| Tribunal - Tribunal of inquiry - Evidence - Witnesses’ application for anonymity on ground of fears for safety - Real and immediate risk to life - Whether materially increased risk necessary - Human Rights Act 1998, Sch 1, Pt I, art 2 - Inquiries Act 2005, s 19
In re Officer L and others
HL(NI): Lord Hoffmann, Lord Woolf, Lord Carswell, Lord Brown of Eaton-under-Heywood and Lord Mance: 31 July 2007
On an application by potential witnesses for anonymity a tribunal of inquiry had posed the correct test, under art 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms, of whether a pre-existing risk of death would be materially increased if the witnesses were required to give evidence without anonymity.
The House of Lords so held in allowing an appeal by the Robert Hamill Inquiry from the decision of the Court of Appeal in Northern Ireland (Sir Brian Kerr LCJ, Campbell and Girvan LJJ) [2007] NICA 8 dismissing the inquiry’s appeal from Morgan J, who on 3 November 2006 had allowed applications by 11 retired or serving police officers for judicial review of the inquiry’s decision on 3 August 2006 refusing their applications for anonymity.
LORD CARSWELL said that the inquiry had been set up by the Secretary of State for Northern Ireland to inquire into the circumstances of the death of Mr Hamill, whose family claimed that nearby police had done nothing to stop a sectarian attack on him and in one case had obstructed subsequent investigation. The inquiry proposed to call a number of police officers as witnesses. Those who had applied for anonymity claimed a “reasonable and genuine fear” that they would be targeted for reprisals by a dissident terrorist group if they gave evidence without anonymity. They contended that that would be a breach of art 2 of the Convention (“Everyone’s right to life shall be protected by law”) and of the common law duty of fairness to witnesses. The Court of Appeal had held that the inquiry had been in error in holding that it was necessary under art 2 to find that that a materially increased risk to the applicants would arise from their giving evidence: the question was “will the requirement to give evidence give rise to a real risk to life?”. His Lordship thought that the inquiry had ben correct. It was inherent in its discussion of the issue that it had not considered that the pre-existing risk was sufficiently severe to reach the level of a real and immediate risk, which was the threshold for art 2. If there was not a real and immediate risk before giving evidence, then ex hypothesi to reach the threshold there had to be some increase in the risk. The tribunal had correctly asked the same question in relation to the common law duty of fairness, as to which the principles were in some respects different. If the risk had not been increased, it was not unfair on that account to require a witness to give evidence. The decisions of the judge and the Court of Appeal could not be sustained.
LORD HOFFMANN, LORD WOOLF, LORD BROWN and LORD MANCE agreed.
|
Appearances: Ashley Underwood QC and Julie Anderson (both of the English Bar) (Judi Kemish, Solicitor, Robert Hamill Inquiry) for the inquiry; Frank Donoghue QC and Kevin O’Hare (both of the Northern Ireland Bar) (Edwards & Co, Belfast) for the officers; Philip Sales QC and Joanne Clement (both of the English Bar) (Treasury Solicitor) for the Secretary of State for Northern Ireland, intervening; Liam McCollum QC and Fiona Doherty (both of the Northern Ireland Bar) (written submissions) (P J McGrory, Belfast) for Mrs Jessica Hamill.
|
