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Robert Hamill Anonymity Case in the House of Lords, 14 May 2007
A number of police officers involved in the Robert Hamill Inquiry applied to the Inquiry for anonymity. The Inquiry Panel applied a test which asked “would there be a material increase to the risks which applicants for anonymity faced if they were to give evidence named and unscreened?” Using this question, the Inquiry Panel found that none of the police officers were successful under the common law approach and all but one failed under the Article 2 (of the European Convention on Human Rights, which protects the right to life) approach. The police officers judicially reviewed the Inquiry Panel’s decision and were successful in the Divisional Court. The Robert Hamill Inquiry appealed this decision in the Court of Appeal. The Court of Appeal dismissed the appeal and outlined the correct approach for the Inquiry Panel which looked at the real risk to the officers lives rather than whether an existing risk would be increased. The Inquiry Panel have thus appealed the Court of Appeal’s decision, in the House of Lords. The Secretary of State applied for and was granted status as a third party intervener the case.
In re Officer L (Respondent) (Northern Ireland)
Law Lords sitting: Lords Hoffman, Woolf, Carswell, Brown, Mance
Appellants: Ashley Underwood QC, Julie Anderson for the Robert Hamill Inquiry
Respondents: Frank O’Donoghue QC, Kevin O’Hare for Officer L and Others
Interveners: Philip Sales QC, Joanne Clement for the Secretary of State for Northern Ireland
Written Submission: Jessica Hamill for the family of Robert Hamill
Morning Session
Ashley Underwood QC opened his submission by outlining the background to the death of Robert Hamill. His main point was the ongoing controversy which had surrounded Robert Hamill’s death and the significance of sectarianism within this controversy. Ashley Underwood then sought to clarify some inaccuracies about the details of the Royal Ulster Constabulary (RUC) officers and the anonymity issue. Firstly he pointed out that although all the officers requesting anonymity were RUC officers at the time of the murder and the subsequent investigation, only half had retired – the rest remained serving Police Service of Northern Ireland (PSNI) officers. Secondly, contrary to the written submission of the Secretary of State where it is said that the officers wish to preserve their anonymity, in actuality, none of the officers currently have anonymity. As such, this case differs from that of Bloody Sunday. The fears expressed by the Respondents are based on the historic experience of the RUC. The Robert Hamill Inquiry has accepted that there is some risk to the officers but that things are changing in Northern Ireland. He highlighted the significance of the peace process and the changes in policing; the Robert Hamill Inquiry was viewed by human rights groups, for example, as being part of the peace process and an opportunity to enhance confidence in policing by the Catholic community. Ashley Underwood used the example that PSNI officers now give their names in court when giving evidence in trials. Carswell LJ interrupted and pointed out that this was not a new development but that officers had always given their names in court. Ashley Underwood accepted this and said that the sole basis for anonymity was that the existing risk would be increased and there was no claim that any other risk arose.
Ashley Underwood then discussed how the Robert Hamill Inquiry Panel dealt with the claims put forward by the RUC officers. Carswell LJ noted that much had been said about the dangers the police officers would be exposed to but he queried the consequences if the officers were given anonymity. Ashley Underwood said that, while this was not an issue to be discussed in these proceedings, he would briefly outline some consequences. From a forensic perspective, he said that anonymity would undermine an understanding of what happened on the night of the murder (i.e. where officers were located during the various incidents). It would also make it problematic for the Inquiry to establish, where there may be suspects for the murder, the locations of both the officers and the suspects at any given moment. He also said that, from a non-forensic perspective, the Robert Hamill Inquiry had to be seen to be totally fair and balanced due to the perception of sectarianism which surrounded the murder.
The Robert Hamill Inquiry Panel dealt with the anonymity issue by using both a common law and an Article 2 (of the European Convention on Human Right, ECHR) approach. The test of the common law test looked at the need for subjective fears to be objectively verified. While evidence was presented about the fears of the RUC officers, these fears needed to be balanced against whether these was any objective basis for their fears. The Robert Hamill Inquiry found that the fears were not well founded especially considering the decline in violence in Northern Ireland. All the applicants lost under the common law test and all but one police officer lost under the Article 2 approach. Woolf LJ asked if the individual who won under the Article 2 approach had now dropped out due to illness. Ashley Underwood confirmed that she had dropped out.
Ashley Underwood then considered the key arguments. Firstly, did the Robert Hamill Inquiry Panel ask a question it was entitled to ask? Secondly, if it was not entitled to ask this question, can the Court quash the decision? This led to a discussion with the Law Lords about the nature and definitions of a “real and immediate” risk and a “real” risk. Ashley Underwood commented that he was unable to see a difference between the two. Ashley Underwood moved on to consider if the fears expressed by the RUC officers were enough – in Article 2 cases there is a need for both a perception of fear and evidence to support this perception. Ashley Underwood warned that the courts should not set out how all Tribunals should deal with Article 2 cases especially considering their differences in kind and focus. Ashley Underwood said that there was no need for a balancing exercise. The Robert Hamill Inquiry Panel said that if the officers could show a risk then the Inquiry could use its powers to remove this risk (citing the definition in Gerard Donaghy’s application (2002)) i.e. by granting anonymity. Hoffman LJ asked if this was not a balancing act in itself. Carswell LJ asked if this was an extension of the Osman v UK (1998) test. Ashley Underwood replied that there were no clear battle lines in this particular case on this issue and that to an extent, the Appellants were arguing against themselves.
Ashley Underwood then presented his legal authorities. Osman (para 115) focussed on the State’s obligation, under Article 2.1, to prevent a breach of the article; where this positive obligation was violated, the State must be proven to have failed to have taken measures to protect life. It is here that the threshold test emerges; there is a relationship between risk and the measures taken by the state against that risk. Ashley Underwood said that, if this was a balancing act, it was a matter of semantics. The case of Killic v Turkey (2000) (paras 62 and 63) was concerned with the murder of a Kurdish journalist and the failure of the state to protect him. In Killic, the judgment in Osman was cited, where the state had failed to use reasonable preventative measures to protect the individual. Hoffman LJ explored the issue of openness and the cost to the community. Citing the case of a boy who dived into a pond and died, he queried the cost to the community if that pond had been closed to the public and no-one could swim there. Ashley Underwood accepted this issue but said that he would not be exploring it. The case of Kennan v UK (2001) examined the question of whether a prison had taken reasonable steps to protect a prisoner. Edwards v UK (2002), which looked at the death of a prisoner in custody, also carried forward the Osman principle. Ashley Underwood asserted that these cases show that there is clear and constant jurisprudence on this issue. R v Lord Saville of Newdigate ex parte A & others (2000) (Woolf) was a case which occurred prior to the coming into force of the Human Rights Act (HRA) and is thus seen as a transitional case so as to give effect to the HRA in public law and addressed the question of anonymity for the Bloody Sunday soldiers. Here the Ministry of Defence carried out a risk assessment on the soldiers and ranked them according to the risk they faced should their identities become known – here revealing the identities would have increased the risk. In R v Ministry of Defence ex parte Smith (1996) the issue of fairness arose where the Tribunal had to treat the witnesses with procedural fairness. Here anonymity was granted but on facts different from those which arise in Robert Hamill’s case. Ashley Underwood said that the Osman test was a constant throughout the cases. He said that one could not criticise the Robert Hamill Inquiry for not applying this test – it was not an exam paper – but the key issue was that a reasonable test had been applied. Hoffman LJ, following a discussion of the screening of the Bloody Sunday soldiers, pointed out that a Tribunal could take the measure that the witness should not give evidence at all. Ashley Underwood said that, there was a need for common sense and that, based on the facts, it would be inconvenient for the Robert Hamill Inquiry to grant anonymity.
Ashley Underwood introduced the case of R(Begum(by her litigation friend Rahman)) v Headteachers and Governors of Denbigh High School (2006)(Muslim dress in schools; Article 9 of the ECHR which protects freedom of religion). He cited Bingham LJ in the judgment and pointed out that the purpose of the HRA was not to enlarge the rights and remedies provided by the European Convention on Human Rights (ECHR). Ashley Underwood explored this issue further, using the case of a sex shop in Belfast, and the need to take into account the procedural rights of the ECHR.
Ashley Underwood pointed out that the Court of Appeal accepted his submissions on the issue of risk but found fault with the test that had been applied. However, Carswell LJ asked if the evidence presented gave rise to a different level of risk or a different kind of risk. Ashley Underwood said that the Tribunal must be able to decide the issue of risk. Carsell LJ said that the Robert Hamill Inquiry may bring a police officer to the attention of dissident republicans – indeed the fact that the Inquiry was happening at all may increase the risk. Ashley Underwood stated that this premise had been accepted. The Court of Appeal judgment missed the fact that the Tribunal dismissed the concept of specific threats. This led to a discussion about the role of the state in offering protection to witnesses – Hoffman LJ indicated that this issue had not featured thus far. Ashley Underwood said that an applicant who was refused anonymity had received new protection measures (though this individual was not a Respondent in this case). Ashley Underwood, following a brief exploration of the Court of Appeal judgment and the question asked by the Robert Hamill Inquiry, he submitted that the Panel should be allowed to continue its work.
Frank O’Donoghue QC opened by raising three issues. Firstly, is there a risk to the lives of the police officers? Secondly, if there is not a threshold test for real and immediate risk, then the test should be: “is there a risk?” Finally, with regard to the use of the term material risk, the focus should be solely on the risk. Hoffman LJ asked if the risk may not be related to giving evidence. Frank O’Donoghue responded that, at the extreme, this could be the case. There was an ongoing threat from dissident terrorists and a police officer may be just as at risk from being shot as being the subject of surveillance. The issue is the exposure to risk. Hoffman LJ then asked if this was the case, did giving evidence count as creating exposure? He concluded that the risk does increase if the officer has to give evidence to the Robert Hamill Inquiry. Carswell LJ, before closing, asked if Frank O’Donoghue could find a case where the police have sought anonymity based on an increase of risk.
Afternoon session
Frank O’Donoghue opened by responding to the question posed by Carswell LJ and cited Lord Saville of Newdigate v Widgery Soldiers & Others (2001). However, Carswell LJ pointed out that the soldiers were not at risk until they went to Northern Ireland to give evidence otherwise they were just ordinary soldiers. Frank O’Donoghue accepted this but said that paragraph 37 of Saville addressed terrorist risk and the inter-related issues of threat and vulnerability. Hoffman LJ said that this was a different point as the soldiers were not concerned with previous risk. Frank O’Donoghue said that Nicholson LJ in the judgment of Donaghy looked at the concept of immediate risk where two risk assessments were carried out. The Robert Hamill Inquiry Panel did not ask the security services if there was an increased risk. Carswell LJ queried what the Panel did ask. Frank O’Donoghue responded that they asked if there was any specific intelligence. In the absence of security information the correct question was not asked. Carswell LJ however pointed out that when you ask the security forces for a security assessment you cannot ask about the future. Frank O’Donoghue accepted this but said that the Panel needed to ask the question and have it answered. He acknowledged that there were differences between the soldiers and the police officers in this case. The soldiers started at an easier position as their anonymity had not been compromised thus they were at the base position. Frank O’Donoghue said there was a need to look at the objective risk, not a different degree of risk. Frank O’Donoghue said that an increase in risk was related to the engagement of Article 2. With regard to the Robert Hamill Inquiry, if the police officers gave evidence as named witnesses there would be a material increase to the risk; in other words, the Inquiry Panel did not look at the existing risk. Hoffman LJ and Frank O’Donoghue agreed that there was no difference between the Article 2 and the common law approach.
Frank O’Donoghue discussed the circumstances of Officer L, who was a Catholic police officer from South Armagh, serving in Portadown. She had been subjected to threats from republicans because she was a police officer and loyalists because she was a Catholic. Frank O’Donoghue said that Officer L was not only fearful of the consequences of giving evidence at the tribunal but of the consequences of the perception of collusion which surrounded the Robert Hamill Inquiry itself; in other words, the fact she was even associated with the Robert Hamill Inquiry would put her in danger.
Frank O’Donoghue and Hoffman LJ and Mance LJ discussed the manner in which the Robert Hamill Inquiry had approached the risk issue. Frank O’Donoghue argued that either procedurally the Tribunal had been mistaken or the matter should be referred back to the Tribunal for reconsideration. He said that the low threshold of risk must be balanced with the requirements of the other parties and not with the material increase in risk.
Philip Sales QC opened by highlighting the interests of the Secretary of State in this case. The Secretary of State is responsible for several public inquiries and so has an interest in the legal formulation of the anonymity issue. Carswell LJ queried the involvement of the Secretary of State and, in particular, the nature of his legal interest. Philip Sales responded that there was a need to understand how to balance openness with the safety of witnesses. While the Secretary of State does not represent the interests of the police officers in the Robert Hamill Inquiry, in some of the other inquiries he does represent the security forces. Philip Sales indicated that the Secretary of State’s interest was also linked to Article 2, because if the scope of Article 2 was expanded, it would bring distinct and unwarranted issues to the fore. In particular, the expansion of the scope of ECHR would increase the responsibility on public bodies. Brown LJ queried the fact that Philip Sales did not believe that Article 2 was engaged and asked, if Officer L was shot, would it be necessary to hold an Article 2 investigation which met the procedural obligation for a proper and independent investigation? Philip Sales agreed that only the minimum obligation would apply, unlike in R v Secretary of State for the Home Department ex parte Amin (2003) and In re McKerr (Northern Ireland) (2004), where there had been substantive breaches of Article 2. He re-emphasised that the Secretary of State was not concerned with the outcome of this case but rather with the legal aspect.
Philip Sales moved onto discuss the positive and negative obligations of Article 2. In particular he looked at the application, by Strasbourg, of the threshold test. Hoffman LJ queried why, if it is was relatively easy to protect an individual, should this be difficult in cases where the levels of risk are higher, where the risk had to be weighed against the steps taken to protect an individual. The issue of a threshold was discussed between Hoffman LJ and Philip Sales who advanced the case that the threshold test was the most helpful way for guidance on this issue to be framed. The threshold is higher for Article 2 and a range of legal consequences apply; in contrast, the common law has a lower threshold, applies more widely, is more flexible and has limited legal consequences Philip Sales said that Woolf LJ in Saville had the correct threshold test.
Philip Sales said that key to his argument was the fact that the scope of the application of Article 2 should be narrow so this does not have an impact upon the breadth of the scope of the common law principle of fairness. The Robert Hamill Inquiry is not bound by Article 2 but rather should “have regard to the values expressed in Article 2”. Philip Sales said that a problem emerged where the application of Article 2 was over-extended and this, in turn, had an impact on other areas. Woolf LJ confirmed that if you introduce Article 2 then the state has more responsibility – the concept of negligence may be removed but the state has a more serious obligation. Hoffman LJ claimed that the distinction is not between Article 2 and negligence but where an inquiry is retrospective yet looks forward. Philip Sales disagreed and said that the divide was not so clear. Article 2 applied to the state across the timeframe and the state must be aware of its obligations; Osman was a forward looking case where Strasbourg had to determine if Article 2 applied.
Philip Sales moved to his written submission and said that, where the common law applied, the principle of protection is more flexible. According to his analysis, the English Court of Appeal were wrong in Saville in equating the application of Article 2 with the application of the common law. This was compounded by the Court of Appeal in Northern Ireland which said that a wide application of Article 2 with no flexibility of the common law was possible – leading to the worst of both worlds. Philip Sales said that Article 2 applied narrowly so there is no need for balancing and Article 2 has a distorting effect on the domestic sphere.
Philip Sales continued his comparison of the common law and Article 2 approaches. Under Article 2, the subjective fears do not have to be taken into account; under the common law, an increase in risk triggers the common law principles. Under Article 2 there are two kinds of cases. The first case occurs where giving evidence takes an individual over the threshold of risk so the state has an obligation to address the risk; the second case occurs where someone is already at risk and then Article 2 is triggered. Hoffman LJ requested an example. Philip Sales referred to Lord Justice Carswell’s example where police officers were taken into protective custody and who were already operating in situations of risk. This led to as discussion between Brown LJ and Philip Sales about the threshold of risk. Philip Sales used several cases to highlight his point: Osman, Kennan v UK (2001), Younger v UK (2003), Villvarajah v UK (1991), Muslim v Turkey (2006). Several of these cases were concerned with the deportation and extradition of individuals where there was possibly a risk that Article 2 may be engaged. The extension of the application of Articles 2 and 3 raised issues for central government. Brown LJ wryly cited the importance of Chahal v UK (1996) and noted that it was a current “hot topic”. Hoffman LJ said that the UK did not extradite people to face the death penalty and indicated that such cases were different from that of Osman. Philip Sales claimed that the case of Surin supported the Secretary of State’s argument – the state may take an action, which may not be in the best interests of the individual, where a substantial degree of risk has to be applied before Article 2 is engaged.
Philip Sales concluded with a brief discussion of the relationship between the courts and decision-making bodies. He said that in cases where the superior court itself could satisfy the Convention Right, then there was nothing to be gained from returning the decision to the decision-making authority. Woolf LJ warned against the Court performing the decision-making function especially as Parliament has given the body that function in the first place. Hoffman LJ said that there was no requirement in domestic law for a public body to have regard to human rights, rather a public body should not infringe human rights. Philip Sales agreed and concluded that a public body has to reach a decision which is compatible with human rights.
Ashley Underwood responded very briefly. He first pointed out the difference between the positive and negative obligations of Article 2. He then went on to warn about the danger of Philip Sales' use of the expulsion case and Chahal.
The hearing, which had been expedited in order to delay the Robert Hamill Inquiry as little as possible, lasted for one day. Judgment was reserved and is likely to be handed down within a month.
For Peace Justice & Human Rights
