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APPEAL
FROM THE HIGH COURT OF JUSTICE CONCERNING VENUE
The
appeal from the Divisional Court of the High Court of Justice was held in the
Court of Appeal on 11 and 12 December 2001 before three judges, presided over by
Lord Justice Phillips, the Master of the Rolls.
Lawyers representing the soldiers, the Ministry of Defence (MoD), the Bloody Sunday Inquiry (BSI), the Northern Ireland Civil Rights Association (NICRA) and the families and wounded presented oral and written arguments to the Court.
1.
APPEAL
1.1
Decision under Appeal
On
1st August, the BSI ruled that the soldiers should give their
evidence at the Guildhall in Derry. The
BSI was satisfied that the security services in Northern Ireland could provide a
level of protection sufficient to avoid any real or immediate risk to the lives
of the soldiers. The BSI rejected
the soldiers’ suggestion that there was a serious risk of public disorder were
the soldiers to give their evidence at the Guildhall. Furthermore, the BSI did not accept that the Guildhall was an
especially hostile or intimidating environment for the soldiers.
The soldiers sought a judicial review of the decision. On 17 November 2001, in the Divisional Court, Rose LJ and Sullivan LJ gave judgment in favour of the soldiers, declaring that the BSI’s decision that they should give their oral evidence at the Guildhall in Derry be declared unlawful and invalid and ruling that the soldiers should not have to give their evidence in Derry.
The
current appeal was brought by the BSI and the families of the dead and wounded
to challenge that ruling.
1.2
Article 2 Rights and the Applicable Test
As
in the judicial review proceedings, all parties presented arguments under
Article 2 of the European Convention of Human Rights (ECHR) concerning the right
to life. The parties also presented
submissions regarding the relevant test the Tribunal should have used when
calculating the potential risk to the soldiers should they be required to give
their evidence in Derry.
One
of the key points in contention was the application of the Osman test by
the BSI in their decision. Osman
v. UK lays out the obligations on behalf of a state to take reasonable steps
to protect the safety of individuals and states that authorities must do all
that can be reasonably expected of them to avoid a ‘real and immediate risk’
to life which they know or ought to have known about. The Osman test concerns the existence or non-existence
of such a risk.
The
soldiers submitted that they should not be required to give evidence at the
Guildhall because to do so would place them at the risk of a potentially fatal
attack by terrorists which would be incompatible with their right to life under
Article 2 of the ECHR and under the common law obligations of the BSI, as
outlined by the Court of Appeal in R v. Lord Saville of Newdigate, ex
parte A. The soldiers
submitted that the threshold of risk contemplated in Ex
parte A was lower than the threshold of risk required to trigger
a public authority’s obligations under Article 2.
The
BSI argued that there was no significant difference between the threshold of
risk identified in R v. Lord Saville of Newdigate, ex parte A and that identified in Osman and that the BSI
had therefore applied the correct test in determining that the soldiers should
give their evidence in Derry. They
submitted that they were satisfied that the security authorities could provide a
level of protection sufficient to avoid any real or immediate risk to the
soldiers’ lives and that consequently their Article 2 rights would not be
engaged.
The
families and wounded argued that the BSI was correct in their application of the
Osman test and in finding that the soldiers did not have reasonable fears
for their safety in view of the security precautions that would be taken.
NICRA
submitted that the Divisional Court had no jurisdiction to review the BSI’s
decision on venue.
2.
SUBMISSIONS
ON BEHALF OF THE BLOODY SUNDAY INQUIRY
Christopher
Clarke QC appeared on behalf of the BSI. He
argued that the decision of the Divisional Court on venue should be reversed.
2.1
Tests
Mr
Clarke submitted that the BSI was correct in holding that the common law (Fernandez
test) did not impose a higher or different obligation that the Convention test
set out in Osman. He
submitted that the Convention and common law were at one on the issue and that
there is no difference between the ‘real and significant’ risk identified by
common law and the ‘real and immediate’ risk found in Osman.
He said that there is no material difference between the two tests to
warrant the conclusion that the BSI had misdirected itself in law.
Both tests look for a ‘real risk’ which must be more than
speculative. An application of both the Osman and the Fernandez
tests require that the BSI should plan events so as to minimise as much as
possible the risk to life. They do
not suggest that there is an obligation to act in every incident where there is
the mere probability of a risk to life. In
the present situation, the BSI had come to the conclusion that there was no such
risk.
He
said that the Divisional Court in fact applied a test which does not follow the
wording of the Convention or common law and was wrong in principle.
The Divisional Court had made the adjective ‘real’ applicable to the
possibility of a risk instead of to the risk itself.
It had looked to whether there was a ‘real possibility of risk’ which
would suggest that ‘a real possibility of a chance’ would be enough to
prevent the soldiers from giving their evidence in the Guildhall.
Mr Clarke said the application of such a test by the Divisional Court was
unsupported by any previous authority.
The
BSI had addressed both the common law
and Convention test and was satisfied that the level of protection would be
sufficient as to avert a ‘real and immediate’ risk. Mr Clarke submitted therefore that there was no proper basis
for reversing with the BSI’s decision.
2.2
Comparative Risk
A
risk assessment is calculated by following the equation:
threat x vulnerability = risk. Unless
the level of threat and the level of vulnerability are exactly equal in two
locations, then the risk will be different.
According to the security authorities, the threat to the soldiers was
deemed to be moderate in both places. However,
vulnerability was gauged to be greater in Derry than in Britain.
This led to the relative risk being higher in Derry, despite the actual
threat being equal in both places. This
risk is determined prior to determining the impact of security precautions on
the risk. Once security precautions
are factored in, this produces a net risk.
Mr
Clarke said that the BSI was concerned with the net risk, i.e. the risk that would exist once security precautions had been
taken. The BSI had received the
answer from the security authorities that they could provide an acceptable level
of security in line with the protection afforded to such witnesses over the past
30 years. The BSI concluded that
although the risk would be greater in Derry, the standard of security provided
would also be greater in Derry.
Mr
Clarke submitted that whilst it might be helpful to make the comparison between
the two locations in terms of comparative risks, the key issue was whether such
a risk was important or real in either location. The BSI had found on the basis of the evidence provided to
them that there would be no ‘real and immediate risk’ to the soldiers, and
that therefore the Article 2 rights of the soldiers would not be engaged.
2.3
Security and the Assessment of Risk
Mr
Clarke said that the BSI had found that the level of protection afforded by the
security forces to military witnesses had been sufficient to avert the loss of
life or any attempt on their lives by terrorist groups and, on the basis of
detailed evidence, had concluded that the security agencies would be able to
afford an adequate level of security so as to eliminate any risk to the lives of
soldiers testifying at the BSI.
Contrary
to the submissions of the soldiers, the BSI had not looked only at the means of
security that could be put in place but at the achievable results of those
security arrangements. The BSI had
concluded that the security agencies would be able to deliver not just the same
security arrangements but the same level of success with regard to these
arrangements that they had in the past. They
were looking to the end result and were satisfied, on the basis of the evidence
received and considered, that a successful level of security could be maintained
in Derry for the duration of the soldiers’ evidence.
2.4
Reasonable Fears of the Soldiers
The
Divisional Court had no basis for saying that the BSI failed to take into
account the soldiers’ reasonable fears. Mr
Clarke submitted that the Divisional Court misunderstood the meaning of
‘reasonable fears’ in the sense that it was used by the BSI in its decision.
The question is in fact whether these fears are based on objective
grounds and is the same test, in substance, as the test of a ‘real and
immediate’ risk.
2.5
Unfairness towards the Soldier Witnesses
The
Divisional Court stated that the BSI’s conclusion that the soldiers did not
have reasonable fears for their safety gave rise to procedural unfairness in
relation to the soldier witnesses. However,
Mr Clarke submitted that if the BSI was entitled to reach the conclusion that
their fears were not reasonable, then there was no procedural unfairness.
There
would need to be very grievous circumstances for procedural unfairness to arise.
There could be procedural unfairness, for example, if the security
measures were extremely oppressive or if the soldiers were unable to give a full
and proper account of themselves. However,
there is no reason to suggest that the security measures at the Guildhall would
impede or inhibit the soldiers to such an extent as to amount to procedural
unfairness towards them.
2.6
Public Confidence
There
are different types of confidence at play:
the confidence in the BSI to get to the truth and the confidence in the
process by which they get to that truth. The
Widgery Inquiry failed to restore confidence and was regarded as a whitewash by
the families and a large section of the community.
The location of the Inquiry in Coleraine played no small part in creating
this loss of confidence as it made attendance difficult if not impossible for
the families of those killed and wounded.
If
Parliament made the unprecedented move to have a second enquiry, it was due to
the complaints about the first enquiry and the sense of unease that prevailed
after its completion. If the
soldiers’ evidence were to be heard in Britain, the participation in the BSI
by the victims and the relatives would be severely impeded and the hearing would
be rendered inaccessible at its most crucial moment to those to whom it is the
most important. This would result
in a loss of confidence in the process of the BSI.
2.7
Public Disorder
The
BSI rejected the soldiers’ suggestion that there would be a serious risk of
public disorder should the soldiers give their evidence at the Guildhall.
The incidents that the soldiers had listed in support of this argument
were either relatively old or had no connection with the conduct of the BSI in
any way. For example, the soldiers
made reference to the marching season whereas the BSI does not sit in July or
August. Mr Clarke said that the BSI
was particularly unimpressed by the soldiers’ reference to the Bloody Sunday
marches when outlining the possibility of public disorder as these had always
been peaceful marches. He said that
it would be ‘irrational and absurd’ to move the BSI due to the remote
possibility that there might be some form of public disorder which, in any
event, were it to occur, the RUC had made it clear they would be able to manage.
2.8
Article 2 Procedural Rights
It
was not appropriate for the Divisional Court to reject the BSI’s conclusion
that to move the BSI from Derry would contravene the Article 2 procedural rights
of the families and the victims. The
Divisional Court did not identify any error of law in the BSI’s approach, but
merely substituted its own evaluation of the circumstances and its own judgment
regarding the effects of moving the Inquiry for those of the BSI.
Mr Clarke held that this was particularly inappropriate given the
expertise and experience of the BSI.
He
further said that the Divisional Court in its decision did not refer to the need
for the proceedings to be transparent and accessible.
Nor did the Divisional Court take into account the fact that to hold the
BSI outside of Northern Ireland would be to deny access to those most
interested.
3.
SUBMISSIONS ON BEHALF OF THE FAMILIES AND WOUNDED
The
families and wounded supported the submissions made by the BSI.
Four senior counsel spoke on behalf of the families and wounded.
They said that the soldiers’ arguments were legally incorrect and
founded on questionable evidence. They
argued that the BSI had been correct to decide that the soldiers did not have
reasonable grounds to fear for their safety were they to give their evidence in
Derry and that the Divisional Court should not have reversed that decision.
3.1
Evidence of Risk to Soldiers
The
families and wounded submitted that the BSI had carefully and lengthily
conducted its risk assessment to determine whether the threshold of risk would
be crossed if the soldiers were to give their evidence in Derry.
For it is only if the threshold is crossed that Article 2 rights are
engaged.
Mr
Mansfield QC discussed a number of security assessments made by the RUC and
Special Branch over a period of three years, all of which state that the
security forces were not in possession of any specific intelligence concerning a
threat to the BSI itself or to any witnesses attending it.
He said that given that ‘intelligence’ covers everything from rumour
to specific intelligence, these reports were key in determining that there was
nothing to suggest the remotest threat to soldiers giving evidence in Derry.
He argued that far from being crossed, the threshold risk was not even
attained.
Mr
Lavery QC said that the MoD and soldiers’ case depended on generalities and
speculations: there was a
‘feeling’ that it would be more dangerous for the soldiers to give their
evidence in Derry as opposed to somewhere in Britain.
There is no evidence of any real or immediate risk to the soldiers and no
evidence that any republican group planned to attack former soldiers giving
evidence at the BSI.
If
the comparative risk assessment introduced by the soldiers’ advocates were
allowed to stand, it would lead to the absurd situation that in every operation
which necessitated persons at risk appearing at a trial, an assessment of
numerous cities in Great Britain would have to be made to determine the place
which would prevent the least possible risk, which could go on ad infinitum.
This would mean that there was a duty on public authorities to avoid any
risk however remote or speculative.
3.2
History of Targets
There
is no evidence of there being any attempts over the last thirty years to trace
or target the soldiers involved, despite a number of their names being known.
The Divisional Court failed to make any distinction between a general
threat to the military from paramilitary groups and a specific threat to
security service witnesses. None of
the attacks laid out in the chronology presented to the Divisional Court related
to military witnesses. This is of
key importance as there have been a number of highly controversial trials
involving military witnesses, such as that of Lee Clegg, and never have any such
witnesses been attacked nor has there been any evidence of foiled attacks.
3.3
Public Confidence
Moving
a major part of the Inquiry out of Derry would seriously damage public
confidence, whereas one of the objectives of the BSI is to restore confidence in
that section of the community in which it has been lost.
There
was a strong need not to repeat the errors of the past.
Holding the Widgery Inquiry in Coleraine as opposed to Derry had led to
the belief that the venue had been chosen to favour the soldiers and
disadvantage the families. If the
BSI were moved to Great Britain for the soldiers’ evidence, which was perhaps
the crucial part of the BSI, it would have a severe effect on the confidence of
those involved.
The
Widgery Inquiry did not allay any concerns.
The perception was that it was dominated by administrative issues.
One thing that must not be allowed is to have a second enquiry followed
by the same sense of unease as the Widgery Inquiry.
This would be an enormous waste of public money and resources.
3.4
Reasonable Fears of Soldiers
The
representatives of the families and wounded argued that the BSI was right to
accord no weight to the soldiers’ submissions that the Guildhall would be an
intimidating place for them to give evidence.
They submitted that the families had no interest in creating trouble as
their key concern was to hear the truth of what happened.
Anyone interfering with the families’ hearing the soldiers’ evidence
would be courting their opprobrium.
The
representatives of the families further submitted that due to the set up in the
Guildhall and the distance between the families, the public and the witness box,
even ‘the most paranoid witness’ could not feel intimidated.
It was inconceivable that former members of the parachute regiment could
possibly feel intimidated by coming into a situation where the families are
waiting to hear what they have to say.
The
BSI has the benefit of having the experience of the atmosphere in the Guildhall
and rightly concluded that it would not be an antagonistic situation for the
soldiers.
3.5
Bias
Mr
Lavery challenged the evidence from the MoD on the basis of their lack of
independence and impartiality. He
said that it was grossly unfair to rely on the evidence of the MoD, as the
Divisional Court had done, as it could not be taken at face value.
As evidence of the bias of the MoD he cited the reinstatement into the
army of soldiers accused and convicted of murdering Catholics in Northern
Ireland.
4.
NIcRA Submissions
Sir Louis Blom-Cooper QC appeared on behalf of the Northern Ireland Civil Rights Association (NICRA). He argued that the Divisional Court had no jurisdiction to review the BSI’s decision that the soldiers give their evidence in Derry.
4.1
Jurisdiction of the Courts
Sir
Louis argued that, as a matter of established domestic law, the court only has
jurisdiction to review the decisions of the BSI under exceptional circumstances,
according to the Tribunals of Inquiry (Evidence) Act 1921.
This does not mean that the BSI is not reviewable, but rather that the
conduct of its ‘business’ or matters relating to practice and procedure are
not reviewable by the courts. Accordingly,
the courts had no jurisdiction to intervene on issues relating to venue and
witness statement taking. The level
of review is limited to being satisfied that the BSI’s ruling was both fair
and within the range of responses open to a reasonable decision maker.
4.2
Obligations of BSI under Article 2
The
BSI is not an arm of the State for the purposes of Article 2.
Therefore, whereas there is no doubt that the UK government has a duty to
provide adequate security for soldier witnesses, the BSI has no duty under
Article 2 other than to inform them of the arrangements for their protection
during attendance at the BSI.
5.
SUBMISSIONS ON BEHALF OF THE SOLDIERS
David
Lloyd Jones QC, representing the soldiers, stated that this was a case requiring
anxious scrutiny of the utmost importance as the fundamental right to life of
the soldiers was engaged. He argued
that the Divisional Court was right to rule that the soldiers should not give
their evidence in Derry and that their ruling should be upheld.
He raised a number of arguments supporting and developing the ruling of
the Divisional Court, grouped under five key areas.
5.1 The
Risk to the Soldiers and the Reasonableness of their Fears
5.1.1
The Divisional Court
correctly held that it was not reasonably open to the BSI to conclude that the
soldiers’ fears were not reasonable.
[Blinne: you need a consistent approach to insetting here. Either all paragraphs with three numbers, e.g. 5.1.1, should
be inset, or none.]
Mr Lloyd Jones submitted that the Divisional Court correctly
held that the degree of risk to the soldiers was not fanciful.
A chronology of terrorist attacks in and around Derry was provided as
evidence of ongoing terrorist activities, and based on this and other evidence,
the Divisional Court had correctly concluded that the risk of attack was real.
5.1.2
If,
contrary to the judgment of the Divisional Court, the BSI was correct in
applying the Osman test, it still failed to understand the evidence of
the security agencies in concluding that there would be no real and immediate
risk to soldiers required to give evidence in Derry.
Mr
Lloyd Jones submitted that the conclusion reached by the Divisional Court as to
the reasonableness of the soldiers’ fears carries within it an admission as to
the reality of the risk involved. Furthermore,
the BSI had not specifically asked the Security Agencies whether the soldiers
would be at a ‘real and immediate risk’ if they gave evidence in Derry.
The BSI looked only to the means of security and not to the
efficacy of those means, and failed to take into account the fact that that the
current situation of bringing over hundreds of soldiers to give evidence in
Derry was a situation without precedent. The
fact that security agencies had been powerless to prevent attacks on security
targets in Derry in the past 18 months demonstrates that there is a real risk of
attack regardless of what measures are taken.
5.2
Procedural Fairness
5.2.1
The
Divisional Court correctly held that, given that the soldiers have reasonable
fears for their safety, it would be procedurally unfair to require them to give
evidence in Derry.
5.2.2 The Court should have held that, whether or not the BSI was reasonably entitled to conclude that sufficient security measures could be taken to avoid a real and immediate risk of, or a serious possibility of attack, it would nevertheless remain procedurally unfair to require those witnesses to give their evidence in Derry with all that would entail.
The soldiers were now in the most part civilians.
The security measures to which they would be subjected if they were
required to give evidence in Derry would be oppressive and would require them to
endure substantial invasion of their privacy and liberty and they would be
subjected to a thoroughly intimidating environment.
The soldiers involved in Bloody Sunday are particularly
attractive targets to terrorists. Their
fears are increased by the fact that they are likely to have to spend a number
of days in and around Derry, where they would need to be escorted and
accommodated under armed guard. Military
support would be necessary and there would also be a risk to those protecting
them.
Even if it were accepted that the security measures could
reduce the risk to the level claimed by the BSI, it would be procedurally unfair
to subject the soldiers to these conditions in the absence of a substantial
justification.
5.3
Public Disorder
5.3.1
The
Divisional Court should have held that the BSI failed to take account of the
evidence of the security authorities in concluding that there was no evidence of
a serious risk of public disorder should the soldiers give their oral evidence
in Derry.
Lord Justice Phillips suggested that the risk of public
disorder was a purely speculative one. Mr
Lloyd Jones argued however that it was not speculative and that it would be
‘cold comfort’ to the soldiers to know that the BSI would relocate after
something had happened.
5.3.2
The
Divisional Court should have held that the BSI attached excessive weight to its
experience of the first year of civilian evidence.
Mr Lloyd Jones submitted that the evidence of the soldiers
will be one of the most contentious periods for the BSI and could not be equated
with the atmosphere surrounding the hearing of civilian evidence.
5.4
The BSI’s Approach and Justifications
5.4.1
The
Divisional Court correctly held that the BSI erred in requiring the soldiers to
provide a compelling justification for giving their evidence anywhere other than
in Derry. Once the risk of death
was a serious or real possibility, it was for the BSI to find some compelling
justification for interference with the soldiers’ right to life.
5.4.2
The
Divisional Court correctly held that the BSI was wrong to regard its view of the
effect of hearing this evidence elsewhere on the confidence of the people of
Derry as determinative. The BSI had
failed to take account of the importance of the confidence in the BSI of the
people of Britain, and the soldier witnesses in particular.
Mr Lloyd Jones submitted that in its concern not to lose the
confidence of the Nationalist population, the BSI had given too much weight to
the suggestion that confidence would be destroyed were the evidence of the
soldiers not to be heard in Derry. He
said that this theory had been allowed to dominate the entire proceedings
without there being any clear evidence to support the fact that confidence would
indeed be lost.
He said that BSI failed to address the reasonableness of
such a loss of confidence and that they could not have concluded that the
confidence of reasonable people would be affected by a move from Derry.
It could not reasonably be suggested that the BSI’s ability to find the
truth would be impaired by a hearing in London.
Rather, the ability to hear the truth would be enhanced if all witnesses
were treated fairly.
From the set up of the BSI, there was a clear implication
that the soldiers would not be made to give their evidence in Derry.
It was only at the time of the ruling on anonymity that the BSI decided
that the proceedings should all take place in Derry.
They never gave an explanation for that change of mind.
Although Derry, as the scene of the events and the home of the victims
and their families, is the most symbolic place to hold the inquiry, the BSI
should not be allowed to submit soldiers to a real risk to their lives in the
interest of symbolic effect.
5.5
Article 2 Procedural Rights
5.5.1
The
Divisional Court correctly held that the BSI misdirected itself in law in
holding that hearing the soldiers’ evidence somewhere other than Derry would
contravene the procedural requirements of Article 2 of the ECHR.
In order to satisfy the procedural obligations under Article
2, the following must apply:
·
There must be
an effective investigation when individuals have been killed as a result of use
of force on behalf of the state
·
It must be
conducted by persons independent from those implicated in the events
·
It must be
capable of determining whether the force used was justified
·
It must
involve a sufficient element of public scrutiny of the investigation or its
results to ensure practical accountability
·
The next of
kin must be involved in the procedure to the extent necessary to safeguard their
legitimate interests.
Mr Lloyd Jones said that all of these procedural rights
could be safeguarded if the soldiers were to give their evidence in Britain.
Article 2 does not impose any requirement that an investigation into the
fatal use of force must be held in the place where the events occurred.
6.
Written Submissions
In the interests of time, Mr Lloyd Jones made further written representations on the following matters:
.
The BSI erred in law in equating the common law principle
outlined in R v. Lord Saville, ex parte
A with that in Osman.
·
Article 2 of the ECHR
The Divisional Court should have concluded that the BSI’s
decision infringed the rights of the soldiers under Article 2 of the European
Convention on Human Rights.
7.
MoD SUBMISSIONS
Ian Burnett QC appeared on behalf of the MoD.
He said that the MoD had been invited to make submissions on the question
on venue by the BSI and that they had a unique contribution to make for a number
of reasons: the MoD is the former
or current employers of all the soldier witnesses; it represents all those
soldiers not represented by Mr Lloyd Jones; it would share responsibility for
any security measures were the soldiers to give evidence in Derry.
Mr Burnett said that the Divisional Court had correctly
ruled that the soldiers should not give evidence in Derry and that he concurred
with all of the points made by Mr Lloyd Jones.
7.1
Allegations
of Bias
Mr Burnett said that a number of allegations of bad faith
and bias had been made against the MoD, especially at the opening of the
proceedings in Derry. He said that
there was no truth in these allegations and that the BSI had on no occasion
associated itself with the allegations made.
On the contrary, the BSI had expressed its gratitude for the help
provided to it by the MoD. He
stated that earlier in the year the MoD had made a comprehensive response to the
criticisms made of it.
He took this opportunity to reiterate that there was no
truth in any allegations made then or since and to give his guarantee that the
MoD was fully compliant with the Prime Minister’s request to cooperate with
the BSI. He stated that the fact
that a number of cases where the army reinstated soldiers convicted of murder in
Northern Ireland are currently under judicial review demonstrates the MoD’s
lack of bias on such matters.
7.2
Tests
Mr Burnett said that the BSI erred in applying the Osman
test to their decision, and that the question on venue should be considered
subject to the decision of Ex parte
A. He stated that the whole
reasoning of the BSI had been ‘infected’ by Osman which was the wrong
test to apply to the decision at hand.
According to Mr Burnett, the issue on risk was ‘a simple
one’: he said that there was no
dispute between the BSI and the soldiers’ advocates that the soldiers would be
more at risk if they gave their evidence in Derry as opposed to in Britain, and
that this risk would remain greater despite any security measures taken.
The BSI had failed to ask the security forces whether there would be a
real risk to the soldiers despite the protection put in place.
If the BSI had asked this question, the only conclusion they could have
come to would have been that there was indeed a real risk, and that
consequently, the fears of the soldiers were reasonable.
In such circumstances, the BSI would have to have found a compelling
justification to continue to hear evidence in Derry.
In fact, the BSI turned Ex parte
A on its head by saying that evidence should be heard in Derry unless the
soldiers could prove that it would be unlawful to do so.
7.3
Article 2 Procedural Rights
Mr Burnett stated that the Divisional Court was right to
hold that the procedural obligations under Article 2 did not mean that the
soldiers should give evidence in Derry. He
said that the BSI made an error in Law in concluding that Article 2 requires the
evidence to be heard in Derry. He
stated that it is one thing to come to the conclusion that taking evidence in
Derry satisfies Article 2 and very much another to suggest that to take it
elsewhere would be a breach of Article 2.
7.4
Public Confidence
Mr Burnett said that whilst he did not submit that public
confidence should not be allowed to weigh in the balance of the decision, a
supposed lack of public confidence taken out of proper regard to the right to
life of witnesses could not have any rational basis. Nobody could reasonably lose confidence in the BSI if the
motive behind the decision to hear the evidence elsewhere was a safeguard of the
soldiers’ right to life.
8.
JUDGMENT BY THE COURT OF APPEAL
On
18th December, the Court of Appeal gave judgment on the proceedings.
They upheld the Divisional Court’s ruling that the soldiers should not
give their evidence in Derry.
8.1
Response
to NICRA’s Submissions
The
Court rejected Sir Louis’ argument that the BSI was not a public authority.
They further ruled that, although in general, the court will not
interfere with the procedural decisions of a tribunal, the issue in question
related to the fairness of the BSI’s procedure and was therefore subject to
judicial review.
8.2
Article
2 of the ECHR and the Applicable Test
The
Court found the following issues under Article 2 of the ECHR were in play in the
present case:
·
The requirement to have an
effective official investigation.
·
The duty to protect against
criminal acts that threaten life (the Osman duty).
·
The obligation to take all
feasible precautions to minimise the loss of life when carrying out an operation
involving the use of force against armed opposition.
The
Court ruled that the Administrative Court had been right in determining that Osman
was not an appropriate test to apply to the context of the BSI as the threshold
of risk set by this test was too high.
8.3
Reasonable
Fears
The
Court said that the subjective fears of the soldiers were a relevant factor in
determining whether it would be fair to require them to give their evidence in
Derry. However, they further stated
that, contrary to Mr Clarke’s submissions, the soldiers’ fears were not
subjectively reasonable, but objectively reasonable.
The
Court ruled that risk assessment in the current situation was particularly
difficult due to two key factors: the
fact the soldiers were especially attractive targets and the unprecedented scale
of the necessary security operations. Further, the key question of the
likelihood of attack by Republican dissidents was a factor incapable of
assessment. These factors raised
real concerns for the security of the soldier witnesses and constituted
objective grounds for their fears.
The
Court therefore concluded that there was good cause for the soldiers to fear for
their safety were they to give their evidence in Derry.
8.4
Public
Confidence
The
court said that there had never been any suggestion that changing the venue for
the soldiers’ evidence would affect the BSI’s ability to get at the truth.
They further said that, through modern technology, a change of venue
would not affect the families’ access to the Inquiry.
They
sympathised with the families’ desire for the entire Inquiry to take place in
Derry. However, they found that the
risk posed to the soldiers by dissident Republican constituted a ‘compelling
reason’ to hear this section of the evidence elsewhere.
Due to such circumstances, there would be no reason for public confidence
or for the credibility of the BSI to be adversely affected by a change of venue.
The
appeal was dismissed. The matter
was remitted to the BSI with the direction that the soldiers’ evidence should
not be heard in Derry. The Court
left it to the BSI to determine where (aside from Derry) and how the soldiers’
evidence should be taken.
For Peace Justice & Human Rights
