In re Officer L (Respondent) (Northern Ireland)

The positive operational duty under article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms arises only from an objectively verified, present and continuing risk to life. The threshold is high and constant. Where no real and immediate risk already exists, a tribunal considering witness anonymity must ask whether giving evidence without protection would create or materially increase the risk so that it reaches that threshold. Subjective fear is relevant evidence but is neither necessary nor sufficient.

The common-law duty of fairness is wider. It requires a balancing exercise which may take genuine subjective fears and resulting health effects into account even when those fears lack objective justification.

The Robert Hamill Inquiry proposed to call former and serving police officers as witnesses. Eleven officers sought anonymity through the withholding of their names and screening from public view. The Inquiry panel refused their applications after finding that giving evidence without anonymity would not materially increase the risk to their lives and that the common-law balance favoured public testimony.

Morgan J quashed that ruling on judicial review in [2006] NIQB 75. The Court of Appeal dismissed the Inquiry's appeal in [2007] NICA 8, holding that the panel had applied the wrong article 2 test. The central issues before the House were whether article 2 required proof of a material increase in risk, whether the panel had applied the correct common-law fairness test, and how the unresolved challenge based on Wednesbury unreasonableness should proceed.

1. Disposition. Lord Carswell delivered the leading speech. Lord Hoffmann, Lord Woolf, Lord Brown and Lord Mance agreed for the reasons he gave. The House unanimously allowed the Inquiry's appeal. The panel had applied the correct article 2 and common-law tests, so the decisions below could not stand. The judicial review application was remitted to the High Court for determination of the unresolved ground of Wednesbury unreasonableness.

2. Article 2 threshold. Per Lord Carswell, the positive operational obligation stated in Osman v United Kingdom (2000) 29 EHRR 245 arises only where the authorities know or ought to know of a real and immediate risk to an identified person's life from third-party criminal acts. A real risk is objectively verified; an immediate risk is present and continuing. The threshold is high and does not vary because the authority itself proposes the action said to expose the person to danger.

3. Application to anonymity. Per Lord Carswell, where the pre-existing risk is below the article 2 threshold, requiring a witness to give evidence can engage article 2 only if it creates or materially increases the risk so that the threshold is reached. The panel therefore asked the correct question. Having found no material increase, it did not need to determine whether a hypothetical increase would constitute a real and immediate risk.

4. Objective risk and subjective fear. Per Lord Carswell, article 2 turns on the objective existence of the risk. Subjective fear is not a prerequisite and does not itself establish engagement, although it may be relevant evidence. The common-law duty of fairness is distinct and wider. It permits consideration of genuine fears, health consequences and other unfairness even where the feared danger is not objectively established.

5. Common-law balance. Per Lord Carswell, a tribunal deciding whether witnesses must testify without anonymity must balance the witnesses' interests against matters including the inquiry's truth-seeking function, its public credibility and the public's ability to follow the evidence. The panel had undertaken a proper balancing exercise and was entitled in law to conclude that the balance came down against anonymity.

6. Future guidance. Lord Carswell stated, by way of guidance, that a tribunal may begin with the common-law fairness inquiry and make an excursion into article 2 where giving evidence would objectively create or materially increase a risk to life. If the resulting risk is real and immediate, reasonable protection—ordinarily an appropriate degree of anonymity—will be required. Otherwise article 2 drops out and the tribunal completes the common-law balance. He reserved the question whether wider public-interest considerations may affect whether the article 2 obligation has been breached.

1. House of Lords: In In re Officer L (Respondent) (Northern Ireland) [2007] UKHL 36, unanimously allowed the Inquiry's appeal, held that the panel had applied the correct legal tests, and remitted the outstanding unreasonableness ground.

2. Court of Appeal in Northern Ireland: In [2007] NICA 8, dismissed the Inquiry's appeal. It held that the panel had applied the wrong article 2 test by asking whether giving evidence would materially increase the officers' risk.

3. High Court of Northern Ireland: Morgan J, in [2006] NIQB 75, quashed the panel's decision for legal misdirection. He did not determine the alternative ground of Wednesbury unreasonableness.

4. Robert Hamill Inquiry: By ruling dated 3 August 2006, refused the respondents' applications for anonymity after separately considering article 2 and common-law fairness.