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In re Officer L (Respondent) (Northern Ireland)
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
In re Officer L (Respondent) (Northern Ireland)
 UKHL 36
1. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Carswell, and for the reasons he gives I too would allow the appeal.
2. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Carswell, and for the reasons he gives I too would allow the appeal.
3. Police officers in Northern Ireland have suffered great hardships over many years as the result of the civil disturbances and their manifold consequences. Some 300 were murdered by paramilitaries and many others sustained serious injuries. Numbers of them had to move home, sometimes at very short notice because of an immediate threat of attack. They regularly kept secret, even from their neighbours and friends, the fact that they served in the police and concealed their occupation in documents wherever possible. They and their families lived under constant threat, and could never feel free completely from fear.
4. In spite of these pressures they constantly gave evidence in criminal and civil trials without concealment of their identities or appearance, to the great benefit of the system of justice. Their fortitude in this and other respects was no doubt sustained in the worst times by a strong feeling of solidarity in the fight against terrorism. Now that the security situation has improved to a significant extent, it is understandable if the fears which they surmounted or suppressed in dangerous times have returned more keenly when they feel that their safety is put under threat.
5. This feeling underlies the applications which are the subject of the appeal before the House. The Robert Hamill Inquiry proposes to call as witnesses a number of police officers who served in the Royal Ulster Constabulary ("RUC"), of whom some are retired and some are now serving in the Police Service of Northern Ireland ("PSNI"), the successor to the RUC. Some of these persons, when notified by the Inquiry of its intention to call them, made application to have their names withheld and to be screened from the view of the public while giving evidence (I shall refer to the relief sought compendiously as "anonymity"). Their applications were, with one exception, refused by the members of the panel constituting the tribunal, on grounds to which I shall refer in more detail. The eleven respondents to the present appeal brought an application for judicial review of the tribunal's decision and by an order dated 3 November 2006 Morgan J quashed the decision. The Court of Appeal (Kerr LCJ, Campbell and Girvan LJJ) on 5 February 2007 dismissed the appeal brought against that order by the Robert Hamill Inquiry, the appellant before your Lordships' House.
6. The Inquiry was set up to inquire into the circumstances surrounding the death of Robert Hamill, who died on 8 May 1997 from injuries received during an affray in Portadown, Co Armagh in the early hours of 27 April 1997. From an early stage the incident gave rise to public concern and a degree of controversy. It is claimed by the family of the deceased man that the attack was sectarian, in that Mr Hamill, a Catholic, was set upon and beaten and kicked by a number of Protestants. It is alleged that there were several police officers in a Land Rover nearby, but that none attempted to stop the assault, and an innuendo of collusion with the attackers has received wide circulation. It is further alleged that one officer obstructed the subsequent investigation into the incident by giving assistance to one of the persons suspected of participation in the assault.
7. No person has been convicted of the murder of Mr Hamill. One suspect, Marc Hobson, was tried for his murder, but was convicted only of affray. The controversy did not abate and this case, along with those relating to several other deaths which occurred in controversial circumstances, was referred to Mr Justice Cory, a retired judge of the Supreme Court of Canada. He recommended, inter alia, that a public inquiry should be held into the death of Robert Hamill. In November 2004 the Secretary of State for Northern Ireland set up the Inquiry, with the following terms of reference:
8. The tribunal proposes to call a large number of witnesses, including the respondents. The Inquiry is to be held in accordance with the provisions of the Inquiries Act 2005. Under section 17(1) of that Act the procedure and conduct of the inquiry are to be such as the chairman may direct. By section 18 there is to be public access to the proceedings, but section 19 provides for the imposition of restrictions on such access or the disclosure or publication of any evidence or documents. The chairman may make a restriction order, specifying restrictions which he considers to be conducive to the inquiry fulfilling its terms of reference or to be necessary in the public interest, having regard in particular to the matters mentioned in section 19(4). Those matters include "any risk of harm or damage that could be avoided or reduced by any such restriction". "Harm or damage" is defined in subsection (5)(a) as including death or injury. It was not in dispute that the restrictions consisting of anonymity sought by the respondents are among those which the chairman is empowered to order.
9. By letter dated 29 June 2005 the respondents' solicitors lodged an application for anonymity on behalf of some 29 serving and former police officers, among whom were included most of the respondents. Other applications appear to have been received by the Inquiry over a period. It was contended by the solicitors that all the applicants were in fear for their lives, for reasons which were more pressing in some cases than in others, but expressed to be especially strong in the case of those officers who had been present at the scene of the affray in which Robert Hamill was attacked, and who had been persistently vilified as having been responsible for his death. It was claimed that the discharge of their duties had made some a target for loyalist paramilitaries because they had participated in the arrest and interview of persons suspected of causing Mr Hamill's death and the subsequent prosecution. Others were concerned that if they were publicly identified as police officers it would be dangerous for them in the communities in which they lived in the Mid-Ulster area, where paramilitary activity was especially rampant.
10. The Inquiry requested the PSNI to carry out a general risk assessment in respect of witnesses who were to give evidence, and received the following reply:
This indication was later supplemented in a letter from the PSNI enclosing details in response to a request from the Inquiry for individual risk assessments in respect of the respondents:
11. Detailed written applications for anonymity were made on 28 March 2006 by the respondents' solicitors on behalf of those former members of the RUC whom the Inquiry intended to call as witnesses. The chairman refused the application, but offered the opportunity for a fresh consideration by the full tribunal at an oral hearing. The respondents, along with other persons, took up the opportunity and an oral hearing was held on 15 and 16 May 2006. Applications for restriction orders were made at the hearing on behalf of all former and serving police officers who were to be called as witnesses. Not all were able to attend and oral evidence was given by the respondents in support of the submissions. The tribunal obtained detailed information about each of the respondents and features of the general security situation in Northern Ireland relevant to the position of the police witnesses. Written submissions were also made by a number of persons and bodies concerning the applications.
12. The burden of the applicants' submissions was that by giving evidence without any protection by way of anonymity they would be exposed to an increased risk of terrorist attack. They expressed what the submissions described as a "reasonable and genuine fear" that they would be targeted if their names and appearance became known to a terrorist group and they were identified as having a connection with the incident the subject of the Inquiry. They highlighted their concerns about the possibility of reprisals from a dissident terrorist group as a result of the publicity which would be attendant upon the Inquiry and the allegations which would be made against the police.
13. The submissions were advanced under two heads, first, that to compel the applicants to give evidence without anonymity would constitute a breach of article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and, secondly, that it would be a breach of the common law duty of fairness to the witnesses. The tribunal pointed out in its decision that the protection sought under article 2, if the applicants' case were made out, is also available at common law, but the common law goes further in providing protection to witnesses in appropriate cases which is not available under article 2. It therefore considered separately the principles and the applicants' case under each heading.
14. The Inquiry gave its decision on the applications in a written ruling dated 3 August 2006. It commenced by setting out its analysis of the questions which arose for determination. So far as relevant to the respondents, this read as follows (I have renumbered the last portion to remove a duplication of number (vi)):
15. The tribunal went on to consider in detail the evidence relating to these factors, and stated that that evidence, taken without the evidence of the applicants themselves, led it to conclude that question I which it had posed, relating to article 2 of the Convention, must be answered in the negative. It then looked at the individual cases and considered the evidence presented by each applicant. Its conclusion remained unchanged, that the applications made under article 2 should be rejected.
16. In considering the applications under the common law heading the tribunal examined the evidence about the fears entertained by the several applicants, bearing in mind its finding that fears of an increased risk were not well founded in fact. It conducted the balancing exercise between protecting the applicants and easing their fears and what Cory J described as the aim "to restore public confidence in the police and the judicial system." It expressed its "clear conclusion" that
17. The respondents brought an application in the Northern Ireland High Court for judicial review, seeking to have the tribunal's decision quashed on the grounds that (a) the tribunal misdirected itself in law (b) in the alternative, if it did apply the correct test, its decision was unreasonable in the Wednesbury sense. Morgan J in his judgment considered only the first ground, which he decided in favour of the applicants, the respondents to the present appeal. In view of the conclusions which I have reached, I do not need to discuss the judge's decision further and shall turn to that of the Court of Appeal.
18. The Court of Appeal in a written judgment given by Kerr LCJ on 5 February 2007 dismissed the Inquiry's appeal. It confined its consideration to the tribunal's ruling in relation to article 2 of the Convention. It held that the tribunal was in error in holding that it was necessary to find that a materially increased risk to the applicants for anonymity would arise from their giving evidence. Its opinion regarding the proper test was contained in paragraph 42 of its judgment, which was the focus of the criticism of the court's decision in the submissions advanced to the House by Mr Underwood QC on behalf of the appellant:
The Court of Appeal accordingly held that the tribunal applied the wrong test, and that it was not inevitable that the same conclusion would have been reached if the tribunal had asked the question which the court regarded as correct. It did not express any opinion on the issue of Wednesbury unreasonableness, which had not been the subject of argument before it.
19. The right to life is simply and briefly expressed in the first sentence of article 2 of the Convention: "Everyone's right to life shall be protected by law." As the Strasbourg jurisprudence has laid down, this covers not only the negative obligation, not to take the life of another person, but imposes on contracting states a positive obligation, to take certain steps towards the prevention of loss of life at the hands of others than the state. The locus classicus of this doctrine is Osman v United Kingdom (1998) 29 EHRR 245, paragraphs 115-6 of which read: