5 May 1999
Applications for Anonymity
1. In December last year the Tribunal made rulings on applications by and on behalf of soldiers for anonymity in the Inquiry. In summary the Tribunal decided that, subject to special individual circumstances, the names of the soldiers (but not their present addresses or other personal details) should be made known, though this was limited to surnames in the case of those soldiers who admitted firing live rounds on Bloody Sunday.
2. Four of the soldiers who fell within this latter class successfully applied to the English Courts to set aside this ruling. In its judgment the Divisional Court concluded that the Tribunal had:
3. The Tribunal accepted the judgment of the Divisional Court on all but the first of these points. As to this point the Tribunal appealed unsuccessfully to the Court of Appeal.
4. In these circumstances those acting for the soldiers renewed their applications for anonymity. The Tribunal decided that these should be considered on the basis of new written submissions and with oral submissions from all interested parties at a hearing at the Guildhall. This hearing took place on 26th and 27th April.
5. It should be noted at this point that the question is whether the names of the soldiers should be made public. As the submissions were developed at the oral hearing it seemed to us that no one was suggesting that the addresses or other personal details of the soldiers should be made public, since there is no reason to suppose that this information has any relevance to the Inquiry.
6. The renewed applications relate not merely to those soldiers who fired live rounds on Bloody Sunday, but to all soldiers (with the exception of four named officers) who were involved in Bloody Sunday. The basis for renewing all these applications is that although only five of the soldiers who fired live rounds obtained the setting aside of the December ruling, the reasoning of the Courts applies (in whole or in part) to all. With one qualification we accept that this is so and accordingly propose to reconsider the merits of all the renewed applications. The qualification relates to those soldiers whose names and involvement in Bloody Sunday are already in the public domain. In these cases (i.e. those we identified in the December ruling) we can see no purpose in the application.
7. It seemed to us that we must approach these applications entirely afresh, though of course taking into account the rulings and guidance given by the Courts. In this regard, however, the soldiers have advanced a submission that the Statement made by the Tribunal last July has given rise to a substantive legitimate expectation that those soldiers who establish a genuine and reasonable fear of reprisals would, in the absence of new compelling evidence or reasons (or, in another formulation, unless the fundamental objective of the Inquiry could not be achieved), be granted anonymity. The soldiers point to the fact that in our December ruling we accepted that the soldiers probably did have genuine and reasonable fears, and submit that since there is no new compelling evidence or reasons to displace the legitimate expectation that they say was created, nor any suggestion that the fundamental objective of the Inquiry could not be achieved, it would be unfair to depart from the test laid down by the Tribunal last July. It is in this sense, as we understand it, that the soldiers submit that it would be incorrect for us to look at the matter entirely afresh.
8. We cannot accept this submission. In its ruling the Divisional Court described what it called the "imbalance" between the July Statement and the December ruling as a "procedural impropriety." It is clear from the context that the Court was applying this description to points 2), 4) and 5) as set out above. In essence, what the Court said was that the Tribunal had acted unfairly by giving the impression in July (albeit inadvertently) that proof of genuine and reasonable fear would suffice and then in December, without giving proper notice or an opportunity to make further submissions, by applying a different test. If indeed the July Statement had created the legitimate expectation now contended for, the Divisional Court could hardly have described what happened in the way that it did, nor say, as it did at the end of its judgment, that "it was clear from the information before us that there are powerful arguments both ways" which they expressly left it to the Tribunal to determine. In other words, the Divisional Court did not hold that we were precluded on the information then available from applying a different test, but only that we had erred in not giving due notice that we proposed to do so.
9. If the Tribunal had continued to give the impression that those soldiers who established a genuine and reasonable fear would be granted anonymity in the absence of new compelling evidence or reasons, then we would accept unreservedly that it would be wrong and unfair of us to adopt a different test. However, the December ruling itself demonstrated that the Tribunal was merely taking such fears into account as one of the relevant factors to be considered. Furthermore, in a letter dated 22nd March 1999, which went to all interested parties, the Tribunal made it expressly clear that, among other things, the soldiers "should not assume that a genuine and reasonable fear of reprisals on the part of the soldiers who fired live rounds will have the necessary or likely consequence that those soldiers will be entitled to total or any anonymity." From this date, therefore, if not earlier, it must have been apparent that there could no longer be any reliance upon the impression given last July, since even those who the Tribunal had regarded in December as having the most compelling and substantial grounds for believing themselves at risk (i.e. those who had fired live rounds) were told not to make any such assumption.
10. It was also submitted on behalf of the soldiers that what was described as the criteria laid down last July survived (at least as a legitimate expectation) until the Tribunal issued new criteria, and that since this had not happened, the letter of 22nd March carried the matter no further forward. This cannot be right. The purpose of asking for new submissions and of arranging an oral hearing was to enable all concerned to make full submissions on what the correct criteria should be. In the circumstances it would indeed have been unfair to all if, in advance of those submissions, the Tribunal had in effect decided the very point at issue. As it is the soldiers, and indeed all the interested parties, have been given the opportunity to make new submissions on the matter and to answer those with which they disagree. It is on the basis of those submissions and answers that the Tribunal reconsiders the applications. As the Tribunal stated in the letter of 22nd March in relation to those who fired live rounds, it will consider the position afresh in the light of the decision of the Divisional Court and now, of course, the Court of Appeal and of the submissions and evidence put before it, without any predisposition to reach either the same or a different decision as that which it reached before. As the letter put it, " 'Afresh' means exactly what it says."
11. The Tribunal has as its fundamental objective the finding of the truth about Bloody Sunday. It regards itself as under a duty to carry out its public investigative function in a way that demonstrates to all concerned that it is engaged in a thorough, open and complete search for the truth about Bloody Sunday. It is this duty which, although we believe it was apparent from earlier statements of the Tribunal, was not, in the view of the Divisional Court, made clear in the context of what the Tribunal said about anonymity in the July Statement. All interested parties accept the existence of this duty, which to our minds stems not so much from the fact that Tribunals of the present kind are only established where Parliament considers that there is a matter of "urgent public importance", nor from the fact that section 2 of the Act of 1921 requires us to sit in public (unless the public interest otherwise requires) but rather from the more fundamental principle of open justice in a democratic society.
12. In our view the existence of this duty entails that in the absence of compelling countervailing factors, those who give evidence to the Tribunal should do so under their proper names. This after all is an Inquiry into events in which people lost their lives and were wounded by British army gunfire on the streets of a city in the United Kingdom. To withhold the names of those in the army who were concerned with that event must detract from an open search for the truth about what happened; and must need justification of an overriding kind. It is of course correct to bear in mind (as we said in December) that it is unlikely that the Tribunal would be hampered in its objective of finding the truth about Bloody Sunday by granting anonymity (since the Tribunal is an inquisitorial body and would itself know the identity of the witnesses), but this does not really take the matter much further forward, since what is presently at issue is the question of the duty laid on the Tribunal as to the manner in which it should seek that objective. The Tribunal must conduct what Lord Justice Salmon described in his Report (1966 Cmnd 3121 at paragraph 28) as a "public investigation."
13. We note that in his judgment in the Court of Appeal, Lord Justice Otton suggested that we might reconsider the fairness of imposing the obligation "on those who seek anonymity of any kind to justify their claim," and that it might be fairer "to impose the obligation on those seeking to remove the anonymity (rather than those seeking to sustain it) and to satisfy the tribunal that there is no real or significant risk or some other formula that is less onerous to the soldiers." In this connection we should make clear that we are not making the present ruling on the basis of who has the burden of proof, but rather on the basis of seeking to balance the various relevant factors. However, we are bound to say that in our judgment, it is not open justice that needs to be justified, but rather any departure from open justice. If justice cannot be done if it is open, or if there are other matters that mean that open justice would cause a greater injustice, then of course a departure would be justified, for these would be compelling countervailing factors.
14. We thus turn to consider whether there are any such factors. It is convenient to consider first the question of the anonymity granted to soldiers by Lord Widgery in the course of his Inquiry into Bloody Sunday.
15. As suggested by Lord Justice Otton in the Court of Appeal, the Inquiry has conducted further investigations into the circumstances in which anonymity was granted on that occasion. The results of these investigations have been made known to the interested parties and Counsel to the Tribunal summarised them during the course of the oral hearing. The only record of Lord Widgery's agreement to afford anonymity remains that contained in Paragraph 8 of his report, in which he said: "Since it was obvious that by giving evidence soldiers and police officers might increase the dangers which they, and indeed their families, have to run, I agreed that they should appear before me under pseudonyms. This arrangement did not apply to the senior officers, who are well-known in Northern Ireland." However, according to a statement recently obtained from Lieutenant Colonel Overbury, who describes himself as being at the time the legal officer in the Army's Tribunal team with responsibility for all the legal aspects, including questions concerning the obligations and rights of all the army witnesses, some of the soldiers concerned were suffering a loss of morale under the pressure of public attention and their apprehension about giving evidence and "it was therefore necessary for me constantly to repeat to them all, collectively and individually, my absolute assurances as to the officially promised anonymity and the guarantee of their freedom to speak without risk." The guarantee to which Lieutenant Colonel Overbury refers would appear, from the rest of his statement, to be a reference not so much to the grant of anonymity, as to the fact that the soldiers had been ordered to give evidence so that what they said could not afterwards be used against them in criminal proceedings. Be that as it may, it appears to us that what Lieutenant- Colonel Overbury says is consistent with the sworn testimony of Soldier "H" put before the Divisional Court.
16. On the basis of that testimony, the Divisional Court, whose judgment was upheld by the Court of Appeal, held that the effect of what has become known as "the Widgery assurance" was that "subject to some compelling unforeseen circumstance, so long as there was any danger of reprisals being taken against him or his family because he fired live rounds on Bloody Sunday, no-one in authority would do anything that would enable anyone to attach his name to that of a soldier previously identified only by letter who gave evidence before the Widgery Tribunal in 1972."
17. This part of the judgment is, strictly speaking, only referable to the soldiers who fired on Bloody Sunday, but we agree with those representing the soldiers that its reasoning must also apply to all who obtained the Widgery assurance.
18. Given that this is so, the first question that arises is whether there is some compelling unforeseen circumstance, for if so, the Widgery assurance would fall away.
19. Those acting on behalf of the families of those who died on Bloody Sunday and those that were wounded submitted before us that the present Inquiry is such a circumstance. We agree with that submission. That the present Inquiry could not have been foreseen in 1972 cannot be and has not been denied. We know of no other case where notwithstanding the report of one Inquiry another is instituted by Parliament with substantially the same terms of reference and with the object, as the Prime Minister put it, that "the truth be established and told." It is clear that the present Inquiry has been instituted because the previous Inquiry did not succeed, for whatever reason, in achieving the general objective of inquiries under the 1921 Act. This objective is, as Lord Justice Salmon said in his Report, to restore public confidence where a crisis in that confidence has occurred (see 1966 Cmnd 3121 at paragraph 28). Indeed, there is a substantial body of responsible public opinion to the effect that the Widgery Inquiry, so far from restoring public confidence, compounded the crisis. We consider that our ability to restore confidence will be undermined, unless we can form a wholly independent judgment, based on the facts before us, on the question of anonymity - and indeed on any other questions that we have to consider.
20. Even if we are wrong about the meaning of "some compelling unforeseen circumstance", it is clear from the judgments both of the Divisional Court and of the Court of Appeal, that the present Inquiry is not bound by the Widgery assurance, but must weigh it in the balance when considering the question of anonymity. On this basis, it seems to us that although it is an important consideration, it does not of itself, or together with the other matters relied upon by the soldiers, amount to a compelling countervailing factor that should override our duty as we have stated it. In this context it seems to us we can properly take into account not only the matters discussed in the previous paragraph, but also the fact that the circumstances in which Lord Widgery came to provide the assurance are markedly different from those that exist today. The soldiers were in Northern Ireland. Numbers had been killed. There was a great degree of civil unrest. Revenge was in the air. During the Widgery Inquiry itself there was an attack on the barracks of the Parachute Regiment at Aldershot in which people died, and which was publicly announced by the terrorists as a reprisal for Bloody Sunday. No one could seriously suggest that the present position is in any way comparable. Of course no one knows what the future may hold, and the bad days may return, but whether or not they will is at best a matter of speculation.
21. The basic submission made on behalf of the soldiers is that they do have a genuine and reasonable fear of reprisals were their names to become public and that this is particularly so in the case of those soldiers who fired live rounds on Bloody Sunday. They further submit that the reasonableness of this fear is reinforced by the latest threat assessment obtained from the security services, which is to the effect that since October 1998 (when the previous assessment was supplied) the threat of reprisals in Great Britain has increased from what is described as the "moderate" level to what is described as the "significant" level, within a classification of six levels of threat of which "moderate" and "significant" are respectively the third and fourth.
22. It seems to us that the soldiers have grounds for their assertion that they have genuine and reasonable fears. The question is whether these grounds are of sufficient substance to amount to such a compelling countervailing factor that it would be right for us to depart from our duty as we understand it. In this connection we see great force in the submission made by Lord Gifford QC that we should concentrate upon what we perceive to be the degree of danger if the soldiers' names are revealed. A reasonable fear of reprisals can exist if there is any degree of danger, but the greater the danger the more compelling this factor becomes in the balancing exercise we have to perform.
23. We undoubtedly have a very difficult judgment to make and we have considered with the greatest care that we can muster all the written and oral submissions made to us. On the one side is our duty to carry out a public investigation; on the other the understandable fears for their personal safety and that of their families, which we accept that the soldiers have. In our December ruling we attempted to square the circle by suggesting that those who had the greatest reason to fear reprisals (the soldiers who fired live rounds on Bloody Sunday) could give their surnames only, thus providing both openness and a measure of security, but this attempt has failed on the grounds that the security of surnames only was speculative. No one now suggests that this is an appropriate solution. The conclusion that we have reached is there is in fact no way of satisfactorily reconciling the two considerations; and that the one must give way to the other. After the most anxious consideration we have concluded that on the basis of the material presently before us our duty to carry out a public investigation overrides the concerns of the soldiers and does so even if the Widgery assurance continues to apply; and that accordingly the present applications of the soldiers must fail. However, on the same basis as we set out in our ruling in December, we shall consider further the question of anonymity if it is suggested that that there are special reasons in any particular cases why we should do so. In this connection we are not persuaded by the suggestion that such applications cannot be made without defeating the purpose of making them.
24. We fully appreciate that the removal of anonymity is permanent and that it is possible that in the future the threat to the soldiers may increase, though as we have said, whether this will happen is itself necessarily speculative. We also appreciate that in the context of deciding where the soldiers' evidence will be heard we have postponed any final decision because circumstances might change, but the difference between that case and this application is that (as the Courts accepted) we must deal now with the applications for anonymity, whereas our duty finally to decide where the evidence of the soldiers will be taken still lies in the future and thus can properly be left over for the time being.
25. As we have noted, the latest threat assessment would put the soldiers in the "significant" category, though as the assessment points out, this is an assessment made on a general basis and not by looking at the circumstances of any particular soldier.
26. According to this assessment, the threat in the significant category extends to all serving or former soldiers, who are to be regarded as "priority" targets, though the attractiveness of soldiers as targets within this category is greater in the case of members of the Special Forces and senior officers who served in Northern Ireland. The assessment continues by saying that "in the case of soldiers who had fired live rounds on Bloody Sunday, our assessment is that their actions at that time would make them also stand out from the generality of soldiers and to face a higher likelihood of terrorist attack, if they were identified." Turning to the categories identified by the Inquiry, the assessment lists in order of attractiveness as targets (1) current or former soldiers (2) current or former soldiers from the Parachute Regiment (3) soldiers or ex-soldiers who took part in Bloody Sunday; and (4) soldiers or ex soldiers who fired live rounds on Bloody Sunday.
27. We accept that on the basis of this assessment and the other material provided to us by the Ministry of Defence, identified soldiers are in greater danger than unidentified soldiers, for the obvious reason that if a soldier is unidentified as such there is only, as the assessment puts it, a potential as opposed to an actual threat. However, we do note that all serving or former soldiers fall within the "significant" category, so all are "priority" targets. It seems that it is only those who fired live rounds on Bloody Sunday who stand out, or stand out significantly, from the generality of soldiers. As to this generality, it seems to us that since there must be many soldiers or ex-soldiers whose names have been publicised or whose identities could readily be discovered (for example from regimental or similar magazines such as the one shown to us during the hearing), the danger created by identifying soldiers is one that is borne and has for many years been borne by hundreds, if not thousands, of serving or former soldiers, and is not such as to override our duty to conduct a public investigation.
28. That leaves those who fired live rounds on Bloody Sunday. As to these there is a further consideration, which we pointed out in our December ruling. This is that the conduct of these soldiers lies at the very heart of this Inquiry. It is the firing on the streets that was the immediate cause of loss of life. It is that loss of life that we are publicly investigating. To conceal the identity of those soldiers would, as it seems to us, make particularly significant inroads on the public nature of the Inquiry. As a group they are assessed as more attractive targets than the generality of soldiers and thus face a higher likelihood of terrorist attack if they were identified, but this increased threat is not considered sufficient, at least at present, to move them from the "significant" to a higher category. On the basis of the general assessment, we have concluded that the danger to the soldiers who fired live rounds on Bloody Sunday does not outweigh or qualify our duty to conduct a public open inquiry.
29. There is a further consideration that it seems to us we can properly take into account. Immediately after Bloody Sunday, as we have already noted, a reprisal attack was carried out on the Aldershot Barracks of the Parachute Regiment. After this, and with the possible exception of General Ford, there is (at least on the material before us) no evidence to suggest that over the following 27 years any of the soldiers involved in Bloody Sunday has been the subject of attacks for that reason, though of course large numbers of soldiers (and civilians) have been attacked and killed or injured. The names of a number of soldiers involved in Bloody Sunday are known (though not necessarily any of those who fired live rounds), or could have been identified without undue difficulty from public records, so that on any view the general anonymity of the soldiers does not provide a full explanation for the fact that (with the possible exception noted above) none of them has been the subject of an attack because of involvement in Bloody Sunday. Of course we appreciate that some at least of those whose names are or could be known may have been taking special precautions, but the fact of the matter is that (so far as we are presently aware) the danger they have been under as the result of Bloody Sunday has not resulted in any deaths or injuries.
30. Once again, however, we should make clear, as does the threat assessment, that consideration of individual circumstances may lead to the conclusion that in particular cases the danger is greater, and if that is so then of course we shall reconsider the question in those cases.
31. We have considered whether it would be appropriate to grant anonymity at the present stage, while reserving the right to reconsider the position when we came to make our report. In this connection it is accepted that if we were to conclude that any particular soldier was at fault, that consideration would be a relevant factor to take into account in deciding whether or not to withdraw anonymity from that soldier. We have decided not to take that course, for to do so would in our view derogate for no good or sufficient reason from our duty not only to report what we believe to be the truth, but also to conduct an open and public investigation.
32. A further point was advanced by Sir Allan Green QC, Counsel for Soldier "H". This was based on the fact that at the previous Inquiry the justification given by this soldier for firing a large number of rounds was expressly disbelieved by Lord Widgery and that the account given by this soldier, which in a recent affidavit he has maintained is the truth, has been the subject of extremely unfavourable comment in a number of published works about the Widgery Inquiry. It is suggested that these circumstances make Soldier "H", were his name to be revealed, particularly vulnerable.
33. We are not persuaded by this submission. It seems to us to be speculative, especially in view of the fact that accusations of serious wrongdoing have been made against all or virtually all the soldiers who fired live rounds. On the material presently before us, we would not regard the danger to Soldier "H" as being in a significantly different category from that of the other soldiers who fired live rounds.
34. Finally we should observe that we have borne in mind what in our December ruling we described as the real possibility that, in at least some cases, anonymity would have the effect of encouraging greater candour. In our view, this factor, alone or taken with the others, is not sufficient to override our duty to carry out a public investigation.
35. For these reasons, the renewed applications of the soldiers fail. Those who admit firing live rounds on Bloody Sunday are to be treated in the same way as the other soldiers; but apart from this, the summary of our decisions which appears at the end of our ruling in December stands and is now repeated as part of the present ruling. For the sake of convenience, that summary now reads as follows:
The RUC Application for Anonymity
36. The RUC originally made an application for anonymity for five officers, but at the oral hearing Mr Ritchie, appearing for the Chief Constable, informed us that he was in a position only to make submissions for those described as Officers "A", "B" and "C".
37. The application was that the names of these officers should not be made public and that each should be permitted to give oral evidence, if called upon to do so, screened from the public though not from the Tribunal or the legal representatives of interested parties.
38. Mr Ritchie accepted that the names of these officers were or would inevitably become public knowledge, because of what has already been disclosed during the course of this Inquiry before the RUC intimated that they wished to make an application for anonymity. In his words "it is the putting the face to the name mischief we are trying to avoid." In these circumstances, it seems to us that little purpose would be served by giving these officers pseudonyms, and that the question is whether the limited form of screening requested is justified.
39. We approach the application in the same way as we have approached the application made by the soldiers. The central question therefore is whether there are compelling countervailing factors in these cases sufficient to displace our duty as we have described it.
40. In our judgment those factors exist in these three cases. The security assessment provided to us for the purpose of considering the soldiers' application relates to the situation in Great Britain and deals with the soldiers on a group as opposed to an individual basis, whereas the officers in question are in Northern Ireland and the assessment that we have received from the RUC of the situation there deals with them individually. The effect of that assessment is to our minds that in the view of those responsible for considering the risks in relation to these specific individuals, the life of two of the three officers concerned would, because of the nature of their work, be in special danger were they to be recognised. As to the third officer, he too is regarded as being under a special threat of personal danger were he to give evidence in the view of the public. The evidence is that he has already been specifically targeted by Republican terrorists in the past, and indeed that on one occasion his home was attacked with an explosive device. In those circumstances, and bearing in mind that there has been a recent attack on a Police Station in West Belfast, it seems to us that this officer's genuine and reasonable fears of reprisals were he to be recognised have very considerable substance. In all three cases, therefore, it seems to us that the level of danger is such as to outweigh the need (if any of the officers are required to give oral evidence) for them to be visible to the public and thus justifies the limited degree of screening sought.
41. It remains to say that although the application in respect of the remaining two officers was not advanced at the oral hearing, we would consider it unfair to refuse it for that reason, though if it is to be pursued this must be done without further delay.
Sir Edward Somers
Mr William Hoyt
5 May 1999