IN THE HIGH COURT OF JUSTICE CO-2061-99
QUEEN’S BENCH DIVISION
Royal Courts of Justice
Thursday, 17th June 1999
B e f o r e:
LORD JUSTICE ROCH
MR JUSTICE MAURICE KAY
MR JUSTICE HOOPER
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In the matter of an application for judicial review
R E G I N A
THE RIGHT HONOURABLE LORD SAVILLE OF NEWDIGATE
SIR EDWARD SOMERS
MR JUSTICE WILLIAM HOYT
(SITTING AS THE SAVILLE INQUIRY )
(EX PARTE A; B; D; H; J; K; M; O; Q; R; S;
U; V; Z; AC and AD)
– – – – – –
(Computer Aided Transcript of the Palantype notes of
Smith Bernal Reporting Limited,
180 Fleet Street, London EC4
Telephone No: 0171 421 4040
Official Shorthand Writers to the Court)
– – – – – –
SIR SYDNEY KENTRIDGE QC with MR D LLOYD JONES QC and MR M BOOLS (Instructed by A D Lawton, Treasury Solicitor) appeared on behalf of the Applicants.
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 Respondent.
MR IAN BURNETT QC (Instructed by the Treasury Solicitor) appeared on behalf of the Ministry of Defence as an interested party
LORD GIFFORD QC with MR B MacDONALD (Instructed by Messrs McCartney & Casey, Derry BT48 6HG) appeared on behalf of the late James Wray, as an interested party
MR MICHAEL MANSFIELD QC with MR JOHN COYLE (Instructed by Messrs Desmond J Doherty & Co, Derry BT48) appeared on behalf of the family of Bernard McGuigan (deceased) an interested party
MR HUGH MARTIN RODGERS (Instructed by Messrs Brendan Kearney, Kelly & Co, Londonderry BT48 7EX) appeared on behalf of Michael Bradley and Michael Bridge, as interested parties
MR ARTHUR HARVEY QC with MR SEAMUS TREACY (Instructed by Messrs
Finucane, Belfast BTY1 1HE) appeared on behalf of the next of kin and the wounded as interested parties
J U D G M E N T
(As approved by the Court )
Thursday, 17th June 1999
J U D G M E N T
LORD JUSTICE ROCH:
1. On 29th January 1998 the Government tabled a resolution before both Houses of Parliament in these terms:
“That it is expedient that a Tribunal be established for inquiring into a definite matter of urgent public importance, namely the events on Sunday, 30 January 1972 which led to 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.”
2. That resolution was adopted by both Houses and as a consequence a tribunal of inquiry was set up under the Tribunal of Inquiry (Evidence) Act, 1921. That tribunal is presided over by Lord Saville of Newdigate and the other members are the Rt Hon Sir Edward Somers and the Hon Mr Justice William L Hoyt.
3. That tribunal is to enquire into the events of Sunday 30th January 1972 in which, during a demonstration in the city of Londonderry shots were fired resulting in injuries to 26 people, those injuries being fatal in 13 cases. Those events led to that occasion being given the name “Bloody Sunday”.
4. In presenting the resolution to the House of Commons the Prime Minister said:
“Bloody Sunday was different [from deaths or injuries caused by the actions of terrorists] because, where the state’s own authorities are concerned, we must be as sure as we can of the truth, precisely because we pride ourselves on our democracy and respect for the law, and on the professionalism and dedication of our security forces.
This has been a very difficult issue. I have re-read Lord Widgery’s report and looked at the new material. I have consulted my colleagues most closely concerned. We have considered very carefully whether it is appropriate now to have a fresh inquiry into the events of Bloody Sunday. I should emphasise that such a new inquiry can be justified only if an objective examination of the material now available gives grounds for believing that the events of that day should be looked at afresh, and the conclusions of Lord Widgery re-examined.
I have been strongly advised, and I believe, that there are indeed grounds for such a further inquiry. We believe that the weight of material now available is such that the events require re-examination. We believe that the only course that will lead to public confidence in the results of any further investigation is to set up a full-scale judicial inquiry into Bloody Sunday.”
5. Later the Prime Minister referred to the Act requiring the proceedings of the tribunal to be held in public “unless there are special countervailing considerations”.
6. In 1972 the British Government had set up a tribunal consisting of the then Lord Chief Justice, Lord Widgery, under the 1921 Act to enquire into the events of that day. Lord Widgery produced his report within a remarkably short period of time, namely by 19th April 1972. The conduct of that inquiry and the contents of that report have been subjected to reasoned criticisms. All military witnesses in that inquiry, save for five senior officers, gave their evidence without giving their names. They were simply identified either by numbers or, in the case of soldiers who admitted firing their weapons on that day by letters of the alphabet.
7. On 5th May this year the Tribunal considered applications made by the Ministry of Defence on behalf of the generality of soldiers or former soldiers who might be required to give evidence to the tribunal, and by 17 of the soldiers who fired live rounds on Bloody Sunday, that they be permitted to give their evidence without disclosing their names. It was accepted by all parties interested in the inquiry that it would not be appropriate for witnesses to be required to give their addresses or their current occupations. The principal basis for the applications for anonymity was that soldiers giving evidence to the tribunal, particularly those soldiers who fired their weapons that day, once they became traceable by any of the republican terrorist groups would be at risk of being attacked and killed or seriously wounded.
8. The tribunal had submissions from counsel for the tribunal and from those representing the families of some of those killed on Bloody Sunday.
9. On 5th May this year the Tribunal decided that the danger created by identifying soldiers, even those soldiers who fired live rounds on Bloody Sunday, did not outweigh or qualify the Tribunal’s duty to conduct a public open inquiry. Consequently there would be no grant of anonymity by the withholding of names either to the generality of those witnesses who are or were soldiers or to those witnesses who were soldiers who had fired their weapons. The tribunal indicated that the tribunal was still prepared to consider individual circumstances which might lead to the conclusion that in particular cases the danger was greater. If the tribunal found that to be so they would reconsider the question of anonymity in such cases.
10. This is an application for judicial review of that decision by the tribunal on the basis that the tribunal failed to take account of relevant circumstances or alternatively failed to attach proper weight to certain relevant matters, and secondly, that by placing the objective of conducting an open inquiry above the right of witnesses to safety for themselves and their families, the tribunal reached a decision that was unreasonable, in that it was outside that band of decisions which a tribunal in these circumstances could properly reach. The remedies that the 17 applicants seek are
11. First, an order of certiorari quashing the decision taken by the tribunal on the 5th May and published on the 7th May;
12. Second, a declaration that the tribunal in all the circumstances, by its decision in withdrawing anonymity from, or alternatively refusing to grant anonymity to, those soldiers and former soldiers who were on duty in Londonderry on the 30th January 1972, acted unreasonably and unlawfully;
13. Third, an order pursuant to Rule 53.9(4) remitting the matter to the tribunal and directing it to reconsider and reach a decision in accordance with the finding of this court.
14. The Ministry of Defence have not themselves sought judicial review of the tribunal’s decision, but they have presented written and oral submissions in support of the 17 applicants’ application.
15. The application has been opposed by counsel for the tribunal, Mr Clarke QC, and by counsel representing the families of the deceased and the wounded, namely Mr Harvey QC, Lord Gifford QC, Mr Rodgers and Mr Mansfield QC.
16. Because criticisms of the tribunal’s decision are based on earlier statements and decisions by the tribunal relating to the issue of anonymity, it is necessary to set out the way in which this matter has progressed.
17. The tribunal made an opening statement on 3rd April 1998. The tribunal fixed a preliminary hearing at the Guildhall Londonderry for 20th July 1998. Prior to that the tribunal published to all interested parties a statement indicating the matters to be addressed at that preliminary hearing. Paragraphs 20 and 21 of that statement related to “applications for anonymity” and “immunity from prosecution”. Paragraph 20 read:
“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.”
18. The preliminary hearing extended over two days. On 24th July 1998 the tribunal issued a document entitled “Rulings and Observations of the Tribunal on the matters Raised at the Preliminary Hearing on 20th and 21st July 1998”. At the outset of that statement the tribunal rejected a suggestion that cases should be presented to the tribunal in an adversarial fashion. In rejecting that suggestion the tribunal cited a passage from the report of the Royal Commission on Tribunals of Inquiry in November 1966 under the chairmanship of the Rt Hon Lord Justice Salmon which included these sentences:
“The task of inquiring cannot be delegated by the Tribunal for it is the Tribunal which is appointed to inquire as well as to report. The public reposes its confidence not in some other body or person but in the Tribunal to make and direct all the necessary searching investigations and to produce the witnesses in order to arrive at the truth. It is only thus that public confidence can be fully restored.”
19. The commission had pointed out a little earlier that it is only in exceptional cases where the purity and integrity of our public life has been called into question that tribunals are set up under the Act of 1921. Indeed it would seem that in the 78 years since the Act was passed, it has been resorted to on some 21 occasions.
20. Later in that document the tribunal said:
“There remain some matters which do not call for an immediate ruling by us, but on which we wished to hear the views of those represented before us.
The first of these concerns the question of anonymity.
In the expectation that the question of anonymity would arise, we asked the interested parties for any general observations or submissions they might have as to the approach that we should adopt in relation to it. It will be recalled that, with the exception of five senior officers, the soldiers who gave evidence before the Widgery Inquiry were not required to disclose their names.
We have not yet been asked to make rulings on anonymity in respect of any individual witnesses or groups of witnesses who may give evidence to this Inquiry. However the Treasury Solicitor and Ministry of Defence have indicated that applications for anonymity are likely to be made in due course on behalf of soldiers or former soldiers who were serving in Londonderry on Bloody Sunday.
It should be remembered that there are various different forms of anonymity. Depending on the circumstances, it might be appropriate to allow a witness to give evidence without stating his or her name and address in public, or perhaps to give evidence from behind a screen in order to conceal his or her physical appearance. It might also be necessary to preserve the anonymity of individuals by substituting letters or numbers for names in witness statements and other documents.
… Mr Treacy [junior Counsel for the next of kin and wounded represented by
Finucane, Solicitors] 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 the 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 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. Applicants for anonymity must supply the Tribunal with a written explanation of the basis of their application, together with any material relied upon in support of it. Of course, unless and until the application is refused, the Tribunal will not reveal any information in its possession, disclosure of which might pre-empt its ruling. Otherwise, however, and subject to any claim for public interest immunity, we propose to circulate any written applications for anonymity to all interested parties and to invite their submissions before making a ruling.”
21. I have set out that part of that statement at length because the applicants place considerable reliance upon it in two ways. First it is said that that statement gave rise to a legitimate expectation on the part of the applicants that the tests there propounded would, if the applicants could satisfy either of the tests, lead to the granting of anonymity. Second, it is submitted that the tribunal’s statements as to its function and as to its fundamental objective were correct and that it follows that the principles the tribunal there formulated for the granting or withholding of anonymity were the correct principles. The tribunal’s subsequent departures from those principles was irrational and moreover the tribunal has given no reason or no adequate reason for such a departure.
22. Subsequently in September of 1998 the Treasury Solicitor, Mr Lawton, made application for anonymity on behalf of seven soldiers who had given evidence to the Widgery Tribunal. On 17th December 1998 the Tribunal decided that the tribunal would withhold from publication the addresses, telephone numbers and other personal details of all military witnesses, apart from their names, unless they informed the tribunal that they were content that this information should be published. The tribunal would impose no restriction on the publication of the name of Soldier 236 (which had by that time come into the public domain) or of the soldiers whose names appeared in the transcripts of the Widgery Inquiry. The tribunal decided to allow any soldier who admitted firing one or more live rounds on Bloody Sunday a limited form of additional anonymity, under which his surname would be published but not his forenames. The tribunal decided to take this step:
“… 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. “
23. The tribunal left it open to such a solider or his next of kin if the soldier was dead, to apply for full anonymity if there were special reasons making that necessary. The two examples of special reasons given by the tribunal were first, that the witness was currently living in Northern Ireland and the second that the witness had a particularly unusual surname where such witness
“… might persuade us that he should not have to disclose it because it will make his whereabouts readily discoverable”.
24. The tribunal would not restrict the publication of the names of any other soldiers unless they or their next of kin if they were now dead satisfied the tribunal that there were special reasons making such a restriction necessary. The tribunal indicated that they would be prepared to lift or modify the restrictions on the identification of witnesses that they were imposing if circumstances arose which made any of the restricted information of direct and immediate relevance to the tribunal’s factual investigation.
25. In reaching that decision the tribunal said that an intrinsic part of their task was the investigation of the actions of individual soldiers on the day which in the tribunal’s view encompassed not only what the soldiers did but also who they were. The tribunal were 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. The tribunal turned to consider what degree of anonymity was appropriate
“… having regard to our views as to the nature and extent of the risk, and our rejection of widespread or blanket anonymity, in the strict sense, as being incompatible with the Tribunal’s fundamental objectives. We have previously made clear that, because anonymity represents a departure from the principle of open justice, it will only be appropriate if and to the extent that a clear justification is demonstrated.”
26. The correct reading of that decision is a matter of controversy. The applicants say that the tribunal, on the basis of a threat assessment, at that time assessed as “moderate” was granting appropriate anonymity to soldiers who fired their weapons that is to say a degree of anonymity which would make them “extremely difficult to locate”. Counsel for the tribunal says that a proper reading of the decision must concentrate on paragraph 46 where the tribunal said:
“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.”
27. That decision was challenged by way of an application for judicial review by four soldiers who had fired rounds on Bloody Sunday. The application came before a Divisional Court consisting of Kennedy LJ, Owen J and Blofeld J in March of this year. That Divisional Court on 16th March quashed that order and remitted the matter to the tribunal for re-determination. The Divisional Court concluded that the tribunal had in reaching its decision, which I shall call the first decision, erred in five ways.
28. First, the tribunal had misunderstood the nature and extent of the anonymity granted to the applicants by Lord Widgery in 1972, and that that misunderstanding had played a significant part in the tribunal’s reasoning when arriving at its first decision.
29. Second, that the July statement had created 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. The Tribunal had then ordered otherwise notwithstanding the tribunal’s finding that such a fear existed.
30. Third, the tribunal had misinterpreted the threat assessment provided by the Security Services by concluding that the threat was less than it in fact was.
31. Fourth, that the tribunal in its July statement had indicated that what those seeking anonymity should try to prove was a genuine and reasonable fear of reprisals but then had relied in its ruling on the absence of concrete evidence of specific threats without making clear the tribunal was then requiring concrete evidence of specific threats before anonymity would be granted.
32. Fifth, that the tribunal having accepted that all soldiers properly had reasonable and genuine fears and that those who had fired live rounds had more compelling and substantial grounds than others for believing themselves to be at risk, yet granted to that limited class a form of anonymity (i.e. surnames only) for which no one had contended and the safeguarding effects of which were at best a matter of speculation.
33. The Divisional Court ended its judgment with these words:
“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.”
34. The tribunal appealed one of the conclusions reached by the Divisional Court, namely that with regard to the grant of anonymity by the first tribunal in 1972. In the course of his judgment, Lord Woolf MR at page 13E of the transcript pointed out that tribunals set up under the 1921 Act have to determine their own procedures, being those necessary to enable them to perform their tasks and then he said:
“They [the tribunals] 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.”
35. On the point raised in the appeal Lord Woolf said at page 26B of the transcript:
“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. …
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 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.”
36. The Master of the Rolls went on to reject complaints made of passages in the Divisional Court’s judgment on this aspect of the case saying that the Divisional Court was not fettering the proper role of the tribunal; it was doing no more than drawing the tribunal’s attention to a matter the tribunal could not ignore.
37. In a concurring judgment, Otton LJ regretted that the only information available to the court of appeal, and apparently at that time to the tribunal as to the granting of anonymity to military witnesses was one short paragraph in Lord Widgery’s report. Otton LJ found it surprising that there was no other contemporaneous documentation explaining how the decision to grant anonymity in 1972 had been reached. Otton LJ suggested that the members of the second tribunal might wish:
“… to reconsider the fairness of imposing the obligation on those who seek anonymity of any kind to justify their claim.”
38. He added that the members of the second tribunal might wish to revisit their requirement that there must be concrete evidence of a specific threat.
39. Following the Court of Appeal’s decision, the solicitor to the Inquiry wrote to the Treasury Solicitors Department a letter dated 22nd March 1999, sending copies of the letter to all the other solicitors for interested parties:
“As a result of the Divisional Court’s decision the Tribunal must consider the position of the lettered soldiers and any other soldier who fired live rounds [‘the relevant soldiers’] afresh. It will do so in the light of that decision and the submissions and evidence put before it, without any predisposition to reach either the same or a different decision. ‘Afresh’ means exactly what it says.”
40. The letter went on to refer to certain specific matters among which were:
1. That the tribunal would not make any assumptions, for example, it would not assume that the relevant soldiers had a fear that was both genuine and reasonable, or that a genuine and reasonable fear of reprisals on the part of the soldiers who fired live rounds would have the necessary or likely consequence that those soldiers would be entitled to total or any anonymity.
2. It was for those who represented the relevant soldiers to make out a case for anonymity by such evidence and submissions as they chose to put forward.
3. That no one was suggesting that addresses and details of occupations or the like should be revealed. The issue was whether the tribunal should order
(a) No anonymity,
(b) Full anonymity, or
(c) Partial anonymity.
41. It is to be observed that when it came to the making of submissions no one contended for partial anonymity in the sense of surnames only, it being shown that once surnames were released the tracing of the individual would follow for someone who was determined to trace that person’s whereabouts.
4. The tribunal invited the Ministry of Defence to put before it material showing the pattern of terrorist activity from 1969 to the present time and a further assessment of risks that would be faced by soldiers who were on duty in Londonderry on Bloody Sunday and whose identities became known. In particular the tribunal required a new threat or risk assessment expressed in terms which would avoid any possibility of the assessment being misunderstood by the ordinary reader. In addition the tribunal indicated that it would find it helpful to be told whether any threat or risk identified applied equally or differently to different categories of soldiers namely,
1. Serving soldiers generally;
2. Serving soldiers in the Parachute Regiment;
3. Ex soldiers
4. Ex soldiers from the Parachute Regiment
5. Soldiers or ex-soldiers who took part in Bloody Sunday
6. Soldiers or ex-soldiers who fired live rounds on Bloody Sunday.
42. Finally the tribunal invited submissions on the arguments advanced by its counsel to the Divisional Court stating that:
“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 this prima facie involves the giving of evidence by all witnesses under their proper names. 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 [the Treasury Solicitor] contend that the Tribunal has misunderstood its duty and, if so, to explain why.”
43. Written submissions were made on behalf of the 17 soldiers who are the applicants in this proceeding. In addition the Ministry of Defence made a 23 page submission to which were attached four annexes, including a security service threat assessment and a statement by Lt Col Overbury who in 1972 had been the Assistant Director Army Legal Services and had been appointed the legal officer with responsibility for all legal aspects, including questions concerning the obligation and rights of all the army witnesses, including the soldiers who opened fire, at the 1972 inquiry.
44. In that statement Colonel Overbury states that he was informed that both Lord Widgery and the Attorney-General were of the opinion that at least the lower ranks of those involved should be granted anonymity. Moreover that the Attorney-General had stated that if soldiers had been ordered to give evidence to Lord Widgery’s tribunal none of their written or oral statements could be used against them in any subsequent criminal proceedings. As a result all soldiers involved were ordered to attend a meeting at their barracks where Colonel Overbury formally ordered them to make such further statements as were necessary and to give evidence before the tribunal. Colonel Overbury told the soldiers that he had authority to inform them that any statement they made or would make, or any evidence they gave to the Widgery Tribunal could not and would not be used in evidence against them in any subsequent proceedings arising out of their actions on 30th January 1972. Colonel Overbury also told the soldiers that they would enjoy protection against identification in accordance with the normal practice in force at that time in the Civil Courts in Northern Ireland. That meant that they would be referred to in the proceedings only by the letter or number allocated to them. He told the soldiers that in return they were expected to co-operate fully with the army team and with the civil authorities. Those assurances were repeated collectively and individually to the men concerned.
45. The first annex was a chronological summary of major attacks on military targets by Irish Republican Terrorist organisations in Northern Ireland between 1969 to 1999. Annex B was a summary of such attacks on military targets in Great Britain. Annex C was a schedule of major Irish Republican terrorist attacks on non military targets.
46. Annex D was the new Security Service Threat Assessment sought by the tribunal. It began by explaining the threat assessment process and the basis of threat assessments pointing out that they do not, by their nature, consist of concrete predictions. That part of the assessment also indicated that where there was a specific threat to a specific individual that individual would be at such a high level of threat that the normal response would be to provide him or her with armed police protection. The assessment went on to point out that threat levels rise and fall and that it followed that threat assessments for individuals, sites or events were only valid as long as the circumstances on which they were based remained unchanged; and that the overall threat level had moved up and down a number of times since the most recent Provisional IRA cease fire in July 1997. In a supplement to the assessment it was stated:
“Irish republican terrorists are currently assessed to pose a significant level of threat in Great Britain. We judge that they are actively maintaining their ability to carry out terrorist attacks on the mainland. They have the equipment and personnel to do so, and have carried out planning on a contingency basis.”
47. The supplement went on:
“Military targets are currently at a significant level of threat.”
(It has to be observed that since the date of that supplement, 14th April 1999, the level has reduced to Moderate):
“There remains no specific intelligence that any particular group is currently targeting soldiers involved in the events of ‘Bloody Sunday’. However, whilst Irish republican terrorist organisations retain the capability and intent to mount attacks on the UK mainland, there will continue to be a threat to military targets. 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.”
48. In the body of the assessment the Security Service ranked the categories of soldiers in ascending attractiveness as targets in this order:
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.
49. That ranking was based upon the political and emotive significance of each category to the Republican Movement. All four categories represent military targets in respect of which the threat of attack was significant, although soldiers who had fired live rounds on Bloody Sunday would, in the assessment of the Security Service, stand out from the generality of soldiers and would face a higher likelihood of terrorist attack if they were identified. Their attractiveness as targets did not take the threat to them into a higher category than that of “significant”.
50. There is a formal six tier structure for assessing the different threat levels in which the third level from the bottom is that of “Moderate” and the fourth level is “Significant”. The Security Service finally pointed out that for those witnesses who will attend the hearing before the second tribunal who have already been identified their attendance at the tribunal will not increase the level of threat to them. The assessment then observes:
“However, if the proceedings focus on the conduct of particular military personnel, and those personnel are identified by name, it is possible that the threat to them will rise.”
51. The Ministry of Defence relied also on parts of the statement of a television reporter, Peter Taylor, who has produced programmes on the troubles in Northern Ireland and on Bloody Sunday in particular. In addition he has written books on the subject as well as writing articles for various newspapers. In all he has made over 50 documentary programmes on the conflict in Northern Ireland. His statement sets out his reasons for wishing to withhold his working papers from the scrutiny of the Tribunal. With regard to work he has done in respect of Bloody Sunday, which have involved interviews with soldiers directly involved in the operation and others who were serving in Northern Ireland at the time, he gave such persons assurances as to confidentiality. In paragraph 8 of his statement Mr Taylor says; referring to such persons:
“I am also concerned as to their physical safety were their names to be publicly revealed.”
52. Later in paragraph 16 of his statement, Mr Taylor states:
“To hand over my notebooks to the Inquiry would not only be a betrayal of trust but would utterly destroy my professional integrity established over almost thirty years and irrevocably compromise my ability to continue to cover Northern Ireland in the way that I have over so many years. Even more seriously, it would put lives at risk.”
53. That paragraph deals not only with soldier witnesses but also other persons who Mr Taylor has interviewed and who may have participated anonymously in Mr Taylor’s programmes. In that paragraph Mr Taylor is expressing an opinion, but it is of some significance that he states that opinion as though it were a fact. The Ministry of Defence relied on that statement as being the view of a person who has spoken directly to extremists on both sides of the conflict who are or have been members of terrorist organisations.
54. The tribunal also received written submissions from those acting on behalf of the next of kin of the deceased and the wounded. The principal submission was that open justice required that witnesses who had been soldiers on duty on Bloody Sunday, particularly those who had fired their weapons, should give their names at the outset of their evidence. Public confidence in the work of the tribunal would be undermined were that not so. This had been a major problem with the Widgery Inquiry, where anonymity had been granted without submissions from any party. Witnesses would be less inclined to tell lies if their identities were known. It would give the opportunity to others to come forward to contradict an untruthful witness if that witness’s name was known. Despite the troubles in Northern Ireland open justice had continued to be observed. It was rare that witnesses who gave evidence, did so without giving their names, even in cases which were controversial or in which the defendants were said to be members of terrorist organisations. It was rare for such witnesses to be attacked. Members of the RUC and others in Northern Ireland lived in the community despite having to give evidence in criminal cases. The situation in Northern Ireland had changed substantially in the 27 years since the Widgery Inquiry. The present position was much improved by the peace process.
55. In those written submissions it was further argued that the identity of many more than five soldiers who were on duty in Londonderry on Bloody Sunday were known and that with the possible exception of an attempted letter bomb attack on Major General Robert Ford, the Commanding Officer in Northern Ireland at the relevant time, on 26th May 1976, none of those persons had been either threatened or attacked. The main Republican terrorist organisations were honouring the cease fire, and it was known by such organisations that the relatives of the deceased and the wounded sought not revenge but simply the truth. In those circumstances the threat to soldiers or ex-soldiers giving evidence under their own names was substantially less than those representing the soldiers and the Ministry of Defence were suggesting. The tribunal’s duty, if it was to establish the truth to the satisfaction and confidence of all parties, could not be discharged if those who played key roles in the events of that day were allowed to remain anonymous.
56. The tribunal heard oral submissions on the 26th and 27th April and on 5th May published the decision which the applicants seek to quash.
57. I shall set out the decision and the reasoning of the tribunal at some length, the more readily to consider the criticisms made of the decision and the tribunal’s reasoning.
58. The tribunal having set out the history of the matter in paragraph 11 stated its role in this way:
“The Tribunal has at 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.”
59. The tribunal went on to record that all interested parties accepted the existence of this duty. Then at paragraph 12 the tribunal said:
“In our view the existence of this duty entails 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 are concerned with that event must detract from an open search for the truth about what happened; and must need justification of an overriding kind.”
60. The tribunal went on to remind itself that it was an inquisitorial body and would itself know the identity of the witnesses but concluded that that did not take the matter much further forward.
61. Turning to the judgment of Otton LJ in the Court of Appeal the tribunal said that it was not going to makes its ruling on the basis of who bore the burden of proof but would seek to balance the various relevant factors. The tribunal observed that in their judgment it was not open justice that needed to be justified but rather any departure from open justice.
62. The tribunal went on to consider the anonymity granted by Lord Widgery to military witnesses who gave evidence to his inquiry. The tribunal referred to the statement of Lieutenant Colonel Overbury and reminded itself of the holding of the Divisional Court upheld by the Court of Appeal as to the effect of the assurances given to military witnesses in 1972, namely that:
“… subject to some compelling unforeseen circumstances, 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 that 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.”
63. The tribunal accepted that that assurance applied to all soldiers who gave evidence before the 1972 tribunal and not merely to those who had fired shots. The tribunal went on to hold that the tribunal itself and the task it was carrying out was a compelling unforeseen circumstance so that the assurance given in 1972 fell away. That had to be so because one reason for the setting up of the present tribunal was the fact that the inquiry conducted by Lord Widgery “so far from restoring public confidence, compounded the crisis” in the opinion of a substantial body of responsible people. Moreover, it was clear from the judgments both of the Divisional Court and the Court of Appeal that although the Widgery assurance was a relevant factor which had to be weighed in the balance when the question of anonymity was considered, it was not a determinative factor. The tribunal said:
“On this basis, it seems to us that although it is an important consideration, it does not of itself, or together with the other matters relied upon by the soldiers, amount to a compelling countervailing factor that should override our duty as we have stated it.”
64. The position at the present time was in no way comparable to the position in 1972 where there was not merely the threat of reprisals but an actual reprisal attack on the Parachute Regiment at their barracks in Aldershot on 22nd February 1972. The tribunal added that it recognised that no one could know what the future might hold and that “the bad days may return”.
65. The tribunal went on to find that the soldiers had grounds for their assertion that they had genuine and reasonable fears. In arriving at that conclusion the tribunal referred to the latest threat assessment provided by the Security Services. The tribunal accepted a submission that the tribunal should concentrate on what the tribunal perceived to be the degree of danger if the soldiers’ names are revealed. The tribunal then said:
“A reasonable fear of reprisals can exist if there is any degree of danger, but the greater the danger the more compelling this factor becomes in the balancing exercise we have to perform.”
66. The tribunal acknowledged the difficulty of the judgement it had to make. It also recorded that no one was now suggesting the solution the tribunal had reached in the first decision, namely that surnames, but not forenames, be disclosed, was an appropriate solution. Consequently the tribunal said that there was no satisfactory way of reconciling the two considerations and one had to give way to the other. Then the tribunal said:
“After the most anxious consideration we have concluded that on the basis of the 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 applications of the soldiers must fail. However, on the same basis as we set out in our ruling in December, we shall consider further the question of anonymity if it is suggested that there are special reasons in any particular cases why we should do so.”
67. The tribunal went on to acknowledge that the removal of anonymity is permanent and that it was possible that the threat to the soldiers might increase in the future, though whether that would happen was necessarily speculative. The tribunal then analysed the latest threat assessment giving a summary of it similar to that which I have given earlier in this judgment. The tribunal then said:
“We accept that on the basis of this assessment and the other material provided to us by the Ministry of Defence, identified soldiers are in greater danger than unidentified soldiers, for the obvious reason that if a soldier is unidentified as such there is only, as the assessment puts it, a potential as supposed to an actual threat. However, we do note that all serving or former soldiers fall within the ‘significant’ category, so all are ‘priority’ targets. It seems that it is only those who fired live rounds on Bloody Sunday who stand out, or stand out significantly, from the generality of soldiers. As to this generality, it seems to us that since there must be many soldiers or ex-soldiers whose names have been publicised or whose identities could readily be discovered … 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 our duty to conduct a public investigation.
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 were 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.”
68. The tribunal then went on to state that with the two exceptions we have already noticed in the 27 years since 1972 there is no evidence of any soldier involved in Bloody Sunday being the subject of attacks or threats for that reason. The tribunal took account that many of those would have been unidentifiable and that others may have been taking special precautions of which the tribunal knew nothing. The tribunal continued by making it clear that they would consider individual cases where circumstances might indicate a greater danger in which case the question of anonymity would be reconsidered. The tribunal recorded that they had considered whether it would be appropriate to grant anonymity whilst reserving the right to reconsider the position when it came to writing their report. The tribunal rejected that course of action:
“… for to do so would in our view derogate for no good or sufficient reason from our duty not only to report what we believe to be the truth, but also to conduct an open and public investigation.”
69. The tribunal went on to consider the particular case of soldier “H” who had made a separate application and was separately represented by Sir Alan Green, QC. His application was supported by an affidavit sworn by him. His application was rejected on the material presently before the tribunal.
70. At the same time the tribunal considered applications by five RUC officers for anonymity and granted anonymity in respect of three of them. Suffice it to say that the relevant circumstances in their cases were different and the tribunal decided to afford them anonymity not by withholding their names, but by limited screening so that they did not give their evidence in view of the general public. In these three cases the tribunal found that each officer would be “in special danger were they to be recognised” and they were to be regarded as being “under a special threat of personal danger”.
71. Before considering the grounds on which the applicants rely when seeking the quashing of the tribunal’s second decision, it is necessary to set out my view on the approach that should be adopted. This is because significantly different approaches have been urged upon us by Sir Sydney Kentridge QC for the applicants and Mr Clarke QC for the tribunal. Both counsel accept that the tribunal’s decision involves fundamental human rights, those rights being the rights to life, to safety and to live free of fear. Both counsel accept that where such rights are relevant to the decision, this court will exercise the most anxious scrutiny, see Lord Bridge in R v. Home Secretary ex parte Bugdaycay  AC 514 at 531G. Thereafter Mr Clarke submits that the ordinary limitations on the scope of the court’s powers of review still apply, relying upon the same passage from the speech of Lord Bridge. Mr Clarke goes on to submit:
“It is not the function of the Court to substitute its own view of the merits. The threshold of unreasonableness is not lowered. The test remains whether the decision falls within the range of responses open to a reasonable decision-maker. However where fundamental human rights are affected the Court may require more by way of justification before it is satisfied that the decision is reasonable in that sense.”
72. Mr Clarke then cited part of the finding in R v. Secretary of State ex parte Moon  COD 54 at 55 a decision of Sedley J (as he then was):
“The law on close scrutiny amounted today to a doctrine that the court will demand clear justification for an executive decision which interferes with an important right; not, however, so as to persuade the court to agree with the executive view, but simply to demonstrate that there was a sufficient basis on which the view could sensibly be reached.”
73. The submission of Sir Sydney Kentridge is that where important human rights are in issue, the court will adopt a more interventionist role, citing R v. Ministry of Defence ex parte Smith QB 517 where, at page 554D, Sir Thomas Bingham MR accepted the submission of counsel that:
“The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.”
74. In such cases the question, submits Sir Sydney Kentridge, ceases to be whether the public authority has acted irrationally or perversely and becomes whether a reasonable body on the material before it could reasonably conclude that the interference with or endangering of fundamental human rights which flowed from its decision was justifiable. Sir Sydney Kentridge relied on two of the speeches in R v. Secretary of State ex parte Brind  1 AC 696, namely that of Lord Bridge at page 748F to 749E and Lord Templeman at page 751E to F.
75. I proceed on these principles: the High Court when exercising its role under Order 53, reviews the procedure by which the public authority has reached its decision, and reviews the decision. In the normal case the review of the decision will involve this court in deciding whether the decision was reasonable or unreasonable in the Wednesbury sense. This court will not and has no jurisdiction to make the decision which is under review. Thus this court may often disagree with the decision taken, but if the decision taken is within the ambit of the decisions which that public authority could reasonably take, then there is no power to overturn the decision taken.
76. Where the decision involves the interference with or possible interference with fundamental human rights, the court’s review of the decision is more stringent. In my judgment the law is correctly stated in de Smith, Woolf and Jowell – Judicial Review of Administrative Action 5th Edition at para 13-060:
“Reasonableness in such cases is not, however, synonymous with ‘absurdity’ or ‘perversity’. Review is stricter and the courts ask the question posed by the majority in Brind, namely, ‘whether a reasonable Secretary of State, on the material before him, could reasonably conclude that the interference with freedom of expression was justifiable’. This test lowers the threshold of unreasonableness. In addition, it has been held that decisions infringing rights should receive the ‘most anxious scrutiny’ of the courts.”
77. As observed in Fordham in  Judicial Review page 81
“Anxious scrutiny is not judicial rhetoric, but an established doctrine with a discernable shape and direction.”
78. I consider that the submissions of Sir Sydney Kentridge more closely represent the present state of the law than those of Mr Clarke. I accept that the question for this court is:
“Given the inquisitorial function of the Tribunal, and given its clear finding that anonymity would not impede it in 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 and their families to a significant danger to their lives?”
79. Six grounds of challenge to the tribunal’s second decision are advanced. They are:
“1. The decision is unreasonable and unjustifiable on the facts as found by the Tribunal itself.
2. The decision to publish forenames, which the Tribunal itself decided by its first decision should properly and necessarily be withheld, is unreasonable.
3. The decision resiles from a substantive legitimate expectation which the Applicants had, and were entitled and intended to have, following the Tribunal’s July statement which informed them of the circumstances in which the Tribunal would be prepared to grant anonymity to them.
4. In requiring the Applicants to establish the ‘degree of danger’ to which they are exposed, the Tribunal repeated the error which it made in its first decision of requiring ‘concrete evidence of a specific threat’, and, further, for no good reason, departed from its first decision.
5. The Tribunal attached manifestly inappropriate and disproportionate weight to its view of its ‘public investigative function’ which, if correct, would have rendered its announced intention to grant anonymity to any class of persons nugatory and misleading.
6. The decision repeats the Tribunal’s failure in their first decision to give any or any proper weight to the assurance which was given to the Applicants by the Lord Chief Justice in 1972.”
80. In his reply Sir Sydney Kentridge indicated that he would not rely upon the third of the six grounds of challenge as a separate ground, having heard the submissions of Mr Clarke with respect to legitimate expectation. In reality, this leaves the first ground of challenge, the other five grounds being particular aspects of the first ground.
81. In my judgment the test formulated by the tribunal in their observations of 24th July 1998 was the correct test to apply. That is not the test applied by the tribunal in May 1999, see paragraphs 12 and 13 of their decision. Despite the tribunal saying that they were not deciding the balancing exercise on the burden of proof, they made it clear in their decision that it was for those applying for anonymity to establish that their need for anonymity outweighed the consideration of achieving public confidence by requiring, as part of open justice, those soldiers who fired their weapons to identify themselves at the outset; that is to say at the stage when witness statements will be circulated to the various parties to the inquiry. That this was the tribunal’s approach is, in my view, confirmed by the language in paragraphs 23, 28 and 30 of the second decision, and by paragraph  in the letter of 22nd March.
82. Nowhere does the tribunal assess the inroads which withholding the names of the 17 applicants would have made into the public nature of their inquiry. Nor does the tribunal consider the possibility, if the withholding of the name of a soldier who fired his weapon, were to make an unacceptable inroad into the public nature of the inquiry, the tribunal’s power to remove anonymity at that stage. In paragraph 31, the tribunal confined its consideration to withdrawing anonymity at the reporting stage.
83. The lifting of anonymity at the reporting stage is rejected because:
“To do so would in our view derogate for no good or sufficient reason from our duty not only to report what we believe to be the truth, but also to conduct an open and public investigation.”
84. Paragraph 31 of the decision. This paragraph in so far as it gives as a reason derogation from the tribunal’s duty to report the truth is in conflict with the tribunal’s statements on page 14 of its rulings and observations of 24th July 1998, in paragraph 39 of its first decision and in paragraph 12 of the second decision. The tribunal at those places has asserted consistently that the granting of anonymity would not interfere in its fundamental objective of establishing the truth about the events of Bloody Sunday. Indeed the tribunal in its July observations made the point that anonymity might well encourage frankness on the part of witnesses.
85. In so far as there is a reliance on derogation from the tribunal’s obligation to conduct an open and public investigation, nowhere does the tribunal assess the extent of such derogation or ask whether such derogation could undermine the confidence of responsible people in the fact finding of the tribunal. Sir Sydney Kentridge submitted that such an assessment would have shown that the granting of anonymity could not have undermined the confidence of responsible people in the fact finding ability of the tribunal. The proceedings will be in public. No soldier witness will be screened. Consequently the demeanour of such witnesses will be observable by all present. Those who were in command on that day will be known if anonymity is confined to those who fired their weapons. The statements of all witnesses will be available to all interested parties in advance. Rigorous cross-examination will be carried out by the tribunal’s counsel. Witnesses whose credibility may be in doubt for other reasons will have those reasons brought out by counsel for the tribunal. Effective cross-examination by those representing the families will be possible because those counsel in this inquiry, unlike the Widgery Tribunal, will have had disclosure of relevant documents and the witnesses statements in advance of the hearings. If any evidential or other sufficient reason for withdrawing anonymity emerges during the course of the proceedings anonymity could be withdrawn. The identity of soldiers who the tribunal find may have committed criminal offences will be disclosed to the prosecuting authorities and could appear in the tribunal’s report.
86. In my judgment had the tribunal assessed, as opposed to merely asserting the derogation that the granting of anonymity to the 17 applicants at this stage would have made from the openness of the tribunal’s proceedings, it would have seen 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. That was the matter to be weighed against the interference or the potential interference with the fundamental human rights of the applicants.
87. On this aspect of the very difficult task that the tribunal had to perform, it is the unhappy fact that in their first decision the tribunal assessed the risk of interference with the applicants’ fundamental human rights to be such that it was appropriate to grant them a degree of anonymity which would in the tribunal’s (albeit mistaken) view have made it extremely difficult to locate them and which warranted the tribunal, in a case of a man with an unusual surname, considering allowing him to withhold his surname. That was at a time when the Security Services’ assessment was that the threat was Moderate. By the second decision the threat had increased from Moderate to Significant; nothing else had changed but the tribunal concluded that the balance must come down in favour of witnesses giving their full names, which would allow them to be located by anyone wishing to do so.
88. Mr Clarke sought to meet this apparently irrational change in the tribunal’s views by two means: first, that the tribunal had in December 1998 rejected total anonymity for soldiers who fired their weapons because their conduct lay at the heart of the inquiry. Second, the December 1998 ruling had been quashed. Consequently it is immaterial to enquire whether there has been a departure from the reasoning of the quashed decision or to seek a good reason for any such departure.
“Provided that the fresh decision is lawful and reasonable in its own terms, and provided that a fair procedure has been followed in reaching it, it does not matter how far its reasoning accords with that of the flawed decision taken in December.”
89. I accept that the first decision was quashed and that the matter had to be decided afresh by the tribunal. Further the procedure that preceded the second decision, the receipt of written and oral submissions, was fair. However, the tribunal’s view of the degree of danger faced by the soldiers who fired their weapons arrived at in December 1998 and expressed in the first decision is, in my judgment, a relevant factor for this court when giving anxious consideration to the reasonableness of the second decision. As Sir Sydney Kentridge submitted, in the first decision the tribunal accepted that the degree of danger warranted that the applicants should be extremely difficult to locate. No reason is given for the tribunal’s conclusion in the second decision that the identification of these witnesses so that they can be located will not lead to an interference with the fundamental human rights of them and their families. The tribunal do not say that in the first decision they over estimated the degree of danger. Indeed it is quite clear that they did not. The Divisional Court in March of this year clearly thought that the tribunal on that occasion had underestimated the degree of danger.
90. The rights that are at stake are those to life, to security of the person and to respect for private and family life. The danger, were there to be a breach of those rights, would be extreme. InFernandez v. Government of Singapore and Others  1 WLR, a case to which Sir Sydney Kentridge referred this court, the House of Lords had to consider section 4 of the Fugitive Offenders Act 1967 which provided that a person should not be returned under that Act to a designated Commonwealth country if it appeared that he might, if returned, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions. In his speech at page 994C Lord Diplock said:
“Paragraph (c) of section 4(1) of the Act, unlike paragraphs (a) and (b), calls upon the court to prophesy what will happen to the fugitive in the future if he is returned. The degree of confidence that the events specified in the paragraph will occur which the court 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’.
91. 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 of refusing, the return of the fugitive if the court’s expectation should be wrong.”
92. Lord Diplock went on to say:
“My Lords, bearing in mind the relative gravity of the consequences of the court’s expectation being falsified either in one way or in the other, I do not think that the test of applicability of paragraph (c) is that the court must be satisfied that it is more likely than not that the fugitive will be detained or restricted if he is returned. A lessor 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’ …”
93. The submission made on behalf of the applicants is that the gravity of the consequences in this case should an attack on a witness materialise are so grave that if there was a reasonable chance or substantial grounds for thinking or a serious possibility of such attack then common sense and common humanity required that anonymity be continued.
94. The tribunal following the quashing of its first decision, sought the assistance of the Ministry of Defence and, through them the Security Services, to assess the degree of threat. In responding to that invitation the Ministry of Defence made a 26 page submission supported by the four annexes already specified in this judgment. In the course of that submission the Ministry of Defence informed the tribunal that some of those involved in Bloody Sunday had not revealed that involvement to family, friends or employers. Vulnerability had three broad aspects, namely the ease with which the person could be identified; the ease with which the person could be found and the ease with which the person could be attacked. Vulnerability increases as the ease with which those three objectives could be attained by a potential attacker increases. The Ministry of Defence went on to demonstrate that once a soldier’s name was known he would be easy to identify and easy to trace. The submission continued by referring to threats by both wings of the IRA to avenge the 13 deaths which had occurred on Bloody Sunday. The submission referred to the attack on the Paratrooper’s Barracks at Aldershot in February 1972. 1972 saw the greatest number of soldiers killed in Northern Ireland in one year. The submission referred to another attack on the Parachute Regiment in Northern Ireland in 1979 which resulted in the greatest number of soldiers killed in a single day, namely 18. The submission set out the attempted terrorist attack on the Parachute Regiment in England on 20th February 1989 which failed because the intruders were detected and barrack buildings evacuated before bombs exploded.
95. The submission went on to identify other incidents, not connected with Bloody Sunday save possibly that in 1976 when a letter bomb was addressed to Major General Ford, the Officer Commanding in Northern Ireland at the time of Bloody Sunday, showing that Republican terrorist organisations do carry out revenge attacks on individuals by indiscriminate means. Further material was provided showing that the threat of terrorist activities in Britain still exists, despite the peace process and the cease fires by some organisations, and that such organisations in the past have renounced their cease fires when it has suited them to do so.
96. The Ministry of Defence submission accepted a point made by Lord Gifford that even at the height of the troubles the principle of open justice had been largely observed in Northern Ireland. The submission nevertheless gave instances of soldiers who had been witnesses in Northern Ireland cases and who had been singled out for attack.
97. The security assessment attached to the Ministry of Defence submission was that the current overall threat of terrorist activity by Republican terrorist groups in Britain was significant. That assessment was based on an assessment of the ability of those organisations to carry out terrorist attacks in Britain and the current intentions of such organisations. That level of threat was the third level in a descending order of six levels of threat. The level of threat could go up or down. In fact the level now is Moderate. Among the categories of soldiers identified by the tribunal, the Security Service said that the applicant’s were in the top category, that is to say they are the most attractive targets among those categories.
98. The only evidence the tribunal had of the applicants having any protection against such a threat was their present anonymity.
99. The tribunal found, as they had in their first decision, that these soldiers had grounds for their assertion that they have genuine and reasonable fears.
100. The tribunal saw the force in the submission of Lord Gifford that they should concentrate on what they perceived to be the degree of danger if the soldier’s names are revealed. The tribunal then went on to say that there were two conflicting considerations, one of which had to give way to the other, without stating the degree of danger to the applicants that the tribunal perceived. The tribunal merely said:
“After the most anxious consideration we have concluded that on the basis of the 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 applications of the soldiers must fail.”
101. I would respectfully agree with the tribunal that if the only countervailing factor to the withholding of anonymity, which the applicants have enjoyed up to the present time, was “the concerns of the soldiers” the tribunal’s conclusion would be irresistible. The countervailing factor was not just the soldiers concerns. It consisted of the threat to the lives of them and their families which on the Security Services assessment was real and the interference with their private and family lives, which would be bound to occur, whether terrorists decided to target them or not.
102. It may be that the submissions made by counsel for the families persuaded the tribunal that the Security Service’s assessment of the threat to the applicants overstated the degree of danger to them, so that the tribunal rejected the threat assessment and the submissions made by the Ministry of Defence based on the threat assessment and the history and the pattern of terrorist activities in Northern Ireland and in Britain. If the Tribunal were persuaded to this view, the Tribunal did not say so. The difficulty for this court here, in my view, is that the tribunal dealt with the Ministry of Defence’s submissions in the most general way. I am impressed by Mr Burnett’s submissions on behalf of the Ministry of Defence that the applicants were entitled to have these matters made clear to them.
103. Another submission made to the tribunal on behalf of the applicants was that the present level of threat to the applicants may well be increased by the taking of evidence by the tribunal, spurring some of that body of individuals which the Ministry of Defence said existed in Northern Ireland:
“who are willing to kill and maim when it suits them; who are ready to use violence if they perceive an advantage to the cause they espouse; and who are not constrained by norms of civilised behaviour and remain well armed.”
104. It was accepted on all sides, as indeed I accept, that members of the families represented before the tribunal and before this court are not among that body of individuals, but there was no evidence to contradict the Ministry of Defence’s evidence that such people exist. Again the tribunal has not, in its reasons, mentioned this point and it cannot be seen by those reading the tribunal’s decision that this point has been either put in the scales in favour of continued anonymity for the applicants or rejected because the tribunal had, for good reason, decided it had no weight. The same can be said of the statement of Peter Taylor on which the Ministry of Defence and the applicants relied because he was a person who has actually spoken to members of extremist terrorist organisations on both sides of the divide in Northern Ireland.
In R v. Secretary of State for the Home Department ex parte Bugdaycay  AC 514 at page 531 Lord Bridge said:
“The most fundamental of all human rights is the individual’s right to life and when an administrative decision under challenge is said to be one which may put the applicant’s life at risk, the basis of the decision must surely call for the most anxious scrutiny.”
105. In such cases, and this is one of them, the process of review by this court must be more intensive and the court must have a greater readiness to intervene than would ordinarily characterise a judicial review challenge.
106. I return to the duty which we must perform, namely the giving of the most anxious consideration to the decision under review. The test propounded by the tribunal in 1998 was, in my judgment as I have already indicated, the correct test. The authorities to which we have been referred establish that where fundamental human rights will be or may be affected by a decision of a public authority, the law gives those rights precedence. The law is that such rights are to prevail unless either the threat that they will be infringed is slight or there is a compelling reason why they should yield. The July 1998 test recognised and gave effect to those principles.
107. The tribunal in the decision under review departed from this test and in doing so did not accord to the applicants’ fundamental human rights the required weight. It was the consideration of the carrying out of a public investigation to which the tribunal accorded precedence by requiring the departure from public and open justice which the applicants sought to be justified by the applicants.
108. The tribunal did not make a finding that the threat to the fundamental human rights of the applicants and their families was slight. Nor did it say that they were departing from the Security Service’s assessment of that threat, still less did they give any reason for rejecting that assessment. On the other side of the scale the tribunal did not analyse the extent to which the granting of anonymity to those soldiers who fired their weapons at this stage, always subject to review as the inquiry progressed, 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 findings as to the events of that tragic day which could be accepted by such people as accurate.
109. In these respects, in my judgment, the tribunal’s decision is flawed and I would quash it to the extent that it applies to the 17 applicants and other soldiers who also fired their weapons whose identities are not already in the public domain. I would not make the declaration sought; I would make an order pursuant to Rule 53.9(4) remitting the matter to the tribunal.
110. One final issue remains, namely that raised by Mr Rodgers, counsel for two persons concerned in the inquiry, Michael Bridge and Michael Bradley. Put simply Mr Rodgers’ submission is that the tribunal, having been appointed under the 1921 Act, is an organ of Parliament and that the High Court may not interfere with the proceedings of Parliament, consequently this court has no jurisdiction to review the proceedings before the tribunal.
111. I accept immediately that this court has no jurisdiction to interfere with or review proceedings in Parliament. Where the argument of Mr Rogers fails, in my judgment, is in its premise that the tribunal is an organ of Parliament and its proceedings are “proceedings in Parliament”. Mr Rogers invited us to read certain passages in the report of the Royal Commission on Tribunals of Inquiry which considered the powers and workings of tribunals set up under the 1921 Act. That report makes it clear that the passing of the 1921 Act came about because prior to that Act matters of urgent public importance into which it was expedient that there should be an inquiry, were normally inquired into by a Select Committee of the House of Commons. That procedure proved to be unsatisfactory because such committees tended to divide along party lines. Consequently it was perceived that it was necessary for Parliament to be able to appoint a tribunal of inquiry which was wholly independent of Parliament.
112. For that reason in my judgment Mr Rodgers’ submission must fail. It is not a submission that was supported by any other counsel.
MR JUSTICE MAURICE KAY:
113. I have had the opportunity to read a draft of the judgment of Roch LJ. I am in substantial agreement with it. In view of the importance and sensitivity of this case it is appropriate for me to add a more modest contribution of my own, highlighting the factors which have caused me to reach the same conclusion as my Lord. In so doing I gratefully adopt his exposition of the facts and the relevant legal principles. In relation to the “anxious scrutiny” approach I have also been helped by what Simon Brown LJ said at first instance in R v. Ministry of Defence, ex parte Smith 1 QB 517, 537-538:
“When the most fundamental human rights are threatened, the court will not, for example, be inclined to overlook some perhaps minor flaw in the decision-making process, or adopt a particularly benevolent view of the minister’s evidence, or exercise its discretion to withhold relief.”
114. Once the Tribunal had come to the conclusion that its fundamental objective of finding the truth about Bloody Sunday would be unlikely to be hampered by anonymity, it had to consider the request for anonymity by reference to a number of factors. The particularly important ones included:
(i) The need for open justice;
(ii) Public confidence in the proceedings and the eventual findings of the Tribunal;
(iii) The reasonable fears of the Applicants for their personal safety and that of their families;
(iv) The degree of danger;
(v) The Widgery Assurance;
(vi) The fact (for such it is) that a grant of anonymity at this stage could be reconsidered at later stages in the light of fact-finding needs during the evidence, the need to identify any miscreants in the Report or other supervening factors;
(vii) Whereas a grant of anonymity at this stage could be reconsidered later, a refusal of anonymity could not be effectively reversed.
115. As regards the need for open justice, I accept that the disclosure of the name of a witness is a normal requirement of open justice, any departure from which has to be justified. Although it is an element of open justice, it is less important than, say, sitting in public. Moreover, if its importance subsequently intensifies, for example because of evidential considerations or a need to identify miscreants, it can be reconsidered. At the present stage its importance is less intense because anonymity is not seen by the Tribunal to be an obstacle to the attainment of the fundamental objective. This is partly because of the inquisitorial nature of the Tribunal and the fact that the identities of the Applicants are known to the Tribunal and its counsel.
116. Public confidence is obviously important, particularly in an area where the very raison d’etre of a Tribunal is to investigate a matter in relation to which public confidence has been undermined. However, the mere fact that the public, or a section of it, expresses a lack of confidence calls for further consideration. A lack of confidence may be reasonable and objectively justifiable or it may not be. Whichever category is the appropriate one in a particular case must necessarily affect the amount of weight to be accorded to it. In the present case the Tribunal does not consider that anonymity would impede its fundamental objective and it would remain able to reconsider anonymity at later stages in the light of developments. In these circumstances the weight to be accorded to public confidence must be less than if the Tribunal were anxious about its ability to achieve its fundamental objective or if a grant of anonymity were irreversible.
117. So far as the reasonable fears of the Applicants and the objective degree of danger are concerned, the fear has been variously described by the Tribunal as “genuine”, “reasonable” and “understandable”. The Tribunal was particularly concerned to engage the assistance of the Ministry of Defence and the Security Services in relation to the degree of danger. The information was that the threat assessment had moved up from “moderate” to “significant” since the purported grant of partial immunity and that, of the five groups considered in the context of significant risk, soldiers who fired live rounds on Bloody Sunday were considered to be at the greatest risk. The Tribunal accepted (paragraph 27) that identified soldiers are at greater risk than unidentified soldiers.
118. The approach of the Tribunal to the Widgery Assurance is put on alternative bases. On the one hand, it concluded that the present Inquiry is a “compelling and unforeseen circumstance” as a result of which the Widgery Assurance “falls away” (paragraph 18). In this context it considered that its ability to restore confidence would be undermined unless it could form a “completely wholly independent judgment”, that is a judgment uninfluenced by the Widgery Inquiry or anything arising from it. On the other hand, it considered that if the present Inquiry is not “a compelling and unforeseen circumstance”, then the Widgery assurance is a factor to be weighed in the balance, in which case it is “an important consideration” but not a “compelling countervailing one”. It seems to me that there is difficulty about the first of the bases. It is implicit in the judgments of the Divisional Court and of Lord Woolf MR in the previous application that the Widgery Assurance had to be taken into account by the present Tribunal. It had not expired. It continued to be an integral part of such security as the soldier witnesses have. It does not bind the present Tribunal but, in the words of the Master of the Rolls (Transcript p. 27C), “they cannot ignore it because it is a relevant matter”. In my judgment, the reality is that they were bound to consider and weigh it. Having done so, they rightly concluded that it was “an important consideration”.
119. The Tribunal adverted to the fact that a grant of anonymity at this stage might be reconsidered at a later stage. It seems from the wording of paragraph 31 that they had in mind the later stage of the eventual Report but they do not there refer to the possibility of reconsideration in the course of the evidence should circumstances justify it. The conclusion of the Tribunal was that the availability of later reconsideration “would in our view derogate for no good or sufficient reason from our duty not only to report what we believe to be the truth but also to conduct an open and public investigation “. (paragraph 31).
120. The Tribunal described its task in coming to a judgement on the issue of anonymity as “very difficult”. It stated (paragraph 23):
“… we have considered with the greatest care that we can muster all the written and oral submissions made to us. 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 that the soldiers have… The conclusion that we have reached is there is in fact no way of satisfactorily reconciling the two considerations; and that the one must give way to the other. After the most anxious consideration we have concluded that on the basis of the 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 applications of the soldiers must fail. However, … we shall consider further the question of anonymity if it is suggested that there are special reasons in and particular cases why we should do so.”
121. In considering this application for Judicial Review of the Tribunal’s decision, I start from the position described by Lord Woolf MR in relation to the previous application (transcript, page 13):
“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 to do so.”
122. At the same time, one has to have regard to the fact that the Applicants are seeking to enlist the intervention of the court in circumstances where their fundamental human rights are under threat, in particular the right to life and, to some extent, the right to respect for family life. There is no doubt that this is an “anxious scrutiny” case and I reiterate my agreement with what Roch LJ has said in his judgment about the correct approach to such cases and the formulated question which he has identified as the one which we must address.
123. Reduced to its bare essentials, the decision of the Tribunal is that, although a grant of anonymity would be unlikely to impede the Tribunal in the attainment of its fundamental objective of finding out the truth about Bloody Sunday, it ought to be refused because of the interests of open justice and the maintenance of public confidence, notwithstanding the risks to the personal safety of the Applicants and their families. In reaching this decision the Tribunal must have considered that the particular interests of open justice and the particular fragility of public confidence were of such magnitude as to outweigh the fundamental human rights of the Applicants. I have come to the conclusion that such a decision was unreasonable and incapable of justification, notwithstanding the eminence of those who made it. My reasons for this are as follows:
1. The particular aspect of open justice from which anonymity would be a derogation is not its most important aspect, especially in an inquisitorial context in which the Tribunal does not consider that it would be impeded in its task of discovering the truth.
2. If circumstances should arise during the evidence which call for a reconsideration of anonymity in the light of evidential developments and the need to find the truth, then the question could be reconsidered; likewise if there arose in relation to any particular Applicant a public interest need to name him in the Report.
3. Although the Tribunal adverted to the possibility of reconsideration in relation to the contents of the Report, it does not seem to have done so in relation to evidential developments.
4. Once the ability to reconsider is acknowledged, one has to ask: just what facet of open justice and public confidence would be undermined by a grant of anonymity at this stage? If the Tribunal considers it likely that after a public hearing it will be able to find the truth about Bloody Sunday, with or without a reconsideration of anonymity during the evidence, it cannot be the view of the Tribunal that the main functions of open justice are under threat. I accept that the Tribunal was entitled to have regard also to the perceptions of the families of the deceased and wounded when considering public confidence, even if those perceptions concerning this Tribunal are objectively unjustified or erroneous. However, the weight to be attached to such perceptions must surely vary with the degree to which the Tribunal considers them reasonable and justifiable. If it is confident in its fact finding potential and mindful of its ability to reconsider anonymity in the light of future developments, I do not consider that it can be Wednesbury reasonable to elevate the perceptions of other interested parties above the fundamental human rights of the Applicants. The consequences of a refusal of anonymity are potentially devastating for those rights and irreversibly so. A grant of anonymity, on the other hand, need not be permanent.
124. In my judgment, to the extent that the Tribunal did not approach or rationalise its decision on anonymity in this way, it cannot be said to be a reasonable decision. That, it seems to me, is a sufficient basis to allow this application for Judicial Review. However, I am also troubled by another aspect of the case. The Tribunal made it clear in paragraph 22 of the decision that it was acceding to a submission made on behalf of the families that the Tribunal should concentrate on “what we perceive to be the degree of danger if the soldiers’ names are revealed”. No doubt the Tribunal was entitled to take that view. What troubles me, is that the decision does not proceed to quantify that degree of danger save, and with a degree of circularity, by concluding that it was insufficient to outweigh the interests of open justice and public confidence. In fact, the Tribunal had sought and had been provided with a great deal of material by the Ministry of Defence. It is submitted by Mr Burnett QC on behalf of the Ministry of Defence that, in round terms, the Tribunal simply did not do justice to the Ministry of Defence material. In my judgment there is considerable force in this submission and I agree with what Roch LJ has said about it.
125. At the commencement of his submissions, Mr Clarke QC suggested that if we were to conclude that the May decision is unreasonable and unjustified we would effectively be saying that the only reasonable decision open to the Tribunal is to permit anonymity at this stage. If that is correct, and it may well be, we should not shirk it. The fact that a question admits of two or more answers does not necessarily mean that, in particular circumstances, there is more than one reasonable answer.
126. I would quash the decision of the Tribunal in the manner indicated by Roch LJ.
127. In conclusion, I wish to add that I yield to no one in my sympathy towards the families of the deceased and the wounded. They are entitled to be reasonably satisfied that Lord Saville’s distinguished Tribunal will conduct a rigorous public investigation so as to discover and report on the truth about Bloody Sunday. However, I am convinced that such proper expectations cannot reasonably be said to be imperilled by anonymity for the Applicants at this stage.
MR JUSTICE HOOPER:
128. I adopt with gratitude the summary of the facts by Roch LJ. I give my reasons for reaching different conclusions to those of Roch LJ and Maurice Kay J.
129. This Court may only interfere with a decision of the kind with which this case is concerned if, in the absence of procedural unfairness, the decision maker has made an error of law, has taken into account matters which he ought not to have taken into account, has not taken into account matters which he ought to have taken into account or, in the words of Sir Thomas Bingham MR in R v Ministry of Defence ex parte Smith  QB 517 at 554, has reached a decision which is “unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker”.
130. It is not suggested that there was any procedural unfairness. Whereas the decision by Lord Widgery CJ to grant anonymity was, it appears, reached without having sought or received any representations from the families, those involved before this Tribunal have been given every opportunity to make representations, both written and oral. Nor is there any suggestion that the Tribunal has misdirected itself as to the law.
131. It is not disputed that a decision to refuse anonymity may (at the least) imperil not only the life of a soldier but also that of his family. In those circumstances, the Court must give the “most anxious scrutiny” to the decision. See R v Home Secretary ex parte Bugdaycay  AC 514 at 531 and 537. Whereas, normally, the court will only interfere if it is satisfied that the decision is unreasonable, “[t]he 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 that it is beyond the range of responses open to a reasonable decision-maker ( Smith, page 554). I see very little, if any, difference between this test and the general test being proposed by Sir Sydney Kentridge and set out by my Lord, Roch LJ.
132. It follows that, in my judgment, the question that this Court has to answer can be expressed in the following way:
“Given that the decision to refuse anonymity may (at the least) imperil life or liberty, is the court satisfied that the Tribunal’s decision is reasonable in the sense that it is within the range of responses open to a reasonable decision-maker?”
133. In effect the burden is on those who seek to uphold the decision (see Judicial Review of Administrative Action, de Smith, Woolf and Jowell, 5 th Ed., First Supplement, paragraph 13-060). The greater the risk to life and liberty the more the Court will require by way of justification and the more anxious scrutiny it must give.
134. In answering that question it is important to bear in mind the words of Lord Woolf, MR, when this matter was previously before the Court of Appeal (Transcript page 13):
“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 to do so.”
135. This Tribunal is not only chaired by Lord Saville, but he is assisted uniquely by two retired judges from the Commonwealth. It can, in one sense, properly be described as an international tribunal. There can also be no doubt that the Tribunal gave the most anxious consideration to the issue which it had to resolve (see, for example, paragraph 23). By the time it made the ruling now under review the Tribunal had had over a year in which to familiarise itself with the background to the enquiry. The Tribunal was in a position, for example, to describe as “responsible” the substantial body of public opinion to the effect that the Widgery Enquiry “so far from restoring public confidence” had “compounded the crisis” (paragraph 19). Counsel for the families explained to us the procedures adopted in the Widgery Enquiry which would, in their submission, not have restored public confidence.
136. In this case Mr Clarke QC, on behalf of the tribunal, supported by counsel for the families has submitted that the decision is one within the range of responses open to a reasonable decision maker. Sir Sydney Kentridge submits that the decision reached was one which, on the evidence before it and against the history of this matter, is one which was beyond the range of responses open to a reasonable decision maker. The Tribunal, he said, should have granted anonymity to those who fired live rounds, at least at the present stage. He does not invite this Court to send the matter back for further consideration.
137. The balancing exercise-general observations
138. Mr Burnett submitted that the decision of the Tribunal was one that was “unique in the annals of British justice”, a phrase about which Mr Harvey QC made complaint. Although Sir Sydney Kentridge did not use those word, the effect of his submissions was to convey to me, at least, a similar message.
139. Although the decision of this Tribunal may appear to many to be “unique”, these kind of decisions are made day in and day out, particularly in criminal trials. In deciding whether or not to grant anonymity or whether to make restrictions on what may be published, courts have to undertake a balancing exercise. (For an example of the balancing exercise being carried out in quite another context, see R v. Chief Constable of the North Wales Police and others, ex parte AB and another  3 All ER 310
140. The tribunal in this case had to weigh up various competing factors or considerations in deciding whether or not to grant anonymity:
1. The risk to a soldier and his family of not granting anonymity (“the risk factor”);
2. The necessity to find the truth about Bloody Sunday described by the Tribunal as a “fundamental objective” (paragraph 11);
3. The requirement of “open justice” (“the open justice factor”).
141. In many criminal trials courts have to balance similar competing factors, albeit that the second would normally be described in terms of achieving a fair trial.
142. In criminal trials the open justice factor may take precedence over the first, however great the risk. A person who has been charged and is either awaiting trial or being tried may have a strong argument for saying that his life is at serious risk should his identity become known. It is clear, however, that a Court cannot make an order on these grounds for maintaining the anonymity of the defendant, see for example R v. Newtownabbey Magistrates Court ex parte Belfast Telegraph Newspapers Limited  TLR at 476 (Queen’s Bench Division (Crown Side) of the High Court in Northern Ireland). In deciding not to grant anonymity to a defendant the Court is protecting “open justice”.
143. As Lord Diplock said in Attorney-General v. Leveller Magazine Limited  AC 440 at pages 449H:
“As a general rule the English system of administering justice does require that it be done in public: Scott v. Scott  AC 417. If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this.”
144. Such is the importance attached to open justice in criminal cases that there is a specific right to appeal against an order of the Crown Court derogating from the principle of open justice, a right which the media exercise from time to time and often successfully (see Blackstone’s Criminal Practice 1999 paragraph D2.56).
145. In criminal trials a party, more usually the prosecution, may seek an order that a witness should remain anonymous. There are many witnesses who have a realistic prospect of serious injury if not death should they give evidence. These include “super grasses” and “participating informants”. Only very rarely, if at all, will they be granted anonymity. In paragraph 40 of its submissions to the Tribunal dated 15th April 1999 the Ministry of Defence wrote this:
“As Lord Gifford QC remarks, in paragraph 15 of his submissions of 3 December 1998 on behalf of the Wray family [Volume 1/223]:
‘even at the height of the Troubles, the principle of public justice [in Northern Ireland] was largely observed.’
146. There is some truth in this proposition, despite the IRA’s having murdered two judges (Judge Doyle in 1983 and Lord Justice Gibson in 1987), and it may go a long way to accounting for the reasons why soldiers who have been prosecuted for murder and the like have not been traced, tracked down and killed by republican terrorists.”
147. Mr Clarke referred us to the decision of the Court of Appeal of New Zealand in R v Hughes  2 NZLR 129. In particular he referred us to passages in the judgment of Somers J, a member of this Tribunal. He said (page 155) that it can hardly be doubted that as a general rule a witness must give his true name, address and occupation. There is no suggestion that, in this case, anything other than the name should be disclosed. He went on to say:
“There is more than one reason for this. First, it is an important element in the open administration of justice. The public interest requires, and the law normally demands, that the whole of a trial is open to public scrutiny.” (at page 155)
148. He went on to give other reasons which relate to a defendant’s right to “a fair trial”.
149. The necessity to find truth
150. As to three numbered factors to which I have made reference, the second may be dealt with shortly. In paragraph 12 of its ruling of 21st May the Tribunal wrote:
“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 identity of the witnesses) …”
151. In its earlier observations of 24th July, to which Roch LJ has already referred, the tribunal said that “we think that there are likely to be circumstances in which granting anonymity will positively help us in our search for the truth”. The fact that the Tribunal would not be so hampered does not, as the Tribunal said: “really take the matter much further forward” (paragraph 12). It also bore in mind the real possibility that, at least in some cases, “anonymity would have the effect of encouraging greater candour”. However: “… this factor, alone or taken with others, is not sufficient to override our duty to carry out a public investigation” (paragraph 34).
152. The open justice factor
153. The Tribunal said about this:
“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.” (paragraph 11)
154. These words reflect the terms of the letter sent out by the Tribunal on 22nd March 1999 to those involved.
“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.” (2/408)
155. No such representations were made. As the Tribunal said:
“All interested parties accept the existence of this duty, which [in the mind of the Tribunal] stems … from the more fundamental principle of open justice in a democratic society.” (Paragraph 11)
156. With all respect to Sir Sydney Kentridge and Mr Burnett, their criticisms of the manner in which the duty was articulated and of the alleged failure to describe in more detail what the duty was, overlooks not only the obvious importance of the duty but the fact that its existence and ambit were not in dispute. It is, in these circumstances, not necessary for me to rehearse the arguments for the need for “open justice” put forward by counsel who opposed these applications. What was in dispute was how that consideration should be balanced against the competing consideration “risk to the soldiers”. On behalf of the applicants it is submitted that no reasonable decision-maker could resolve the balancing exercise, on the facts of this case, other than by coming down against “open justice”.
157. The Tribunal described this duty as the “duty laid on the Tribunal as to the manner in which it should seek” its fundamental objective, namely the finding of the truth about Bloody Sunday. (paragraph 12)
158. Sir Sydney Kentridge and Mr Burnett stressed the fundamental objective and submitted rightly that the fundamental objective, seen as the finding of the truth, could be achieved with the witnesses remaining anonymous. However, the finding of what the Tribunal believes to be the truth is a finding which, to be accepted must, according to the Tribunal, be the result of an “open” search for the truth, as well as a “thorough” and “complete” search. The Tribunal stressed the need to restore public confidence where a crisis in public confidence had occurred:
“Indeed, there is a substantial body of responsible public opinion to the effect that the Widgery Inquiry, so far from restoring public confidence, compounded the crisis. We consider that our ability to restore confidence will be undermined unless ….” (Emphasis added, paragraph 19)
159. Having defined the duty on the Tribunal as to the manner in which it should seek its objective, the Tribunal went on to say:
“… the existence of this duty entails that in the absence of compelling countervailing factors, those who give evidence to the Tribunal should do so under their proper names…” (paragraph 12)
160. In a later passage the Tribunal said that the conduct of the soldiers who fired live rounds was “at the very heart of this enquiry”:
“It is that loss of life that we are publicly investigating. To conceal the identity of those soldiers would, as it seems to us, to make particularly significant inroads on the public nature of the Inquiry.” (Paragraph 28)
161. The Tribunal also said:
“… it is not open justice that needs to be justified, but rather any departure from open justice. If justice cannot be done if it is open or if there are other matters that mean that open, justice would cause a greater injustice, then of course a departure would be justified, for these would be compelling countervailing factors.” (Paragraph 13)
162. When the Tribunal came to consider an RUC application for anonymity in respect of three officers it found “compelling countervailing factors … sufficient to displace our duty as we have described it.” (Paragraph 39)
163. Sir Sydney Kentridge submits that the Tribunal was wrong to conclude that any departure from open justice had to be justified. He points to a passage in the judgment of Otton LJ in the Court of Appeal referred to by the Tribunal in paragraph 13 of the decision. In my judgment the approach adopted by the Tribunal is consistent with the approach generally adopted when issues of this kind have to be decided. I see no reason why the fact that the Tribunal is conducting an inquiry under the 1921 Act should alter that position. As the Tribunal said:
“The Tribunal must conduct what Lord Justice Salmon described in his Report (1966 Cmnd 3121 at paragraph 28) as a ‘public investigation'” (Paragraph 12)
164. The risk factor
165. Having described in paragraph 21 the “basic submission” made on behalf of the soldiers and the increase in the level of threat from moderate to significant, in paragraph 22 the Tribunal went on to conclude that “the soldiers have grounds for their assertion that they have genuine and reasonable fears.” In paragraph 23 it referred to the understandable fears of the families for their safety.
166. The Tribunal then said that it should concentrate on “what we perceive to be the degree of danger if the soldiers’ names are revealed.” It concluded paragraph 22 with these words:
“… the greater the danger the more compelling this factor becomes in the balancing exercise we have to perform.”
167. As Roch LJ said in argument, what is being referred to in that passage is the “reality” of danger.
168. There can, in my judgment, be no proper criticism of this approach. The recognition that “the greater the danger the more compelling becomes this factor” reflects the requirement of “anxious scrutiny” in judicial review applications of this kind.
169. The Tribunal made it clear that it appreciated that “the removal of anonymity is permanent” and “that it is possible that in the future the threat to the soldiers may increase” although “whether this will happen is necessarily speculative” (paragraph 24). In paragraph 20 a similar point had been made:
“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.”
170. In paragraph 25, the Tribunal summarised, accurately in my view, the threat assessment. I shall not repeat that summary to which Roch LJ has already referred in his judgment. In paragraph 26 the Tribunal made the obvious but important point that “identified soldiers are in greater danger than unidentified soldiers.”
171. The Tribunal considered the position of what it described as the “generality of soldiers”, that is, those soldiers who did not fire live rounds. As to this “generality”, the Tribunal stated:
“… it seems to us that since there must be many soldiers or ex-soldiers whose names have been publicised or whose identities could readily be discovered … the danger created by identifying soldiers is one that is borne … by hundreds, if not thousands, of serving or former soldiers …” (Paragraph 27)
172. As to those who fired live rounds, they stand out “significantly” from the “generality of soldiers” (paragraph 27). The Tribunal wrote:
“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 were identified, but this increased threat is not considered sufficient, at least at present, to move them from the ‘significant’ to a higher category.” (Paragraph 28)
173. In paragraph 29 the Tribunal wrote:
“There is a further consideration that it seems to us we can properly take into account. Immediately after Bloody Sunday, as we have already noted, a reprisal attack was carried out on the Aldershot Barracks of the Parachute Regiment. After this, and with the possible exception of General Ford, there is (at least on the material before us) no evidence to suggest that over the following 27 years any of the soldiers involved in Bloody Sunday has been the subject of attacks for that reason, though of course large numbers of soldiers (and civilians) have been attacked and killed or injured. The names of a number of soldiers involved in Bloody Sunday are known (though not necessarily any of those who fired live rounds), or could have been identified without undue difficulty from public records, so that on any view the general anonymity of the soldiers does not provide a full explanation for the fact that (with the possible exception noted above) none of them has been the subject of an attack because of involvement in Bloody Sunday. Of course we appreciate that some at least of those whose names are or could be known may have been taking special precautions, but the fact of the matter is that (so far as we are presently aware) the danger they have been under as the result of Bloody Sunday has not resulted in any deaths or injuries.”
174. The balancing exercise as carried out by the Tribunal: “risk factor” v. “open justice factor”
175. In paragraph 22 the Tribunal posed the question it considered that it had to answer: namely, whether the grounds put forward by the applicants for retaining anonymity:
“… amount to such a compelling countervailing factor that it would be right for us to depart from our duty…”
176. I have already pointed out that the Tribunal appreciated that “the greater the danger the more compelling becomes this factor”.
177. The Tribunal concluded that there was “no way of satisfactorily reconciling the two considerations” and that:
“After the most anxious consideration we have concluded that on the basis of the material presently before us our duty to carry out a public investigation overrides the concerns of the soldiers…”. (Paragraph 23)
178. It retained the right to:
“… consider further the question of anonymity if it is suggested that there are special reasons in any particular cases why we should do so” (Paragraph 23).
“… consideration of individual circumstances may lead to the conclusion that in particular cases the danger is greater, and if that is so then of course we shall reconsider the question…” (Paragraph 30)
179. We were told that it is anticipated that a number of soldiers who fired live rounds are making such applications.
180. As to the “generality” of soldiers, the Tribunal concluded that, in the light of its conclusions that “the danger created by identifying soldiers is one that is borne by hundreds, if not thousands, of serving or former soldiers” and was not such as to override its duty to conduct a public investigation. (Paragraph 27)
181. As to the soldiers who fired live rounds, the Tribunal wrote:
“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.” (Paragraph 12)
182. In the passage cited from paragraph 28, the Tribunal concluded that these soldiers are more attractive targets than the generality of soldiers and thus face a higher likelihood of terrorist attack if they were identified and that “this increased threat is not considered sufficient, at least at present, to move them from a ‘significant’ to a higher category”. The Tribunal concluded:
“On the basis of the general assessment , we have concluded that the danger to soldiers who fired live rounds on Bloody Sunday does not outweigh or qualify our duty to conduct a public open enquiry”. (Paragraph 28) (Emphasis added)
183. The “general assessment” is the threat assessment which the Tribunal had earlier summarised.
184. The Tribunal considered whether to delay any decision about anonymity until the report stage. It said, as to this:
“We have considered whether it would be appropriate to grant anonymity at the present stage, whilst reserving the right to reconsider the position when we came to make our report. In this connection it is accepted that if we were to conclude that any particular soldier was at fault, that consideration would be a relevant factor to take into account in deciding whether or not to withdraw anonymity from that soldier. We have decided not to take that course, for to do so would in our view derogate for no good or sufficient reason from our duty not only to report what we believe to be the truth, but also to conduct an open and public investigation.” (Paragraph 31)
185. The Tribunal also considered the particular position of Soldier “H”:
“A further point was advanced by Sir Allan Green QC, Counsel for Soldier “H”. This was based on the fact that at the previous Inquiry the justification given by this soldier for firing a large number of rounds was expressly disbelieved by Lord Widgery and that the account given by this soldier, which in a recent affidavit he has maintained is the truth, has been the subject of extremely unfavourable comment in a number of published works about the Widgery Inquiry. It is suggested that these circumstances make Soldier “H”, were his name to be revealed, particularly vulnerable.”
“We are not persuaded by this submission. It seems to us to be speculative, especially in view of the fact that accusations of serious wrongdoing have been made against all or virtually all the soldiers who fired live rounds. On the material presently before us, we would not regard the danger to Soldier “H” as being in a significantly different category from that of the other soldiers who fired live rounds.” (Paragraphs 32 and 33)
186. Is the conclusion of the Tribunal that the “risk factor” is outweighed by the “open justice factor” within the range of responses open to a reasonable decision maker?
187. The principal submissions made on behalf of the applicants (other than those which I have already considered) can, I hope, fairly be summarised in the following way:
1. Having concluded in its first decision that its duty to ensure “open justice” could be met by the soldiers using only their surnames (absent any special circumstances) and thus ensuring as far as possible that those who fired live rounds would not be traced, it was irrational to reach a conclusion that anonymity should be lost.
2. No proper weight was given to the Widgery assurance.
3. The Tribunal failed to take into account or attached insufficient weight to the evidence put forward by the Ministry of Defence.
4. In all the circumstances, there is only one answer to the question posed by the Tribunal: “The risk factor in this case must, at least at this stage of the proceedings, outweigh the open justice factor.”
188. As to that first submission, Mr Clarke submits that the answer to that submission may be found particularly in paragraph 23 of the May ruling. In that paragraph, the Tribunal explained that it had attempted in its December ruling:
“… 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 … but this attempt has failed … No one now suggests that this is an appropriate solution. The conclusion that we have reached is there is in fact no way of satisfactorily reconciling the two considerations; and that the one must give way to the other.”
189. In my judgment, that is a complete answer to this first submission. In performing the balancing exercise in its December ruling the Tribunal found a solution which, in its view, balanced the two factors: “open justice” and “risk”. If that solution is no longer open to it and there is no way of satisfactorily reconciling the two factors, then it cannot become irrational simply because the Tribunal reached a different conclusion. Nor do I find any merit in the argument that, given that the security assessment had changed from “moderate” to “significant”, that this, in some way, automatically must make the conclusion irrational because of the previous ruling. There remains the argument, of course, that it was unreasonable to decide that the open justice factor overrides the risk factor. That argument, in my judgment, receives no support from the fact that the Tribunal had achieved a balance which later turned out to be insupportable. I shall return to that argument under heading 4.
190. I turn to the second submission. In paragraphs 15-20 the Tribunal considered whether the Widgery assurance, as it has become known, was a compelling countervailing factor to “open justice”. There is no dispute that the assurance cannot bind subsequent courts or tribunals charged with investigating the events of that day. We were told that the matter would probably have to have been considered in civil proceedings brought by the families, but for the fact that they were settled. Notwithstanding the conclusion in the Widgery Report, for example, that shots fired at four men “were fired without justification”, that in the case of one soldier 19 out of the 22 shots “were wholly unaccounted for” and that in one area “firing bordered on the reckless” (1/124 and 134), no-one was prosecuted. If a soldier or soldiers had been prosecuted then the issue of anonymity would have had to be resolved and it is likely that it would have been resolved against any defendant. The assurance was therefore of a limited kind. Nonetheless it can properly be said that the soldiers have had the benefit of it since 1972. Furthermore, if the soldiers are required to give evidence other than anonymously, then the statements made by them for the purposes of the Widgery Enquiry will lose their anonymity.
191. The Tribunal concluded 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” (paragraph 19). Assuming that this was contrary to what Lord Woolf MR said in the Court of Appeal (2/446), the Tribunal reached the conclusion that the assurance was not “a compelling countervailing factor” for the reasons it gave (paragraph 20). In my judgment, that conclusion is one that the Tribunal was reasonably entitled to reach and there is no merit in this submission.
192. I turn to the third submission. Sir Sydney Kentridge and Mr Burnett submit that the Tribunal failed to take sufficiently into account the Ministry of Defence material. It is not necessary for a decision-maker to summarise all the evidence. It cannot be argued that the Tribunal did not consider the evidence simply because it did not refer to it. The Tribunal specifically mentioned the general threat assessment, as I have already shown. The Tribunal referred to the history of terrorist attacks in paragraph 29. As Mr Clarke submitted, the Tribunal was “entitled to (and ought to have) considered any evidence of terrorist attacks motivated by the events of Bloody Sunday, and conversely the lack of any such evidence” (paragraph 61 of his Skeleton Argument).
193. It is submitted that the Tribunal was requiring concrete evidence of threats against the soldiers. I do not accept this submission.
194. The Tribunal is criticised for not, it is said, having calculated “the degree of danger” to which the soldiers who had fired live rounds would be subject so as to decide whether it outweighed the open justice factor, as I have called it. The threat assessment described the general threat of reprisals in Great Britain as, at that time, “significant” and, as the Tribunal reminded itself, the soldiers who fired live rounds were obviously more attractive targets than the other categories of soldiers (paragraphs 26 and 28). Consideration of individual circumstances may lead, as the Tribunal said, to the conclusion that in particular cases the danger is greater (paragraph 30). The thrust of the MOD’s submission before the Tribunal as to danger may be found in paragraph 41 of the submissions and in its conclusions:
“During the hearings of the Inquiry some of the soldiers will face grave accusations. The Ministry of Defence believes that there is a real danger that these men, if named, will be identified as potential targets whatever the outcome of the Inquiry, and that terrorists may feel justified in taking retributive action of their own if, for whatever reason, the men against whom the most serious allegations are made are not charged with criminal offences. The Tribunal’s deliberations, which are likely to extend over many months, will cause intense public interest. The risks to those perceived by terrorists to have been directly or indirectly responsible for the loss of life on Bloody Sunday [described in the next paragraph as ‘unique’] will rise as a result of the increased attention which those events will receive.” (2/506A)
195. The reference to those who “are not charged” has to be understood against the contents of paragraph 39 of the submissions in which reference is made to the apparent absence of reprisals against soldiers who have been tried on serious charges arising out of their service in Northern Ireland. Those who have been tried have been “subject to the due process of law”, which may, according to the Ministry of Defence, explain the apparent absence of reprisals.
196. In its conclusions the Ministry of Defence wrote that:
“a. There remains a threat to members of the security forces from republican terrorism. It has increased since the Tribunal’s last consideration of the issue.
b. That threat is far greater when the soldiers, past or present, have been involved in incidents of exceptional controversy. Soldiers who were involved in Bloody Sunday, and especially those who fired shots, if identified, would be exposed to a significant risk of attack by republican terrorists.”
197. Summarising these submissions, the Tribunal is being told by the Ministry of Defence that terrorists may feel justified in taking retributive action of their own if, for whatever reason, the men against whom the most serious allegations are made are not charged with criminal offences, particularly in the light of the unique character of Bloody Sunday and that soldiers who were involved in Bloody Sunday, and especially those who fired shots, would, if identified, be exposed to a significant risk.
198. The Tribunal made it clear that it was concerned with the “degree of danger” to which the soldiers would be exposed if they were identified (paragraph 22). It noted that all former soldiers fall within the “significant category” so all are “priority targets”, that the applicants were “more attractive targets” and “face a higher likelihood of terrorist attack if they were identified”, but that “this increased threat is not considered sufficient, at least at present, to move them from the ‘significant’ to a higher category”. It also, rightly in my judgment, took account of what is set out in paragraph 29.
199. This was, in my judgment a quite sufficient description and analysis of the danger in which the soldiers would find themselves for the purposes of carrying out the balancing exercise and the MOD submissions do not take the matter significantly further. In this context I agree with Mr Clarke that the case of Fernandez v. Government of Singapore and others  1 WLR 987 does not materially assist in the resolution of the issues before the court.
200. Although as the danger increases so must more weight 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.
201. I do not agree that the evidence of Mr Taylor (summarised by Roch LJ) to the effect that revealing his sources “would put lives at risk” adds anything of significance to the other material before the Tribunal.
202. Criticism is also made of the Tribunal’s failure to mention the fact that the hearings might well inspire renewed hostility. The Tribunal was conscious that things might change and, in any event, and as Mr Clarke submitted, this was an obvious point. I therefore reject the third submission.
203. I turn therefore to the fourth principal submission:
“In all the circumstances, there is only one answer to the question posed by the Tribunal: “The risk factor in this case must, at least at this stage of the proceedings, outweigh the open justice factor.”
204. I shall start with that part of the ruling that relates to soldiers other than those who fired live rounds. The Ministry of Defence in its submissions supported anonymity for all soldiers who were to give evidence, but accepted that its arguments had greater force in respect of the soldiers who fired (2/488-489). Mr Burnett did not concede that these soldiers should not have anonymity but in very large measure the submissions were concerned with those who fired live rounds. In my judgment for the reasons particularly expressed in paragraph 27 of the ruling, I am satisfied that the ruling on anonymity in so far as it relates to these soldiers, is within the range of responses open to a reasonable decision maker.
205. Any soldier is entitled to make what the Tribunal described as a “special reason application.” Although the Tribunal does not specifically say so, I, for my part would think that this could include a reason why the balancing exercise in his case should come down in favour of anonymity given, say, his very limited and uncontroversial role. As Mr Harvey said in argument, that is, in practice, often done in Northern Ireland by agreement between the court and the parties.
206. I turn then to the soldiers who fired live rounds. It is submitted that the Tribunal laid too much emphasis on open justice. This is an inquisitorial Tribunal. There are to be no screens to protect the faces of these witnesses. They can be cross-examined. Truth can be ascertained without revealing identities. Anonymity can be lifted at the report stage for those found by the Tribunal to have acted wrongly. It follows, so it is submitted, given the danger to the soldiers, that the only rational conclusion was to maintain anonymity at this stage.
207. I cannot agree. The Tribunal anxiously considered the matter at a time when it had had over a year to familiarise itself with the background to the enquiry. It came to the conclusion that open justice was more important than the other factors, including, particularly, the degree of danger to the soldiers from terrorists (not, I stress, from the families). There are many reasons for open justice. In its Ruling the Tribunal stressed the importance of there being public confidence in the work of this Tribunal (see the passage which I have already cited from the Leveller Magazine case). It highlighted the lack of confidence in the Widgery Enquiry. I, for my part sitting here in London, would be most reluctant to interfere with the conclusion of such a distinguished and “international” Tribunal investigating for the second time the deaths of citizens of this country many if not all of whom appear to have been unarmed. As the Tribunal said: “… accusations of serious wrongdoing have been made against all or virtually all the soldiers who fired live rounds” (paragraph 33). I certainly cannot describe the conclusion as irrational.
208. I am satisfied therefore that these applications should be refused.