of 24th July, 1998 the Inquiry said this –
“In the expectation that the question of anonymity would arise, we asked the interested parties for any general observations or submissions they might have as to the approach that we should adopt in relation to it. It will be recalled that, with the exception of five senior officers, the soldiers who gave evidence before the Widgery Inquiry were not required to disclose their names.
We have not yet been asked to make rulings on anonymity in respect of any individual witnesses or groups of witnesses who may give evidence to this Inquiry. However the Treasury Solicitor and Ministry of Defence have indicated that applications for anonymity are likely to be made in due course on behalf of soldiers or former soldiers who were serving in Londonderry on Bloody Sunday.
It should be remembered that there are various different forms of anonymity. Depending on the circumstances, it might be appropriate to allow a witness to give evidence without stating his or her name and address in public, or perhaps to give evidence from behind a screen in order to conceal his or her physical appearance. It might also be necessary to preserve the anonymity of individuals by substituting letters or numbers for names in witness statements and other documents.
Mr Treacy referred us to a number of authorities in this field….. Mr Treacy argued that the granting of any form of anonymity was a very grave step that should only be taken if justified on compelling grounds.
In adversarial procedure, great importance is rightly attached to the principle of open justice. In particular, the courts require very strong grounds indeed before departing from the rule that a person charged with a criminal offence is entitled to know the identity of prosecution witnesses and to see them give their evidence. One of the reasons for this is to enable the opposing party to investigate and assess the credibility of those witnesses.
The position in relation to an Inquiry such as this one is, in our view, rather different. Nobody is being prosecuted before this Tribunal, nor is it our function to do justice between parties competing in an adversarial contest. Our task is to do justice by ascertaining, through an inquisitorial process, the truth about what happened on Bloody Sunday. The proper fulfilment of that task does not necessarily require that the identity of everyone who gives evidence to the Inquiry should be disclosed in public. The Tribunal will know the identity of all witnesses and, unlike a court, will itself take responsibility for investigating their credibility if there is reason to think that such an investigation is necessary.
Indeed we think that there are likely to be circumstances in which granting anonymity will positively help us in our search for the truth. Witnesses are unlikely to come forward and assist the Tribunal if they believe that by doing so they will put at risk their own safety or that of their families. Moreover it would be a mistake to suppose that the grant of anonymity would always operate to protect soldiers who are alleged to have been guilty of serious offences on Bloody Sunday. There may well be witnesses who wish to give evidence that is favourable to the interpretation of events for which the families and the wounded contend, but who will not co-operate with the Tribunal without assurances as to their anonymity. We are aware, for example, of certain television programmes in which people describing themselves as ex-soldiers present on Bloody Sunday have criticised the conduct of the Army on that day, but have done so anonymously, presumably for fear of reprisals by their former comrades.
Accordingly, we will be willing to grant an appropriate degree of anonymity in cases where in our view it is necessary in order to achieve our fundamental objective of finding the truth about Bloody Sunday. We will also be prepared to grant anonymity in cases where we are satisfied that those who seek it have genuine and reasonable fears as to the potential consequences of disclosure of their personal details. As to the degree of anonymity that is appropriate, our current view is that restricting the disclosure of names and addresses ought to be sufficient in most, if not all, cases. We would regard the use of a screen as a wholly exceptional measure.
The obligation nevertheless remains firmly on those who seek anonymity of any kind to justify their claim. Applicants for anonymity must supply the Tribunal with a written explanation of the basis of their application, together with any material relied upon in support of it. Of course, unless and until the application is refused, the Tribunal will not reveal any information in its possession, disclosure of which might pre-empt its ruling. Otherwise, however, and subject to any claim for public interest immunity, we propose to circulate any written applications for anonymity to all interested parties and to invite their submissions before making a ruling.
It is obviously important that these applications should be determined sooner rather than later, especially in view of the problems that delay will cause in respect of the distribution of documents containing the names of potential applicants for anonymity. The fact that so far only a few of the soldiers have been traced presents a practical difficulty that their instructions cannot be obtained until they have been found. Rather than waiting for them to be located, we intend to ask the Ministry of Defence to put forward any application for anonymity on their behalf, together with such submissions and evidence as it considers appropriate in relation to any continuing security risk to which they may be exposed. The Solicitor to the Tribunal will shortly be writing to the Ministry of Defence in this connection, as well as to the Treasury Solicitor on behalf of the soldiers represented by Mr Glasgow. Meanwhile, in order to provide to interested parties as many as possible of the documents we have collected to date, we shall blank out the names etc of those who we consider may have a case for anonymity, in order not to pre-empt any future ruling and to minimize delay in the publication of documents.”
We have set out that part of the ruling and observations almost in full because it is so important in relation to the issues before us. Mr Glasgow and Mr Burnett contend that the paragraph which begins with the word “Accordingly”, and which we have emphasised in the text, sets out in clear terms :-
(1) What a soldier would have to show to the satisfaction of the Inquiry in order to qualify for anonymity – genuine and reasonable fears as to the potential consequences of disclosure of his personal details:
(2) the degree of anonymity which a soldier who passed the qualification test might expect – restriction of disclosure of name and address.
Mr Clarke QC is understandably anxious that we should not take that paragraph out of context, which is why we have set out the extract in full. He also emphasises, quite rightly, the opening sentence of the next paragraph, as demonstrating that the burden of proof remains firmly on those who seek anonymity of any kind to justify their claim. That we recognise, but in our judgment the submissions of Mr Glasgow and Mr Burnett as to the interpretation of the rulings and observations of the Inquiry dated 24th July, 1998 are well founded. The written rulings and observations were clearly intended to assist the applicants and those who represented them to make appropriate and full submissions. Both the applicants and the Inquiry knew that in 1972 a Tribunal acting with precisely similar powers had granted all soldiers, including in particular those who had fired live ammunition, the opportunity to appear without being named. That level of anonymity could not therefore be regarded as obviously inappropriate for the present Inquiry simply because it is a Tribunal of Inquiry with the powers given to such an Inquiry by the 1921 Act, nor has it been possible to point to anything said by the Prime Minister or by the Inquiry in its opening statement to lead to that conclusion. That point seems worth making in the light of subsequent events so as to emphasise what the July statement did not say. It did not suggest, even tentatively, that the level of anonymity granted in 1972 might not be available, yet in due course this Inquiry ruled that –
“If anonymity in the strict sense were to be allowed on a widespread or blanket basis that would represent a material derogation from the Tribunal’s public investigative function.”
In his submission to us Mr Clarke said –
“To conceal completely the identities of those most centrally involved would be, as the Tribunal found, a material derogation from its public investigative function. It is not an answer to this point to say that the Tribunal itself would have the names. If the soldiers names cannot be referred to in the course of proceedings or in the report that will fundamentally alter the character of the Inquiry. It will jeopardise the public perception of a thorough exposure of the truth, and prejudice the Tribunal’s aim of resolving the public crisis of confidence. The Tribunal’s duty is not just to acquire information but to disseminate it.”
There may be much to be said for that approach, but it is noticeably absent from what was said in July.
7 The Threat Assessment
On 28th July 1998 the Secretary to the Inquiry asked the Home Office whether, to assist the Inquiry in forming a judgement of the need for anonymity, it could provide advice on the continuing risk to those soldiers who were involved in Bloody Sunday. An assessment was obtained from the Security Service on 22nd October 1998, and it was sent to the Inquiry by the Home Office on 23rd October 1998. It is headed “Threat Assessment – Bloody Sunday Inquiry” and we set it out in full:
Though the current situation in Northern Ireland means that the threat of terrorist attacks by the Provisional IRA (PIRA) is currently low, the possibility of attacks by republican dissidents remains.
The potential targets of dissident republican terrorists are unlikely to be significantly different from those formerly favoured by PIRA. The military has long been regarded as a legitimate target by republican terrorists, and numerous military personnel have been attacked on the mainland. Given the continuing signs of the dissidents’ intent to disrupt the peace process through violence, and the importance of ‘Bloody Sunday’ in republican history, we assess that there is the potential for military witnesses to the Inquiry to be singled out for attack.
Republican dissident groups have demonstrated the ability to launch a variety of attacks particularly in Northern Ireland. Further, republican dissidents have in recent months twice prepared to mount an attack on the British mainland. In April 1998 a vehicle-borne improvised explosive device destined for the mainland was intercepted at Dun Laoghaire. On 10th July 1998 three individuals alleged to be members of a republican dissident group were arrested in London and have since been charged with conspiracy to cause explosions and, in the case of one of them, possession of explosives. We assess that republican dissidents retain the materiel and personnel to mount attacks on the British mainland. As for the individual groups, the future of the ‘Real’ IRA’s current ceasefire is uncertain. The Continuity IRA, the only Irish Republican terrorist group not currently on ceasefire, has not yet mounted mainland attacks, but the possibility of it doing so cannot be discounted. PIRA has been observing a ceasefire since July 1997 but has so far maintained the capability of returning to violence should it decide to do so. Taken together, these factors indicate that the overall level of threat to the mainland, and to identifiable military personnel, could rise at short notice.
ANONYMITY AND IDENTIFICATION.
Even where terrorists have the capability and intent to mount an attack, if individuals cannot be identified and located then they are not at threat. This is the basis for the requirement for anonymity, which cannot be recovered once it has been lost. The variety of sources of information in the public domain make it increasingly easy to locate individuals, and where the names are unusual it is possible to do so on the basis of name alone. Thus if their names are revealed military witnesses to the Inquiry will be at a moderate level of threat, and this is likely to increase in the event of an increase in the overall mainland threat.
A number of military witnesses due to attend the Inquiry have already had their names publicly associated with the events of Bloody Sunday. Since they have already been identified they are already at a moderate level of threat, and this will not increase solely as a result of their attendance at the Inquiry. However, if the proceedings focus on the conduct of particular military personnel, and those personnel are identified by name, it is possible that the threat to them will rise.
We do not consider that, in general, visual identification of military witnesses is likely to cause the Irish-related terrorist threat to them to rise. The exceptions would be those who are (or will be) operationally deployed, any who are of particularly distinctive appearance or have a high public profile, and possibly those who live or work in Northern Ireland.”
What, it may be asked, is “a moderate level of threat?” Unfortunately the Security Service did not explain, and the Inquiry, which did not ask for an explanation, was left to draw its own conclusions. Mr Glasgow is critical of the Inquiry for not asking for further information but, as Mr Clarke emphasises, the Inquiry did leave it to those seeking anonymity to provide evidence to support their case, and they did receive copies of the Threat Assessment. For present purposes we find it unnecessary to decide who was “to blame”. Suffice to say that it now seems clear that the Inquiry did not interpret the Threat Assessment as the author of that assessment, namely the Security Service, intended. In its ruling, to which we will come in due course, the Inquiry, having referred to the Threat Assessment, concluded that “the evidence of risk, viewed objectively, is limited and unspecific”. In an affidavit sworn on 11th February 1999 Mr Solomons, an Assistant Treasury Solicitor, sets out the reaction of the Security Service, which is no party to these proceedings, to the Inquiry’s interpretation of its assessment. Part of what he says is worth quoting –
“The terms of the ruling indicate that the Tribunal has misunderstood the nature of the assessment. Threat assessments do not, by their nature, consist of concrete predictions. If they did, atrocities could be foreseen and pre-emptive measures taken. Nor are they assessments of risk. …. A moderate threat to a vulnerable target will produce a higher level of risk than a moderate threat to a target of low vulnerability. … The system identifies six levels of threat, two of which come below “moderate” and three above. The term “moderate” is used to indicate that there is potential for a target to be singled out for attack. At the time the assessment was made (October 1998) a “moderate” threat was the highest applied to any public figure in Great Britain on account of domestic terrorism. At the next level up a target would be assessed to be a priority target.
The Tribunal appears to have been looking for very specific intelligence that a particular group intended to target soldiers involved in Bloody Sunday. This is not the way threat assessments work. … The Tribunal twice referred to the risk to the soldiers as being “unspecific” but were specific intelligence to be received which indicated that the witnesses were high priority targets, then they would be at such a high risk of threat that the normal response would be for them to be provided with armed police protection.
The significance of the device which was intercepted at Dun Laoghaire, and the arrests in London in July 1998, is that mainland attacks have recently been attempted. The intended targets are not known. But it is known that the military are considered “legitimate” and highly desirable targets for Republican terrorists. This would be likely to apply a fortiori to former soldiers who killed Catholic youths.”
In his written skeleton argument before us Mr Clarke says –
“Mr Solomons offers a gloss, itself somewhat obscure, on the meaning of the words “moderate risk” used in the threat assessment. If the term was intended to have a meaning different from, or more specific than, the ordinary English meaning of those words, this should surely have been explained to the Tribunal when the threat assessment was provided.”
We do not regard Mr Solomon’s gloss as obscure. It plainly clarifies the meaning of “moderate” where that word is used in the Threat Assessment, and Mr Clarke’s submission we regard as little short of an admission that the Inquiry attached a different and less sinister meaning to the word. Obviously the Tribunal’s understanding of the Threat Assessment formed a significant part of the material to which it had regard when reaching its conclusion.
8. Submissions other than Threat Assessment.
On 2nd September 1998 Mr Lawton sought anonymity “in respect of all the soldiers whom I currently represent”. His clients included officers whose names had already been disclosed, and for them he sought only the withholding of addresses and telephone numbers. For the soldiers his application was that “no information tending to disclose their identities, occupations, addresses or telephone numbers should be disclosed to any person other than members of the Tribunal and its staff.” His letter continues –
“I consider that the Ministry of Defence is better placed to inform the Tribunal about the nature and extent of the security risk. Indeed, one of my difficulties and serious concerns arises out of the fact that I have very little information about the true nature of the security risks. I and my clients are almost wholly dependant on others to provide such information.
The principal basis on which my applications for anonymity are made is that my clients believe that they and their families would be at risk of being killed if their identities and whereabouts were revealed. Some of those whose identities are already known have already been subject to threats of murder or have been informed at one time or another that they are at such risk. Save in the case of the letter bomb intercepted by General Ford’s bank (where the nature of the threat was self-evident) and the express written threat which he received, the only information given to my identified clients has been the fact that a threat has been perceived by others.”
At the end of the letter Mr Lawton says –
“It remains my submission that the universal perception of the soldiers that they are at risk is manifestly reasonable. If the Tribunal is not prepared to make the orders which I seek we will make application to advance further argument in camera.”
On 23rd October 1998 the Ministry of Defence, having seen the Threat Assessment, asked for preservation of the anonymity of soldiers not yet contacted until more was known about their personal circumstances. As the writer of the MOD letter put it –
“Essentially the test to be adopted is whether the public interest in open justice is outweighed by the public interest in protecting the physical security of potential witnesses.”
Mr Clarke contended that the Inquiry by its ruling did what had been asked of it by the MOD. That we do not accept. The MOD asked that no ruling be made until the soldiers could be seen and instructions be obtained from them, but the Inquiry made a ruling, even if it did leave some room for further submissions at a later stage.
During November 1998 submissions were made by two firms of solicitors acting for families of the dead and injured, and by British Irish Rights Watch, and the Committee on Administration of Justice. The thrust of those submissions is reflected in paragraphs 5 and 6 of the submission on behalf of the family of James Wray, deceased, which read –
“5. The Inquiry has promised a radically different approach from the Widgery Inquiry. One of the most objectionable features of Widgery was that soldiers gave their evidence under the cloak of anonymity, told lies, and were never prosecuted or called to account. If this Inquiry adopts the same practice on anonymity, it will attract the same cynicism and disrespect. A process that starts by covering up the names of key witnesses will be seen as yet again covering up the truth.
6. By contrast, an Inquiry which starts by making clear that it proposes to conceal nothing of relevance, and that it expects witnesses to come forward, identify themselves, and be subjected to fair and public scrutiny, will deserve and will receive the confidence and participation of the public.”
It is contended that in 1999, in contrast to 1972, the increase in the personal security risk to former soldiers if their names were to be disclosed would be negligible, whereas withholding names would seriously damage the Inquiry and the Peace Process.
On 27th November 1998 the Inquiry gave the solicitors for the applicants an opportunity to respond to the November submissions, and they responded on 3rd December 1998. That submission stressed that a refusal of anonymity could amount to a withdrawal of what was granted by Lord Widgery. It referred to the Wray submission that names without addresses are untraceable, and continued –
“While there may be some force in this submission it is equally true that an individual’s name is the starting point for tracing them, particularly now that the Electoral Role is freely available on the Internet, and the submission does not and cannot detract from the genuineness and reasonableness of the soldiers fears of the consequences of disclosure.”
Reference was made to the Security Service Threat Assessment, and to the suggestion that anonymity would prejudice the Inquiry’s fundamental objective. As to that the applicants submitted in paragraph 17 –
“When the Tribunal knows all that there is to be known about all witnesses who appear before it, the effectiveness, thoroughness and fairness of its inquiry will not in any way be compromised by the fact that the names and addresses of witnesses are not published.”
The submission addressed the suggestion that soldiers might be more inclined to lie if giving evidence anonymously and other arguments which for present purposes do not need to be rehearsed.
9. The Doherty Letter
On 1st December 1998 one member of the Inquiry, Sir Edward Somers, left for New Zealand.
On 2nd December 1998 Desmond J Doherty and Co sent to the Inquiry by fax a letter on behalf of some people who had already given statements to the solicitors acting for the Inquiry. The main paragraphs of the letter read:
“Some of my clients have expressed a concern at their addresses being available on the Internet. My clients are in no way criticising the very proper way the Inquiry is being dealt with by way of information to the public but I do trust you appreciate that they are very sensitive to the fact that someone may have access to their address via the statement on the Internet. …
To be more direct in connection with the matter and again by way of example one of my clients has already given a very lengthy and detailed statement to Messrs. Eversheds which I am in the process of amending and agreeing with my client. My client also gave a statement for the previous Inquiry and gave oral evidence at that Inquiry.
My client has confirmed to me that a number of threats were received by the client from certain organisations as the address of this client had been published in a national paper.”
As Mr Clarke points out, the request was simply to withhold addresses, not names, and the threat referred to what happened after the 1972 Tribunal, not to the current Inquiry.
By the time that the Doherty letter was received the Inquiry had almost completed work on its rulings on anonymity and venue. As can be seen from the letter written by Mr Ridd, solicitor to the Inquiry, on 29th December 1998. He says that the rulings –
“ Followed several discussions between the three Members of the Tribunal in several meetings in the Inquiry’s offices.”
His letter continues –
“A final discussion on points of detail took place on Friday 11th December, but Sir Edward Somers had already departed to New Zealand and was therefore not at that meeting. The latest draft of the Rulings was faxed to Sir Edward late on 11th December, and he signified his agreement by fax on Monday 14th December. I believe a small change of internal paragraph numbering was made subsequently and that Lord Saville initialled the final version on Tuesday 15th December.”
On 14th December 1998, the day when Sir Edward signified his assent by fax, the Inquiry sent a copy of the Doherty letter to the solicitor for the applicants, inviting a response by 8th January 1999. There was an immediate response, by fax, on 16th December 1998, the last paragraph of which reads –
“Mr Doherty’s request dated 2nd December raised issues which are highly material to the applications made on behalf of our clients in relation to anonymity and venue. I should be grateful for your confirmation that the matters raised by Mr Doherty’s letter and any responses to Mr Doherty’s requests will be taken into account by the members of the Tribunal in considering those applications on behalf of our clients.”
On 17th December 1998 Mr Ridd responded, saying –
“I can confirm that the Tribunal was aware of the new application when your client’s applications on anonymity and venue were considered, but responses to Mr Doherty’s application had not by then been received. The intention is that rulings on anonymity and venue will be published today.”
The rulings were then published as anticipated.
10. The December decision.
The ruling on anonymity covers 26 pages of transcript, and we do not therefore attempt to incorporate it in full into this judgment, but we draw attention to the following points –
(1) In paragraph 14 the Inquiry recites part of its July statement before referring to the submissions it received.
(2) In paragraph 18 the Inquiry deals with the grant of anonymity by Lord Widgery and says –
“We do not know by whom or in exactly what terms this assurance is supposed to have been given. It seems to us that we can assume no more than that the soldiers understood and expected that their names would not be divulged in the course of the proceedings before Lord Widgery. We are not aware of any reason to believe that an assurance was given that their names would never be disclosed by anyone. Accordingly, we treat these as fresh applications for the grant of anonymity and we start with no presumption that the existing de facto anonymity should be preserved.”
For the reasons set out in paragraph 4 of this judgment we cannot regard that as a proper approach to the assurances given in 1972. Strictly construed it would mean, as Mr Glasgow pointed out, that as soon as Lord Widgery reported, if not before, the assurance ceased to have any effect. No serving soldier or policeman would have been comforted by an assurance as limited as that.
(3) In paragraph 28 of the Ruling the Inquiry, after acknowledging that Bloody Sunday has always been “a matter of exceptional controversy in many quarters” states –
“Nevertheless, there is virtually no material before us that demonstrates the extent, even prior to the paramilitary cease-fires, of any specific risk to former soldiers or their families arising from their previous involvement in controversial events in Northern Ireland. Mr Lawton’s application mentions that General Ford at one time received a written threat and a letter bomb was intercepted by his bank. But we do not know when these incidents occurred, nor whether there was any evidence to link them directly to Bloody Sunday.”
Mr Glasgow is, perhaps understandably, critical of that passage. He says that if the Inquiry did not know when the threat to General Ford was made, and it purported to have some background knowledge of events connected with Northern Ireland, it could easily have asked. As to the connection with Bloody Sunday, the link was obvious. He was the commanding officer at the material time.
In paragraph 28 the Inquiry goes on to refer to the Dun Laoghaire interception, mentioned in the Threat Assessment, and to the subsequent arrests, but the Inquiry is impressed by the Wray submission that “there is no indication that individual soldiers have been targeted in recent years, or that any soldier has ever been attacked specifically as a result of having given evidence in any proceedings.”
(4) In paragraph 29 the Inquiry accepts that the past may not be a reliable guide to the future, and continues –
“Even so, we think it fair to say that the evidence of a continuing threat to soldiers who may be called as witnesses before this Inquiry is general as opposed to specific. Perhaps of necessity, it amounts to informed speculation as to what could happen, instead of a more concrete prediction based upon specific past experience.”
So, having, as we accept, misunderstood the Threat Assessment the Inquiry makes its own assessment of the evidence of risk which it describes in the next paragraph as “limited and unspecific”.
(5) However, it accepts that soldiers not previously named may genuinely believe themselves to be at risk. As to the objective reality of the risk the Inquiry says “in the light of the Threat Assessment we are not prepared to castigate that general fear as unreasonable. “
(6) In paragraph 31, still purporting to act “in accordance with the principles set out in our ruling in July, the Inquiry sets out to consider “what if any kind of anonymity would be appropriate in the circumstance”.
As we have indicated above it seems to us that, if the July ruling was to be followed, once a genuine and reasonable fear was established the kind of anonymity to be granted was self-evident, because the tribunal had itself said that “restricting the disclosure of names and addresses ought to be sufficient”. But in paragraph 31 the Inquiry adopts a much more cautious approach, saying that “before granting anonymity of any kind we must be satisfied that we can do so without prejudicing our fundamental objective of establishing the truth about what happened on Bloody Sunday”.
(7) All of the arguments against any grant of anonymity are then rehearsed, including this consideration in paragraph 37 –
“It is clear that the families of the deceased and the injured would like to see prosecutions brought against the soldiers who in their view were guilty of serious offences on Bloody Sunday. If that were to happen, the names of the defendants would in the ordinary way become public. The position would not be affected by any anonymity for the purposes of this Inquiry, because the prosecuting authorities would still be able to ascertain the true identity of the soldiers concerned.”
As Mr Glasgow points out the Inquiry itself could have chosen to grant anonymity at the investigative stage and reserved for later consideration whether to name certain people in its report. That option does not seem to have been seriously canvassed before the Inquiry.
(8) In paragraph 39 the Inquiry concludes that –
“None of the factors to which we have so far referred is, in our view, sufficient to demonstrate that the granting of anonymity would prejudice the fundamental objective of the Inquiry.”
That paragraph then goes on –
“We attach considerably greater weight, however, to another factor, which appears in the submissions only in the form of an argument that to grant anonymity would diminish public confidence in the Inquiry by creating the impression that the true facts are being concealed.”
(9) The point is developed in paragraph 40 –
“We see the point of substance as being not the maintenance of public confidence as such, but rather the proper fulfilment of our public duty to ascertain what happened on Bloody Sunday. An intrinsic part of that task is the investigation of the actions of individual soldiers on that day, which in our view encompasses not only what they did, but who they were. We do not think that this makes it axiomatic that the name of every soldier involved should be disclosed, no matter what his individual circumstances might be. Even a code letter or number provides a degree of identification, in the sense that it distinguishes the witness concerned from all others involved. To restrict the disclosure of the actual names of a few soldiers, for sound reasons, would not in our view substantially impair our investigation of the facts. But we are satisfied that, if anonymity in the strict sense were to be allowed on a widespread or blanket basis, that would represent a material derogation from the tribunal’s public investigative function.”
That, Mr Glasgow submits, is a critical paragraph, and it is, to say the least, not as clear as it might be. If the public duty of the Inquiry is to ascertain what happened on Bloody Sunday, and that is what the original remit did suggest, certainly the Inquiry itself would need to know the identities of individual soldiers, but that is not what the application for anonymity was all about. It was about whether the knowledge of identities, and in particular of names, should be confined to the Inquiry and its staff. So what did the Inquiry mean by saying that its task encompasses “not only what they did but also who they were?” And, as we said earlier in this judgment, if the Inquiry did take the view that any widespread anonymity would derogate from its public investigative function, that was something not hinted at in July or at any time thereafter.
(10). Paragraph 41 recognises that addresses, occupations and telephone numbers should not be revealed. That was not contentious and no one had asked for a screen. Then, in paragraph 42 the Inquiry returns to the question of-
“Whether any, and if so what, degree of anonymity is appropriate, having regard to our views as to the nature and extent of the risk, and our rejection of widespread or blanket anonymity, in the strict sense, as being incompatible with the Tribunal’s fundamental objectives.”
(11). In paragraph 44 the Inquiry concludes that –
“It would be wrong in principle to give a general dispensation allowing all military witnesses to give evidence without revealing their names”.
The Inquiry expresses the belief that –
“This would, in the majority of cases, be going further than is justifiable or appropriate in circumstances where there is no concrete evidence of a specific threat.”
At least by implication the Inquiry is there seeking that which, for reasons now explained by Mr Solomons, cannot be produced, namely concrete evidence of a specific threat.
(12) In paragraph 45 the Inquiry considered the special position of those soldiers, such as these applicants, who fired live rounds on Bloody Sunday, and accepts that they have “more compelling and substantial grounds than others for believing themselves to be at risk.”
(13) But, as the Inquiry points out in paragraph 46, their conduct lies at the very heart of the Inquiry, so the Inquiry concludes –
“To allow this group to remain entirely anonymous would be a step which we would find difficult to reconcile with our public duty to determine what happened on Bloody Sunday.”
Obviously, as Mr Glasgow submits, that begs the question of what really is encompassed by the public duty of the Inquiry to determine what happened on Bloody Sunday.
(14) In paragraph 47 the Inquiry concludes that it would be justifiable to permit those who fired live rounds “a limited form of additional anonymity, under which their surnames will be disclosed but their forenames will not.” As everyone accepts, this compromise had not previously been ventilated, and there had been no submissions addressed to it. The Inquiry regarded it as “the best available solution to a difficult problem because it will create a significant extra element of assurance for these individuals as regards their personal security without having any material adverse effect on the fulfilment of our task.” The Inquiry goes on to explain that if the surname is common it will be very difficult to locate an individual on the basis of name alone, but such disclosure “will avoid giving them or others the false impression that they are immune from any effective public scrutiny or from criticism should it prove to be justified.”
(15) In paragraph 48 the Inquiry indicates a willingness to consider special factors which might tell in favour of withholding surnames in individual cases – for example, if a witness lives in Northern Ireland, or has an very unusual name. Conversely a forename as well as a surname might be disclosed if, for example, there was evidence that on Bloody Sunday someone was heard to call a witness by his forename.
11. The Function of this Court.
Despite the persuasive arguments addressed to us by Mr Lavery we have no hesitation in saying that this application is properly brought before this Court. The Inquiry was set up by resolution of both Houses of Parliament. It has the powers of an English statute. It is based in London, and that is where the ruling was made which is now being challenged. The ruling primarily affects former members of the armed forces, most of whom are probably not now resident in Northern Ireland, and although it obviously has wider ramifications we see no reason why it should not be challenged here. In saying that we do not forget that the incident which is at the centre of the Inquiry took place in Londonderry, and that the Inquiry expects to discharge many of its functions there. As has already been demonstrated there may well be matters best considered by the High Court in Northern Ireland, but we cannot regard this application as being one which we cannot entertain.
B. Anxious Scrutiny.
Although we were treated to a good deal of learning from all sides there is in reality no issue as to the approach which ought to be adopted by this Court to an application of this kind, involving as it does the personal safety and possibly the lives of the applicants and their families. In R v Home Secretary ex parte Bugdaycay (1987) AC 514 Lord Bridge said at 531 –
“The most fundamental of all human rights is the individual’s right to life, and when an administrative decision under challenge is said to be one which may put the applicant’s life at risk the basis of the decision must surely call for the most anxious scrutiny.”
In the same case at 537 Lord Templeman said –
“Where the result of a flawed decision may imperil life or liberty a special responsibility lies on the court in the examination of the decision-making process.”
In R v Coventry City Council ex parte Phoenix Aviation (1995) 3 All E R 37 at 62 Simon Brown LJ said that “when fundamental human rights are in play the courts will adopt a more interventionist role”. In Ministry of Defence ex parte Smith (1996) QB 517 Sir Thomas Bingham MR at 554 accepted as an accurate distillation of the principles counsel’s submission which was –
“The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.”
In R v Secretary of State for the Home Department ex parte Ahmed, 30th July 1998 unreported, Lord Woolf MR said at page 18 of the transcript –
“The relevance of the European Convention on Human Rights is that it provides a background against which a complaint of irrationality can be considered. The fact that a decision maker failed to take account of Convention obligations when exercising an administrative discretion is not of itself a ground for impugning that exercise of discretion.”
Our task therefore is plain. It is to approach this decision with care, making proper allowance for the discretion afforded to the Inquiry, but also because of the subject matter exercising anxious scrutiny in relation to the challenges which have been made.
C. Fresh Evidence.
Normally this court is at pains only to have regard to the material which was available to the body whose decision is impugned, but where the decision is said to impinge on personal safety, and perhaps even put lives at risk, we cannot disregard material information which has come to hand since the original decision was made. So we do have regard to the affidavits, and in particular to those passages in the affidavits to which we have referred in the course of this judgment. If we are to exercise anxious scrutiny we cannot do otherwise.
We return finally to the issues which we identified at the beginning of this judgment –
(1) We are satisfied that the present Inquiry did misunderstand the nature and extent of the anonymity granted to the applicants by Lord Widgery, and that this misunderstanding played a significant part in the Inquiry’s reasoning process when arriving at the decision under challenge. Unlike Mr Glasgow we do not find it helpful to speak in terms of withdrawing anonymity, but we do consider it important for the Inquiry to have a clear perception of what was granted in 1972 and what endured.
(2) We are further satisfied that the July statement, perhaps inadvertently, did create the impression that if a soldier satisfied the Inquiry that he had a genuine and reasonable fear of the potential consequences of disclosure of his personal details then his name and address would not be disclosed.
(3) We are satisfied that the Inquiry did misinterpret the Security Service Threat Assessment. The error is understandable, but it is relevant. The Assessment needs to be interpreted in the light of what Mr Solomons now says.
(4) We are troubled by the fact that having given in its July statement a clear indication of what any one seeking anonymity should try to prove the Inquiry when it came to make its decision looked for something rather different, namely concrete evidence of specific threats. If that was what was required it seems to us that the requirement should have been made clear, even though the point that no such evidence had been produced was made by the relatives of the dead and injured, so the applicants did have a brief opportunity to respond to it.
(5) We are also troubled by the fact that the Inquiry –
(a) accepted that all soldiers probably had genuine and reasonable fears, and that soldiers who fired live rounds had more compelling and substantial grounds than others for believing themselves at risk, so that by inference they were entitled to some form of anonymity, yet –
(b) granted to that limited class a form of anonymity for which no one had contended and the safeguarding effects of which were at best a matter of speculation. In saying that we do bear in mind Mr Ridd’s affidavit evidence as to the Tribunal’s own difficulty in tracing former soldiers and the distinction made by Mr Clarke between identification and tracing, but the safeguarding effects of a “surnames only” policy which has to be waived if the surname is unusual or the forename is relevant must be questionable.
Although submissions were made to us as to the impact of Article 2 of the European Convention we do not believe that, even by way of background, the Convention adds anything significant to the law which we have to apply. And we were not impressed by either of the last two issues to which we were referred. It seems to us that the letter from Desmond J Doherty & Co was not really in point in relation to the question of whether or not soldiers should be given names, and no comment on that letter would have been likely to assist the Inquiry either way. As to procedural impropriety it is clearly necessary that all members of a tribunal should take a full part in any decision which is made. Having said that, we have no reason to think that there was any significant shortcoming in this case. Finally as to prematurity, we do not accept that the decision was premature. Interviewers of soldiers and ex-soldiers need to be able to tell their interviewees what the future holds, so a policy decision does need to be made now, even if some soldiers are not yet identified and some may be able to put forward a special case.
For the reasons which we have set out we are satisfied that in more than one respect the decision under challenge is flawed. In the language of judicial review the flaws can be expressed in different ways. For example, the misunderstanding as to the nature of the 1972 anonymity and the misunderstanding of the Threat Assessment can be categorised as failures to take relevant matters properly into consideration. The imbalance which we perceive between the July statement and the December ruling could be described as a procedural impropriety. The nomenclature is of little importance, but in our judgment the result must be that the decision is set aside and the matter is returned to the Inquiry for it to re-determine. We should however make it clear that we express no view whatsoever as to whether there should be any grant of anonymity of any kind. That is not our function. It is clear from the information before us that there are powerful arguments both ways. How those arguments should be resolved the Inquiry must decide.
MR GLASGOW QC: My Lord, in the terms of our application, may I respectfully ask that we have a declaration that the decision is unlawful and invalid, an Order forcertiorari to move to their Lordship’s court and quash the decision and, of course, I ask for no order as to costs.
Would your Lordships forgive me for mentioning one very small typing mistake? Would your Lordships be kind enough to go to page 22 and to the “Conclusions” paragraph, numbered 12 sub-paragraph (2)? I think “a general” has crept in for “a genuine”. It is a minor point, but could be important.
LORD JUSTICE KENNEDY: If I read “general”, I apologise.
MR GLASGOW QC: My Lord, there is one other tiny date correction. At “The Threat Assessment” paragraph, which is paragraph 7, the date is given in the fourth line as “An assessment was obtained by the Security Service on 22nd November …” The date was actually October, and, as your Lordships will see, it is followed on the next line that it was sent on the 23rd.
MR CLARKE QC: My Lord, there is one matter. I seek to raise one precise form of Order. I do not dissent from my learned friend’s invitation to your Lordships to make the declaration as he formulated, that the decision is unlawful and invalid and an Order for certiorari to move to quash it, provided that the antecedents to the said decision is made clear.
Do your Lordships have the Form 86A? If your Lordships turn to page 2 of the internal pagination of the form (it may be page 3 in the pagination) the decision referred to is the decision as in (1):
“The decision of the Bloody Sunday Inquiry (‘the Tribunal’) taken on the 14th December 1988 withdrawing anonymity from the Applicants save for a limited form…”
Might I put forward a suggestion, particularly in the light of the observations of your Lordships’ judgment, as to the utility of the expression of “withdrawing”? The decision might be characterised as:
“The decision of the Bloody Sunday Inquiry (‘the Tribunal’) taken on the 14th December insofar as it denied anonymity to the Applicants save …”
If, in the drawing up of the Order, it is made clear that when it is the “said decision” it is the decision that I have just characterised, I think that would meet everybody’s needs. If there is any disagreement I will come back on that.
There is one final matter. I seek from your Lordships a leave to appeal? Your Lordships will appreciate that I have not been unable to take instructions, in the light of the oral agreement that your Lordships have understandably imposed, and the fact that I seek such leave does not necessarily mean that if your Lordships gave it to us the Tribunal will avail itself of it, but I need to ask your Lordships for leave.
There is, in particular, one matter that your Lordships may think appropriate for consideration in another place, which is the true interpretation of the assurances given by Lord Widgery. Your Lordships have taken a clear and different view from that of the Tribunal, and your Lordships I am sure will appreciate that the extent to which this Tribunal in some shape or form is bound or affected by Lord Widgery’s decision as to anonymity is a matter of some importance, interest and concern in a number of different quarters. So I will respectfully ask your Lordships for leave?
MR GLASGOW QC: My Lords, on the form of the Order, subject to one tiny matter, I entirely accept what my learned friend has helpfully said. We just need to include, in drawing up the Order, that it is, of course, “… the Applicants, including H…” He was associated with us, but not an Applicant. If you will forgive us for doing that, we will draw it up in precisely the terms that my learned friend suggested.
As to leave to appeal, the matter has to be in your Lordships’ hands. We will only say, with respect, that, having won this matter on a number of quite distinct grounds, any one of which would have been sufficient to justify the judicial review. The fact that there may be another matter that the Tribunal would wish to give consideration to, then it can give it, but it will be wrong to continue any further uncertainty about this. It is not as if this has been a technical win on one ground. Effectively, every single substantive complaint that has been made is justified in your Lordships’ judgment. In those circumstances, if leave is to be granted, it should be granted elsewhere, and the sooner the better.
LORD JUSTICE KENNEDY: Does anyone else want to say anything?
COUNSEL: No, my Lords.
RULING AS REGARDS LEAVE TO APPEAL
LORD JUSTICE KENNEDY: Mr Clarke, we are not prepared to grant leave.