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JUDICIAL REVIEW PROCEEDINGS ON VENUE
The judicial review hearing was held at the Royal Courts of Justice in London on 5th, 6th and 7th November 2001 before Lord Justice Rose and Mr Justice Sullivan.
Lawyers representing the soldiers, Ministry of Defence (MoD), Tribunal and the families and wounded presented oral and written arguments to the Court.
1
JUDICIAL REVIEW
1.1 Nature of the proceedings
A judicial review is a form of court proceeding where one party (in this case the soldiers and MoD) ask the judges to review the lawfulness of a decision. The Court is not being asked to make the decision but is being asked to decide whether a correct legal basis has been used to reach the decision.
The soldiers asked that the Tribunal’s decision that they should give their oral evidence at the Guildhall in Derry be declared unlawful and invalid and for the Court to quash it.
1.2
Decision under review
On 1st August 2001 the Tribunal ruled that the soldiers had to give their evidence at the Guildhall in Derry.
They said that they were satisfied, on the basis of security advice, that the security authorities in Northern Ireland could provide a level of protection sufficient to avoid any real or immediate risk to the lives of the soldiers.
They said that the chances of the BSI restoring public confidence in general and that of the people most affected in particular would be seriously diminished (if not destroyed) by holding a major part of the BSI across the Irish Sea.
They rejected the soldiers’ suggestion that there was a serious risk of public disorder should the soldiers give their evidence at the Guildhall.
They did not accept that the soldiers had reasonable fears for their safety whilst going to and from the Guildhall or actually giving their evidence there, in view of the security precautions that the RUC and MoD would have in place.
They did not accept that the Guildhall was an especially hostile or intimidating environment for the soldiers.
1.3
The meeting with the security authorities
The Tribunal made their decision following a meeting that they had held with the security authorities in order to get more information on the security situation.
The meeting was held on 18th June 2001 and was attended by the Tribunal, counsel for the Tribunal, the MoD and senior members of the Security Services.
Initially, the Tribunal released a summary of the contents of the meeting. They later released a redacted transcript that had been agreed by all the people present at the meeting.
1.4 The right to life - Article 2 of the European Convention of Human Rights
All parties at the judicial review presented arguments under Article 2 of the European Convention of Human Rights which was enacted into domestic law by the Human Rights Act 1998.
The soldiers argued that the Tribunal’s decision violated their Article 2 rights and said that there is a real and immediate risk that the soldiers would be attacked if they gave evidence at the Guildhall and that they had reasonable fears for their safety whilst in Northern Ireland.
The Tribunal argued that the soldiers were confusing the obligations set out under Article 2. 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. They argued that their obligation to protect the right to life of witnesses and to ensure reasonable steps are taken to avoid a real and immediate risk to life is not an absolute one. They said that it must be balanced against their obligation to hold an effective inquiry.
The families and wounded argued that the Tribunal was correct in finding that the soldiers did not have reasonable fears for their safety in view of the security precautions that could be taken. They said that the soldiers were wrong in arguing that their Article 2 rights were engaged and that the Tribunal had an absolute duty to take all measures to avoid or reduce the risk. They said that any risk to the soldiers could not be described as real, immediate or a serious possibility. They argued that the MoD is biased in favour of the soldiers and to rely on MoD evidence breached the Article 2 rights of the families and wounded which require an effective, official and independent investigation into alleged unlawful killing by state agents.
2
SUBMISSIONS ON BEHALF OF THE SOLDIERS
David Lloyd Jones QC representing the soldiers said that the decision on venue was one that put the soldiers’ life at risk and called for the most anxious scrutiny. He said that the more substantial the interference with human rights, the more justification is needed before the Court can be satisfied that the Tribunal’s decision is reasonable.
The soldiers complained that the Tribunal’s decision on venue violates their right to life under Article 2 of the European Convention on Human Rights. They said that the findings of fact that the Tribunal made were not reasonable. They had acted unfairly and had misdirected themselves in law.
2.1
NINE GROUNDS
Mr Lloyd Jones said that there were nine grounds on which the Tribunal’s decision was unlawful.
2.1.1 The Tribunal either failed to take account of or did not attach sufficient weight to the evidence of the MoD, Security Service, RUC and Soldiers.
The Tribunal had not specifically asked the Security Agencies whether the soldiers would be at a ‘real and immediate’ risk if they gave evidence in Derry.
2.1.2 The Tribunal was wrong in law to say that they could only restore public confidence by requiring the soldiers to give evidence in the Guildhall and to say that the soldiers had to produce compelling reasons for them not to give their evidence there.
Although Derry, as the scene of the events and the home of the victims and their families, may be the natural place to hold much of the Inquiry, it does not follow that it is the natural place to hear the evidence of the soldiers.
The Tribunal did not consider whether any loss of confidence arising from where the soldiers gave evidence would be reasonable or would exist in the minds of responsible people.
The soldiers said that the crucial purpose of the Inquiry was to establish the truth and that is most likely to happen if the Tribunal are fair to all witnesses. The families would be legally represented at hearings of the soldiers’ evidence. The Tribunal had a duty to be fair to the soldiers as well as the families.
2.1.3
The Tribunal was wrong to conclude that there was no evidence supporting
the soldiers’ submission that there was a serious risk of public disorder
should the soldiers give their evidence in the Guildhall.
They had provided a list of public order incidents in Northern Ireland.
2.1.4 The Tribunal’s decision that sufficient measures could be taken such that there could no longer be said to exist a real and immediate risk is procedurally unfair.
The soldiers submitted that the existence of even the highest security precautions would not render their fears for their safety unreasonable.
The soldiers involved in Bloody Sunday are particularly attractive targets to terrorists; many of them have already been categorised murderers. Derry is a small city where secure accommodation and scope for variation of routes to the Guildhall is limited.
The soldiers said that there is significant vulnerability to witnesses and those seeking to safeguard the witnesses in the Guildhall. Their fears would be increased by the requirement for all witnesses to be in Derry, for at least two days and for those who were likely to be questioned for many days. They will require accommodating and escorting under armed guard. Military support will be necessary and there would be a collateral risk to those protecting them.
They said that giving evidence in such circumstances would be prejudicial to them and procedurally unfair.
2.1.5
The Tribunal was wrong in law to hold that they would be contravening the
procedural requirements of Article 2 to hold a central part of the BSI in a
place other than Derry.
The soldiers said that nothing in Jordan v UK or McCann v UK suggests that Article 2 requires an inquiry to be held where the fatal events occurred. What is required is an independent, effective investigation, securing evidence with reasonable expedition, subject to public scrutiny and involving the families to the extent necessary to safeguard their legitimate interests.
The soldiers said that none of these features of open justice would be undermined by soldiers giving evidence in Great Britain.
2.1.6 They
questioned whether the Tribunal was reasonably entitled to conclude that
sufficient protective measures could be taken such that there could no longer be
said to exist a real and immediate risk that the soldiers would be attacked.
They said that the Tribunal’s decision was unreasonable.
2.1.7 The Tribunal was wrong in law in equating the decision made in the anonymity case Ex parte A and that in Osman v UK.
They said that the Tribunal had been wrong to use the test in Osman (whether a real and immediate risk to the life of the soldiers existed) because that case dealt with a public authority’s duty to act to protect individuals from a third party.
The soldiers said that, because it was the Tribunal’s own decision which exposed the soldiers to risk, the correct test was the test in Fernandez which was adopted in ex parte A. In Fernandez the Court asked whether there was a ‘reasonable chance,’ ‘substantial grounds for thinking’ or a ‘serious possibility’ that the soldiers right to life would be put at risk by making them give evidence in Derry.
The soldiers said that the Tribunal had not considered whether there was a compelling justification for the soldiers to give the additional risk of giving evidence in Derry.
2.1.8 The Tribunal’s decision infringes the rights of soldiers under Article 2 of the European Convention of Human Rights.
2.1.9 The
Tribunal followed an unfair procedure in withholding from the soldiers a
redacted transcript of the meeting with the Security Agencies.
The soldiers did not pursue this ground in their oral submissions.
3 SUBMISSIONS ON BEHALF OF THE MoD
Ian Burnett QC appeared on behalf of the MoD and said that they had been invited by the Tribunal to make submissions on venue. He said that the Tribunal had reached an unlawful decision which could not withstand the anxious scrutiny test and that it should be quashed.
3.1
ALLEGATIONS OF BIAS
He said that there was no truth in the allegations of bias on the part of the MoD and that the Tribunal had not associated itself with these allegations. He said that all Government departments, including the Bloody Sunday Unit (MoD’s team working on the BSI), had honoured the Prime Minister’s assurance that they would give the fullest co-operation to the BSI.
3.2
MISDIRECTIONS IN LAW
Mr Burnett said that the Tribunal was incorrect in applying the Osman test to their decision. He said that the Tribunal was wrong to hold that the procedural obligations under Article 2 meant that the soldiers should give evidence in Derry.
Mr Burnett submitted that the importance that the Tribunal had attached to the failure of the Security Forces to suggest that there would be a real and immediate risk was significant. He said that there was no compelling reason why the soldiers should face the higher risk in Derry, even after all the security precautions had been taken.
The Security Authorities claimed that the risk in Northern Ireland will be higher and that they could provide no guarantees for the safety of the witnesses. If there is an attack then there is inevitably a real and immediate risk of it, whether or not the Tribunal knew of it. It could not be properly concluded that the soldiers’ fears, if they give evidence in Derry, were not reasonable.
Mr Burnett said that elaborate security will not be sufficient to protect soldiers from terrorist attack and the real risk to soldiers only becomes immediate when an attack is implemented.
4 SUBMISSIONS ON BEHALF OF THE TRIBUNAL
Christopher Clarke QC appeared on behalf of the Tribunal. He argued that the Tribunal’s decision on venue was lawful.
4.1
OBLIGATIONS OF TRIBUNAL UNDER ARTICLE 2
The Tribunal accepted that Article 2 of the Convention
placed three obligations on them:
4.1.1 Negative obligation to refrain from intentionally depriving a person of their life
This is not qualified by any principle of proportionality. There can be no derogation from this provision in peacetime.
To intentionally deprive a person of life involves a deliberate act rather than an omission.
4.1.2 Positive obligation to take adequate and appropriate steps to safeguard life
This is not an absolute obligation. It requires state authorities to do all that can be reasonably be expected of them to avoid real and immediate risk to life of which they have or ought to have knowledge. The obligation does not impose an impossible or disproportionate burden on the authorities.
What ‘can reasonably be expected’ depends on all the circumstances, including the following:
4.1.3
Procedural obligation to provide some form of effective official
investigation when individuals have been killed as a result of the use of force
by the State.
To satisfy this obligation the investigation must be effective which means that:
· It must be conducted by persons independent from those implicated in the events.
· It must be capable of finding out whether the force used was justified and of identifying and punishing those responsible.
· It must be prompt and reasonably expeditious. It is essential in maintaining public confidence in the State’s adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.
· It must involve a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. In all cases, the next of kin of the victims must be involved in the procedure to safeguard their legitimate interests.
4.2
RELEVANCE OF ARTICLE 2 TO THE FUNCTIONS OF THE TRIBUNAL
The Tribunal have a positive obligation to protect the right to life of those for whom they are responsible and to ensure that reasonable steps are taken to avoid a real and immediate risk to life which is known or ought to be known to the Tribunal.
The Tribunal must ensure that their investigation into the events of Bloody Sunday is in accordance with the procedural obligation under Article 2. The Tribunal are obliged to ensure that the investigation is conducted so as to maintain public confidence in the State’s adherence to the rule of law and to prevent any appearance of collusion in or tolerance of unlawful acts. The investigation must be transparent and accessible. The effective involvement of the next of kin of the deceased in the investigation is essential.
The Tribunal have a duty to ensure that the lives of witnesses are not ‘unjustifiably imperilled.’ If witnesses would face a serious risk in attending to give their evidence, their rights must be balanced against the Tribunal’s obligation to hold an effective inquiry.
There might be circumstances in which the Tribunal could lawfully require witnesses to attend to give evidence even if there was a real and immediate risk to the witnesses’ lives in doing so. There would be no violation of Article 2 in such circumstances, provided that the Tribunal had properly assessed the extent of the risk to the witnesses, had ensured that all reasonable steps to avoid it would be taken and had concluded that it was justifiable in the interests of justice to require the witnesses to run the risk in question.
Where there is no real and immediate risk to a witness in attending to give evidence, the Tribunal’s positive obligation under Article 2 is not engaged.
4.3
THE TRIBUNAL’S DECISION
Mr Clarke
said that the Tribunal had applied the Osman test in making their
decision and there was no difference between that and the test in Fernandez.
He said that Article 2 was not engaged unless it could be shown that the risk to life was ‘real and immediate.’
4.3.1
Tests
Mr Clarke said that the Tribunal was correct to conclude that the ‘real and immediate risk’ (Osman) test is the same as ‘substantial grounds for thinking,’ ‘reasonable chance’ or ‘serious possibility’ (Fernandez).
The Tribunal decides whether the level of risk is sufficient to engage Article 2.
4.3.2
Article 2 procedural obligations
The Tribunal was correct to conclude that to move a central part of the Inquiry away from Derry would contravene the Article 2 rights of the families.
There was a particular need not to repeat the errors of the past. Holding the Widgery Inquiry in Coleraine led to the widespread belief that the venue had been chosen to favour the soldiers and disadvantage the local people.
4.3.3
Real and immediate risk
The Tribunal was required to assess, on an objective basis, whether the available evidence led to the conclusion that there was a sufficient likelihood of the risk occurring. The Tribunal was not dealing with the soldiers’ subjective fears. On an objective basis, a real and immediate risk was not established which meant that Article 2 was not engaged.
The Tribunal’s conclusion that the soldiers’ fears were not reasonable, given the level of protection that would be provided, was a finding of fact. All of the people who attended the meeting with the Security Authorities were aware of the purpose of the meeting. The Tribunal had looked at the level of protection that the security services had been able to provide for vulnerable witnesses in Northern Ireland over many years.
4.3.4
Public confidence
Moving a major part of the inquiry out of Derry would seriously damage public confidence.
The Tribunal was well aware of the fact that restoring public confidence was not the sole object of the Inquiry. However it was a vital part of the Tribunal’s role, given the lack of confidence, particularly amongst those most affected by Bloody Sunday, as to the willingness of the British state to carry out a genuinely thorough and impartial investigation. To render the hearing inaccessible to the families would shatter their confidence.
The families’ Article 2 procedural rights meant that their position could not be equated with that of an ordinary member of the public.
4.3.5
Security
The Tribunal was advised that an acceptable level of security could be provided in Derry and Great Britain. The balance tipped in favour of a hearing in Derry.
4.3.6
Public disorder
The Tribunal rejected the soldiers’ suggestion that there would be a serious risk of public disorder should the soldiers give their evidence at the Guildhall. Some of the incidents that the soldiers had listed were relatively old and all had no connection with the conduct of the Inquiry.
4.3.7
Procedural fairness
The Tribunal has not accepted that the soldiers’ fears for themselves are reasonable and that concern for the safety of those protecting them cannot result in any procedural unfairness. The job of the security forces necessarily involve their being required to take risks.
5
SUBMISSIONS ON BEHALF OF THE FAMILIES AND WOUNDED
The families and wounded supported the submissions made by the Tribunal. They said that the soldiers’ arguments were legally incorrect and were based on flimsy evidence.
Four senior counsel spoke on behalf of the families and wounded. They argued that the Tribunal was correct to decide that the soldiers did not have reasonable fears for their safety whilst going to and from the Guildhall or giving their evidence there.
5.1
EVIDENCE OF RISK TO SOLDIERS
5.1.1
No attempts to target Bloody Sunday soldiers
The families and wounded said that there is no evidence of there being any attempts to trace or target the soldiers. There have not been any attempts at reprisals on the many soldiers who have engaged in other highly controversial incidents such as Lee Clegg. Many soldiers involved in Bloody Sunday have neither sought nor been granted anonymity and would be readily traceable. The soldiers have disregarded the virtual elimination of the risk by security measures.
5.1.2
Speculation and bias
Mr Lavery said that the Security Agencies’ threat and risk assessments were so speculative that no meaningful comparisons could be made between the relative safety of the Guildhall and London. He challenged the evidence that came from the MoD on the basis of their lack of independence and impartiality. To rely on MoD evidence without challenging it undermined the Tribunal’s independence and breached the Article 2 procedural rights of the families and wounded.
Any risk to the soldiers could not be described as real, immediate or a serious possibility. They said that there is no evidence that any republican group intends to attack former soldiers giving evidence at the BSI. The Security Forces did not understand the Republican psyche and their evidence was based on a hunch. Their prediction of the actions of dissident Republicans is entirely speculative.
They said that the prospect of an attack in Derry where attendance will be predominantly from the community is so remote as to be fanciful. London is a less safe option and may well be seen as more attractive to dissident Republicans.
5.1.3
History of attacks
Mr Mansfield pointed to the 30-year history of non-interference with witnesses in Northern Ireland and to the fact that no soldier had been attacked during the Widgery Inquiry.
5.2
ARTICLE 2 PROCEDURAL RIGHTS
To hold the Inquiry in England would render it inaccessible for many of the families.
6
JUDGMENT BY THE DIVISIONAL COURT
On 16th November the Divisional Court gave a judgment on the proceedings. They quashed the Tribunal’s decision that the soldiers must give evidence in Derry and asked the Tribunal to reconsider their decision in light of their judgment.
6.1
TESTS
The Court said that the Tribunal’s decision was fundamentally flawed because they had misdirected themselves in law as to the test to be applied when assessing the threshold of risk to soldier witnesses from terrorist reprisals. They were in error in applying the Osman test. The Court ruled that the Osman and ex parte A tests were different in purpose and effect.
In Osman the European Court of Human Rights limited the obligation of the state to intervene to protect against activities of third parties to those circumstances in which there was a real and immediate risk to life.
In Fernandez and ex parte A the courts defined the obligation of a public authority more broadly as being not to make a decision exposing anyone to the real possibility of a risk to life in the future.
The Court said that the fact that the Tribunal needed to seek advice from the Security Agencies showed that whatever the degree of risk, it was by no means fanciful. The Tribunal did not ask the Agencies whether there was a real possibility of risk and whether the necessary security could be maintained for 6 months or more.
6.2
REASONABLE FEARS
The Court held that the Tribunal were wrong in concluding that the soldiers had no reasonable fears for their own safety in light of the protection the security services would give. They said that this was procedurally unfair to the soldiers and that the correct test to be applied was whether there was a real possibility of risk.
They said that the Tribunal should not have concluded that the soldiers’ fears were not reasonable. It does not follow that the because protection can be provided, the people to be protected do not have reasonable fears for their safety. The history of events in Northern Ireland showed that despite intensive security precautions, terrorist activity puts soldiers’ lives at risk.
The Court ruled that when reconsidering their decision, the Tribunal must take into account that the soldiers’ fears for their own safety are reasonable.
6.3
PUBLIC CONFIDENCE
The Court ruled that the confidence of the families in the Tribunal’s findings is of great importance and so too is the soldiers’ confidence. The Tribunal does not appear to have taken into account the confidence of people in parts of the United Kingdom other than Northern Ireland.
The Tribunal should have given consideration to wider public confidence, including that of the soldiers.
Once the risk of death is a serious or real possibility it was for the Tribunal as decision maker, to find some compelling justification for interference with the soldiers’ Article 2 rights rather than to require the soldiers provide a compelling justification for giving their evidence elsewhere.
6.4
ARTICLE 2 PROCEDURAL RIGHTS
The Court did not accept that moving the BSI from Derry would contravene the Article 2 procedural rights of the families. They said that the Tribunal, sitting in Great Britain would be equally independent from those implicated in the events, transparent and subject to public scrutiny, non collusive in unlawful acts and would involve the families because they would all be legally represented.
7
APPEAL
The Tribunal is appealing this judgment.
For Peace Justice & Human Rights
