SUMMARY OF ANONYMITY ISSUES

Synopsis of Court of Appeal decision relating to anonymity in RHI

Inquiry (Appellant):

Counsel for the Inquiry, Mr Underwood Q.C., contended that in assessing article 2, the exercise required only the application of the test:  was there a risk to the witnesses’ lives as a consequence of their giving evidence unscreened and under their own names?  He also stated that it was evident throughout the anonymity ruling of the Inquiry panel that they had directly considered the objective justification for the expressed fears of the police officers.  He sought to persuade the Court that it was necessary that any expressed risk arose as a result of the requirement that the witnesses give evidence and therefore a risk arising because they were or had been members of the police force would not give rise to entitlement to article 2 protection.  This argument was encapsulated in the concept of a “material increase in risk” as a result of being called to give evidence at the Inquiry.

Police Officers (Respondent):

Mr O’Donoghue Q.C., for the respondent police officers stated that the approach to the article 2 question of ascertaining whether there were subjective fears and then assessing whether these were objectively justified had been endorsed by the Courts of Appeal in both Northern Ireland and England and Wales.  He accepted that a balancing exercise would come into play once a conclusion had been reached that the fears were objectively justified  He also contended that the panel had wrongly imposed a burden of proof on the respondents in that they had to establish that the risks existed.

Court of Appeal – Decision:

The Court did not consider that the existence of subjective fears is a prerequisite to the engagement of article 2.  If a risk to life exists, article 2 will be engaged even if the person affected has no subjective fears.  The question will therefore be an objective one.  In contrast, at common law, a balancing exercise must be carried out in order to decide whether measures such as screening or anonymity are required.  Carrying out this balancing exercise at common law involves the weighing up of competing factors.  Such an exercise is unnecessary when assessing whether a risk sufficient to trigger article 2 exists.  The balancing exercise arises in relation to article 2 when deciding the choice of measures necessary to meet the risk.   In summary the Court concluded:

• The correct question should be:
  "Will there be a real risk to their lives if they are required to give
  evidence under their own names and unscreened?"
• This approach was preferred by the Court rather than considering an existing risk being somehow "increased" by giving evidence at the Inquiry. 
• The Court considered that the question, framed in this way, correctly focuses the examination on the risk that arises from the giving of evidence, unhampered by the need to supply some unquantified and unspecific further element to the risk acknowledged to exist.
• The Court was satisfied that the panel did not require the respondents to discharge a burden of proof.

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  16 February, 2007 |