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Press Notice 009

The House of Lords has allowed the appeal of the Robert Hamill Inquiry against the decision of the Court of Appeal in Northern Ireland. The Court of Appeal had quashed the Inquiry panel’s ruling which dismissed the applications by the Respondents for restriction orders under which they be permitted to give evidence at the forthcoming Inquiry hearings unnamed and screened from the public. The Respondents were all former members of the Royal Ulster Constabulary ‘RUC’ (some retired and some police officers now serving in the Police Service of Northern Ireland ‘PSNI’ (the successor to the RUC)).

The Respondents applied for judicial review of the Inquiry panel’s ruling in August 2006 shortly before the date scheduled for the full oral hearings in September 2006. As a consequence the oral hearings were postponed pending the resolution of the litigation.

The primary challenge by the Respondents was that the Inquiry panel had asked itself the wrong question by declining to follow a literal interpretation of paragraph 31 of the decision of the Court of Appeal in England & Wales in R(A and Others) v Lord Saville of Newdigate [2002] 1 WLR 1249 (‘the Widgery Soldiers case’) which concerned applications for anonymity to the Bloody Sunday Inquiry.

The House of Lords has now held that

• An applicant for anonymity relying on Article 2 of the European Convention of Human Rights (‘ECHR’) must establish a real and immediate threat to their life in the absence of anonymity to meet the ‘high’ threshold ‘that is not easily reached’
• The threshold of risk to be met is constant and does not vary according to whether the risk is attendant upon some action that an authority is contemplating putting into effect itself
• For the purposes of Article 2 ECHR the issue does not depend on the subjective concerns of an applicant
• A literal approach to paragraph 31 of the decision in Widgery Soldiers (above) could not be supported
• The Robert Hamill Inquiry panel posed the question correctly under Article 2 ECHR - being whether in respect of any of the Respondents an existing level of risk would be materially increased if they were required to give evidence named and unscreened from the public
• The Robert Hamill Inquiry panel approached the applications under common law correctly by carrying out a proper balancing exercise between the private interests of the Respondents and the public interest in the openness of a public inquiry
• Their Lordships suggested that a tribunal faced with a request for anonymity could approach the matter as a single decision under common law having regard to Article 2 ECHR
• The House reserved its opinion on the question whether where a decision-maker finds that there is a real and immediate risk to life from a proposed measure it is permissible to refuse anonymity on the basis of ‘countervailing factors’ in the public interest
• Their Lordships remitted the subsidiary question of whether the decision of the Inquiry panel could be shown to be Wednesbury unreasonable (which the Northern Irish Courts had declined to decide) to the High Court of Northern Ireland to determine that issue alone

The Inquiry was awarded its costs in the High Court of Northern Ireland, the Court of Appeal in Northern Ireland and their Lordships’ House.

Now that the approach taken by the Robert Hamill Inquiry has been approved by the House of Lords it looks forward to commencing the full oral hearings at the earliest opportunity. If the subsidiary point is pursued it will be dealt with under the special fast track regime for Robert Hamill Inquiry litigation laid down by the Lord Chief Justice in Northern Ireland who has directed that the necessary steps in litigation be dealt with ‘in days and not weeks’.

Notes for Editors