R v Lord Saville of Newdigate Ex parte, A

When an inquiry proposes to disclose witnesses’ identities despite a reasonably founded risk to life, it must identify a compelling justification for increasing that risk. The reviewing court must scrutinise closely both the interference with the fundamental right to life and the asserted countervailing public interest.

An inquiry controls its own procedure, but it owes procedural fairness to witnesses as well as to other interested persons and the public. Anonymity may remain compatible with an open, public inquiry where evidence is given publicly, the inquiry knows the witnesses’ identities and disclosure would add little to its truth-finding function.

The Bloody Sunday Inquiry, established under the Tribunals of Inquiry (Evidence) Act 1921, decided that soldiers who had fired, or were alleged to have fired, live rounds should give evidence under their true names. It accepted that their fears were genuine and reasonable and that identification would increase the risk to them, but considered disclosure necessary to its public investigative function.

By a majority, the Divisional Court quashed that decision. The Tribunal appealed. The central issues were the intensity of judicial review where safety and the right to life were engaged, whether anonymity formed part of procedural fairness, and whether naming the soldiers had a compelling justification.

1. Appeal dismissed. Lord Woolf MR delivered the unanimous judgment of the court. The Divisional Court’s majority had correctly quashed the Tribunal’s decision concerning soldiers who had fired, or were alleged to have fired, live rounds.

2. The applicable substantive review standard was that stated in R v Ministry of Defence, ex parte Smith [1996] QB 517. The court may intervene where a decision falls outside the range reasonably open to the decision-maker. The greater the interference with human rights, the stronger the justification required. The threshold of unreasonableness does not formally change, but engagement of the right to life narrows the range of reasonable decisions and demands anxious scrutiny of the competing considerations.

3. An inquiry is master of its procedure, subject to an overriding duty of fairness. That duty extends to witnesses. Whether a proposed procedure is fair is ultimately a question for the court, not merely an issue reviewable on conventional irrationality grounds. Refusing anonymity could be genuinely unfair where it required witnesses to undergo an unnecessary risk.

4. Once the Tribunal accepted that the soldiers’ fears rested on reasonable grounds and that identification would increase the danger, the proper question was whether a compelling justification existed for naming them. The consequences of an erroneous assessment were grave because disclosure was irreversible and the right to life was the most fundamental human right.

5. No compelling justification existed. Using letters instead of names would cause only a marginal reduction in openness. Evidence would remain public, witnesses could be observed, the Tribunal would know their identities and could investigate credibility, and particular soldiers could later be named if necessary. The Tribunal’s truth-finding function would remain unimpaired. Section 2 of the Tribunals of Inquiry (Evidence) Act 1921 itself recognised that a public inquiry could perform its primary duty despite excluding the public from part of its investigation.

6. The Tribunal also gave insufficient weight to the reasonable fears of the soldiers and their families, the irreversible nature of disclosure and the assurance of anonymity under the earlier inquiry. On the facts, no lawful decision other than anonymity was possible for the soldiers in the identified high-risk category. The court expressed no concluded view about other soldiers.

1. Court of Appeal: The Tribunal’s appeal was dismissed unanimously. The majority decision of the Divisional Court quashing the refusal of anonymity was upheld.

2. Divisional Court: Roch LJ and Maurice Kay J, Hooper J dissenting, partially quashed the Tribunal’s decision so far as it required the applicant soldiers and other soldiers who fired live rounds to be identified.

3. Bloody Sunday Inquiry: The Tribunal had ruled that military witnesses should be identified by their true names, while permitting renewed applications based on special individual circumstances.