R (A) v Lord Saville of Newdigate

A public inquiry's procedural discretion remains subject to judicial review for fairness. A decision alleged to expose witnesses to lethal danger requires anxious scrutiny. The high threshold governing the state's positive duty to protect against criminal attacks does not determine whether an authority may itself require witnesses to encounter danger.

When choosing where witnesses should give evidence, the authority must assess their subjective fears, the objective grounds for those fears and the reduction in fear and danger achievable elsewhere. It must balance that reduction against the adverse consequences for the inquiry, applying common sense and humanity. This assessment accommodates both Article 2 and common law fairness. Effective investigation and public confidence are relevant considerations, but objectively justified fears and a material reduction in danger may require another venue.

The Bloody Sunday Inquiry Tribunal required serving and former soldiers to give oral evidence at the Guildhall in Londonderry. The soldier witnesses challenged that decision because they feared terrorist attacks. The Ministry of Defence supported their challenge. The Tribunal considered that security precautions would prevent a real and immediate risk to life and that hearing the evidence locally was important to restoring public confidence.

The Administrative Court, comprising Rose LJ and Sullivan J, quashed the venue ruling and remitted it for reconsideration. It found that the Tribunal had applied an inappropriate risk threshold and had failed properly to assess the witnesses' fears and the justification for requiring attendance in Londonderry. The Tribunal appealed, supported by families of people killed or wounded on Bloody Sunday.

The central issues were the applicable Article 2 risk standard and whether requiring the witnesses to give evidence in Londonderry would comply with their right to life and common law procedural fairness.

The court unanimously dismissed the appeal. Lord Phillips MR delivered the judgment of the court, comprising himself, Jonathan Parker LJ and Dyson LJ.

1. The Tribunal was a public authority within section 6(3) of the Human Rights Act 1998. Although a tribunal generally controlled its procedure, its decisions remained reviewable for fairness. An allegation that its procedure exposed witnesses to objectively justified fears of lethal danger required anxious scrutiny. The Tribunal's distinction, experience and knowledge of local conditions nevertheless required particular care before judicial intervention.

2. Article 2 imposed both a procedural obligation to conduct an effective investigation and substantive obligations protecting life. The procedural obligation operated insofar as it was compatible with those substantive obligations. The protective duty identified in Osman v. United Kingdom, (1998) 29 EHRR 245, was engaged because terrorist threats required precautionary security measures.

3. The real and immediate risk described in that authority was a very high degree of risk triggering positive protective action against third-party criminal conduct. It was above the threshold relevant to danger attendant upon action which an authority itself contemplated requiring. The Tribunal had therefore invoked an inappropriate threshold. Expressions drawn from cases concerning other contexts supplied no authoritative verbal threshold for the present Article 2 assessment.

4. The proper assessment considered the witnesses' subjective fears, their objective justification and the extent to which an alternative venue would alleviate both fear and its underlying grounds. That alleviation had to be balanced against adverse consequences for the Inquiry, applying common sense and humanity. This approach satisfied both Article 2 and common law fairness.

5. The witnesses had good cause to fear for their safety in Londonderry. The absence of previous terrorist attacks on witnesses attending Northern Irish trials did not resolve the distinctive risks here. The soldiers could be unusually attractive targets. Hundreds of witnesses would travel repeatedly over many months, with limited scope to conceal routes, accommodation or travelling times. Security measures would reduce danger, but the likelihood of a determined attack could not be dismissed as remote. Both threat and vulnerability would be lower in Great Britain.

6. A change of venue would preserve the Inquiry's ability to ascertain the truth. Attendance arrangements and high-quality video links could maintain access for families and others in Londonderry. Although public confidence was a serious consideration, the terrorist risk supplied a compelling reason for taking the soldiers' evidence elsewhere.

The venue ruling remained quashed. The matter was remitted with a direction that the soldier witnesses' evidence should not be taken in Londonderry. The Tribunal retained responsibility for deciding where and how to take that evidence and how to use video facilities. There was no order as to costs.

• Court of Appeal: In [2001] EWCA Civ 2048 , dismissed the Tribunal's appeal and upheld the quashing of its venue ruling. Remitted the matter with a direction excluding Londonderry as the venue for the soldier witnesses' evidence.
• High Court, Administrative Court: Rose LJ and Sullivan J granted the soldier witnesses' judicial review application, quashed the Tribunal's venue ruling and remitted it for further consideration. The decision's citation is not stated in the judgment.