Re Officer L

The House of Lords delivered judgment today in Re Officer L [2007] UKHL 36. The appeal concerned the controversial issue of the correct approach to requests by witnesses for anonymity. The Robert Hamill Inquiry is one of the "collusion" inquiries established as part of the peace process in Northern Ireland. It intends to call ex-RUC officers to give evidence, and a number of them sought anonymity. The Widgery Soldiers decision in the Court of Appeal (R (A and others) v Lord Saville of Newdigate [2002] 1 WLR 1249) set a test which elided the requirements of the common law and Article 2 ECHR. It also held that the threshold for risk under Article 2 was lower in the case of an Inquiry which enhanced a risk to an individual by calling him as a witness. The Robert Hamill Inquiry declined to apply the Widgery Soldiers criteria, and the officers asserted that the Inquiry had gone wrong in departing from it. The High Court and the Court of Appeal in Belfast agreed with the officers.

The House of Lords held that the Robert Hamill Inquiry asked the correct questions. In respect of Article 2, where the applicants asserted that they were under an existing risk which would be exacerbated by giving evidence openly, that was whether giving evidence would materially increase the risk. In respect of common law the Inquiry properly conducted a balancing exercise between the interests of the witness and the interest of allaying public concern which could be achieved by calling witnesses openly. The Court of Appeal decision in the Widgery Soldiers case could not be supported in its entirety. In particular, the threshold for risk under Article 2 was constant and not variable with the type of act in contemplation; and the factors to be considered under Article 2 and the common law were not identical.

Ashley Underwood QC represented the Robert Hamill Inquiry, and is leading Counsel to it.

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