The controversy over Bloody Sunday was heightened yesterday after the High Court in London overturned the Bloody Sunday Tribunal's decision not to grant automatic anonymity to 17 members of the Parachute Regiment who fired live rounds in Derry in January 1972. The ruling also applies to other soldiers who fired live rounds.
Fourteen people died on Bloody Sunday after they were shot by soldiers following a civil rights march.
In a judgment that took 2 1/2 hours to deliver and by a majority of two to one, the High Court ruled that Lord Saville's tribunal had reached a "flawed" decision in May when it failed to give precedence to the fundamental human rights of the soldiers. The soldiers had submitted that they and their families would become the target of paramilitary reprisal if their identities were made public when the tribunal convenes in Derry in September.
The High Court directed the tribunal to reconsider its decision and reach a fresh conclusion "in accordance with the findings of the court". The court granted leave for the tribunal to challenge its decision in the Court of Appeal, but subject to that challenge and review, the soldiers will retain their anonymity. After the ruling, a spokesman for the tribunal said: "We have sought leave to appeal and we will now consider the ramifications of the court's ruling."
It is the second time the tribunal has been overruled by the High Court on the question of anonymity. Relatives of those killed bitterly criticised the decision. The Conservative Party urged the Prime Minister, Mr Tony Blair, to issue new terms of reference for the tribunal to "avoid any further uncertainty".
Granting the soldiers a judicial review, Lord Justice Roch, sitting with Mr Justice Kay and Mr Justice Hooper, concluded that when the tribunal denied them anonymity it departed from the test the tribunal put forward in July 1998 whereby only the surnames of soldiers who admitted firing live rounds would be made public. In doing so, Lord Justice Roch ruled, the tribunal "did not accord to the applicants' fundamental human rights the required weight. It was the consideration of carrying out of a public investigation to which the tribunal accorded precedence by requiring the departure from public and open justice which the applicants sought to be justified . . ."
Rejecting the majority decision, Mr Justice Hooper concluded: "I, for my part, sitting here in London, would be most reluctant to interfere with the conclusions of such a distinguished and international tribunal investigating for the second time the death of citizens of this country, many of whom, if not all, appear to have been unarmed."
The court was told that following its decision in July 1998 the tribunal had created the impression that military witnesses with a "genuine and reasonable fear" of reprisal would not have their names disclosed and that test, in Lord Justice Roch's opinion, was "the correct test".
The tribunal had, therefore, performed an "apparently irrational" change in its consideration of anonymity when in May it recorded that there was no satisfactory way of reconciling the danger perceived by the soldiers and public investigation of the events, save that one had to give way to the other.
Denying automatic anonymity, the tribunal had noted that the conduct of soldiers who fired live rounds on Bloody Sunday "lies at the very heart of the inquiry". It concluded that "to conceal the identity of the soldiers would make particularly significant inroads on the public nature of the inquiry . . . 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." But Lord Justice Roch, supported by Mr Justice Kay, insisted the law gave precedence to the consideration of the risk to or interference with human rights. In his judgment, Mr Justice Kay concluded that the tribunal's decision that open justice and the fragility of public confidence outweighed the soldiers' human rights was "unreasonable and incapable of justification".
Criticising the tribunal's submission to the judicial review, Lord Justice Roch said the tribunal had not rejected the assessment that the threat to the fundamental human rights of the 17 soldiers and their families was "slight". In addition, the tribunal did not depart from a security service assessment that the threat posed was "significant", though not sufficient to move the soldiers into a "high" category of threat.
The tribunal had also failed to analyse the extent to which granting anonymity, subject to review as the tribunal progressed, would detract from its obligation to conduct an investigation which would be considered by responsible people to be "open and thorough and lead to findings as to the events of that tragic day which could be accepted by such people as accurate".