R (A) v Lord Saville of Newdigate

Article 2 may require a public authority to alter or discontinue a lawful activity where that activity creates a serious risk to life. The Osman threshold of a known real and immediate risk from criminal acts is a high threshold suited to preventive operational measures. It is not the appropriate test where the authority itself is considering an activity that may invite a terrorist response. The court should assess subjective fears, their objective justification, the extent to which an alternative arrangement would alleviate them, and the adverse consequences of that arrangement. The result is determined through a fact-sensitive exercise applying common sense and humanity. A compelling justification may nevertheless support continuing a lawful public-interest activity despite a terrorist threat.

Retired and serving soldiers due to give oral evidence to the Bloody Sunday Inquiry challenged the Tribunal’s ruling that their evidence should be given in the Guildhall, Londonderry, rather than in London or elsewhere in Great Britain. The Administrative Court quashed the ruling and remitted the matter for reconsideration, holding that the Tribunal had applied too high a threshold of risk, had reached findings about the soldiers’ fears that were not reasonably open to it, and had failed to balance the competing confidence interests.

The Tribunal appealed. The central issues were the proper threshold under Article 2 of the Convention, the relationship between Article 2 and common-law fairness, and whether the proposed security arrangements made the venue decision lawful and fair.

1. Appeal dismissed. Lord Phillips MR delivered the judgment of the court. The Tribunal was a public authority within section 6(3) of the Human Rights Act 1998. Its procedural decisions remained subject to judicial review where fairness and a risk to life were in issue.
2. The court followed the approach in R v Lord Saville of Newdigate ex p A [2000] 1 WLR 1855: a tribunal has considerable control over its own procedure, but that procedure must remain fair. The Osman real-and-immediate-risk threshold was directed to the operational duty to protect an identified person from criminal acts. It was not the correct threshold where the authority itself proposed a lawful and peaceful activity that might invite an armed response.
3. The proper approach was to assess the soldiers’ subjective fears, the extent to which those fears were objectively justified, the extent to which an alternative venue would alleviate them, and the adverse consequences of moving the evidence. The result required a balancing exercise applying common sense and humanity.
4. The soldiers’ fears were objectively justified. The risk assessment had to account for their particular attractiveness as targets and the unprecedented scale and duration of the proposed security operation. The lower risk on the British mainland, together with the availability of video-link facilities, outweighed the adverse consequences of moving the evidence. The terrorist threat was therefore a compelling reason to take the evidence outside Londonderry.
5. The venue ruling failed to comply with Article 2 and fair procedure. It was quashed and remitted with a direction that the soldiers’ evidence should not be taken in Londonderry. The Tribunal was left to decide the alternative venue and use of video facilities. There was no order as to costs.

• Court of Appeal: [2001] EWCA Civ 2048. Appeal by the Tribunal dismissed. The venue ruling was quashed and remitted with a direction that the soldiers’ evidence should not be taken in Londonderry.
• Administrative Court: The Tribunal’s venue ruling was quashed and remitted for further consideration because the Tribunal had misdirected itself on the risk threshold and had failed to conduct the required Article 2 and fairness assessment.