In re Officer L (Respondent) (Northern Ireland) [2007] UKHL 36

House of Lords
[2007] UKHL 36
Before
Lord HoffmannLord WoolfLord CarswellLord Brown of Eaton-under-HeywoodLord ManceDate 31 July 2007
[1]I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Carswell, and for the reasons he gives I too would allow the appeal. LORD WOOLF My Lords,[2]I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Carswell, and for the reasons he gives I too would allow the appeal. LORD CARSWELL My Lords,[3]Police officers in Northern Ireland have suffered great hardships over many years as the result of the civil disturbances and their manifold consequences. Some 300 were murdered by paramilitaries and many others sustained serious injuries. Numbers of them had to move home, sometimes at very short notice because of an immediate threat of attack. They regularly kept secret, even from their neighbours and friends, the fact that they served in the police and concealed their occupation in documents wherever possible. They and their families lived under constant threat, and could never feel free completely from fear.[4]In spite of these pressures they constantly gave evidence in criminal and civil trials without concealment of their identities or appearance, to the great benefit of the system of justice. Their fortitude in this and other respects was no doubt sustained in the worst times by a strong feeling of solidarity in the fight against terrorism. Now that the security situation has improved to a significant extent, it is understandable if the fears which they surmounted or suppressed in dangerous times have returned more keenly when they feel that their safety is put under threat.[5]This feeling underlies the applications which are the subject of the appeal before the House. The Robert Hamill Inquiry proposes to call as witnesses a number of police officers who served in the Royal Ulster Constabulary ("RUC"), of whom some are retired and some are now serving in the Police Service of Northern Ireland ("PSNI"), the successor to the RUC. Some of these persons, when notified by the Inquiry of its intention to call them, made application to have their names withheld and to be screened from the view of the public while giving evidence (I shall refer to the relief sought compendiously as "anonymity"). Their applications were, with one exception, refused by the members of the panel constituting the tribunal, on grounds to which I shall refer in more detail. The eleven respondents to the present appeal brought an application for judicial review of the tribunal's decision and by an order dated 3 November 2006 Morgan J quashed the decision. The Court of Appeal (Kerr LCJ, Campbell and Girvan LJJ) on 5 February 2007 dismissed the appeal brought against that order by the Robert Hamill Inquiry, the appellant before your Lordships' House.[6]The Inquiry was set up to inquire into the circumstances surrounding the death of Robert Hamill, who died on 8 May 1997 from injuries received during an affray in Portadown, Co Armagh in the early hours of 27 April 1997. From an early stage the incident gave rise to public concern and a degree of controversy. It is claimed by the family of the deceased man that the attack was sectarian, in that Mr Hamill, a Catholic, was set upon and beaten and kicked by a number of Protestants. It is alleged that there were several police officers in a Land Rover nearby, but that none attempted to stop the assault, and an innuendo of collusion with the attackers has received wide circulation. It is further alleged that one officer obstructed the subsequent investigation into the incident by giving assistance to one of the persons suspected of participation in the assault.[7]No person has been convicted of the murder of Mr Hamill. One suspect, Marc Hobson, was tried for his murder, but was convicted only of affray. The controversy did not abate and this case, along with those relating to several other deaths which occurred in controversial circumstances, was referred to Mr Justice Cory, a retired judge of the Supreme Court of Canada. He recommended, inter alia, that a public inquiry should be held into the death of Robert Hamill. In November 2004 the Secretary of State for Northern Ireland set up the Inquiry, with the following terms of reference:
"To inquire into the death of Robert Hamill with a view to determining whether any wrongful act or omission by or within the Royal Ulster Constabulary facilitated his death or obstructed the investigation of it, or whether attempts were made to do so; whether any such act or omission was intentional or negligent; whether the investigation of his death was carried out with due diligence; and to make recommendations."
[8]The tribunal proposes to call a large number of witnesses, including the respondents. The Inquiry is to be held in accordance with the provisions of the Inquiries Act 2005. Under section 17(1) of that Act the procedure and conduct of the inquiry are to be such as the chairman may direct. By section 18 there is to be public access to the proceedings, but section 19 provides for the imposition of restrictions on such access or the disclosure or publication of any evidence or documents. The chairman may make a restriction order, specifying restrictions which he considers to be conducive to the inquiry fulfilling its terms of reference or to be necessary in the public interest, having regard in particular to the matters mentioned in section 19(4). Those matters include "any risk of harm or damage that could be avoided or reduced by any such restriction". "Harm or damage" is defined in subsection (5)(a) as including death or injury. It was not in dispute that the restrictions consisting of anonymity sought by the respondents are among those which the chairman is empowered to order.[9]By letter dated 29 June 2005 the respondents' solicitors lodged an application for anonymity on behalf of some 29 serving and former police officers, among whom were included most of the respondents. Other applications appear to have been received by the Inquiry over a period. It was contended by the solicitors that all the applicants were in fear for their lives, for reasons which were more pressing in some cases than in others, but expressed to be especially strong in the case of those officers who had been present at the scene of the affray in which Robert Hamill was attacked, and who had been persistently vilified as having been responsible for his death. It was claimed that the discharge of their duties had made some a target for loyalist paramilitaries because they had participated in the arrest and interview of persons suspected of causing Mr Hamill's death and the subsequent prosecution. Others were concerned that if they were publicly identified as police officers it would be dangerous for them in the communities in which they lived in the Mid-Ulster area, where paramilitary activity was especially rampant.[10]The Inquiry requested the PSNI to carry out a general risk assessment in respect of witnesses who were to give evidence, and received the following reply:
"PSNI is not aware of any information at this time which would indicate a specific threat to the Robert Hamill Inquiry or to those witnesses connected to it."
This indication was later supplemented in a letter from the PSNI enclosing details in response to a request from the Inquiry for individual risk assessments in respect of the respondents:
"I should point out however that although an officer may not have a specific threat against him the general threat which existed against all officers would have applied and indeed still does at the present time from dissident groups."
[11]Detailed written applications for anonymity were made on 28 March 2006 by the respondents' solicitors on behalf of those former members of the RUC whom the Inquiry intended to call as witnesses. The chairman refused the application, but offered the opportunity for a fresh consideration by the full tribunal at an oral hearing. The respondents, along with other persons, took up the opportunity and an oral hearing was held on 15 and 16 May 2006. Applications for restriction orders were made at the hearing on behalf of all former and serving police officers who were to be called as witnesses. Not all were able to attend and oral evidence was given by the respondents in support of the submissions. The tribunal obtained detailed information about each of the respondents and features of the general security situation in Northern Ireland relevant to the position of the police witnesses. Written submissions were also made by a number of persons and bodies concerning the applications.[12]The burden of the applicants' submissions was that by giving evidence without any protection by way of anonymity they would be exposed to an increased risk of terrorist attack. They expressed what the submissions described as a "reasonable and genuine fear" that they would be targeted if their names and appearance became known to a terrorist group and they were identified as having a connection with the incident the subject of the Inquiry. They highlighted their concerns about the possibility of reprisals from a dissident terrorist group as a result of the publicity which would be attendant upon the Inquiry and the allegations which would be made against the police.[13]The submissions were advanced under two heads, first, that to compel the applicants to give evidence without anonymity would constitute a breach of article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and, secondly, that it would be a breach of the common law duty of fairness to the witnesses. The tribunal pointed out in its decision that the protection sought under article 2, if the applicants' case were made out, is also available at common law, but the common law goes further in providing protection to witnesses in appropriate cases which is not available under article 2. It therefore considered separately the principles and the applicants' case under each heading.[14]The Inquiry gave its decision on the applications in a written ruling dated 3 August 2006. It commenced by setting out its analysis of the questions which arose for determination. So far as relevant to the respondents, this read as follows (I have renumbered the last portion to remove a duplication of number (vi)): "Article 2 ECHR I (a). The evidence from the PSNI in relation to the assessment of risk was that all police officers and former police officers and their families in Northern Ireland are at some risk of death or injury from attacks upon them by paramilitaries, whether republican or loyalist, and that in the Portadown and Armagh areas there has been an enhancement of those risks arising out of the death of Rosemary Nelson. No evidence was adduced in contradiction of this; however, it is acknowledged that views may differ in this regard. On the basis of the evidence, which we accept, the following question arises - is that risk materially increased in the case of an officer or former officer or his or her family if he or she is required to give evidence to the Inquiry either because he or she(i) is named in public or(ii) is able to be seen by the public when entering the Inquiry chamber and giving evidence or(iii) by a combination of these? * * * * * II. If the answer to any parts of the question set out at I (a) … above is 'yes' then, depending on the answers to the three parts of the question, the applicant should be allowed to give evidence without being named and/or behind a screen. III. If the answer to all parts of the question set out at I(a) … above is 'no' then, in so far as the application is based on Article 2 it must fail. The application must then be considered at common law. Common Law IV(a) In the case of a serving or former police officer - does the applicant have a fear that, if he or she has to give evidence (i) as a named witness or (ii) without being screened or (iii) both as a named and unscreened witness, the general risk referred to in question I above will be materially increased? * * * * * * V. In answering question IV above it will be material, but not necessarily decisive, to take account of the fact that question I has been answered in the negative as being relevant to answering the question IV. We remind ourselves, though, of a passage from Lord Woolf's judgment in ex parte A set out on page 8 of Mr O'Hare's second submission: 'In the present appeal, the fact that the soldier witnesses will have subjective fears if called to give evidence in Londonderry is a relevant factor when considering whether it will be fair to require them to do so. Those fears will, however, have much more significance if they are objectively justified.'1 VI. If the answer to question IV is 'no' then the application fails. VII. If the answer to the question IV is 'yes' there has to be a balancing exercise and the applicant's fear has to be considered along with the following factors in order to determine whether the interests of ju[15]The tribunal went on to consider in detail the evidence relating to these factors, and stated that that evidence, taken without the evidence of the applicants themselves, led it to conclude that question I which it had posed, relating to article 2 of the Convention, must be answered in the negative. It then looked at the individual cases and considered the evidence presented by each applicant. Its conclusion remained unchanged, that the applications made under article 2 should be rejected.[16]In considering the applications under the common law heading the tribunal examined the evidence about the fears entertained by the several applicants, bearing in mind its finding that fears of an increased risk were not well founded in fact. It conducted the balancing exercise between protecting the applicants and easing their fears and what Cory J described as the aim "to restore public confidence in the police and the judicial system." It expressed its "clear conclusion" that "the applications for anonymity based on common law in the case of those which are not supported by medical reports must also be rejected. It is our firm view that the balance comes down heavily against them."[17]The respondents brought an application in the Northern Ireland High Court for judicial review, seeking to have the tribunal's decision quashed on the grounds that(a) the tribunal misdirected itself in law(b) in the alternative, if it did apply the correct test, its decision was unreasonable in the Wednesbury sense. Morgan J in his judgment considered only the first ground, which he decided in favour of the applicants, the respondents to the present appeal. In view of the conclusions which I have reached, I do not need to discuss the judge's decision further and shall turn to that of the Court of Appeal.[18]The Court of Appeal in a written judgment given by Kerr LCJ on 5 February 2007 dismissed the Inquiry's appeal. It confined its consideration to the tribunal's ruling in relation to article 2 of the Convention. It held that the tribunal was in error in holding that it was necessary to find that a materially increased risk to the applicants for anonymity would arise from their giving evidence. Its opinion regarding the proper test was contained in paragraph 42 of its judgment, which was the focus of the criticism of the court's decision in the submissions advanced to the House by Mr Underwood QC on behalf of the appellant:
"[42] We consider, however, that the issue is more properly addressed by asking the simple question 'will the requirement to give evidence give rise to a real risk to life?'. To express the matter in terms of an increased risk implies that the existing threat could not play a part in the assessment and that a risk of a greater order of magnitude or of a different character was needed to engage article 2. But if a real risk to life from giving evidence eventuates from the matters that underpin the existing threat without there being an increase in the level of that threat, it nevertheless engages article 2."
The Court of Appeal accordingly held that the tribunal applied the wrong test, and that it was not inevitable that the same conclusion would have been reached if the tribunal had asked the question which the court regarded as correct. It did not express any opinion on the issue of Wednesbury unreasonableness, which had not been the subject of argument before it.[19]The right to life is simply and briefly expressed in the first sentence of article 2 of the Convention:
"Everyone's right to life shall be protected by law."
As the Strasbourg jurisprudence has laid down, this covers not only the negative obligation, not to take the life of another person, but imposes on contracting states a positive obligation, to take certain steps towards the prevention of loss of life at the hands of others than the state. The locus classicus of this doctrine is Osman v United Kingdom (1998) 29 EHRR 245, paragraphs 115-6 of which read: "115. The court notes that the first sentence of article 2(1) enjoins the state not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. It is common ground that the state's obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the court that article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The scope of this obligation is a matter of dispute between the parties. 116. For the court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in articles 5 and 8 of the Convention. In the opinion of the court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of thei[20]Two matters have become clear in the subsequent development of the case-law. First, this positive obligation arises only when the risk is "real and immediate". The wording of this test has been the subject of some critical discussion, but its meaning has been aptly summarised in Northern Ireland by Weatherup J in Re W's Application [2004] NIQB 67, where he said that:
"… a real risk is one that is objectively verified and an immediate risk is one that is present and continuing."
It is in my opinion clear that the criterion is and should be one that is not readily satisfied: in other words, the threshold is high. There was a suggestion in paragraph 28 of the judgment of the court in R (A and others) v Lord Saville of Newdigate [2002] 1 WLR 1249, 1261 (also known as the Widgery Soldiers case, to distinguish it from the earlier case with a very similar title) that a lower degree would engage article 2 when the risk is attendant upon some action that an authority is contemplating putting into effect itself. I shall return to this case later, but I do not think that this suggestion is well founded. In my opinion the standard is constant and not variable with the type of act in contemplation, and is not easily reached. Moreover, the requirement that the fear has to be real means that it must be objectively well-founded. In this respect the approach adopted by Morgan J was capable of causing confusion when he held that the tribunal should have commenced by assessing the subjective nature of the fears entertained by the applicants for anonymity before going on to assess the extent to which those fears were objectively justified. That is a valid approach when considering the common law test, but in assessing the existence of a real and immediate risk for the purposes of article 2 the issue does not depend on the subjective concerns of the applicant, but on the reality of the existence of the risk. As the Court of Appeal indicated in paragraph 33 of its judgment, the existence of subjective fears is not a prerequisite to the finding that there is a risk which satisfies the test of article 2, and, conversely, if a risk to life exists, article 2 will be engaged even if the person affected robustly disclaims having any subjective fears. That is not to say that the existence of a subjective fear is evidentially irrelevant, for it may be a pointer towards the existence of a real and immediate risk, but in the context of article 2 it is no more than evidence.[21]Secondly, there is a reflection of the principle of proportionality, striking a fair balance between the general rights of the community and the personal rights of the individual, to be found in the degree of stringency imposed upon the state authorities in the level of precautions which they have to take to avoid being in breach of article 2. As the ECtHR stated in paragraph 116 of Osman , the applicant has to show that the authorities failed to do all that was reasonably to be expected of them to avoid the risk to life. The standard accordingly is based on reasonableness, which brings in consideration of the circumstances of the case, the ease or difficulty of taking precautions and the resources available. In this way the state is not expected to undertake an unduly burdensome obligation: it is not obliged to satisfy an absolute standard requiring the risk to be averted, regardless of all other considerations: cf McBride, Protecting life: a positive obligation to help , (1999) 24 European Law Review Human Rights Survey, HR/43, HR/52. It has not been definitively settled in the Strasbourg jurisprudence whether countervailing factors relating to the public interest - such matters as the credibility of the Inquiry and its role in restoring public confidence -- as distinct from the practical difficulty of providing elaborate or far-reaching precautions, may be taken into account in deciding if there has been a breach of article 2. It does appear that it may be correct in principle to take such factors into account (cf Re Donaghy's Application [2002] NICA 25 and Re Meehan's Application [2003] NICA 34), but I would prefer to reserve my opinion on the point.[22]The principles which apply to a tribunal's common law duty of fairness towards the persons whom it proposes to call to give evidence before it are distinct and in some respects different from those which govern a decision made in respect of an article 2 risk. They entail consideration of concerns other than the risk to life, although as the Court of Appeal said in paragraph 8 of its judgment in the Widgery Soldiers case, an allegation of unfairness which involves a risk to the lives of witnesses is pre-eminently one that the court must consider with the most anxious scrutiny. Subjective fears, even if not well founded, can be taken into account, as the Court of Appeal said in the earlier case of R v Lord Saville of Newdigate, ex p A [2000] 1 WLR 1855 . It is unfair and wrong that witnesses should be avoidably subjected to fears arising from giving evidence, the more so if that has an adverse impact on their health. It is possible to envisage a range of other matters which could make for unfairness in relation of witnesses. Whether it is necessary to require witnesses to give evidence without anonymity is to be determined, as the tribunal correctly apprehended, by balancing a number of factors which need to be weighed in order to reach a determination.[23]The question posed by the Inquiry when considering article 2 was whether the pre-existing risk of death to an applicant for anonymity would be materially increased if he or she were required to give evidence without being afforded anonymity. Although it did not specifically so state in its ruling, it is inherent in all its discussion of the article 2 issue that the Inquiry did not consider that the pre-existing risk to any of the respondents or other applicants was sufficiently severe to reach the article 2 level of a real and immediate risk. In its question which I have quoted it stated that the evidence from the PSNI was that all serving and former police officers were at "some risk of death or injury from attacks upon them by paramilitaries." This theme recurs in several places in the ruling. The Inquiry stated that no police officer had been killed since 1998. None of the applicants appears to have averred that he or she was subject to a real and immediate risk of death as matters stood, apart from giving evidence, and there is no such indication to be found in the tribunal's discussion of the individual threat assessments received in respect of a number of applicants.[24]Starting from that premise, the tribunal accordingly posed the question whether in respect of any applicant the risk would be materially increased if he or she were required to give evidence without anonymity. In my opinion that was a correct test to apply. The Court of Appeal considered that it was an incorrect test. At paragraph 42 of its judgment it commenced by posing the question "will the requirement to give evidence give rise to a real risk to life?" I would regard that as an appropriate question to ask. It then went on to express its conclusion, however, that the proper question to ask is a simple one "Is there a real risk?" rather than "Is there an increase in the risk?" I cannot regard that as correct. If there is not a real and immediate risk to the life of an applicant before he or she gives evidence, then ex hypothesi to reach that threshold there must be some increase in risk occasioned by giving evidence. Only if that is the case can the requirement to give evidence "give rise to" a real risk to life.[25]The tribunal accordingly approached the matter properly under article 2 in seeking to ascertain whether giving evidence would give rise to a materially increased risk to life. Having found that it did not, it did not require then to go on to consider whether such an increased risk, if found to exist, would come up to the threshold required of a real and immediate risk to life.[26]It was also correct in asking the same question when considering the common law duty. If the risk has not been increased, then it is not unfair on that account to require a witness to give evidence. It went on, again correctly in my opinion, to assess the relevant factors other than actual risk to life which could make it unfair to require witnesses to testify without anonymity, that is, the subjective fears which many of them expressed. It carried out a proper balancing exercise and concluded that the balance came down against allowing the applications for anonymity, then took into account medical evidence in order to determine if that affected its conclusions. In my opinion the tribunal applied the correct tests and the decisions of Morgan J and the Court of Appeal cannot be sustained. I have purposely refrained from expressing any opinion on the tribunal's justification for reaching its conclusions on the evidence before it, for the issue of Wednesbury unreasonableness was not discussed or resolved by the courts below. That issue must now be remitted to the judge for determination.[27]These conclusions are sufficient to dispose of the appeal before the House, but it may be timely and of assistance to future tribunals to say a word about the relationship between the article 2 consideration of anonymity and that which is decided by reference to the common law principles. In paragraph 31 of its judgment in the Widgery Soldiers case the Court of Appeal attempted to accommodate the requirements of article 2 and those of the common law in a single exercise:
"We consider that the appropriate course is to consider first the nature of the subjective fears that the soldier witnesses are likely to experience if called to give evidence in the Guildhall, to consider the extent to which those fears are objectively justified and then to consider the extent to which those fears, and the grounds giving rise to them, will be alleviated if the soldiers give their evidence somewhere in Great Britain rather than in Londonderry. That alleviation then has to be balanced against the adverse consequences to the inquiry of the move of venue, applying common sense and humanity. The result of the balancing exercise will determine the appropriate decision. This course will, we believe, accommodate both the requirements of article 2 and the common law requirement that the procedure should be fair."
[28]I would not support this exercise in its entirety in the terms in which it was expressed, for while the balancing is appropriate in applying the common law test, the determination of the precautions which the tribunal should have to put in place is a different matter and does not depend on application of identical factors. I think that it is possible, however, to conduct the exercise basically as a single test, which is obviously desirable in the interests of simplicity. This could be done by approaching it as a single decision under the common law, having regard in the process to the requirements of article 2.[29]In pursuit of this end, I suggest that the exercise to be carried out by the tribunal faced with a request for anonymity should be the application of the common law test, with an excursion, if the facts require it, into the territory of article 2. Such an excursion would only be necessary if the tribunal found that, viewed objectively, a risk to the witness's life would be created or materially increased if they gave evidence without anonymity. If so, it should decide whether that increased risk would amount to a real and immediate risk to life. If it would, then the tribunal would ordinarily have little difficulty in determining that it would be reasonable in all the circumstances to give the witnesses a degree of anonymity. That would then conclude the exercise, for that anonymity would be required by article 2 and it would be unnecessary for the tribunal to give further consideration to the matter. If there would not be a real and immediate threat to the witness's life, then article 2 would drop out of consideration and the tribunal would continue to decide the matter as one governed by the common law principles. In coming to that decision the existence of subjective fears can be taken into account, on the basis which I earlier discussed (see paragraph 22). For the same reasons as those which I have set out in paragraph 20, however, I would not regard it as essential in every case to commence consideration of the issue by seeking to identify such subjective fears.[30]For the reasons which I have given earlier I would allow the appeal. I would remit the application for judicial review, in so far as it is based on Wednesbury unreasonableness, to the High Court for further consideration on that issue alone. LORD BROWN OF EATON-UNDER-HEYWOOD My Lords,[31]I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Carswell, and for the reasons he gives I too would allow the appeal. LORD MANCE My Lords,[32]I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Carswell. For the reasons set out in his opinion, with which I agree, I too would allow the appeal. 1 The Tribunal has attributed the passage incorrectly. It should be L Phillips of Worth Matravers MR delivering the judgment of the Court of Appeal in R (A and others) v. Lord Saville of Newdigate and others [2002] 1 WLR 1249, 1261, para 30.

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