Royal Courts of Justice
The Strand
Wednesday 28 July 1999
B e f o r e:
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In the matter of an application for judicial review
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited,
180 Fleet Street, London EC4
Telephone No: 0171 421 4040
Official Shorthand Writers to the Court)
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MR CHRISTOPHER CLARKE QC with MR A ROXBURGH and MR J GRIERSON (Instructed by Mr John Tate, Solicitor to The Inquiry, London SW1Y 4WG) appeared on behalf of the Appellant.
SIR SYDNEY KENTRIDGE QC with MR D LLOYD JONES QC and MR M BOOLS and MISS M GRAY (Instructed by A D Lawton, Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Respondents.
MR IAN BURNETT QC and MR W HOSKINS (Instructed by the Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Ministry of Defence as an interested party.
MR J COYLE (Instructed by Messrs Desmond J Doherty & Co, Derry BT48) appeared on behalf of the family of B McGuigan; MacDermott & McGurk on behalf of the family of A & W Nash; McCartney & Casey on behalf of the family of J Wray and Madden and Finucane on behalf of most of the remainder of the deceased and injured).
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(As approved by the Court )
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©Crown Copyright
Wednesday 28 July 1999
1. This is the judgment of the court on an appeal from a decision of a majority of the Divisional Court (Roch LJ and Maurice Kay J, Hooper J dissenting).
The Background
2. The order of the Divisional Court, made on 17 June 1999, partially quashed a decision of the tribunal sitting as The Bloody Sunday Inquiry (“the Tribunal”). The Tribunal was established under the Tribunals of Inquiry (Evidence ) Act 1921 (“the 1921 Act”) following a statement made by the Prime Minister in the House of Commons on 29 January 1998, and a resolution adopted by both Houses of Parliament. The members of the Tribunal are the Rt Hon Lord Saville of Newdigate (a Lord of Appeal in Ordinary), the Rt Hon Sir Edward Somers (a retired judge of the Court of Appeal of New Zealand) and the Hon William L Hoyt (a former Chief Justice of the Supreme Court of New Brunswick).
3. The resolution establishing the Tribunal referred (following the language of s. 1(1) of the 1921 Act) to:
“a definite matter of urgent public importance, namely the events on Sunday, 30 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.”
4. In the course of those events, thirteen persons (none of them a member of the British armed forces) were shot and killed and at least that number were shot and wounded on the streets of Londonderry. 30 January 1972 has become known as ‘Bloody Sunday’. In the words of the written submission made to this court on behalf of the Tribunal,
“It is not in dispute that the majority, at least, of the casualties were the result of shooting by the British Army, but the circumstances of the shootings are, and always have been, acutely controversial. In broad terms, the Army version of events has been that soldiers fired only aimed shots at identified gunmen and nail and petrol bombers. The relatives of the dead and the injured, and many civilian witnesses, have maintained that the victims were innocent of any wrongdoing and that the shootings were unjustified and criminal.”
5. Immediately after this very grave incident both Houses of Parliament resolved to establish a tribunal of inquiry under the 1921 Act, and Lord Widgery, then the Lord Chief Justice of England and Wales, was appointed to conduct the inquiry. He held public hearings at Coleraine (which is about 30 miles from Londonderry) during February and March 1972, and later heard submissions in London. During the hearings in Coleraine, 114 witnesses gave oral evidence and were cross-examined. The witnesses fell (as Lord Widgery recorded in his report):
“into six main groups; priests; other people from Londonderry; press and television reporters, photographers, cameramen and sound recordists; soldiers, including the relevant officers; doctors, forensic experts and pathologists.”
6. Forty soldiers gave oral evidence to Lord Widgery. Five were senior officers who gave evidence under their own names, without making any application for anonymity. The others were permitted to identify themselves, and were referred to throughout the inquiry, by a system of code names. 28 soldiers admitted that they had fired live rounds on that day (rubber bullets were also fired) and 23 of them gave oral evidence; all these 28 were designated by letters of the alphabet (“lettered soldiers”). Other soldiers who gave evidence or were referred to in evidence were designated by numbers (“numbered soldiers”).
7. The anonymity accorded to the lettered and numbered soldiers does not appear to have been regarded by Lord Widgery as particularly controversial. He stated in his report:
“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. This arrangement did not apply to the senior officers, who are well known in Northern Ireland. Except for the senior officers, the individual soldiers and police officers are referred to in my Report by the letter or number under which they gave evidence in the Tribunal.”
8. As a result of observations made when an earlier application was considered by this court, further enquiries have been made about the original grant of anonymity and an affidavit has been sworn by Lieutenant Colonel Overbury, who then held the post of Assistant Director Army Legal Services (ADALS1) and was closely involved in the Army’s preparations for Lord Widgery’s inquiry. Colonel Overbury makes clear that soldiers were ordered to give evidence.
9. Under s. 1(1) of the 1921 Act the Tribunal presided over by Lord Saville has all the powers of the High Court in respect of enforcing the attendance of witnesses and compelling the production of documents. Under s.2(a) the Tribunal “shall not refuse to allow the public or any portion of the public to be present unless in the opinion of the tribunal it is in the public interest expedient so to do for reasons connected with the subject matter of the inquiry or the nature of the evidence to be given”.
10. Because of the way in which this matter has evolved, it is necessary to set out in some detail the course of the Tribunal’s proceedings since its establishment. The Tribunal delivered an opening statement in Londonderry on 3 April 1998. It has established an office in London and has instructed solicitors and counsel to the Tribunal. It has been engaged on the very onerous task of gathering and analysing documentary and written evidence (including films, sound recordings and still photographs), locating and interviewing witnesses (both civilian and military) and selecting and instructing expert witnesses. The Tribunal has also had to deal with various preliminary matters, including applications for anonymity. The public hearing was due to commence in September 1999 but has now been postponed.
11. The Tribunal held a preliminary hearing in Londonderry on 20 and 21 July 1998, having first circulated a memorandum listing and commenting on the matters to be addressed at the preliminary hearing. The memorandum covered representation of interested parties, documentary evidence and witness statements. Paragraphs 20, 21 and 22 dealt with applications for anonymity, for immunity from prosecution and for evidence to be heard in camera. Paragraph 20 was in the following terms:
“20.1 If any potential witness wishes to give evidence without revealing publicly his or her name and/or from behind a screen in order to conceal his or her face, an application should be made to the Tribunal in writing, explaining the reasons why this is considered necessary.
20.2 Each such application will be considered on its merits and, if anonymity is granted, the Tribunal will state the reasons in public.
20.3 If the interested parties have any general observations or submissions to make as to the circumstances in which such applications should or should not be granted, they are invited to do so in their written summaries.”
Paragraph 22 was in the following terms:
“22.1 It would only be in exceptional circumstances that the Tribunal would accede to an application by a witness or interested party for evidence to be given in camera. If the Tribunal were to accede to any such application, its reasons for doing so would be publicly stated.
22.2 The parties are again asked to set out in their written summaries any general submissions they may wish to make on this matter.”
12. On 24 July 1998 the Tribunal issued an 18 page document (“the preliminary ruling”) containing its rulings and observations on the matters raised at the preliminary hearing. The Tribunal rejected the suggestion that it should approach its task on the footing that the inquiry should be regarded as ordinary adversarial litigation between the families of the dead and the wounded (on the one hand) and the soldiers and the Ministry of Defence (on the other hand). The preliminary ruling quoted from the Report of the Royal Commission on Tribunals of Inquiry chaired by Lord Justice Salmon (1966, Cmnd 3121) and from a paper by Professor Walsh which was very critical of Lord Widgery’s inquiry. The Tribunal agreed with Professor Walsh’s general views on the function of an inquiry of this kind:
“The Tribunal of Inquiry by contrast is set up specifically to find the truth. It is expected to take a positive and primary role in searching out the truth as best it can. Certainly, it will seek the assistance of any interested party who has evidence to give or who has an interest in challenging the evidence offered by another party. It must be emphasised, however, that it is the Tribunal, and not the parties, which decides what witnesses will be called to give evidence. Indeed, strictly speaking there are no parties, no plaintiff and defendant, no prosecutor and accused, only an inquiry after the truth. It is the Tribunal which directs that inquiry. All the witnesses are the Tribunal’s witnesses, not the witnesses of the parties who wish them to be called. Whether any individual witness will be called is a matter for the Tribunal. Moreover, the Tribunal can be expected to act on its own initiative to seek out witnesses who may be able to assist in the quest for the truth. Ultimately, the task facing the Tribunal is to establish the truth, not to make a determination in favour of one party engaged in an adversarial contest with another.”
13. The preliminary ruling explained in some detail how the Tribunal intended to act on its own initiative – for instance in instructing experts in different fields, publishing both the instructions and the expert’s reports as they were received. It then addressed the issue of anonymity, noting that the Treasury Solicitor and the Ministry of Defence had already indicated that applications for anonymity were likely to be made on behalf of soldiers who had been serving in Londonderry on Bloody Sunday. The Tribunal’s observations on this issue in the preliminary ruling are of such importance that they must be set out at length.
“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 [counsel for a group of families and wounded] referred to us a number of authorities in this field, including Scott v Scott [1913] AC 417, A – G v Leveller Magazine Ltd [1979] AC 440 and R v Murphy & Maguire [1990] NI 306. He also annexed to his written submissions a copy of an article by Gilbert Marcus, “Secret Witnesses” (1990) PL 207. 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, provided that the fundamental objective to which we have referred is not prejudiced. 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.”
14. Following on the preliminary ruling Mr Anthony Lawton, an Assistant Treasury Solicitor, applied by letter dated 2 September 1998 for anonymity on behalf of three lettered and four numbered soldiers, asking 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.”
15. A similar application was made by the Ministry of Defence, by letter dated 23 October 1998, on behalf of soldiers not then represented before the Tribunal. Since then the number of the Treasury Solicitor’s clients (that is, those for whom the Treasury Solicitor is acting in the Tribunal) has grown considerably. It is a much larger number than the 17 applicants for judicial review for whom the Treasury Solicitor is acting in these proceedings. Of the 28 soldiers who admitted firing live rounds on Bloody Sunday, five have died. All but one of the remaining 23 have left the Army. Each of the 17 applicants is one of these 23 lettered soldiers. All but three of them were serving in the First Battalion of the Parachute Regiment.
16. The Tribunal notified the other interested parties of the soldiers’ applications for anonymity, and two rounds of written submissions and supplementary submissions were made to the Tribunal in November and early December 1998. The Tribunal also had a written threat assessment dated 22 October 1998 provided by the Security Service. It is convenient to note at this point that none of the soldiers has applied for his evidence to be heard in camera, or for it to be given from behind a screen. Nor have any of the objectors to anonymity suggested that any soldier or ex-soldier should be required to disclose his present address, telephone number or occupation. The controversy has been limited to the issue of disclosure of witnesses’ true names.
17. On 14 December 1998 the Tribunal decided to grant only a limited form of anonymity, and on 17 December it published a written statement of further rulings and observations on venue and anonymity. The Tribunal decided not to give any general permission for the military witnesses to give evidence in London (rather than Londonderry). The Tribunal stated its reasons as follows:
“Whatever the rights and wrongs of what occurred on Bloody Sunday, in our view the natural place to hold at least the bulk of the hearings is, in these circumstances, where the events in question occurred.
We have concluded on the information presently available to us that this factor, so far as the soldiers generally are concerned, outweighs personal convenience and the expenditure required to make appropriate security and accommodation arrangements.”
18. However the Tribunal recognised that changing circumstances or particular matters affecting individuals might call for reconsideration of this general conclusion.
19. The Tribunal’s statement then set out its decision on anonymity. Since that decision has been quashed by the Divisional Court on an earlier application for judicial review, it is not necessary to set out the decision and the stated reasons in detail. It is sufficient to summarise it as follows:
(a) The Tribunal did not accept that the grant of anonymity before Lord Widgery’s inquiry raised a presumption in favour of anonymity.
(b) The Tribunal accepted that the military witnesses’ fears of reprisals were both genuine and reasonable, but saw “no concrete evidence of a specific threat”.
(c) The Tribunal did not see anonymity as an encouragement to perjury : “there is a real possibility that it would, at least in some cases, have the opposite effect of encouraging greater candour.”
(d) The Tribunal saw weight in the argument that the families of the dead and the injured were entitled to know the names of those who accused the dead and injured of having been armed with firearms, nail-bombs or petrol-bombs; but regarded that factor as significantly offset by the inquisitorial nature of the proceedings.
(e) The Tribunal attached great weight “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. 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 … 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.” Essentially the same reasoning lies at the heart of the Tribunal’s later decision which is now under review.
(f) The Tribunal’s decision was, subject to further applications based on particular circumstances, to grant to the lettered soldiers only a limited form of anonymity under which a witness’s surname would be published (unless particularly unusual) but not his forenames.
20. On 5 February 1999 the Treasury Solicitor applied for leave to move for judicial review of the Tribunal’s decision on anonymity. The application was made on behalf of four lettered soldiers (B,O,U and V). On 16 March 1999 the Divisional Court (Kennedy LJ and Owen and Blofeld JJ) unanimously quashed the decision and remitted it to the Tribunal for redetermination. The Divisional Court reached its conclusion on five grounds, the first of which was that the Tribunal had misunderstood the nature and extent of the anonymity granted by Lord Widgery in 1972. The judgment of the court concluded:
“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.”
21. The Divisional Court refused leave to appeal. The members of the Tribunal applied to this court for leave to appeal on one point only, that is the Tribunal’s understanding of the grant of anonymity by Lord Widgery. The application was expedited and on 30 March 1999 this court (Lord Woolf MR and Otton and Ward LJJ) granted permission to appeal but unanimously dismissed the appeal.
22. So the question of anonymity was remitted to the Tribunal for redetermination. The Tribunal had already (before the hearing in this court) written to the Treasury Solicitor (with copies to all interested parties) indicating that it would reconsider the whole question of anonymity “entirely afresh” and inviting further submissions, especially on particular issues identified in the letter. These included the issue of derogation from the Tribunal’s public investigative function. The letter stated:
“The Tribunal regards it as its duty to carry out its public investigative function in a way that demonstrates to all concerned that it is engaged in a thorough, open and complete search for the truth about Bloody Sunday and that this prima facie involves the giving of evidence by all witnesses under their proper name. The Tribunal may well have to balance this consideration against competing considerations relating to the security of the relevant soldiers. But the Tribunal would like to know whether you contend that the Tribunal has misunderstood its duty and, if so, to explain why.”
23. The letter also asked the Treasury Solicitor and the Ministry of Defence to arrange for a new threat (or risk) assessment in unambiguous terms.
24. The response of the Security Service was that the threat posed “to the UK mainland has risen since the previous assessment was made”. It added that “the military has long been regarded as a legitimate target by Republican terrorists and numerous military personnel have been attacked on the mainland. Military targets are currently at a significant level of threat” (emphasis supplied) .The assessment concluded by saying:
“Whilst the soldiers involved in the events of Bloody Sunday remain unidentified, the threat to them will be potential rather than actual, since it will not be possible for terrorists to undertake the planning which would be necessary in order to mount an attack against them”.
25. In answer to a response for clarification under the heading Different Categories of Military Personnel, it was stated:
“In relation to the categories of soldiers identified by the Inquiry, we would expect their attractiveness as targets to rank as follows (beginning with the least attractive):
1. Current or former soldiers,
2. Current or former soldiers from the Parachute Regiment,
3. Soldiers or ex soldiers who took part in Bloody Sunday, and
4. Soldiers or ex soldiers who fired live rounds on Bloody Sunday.
This ranking is based upon the political and emotive significance of each category to the Republican Movement.
In order to assess the threat to any particular soldier it would be necessary to carry out an individual assessment, on the basis of detailed personnel information provided by him. The names of the soldiers who fired live rounds on Bloody Sunday are not currently available to terrorists. Therefore there has been no possibility of terrorists attempting to target them. In the event of their being identified, they would be more likely, currently, to be at a significant level of threat, with the possibility of this rising in the event of the overall mainland threat also rising. In the event of the provisional IRA returning to violence, then the overall level of threat on the mainland would certainly rise.
When an individual is assessed to be at a particular level of threat, this is of more consequence than an assessment that the threat to a category of individuals is at that level. When the threat to military targets is assessed as significant, this means there is a significant chance of an attack taking place on any (unspecified) military target. When the individual is assessed to be as at significant threat, this means that there is a significant chance of him or her personally being targeted for attack”.
26. Further lengthy written submissions were made to the Tribunal by the Treasury Solicitor, the Ministry of Defence, counsel acting for soldier H (who had been singled out for criticism by Lord Widgery) and counsel acting for the family of James Wray (one of those killed on Bloody Sunday), counsel acting for the family of Bernard McGuigan (one of those killed on Bloody Sunday), counsel for the family of Alexander Nash who is now dead but was wounded, and William Nash (one of those killed on Bloody Sunday), counsel for two of the injured Mr Michael Bradley and Mr Michael Bridge and counsel on behalf of the remainder of the deceased and injured. The Tribunal held oral hearings in Londonderry on 26 and 27 April to consider the renewed applications for anonymity. It reached a decision on 5 May and published its ruling on 7 May. The general effect of the ruling was to require all military witnesses to be identified by their true names (both forenames and surnames).
27. After rejecting applications on behalf of a wider class the Tribunal expressed its essential conclusion in relation to the lettered soldiers in paragraph 28 of the written decision:
“That leaves those who fired live rounds on Bloody Sunday. As to these there is a further consideration, which we pointed out in our December ruling. This is that the conduct of these soldiers lies at the very heart of this Inquiry. It is the firing on the streets that was the immediate cause of loss of life. It is that loss of life that we are publicly investigating. To conceal the identity of those soldiers would, as it seems to us, make particularly significant inroads on the public nature of the Inquiry. As a group they are assessed as more attractive targets than the generality of soldiers and thus face a higher likelihood of terrorist attack if they are identified, but this increased threat is not considered sufficient, at least at present, to move them from the “significant” to a higher category. On the basis of the general assessment, we have concluded that the danger to the soldiers who fired live rounds on Bloody Sunday does not outweigh or qualify our duty to conduct a public open inquiry.”
28. The Treasury Solicitor (by then acting on behalf of 17 lettered soldiers) again applied for leave to move for judicial review and Collins J granted permission on 26 May 1999. On 17 June the Divisional Court by a majority quashed the Tribunal’s decision that the names of military witnesses should be disclosed, to the extent that that decision applied to the 17 applicants and other soldiers who fired live rounds in Londonderry on 30 January 1972. The Tribunal has appealed to this court with the permission of the Divisional Court.

The Task of the Tribunal

29. It is impossible to overestimate the difficulty of the task on which the Tribunal is engaged. The issues which are involved are ones of great sensitivity. They are issues on which very entrenched but different opinions are held by those who have an interest in its outcome. There are undoubtedly among the public those who will be prepared to misinterpret any action of the Tribunal. They will seize on any decision that they dislike as indicating that the Tribunal is lacking in impartiality. The Tribunal has the problem of overcoming the immense handicap of exploring events which have taken place over 27 years ago. The task is made immeasurably more difficult because of there having been a previous enquiry, which, instead of dissipating, may have increased the controversy which surrounds the events of Bloody Sunday.
30. The Tribunal has however the great advantage of its uniquely distinguished membership. It has also the advantage of the quality of the Tribunal’s own legal team and the fact that it has been able to make legal representation available to those likely to be directly affected by its activities. The Tribunal has already been able to demonstrate the thoroughness and the openness of the enquiry which it is undertaking.
The Role of the Court
31. It is accepted on all sides that the Tribunal is subject to the supervisory role of the courts. The courts have to perform that role even though they are naturally loath to do anything which could in any way interfere with or complicate the extraordinarily difficult task of the Tribunal. In exercising their role the courts have to bear in mind at all times that the members of the Tribunal have a much greater understanding of their task than the courts. However subject to the courts confining themselves to their well-recognised role on applications for judicial review, it is essential that they should be prepared to exercise that role regardless of the distinction of the body concerned and the sensitivity of the issues involved. The court must also bear in mind that it exercises a discretionary jurisdiction and where this is consistent with the performance of its duty it should avoid interfering with the activities of a tribunal of this nature to any greater extent than upholding the rule of law requires.
32. One aspect of the courts’ role in this case has been controversial. That is as to the intensity of the scrutiny which the courts are required to adopt when reviewing the reasonableness of the Tribunal’s decision as to anonymity. Is the role limited to ascertaining whether the decision is rational or does it involve adopting some other test? Is it correct to say that because a fundamental right of the soldiers is involved the threshold of irrationality is lowered? In answering these questions, it is as well to start by remembering that the reason for the usual Wednesbury standard being applied is because the body whose activities are being reviewed has the responsibility of making the decision and not the courts. In addition that body in the majority of situations is going to be better qualified to make decisions than the courts. It is only where the decision is unlawful in the broadest sense that the courts can intervene. The courts have the final responsibility of deciding (whether a decision is unlawful) and not the body being reviewed. The courts therefore can and do intervene when unlawfulness is established. This can be because a body such as a tribunal has misdirected itself in law, has not taken into account a consideration it is required to take into account or taken into account a consideration which it is not entitled to take into account when exercising its discretion. A court can also decide a decision was unlawful because it was reached in an unfair or unjust manner.
33. However, there are some decisions which are legally flawed where no defect of this nature can be identified. Then an applicant for judicial review requires the courts to look at the material upon which the decision has been reached and to say that the decision could not be arrived at lawfully on that material. In such cases it is said the decision is irrational or perverse. But this description does not do justice to the decision maker who can be the most rational of persons. In many of these cases, the true explanation for the decision being flawed is that although this cannot be established the decision-making body has in fact misdirected itself in law. What justification is needed to avoid a decision being categorised as irrational by the courts differs depending on what can be the consequences of the decision. If a decision could affect an individual’s safety then obviously there needs to be a greater justification for taking that decision than if it does not have such grave consequences.
34. As to the appropriate test in this case, both Mr Clarke and Sir Sydney Kentridge QC on behalf of the soldiers were agreed. It is the test adopted by Lord Bingham CJ in the Court of Appeal inR v Ministry of Defence ex parte Smith [1996] QB 517. The test was based on submissions of Mr David Pannick QC in that case. They were in these terms:
“The court may not interfere with the exercise of an administrative discretion on substantive grounds save if the court is satisfied 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 applying above.”
35. Lord Bingham indicated that he regarded this statement as “an accurate distillation of the principles laid down by the House of Lords in R v Secretary of State for the Home Department, ex parte Bugdaycay [1987] AC 514 and R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696” and we would respectfully agree with him.
36. In the Divisional Court in ex parte Smith, Lord Justice Simon Brown (at p 538) expressed agreement with what Neill LJ had said in Ex parte National and Local Government Officers Association [1992] 5 Admin LR 785 at 797-798 in regard to the impact of the European Convention on Human Rights before that Convention became part of our domestic law in the context of proportionality. Simon Brown LJ said:
“In short, I respectfully conclude with Neill LJ that even where fundamental human rights are being restricted, “the threshold of unreasonableness” is not lowered.”
However, Simon Brown LJ added:
“On the other hand, the Minister on judicial review will need to show that there is an important competing public interest which he could reasonably judge sufficient to justify the restriction and he must expect his reasons to be closely scrutinised.”
37. Again we would respectfully agree with the second quotation from the judgment of Simon Brown LJ. What is important to note is that when a fundamental right such as the right to life is engaged, the options available to the reasonable decision maker are curtailed. They are curtailed because it is unreasonable to reach a decision which contravenes or could contravene human rights unless there are sufficiently significant countervailing considerations. In other words it is not open to the decision maker to risk interfering with fundamental rights in the absence of compelling justification. Even the broadest discretion is constrained by the need for there to be countervailing circumstances justifying interference with human rights. The courts will anxiously scrutinise the strength of the countervailing circumstances and the degree of the interference with the human right involved and then apply the test accepted by the Lord Chief Justice in Smithwhich is not in issue.
38. Turn to the role of the courts on judicial review to ensure procedural fairness. This need for fairness was a matter central to the report of the Royal Commission on Tribunals of Inquiry under the chairmanship of Lord Justice Salmon in 1966. The Commission having come to the conclusion that the 1921 Act type of tribunal should be retained subject to the qualification set out in the Report went on to consider in detail how to improve the safeguards for witnesses and interested parties. Because of the needs for fairness, many of the recommendations of the Commission are now conventionally adopted, not only by statutory tribunals, but in the case of other inquiries, including departmental inquiries. The Royal Commission made it clear that they did not believe that it could ever be right for an inquiry of this kind to be held entirely in secret (para. 39). In Re Pergamon Press Ltd [1971] Ch. 388 Lord Denning MR, said of Board of Trade inspectors, that they must act fairly. He went on to indicate that inspectors have a duty to protect witnesses. He recognised that inspectors “must be masters of their own procedure” but subject to the overriding requirement that “they must be fair”. Although we are here concerned with a very different type of inquiry from that being considered in the Pergamon case, it can equally be said of this Tribunal that while it is master of its own procedure and has considerable discretion as to what procedure it wishes to adopt, it must still be fair. Whether a decision reached in the exercise of its discretion is fair or not is ultimately one which will be determined by the courts. This is because there is an implied obligation on the Tribunal to provide procedural fairness. The Tribunal is not conducting adversarial litigation and there are no parties for whom it must provide safeguards. However the Tribunal is under an obligation to achieve for witnesses procedures which will ensure procedural fairness. (See Lloyd v MacMahon [1987] AC 625 at pp. 702H-703A per Lord Bridge of Harwich and R v The Secretary of State for the Environment, ex parte Hammersmith and Fulham LBC[1991] 1 AC 521 at p. 598F.) As to the content of the requirement of procedural fairness, this will depend upon the circumstances and in particular on the nature of the decision to be taken (seeCouncil of the Civil Service Unions v Minister of Civil Service [1985] AC 374 at p. 411H per Lord Diplock and at p. 415A/B per Lord Roskill relied upon by Mr Clarke on behalf of the Tribunal in further submissions which he made to the court at its request.) The requirement of procedural fairness for witnesses is well recognised in the courts by allowing witnesses to give evidence behind screens. A defendant opposing the evidence being given in this way could make this a ground of complaint on appeal. At this inquiry where there are no defendants the requirement of procedural fairness surely involves an obligation to be fair to witnesses, including, for example, protecting them when necessary or giving them notice in a Salmon letter of proposed findings of improper conduct.
39. After the conclusion of the hearing, it occurred to the court that an alternative approach to the issue on this appeal from that argued was, in addition to considering the reasonableness of the decision to which the Tribunal had come, to also consider the fairness of that decision. The court therefore sought the assistance of the parties as to whether or not to grant anonymity to the soldiers was a question involving the fairness of the procedure which the Tribunal was proposing to adopt and, if so, what was the court’s role in relation to this? In answer to the court’s questions, in addition to the helpful submissions from Mr Clarke the court also received helpful submissions from Mr Coyle on behalf of the families and Sir Sydney Kentridge QC and his team on behalf of the soldiers. Mr Burnett QC on behalf of the Ministry of Defence indicated by letter that he did not dissent from this approach and accepted it would be for the courts to rule upon the question of unfairness as a matter of law, but he made it clear that the Ministry of Defence still maintained that the decision of the Tribunal was unreasonable.
40. Mr Coyle in his submissions stressed that procedural fairness must be viewed in the round and fairness to the former military witnesses was only one dimension of the question posed; it was also necessary to consider the interests of the dead and injured and the public interest. With this submission we are in agreement.
41. The additional submissions on behalf of the soldiers relied upon the decision of this court in R v The Panel on Takeovers and Mergers, ex parte Guinness [1990] 1 QB 146. In that case Lord Donaldson MR said at pp 178-9:
“As I have already indicated, I think that, at least in the circumstances of this appeal, it is more appropriate to consider whether something has gone wrong of a nature and degree which require the intervention of the court, rather than to approach the matter on the basis of separate heads of Wednesbury unreasonableness and unfairness or breach of the rules of natural justice: seeAssociated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. In passing I would, however, accept that whether the rules of natural justice have been transgressed is not to be determined by a Wednesbury test: “Could any reasonable tribunal be so unfair?” On the other hand, fairness must depend in part on the tribunal’s view of the general situation and aWednesbury approach to that view may well be justified. If the tribunal’s view should be accepted, then fairness or unfairness falls to be judged on the basis of that view rather than the court’s view of the general situation.”
At p184 Lloyd LJ said:
Mr Buckley argued that the correct test is Wednesbury unreasonableness, because there could, he said, be no criticism of the way in which the panel reached its decision on 25 August. It is the substance of that decision, viz, the decision not to adjourn the hearing fixed for 2 September, which is in issue. I cannot accept that argument. It confuses substance and procedure. If a tribunal adopts a procedure which is unfair, then the court may, in the exercise of its discretion, seldom withheld, quash the resulting decision by applying the rules of natural justice. The test cannot be different, just because the tribunal decides to adopt a procedure which is unfair. Of course the court will give great weight to the tribunal’s own view of what is fair, and will not lightly decide that a tribunal has adopted a procedure which is unfair, especially so distinguished and experienced a tribunal as the panel. But in the last resort the court is the arbiter of what is fair. I would therefore agree with Mr Oliver that the decision to hold the hearing on 2 September is not to be tested by whether it was one which no reasonable tribunal could have reached.” (Emphasis supplied)
At pp. 193-194 Woolf LJ added:
“On the application for judicial review it is appropriate for the court to focus on the activities of the panel as a whole and ask with regard to those activities, in the words of Lord Donaldson of Lymington MR, “Whether something has gone wrong” in nature and degree which requires the intervention of the courts. Nowadays it is more common to test decisions of the sort reached by the panel in this case by a standard of what is called “fairness”. I venture to suggest that in the present circumstances in answering the question which Lord Donaldson of Lymington MR has posed it is more appropriate to use the term which has fallen from favour of “natural justice”. In particular in considering whether something has gone wrong the court is concerned as to whether what has happened has resulted in real injustice . If it has, then the court has to intervene, since the panel is not entitled to confer on itself the power to inflict injustice on those who operate in the market which it supervises .” (Emphasis supplied)
42. Mr Clarke, in his submissions, argues that while there is an entitlement to procedural fairness, this does not encompass a right to anonymity. Fairness requires no more than that the soldiers can apply for anonymity and be given a decision on the merits of their application reached by a fair procedure. Mr Clarke’s approach to the decision whether to grant or withhold anonymity is that it is not an issue of a procedural nature. He submits that this conclusion is supported by the fact that a decision to withhold anonymity could not result in the ultimate decision of the Tribunal being quashed.
43. We cannot accept Mr Clarke’s approach. The fact that a court would not quash the final decision of a Tribunal on a procedural ground does not mean that a preliminary decision would not be quashed. The unfair refusal of an interpreter or an adjournment are very much the type of decisions which, if the subject of an immediate application for judicial review, will be reversed by the courts although the final decision would not be. The concern of the court is whether what has happened has resulted in real injustice.
44. It may well be that in the majority of cases the decision will be the same whether the approach propounded by Lord Bingham in Smith is adopted or whether the issue is regarded as one of fairness. However it is still important to recognise that a decision not to grant anonymity to the soldiers could result in their being treated in a manner which is genuinely unfair. Unfair because it requires them to undergo an unnecessary risk.
The Decision of the Divisional CourtThe Decision of the Divisional Court
45. Roch LJ gave a judgment with which Maurice Kay J was in substantial agreement. Roch LJ considered the Tribunal had adopted the right test. He accepted that Sir Sydney Kentridge had posed the right question for the court by asking:
“Given the inquisitorial function of the Tribunal, and given its clear finding that anonymity would not impede its fundamental task of discovering the truth, could a reasonable Tribunal conclude that the additional degree of openness to be gained by disclosure of the names of the 17 soldiers who fired shots is so compelling a public interest as to justify subjecting them to a significant danger to their lives”.
46. In answering this question he pointed out that the Tribunal in its decision did not assess the inroads which withholding the names of the soldiers would make into the public nature of the inquiry and added that if it had assessed the inroad it would have found “that the derogation was with regard to the Tribunal’s duty to search for the truth, nil and with regard to the duty to hold a public inquiry, limited”.
47. Roch LJ went on to indicate that the Tribunal had departed from the correct test which they had propounded in July 1998. Instead they had adopted a different approach, which did not “accord to the applicants’ fundamental human rights the required weight”. This coupled with the failure of the Tribunal to analyse the extent to which granting anonymity to the soldiers would detract from the Tribunal’s obligation to conduct an investigation which would, in the eyes of responsible people, be public, open and thorough and lead to accurate findings meant the decision was flawed.
48. Maurice Kay J for similar reasons came to the same conclusion. He added, however, that he saw considerable force in the submission that the Tribunal had not done justice to the material which the MOD had provided as to risk.
49. Hooper J, in his dissenting judgment, pointed out that what was involved here was a balancing exercise in which the Tribunal had to weigh up various competing factors in deciding whether or not to grant anonymity. In particular, the risk to a soldier and his family of not granting anonymity had to be weighed as against the necessity to find the truth about Bloody Sunday and the requirements of open justice. He then compared the situation before the Tribunal with that which arises before the Criminal Courts from time to time and he concluded that the Tribunal had anxiously considered the matter and that sitting in London he would be most reluctant to interfere with the conclusion of such a distinguished and “international” Tribunal.
50. In the course of his judgment, Hooper J stated:
“Although the greater the danger the more weight must be given to the risk factor, the practice in the Criminal Courts to which I have already referred both in England and, more importantly, in Northern Ireland, shows that anonymity may not be granted even where risks are much higher than in this case”.
51. For this statement he does not cite any authority and it does appear that he may be under a misapprehension since at least an examination of the authorities which were put before this court indicates that wherever there was risk to life anonymity was granted both in this jurisdiction and in Northern Ireland and the parties were unaware of any case where anonymity had not been so granted. The qualification that may be necessary is that where someone is a defendant to a criminal charge, his identity will be made known.
The Second Decision
52. Although all three judgments in the Divisional Court gave very careful consideration to the issues which are before us, in a case of this sort, the outcome of this appeal involves our having to analyse the second decision of the Tribunal afresh. We have to form our own judgment as to whether it is flawed on the grounds of unfairness or lack of reasonableness. We therefore propose to consider the relevant paragraphs of the second decision in turn. In doing so we will single out particular passages of that decision for comment but we are at all times mindful that it is essential when engaging in an exercise of this kind to look at the decision as a whole.
53. We can start at paragraph 11 where the Tribunal states that it “has as its fundamental objective the finding of the truth about Bloody Sunday. It regards itself as under a duty to carry out its public investigative function in a way that demonstrates to all concerned that it is engaged in a thorough, open and complete search for the truth about Bloody Sunday”. To this statement of its duty it adds a reference to having to conduct the inquiry in accord with “the principle of open justice in a democratic society”.
54. The Tribunal is undoubtedly right in identifying that it has these duties. However having regard to what we have already said, it is clear that the Tribunal is also under a further duty and that is a duty to be fair to the soldiers.
55. In the next paragraph the Tribunal indicates that:
“in the absence of compelling countervailing factors, those who give evidence to the Tribunal should do so under their proper names. This after all is an Inquiry into events in which people lost their lives and were wounded by British army gunfire on the streets of a city in the United Kingdom. To withhold the names of those in the army who were concerned with that event must detract from an open search for the truth about what happened; and must need justification of an overriding kind. It is of course correct to bear in mind (as we said in December) that it is unlikely that the Tribunal would be hampered in its objective of finding the truth about Bloody Sunday by granting anonymity (since the Tribunal is an inquisitorial body and would itself know the identify of the witnesses), but this does not really take the matter much further forward, since what is presently at issue is the question of the duty laid on the Tribunal as to the manner in which it should seek that objective. The Tribunal must conduct what Lord Justice Salmon described in his Report as a “public investigation”.”
56. In relation to this paragraph it is important to note the reference to “compelling countervailing factors”. It is difficult to envisage a more compelling factor than that the withdrawal of anonymity could subject the soldiers to risk of a fatal attack. Furthermore, it is important not to overstate the extent to which the failure to name the soldiers would detract from the open search for truth. The soldiers would still give evidence openly in public. The Tribunal and counsel for the Tribunal would know their names. If any investigation as to their credibility was required, the Tribunal could carry out this investigation. Having carefully considered Mr Clarke’s submissions we are left with the clear impression that not only would the Tribunal not be hampered in its objective of finding the truth, but in fact the open search for the truth would only be restricted in a marginal way. Like Roch LJ, we are concerned that the Tribunal has not assessed what would be the real disadvantage of the soldiers giving their evidence under labels rather than in their own names.
57. In the next paragraph of their decision (paragraph 13) the Tribunal reject the suggestion of Lord Justice Otton on the previous appeal to this court that “it might be fairer to impose the obligation on those seeking to remove the anonymity (rather than those seeking to sustain it)”. The Tribunal then state that while they are not making their decision on the basis of who has the burden of proof, they are bound to say that in their judgment “it is not open justice that needs to be justified but rather any departure from open justice”. Again, this paragraph does appear to play down the significance which should be attached to the risk to the soldiers. Surely it could be said equally that the need for increasing the risk to the soldiers has to be justified.
58. The Tribunal then proceeds to consider the effect of Lord Widgery’s agreement to afford anonymity. As to this the Tribunal concludes that the assurance falls away because of the compelling unforeseen circumstance that the second inquiry could not be anticipated. The Tribunal goes on to say “we consider that our ability to restore confidence will be undermined, unless we can form a wholly independent judgment, based on the facts before us, on the question of anonymity and indeed on any other question that we have to consider”.
59. This approach of the Tribunal is inconsistent with the first decision of this court. However, it is not necessary to do more than note the position because the Tribunal proceeded to consider what would be the situation if they were wrong in the approach they had adopted as to the assurance. As to this they say that “although it is an important consideration, it does not of itself or together with any other matters relied upon by the soldiers, amount to a compelling countervailing factor that should override our duty as we have stated it”. The Tribunal then compares the security position at the time of the Widgery Inquiry with that at the present time and points out that the present position is no way comparable. The Tribunal concludes by saying “of course no-one knows what the future may hold, and the bad days may return, but whether or not they will is at best a matter of speculation”. Again it may be said that this approach is not fair to the soldiers. The problem about the risk to which they are subjected is that once their identify is revealed, the die is cast and it is too late for the protection provided by anonymity to be restored. The increased risk referred to earlier has subsequently receded. It could again increase. This is a matter which the Tribunal could be expected to have in the forefront of its mind.
60. It is to the degree of danger to the soldiers to which the Tribunal then turn. Having stated that they considered that the soldiers have “grounds for their assertion that they have genuine and reasonable fears” the Tribunal indicates that this was a matter which they have considered with the greatest care. It says that “on the one side is our duty to carry out a public investigation: on the other the understandable fears for their personal safety and that of their families which we accept the soldiers have”. Reference is then made to the fact that in their December ruling they had “attempted to square the circle by suggesting that those who had the greatest reason to fear reprisals (the soldiers who fired live rounds on Bloody Sunday) could give their surnames only, thus providing both openness and a measure of security, but this attempt has failed on the grounds that security of surnames only was speculative”. They then indicate their conclusion that there is in fact “no way of satisfactorily reconciling the two considerations”. They then go on to set out their conclusions, which we should set out in full. Before doing so, it is right to point out that in setting out the conflicting interests there is no express reference to the Widgery assurance. Furthermore while the Tribunal is right to say that no-one is now advocating the use of surnames only, the previous decision implicitly recognised that the soldiers’ identities should be protected. That is clear because the previous ruling accepted that if a soldier could be traced by his surname, because it was unusual, then the Tribunal would consider the use of a different label. A surname which is so common that it would not result in a soldier being traced is no more revealing than a letter A, B or C. The reason why “surnames only” is no longer regarded as a method of squaring the circle is because since the previous decision it has been shown that even common names can result in the person concerned being traced. What the Tribunal have not expressly referred to in this paragraph is the fact that although the real risk to the soldiers has increased and the Widgery assurance has now been held to be a relevant factor which should be taken into account, the soldiers now find themselves in a worse position than they were in relation to the first decision although they have been successful in having the first decision set aside. Of course, this always can be the consequence of obtaining the quashing of any decision. You lose the benefit of the good as well as avoiding the bad. However soldiers and their families would be less than human if they did not perceive this as an unfairness.
61. The way the Tribunal expressed its conclusion is as follows:
“After the most anxious consideration we have concluded that on the basis of material presently before us our duty to carry out a public investigation overrides the concerns of the soldiers and does so even if the Widgery assurance continues to apply; and that accordingly the present application of the soldiers must fail”.
62. It will be noted that in their conclusion, the Tribunal do refer to taking into account the Widgery assurance. The Tribunal also indicate that they are prepared to consider applications for anonymity on special grounds; that they fully appreciate that the removal of anonymity is permanent and it is possible that the threat to the soldiers may increase; that the soldiers attractiveness as targets can be divided into four categories:
1. current or former soldiers.
2. current or former soldiers from the Parachute Regiment.
3. soldiers or ex-soldiers who took part in Bloody Sunday.
4. soldiers or ex-soldiers who fired live rounds on Bloody Sunday.
63. However all serving or former soldiers fall within the significant category and are “priority” targets and that the danger created by identifying soldiers is one that is borne and has for many years been borne by hundreds if not thousands of serving or former soldiers and is not such as to override the Tribunal’s duty to conduct a public investigation.
64. In relation to soldiers who fired the live rounds, the Tribunal says that these soldiers lie at the heart of the Inquiry. It therefore considers that not to reveal the identity of those soldiers would make “particularly significant inroads on the public nature of the Inquiry”. The Tribunal concludes that the danger to the soldiers who fired live rounds on Bloody Sunday does not outweigh or qualify their duty to conduct a public open inquiry. The Tribunal refers to the fact that while there had been a reprisal attack immediately after Bloody Sunday there was no evidence to suggest that any of the soldiers involved in Bloody Sunday had been subject to an attack for that reason though a number of the soldiers involved are known or could have been identified.
65. The Tribunal then acknowledges it could have deferred its decision on anonymity until it was making its report. It rejects that course because the Tribunal regards it as its “duty not only to report what we believe to be the truth, but also to conduct an open and public investigation”. The Tribunal state that they have not forgotten their previous ruling in which they indicated that it was a real possibility that anonymity would have the effect of encouraging greater candour but again they say that this “is not sufficient to override our duty to carry out a public investigation.” Finally they state that, in accordance with their ruling, the names of the soldiers were to be given but their addresses, telephone numbers and other personal details apart from their names would not be published without the consent of the soldiers. This however it is accepted will not prevent their being recognised.
66. Having dealt with the soldiers’ application, the Tribunal went on to deal with five applications for anonymity by officers of the RUC. In their case, the Tribunal indicates that they regard the officers fears as being genuine and reasonable and having “very considerable substance” and that the limited degree of screening which is sought was justified in their case.
Our Conclusions
67. Having considered in detail the decision of the Tribunal and made our comments on the detail, before reaching our conclusion, we regarded it as important to look at the situation as a whole. When doing this, we repeat that we are conscious of the fact that the members of the Tribunal start with the considerable advantage of being continually immersed in investigating the available evidence as to what happened on Bloody Sunday. We also attach importance to the fact that Hooper J in a most carefully crafted judgment in the Divisional Court dissented from the views expressed by Roch LJ and Maurice Kay J. We are mindful of the submission of Mr Christopher Clarke directed to the majority of the Divisional Court but equally capable of being directed to this court (if we come to the same conclusion) that we would be acting unlawfully by usurping a decision which it was for the Tribunal to take and not the courts.
68. Nonetheless, we are satisfied that the decision of the majority of the Divisional Court was right for the reasons they gave and Hooper J’s conclusion was wrong. We come to that view, not primarily because of the points of criticism which can be made as to the reasoning of the Tribunal. Those criticisms would not in our judgment in themselves entitle the court to interfere. As is to be expected, the reasoning in general is of a high order and indicates that the members of the Tribunal were as they indicated struggling to reconcile the conflicting considerations. Notwithstanding this it appears to us:
1. The Tribunal has failed to attach sufficient significance to the fact that by carrying out a meticulous investigation and, being prepared to reconsider every issue, the Tribunal is manifestly not only performing its primary role of discovering the truth in so far as this can be ascertained, but also establishing public confidence in the result of its deliberations. Here it should be remembered that the 1921 Act in section 2 itself recognises that there can be circumstances where the public are excluded because it is “in the public interest expedient to do so”. The statute itself is, therefore, acknowledging that an Inquiry can perform its primary duty even though the public are excluded in part from its investigation.
2. The Tribunal having acknowledged in its July preliminary hearing and to a lesser extent in its first ruling in December 1998 that there can be in-roads on openness in an Inquiry of this sort, surprisingly seems to have lost sight of the fact that the inroad on openness involved in allowing the soldiers to use letters instead of names is limited. This is because: (i) the evidence would still be given in public with the soldiers capable of being observed while giving their evidence; (ii) the Tribunal know their names and as Mr Clarke accepted could investigate any matters going to credibility; (iii) their officers who were in charge and should have been controlling events will be named; (iv) if there was any reason for naming a particular soldier this could still be done; (v) the ability for the Tribunal to reach the truth was as the Tribunal acknowledged not going to be undermined.
3. In such a situation, the Tribunal would certainly be still conducting an inquiry in public. (If authority is needed, it is provided by R v The Newcastle Upon Tyne Coroner, ex parte A [January 19, 1998] Times Law Report). Reasons why it is important for a court to sit in public which were identified in The Attorney General v Leveller Magazine Limited [1979] AC 440 at p. 449H andR v Socialist Worker ex parte The A-G [1975] 1 QB 637 at p.651 – 652 would not be contravened. The supervision by the public would still be present, providing the safeguard against arbitrariness or idiosyncrasy. The evidence would be communicated publicly; full reports of the proceedings would be possible. The names of the witnesses might be of interest but they would be of no real concern to the onlookers and if they became of concern then they could still be named. Hooper J attached importance to the analogy of criminal proceedings. However, in criminal proceedings there is a defendant and a defendant is entitled to know who is accusing him but this consideration does not arise here. Furthermore, in many criminal cases including rape cases and blackmail cases the identity of the victim is routinely concealed.
4. The Tribunal are obviously concerned about the perception of the families and their supporters. It is true that it is their concerns which have led to the establishment of the Tribunal. However, while of course the Tribunal had fully in mind the risk to the soldiers they do not seem to have paid sufficient attention to the fact that to deny the soldiers anonymity would certainly affect their perception of the fairness of the inquiry. It is here that the importance of the requirement of fairness to the soldiers and their families becomes significant. From the point of view of the families of the dead and wounded, the harm of concealing the names is objectively of no great significance. To the soldiers and their families it is of great significance. It is to be noted that Mr Coyle in his argument on behalf of the relatives of the late Bernard McGuigan indicates:
“The names of the principal military personnel including those who fired live rounds have been known by the family of Barney McGuigan for some considerable time, and by others with a common interest in the Inquiry.”
If this be right and it is a matter which is in issue, then it is difficult to understand why they should object to the soldiers not being named. The soldiers on the other hand with one exception are no longer in the army. Some of their families do not even know they were involved in Bloody Sunday. For them to find themselves in a situation where it is accepted that they have reasonable grounds for being in fear for their safety, 27 years after the events, will clearly be immensely worrying. From their point of view it is what they reasonably fear which is important not the degree of risk which the Tribunal identifies. The Ministry of Defence considers there are significant risks and if the Tribunal can properly perform its primary duty of finding the truth if they are not named, from the point of view of their perception, what is the justification for increasing the risk to which they are to be subjected? They can fairly ask whether the Tribunal has taken into account the effects of withdrawal of anonymity upon their perception of and confidence in the Inquiry.
5. The Tribunal did not agree with the approach indicated by Lord Justice Otton but we would endorse his approach. We agree with the Tribunal that the issue is not to be determined by the onus of proof. However, in our judgment the right approach here once it is accepted that the fears of the soldiers are based on reasonable grounds should be to ask is there any compelling justification for naming the soldiers, the evidence being that this would increase the risk. It is here that Sir Sydney Kentridge rightly relies on Lord Diplock’s opinion in Fernandez v The Government of Singapore and Ors [1971] 1 WLR 987. The case was concerned with a different situation from that being considered here namely should a person be returned under s.4 of The Fugitive Offenders Act 1967. However, Lord Diplock’s words as to the prejudice a fugitive might be subjected to (not involving a risk to his life but a risk of his being inappropriately tried or punished) are nonetheless relevant. At p.994C Lord Diplock said:
“The degree of confidence that the events specified in the paragraph will occur which the courts should have in order to justify refusal to return the fugitive is not determined by the mere use of the subjunctive mood of the auxiliary verb “may”.
It should, as a matter of common sense and common humanity, depend upon the gravity of the consequences contemplated by the section on the one hand of permitting, and on the other hand of refusing, the return of a fugitive if the courts’ expectation should be wrong”.
Later Lord Diplock added:
“My Lords, bearing in mind the relative gravity of the consequences of the court’s expectation being falsified in one way or in the other, I do not think the test of applicability of paragraph (c) is that the court must be satisfied that is more likely than not that the fugitive will be detained or restricted if he is returned. A lesser degree of likelihood is, in my view, sufficient; and I would not quarrel with the way in which the test was stated by the Magistrate or with the alternative way in which it was expressed by the Divisional Court. “A reasonable chance,” “substantial grounds for thinking,” “a serious possibility””.
When what is at stake is the safety of the former soldiers and their families, adopting Lord Diplock’s approach, the risk is extremely significant. After all the individual’s right to life is, as Lord Bridge stated in R v The Secretary of State for the Home Department, ex parte Bugdaycay [1987] AC 514 at p. 531, the most fundamental of all human rights. It does appear that the Tribunal may well have failed to attach sufficient significance to this.
6. The Tribunal may not have attached to the Widgery assurance the weight which we consider it should. Sir Sydney Kentridge did not pursue the contention contained in his respondent’s notice that the soldiers were entitled to say that the assurance gave them a substantive legitimate expectation. However we would attach more importance to it than the Tribunal appears to have done. The more time that elapsed without the soldiers’ expectation being contradicted, the greater the significance of the assurance. For 27 years they had enjoyed anonymity. To take away that anonymity after that period of time is a very significant event. The Tribunal pointed out the period of time which had elapsed without a serious incident. However it is inevitable that the holding of the Tribunal with soldiers giving evidence will re-kindle the flames of anger which have been smouldering for so long.
69. Examining the facts as a whole, therefore, we do not consider that any decision was possible other than to grant the anonymity to the soldiers. In referring to the soldiers we have been confining our conclusions to those soldiers who are most at risk namely the soldiers who either admitted firing rounds or are alleged to have fired rounds. While they are the soldiers who Sir Sydney represented, there are other soldiers who do not fall within this category. We were asked to indicate our views as to the position of other soldiers. We would like to do so because we are conscious that more attention has already been given to this issue than is desirable and further disputes should if possible be avoided. However, reluctantly we have come to the conclusion that it would not be right to say more than that we cannot say on the material before us that it would be unlawful for the Tribunal to insist on other soldiers being named.
We dismiss this appeal.
Order: Appeal dismissed. No order as to costs.