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Judgments - In re Officer L (Respondent) (Northern Ireland)


    SESSION 2006-07

    [2007] UKHL 36

    on appeal from: [2006] NI QB 75



                    OF THE LORDS OF APPEAL

                    FOR JUDGMENT IN THE CAUSE

                    In re Officer L (Respondent) (Northern Ireland)


                    Appellate Committee

                    Lord Hoffmann

                    Lord Woolf

                    Lord Carswell

                    Lord Brown of Eaton-under-Heywood

                    Lord Mance




    Ashley Underwood QC

    Miss Julie Anderson

    (Instructed by Ms Judi Kemish, Solicitor, Robert Hamill Inquiry (London))


    Frank O'Donoghue QC

    Kevin O'Hare

    (Instructed by Edwards & Co, Belfast)


                    Secretary of State for Northern Ireland

                    Philip Sales QC

                    Miss Joanne Clement

                    (Instructed by Treasury Solicitor)

                    Jessica Hamill (written submissions)

                    Liam McCollum QC

                    Ms Fiona Doherty

                    (Instructed by P J McGrory, Belfast)

                    Hearing date:

                    14 May 2007


                    TUESDAY 31 JULY 2007




In re Officer L (Respondent) (Northern Ireland)

[2007] UKHL 36


My Lords,

    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.


My Lords,

    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.


My Lords,

    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:

    "To inquire into the death of Robert Hamill with a view to determining whether any wrongful act or omission by or within the Royal Ulster Constabulary facilitated his death or obstructed the investigation of it, or whether attempts were made to do so; whether any such act or omission was intentional or negligent; whether the investigation of his death was carried out with due diligence; and to make recommendations."

    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:

    "PSNI is not aware of any information at this time which would indicate a specific threat to the Robert Hamill Inquiry or to those witnesses connected to it."

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:

    "I should point out however that although an officer may not have a specific threat against him the general threat which existed against all officers would have applied and indeed still does at the present time from dissident groups."

    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)):

    "Article 2 ECHR

    I (a). The evidence from the PSNI in relation to the assessment of risk was that all police officers and former police officers and their families in Northern Ireland are at some risk of death or injury from attacks upon them by paramilitaries, whether republican or loyalist, and that in the Portadown and Armagh areas there has been an enhancement of those risks arising out of the death of Rosemary Nelson. No evidence was adduced in contradiction of this; however, it is acknowledged that views may differ in this regard. On the basis of the evidence, which we accept, the following question arises - is that risk materially increased in the case of an officer or former officer or his or her family if he or she is required to give evidence to the Inquiry either because he or she (i) is named in public or (ii) is able to be seen by the public when entering the Inquiry chamber and giving evidence or (iii) by a combination of these?

    * * * * *

    II. If the answer to any parts of the question set out at I (a) … above is 'yes' then, depending on the answers to the three parts of the question, the applicant should be allowed to give evidence without being named and/or behind a screen.

    III. If the answer to all parts of the question set out at I(a) … above is 'no' then, in so far as the application is based on Article 2 it must fail. The application must then be considered at common law.

    Common Law

    IV(a) In the case of a serving or former police officer - does the applicant have a fear that, if he or she has to give evidence (i) as a named witness or (ii) without being screened or (iii) both as a named and unscreened witness, the general risk referred to in question I above will be materially increased?

    * * * * * *

    V. In answering question IV above it will be material, but not necessarily decisive, to take account of the fact that question I has been answered in the negative as being relevant to answering the question IV. We remind ourselves, though, of a passage from Lord Woolf's judgment in ex parte A set out on page 8 of Mr O'Hare's second submission:

      'In the present appeal, the fact that the soldier witnesses will have subjective fears if called to give evidence in Londonderry is a relevant factor when considering whether it will be fair to require them to do so. Those fears will, however, have much more significance if they are objectively justified.'1

    VI. If the answer to question IV is 'no' then the application fails.

    VII. If the answer to the question IV is 'yes' there has to be a balancing exercise and the applicant's fear has to be considered along with the following factors in order to determine whether the interests of justice and fairness to the applicant require [sic] that he or she should remain anonymous or be screened or both:

    (i)  the seriousness of the applicant's fear and its impact on him or her;

    (ii)  the reason for the applicant's fear;

    (iii)  the likely effect of granting anonymity in removing or reducing that fear;

    (iv)  the effect on the public's perception of the impartiality of the Inquiry, having regard to the factors which led to the Minister's decision to hold a public inquiry and to its terms of reference;

    (v)  the likely effect on the applicant of refusing his or her application in whole or in part;

    (vi)  the likely effect on the Inquiry's ability to arrive at the truth if it refuses or grants the application in whole or in part;

    (vii)  the likely effect on the ability of the public to follow the evidence if the Panel refuses or grants the application in whole or in part;

    (viii)  the fact that the answer to question I above was 'no'.

    In relation to Article 2, when considering whether there would be a material increase to the risks which applicants face if they were to give evidence named and unscreened we have to look at a number of factors. We set them about [sic] below in what seems to us to be a convenient order. This does not imply any relative weighting of them.

    (i)  Are we helped, as Mr O'Hare submits we should be, by the conclusions reached in the Bloody Sunday judicial reviews as a result of applying the relevant legal principles to the facts of those cases?

    (ii)  The present situation in Northern Ireland.

    (iii)  The significance of the risk assessments with which we have been provided.

    (iv)  The reports of the International Monitoring Commission.

    (v)  Recent terrorist activity in Northern Ireland.

    (vi)  The stance of the PSNI in relation to these applications.

    (vii)  The extent of the publicity given in the media to the Robert Hamill case at the time of his death and in the years since and the extent of the publicity given to calls made for a public inquiry and to the Robert Hamill Inquiry once it was set up towards the end of 2004.

    (viii)  Whether condemnatory attitudes towards the police have grown stronger as a result of or since the setting up of this Inquiry and the attendant publicity and interest it has generated.

    (ix)  Has the public perception of the police involvement in the investigations which followed Robert Hamill's death which was formed before this Inquiry was set up been altered for the worse by the use of the word 'collusion' in the Cory Report, to which many of the witnesses have referred mistakenly as being included in our terms of reference?

    (x)  The extent to which the names of the applicants are already in the public domain.

    (xi)  Whether it is relevant that no harm has been suffered by any of the applicants arising out of their involvement in the Robert Hamill case.

    (xii)  If terrorists had wished or wish to target those who were part of the Portadown police force in 1997 would they have had or have any difficulty in identifying and locating them, regardless of whether or not witnesses give evidence unnamed and screened?

    (xiii)  The facts that, save for one officer, no other officers or former officers have claimed anonymity and that although consideration was given to making an application for anonymity at the Hobson trial it was not pursued.

    (xiv)  The extent to which the names of police officers giving evidence in criminal proceedings are reported by the media."

    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

    "the applications for anonymity based on common law in the case of those which are not supported by medical reports must also be rejected. It is our firm view that the balance comes down heavily against them."

    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:

    "[42] We consider, however, that the issue is more properly addressed by asking the simple question 'will the requirement to give evidence give rise to a real risk to life?'. To express the matter in terms of an increased risk implies that the existing threat could not play a part in the assessment and that a risk of a greater order of magnitude or of a different character was needed to engage article 2. But if a real risk to life from giving evidence eventuates from the matters that underpin the existing threat without there being an increase in the level of that threat, it nevertheless engages article 2."

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:

    "115.  The court notes that the first sentence of article 2(1) enjoins the state not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. It is common ground that the state's obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the court that article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The scope of this obligation is a matter of dispute between the parties.

    116.  For the court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in articles 5 and 8 of the Convention. In the opinion of the court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The court does not accept the Government's view that the failure to perceive the risk to life in the circumstances known at the time or to take preventive measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life. Such a rigid standard must be considered to be incompatible with the requirements of article 1 of the Convention and the obligations of contracting states under that article to secure the practical and effective protection of the rights and freedoms laid down therein, including article 2. For the court, and having regard to the nature of the right protected by article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case."