The High Court yesterday ruled that by insisting that the men provide their full names when called to give evidence, the tribunal had made a "flawed" decision. It had failed to take sufficient account of the dangers faced by the soldiers and their families from revenge attacks by terrorists if they are identified, the court said.
Relatives of the 14 people killed in Londonderry during Bloody Sunday, on 30 January 1972, reacted with anger and disappointment to the ruling. It is also thought that the work of the Saville Inquiry, which was supposed to start its own hearings in September, has been set back by months because of the legal wrangle. Lawyers for the tribunal were given leave to appeal.
Lord Justice Roch, who heard the case with Mr Justice Maurice Kay and Mr Justice Hooper, said they had given "the most anxious consideration" to the matter. The ruling was on a 2-1 majority, with Mr Justice Hooper dissenting.
Quashing the tribunal's decision, Lord Justice Roch said the "fundamental human rights" of the soldiers and their families had been placed at risk by the tribunal, while it had given insufficient justification for this being done. Counsel for the tribunal had argued that the need to hold an open public inquiry had outweighed the risks to the men.
"The rights that are at stake are those to life, to security of the person and to respect for private and family life," the judge said. "The danger, were there to be a breach of those rights, would be extreme."
In particular he said that the tribunal had not given the required significance to a risk assessment provided by the Ministry of Defence and the security services. This had said that the threat to the soldiers, who were mostly from the Parachute Regiment, was "significant". In reaching its decision, said Lord Justice Roch, the tribunal "did not accord to the applicants' fundamental human rights the required weight".
After the judgment, Mickey McKinney, whose 27-year-old brother Willie was one of those shot dead said: "I'm very, very angry. Once you hear this you think, what next? How are we going to tackle this?" John Kelly, whose 17-year-old brother Michael was also one of the victims, also said he was extremely angry and disappointed. "It means the independence of the whole inquiry is in jeopardy, whereby other judicial bodies can interfere like this."
Speaking outside the court Greg McCartney, solicitor for the family of James Wray who was killed when aged 22, said they were "disappointed but not surprised". The ruling could have a "crippling effect on the whole inquiry", he said.
Earlier, in delivering his dissenting opinion, Mr Justice Hooper said an attempt to "square the circle" between conflicting demands had failed and the tribunal had decided that one had ultimately to give way to the other. "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 the terrorists ...
"I ... would be most reluctant to interfere with the conclusion of such a distinguished and international tribunal."Reuse content