In re Officer L

The appellant inquiry sought to have anonymity applications by serving and former police officers refused. The key legal issues were the proper test under article 2 of the European Convention on Human Rights (right to life) and the relationship between article 2 and the common law duty of fairness to witnesses. The tribunal had asked whether requiring a witness to give evidence would "materially increase" a pre-existing risk to life and rejected the anonymity applications; the Court of Appeal held that the tribunal should instead ask whether a real and immediate risk to life would arise from giving evidence. The House of Lords held that the tribunal's question — whether giving evidence would materially increase any pre-existing risk — was a correct approach, explained the high threshold for engaging article 2 (a "real and immediate" risk, drawing on Osman), and directed that the Wednesbury-unreasonableness challenge be remitted for further consideration.

The Robert Hamill Inquiry, established under the Inquiries Act 2005 to investigate circumstances surrounding the death of Robert Hamill, proposed to call a number of serving and former RUC/PSNI officers as witnesses. Several officers applied for restriction orders entitling them to anonymity and screening while giving evidence, on grounds of risk to life and common law unfairness. The Inquiry refused those applications following a detailed evidential hearing and concluded that (i) article 2 was not engaged because the evidence did not show that giving evidence would materially increase any pre-existing risk to life, and (ii) the balance of interests under the common law duty of fairness did not support anonymity.

Procedural history: the applicants obtained judicial review in the High Court (Morgan J) which quashed the tribunal's decision; the Inquiry appealed to the Court of Appeal in Northern Ireland which dismissed the appeal ([2007] NICA 8), holding that the correct question under article 2 was whether giving evidence would give rise to a real risk to life. The Inquiry appealed to the House of Lords.

The House of Lords considered (i) whether the tribunal had applied the correct legal test under article 2; (ii) the relationship between article 2 and the common law duty of fairness to witnesses; and (iii) whether the tribunal's decisions should stand or be remitted on the ground of Wednesbury unreasonableness. The Lords held that (i) the tribunal was correct to pose the issue as whether giving evidence would materially increase any pre-existing risk (because, if no such increase occurs, giving evidence cannot be said to "give rise to" a real and immediate risk); (ii) article 2 imposes a high threshold — a real and immediate risk that is objectively established — and, if that threshold is not met, the common law balancing exercise applies in which subjective fears may be relevant; and (iii) the question of Wednesbury unreasonableness had not been determined below and should be remitted to the High Court for determination on that ground alone. The House therefore allowed the appeal and remitted the unreasonableness issue.

Nature of relief sought: anonymity and screening for witnesses called by the Inquiry. Issues framed: applicability and standard for article 2 positive obligations; proper test to determine whether anonymity is required; interaction between article 2 and common law fairness; standard of judicial review (Wednesbury).

Reasoning: the Lords relied on Strasbourg jurisprudence (notably Osman) to restate that article 2 requires an objectively verifiable "real and immediate" risk; they explained that where no sufficiently severe pre-existing risk exists, a tribunal must ask whether giving evidence would materially increase the risk before article 2 can be engaged, and otherwise apply the common law fairness balancing exercise. The Lords observed that if a materially increased risk is found, the tribunal must then decide whether that increase meets the article 2 threshold.

Appeal allowed. The House of Lords held that the tribunal correctly asked whether giving evidence would materially increase any pre-existing risk to life when considering engagement of article 2; if there is no such material increase, article 2 is not engaged and the matter is to be decided by reference to the common law duty of fairness. The question of Wednesbury unreasonableness was not decided below and was remitted to the High Court for determination.

Inquiry ruling refusing anonymity (ruling dated 3 August 2006); judicial review in the High Court (Morgan J) quashed the tribunal decision (order dated 3 November 2006); Court of Appeal (Northern Ireland) dismissed the Inquiry's appeal [2007] NICA 8 (5 February 2007); House of Lords allowed the appeal [2007] UKHL 36 (31 July 2007).