House of Lords

Published August 1, 2007

In re Officer L and Others

Before Lord Hoffmann, Lord Woolf, Lord Carswell, Lord Brown of Eaton-under-Heywood and Lord Mance

Speeches July 31, 2007 On an application by potential witnesses for anonymity at a public inquiry, the appropriate test was whether a preexisting risk of death to the witness would be materially increased if he were required to give evidence without anonymity.

The House of Lords so held allowing an appeal by the Robert Hamill Inquiry from the dismissal by the Court of Appeal in Northern Ireland (Sir Brian Kerr, Lord Chief Justice, Lord Justice Campbell and Lord Justice Gir-van) ([2007] NICA 8) of its appeal from Mr Justice Morgan who, on November 3, 2006, had allowed applications by 11 retired or serving police officers for judicial review of the inquiry’s refusal on August 3, 2006 of their applications for anonymity.

Mr Ashley Underwood, QC and Miss Julie Anderson for the inquiry; Mr Frank Donoghue, QC and Mr Kevin O'Hare, both of the Northern Ireland Bar, for the officers; Mr Philip Sales, QC and Miss Joanne Clement for the Secretary of State for Northern Ireland, intervening; Mr Liam McCollum, QC and Ms Fiona Doherty, both of the Northern Ireland Bar, by written submissions, for Mrs Jessica Hamill.

LORD CARSWELL said that the inquiry had been set up by the Secretary of State for Northern Ireland under the Inquiries Act 2005 to inquire into the circumstances surrounding the death of Robert Hamill, who had died on May 8, 1997 from injuries received during an affray in Portadown, Co Armagh.

The incident had given rise to public concern and controversy, Mr Hamill’s family claiming that the attack had been sectarian and that police officers nearby had not attempted to stop the assault and one had obstructed subsequent investigation. No one had been convicted of Mr Hamill’s murder.

The inquiry proposed to call a number of police officers as witnesses, and some had applied to have their names withheld and to be screened from public view while giving evidence. With one exception, the applications had been refused.

The burden of the officers’ submissions was that by giving evidence without any protection by way of anonymity they would be exposed to an increased risk of terrorist attack.

They expressed a reasonable and genuine fear that they would be targeted and highlighted their concerns about the possibility of reprisals from a dissident terrorist group.

They contended: first, that to compel them to give evidence without anonymity would be a breach of article 2 of the European Convention on Human Rights, guaranteeing protection of right to life, second, that it would be a breach of the common-law duty of fairness to the witnesses.

The Court of Appeal had confined its consideration to the inquiry’s ruling under article 2 and had held that it had been in error in holding that it was necessary to find that a materially increased risk to the applicants would arise from their giving evidence. It had said “the issue is more properly addressed by asking ... ‘Will the requirement to give evidence give rise to a real risk to life?’" His Lordship referred to Osman v United Kingdom (Application No 23452/94) ((1998) 29 EHRR 245, paragraphs 115-116) and said that it was clear from the subsequent development of the case law that the positive obligation to protect the right to life arose only when the risk was “real and immediate".

The threshold was high. The requirement that the fear had to be real meant that it had to be objectively well founded.

There was also 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.

The standard was 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 principles that applied to the common-law duty of fairness were in some respects different from those in respect of an article 2 risk. They entailed consideration of concerns other than the risk to life, and subjective fears, even if well founded, could be taken into account.

Although it did not specifically so state, it was inherent in the inquiry’s discussion of the article 2 issue that it did not consider that the preexisting risk to the officers was sufficiently severe to reach the level of a real and immediate risk.

It had then posed the question whether in respect of any applicant the risk would be materially increased if he or she were required to give evidence without anonymity. That had been a correct test to apply.

The Court of Appeal had been wrong to conclude that the question to ask was “Is there a real risk?" rather than “Is there an increase in the risk?"

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 inquiry had been correct to ask the same question when considering the common-law duty. 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. The issue of Wednesbury unreasonableness ( Associated Provincial Picture Houses Ltd v Wednesbury Corporation ([1948] 1 KB 223)) had not been discussed below and the issue was remitted to the judge for determination.

His Lordship suggested, for the future, that the exercise to be carried out by an inquiry faced with a request for anonymity should be the application of the common law test with an excursion, if the facts required it, into the territory of article 2.

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

Solicitors: Ms Judi Kemish, Victoria; Edwards & Co, Belfast; Treasury Solicitor; P, J. McGrory, Belfast.

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