The care of the court

The Court of Appeal has overturned the Bloody Sunday inquiry's decision to force British soldiers to testify in Londonderry. Dinah Rose reports

On Sunday 30 January 1972, British soldiers shot dead 13 unarmed civilians and wounded 13 more during a civil rights march on the streets of Londonderry. Lord Widgery's hastily convened inquiry into the events of Bloody Sunday exonerated the soldiers and failed to restore public confidence. A fresh inquiry, conducted by a tribunal consisting of Lord Saville of Newdigate and two distinguished Commonwealth judges, has now been sitting for nearly four years, based at the Guildhall in Londonderry.
The tribunal has identified between 200 and 400 soldiers who may have relevant evidence to give. Following an earlier judicial review, all are protected by anonymity.
In August 2001, the tribunal ruled that the soldiers must attend to give their evidence at the Guildhall, in the city where the “grief and outrage” occasioned by Bloody Sunday were centred. The tribunal considered that “the chances of this inquiry restoring public confidence in general, and that of the people most affected in particular… would be very seriously diminished (if not destroyed) by holding the inquiry, or a major part of the inquiry, far away and across the Irish Sea, unless there were compelling reasons to do so”.
In coming to that conclusion, the tribunal had the benefit of its own extensive experience of conditions in the city, and took advice from the Ministry of Defence, the police and the security service. It was the consensus of these agencies that an acceptable degree of security could be provided for the soldier witnesses at the Guildhall, although it would be riskier for them to attend there than to give their evidence in Britain.
The soldiers challenged the tribunal's decision by judicial review, contending that they had reasonable grounds to fear for their lives if they were required to give evidence at the Guildhall, and that the tribunal had failed to show that there were compelling grounds to require them to do so. They argued that the tribunal's ruling breached the State's positive obligation under Article 2 of the European Convention on Human Rights to protect their right to life.
The soldiers' challenge succeeded. Most of the legal argument focused on the question of the threshold of risk that must be crossed in order to engage Article 2 in circumstances where a state's own action endangers a person's life. But it is the very intense degree of scrutiny that the Court of Appeal applied to the facts that is of particular interest.
In spite of the political sensitivity of the inquiry and the eminence and local knowledge of the tribunal, the Court of Appeal left no margin of discretion to the tribunal's judgement. Remarkably for a court in judicial review proceedings, the Court of Appeal re-examined the detail of the evidence and reached its own conclusions as to the justification for the soldiers' fears, which it substituted for the conclusions of the expert body entrusted by Parliament with the con-duct of the inquiry.
The Court of Appeal, unlike the tribunal, concluded that the soldiers' fears were reasonable, notwithstanding the security measures that would be applied and regardless of the fact that there had been no terrorist attack on any witness attending legal proceedings in thirty years. The sheer number of witnesses who would travel to the Guildhall over a six-month period, using a limited number of routes that would inevitably become known, raised real security concerns if a determined attack should be mounted. The likelihood of such an attack could not be assessed, but could not be dismissed as remote. These security concerns outweighed the “emotion” of the families of the victims, who wanted the soldiers to be held to account in the place where the killings occurred.
This was no more than a difference of opinion between the tribunal and the Court of Appeal as to the weight to be accorded to various competing factors. It is perhaps not so surprising that a court sitting in London should take a different view of the risks of attending a hearing in Northern Ireland than a tribunal that has been based there without incident for a number of years.
The fact that the Court of Appeal was prepared to intervene and to rule that the soldiers must give evidence in Britain is an outstanding example of the confidence and rigour with which courts are now, at least some of the time, applying and enforcing fundamental rights. Is it unduly cynical to wonder what the chances are that the intense degree of scrutiny that the court was, quite rightly, prepared to apply to protect the human rights of British soldiers, will be extended to asylum seekers who argue that their lives will be in danger if they are deported?
Dinah Rose is a barrister at Blackstone Chambers