TRIBUNAL—TRIBUNAL OF INQUIRY—WITNESS

House of Lords
Lord Hoffmann, Lord Woolf, Lord Carswell, Lord Brown and Lord Mance
31 July 2007

In considering whether witnesses giving evidence to an inquiry should be given anonymity on grounds of fears for their safety, the criterion to determine whether the risk to life is real and immediate for the purposes of Art 2 (right to life) of the European Convention on Human Rights (the Convention) is one which will not be readily satisfied; the threshold is high. The standard is constant and not variable with the type of act in contemplation.

Ashley Underwood QC and Julie Anderson (instructed by Judi Kemish) for the tribunal.
Frank O’Donoghue QC and Kevin O’Hare (instructed by Edwards & Co, Belfast) for the applicants.
Philip Sales QC and Joanne Clement (instructed by the treasury solicitor) for the secretary of state for Northern Ireland as intervener.

The Robert Hamill inquiry was set up to investigate the death of a Catholic individual which resulted from an affray in May 1997 in Portadown, Northern Ireland. It was claimed by the family of the deceased that the attack was sectarian—in that the assailants were Protestants. It was further alleged that there were several police officers in a Land Rover nearby, but that none attempted to stop the assault. It was also said that one officer had obstructed the subsequent investigation into the incident. The tribunal proposed to call as witnesses a number of police officers who served in the Royal Ulster Constabulary (RUC), some of whom were retired and some working for the RUC’s successor. Some of the proposed witnesses made applications for anonymity orders.

The Police Service of Northern Ireland stated that it was not aware of any information that would indicate a specific threat to the witnesses but that the general threat which existed against all officers still applied from dissident groups. The applicants submitted that to compel them to give evidence without anonymity would constitute a breach of their right to life under Art 2 of the Convention. They also contended that it would be a breach of the common law duty of fairness to witnesses. None of the witnesses averred that he would be subject to a real and immediate risk of death apart from giving evidence. The tribunal posed the question whether in respect of any applicant the risk would be materially increased if he were required to give evidence without anonymity. With one exception the applications were refused. The applicants successfully applied for judicial review of that decision. The inquiry appealed unsuccessfully to the Court of Appeal. It appealed to the House of Lords. 

LORD CARSWELL:

His lordship considered, inter alia, Osman v United Kingdom (1998) 29 EHRR 245, [1999] 1 FLR 193. Two matters had become clear in the subsequent development of the case law. First, the positive obligation upon the state to safeguard the lives of those within its jurisdiction, arose only when the risk was “real and immediate”. The criterion was and should be one that was not satisfied. In other words, the threshold was high: R v Lord Saville of Newdigate, ex p A [2000] 1 WLR 1855, [1999] 4 All ER 860. The standard was constant and not variable with the type of act in contemplation, and was not easily reached. Moreover, the requirement that the fear had to be real meant that it had to be objectively well-founded.

In assessing the existence of a real and immediate risk for the purposes of Art 2, the issue did not depend on the subjective concerns of the applicant, but on the reality of the existence of the risk. The existence of subjective fears was not a prerequisite to the finding that there was a risk which satisfied the test of Art 2, and, conversely, if a risk to life existed, Art 2 would be engaged even if the person affected robustly disclaimed having any subjective fears. In the context of Art 2, a subjective fear was no more than evidence.

Second, there was 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 had to take to avoid being in breach of Art 2. The applicant had to show that the authorities had failed to do everything reasonable of them to avoid the risk to life. The standard was accordingly based on reasonableness, which brought in consideration of the circumstances of the case, the ease or difficulty of taking precautions and the resources available.

The tribunal had correctly posed the question whether in respect of any applicant the risk would be materially increased if he were required to give evidence without anonymity. It had accordingly approached the matter properly under Art 2 in seeking to ascertain whether giving evidence would give rise to a materially increased risk to life.

It was also correct in asking the same question when considering the common law duty. If the risk had not been increased, then it was not unfair on that account to require a witness to give evidence. It went on, again correctly, to assess the relevant factors other than actual risk to life which could make it unfair to require witnesses to testify without anonymity—namely 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 to determine if that affected its conclusions. The tribunal had accordingly applied the correct tests. The appeal would therefore be allowed.

His lordship added that when considering the relationship between the Art 2 consideration of anonymity and that which was decided by reference to the common law principles, the exercise to be carried out by the tribunal should be the application of the common law test, with an excursion, if the facts required it, into the territory of Art 2.
The appeal would be allowed.

Lord Hoffmann, Lord Woolf, Lord Brown and Lord Mance concurred.