In re Officer L (Respondent) (Northern Ireland)
20. Two matters have become clear in the subsequent development of the case-law. First, this positive obligation arises only when the risk is "real and immediate". The wording of this test has been the subject of some critical discussion, but its meaning has been aptly summarised in Northern Ireland by Weatherup J in Re W's Application  NIQB 67, where he said that:
It is in my opinion clear that the criterion is and should be one that is not readily satisfied: in other words, the threshold is high. There was a suggestion in paragraph 28 of the judgment of the court in R (A and others) v Lord Saville of Newdigate  1 WLR 1249, 1261 (also known as the Widgery Soldiers case, to distinguish it from the earlier case with a very similar title) that a lower degree would engage article 2 when the risk is attendant upon some action that an authority is contemplating putting into effect itself. I shall return to this case later, but I do not think that this suggestion is well founded. In my opinion the standard is constant and not variable with the type of act in contemplation, and is not easily reached. Moreover, the requirement that the fear has to be real means that it must be objectively well-founded. In this respect the approach adopted by Morgan J was capable of causing confusion when he held that the tribunal should have commenced by assessing the subjective nature of the fears entertained by the applicants for anonymity before going on to assess the extent to which those fears were objectively justified. That is a valid approach when considering the common law test, but in assessing the existence of a real and immediate risk for the purposes of article 2 the issue does not depend on the subjective concerns of the applicant, but on the reality of the existence of the risk. As the Court of Appeal indicated in paragraph 33 of its judgment, the existence of subjective fears is not a prerequisite to the finding that there is a risk which satisfies the test of article 2, and, conversely, if a risk to life exists, article 2 will be engaged even if the person affected robustly disclaims having any subjective fears. That is not to say that the existence of a subjective fear is evidentially irrelevant, for it may be a pointer towards the existence of a real and immediate risk, but in the context of article 2 it is no more than evidence.
21. Secondly, there is a reflection of the principle of proportionality, striking a fair balance between the general rights of the community and the personal rights of the individual, to be found in the degree of stringency imposed upon the state authorities in the level of precautions which they have to take to avoid being in breach of article 2. As the ECtHR stated in paragraph 116 of Osman, the applicant has to show that the authorities failed to do all that was reasonably to be expected of them to avoid the risk to life. The standard accordingly is based on reasonableness, which brings in consideration of the circumstances of the case, the ease or difficulty of taking precautions and the resources available. In this way the state is not expected to undertake an unduly burdensome obligation: it is not obliged to satisfy an absolute standard requiring the risk to be averted, regardless of all other considerations: cf McBride, Protecting life: a positive obligation to help, (1999) 24 European Law Review Human Rights Survey, HR/43, HR/52. It has not been definitively settled in the Strasbourg jurisprudence whether countervailing factors relating to the public interest - such matters as the credibility of the Inquiry and its role in restoring public confidence -- as distinct from the practical difficulty of providing elaborate or far-reaching precautions, may be taken into account in deciding if there has been a breach of article 2. It does appear that it may be correct in principle to take such factors into account (cf Re Donaghy's Application  NICA 25 and Re Meehan's Application  NICA 34), but I would prefer to reserve my opinion on the point.
22. The principles which apply to a tribunal's common law duty of fairness towards the persons whom it proposes to call to give evidence before it are distinct and in some respects different from those which govern a decision made in respect of an article 2 risk. They entail consideration of concerns other than the risk to life, although as the Court of Appeal said in paragraph 8 of its judgment in the Widgery Soldiers case, an allegation of unfairness which involves a risk to the lives of witnesses is pre-eminently one that the court must consider with the most anxious scrutiny. Subjective fears, even if not well founded, can be taken into account, as the Court of Appeal said in the earlier case of R v Lord Saville of Newdigate, ex p A  1 WLR 1855. It is unfair and wrong that witnesses should be avoidably subjected to fears arising from giving evidence, the more so if that has an adverse impact on their health. It is possible to envisage a range of other matters which could make for unfairness in relation of witnesses. Whether it is necessary to require witnesses to give evidence without anonymity is to be determined, as the tribunal correctly apprehended, by balancing a number of factors which need to be weighed in order to reach a determination.
23. The question posed by the Inquiry when considering article 2 was whether the pre-existing risk of death to an applicant for anonymity would be materially increased if he or she were required to give evidence without being afforded anonymity. Although it did not specifically so state in its ruling, it is inherent in all its discussion of the article 2 issue that the Inquiry did not consider that the pre-existing risk to any of the respondents or other applicants was sufficiently severe to reach the article 2 level of a real and immediate risk. In its question which I have quoted it stated that the evidence from the PSNI was that all serving and former police officers were at "some risk of death or injury from attacks upon them by paramilitaries." This theme recurs in several places in the ruling. The Inquiry stated that no police officer had been killed since 1998. None of the applicants appears to have averred that he or she was subject to a real and immediate risk of death as matters stood, apart from giving evidence, and there is no such indication to be found in the tribunal's discussion of the individual threat assessments received in respect of a number of applicants.
24. Starting from that premise, the tribunal accordingly posed the question whether in respect of any applicant the risk would be materially increased if he or she were required to give evidence without anonymity. In my opinion that was a correct test to apply. The Court of Appeal considered that it was an incorrect test. At paragraph 42 of its judgment it commenced by posing the question "will the requirement to give evidence give rise to a real risk to life?" I would regard that as an appropriate question to ask. It then went on to express its conclusion, however, that the proper question to ask is a simple one "Is there a real risk?" rather than "Is there an increase in the risk?" I cannot regard that as correct. If there is not a real and immediate risk to the life of an applicant before he or she gives evidence, then ex hypothesi to reach that threshold there must be some increase in risk occasioned by giving evidence. Only if that is the case can the requirement to give evidence "give rise to" a real risk to life.
25. The tribunal accordingly approached the matter properly under article 2 in seeking to ascertain whether giving evidence would give rise to a materially increased risk to life. Having found that it did not, it did not require then to go on to consider whether such an increased risk, if found to exist, would come up to the threshold required of a real and immediate risk to life.
26. It was also correct in asking the same question when considering the common law duty. If the risk has not been increased, then it is not unfair on that account to require a witness to give evidence. It went on, again correctly in my opinion, to assess the relevant factors other than actual risk to life which could make it unfair to require witnesses to testify without anonymity, that is, the subjective fears which many of them expressed. It carried out a proper balancing exercise and concluded that the balance came down against allowing the applications for anonymity, then took into account medical evidence in order to determine if that affected its conclusions. In my opinion the tribunal applied the correct tests and the decisions of Morgan J and the Court of Appeal cannot be sustained. I have purposely refrained from expressing any opinion on the tribunal's justification for reaching its conclusions on the evidence before it, for the issue of Wednesbury unreasonableness was not discussed or resolved by the courts below. That issue must now be remitted to the judge for determination.
27. These conclusions are sufficient to dispose of the appeal before the House, but it may be timely and of assistance to future tribunals to say a word about the relationship between the article 2 consideration of anonymity and that which is decided by reference to the common law principles. In paragraph 31 of its judgment in the Widgery Soldiers case the Court of Appeal attempted to accommodate the requirements of article 2 and those of the common law in a single exercise:
28. I would not support this exercise in its entirety in the terms in which it was expressed, for while the balancing is appropriate in applying the common law test, the determination of the precautions which the tribunal should have to put in place is a different matter and does not depend on application of identical factors. I think that it is possible, however, to conduct the exercise basically as a single test, which is obviously desirable in the interests of simplicity. This could be done by approaching it as a single decision under the common law, having regard in the process to the requirements of article 2.
29. In pursuit of this end, I suggest that the exercise to be carried out by the tribunal faced with a request for anonymity should be the application of the common law test, with an excursion, if the facts require it, into the territory of article 2. Such an excursion would only be necessary if the tribunal found that, viewed objectively, a risk to the witness's life would be created or materially increased if they gave evidence without anonymity. If so, it should decide whether that increased risk would amount to a real and immediate risk to life. If it would, then the tribunal would ordinarily have little difficulty in determining that it would be reasonable in all the circumstances to give the witnesses a degree of anonymity. That would then conclude the exercise, for that anonymity would be required by article 2 and it would be unnecessary for the tribunal to give further consideration to the matter. If there would not be a real and immediate threat to the witness's life, then article 2 would drop out of consideration and the tribunal would continue to decide the matter as one governed by the common law principles. In coming to that decision the existence of subjective fears can be taken into account, on the basis which I earlier discussed (see paragraph 22). For the same reasons as those which I have set out in paragraph 20, however, I would not regard it as essential in every case to commence consideration of the issue by seeking to identify such subjective fears.
30. For the reasons which I have given earlier I would allow the appeal. I would remit the application for judicial review, in so far as it is based on Wednesbury unreasonableness, to the High Court for further consideration on that issue alone.LORD BROWN OF EATON-UNDER-HEYWOOD
31. 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.