Tuesday Law Report: 27 April 1999 - Jurisdiction of the Court of Appeal

R v The Bloody Sunday Inquiry, ex parte B and others Court of Appeal (Lord Woolf, Master of the Rolls, Lord Justice Otton and Lord Justice Ward) 30 March 1999

THE COURT of Appeal had jurisdiction to entertain an appeal against part of the reasoning of the Divisional Court in its decision on an application for judicial review.

The Court of Appeal dismissed the appeal of the second "Bloody Sunday" tribunal against one of the grounds for allowing an application for judicial review of its decision to grant only partial anonymity to certain witnesses who had been granted complete anonymity at the original inquiry.

The original tribunal of inquiry had been set up in 1972 under Lord Widgery to inquire into the events in Londonderry on "Bloody Sunday", in the course of which 13 people were killed and others were injured as a result of shooting by the British army. In January 1998 the Prime Minister announced that a second tribunal would be set up to conduct a fresh investigation. Both inquiries had the same terms of reference.

On 17 December 1998 the second tribunal gave a ruling that five soldiers who had admitted having fired live rounds on the day in question, and who had been allowed to give evidence anonymously at the Widgery inquiry, would not be allowed to remain completely anonymous in that their surnames could be revealed during the course of the present inquiry, unless special circumstances justifying such anonymity were shown to apply in individual cases.

Four of the soldiers applied for judicial review of the tribunal's ruling. The Divisonal Court declared the ruling invalid on five grounds, and accordingly held that the matter of anonymity should be returned to the tribunal to be re-determined. The tribunal appealed to the Court of Appeal against the decision on one ground, namely that the decision was flawed because of a misunderstanding of "the nature and extent of the anonymity granted to the applicants by Lord Widgery" and that it was "important for the Inquiry to have a clear perception of what was granted in 1972 and what endured".

On the appeal, it was argued for the applicants that, pursuant to section 16(1) of the Supreme Court Act 1981, the Court of Appeal only had jurisdiction to entertain an appeal against "any judgment or order", and not against one of the reasons for a decision.

Edwin Glasgow QC, David Lloyd Jones and Michael Bools (Treasury Solicitor) for the applicants; Christopher Clarke QC, Alan Roxburgh and Jacob Grierson (Philip L. Rudd) for the respondent; Edwin Glasgow QC, David Lloyd Jones and Michael Bools (Jacqueline Duff & Co) for soldier H, an interested party; John Coyle (B.M. Birnberg & Co as London agents for McCartney & Casey, Madden & Finucane and Desmond J. Doherty & Co) for the families of the dead and injured, interested parties.

Lord Woolf MR said that Order 59 rule 10(3) of the Rules of the Supreme Court set out the wide powers of the Court of Appeal on an appeal, and Order 53 rule 9(4) referred to the powers of the court on an application for judicial review where an order of certiorari was sought, namely to quash the decision in question and remit it with a direction to reconsider. Although the Divisional Court had not availed itself of the power under Order 53 rule 9, the Court of Appeal would have had power to remit the case in the same way as the Divisional Court could have done, thus enabling it to correct any error there might have been.

The tribunal, in considering the question of anonymity, had adopted what could be described as a "clean sheet" approach. However, to reveal the names of the applicants now would be in direct conflict with the anonymity they had been granted in 1972.

The Divisional Court had not, by its decision, fettered the proper role of the tribunal, but had only drawn the tribunal's attention to a matter which it could not ignore. It had not bound the tribunal to take any particular course, but only to take account, when reconsidering the matter of anonymity, of the obvious inference to be drawn from what Lord Widgery had said in granting anonymity.