Factual and Procedural Background
This is an appeal from the decision of Kerr J dismissing an application by the Next of Kin of the deceased for judicial review of the Bloody Sunday Inquiry Tribunal's ruling allowing twenty police officers to give evidence from behind screens in the Guildhall, Londonderry (Derry). The police officers sought screening due to fears for their personal safety if identified publicly. Intelligence assessments from the Police Service of Northern Ireland (PSNI) supported these fears. The family of the deceased opposed screening, arguing it compromised openness and affected their ability to follow evidence, particularly relating to the circumstances of the deceased's death and related evidence about planted items found on the body. Kerr J applied a four-element test derived from an English Court of Appeal decision to assess the validity of the fears and the propriety of screening, balancing witness safety against public confidence and openness of the Inquiry.
Legal Issues Presented
- Whether the test applied by the Tribunal and Kerr J, as outlined in paragraph 31 of the English Court of Appeal judgment, was appropriate for determining the validity of the police officers' fears and the propriety of screening.
- Whether giving evidence from behind screens compromises the public nature and openness of the Inquiry.
- Whether the Tribunal erred in refusing to investigate the bona fides of the police officers' claims of fear for their safety.
- Whether the Tribunal's acceptance of police intelligence assessments compromised its independence.
- Whether the Tribunal erred in refusing to distinguish between different categories of applicants for screening.
- Whether the Tribunal failed to consider or provide adequate reasons regarding the presence of members of the families' legal teams during screened evidence.
- Whether the Tribunal failed to carry out a proper balancing exercise under Article 2 of the European Convention on Human Rights.
Arguments of the Parties
Appellant's Arguments
- Disputed that the test applied by Kerr J and the Tribunal was agreed upon or appropriate.
- Argued that screening witnesses undermines the openness and public nature of the Inquiry.
- Contended that the Tribunal should have investigated the authenticity of the police officers' claims of fear.
- Claimed the Tribunal's acceptance of police intelligence assessments compromised its independence.
- Maintained that the Tribunal erred by refusing to distinguish between different applicants and by not considering the presence of non-legally qualified members of the families' legal teams.
- Asserted that the Tribunal failed to carry out a proper balancing exercise regarding Article 2 rights and procedural fairness.
Respondent's and Tribunal's Arguments
- Supported the application of the four-element test from the English Court of Appeal decision.
- Submitted that the police officers had genuine and reasonable fears for their safety, objectively justified by intelligence assessments.
- Argued that screening did not eliminate the public nature of the Inquiry, as evidence was still heard publicly and witnesses were visible to legal representatives.
- Rejected the need for further investigation into the police officers' claims, relying on risk assessments and the nature of the threat.
- Defended the Tribunal's discretion to exclude non-legally qualified persons from seeing screened witnesses based on prior rulings.
- Contended that the balancing exercise was properly conducted, weighing the risk to witnesses against the impact on the Inquiry's openness and public confidence.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Jordan v UK [2001] ECHR 24746 |
Consideration of Article 2 rights relating to life and procedural fairness. |
Referenced in assessing the balance between witness safety and procedural rights. |
| Osman v UK [1998] 29 EHRR 245 |
Established criteria for state obligations under Article 2 concerning risk to life. |
Used to support the necessity of protective measures for witnesses. |
| Lord Saville of Newdigate & Others v Widgery Soldiers & Others [2001] EWCA Civ 2048 |
Set out the four-element test for assessing witness safety and screening. |
Adopted as the appropriate test by Kerr J and this Court for the present case. |
| McCartan v Belfast Harbour Commissioners [1910] 2 IR 470 |
Principle of following English Court of Appeal decisions for uniformity. |
Supported the Court's adherence to the English Court of Appeal test. |
| Northern Ireland Railway Transport Board v Century Insurance Co Ltd [1941] NI 77 |
Reinforced the principle of following English appellate decisions. |
Applied in affirming the Court's approach to precedent. |
| Jefferson v Derbyshire Farmers Ltd [1921] 2 KB 281 |
Illustrated the practice of following English Court of Appeal decisions. |
Used as an example of precedent consistency. |
| McGuigan v Pollock & Another [1957] NI 74 |
Expressed judicial hesitation in departing from English Court of Appeal decisions. |
Supported the Court's decision to follow English authority. |
| Re McKiernan's Application [1985] NI 385 |
Discussed respect for English Court of Appeal decisions, with exceptions. |
Referenced in explaining the Court's approach to precedent. |
| R v Board of Visitors of Hull Prison ex parte St Germain (No 1) [1979] QB 425 |
Example of English authority not followed by Northern Ireland Court of Appeal. |
Contextual reference for precedent adherence policy. |
| R v Deputy Governor of Camphill Prison ex parte King [1984] 1 QB 735 |
English precedent not followed by Northern Ireland Court of Appeal. |
Contextual reference for precedent adherence policy. |
| R v Deputy Governor of Parkhurst ex parte Leech [1988] 1 AC 533 |
House of Lords upheld Northern Ireland Court of Appeal's departure from English precedent. |
Illustrated limits of adherence to English decisions. |
| Beaufort Developments (NI) Ltd v Gilbert Ash (NI) Ltd & Another [1997] NI 142 |
Reiterated the practice of following English Court of Appeal decisions. |
Supported the Court's approach to precedent in this case. |
Court's Reasoning and Analysis
The Court affirmed the application of the four-element test derived from the English Court of Appeal decision, which requires consideration of: (1) the subjective fears of witnesses, (2) the objective justification of those fears, (3) the extent to which fears are alleviated by protective measures such as screening, and (4) the balancing of these alleviations against adverse consequences to the Inquiry's openness.
The Court accepted the intelligence assessments provided by the Police Service of Northern Ireland as objective justification for the police officers' fears, noting the continuing threat from dissident republican groups and the real risk of targeting officers who give evidence publicly without protection.
The Court rejected the appellant's argument that the Tribunal's acceptance of these assessments compromised its independence, reasoning that the assessments were the most reliable source available and that the Tribunal could discount them if considered exaggerated.
The Court found no necessity for further investigation into the bona fides of the police officers' claims, as the risk assessments sufficiently supported their fears, and it was reasonable that the officers might not have applied for screening earlier due to communication issues.
The Court acknowledged that screening witnesses reduces the openness of the Inquiry but does not eliminate its public nature, as evidence remains accessible to legal representatives and the public can hear the testimony.
The Tribunal's refusal to distinguish between different categories of police officers for screening was upheld, as was its decision to exclude non-legally qualified members of the families' legal teams from viewing screened evidence based on prior rulings and practical considerations.
The Court concluded that the balancing exercise under Article 2 was properly conducted, weighing the real and immediate risk to the police officers against the impact on public confidence and openness, ultimately justifying the screening order.
Holding and Implications
The Court UPHELD the decision of Kerr J dismissing the application for judicial review and affirmed the Tribunal's ruling allowing police officers to give evidence from behind screens.
The direct effect of the decision is to permit protective screening of police witnesses in the Inquiry to reduce risk to their lives, while maintaining the public nature of the proceedings as far as possible. The ruling confirms the appropriateness of the four-element test for assessing witness safety and procedural fairness in public inquiries engaging Article 2 rights.
No new precedent was established beyond affirming adherence to existing principles and the English Court of Appeal's test. The decision emphasizes the balance between witness protection and the openness of public inquiries, recognizing practical limitations and the supervisory role of the courts.