IN HER MAJESTYS COURT OF APPEAL IN NORTHERN IRELAND
ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND (CROWN SIDE)
IN THE MATTER OF AN APPLICATION BY MARY DOHERTY FOR JUDICIAL REVIEW
APPELLANT’S SKELETON ARGUMENT
1. This is an appeal by Mary Doherty from the decision of Kerr J delivered on 19 February 2002 dismissing her application for judicial review of the decision of the Bloody Sunday Inquiry Tribunal (“the Tribunal”) allowing certain police officers to give evidence from behind screens. The Appellant is the sister of Gerard Donaghy who was shot dead in Derry on 30 January 1972 on what has come to be known as “Bloody Sunday”.
2. In reaching his decision the trial judge made a number of findings including the following:
(i) It is universally acknowledged that the families have conducted themselves with dignity and restraint throughout the hearings that have so far taken place[1];
(ii) It is beyond question that public confidence in the Inquiry process is put at risk if witnesses give evidence from behind screens[2];
(iii) He accepted the genuineness of appellant’s concerns about the effect screening will have on how the work of the Tribunal is perceived by the families[3];
(iv) Any departure from a conventional form of proceeding requires to be justified by the party seeking such dispensation[4];
(v) The claim that the police officers who have applied to give evidence behind screens were unaware until recently that they could make such an application is surprising[5];
(vi) The earlier applications for screening in 1999 and 2000 must have received fairly wide publicity[6];
(vii) Mr Simpson was well aware that an application for screening could be made[7];
(viii) It is likely that the police officers who sought to be screened must have anticipated that they would be required to give evidence at the Inquiry[8].
3. It was not disputed that the denial of the opportunity to see the witnesses when they gave evidence represented an interference with the Appellant’s procedural rights under Article 2.
THE PROPER TEST TO BE APPLIED
4. The basis of Mr Simpson’s application for screening and that of the others was Article 2 of the Convention.
5. The starting point must be for the Court to identify and apply the correct test.
6. The Trial Judge held that it had been agreed that the test to be applied was that outlined by the Court of Appeal in its judgment in Lord Saville of Newdigate & ors v Widgery Soldiers & ors[9]. It can be seen from the skeleton argument submitted on behalf of the Applicant in the court below[10] that while the Applicant based her challenge to the decision on that test, it was never accepted on her behalf that the Court of Appeal test is correct law. In fact the Applicant’s representatives argued for a different test before the Court of Appeal in England. It is submitted that the decision of the Court of Appeal in England is wrong and should not be followed.
7. The decision is, in any event, not binding and of persuasive authority only. Moreover, the Court of Appeal’s formulation is inconsistent with European jurisprudence. Under Section 2 of the Human Rights Act 1998 a court determining a question which has arisen in connection with a Convention right must take into account, inter alia, any judgment of the European Court and any opinion of the Commission (given in a report adopted under Article 31).
8. There now appears to be three different tests: that applied by the European Court in Osman (“the Osman test”); that applied by the Court of Appeal in England in Lord Saville v Widgery Soldiers & Ors (“the Phillips test”); and finally that applied applied by Kerr J in the present case (“the Kerr test”).
9. The differences between the three tests are significant first as to the threshold for the engagement of Article 2. Secondly, depending under which test Article 2 is said to be engaged affects the nature of the duty which is imposed on the State.
10. Under the Osman test Article 2 is only engaged if it is established that there was a “real and immediate risk” to the life of an identified individual. If that threshold is crossed the duty on the State is to do all that could be reasonably expected of them. However the scope of this positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, ‘bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources[11].
11. The Phillips test which purports to be based, inter alia, on the European Court’s decision in Ergi is to be found at para.31 of the judgment. The test outlined by the Court of Appeal was as follows:
“We consider that the appropriate course is to consider first the nature of the subjective fears that the soldier witnesses are likely to experience if called to give evidence in the Guildhall, to consider the extent to which those fears are objectively justified and then to consider the extent to which those fears, and the grounds giving rise to them, will be alleviated if the if the soldiers give their evidence somewhere in Great Britain rather than in Londonderry. That alleviation then has to be balanced against the adverse consequences to the inquiry of the move of venue, applying common sense and humanity. The result of the balancing exercise will determine the appropriate decision. This course will, we believe accommodate both the requirements of Article 2 and the common law requirement that the procedure should be fair.”
12. The test adumbrated by the Court of Appeal is a four-stage test. The first stage is an inquiry into the subjective fears of the witness. The second stage is to consider the extent to which those fears are objectively justified. The third stage is to consider the extent to which those fears and the ground giving rise to them will be alleviated by the measures sought. It is only after the first three stages have been completed that the Tribunal then conducts the fourth stage, namely to balance the alleviation against the adverse consequences to the Inquiry of the measures sought.
13. It is immediately apparent that the Phillips test involves a balancing exercise.
14. The Kerr test, which was not contended for by anyone, does not involve any balancing exercise. See p26 of his judgment where he stated as follows:
“If the police officers’ Article 2 rights are engaged, the Tribunal is obliged to take sufficient precautions to protect their lives – see Ergi v Turkey (decision 28 July 1998) paragraph 81. The Court of Appeal in the venue application considered that a balancing exercise had to be carried out between the measures need to “alleviate” the subjective fears of the witnesses and the grounds giving rise to them on the one hand and “the adverse consequences” that the measures would cause on the other. Lord Saville had some difficulty with this concept, as do I. If the measures needed to alleviate the fears and the reasons for them are to be regarded as the steps necessary to protect the witnesses’ substantive Article 2 rights (in other words their right to have their life protected), I cannot accept that these can be mitigated by adverse consequences that might accrue to others’ procedural Article 2 rights. It surely cannot be right to refrain from taking precautions deemed necessary to protect someone’s life in order to cater even for the need to ensure the thorough and effective investigation of another’s death”.
15. If, as we contend, the Osman test is the applicable test then the applications for screening must fail because it has not been established that there is a real and immediate threat to an identified individual. That this is a very high standard was recognised by the Court of Appeal. It is also exemplified by the consideration that the facts in Osman were even insufficient to cross the threshold. Also illuminating in this context is the decision of the English Court in Turgitt where the compelling facts were insufficient to prevent the deportation of a foreign national.[12]
16. It goes without saying that the Osman test was not the test applied by the Tribunal nor was it the test applied by Kerr J. Accordingly the appeal must, in our submission, be allowed if the Osman test is the applicable test.
17. We have been unable to find any academic writing to support the Phillips test [outside the negative prohibition imposed by Article 2(1)] that there is some other test involving a lower threshold and imposing greater duties than that enshrined in Osman. Furthermore, there is no jurisprudence from the European Court which supports the existence of some other test. Rather, in our submission the consistent jurisprudence of the European Court is to contrary effect.
18. The Phillips test purports to be based on the European Court’s decision in Ergi. Reliance on this case is misplaced since Ergi is merely an example of the principles enunciated in a long line of cases best exemplified by McCann (see para.4.2.27 – 4.2.33 of Lester & Pannick “Human Rights Law & Practice; see also the reference to Ergi at para.7.47 and paras. 7.52-7.53 of Clayton & Tomlinson “The Law of Human Rights”. It is noteworthy that none of the standard human rights textbooks cite Ergi as an authority for the novel proposition accepted by the Court of Appeal in Lord Saville v The Widgery Soldiers.
19. There are obvious difficulties with the way in which the Phillips test has been formulated since it acknowledges that there is a balancing exercise. Lord Saville had difficulty with this concept as did Kerr J (see para.26 of his judgment referred to at para.14 above).
20. The Court of Appeal considered that “the Osman duty is directly engaged in the present case”[13]. It considered that there existed a real and immediate risk to the soldiers (of or to what it did not specify). The remaining question was whether the Tribunal had been correct in holding that the risk could be sufficiently reduced by security measures, thus allowing the Inquiry’s hearings to continue in Derry. In deciding this issue it was necessary to reach a conclusion as to the “risk threshold” that would require a change of venue.
21. In this context the Court was referred to the case of Ergi v Turkey[14].
22. In that case
“the applicant’s sister had been killed by cross-fire in the course of an operation by Turkish security services against terrorists. It was not clear from which source the fatal bullet had come. The Court held at paragraph 79 that Article 2 could be engaged where agents of the state failed to “take all feasible precautions in the choice of means and methods of a security operation mounted against an opposing group with a view to avoiding and, in any event, to minimising, incidental loss of life.”[15]
23. The Court went on to say that
The facts of Ergi differ from those under consideration in this appeal in that in Ergi the state agents were undertaking an operation involving the use of armed force which was likely to produce a criminal response involving risk to the lives of civilians. Nonetheless, this and the earlier cases to which we have referred, demonstrate that the Strasbourg jurisprudence develops incrementally on a case by case basis. Ergi opens the door to the argument that if a public authority is carrying out an operation which is going to invite an armed response from criminals, there is a duty to do all that is feasible to ensure that civilians are not thereby harmed.[16]
24. The Court was also referred to the so-called common law test, most recently outlined in the English Court of Appeal in the soldiers’ anonymity case as follows:
The right approach here, once it is accepted that the fears of the soldiers are based on reasonable grounds, should be to ask: is there any compelling justification for naming the soldiers, the evidence being that this would increase the risk?[17]
25. As to the test that should be applied in the venue case, the Court of Appeal stated as follows:
“In Fernandez, after adumbrating the various phrases which he considered expressed the same degree of likelihood of risk, Lord Diplock referred to the alternative of “applying, untrammelled by semantics, principles of common sense and humanity.” We believe that there is much to commend that approach in the present case. The search for a phrase which encapsulates a threshold of risk which engages Article 2 is a search for a chimaera. The phrases advanced by Mr Clarke were all taken from decisions involving contexts quite different from the present. These decisions provide no authoritative basis for adopting the phrases as a threshold test for Article 2 purposes. Of one thing we are quite clear. The degree of risk described as “real and immediate” in Osman, as used in that case was a very high degree of risk calling for positive action from the authorities to protect life. It was the ‘real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party’ which was, or ought to have been known to the authorities. Such a degree of risk is well above the threshold that will engage Article 2 when the risk is attendant upon some action that an authority is contemplating putting into effect itself. It was not an appropriate test to invoke in the present context.”[18]