Royal Courts of Justice
London WC2A 2LL
Tuesday 30 March 1999
B e f o r e:
THE MASTER OF THE ROLLS
LORD JUSTICE OTTON
LORD JUSTICE WARD
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R E G I N A
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LORD SAVILLE OF NEWDIGATE
THE HONOURABLE SIR EDWARD SOMERS
THE HONOURABLE MR JUSTICE WILLIAM L HOYT
(Members of the Tribunal sitting as
THE BLOODY SUNDAY INQUIRY)
EX PARTE: B; O; U AND V
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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
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MR C CLARKE QC and MR A ROXBURGH (Instructed by Philip Ridd, London, EC3V 9JB) appeared on behalf of the Applicants.
MR E GLASGOW QC , MR D LLOYD JONES , MR M BOOLS (Instructed by The Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Respondents.
MR J COYLE (Instructed by Messrs Birnberg & Co, London, SE1 1NN, London agents for Desmond J Docherty & Co, Derry BT48 7EP, McCartney & Casey, Madden & Finucane and McDermott & McGurk) appeared on behalf of various parties.
MR I BURNETT (Instructed by the Treasury Solicitor, London, SW1H 9JS) appeared 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 30 March 1999
LORD WOOLF, MR: This is an application for leave to appeal part of a decision given by the Divisional Court, Kennedy LJ, Owen and Blofeld JJ, on 16 March 1999. On an application for judicial review, the Divisional Court granted five former soldiers, B, O, U, V and H, a declaration that a decision of the second Bloody Sunday tribunal, of 14 December 1998, set up by Parliament under the Tribunals of Inquiry (Evidence) Act 1921, was unlawful. The Divisional Court also granted an order of certiorari quashing that decision.
The decision which was quashed was that the five former soldiers, who had been granted anonymity at the first tribunal presided over by Lord Widgery, LCJ, in 1972, were not to have full anonymity if they are called to give evidence at the second inquiry. The decision was to be subject to any further decision of the tribunal.
The second tribunal is being conducted by the respondents, the Right Honourable Lord Saville of Newdigate, the Right Honourable Sir Edward Somers and the Honourable Mr Justice William L Hoyt. The hearing before the Divisional Court was expedited as was the hearing before this court. We are grateful for the helpful arguments which were prepared by all parties for this hearing, together with the skeleton arguments with which we were provided.
I turn to the background facts which I can largely take from the skeleton argument prepared by Mr Christopher Clarke QC, counsel to the inquiry. The tribunal inquiry was appointed to enquire into the events in Londonderry on 30 January 1972, commonly known as Bloody Sunday. In the course of those events, regrettably, 13 people were shot dead and at least that number injured by gunfire on the streets of Londonderry. It is not in dispute that the majority, at least, of the casualties was the result of shooting by members of the British Army, but the circumstances of the shooting are, and always have been, acutely controversial.
The army’s version of events is that the soldiers only aimed shots at identified gunmen and nail or petrol bombers. The relatives of the deceased and injured, and many civilian witnesses, maintain that the victims were innocent of any wrongdoing and that the shooting was unjustified and criminal.
Within a very short time of Bloody Sunday, a public inquiry into the events of that day was established under the Act, to be presided over by Lord Widgery, LCJ. Public hearings were held in Colerain in February and March 1972. Lord Widgery’s Report was presented to Parliament in the following month. That is within a remarkably short period of time.
The relatives of some of the dead and injured have never accepted the findings and conclusions of the Widgery Report. Rightly or wrongly, vigorous criticism of that Report and the procedures of the tribunal have been made over the years by a number of commentators. Those criticisms contributed to the pressure for a new inquiry to be set up into the events of Bloody Sunday. On 29 January 1998 the Prime Minister announced his decision to establish the “second tribunal” to conduct a fresh investigation of those events. We were informed that the terms of reference of both tribunals were the same.
An opening statement was delivered to the second tribunal in Londonderry on 3 April 1998. Various matters were considered at a hearing of 24 July 1998. That hearing of 24 July 1998 is a hearing to which I will have to make further reference. Further rulings made by the second tribunal as to the venue for the hearings and anonymity of military witnesses were published on 17 December 1998. It was these rulings which gave rise to the application for judicial review.
Although the preparatory work for the tribunal has been carried out in London, the public hearings are due to be held at the Guildhall in Londonderry commencing on 27 September 1999. The hearings will obviously take a long time and it is difficult at this stage to estimate when they will conclude. As a result of the decision of the Divisional Court, further consideration will have to be given to the ruling on anonymity.
As I indicated at the outset of this judgment, the application for leave to appeal only concerns part of the decision of the Divisional Court. It is accepted by the second tribunal that the issue of anonymity will need to be reconsidered afresh and the and the tribunal is naturally anxious that reconsideration should take place as soon as possible. It is because of the concerns of the tribunal, and of this court, that the parties should have as much time as possible to prepare for any further hearing in relation to the question of anonymity, that this court is giving judgment immediately, having heard argument yesterday, and has not reserved judgment as it would otherwise have wished to do.
At the first tribunal 40 soldiers gave oral evidence, including 23 of the 28 soldiers who admitted that they had fired live rounds on the day. Five of the witnesses at the first tribunal, who were senior officers, gave evidence under their own name. Their identities were widely known in any event. Other military witnesses were allowed to give evidence anonymously. Those who admitted that they fired live rounds were given code letters, others were given code numbers.
The tribunal accepts that it is subject to the supervision of the courts in an application for judicial review, although under section 2 of the Act of 1921 it has certain of the “powers, rights and privileges” vested in it of the High Court in relation to obtaining evidence. The Divisional Court also found in favour of the applicants, who were the soldiers to whom I referred, on five grounds. Those grounds were set out in paragraph 12 of the judgment under the heading “Conclusion”. I set out those 5 grounds:
“(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 [on behalf of the soldiers] 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.”
It is this ground which gives rise to this appeal. The grounds continue:
“(2) We are further satisfied that the July statement [24 July 1998], 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.”
Mr Solomons is a member of the Treasury Solicitor’s Department acting on behalf of the Ministry of Defence.
“(4) We are troubled by the fact that having given in its July statement a clear indication of what anyone 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.”
Having set out the five grounds, I would examine the first ground which is challenged in this court. The Divisional Court, in accordance with the usual practice nowadays, set out its reasons for refusing leave to appeal to this court in the following terms:
“This is essentially an ‘interlocutory’ appeal and our decision requires the Inquiry to reconsider whether certain witnesses should not be named. We come to that conclusion because we were satisfied as to [a] number of complaints made in relation to the original ruling. When the Respondents sought leave to appeal only one point was raised, namely our interpretation of the assurances given by Lord Widgery in 1972, which differs from that of the Inquiry, but even if we were wrong about that the result would still be the same.”
In other words the Divisional Court were indicating that, although they gave five reasons for their decision and those reasons are obviously, to an extent, cumulative, if they were wrong in relation to the first reason they would still have come to the same decision. This would then be on the basis of the other four reasons which they gave.
Having regard to the fact that only one of the grounds for the decision of the Divisional Court is under attack on this application for leave to appeal, Mr Glasgow, on behalf of the soldiers, submits that it is not as a matter of jurisdiction possible for this court to hear an appeal. But, in the course of argument he accepted that if this court considered that the second tribunal would be assisted by knowing the views of this court, it would be undesirable to deprive the tribunal of those views. That is a realistic and constructive approach. However, it is not possible to confer jurisdiction on this court by consent. The jurisdiction is statutory and therefore it is right that I should make clear that I am satisfied that this court, in the circumstances of this case, has jurisdiction to hear the appeal.
It is important to remember that decisions on applications for judicial review frequently do not only affect the immediate parties but affect the public as a whole. In this case it is in the interests of the public, the families and the former soldiers who will give evidence, that the tribunal which has been set up by Parliament to reconsider the Bloody Sunday incident is conducted in a fair and just way.
In support of the contention that no jurisdiction exists, Mr Glasgow referred the court to section 16(1) of the Supreme Court Act 1981 which reads, so far as relevant:
“…the Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of the High Court.” (My emphasis).
Mr Glasgow submits that you do not have appeals against reasons as opposed to the judgment or order. Secondly, he
refers, making the same point, to RSC Order 59 rule 3(2), which provides:
“Notice of Appeal may be given either in respect of the whole or in respect of any specified part of the judgment or order of the court below; and every such notice must specify the grounds of the appeal and the precise form of the order which the appellant proposes to ask the Court of Appeal to make.”
He submits that provision of the Rules of the Supreme Court support his submission. He refers to a number of authorities which are well-known, starting with the case of Lake v Lake  P 336, where Lord Evershed, MR, said in relation to the words, “judgment or order”:
“Nothing from the cases brought to our attention by counsel for the wife persuades me that by the words ‘judgment or order’ in the rule or in the subsection is meant anything other than the formal judgment or order which is drawn up and disposes of the proceedings and which, in appropriate cases, the successful party is entitled to enforce or execute.”
The other cases, include Prudential Assurance Co Ltd v Waterloo Real Estate CA 22 January 1999 (unreported). All the cases are to like effect to the case of Lake.
Mr Glasgow submits that for an appeal to lie to the Court of Appeal there must be a possibility of the order of the court below being varied as a result of the appeal. He draws attention to the order made in this case and submits that there is no such possibility.
On the other hand, he also drew our attention to the case of Curtis v London Rent Assessment Committee  QB 92 where the relief sought was remission for re-hearing and determination in accordance with the correct opinion of the court, where a different approach was adopted by this court at page 109.
The response of Mr Clarke to these submissions is to refer to Order 59 rule 10(3), which sets out the very wide powers of this court on an appeal in these terms:
“The Court of Appeal shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been given or made, and to make such further other order as the case may require.”
In relation to the powers of a court on judicial review, he refers to Order 53 rule 9(4) which is a similar provision to that which was being considered in the Curtis case. Under the heading “Hearing of Application for judicial review”, paragraph (4) states:
“Where the relief sought is an order of certiorari and the Court is satisfied that there are grounds for quashing the decision to which the application relates, the Court may, in addition to quashing it, remit the matter to the Court, tribunal or authority concerned with a direction to reconsider it and reach a decision in accordance with the findings of the Court.”
In this case the tribunal could be relied on to follow any guidance given by the Divisional Court. Because of this there was no need for the Divisional Court to make an order under Order 53 rule 9(4). If the power under Order 53 rule 9(4) had been exercised, it would have been unfortunate if there was an uncorrected error in the reasoning of the Divisional Court as the tribunal would be directed to reconsider the matter in accordance with that decision. If that power had been exercised under Order 53 rule 9(4), it would certainly be appropriate for this court to correct the reasoning of the Divisional Court.
It seems to me that, if there is an error in the reasoning of the Divisional Court (even though the power under Order 53 rule 9(4) has not been exercised), it is equally appropriate for this court to consider whether there is a correction needed to the reasoning of the Divisional Court. In these circumstances it is essential that this court should have what I believe it to have, that is a jurisdiction to remit the case to the tribunal and when doing so to correct an error in the reasoning of the decision of the Divisional Court. When this is the situation the fact that in a particular case it is, in practice, unnecessary to remit the case, cannot affect the jurisdiction of the Court of Appeal.
In my judgment, Mr Glasgow was absolutely right to make the concession that the judgment should be corrected, if indeed there was an error which required such correction. Before turning to the part of the decision which is the subject of the application for leave to appeal, I would make two observations of a general nature. First, I would emphasise that it would be quite wrong because on this occasion the Divisional Court exercised its jurisdiction to grant judicial review in relation to an interlocutory decision of a tribunal set up under the 1921 Act, to draw the inference that it is part of the normal role of the Crown Office or the Divisional Court to review interlocutory decisions of tribunals of this sort. Tribunals such as this often have the most difficult task to perform. They are set up without guidance as to the precise procedures which they have to follow. They have to work out that procedure for themselves. They will inevitably know much more about the problems of the particular area into which they have to enquire than can be known by a supervising court, such as the Crown Office Judge or the Divisional Court on an application for judicial review. Tribunals are entitled to determine their procedure for themselves. The courts should only interfere when there is some very good reason for them so to do.
In this particular case it was said that the decision of the tribunal could have adverse consequences to the soldiers concerned which could affect their security and indeed their lives. One can see that in that exceptional situation the Divisional Court would feel it was appropriate to intervene. No-one before this court has suggested that the Divisional Court was otherwise than correct in intervening in the way that it did on the basis of the conclusions to which it came. As I have indicated, this is a special situation and normally this is an area in which the courts would be wise not to become involved.
The second observation of general guidance I would make is that the approach indicated in the authorities upon which Mr Glasgow relies, not to allow appeals from the reasons of a lower court, in general is sound and should be observed by this court. With isolated exceptions today appeals always require leave and I would expect courts to be reluctant to grant leave in relation to decisions which are said only to be at fault because of some reason expressed by a tribunal. However, whenever there is a general rule, there are always situations which prove to be exceptional, as in this case.
I return to the part of the decision which is criticised. I begin by emphasising that it is but a small part of the reasoning which the tribunal gave for its decision on this occasion which is the subject of criticism on this appeal. Reading the reasoning of the tribunal, which extends to 29 pages (but also deals with issues of venue), I am impressed by the great care which the tribunal has exhibited in coming to its conclusions. It seeks to balance the interests of the families and others who are concerned to ensure that their longheld desire for the truth is fulfilled, as against the legitimate interests of the soldiers not to be inappropriately subjected to risks to their security.
It is also important to bear in mind that the decision of the tribunal was to an extent an interim decision. This is because the tribunal recognised that it would, if necessary, reconsider questions of anonymity either because of the material put before it by the families or because of further representations which were made on behalf of particular soldiers. Nonetheless, the tribunal was giving a general decision which would influence their conclusions on any further specific applications which were made. This is why it is important, if they had made an error in their reasoning, however careful they were, that the error is drawn to their attention and rectified.
As I have already indicate, Mr Clarke’s submissions to this court are confined to the first ground. Paragraph 13 of the decision explains what the tribunal meant by the use of the word “anonymity”. It says:
“….we use the term ‘anonymity’ not only in its strict sense, in which it denotes the withholding of a name, but also to cover any restriction on the disclosure of a witness’s address or other personal details, as well as concealment of his or her physical appearance.”
I refer to paragraphs 17 and 18 of the tribunal’s reasoning, which gave rise to a considerable proportion of the argument:
“17. One matter arising at the outset is Mr Glasgow’s submission that, in relation to soldiers who gave evidence to the Widgery Tribunal, the issue with which we are concerned is not the granting of anonymity but its withdrawal. He does not contend that we are formally bound by any decision of the Widgery Tribunal. He submits nevertheless that there should be a presumption in favour of anonymity, because a number of the soldiers made statements and gave evidence before Lord Widgery ‘ after receiving assurance that anonymity would be preserved ‘.
18. We are not persuaded by this submission. 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 should be preserved.”
The approach indicated by the last sentence of paragraph 18 could be described as a “clean sheet” approach. The tribunal are saying that they are considering the matter afresh. They are not influenced by what had happened previously in relation to anonymity before the Widgery tribunal. That clean sheet approach was the subject of the critical first finding of the Divisional Court.
Having given that indication, the tribunal points to the arguments advanced on behalf of the families as to why it would be desirable for there to be no anonymity; the fact that if a witness is permitted to remain anonymous he will feel insulated from effective criticism; the fact that there may be witnesses who have made previous statements that are inconsistent with the evidence to the tribunal; and that those witnesses’ names and addresses is a starting point for their investigation of his or her credibility.
In paragraph 44 of the decision the tribunal says:
“The application for names to be withheld creates for us a much more acute dilemma. For the reasons we have given, we have reached the view that it would be wrong in principle to give a general dispensation allowing all military witnesses to give evidence without revealing their names. Moreover we believe 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. It seems to us that in the generality of cases the witnesses concerned will be sufficiently protected by the non-disclosure of their other personal details.”
45. We have anxiously considered whether there are, or may be, any particular cases in which anonymity in the strict sense should be granted. One category, which might arguably qualify for different treatment, consists of all soldiers who fired live rounds on Bloody Sunday. Since those soldiers alone must, between them, be directly responsible for killing and wounding all those who were killed or wounded by Army gunfire on that day, we think that they would have more compelling and substantial grounds than others for believing themselves to be at risk.
46. At the same time, it has to be recognised that these are the very soldiers whose conduct lies at the centre of this Inquiry. To allow this group to remain entirely anonymous would be a step that we would find difficult to reconcile with our public duty to determine what happened on Bloody Sunday.
47. The conclusion we have reached is that, subject to what we say below about special factors relating to individuals, it would be justifiable to permit those in this category only a limited form of additional anonymity, under which their surnames will be disclosed but their forenames will not. It seems to us that this is 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. As to the former point, if the surname is even moderately common, it will be extremely difficult to locate an individual on the basis of that name alone. As to the latter point, we do not think that the forenames of those involved represent a critical element of the facts that we are required to determine. In addition, we believe that by disclosing the surnames of these soldiers, we 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. It will of course be open to any soldier to waive the anonymity granted to him if he so desires.”
The tribunal then deals with special factors in individual cases. As I have indicated, there is scope for those special factors to be taken into account later.
I now turn to what the Divisional Court had to say on this subject. I do so bearing in mind that, in any event, there has to be a reconsideration of the decision in this case. I move, first, to page 16 of the judgment where, under the heading “The December decision”, the Divisional Court refers to the decision of the tribunal and then deals with the clean sheet approach and adds:
“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.”
As I understood the arguments advanced by Mr Clarke, he did not criticise that comment by Kennedy LJ. He does however criticise what is set out in paragraph 4 of the judgment. I would divide that paragraph into four subparagraphs, (a), (b), (c) and (d).
“a) 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….”
Mr Lawton is member of the department of the Treasury Solicitor acting on behalf of the soldiers.
“…. 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.
(b) It seems to us to be clear that in 1972 each of the applicants was led to believe that if he cooperated 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.
(c) 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.
(d) 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 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 become apparent, our understanding of the position differs in significant respects from that of the present Inquiry.”
It will be observed from the last sentence of paragraph (d) that, as one would expect, the Divisional Court were under no illusions as to the fact that their role was a reviewing role. If there was any doubt about that, I would merely point to the concluding words of the judgment as a whole which are in these terms:
“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.”
In that paragraph the Divisional Court is emphasising as clearly as possible that it is not the role of a reviewing court to take the decision itself. It is the role of the reviewing court to leave the taking of decisions to the appropriate body which in this case is the second tribunal.
Notwithstanding those general comments of the Divisional Court, Mr Clarke, in his measured criticisms of the decision of the Divisional Court, suggests that they have exceeded their responsibilities as a reviewing court and departed from the allotted role of a court on an application for judicial review. His criticisms fall into various categories.
He first submits that the Divisional Court had no business taking additional evidence into account in the way indicated in paragraph (a). Secondly, he submits that, in any event, the evidence which was before them was not evidence on which they should have acted, even if they were entitled to so to do. Thirdly, he criticises the tribunal for making findings which were not the Divisional Court’s responsibility to make, but which were for the tribunal to make. Finally, he makes submissions as to the inconsistency between the wording of paragraph (b) and paragraph (c).
As to the additional evidence, the Divisional Court explains why it departed from the normal approach with regard to accepting fresh evidence on an application for judicial review. I refer to paragraph C on page 22 of the judgment where, under fresh evidence, the Divisional Court said:
“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.”
In regard to that general statement it is important to bear in mind that they were not only dealing with the additional evidence referred to in paragraph (a), they were referring to the additional evidence which indicates that the tribunal misunderstood the material which was placed before it as to the scale of the risk. The tribunal said in their conclusions that that matter needs to be interpreted in the light of what Mr Solomons (the member of the Treasury Solicitor’s department who deals with that matter) says.
In relation to paragraph (a) and the reference therein made to background material, I feel it is unnecessary to pray in aid the special role of a court where personal safety is involved. It was entirely appropriate for the Divisional Court to have regard to the additional evidence for the purpose for which they were using that evidence. It was used as no more than background to the present application. As was apparent in the course of argument, one of the submissions which was made on behalf of the soldiers was based upon legitimate expectation. Legitimate expectation can, and often is, only regarded as one aspect of the general requirement of fairness which the court on an application for judicial review has a responsibility to safeguard.
If a soldier such as “H”, whatever the merits of his individual evidence, says “I understood the matter in a particular way”, he is entitled to have that evidence taken into account with regard to his contention that he has a legitimate expectation and to treat him in the manner proposed would be unfair. His assessment of what he was told is not conclusive in any way. The court does not act on his view alone. His evidence is a matter of background to which the court is entitled to have regard when taking into account whether he is a person who would be adversely affected by a course of conduct in a way which would be contrary to his legitimate expectation.
The evidence which was put forward by Mr Lawton is evidence of a general nature which, bearing in mind the tribunal had the difficult task of trying to the ascertain what happened in 1972, the Divisional Court was entitled to take into account in order to perform its task in seeing whether there been a contravention of the requirement of fairness.
We were told that before the Divisional Court no objection was taken to that evidence being put forward. In that case, it seems to me that in any event it would not be appropriate to rely take issue with the very limited reliance which was placed here on this evidence by the Divisional Court.
As to the submission that the evidence is of little or no value, there is no reason to think from the judgment of the Divisional Court that it misunderstood the value or weight of the evidence. More significant is the criticism that the tribunal’s role of finding facts was usurped by the Divisional Court. In this connection, it is important that there is no dispute as to the material which was before the Divisional Court and the tribunal as to what was the reason for the approach adopted by the first tribunal. This appears from what Lord Widgery, LCJ, said in the Report. It is limited to 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.”
The Divisional Court were required to give effect, as they saw it, to that language, in order to assess the effect of that statement as to what was the appropriate course for the second tribunal to adopt as to anonymity. In doing so, they have reached an inevitable conclusion. I have already referred to the fact that Mr Glasgow was recorded by the Divisional Court as indicating that what the soldiers were told was not intended to be confined, from a temporal point of view, to the period during which the tribunal was in session. So far as time is concerned, it was clearly to have a greater effect than that. The Divisional Court stated that it was to be limited to the period of danger which led to the grant of anonymity. They also indicated that there might be unforeseen circumstances of sufficient materiality that the need for anonymity of the soldiers would have to give way to those unforeseen circumstances.
In understanding what the Divisional Court had to say, it is important to pay careful attention to paragraph (d). Lord Widgery could only deal with what was to happen at his inquiry. He could not bind others. However he was saying to the soldiers at the tribunal for which he was responsible, that they were to have anonymity. So, if thereafter that anonymity were to be removed notwithstanding the fact that they were still in danger, this would be contrary to what was intended to happen. The fact that it was contrary to that intention does not mean that a tribunal considering the situation 27 years later is bound by what Lord Widgery said. He could not, and did not, purport to bind any subsequent body. For example, he could not bind a prosecution which took place shortly after the first tribunal had concluded its hearing.
However in deciding what is appropriate and what is fair in relation to the soldiers, what Lord Widgery had said in 1972 could not be ignored; a clean sheet approach, which the second tribunal could be said to have adopted was not acceptable. The soldiers were entitled to have a second tribunal take into account what was said, albeit as long ago as 1972. They were entitled to have that taken into account because of what they had been told that at the inquiry in 1972. It would in some circumstances be possible to have an inquiry in 1999 as to matters which were investigated in 1972 when the second inquiry did not of necessity involve reference to what had happened at the 1972 inquiry. But that is not the position with regard to these two inquiries. It is inevitable, that the identification of a soldier at the second inquiry will result in his identification in relation to the evidence he gave in the 1972 inquiry. This is no more than a consideration to which the second tribunal will have to give what they consider is the appropriate weight. They cannot ignore it because it is a relevant matter.
Paragraph (d) of the reasoning of the Divisional Court, as I understand it, was referring to the exact point I have just been making. To reveal the names now would be in direct conflict with the anonymity granted by the Lord Chief Justice in 1972 because it would be possible to discover who appeared under which letters in 1972. As the Divisional Court said:
“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.
I therefore reject the suggestion that in the paragraphs of which complaint is made the Divisional Court was fettering the proper role of the tribunal. It was doing no more than drawing the tribunal’s attention to a matter it cannot ignore. I would suggest that what the Divisional Court was saying was self evident. I do not say that the tribunal were unaware of the point which I have just been making, but I do say that the reasoning which the Divisional Court criticised gives the impression that, by saying that it was going to adopt a clean sheet approach, the tribunal was putting out of its mind a material matter. That being so, the criticisms Mr Clarke makes are not well founded.
I have not dwelt on the inconsistencies to which Mr Clarke drew our attention. In my judgment it is important to look at the criticised passages as a whole in the context of the judgment which was given. I do not consider that the reasoning of the Divisional Court can be faulted. When the matter is reconsidered by the tribunal they should take into account what are no more than obvious inferences which are to be drawn from what Lord Widgery said. They do not bind the second tribunal to take any particular course, but they do indicate that the second tribunal are required to take into account matters which so far they may not have taken into account having regard to the reasoning which they gave.
In these circumstances this as a case where it is appropriate to grant the tribunal leave to appeal but where that appeal should be dismissed.
LORD JUSTICE OTTON: I agree that the appeal should be dismissed for the reasons given by my Lord, the Master of the Rolls. I wish to add a few observations which are meant to assist the tribunal and its representatives in the future.
The tribunal’s decision to withdraw the anonymity of the soldiers is based, in part at least, on the tribunal’s interpretation of the phrase in Lord Widgery’s Report:
“I agreed that they should appear before me under pseudonyms. This arrangement did not apply to Senior Officers….”
I am less than happy that the tribunal’s decision should be founded on such a narrow basis and that it is not reached within the context of how and in what circumstances this agreement or arrangement was reached. I find it surprising that apparently there is no contemporaneous documentation which records this agreement, the precise terms upon which the soldiers were ordered to give evidence and the arrangements made to procure and maintain this anonymity for some but not others in the army. I am left with a distinct feeling of unease that this aspect has not been explored with as much diligence as this grave and potentially dangerous situation requires, or that sufficient steps have been taken to enable the tribunal to inform itself of the nature and extent of the anonymity granted.
In his affidavit the solicitor for the tribunal states that the tribunal has access to the papers of the Widgery inquiry but they are not complete. Two of the sources which might still be available are the records and recollections of the legal representatives involved and the records of the units concerned. Those in command of the units must have received communications, orders, instructions or advice on this subject from higher in the chain of command and, in turn, issued orders within the units down to the soldiers concerned. It is not beyond the realms of possibility that their superiors in rank reduced into writing a document containing the precise terms of the anonymity, coupled with the decision whether or not to grant immunity from criminal prosecution and what was to occur in the event of civil proceedings. This may well have been considered both appropriate and efficacious at the time as the soldiers may well have believed, if not have been led to believe, that their anonymity would be preserved, if not for ever then, at least, for so long as a significant risk existed. The solicitor states:
“[The Tribunal] has never undertaken to conduct its own investigations in order to find evidence in support of interlocutory applications made by the interested parties.”
If this be the case, perhaps the tribunal may care to reconsider this approach and be more proactive in establishing a better informed and more satisfactory matrix of fact in which to conduct the reconsideration of anonymity it is required to undertake. Until such lines of inquiry are exhausted, any future decision may be vulnerable to an argument that it is unreasonable in the sense that the decision maker has not taken into consideration all relevant and available material.
For my part, I would also go so far as to suggest, with respect to the distinguished members of the tribunal, that they might wish to reconsider the fairness of imposing the obligation “on those who seek anonymity of any kind to justify their claim”, as indicated in the tribunal’s decision (ref ADL p.369), and paragraphs 9 and 10 of their solicitor’s affidavit. Similarly, they may wish to revisit their requirement that there must be “concrete evidence of specific threat”. This is particularly so in the light of that part of their July statement which is as follows:
“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 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.”
I accept Mr Christopher Clarke QC’s submission that as a matter of law no legitimate expectation of any kind arises. However, it is worth bearing in mind that the genesis of the concept of legitimate expectation is the requirement of the decision maker to act fairly. It may still be possible for the tribunal to reach a decision that it would be fairer to impose the obligation on those seeking to remove the anonymity (rather than on those seeking to sustain it) and to satisfy the tribunal that there is no real or significant risk or some other formula which is less onerous on the soldiers.
Finally, they may also wish to reconsider the practicalities of allowing surnames to be disclosed unless the soldier has “a particularly unusual surname”. What is a particularly unusual surname may in itself be difficult to assess. More important, perhaps, is that those who retain anonymity may be perceived by some (who may not know or understand this reason) that anonymity has been granted because that soldier has more to hide than those named Smith or Jones.
It may well be possible to accommodate some, if not all, of these suggestions without prejudicing the fundamental objective of the inquiry.
LORD JUSTICE WARD: The passage in Lord Widgery’s Report which has come under such close scrutiny is paragraph 8 in his introduction dealing with sources of evidence. He said that the risk of increased danger to the soldiers and their families was “obvious” and because of that Lord Widgery “agreed” that the soldiers should appear before him under pseudonyms. Judging the matter solely by the language in that sentence which has been read by the Master of the Rolls, it seems to me, as it seems to my Lords, to be obvious that Lord Widgery was clearly concerned that if the identity of the soldiers was revealed that would heighten risk to them and their families which justified the protection by the use of pseudonyms.
There may be a risk that that anonymity would be imperilled by their giving evidence to the Saville Inquiry or by the manner of their giving evidence. Such a risk would undermine the protection which they were given by Lord Widgery and so undermine the basis upon which they gave evidence to him. That risk and their legitimate expectations in maintaining their anonymity were relevant factors to take into account and the Saville Tribunal were in error in ignoring them in the way that they did. The assessment of those matters and the weight to be given to it is of course entirely a matter for them. Other factors, such as public confidence in their deliberations, are obviously among the other relevant matters which they must assess and weigh and bring into the appropriate balance.
Adding but briefly to what Lord Justice Otton has said, I am struck by the fact that paragraph 8 of Lord Widgery’s Report is an historical account of something he had already agreed. It is obvious that the question of anonymity would have been raised at an early stage of that inquiry, as it is raised in this, and that the soldiers would not have given evidence before their protection had been guaranteed. We are told that the papers reveal nothing of those early deliberations nor of the basis upon which that matter was discussed before him and agreed by him. I must accept what I am told but I am surprised that there is no record.
I agree with my Lords that the appeal should be dismissed for reasons more fully given by them.
Order: Leave to appeal granted. Appeal dismissed. No order as to costs.