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You are here: BAILII >> Databases >> Court of Appeal in Northern Ireland Decisions >> Donaghy, Re Application for Judicial Review [2002] NICA 25(1) (08 May 2002) URL: http://www.bailii.org/nie/cases/NICA/2002/25(1).html Cite as: [2002] NICA 25(1) |
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Neutral Citation no. [2002] NICA 25(1)
Ref:
NICC3690
Judgment: approved by the Court for handing down
Delivered:
08.05.2002
(subject to editorial corrections)
NICHOLSON LJ
Introduction
This is an appeal from the decision of Kerr J dismissing an application by Mary Doherty for judicial review of the ruling of the Bloody Sunday Inquiry Tribunal to allow twenty police officers to give evidence to the Tribunal from behind screens in the Guildhall, Londonderry (Derry).
The Decision of Kerr J
In the course of his judgment Kerr J stated that on 7 February 2002 the Tribunal directed that while giving evidence the police officers should be visible to the legal representatives of the various parties including those who appear on behalf of the family of the deceased and of the wounded. They would otherwise be screened from view. The applications to be screened were made on the basis of the officers' avowed fear that if they were identified, the risk to their lives would be increased.
Intelligence assessments provided by the Police Service of Northern Ireland dated 31 January 2002 and 5 February 2002 were relied on by them before the Tribunal. He referred to the reactions of the families of those who were killed or injured. They felt that screening compromised the openness which they had expected in the conduct of the Inquiry.
He described the importance which Mary Doherty attached to police officers giving evidence without being screened. Her brother, Gerard Donaghy, who was shot and killed by a soldier was subsequently found to have nail bombs in four of his pockets. There was evidence that they had been planted in his pockets after he had been shot. A number of the police officers who had applied for screening were going to give evidence as to the circumstances in which his body was discovered to contain nail bombs at a Regimental Aid Post near the Craigavon Bridge. She felt that she was being excluded from some of the most important evidence relating to her as next of kin of her brother, not least as the soldiers involved in the shooting of her brother had been granted anonymity and the right to give evidence to the Tribunal in London, although it was not alleged, as I understand it, that the killing could be justified or excused by the allegation that he had nail bombs in his pockets.
Kerr J went on to set out the issues and the test to be applied. I cite from his judgment the following passage:
"There was general agreement on this question. The test to be applied by the Tribunal is that which was adumbrated in paragraph 31 of the judgment of the Court of Appeal delivered on 19 December 2001 in the venue application. There the court said:-
`31. We consider that the appropriate course is to consider first the nature of the subjective fears that the soldier witnesses are likely to experience if called to give evidence in the Guildhall, to consider the extent to which those fears are objectively justified and then to consider the extent to which those fears, and the grounds giving rise to them, will be alleviated if the soldiers give their evidence somewhere in Great Britain rather than in Londonderry. That alleviation then has to be balanced against the adverse consequences to the Inquiry of the move of venue, applying common sense and humanity. The result of the balancing exercise will determine the appropriate decision. This course will, we believe, accommodate both the requirements of Article 2 and the common law requirement that the procedure should be fair.'
Four elements of the test can be identified from this passage: 1. the subjective fears of the witnesses; 2. the extent to which those fears can be objectively justified; 3. the extent to which the fears will be alleviated if the measures sought are taken; 4. the balancing of the alleviation of the fears against the adverse consequences of the measures."
He set out section 2 of the Tribunal of Inquiries Act 1921, a relevant portion of the recommendations of the Royal Commission on Tribunals of Inquiry (Cmnd 3121) and a passage from the opening statement of Lord Saville on 3 April 1998.
The Need for the Inquiry to be Open
In response to submissions by the parties Kerr J stated that there was general agreement that a vital aspect of the Tribunal's task was the winning and maintenance of public confidence in the Inquiry process, that it was beyond question that this feature was put at risk if witnesses gave evidence from behind screens and cited a passage from the statement of the Tribunal about anonymity and screening of witnesses made in Derry on 24 July 1998. He concluded that the screening of witnesses did not mean that the Inquiry was not being conducted in public. It did mean that the Inquiry was not being conducted as openly as it could be, but the witnesses' answers could be heard and they could be subject to face-to-face challenge by lawyers on behalf of the next-of-kin of the deceased and of the wounded.
He agreed with the Tribunal that any departure from a conventional form of proceeding requires to be justified by the person seeking justification but that the following considerations applied. The Inquiry is not an adversarial proceeding and the openness of the proceedings, although compromised is not destroyed. Moreover there is a balance to be struck between those seeking to reduce the risk occasioned by their giving evidence in open court and the preservation of public confidence.
In further response to submissions he accepted that section 2 of the Act recognised that there can be circumstances where the public are excluded because it is in the public interest expedient so to do.
It was the holding of inquiries in public that the Salmon report considered to be of paramount importance and the testimony would still be in public although behind screens.
All of the police officers who had applied for screening had been shown risk assessment reports and were made aware that a man from Derry had recently been convicted of possession of information likely to be useful to terrorists. This information related to the movements of a PSNI superintendent and members of his family.
He found the claim that the police officers who applied to give evidence behind screens were unaware until recently that they could make such an application surprising and thought it likely that they must have anticipated that they would be required to give evidence to the Inquiry. It did not follow, however that there must be an investigation into their claim to entertain a reasonable and genuine fear for their personal safety if required to give evidence. The risk assessments provided ample material on which such a fear might be founded.
The test set out by the English Court of Appeal involved an examination of the subjective fears of the witnesses and a decision on whether those fears were objectively justified. He concluded that the police officers would inevitably be afraid for their safety and that the objective justification for those fears was readily supplied by the risk assessments. No investigation was required to allow that conclusion to be reached. He was satisfied that the only conclusion which the Tribunal could have reached was that an investigation into the authenticity of the claims made was neither necessary nor appropriate.
He dealt with submissions about Article 2 of the Convention, including Jordan v UK [2001] ECHR 24746, Osman v UK [1998] 29 EHRR 245 ECtHR, the decision of the English Court of Appeal in the soldiers' application to give evidence elsewhere than in Derry (or, implicitly, anywhere other than in Northern Ireland) and their formulation of the test, already referred to, at paragraph 31 of the judgment of Phillips MR, agreed to be applied in the application before him.
He expressed the view that the screening of the police officers must be allowed if it would help to reduce the risk to them. In response to submissions he held that as the identities of the police officers were known, the risk assessments were such that there was no basis on which the Tribunal could have distinguished between the various police officers.
Other submissions led him to hold that there could be no question of a weighing of the substantive rights of the police officers against the procedural rights of the appellant and that, therefore, there could be no distinction amongst the twenty police officers. He also held that families of the next of kin and of the wounded could not be distinguished from the rest of the public in practice, so far as screening was concerned.
The Tribunal had excluded the non-legally qualified members of Messrs Madden & Finucane, solicitors for the families of the next-of-kin and the wounded, from seeing police witnesses who were screened in 1999 and 2000. This ruling was not challenged at the time. There were professional grounds for doing so. No representations were made on their behalf when the application was made to exclude non-qualified lawyers on the present occasion. Kerr J held that the Tribunal was entitled to make the same ruling about non-legally qualified persons in respect of the police witnesses on this occasion as it had made for the police witnesses in 1999 and 2000 without objection.
Grounds of Appeal from the Decision of Kerr J
The learned Judge had been wrong in holding:-
(1) That it had been agreed that the test to be applied was that outlined in paragraph 31 of the judgment of the Court of Appeal.
(2) That "the public nature of the proceeding is not eliminated by allowing witnesses to give evidence from behind screens."
(3) That "the testimony of these witnesses will still take place in public even if they give evidence from behind screens."
2. He failed to consider the effect that the screening of witnesses would have on the Tribunal's search for the truth .
3. The learned Judge had erred in holding:-
(1) That the reservations about the background to the police witnesses' applications for screening did not justify further investigation into the bona fides of their applications.
(2) That "the only conclusion that that the Tribunal could have reached was that an investigation into the authenticity of the claims made was neither necessary nor appropriate."
4. The learned Judge failed to deal with the appellant's submission that the Tribunal's independence was compromised by acceptance of the threat assessments.
5. The learned Judge erred in refusing to hold that the Tribunal had failed to consider whether an investigation into the genuineness of the fears was appropriate.
6. The learned Judge erred:-
(1) In holding that the Tribunal was correct in refusing to distinguish between the different categories of applicants.
(2) In holding that there would be a logistical burden involved in attempting to ensure that members of the families if permitted to observe the witnesses were "bona fide members of the extended group."
7. There was no evidence before the learned Judge on which he could reach the conclusion that there would be such a logistical burden.
8. The learned trial Judge erred in holding that where Article 2 rights are engaged there is no balancing exercise to be carried out.
9. The learned Judge's conclusion that there is no balancing exercise to be carried out was never argued by any of the parties before the court and was contrary to their submissions.
10. The learned Judge erred in holding that interference with an Article 2 right can never be justified by recourse to considerations such as the rights of others.
11. The learned Judge erred in refusing to hold that the Tribunal had a duty to ensure the least possible interference with the appellant's Article 2 procedural rights.
12. The learned Judge erred in holding that in its ruling the Tribunal had not considered the question of the presence of members of the families' legal teams.
13. The Judge erred in holding that the ruling did not have the effect of excluding non-legally qualified members of the families' legal teams.
14. The learned Judge failed to consider the appellant's argument that the Tribunal had failed to give any or adequate reasons for its decisions.
The First Ground of Appeal (Ground 1(1))
The first ground of appeal is that the learned [trial] judge erred in holding that it had been agreed that the test to be applied was that outlined in paragraph 31 of the judgment of the Court of Appeal of England and Wales on the issue of Venue.
I do not accept that he was wrong in so holding. As conceded by counsel for the appellant the skeleton argument on her behalf was based on the assumption that the test in paragraph 31 was the correct test. But we did not consider it appropriate to hold the appellant to the confines of the argument addressed to Kerr J but to permit counsel to submit that the decision of the Court of Appeal of England Wales in Lord Saville of Newdigate & Others v Widgery Soldiers & Others (Unreported: 19 December 2001: [2001] EWCA Civ 2048) was wrong and should not be followed. If that argument were to succeed and the test in paragraph 31 were held to be the wrong test, it would follow that the appeal must succeed.
It was pointed out in the course of argument that the Court of Appeal in Ireland usually followed the decisions of the English Court of Appeal where it had pronounced upon a topic. In McCartan v Belfast Harbour Commissioners [1910] 2 IR 470 AT 494-495 Holmes LJ said:-
"It is true that, although we are not technically bound by decisions in the coordinate English Court, we have been in the habit in adjudicating on questions as to which the law of the two countries is identical, to follow them. We hold that uniformity of decision is so desirable that it is better, even when we think the matter doubtful, to accept the authority of the English Court, and leave error, if there be error, to be corrected by the Tribunal whose judgment is final on both sides of the Channel. "
In Northern Ireland Railway Transport Board v Century Insurance Co Ltd [1941] NI 77 AT 107 Murphy LJ agreed that this principle should be followed and stated that the Court of Appeal in Northern Ireland should follow the decision of the English Court of Appeal in Jefferson v Derbyshire Farmers Ltd [1921] 2 KB 281 which appeared to him to be indistinguishable from the case before the Court of Appeal in Northern Ireland.
In McGuigan v Pollock & Another [1957] NI 74 at 106 Black LJ said:
"When a doubtful point has been decided in a particular way by the English Court of Appeal our courts feel a natural hesitation about refusing to follow the English decision" and cited the two authorities to which I have previously referred.
It is true that in Re McKiernan's Application [1985] NI 385 Lord Lowry said at 389:
"Although decisions and dicta of the Court of Appeal in England do not bind the courts in this jurisdiction, they traditionally, and very rightly, are accorded the greatest respect, particularly where the same, or identically worded, statutes fall to be construed. Therefore, that I may account scrupulously for the decision I have reached in this judgment, it becomes one to deal faithfully with the relevant English authorities."
In that case the Court of Appeal in Northern Ireland declined to follow R v Board of Visitors of Hull Prison ex parte St Germain (No 1) [1979] QB 425 and R v Deputy Governor of Camphill Prison ex parte King [1984] 1 QB 735. The decision of the Court of Appeal in Northern Ireland was later upheld by the House of Lords in R v Deputy Governor of Parkhurst, ex parte Leech [1988] 1 AC 533. In Beaufort Developments (NI) Ltd v Gilbert Ash (NI) Ltd & Another [1997] NI 142 at 155 Carswell LCJ said:
"If the matter was res integra, we should be attracted to an interpretation of the contract which would allow the court to review the architects' certificates, with the consequence that we should allow the appeal and refuse to stay the action. … We are conscious however of the practice which the Court of Appeal in this jurisdiction had adopted in the past of following the decisions of the English Court of Appeal where it has pronounced upon a topic, even where we think that another conclusion might be preferable."
He referred to the authorities to which I have referred (other than McKiernan). On appeal to the House of Lords the opinion which the Court of Appeal would have reached if the matter had been res integra was adopted.
It was further pointed out in the course of argument that as the Divisional Court and Court of Appeal in England and Wales had accepted jurisdiction in respect of rulings made by the Tribunal in Derry, the Tribunal was bound by the decisions of two Courts of Appeal. Mr Clarke for the Tribunal invited us not to cause the Tribunal to suffer from Schizophrenia and I certainly recognise that if we held that a different test than that applied by the Court of Appeal in England was the correct test, the Tribunal might have to go to the House of Lords for a final decision, which might unnecessarily delay their proceedings, or we might remit their ruling back to the Tribunal which, in turn might lead the party adversely affected by a change in ruling to select the Divisional Court in England and Wales for a further judicial review. It would be bound to follow the English Court of Appeal, the courts would look foolish and an appeal to the House of Lord would be inevitable.
I should perhaps express my own view that in a criminal case on appeal, our Court of Appeal should adopt the practice outlined by Lord Lowry, and on the civil side follow it even if we believed the English Court of Appeal to be "plainly wrong". I remind myself that the House of Lords has often found what seemed plain to the Court of Appeal to be plainly the opposite. Thus the course proposed by Carswell LCJ in civil cases seems the most appropriate.
The Test Set out at Paragraph 31 of the Judgment of the Court of Appeal
I am prepared to apply the same test as they applied and accordingly, I see no point in criticising any part of the judgment or, for example, in seeking to reconcile paragraphs 13 and 28 of the judgment.
I accept that the risk to the police officers is `real' without seeking to re-define the word and is `immediate' in the sense that, if they give evidence in open court without screening, the risk is that from that point in time a plan may be put into effect to target one or more of them and when the Tribunal has completed its task an attempt may be made on the target.
I consider that the Court of Appeal did not fail to understand that the decision in Ergi was based on facts significantly different from the facts in this case and did not seek to import into this case the requirement that the Tribunal should take all feasible precautions to minimise the risk to the police officers but that it should do all that could reasonably be expected of it. They assessed the risk to the soldiers as higher than the Tribunal did. The risk engaged Article 2 and the balancing act required to be carried out needed to be adjusted because the Tribunal had assessed the risk at too low a level.
The test set out at paragraph 31 is appropriate when one is considering the duty of fairness to witnesses at a public inquiry and when the question is whether there is a real and immediate risk to their lives. None of the arguments of Mr Treacy persuaded me that the approach of the Court of Appeal was flawed in principle.
Grounds 1(2) and (3), 2, 3, 4, 5, 6, and 7
The subjective fears of the police witnesses, the extent to which those fears can be objectively justified and the extent to which the fears will be alleviated if the measures sought are taken.
The Tribunal received written submissions on behalf of the police officers and of the families of those who were killed and wounded. On Thursday 7 February 2002 oral submissions, were made on their behalf and by others. These ran to 70 pages of transcript. Five Queen's Counsel, including three on behalf of the families, made these submissions. The Tribunal's Ruling is to be found at p272 and following of the transcript for that day.
Lord Saville stated:
"The basis for the application [for screening] is that, in the light of the principles set out in paragraph 31 of the recent Court of Appeal decision (unreported: 19 December 2001: [2001] EWCR Civ 2048: Case No C/2001/2538) dealing with venue, these individual applicants have reasonable and genuine fears for their personal safety were they to appear in public at the Guildhall to give their evidence, that these fears would be alleviated if screening were allowed and that when balanced against the adverse consequences to the Inquiry of listening to the evidence other than in full public view, commonsense and humanity dictated that screening should be allowed …
Those opposing the application submitted that the delay demonstrated, or at least went a very long way towards demonstrating, that in truth the applicants could not hold genuine or reasonable fears for their safely in the absence of screening …
It seems, though we have not heard from the Police Service on this, that there may have been some breakdown in communication between the service itself and its former and serving officers. Be that as it may, we are not persuaded that the delay in making the applications demonstrates, or goes towards demonstrating, that the fears now expressed are neither genuine nor reasonable …
The applicants, unlike the soldiers, do not have the protection of anonymity. Again, unlike all or virtually all the soldiers, they live in Northern Ireland where some are still serving police officers: hundreds of their colleagues have died from terrorist activity over the last 30 years. Thankfully, the terrorist threat at present appears to be reduced from that which existed before, but that it still exists cannot be denied, as is apparent from the information put before the Inquiry today and the future, of course, is unknown.
The fear that the police officers have stems not so much from the evidence they can give about Bloody Sunday, or indeed from their activities on that day, but from the opportunity, particularly since their names are known and since they live and some work here, that would be afforded to dissident groups to identify them more closely were they not to be screened.
We, in short, accept that the applicants have reasonable and genuine fears for their safety, and we further accept that these fears could be alleviated to a significant degree by screening …"
Before Kerr J Mr Treacy QC renewed the submissions which he had made before the Tribunal that the fears were not genuine or reasonable, that the history of the applications and the material discrepancies in them cast doubt on their bona fides and that they could not be objectively justified and made further submissions on these issues which Kerr J rejected. Before us Mr Treacy renewed the submissions he had made before the Tribunal and Kerr J and made additional submissions. Furthermore we have had affidavits and material placed before us on behalf of the appellant. Most, if not all of these were before Kerr J. Nothing that could be said on behalf of the families was left unsaid.
On 31 January 2002 a superintendent of the PSNI provided the legal adviser to the police with a Bloody Sunday Inquiry Intelligence Assessment. It was in the following terms:
"Despite the fact that PIRA are currently on cease-fire their terrorist capability has not diminished in any way. Intelligence gathering remains a priority with police officers continuing to be of particular interest. The significance of the events of Bloody Sunday and the outcome of the Saville Inquiry are extremely important to the republican psyche and the details of those police officers giving evidence to the Inquiry would be much sought after.
Should the personal details of any such police officer become known to a terrorist group then he/she may face an increased risk of terrorist attack. This risk is equally applicable to those officers who have already retired.
Dissident republican terrorists who are not on cease-fire naturally pose a substantial threat to all police officers. Despite recent setbacks as a result of continued successes by security forces they nevertheless remain highly capable of carrying out attacks. Since 1999 dissident republican have carried out bombing, mortar and shooting attacks on police and police establishments. We are aware from current intelligence that dissident republican groups continue to specifically target police officers both on and off duty. We are aware of contact between republican dissidents and PIRA.
Whilst there is no intelligence to indicate any direct threat exists against those officers called to give evidence to the Inquiry the possibility that some action may be taken against them cannot be dismissed."
On 5 February 2002 a further assessment was made available. It was in the following terms:-
"Further to our intelligence assessment dated 31.01.02 the additional details are forwarded for consideration:
• As previously indicated a general threat exists to any police witness whose personal details, including appearance, might be disclosed. The level of possible threat faced by these police witnesses is likely to vary, dependent upon the following factors: the nature of the evidence given by individual officers or ex-officers; the nature of their duties on the day in question; the media interest in their evidence and also whether the individual officer has been the subject of paramilitary attention in the past
• It is judged that the level of threat faced by police witnesses to the Tribunal will be greater than that faced by military personnel. This is due to the fact that a number of these witnesses live locally with their families and are likely to come into contact with terrorist suspects in the course of their ordinary lives, a situation that is not generally applicable to the military witnesses."
To suggest that the Tribunal's independence has been compromised by receiving these assessments seems to me to be absurd. From what other reliable source other than the PSNI could such assessments be obtained? They do not have to be slavishly accepted if the Tribunal considers that they are exaggerated.
A sergeant, it was said correctly, had made and withdrawn an application for screening in 1999 and on the Friday before the police officers were to commence giving evidence indicated that he intended to renew his application. A separate application for screening was made on his behalf in writing and replied to by counsel on behalf of the families. He had changed his mind about applying for screening because his view of the increased risk to his life had changed. He had perceived the effect of the proceedings of the Inquiry on the attitudes of some people in Derry in relation to the security forces. Accordingly, the re-awakening of memories of the events of Bloody Sunday increased the risk to his life and the lives of members of his family. This risk was compounded by the fact, unknown to him in 1999, that a video image of the proceedings was broadcast to premises within the city of Derry known as the Rialto Cinemas to be viewed by any member of the public. He was concerned about the conviction in July 2001 by the Special Criminal Court in the Irish Republic of a Derry man for possessing information likely to be of assistance to members of an illegal organisation in the commission of a serious offence. The information related to a superintendent of the RUC in Derry (see the judgment of Kerr J at page 20).
On Friday 31 January 2002, the sergeant read for the first time an Intelligence Assessment of that date and must have discussed with his legal advisers the effect of the decision of the English Court of Appeal of 19 December 2001.
Express reference was made on behalf of the sergeant to the judgment of the Court of Appeal in England and a passage was cited from the judgment of Lord Phillips MR in which he stated:
"It is, however, common ground that there are, in Londonderry in particular but also elsewhere, dissident Republican elements who are not prepared to observe the ceasefire, but are anxious to disrupt the police process … These elements pose a threat to the Inquiry and those who are or will be taking part in it, and in particular the soldier witnesses. The security agencies consider that this threat is, and will be, sufficiently real and imminent to call for precautionary measures to safeguard those taking part in the Inquiry. We consider that they are plainly right to so."
This confirms Mr Clarke's submission, that the police officers were conscious of the implications of that decision of the Court of Appeal in England.
On behalf of the sergeant it was pointed out that unlike the soldier witnesses living in Great Britain, he resided in Northern Ireland and the risk to him was greater than the risk to them. He would be giving his evidence in public and his name would be known. His name was given at the Tribunal and mentioned in Kerr J's judgment. Reference was made on his behalf to the assessments of the threat to the RUC witnesses. I have already set out these assessments in my judgment.
It is not surprising that the sergeant was unaware that the Rialto Cinema was used as an additional venue. That it has closed down for the time being, as Mr Clarke for the Tribunal told us, does not mean that it would not re-open if the police officers gave evidence unscreened. Video recordings or visual images of police officers might be obtained for further study, as was submitted on their behalf.
I further note that the legal representatives of the appellant made no submission to Kerr J or to this court that the information which the sergeant had about the conviction before the Special Criminal Court was incorrect.
It was submitted that his fears were not based on reasonable grounds, because the assessment of threat was general in nature and was supplied by the police force to which the applicant for protective measures belonged. I have dealt with the generality of the assessment. It was open to the Tribunal to take the view, as it did, that the generality of the threat affected all the individual witnesses. The Tribunal was entitled to accept that it was genuine because it was expressed in a moderate way.
A Constable who gave evidence at the Widgery Inquiry in 1972 without anonymity or screening has claimed screening. It is accepted that 30 years later he has claimed that he asked for and was refused anonymity by that Tribunal. A transcript of his evidence has been provided. The Tribunal was entitled to accept that he did not deliberately tell an untruth about his stated wish for anonymity at that time and to refuse to differentiate his application from that of the Sergeant on the ground that his recollection of what happened at the Widgery Tribunal 30 years ago is at fault.
On Monday 3 February 2002 the police officers (other than the Sergeant) who were to start giving evidence that week met with their legal advisers in Derry and asked for screening.
The Tribunal considered that there may well have been a breakdown in communications between the RUC and individual police officers, serving or retired, and, if so, it would follow that they did not know of the memorandum sent by the Tribunal to RUC Headquarters in July 1998 indicating that applications for anonymity or screening should be made promptly. They gave statements to Eversheds, Solicitors acting for the Tribunal We were informed by Mr Clarke that another large group of police officers who also made statements to Eversheds have not been required to give evidence before the Tribunal. The police officers will have learnt, therefore, not long before they came to Derry that they were definitely required by the Tribunal to give evidence. Those who have taken part in the Inquiry will have been aware of applications for screening in 1999 and 2000 which were granted. But the Tribunal was entitled to accept that these police officers were not necessarily aware that screening applications were made then and was entitled to take the view that the police officers were influenced by the intelligence assessments which they were shown when they came to give evidence in Derry, even if they might have been expected to apply for screening at an earlier stage. Therefore the Tribunal was entitled to accept their bona fides.
It was argued that they should not have been treated as a `job lot'. In particular there were two officers whose names are well-known to the public and have been in the public eye. But, as Mr Clarke pointed out, they have not been associated with Bloody Sunday and those who may present a real risk to them when they give evidence are not likely to have watched them on TV or taken a special interest in them or their appearance. If they give evidence unscreened, special interest in their appearance will be aroused. If screened, no doubt they will take care to avoid publicity in the future, so far as they can.
The majority of the police officers have retired from the RUC. One lesson which they take with them into retirement is that they should not divulge to those who do not know that they were in the RUC what their past occupation was, except in special circumstances. (A retired police officer was killed in front of his wife by the IRA in early 1998). If they were not screened, the retired police officers might be recognised by such persons who had not known what they did in the past.
It was argued that each individual claim for screening should have been the subject of a separate ruling. It was not indicated how this task should be carried out. Obviously the witnesses would have had to be screened. Some gave special reasons for screening which the Tribunal did not disclose. Part of the individual hearings might have had to be held in camera. If they stated that they were unaware of the Tribunal's memorandum in 1998, of the applications for screening in 1999 and 2000, of the Tribunal's intention to call them as witnesses until recently and of the Intelligence Assessment until Monday 3 February 2002 how could those statements be impugned? I reject that criticism of the Tribunal.
The Tribunal had material justifying its view that the police officers have subjective fears which are reasonably held by all of them.
If any of the police officers resided in Great Britain, I would have held that the ruling in his favour was irrational. Nothing in this judgment is intended to give any support for any application by any soldier for screening, if he resides in Great Britain. But if there are special circumstances in any given case it is a matter for the Tribunal, not the court.
Grounds 8 to 14 of the Appeal from Kerr J
The Tribunal carried out a balancing exercise, in applying the test set out at paragraph 31 of the judgment of the Court of Appeal. I do not accept that Kerr J, whatever reservations he may have had about the judgment, applied some different test than was required by the Court of Appeal.
The killings of police officers in Derry and elsewhere which had reached 350 in 1998, the woundings and other incidents of near misses and the intelligence assessments all bear out the objective justification of their fears. Two police officers who gave evidence to the Widgery Inquiry were subsequently killed by the IRA but the interval of time between the giving of evidence and the killings may well indicate that there was no connection.
The subjective fears of the police officers and the objective justification for them are not much greater than those of other RUC officers, serving or retired. But I am prepared to accept on the basis of the intelligence reports that the Tribunal was justified in holding that they are entitled to protection as witnesses and as they do not have anonymity, that screening is the only realistic option, subject to the balancing exercise which must be carried out.
In his ruling Lord Saville said:
"There remains … the question of balancing these considerations against the adverse consequences to the Inquiry of allowing screening to take place. We do not accept that screening is something of little real importance. This is a public inquiry and the public should be able to see how those who gave evidence before the Inquiry conduct themselves. It is true that the legal representatives of the families will be able to see witnesses, as of course will the Tribunal itself, but to our mind screening remains a significant inroad on the public nature of the proceedings having said this, though, we are not persuaded that the public confidence in this Inquiry will be undermined to such a degree that the applicants' genuine and reasonable fears must be overborne.
Once again, we bear in mind that the applicants are publicly named individuals, but we accordingly conclude that the application should be granted. It was suggested during the argument that a possible middle ground would be to allow the families of those who died or were wounded to see the witnesses excluding the rest of the public, but to our minds this is not really a practical suggestion.
Finally, we should record that we have looked at the confidential material relating to the particular circumstances of the individual applicants, but our decision is based upon the materials and submissions made available to all."
In my view this ruling was one which the Tribunal was entitled to make.
Mr Treacy argued again before us that if the public was excluded from viewing the police witnesses, the families should be permitted to do so.
It was contended that the relevant police witnesses entertain no subjective fears in respect of the families of the next-of-kin and the wounded. The families, as one would expect of them, have behaved in a restrained and dignified way. Many of those who have given evidence have stated that they wish no harm to those who came to give evidence.
It would be necessary to carry out a `vetting' exercise on the 127 members of the families. How this could be done was not indicated. Presumably some investigation would have to be carried out in camera. The Tribunal has stated that it is not really a practical suggestion. Such a view was within the scope of its discretion. In my view it would be outside our jurisdiction to remit that ruling for further consideration.
The Tribunal has made a ruling that only qualified lawyers are to be present when screened police officers are giving evidence. Unqualified lawyers would have to be vetted. Doubtless, they can assist in preparation for cross-examination of the police officers but I cannot accept that Mr Harvey QC or any other member of the Bar who cross-examines a police officer requires the assistance of a lawyer who has no practical experience of advocacy. If there is need for liaison, junior counsel or a qualified lawyer can liaise with them.
Conclusions
Judicial Review is a supervisory jurisdiction, not an appeal. The Tribunal made efforts to avoid anonymity of witnesses and to have the soldiers give evidence in Derry. They have tried to hold the Inquiry as openly as possible. The families must realise that the blame for the limitations on openness rests not with the Tribunal or the courts but elsewhere.
As was submitted on behalf of the Tribunal the police witnesses will be named; their evidence will be heard, transcribed and reported; they will be seen by the Tribunal (who are the decision makers in what is an inquiry, not a trial) and by the lawyers (who will be able to make submissions as to the significance, if any, to be attached to the "demeanour" of the witness and the proceedings will still take place in public.
If there are matters which can be settled consensually by all parties, so be it. But in our supervisory role we are not entitled to and are not going to dictate to the Tribunal.
I must thank counsel for the appellant, for the Inquiry and for the police officers for their submissions and the manner in which they were presented.
