Tuesday Law Report: 22 June 1999 - Tribunal erred in refusing anonymity

R v Lord Saville and others, ex parte A and others Queen's Bench Division, Divisional Court (Lord Justice Roch, Mr Justice Maurice Kay and Mr Justice Hooper) 17 June 1999

IN DECIDING not to grant anonymity to certain potential witnesses, the tribunal set up under Lord Saville to inquire into the events of "Bloody Sunday" had failed to give adequate weight to the fundamental human rights of those witnesses.

The Divisional Court (Hooper J dissenting) allowed an application for judicial review of a decision of the tribunal, set up in 1998 to inquire into the events in Londonderry on 30 January 1972 (Bloody Sunday), refusing to grant anonymity by the withholding of names to the generality of British soldiers or fomer soldiers who might be required to give evidence to the tribunal and to 17 of the soldiers who had fired live rounds on the day in question.

The applications had been made by the Ministry of Defence on behalf of the generality of soldiers, and by the 17 individual soldiers, principally on the basis that soldiers giving evidence to the tribunal and particularly those who had fired live rounds would be at risk of being attacked or seriously wounded once they became traceable by any of the republican terrorist groups.

The tribunal decided that its duty to conduct a public open inquiry was not outweighed or qualified by the danger which would be created by identifying the soldiers, and consequently refused the applications.

Sydney Kentridge QC, David Lloyd Jones QC and Michael Bools (Treasury Solicitor) for the applicants; Christopher Clarke QC, Alan Roxburgh and Jacob Grierson (W.J. Tate, Solicitor to the Inquiry) for the respondent; Ian Burnett QC (Solicitor to the Ministry of Defence) for the Ministry of Defence; Lord Gifford QC and John Coyle (McCartney & Casey) for James Wray deceased; Michael Mansfield QC and John Coyle (Desmond J. Doherty & Co) for Bernard McGuigan deceased; Hugh Martin Rodgers (Brendan Kerney Kelly & Co) for Michael Bradley and Michael Bridge; Arthur Harvey QC and Seamus Treacy (Madden & Finucane) for the next of kin and the wounded.

Lord Justice Roch said that the question for the court was whether, given the inquisatorial function of the tribunal, and given its clear finding that anonymity would not impede it in its fundamental task of discovering the truth, a reasonable tribunal could have concluded that the additional degree of openness to be gained by disclosure of the names of the 17 soldiers who had fired shots was so compelling a public interest as to justify subjecting them to a significant danger to their lives.

The approach of the court when reviewing a decision which involved fundamental human rights was more stringent than that adopted in the normal case, where the court had to decide whether the decision under review was reasonable or unreasonable in the Wednesbury sense.

Where the decision involved interference or possible interference with fundamental human rights, the court had to give it the "most anxious scrutiny". The review process had to be more intensive, and the court had to have a greater readiness to intervene than would ordinarily characterise a judicial review challenge. The law was such that where fundamental human rights would or might be affected by a decision of a public authority, those rights were to prevail unless either the threat that they would be infringed was slight or there was a compelling reason why they should yield.

In the decision under review in the present case the tribunal had departed from that test, and in so doing had not accorded to the applicants' fundamental human rights the required weight. By requiring the applicants to justify the departure from public and open justice which they sought, the tribunal had accorded precedence to the consideration of the carrying out of a public investigation.

In that respect the decision of the tribunal was flawed and, to the extent that it applied to the 17 applicants and to other soldiers who had fired their weapons and whose identities were not already in the public domain, it would be quashed.