Lord Saville of Newdigate & Ors v Widgery Soldiers & Ors [2001] EWCA Civ 2048 (19th December, 2001)

Lord Saville of Newdigate & Ors v Widgery Soldiers & Ors [2001] EWCA Civ 2048 (19th December, 2001)

The Tribunal erred in applying too high a threshold of risk under Article 2 ECHR by requiring a 'real and immediate risk' rather than considering whether there was a serious or real possibility of risk to the soldier witnesses. Given the objectively justified fears for their safety and the lower risk if evidence is taken outside Londonderry, there is a compelling reason to change the venue. Procedural fairness and Article 2 require that the soldier witnesses' evidence not be taken in Londonderry.

Citation
[2001] EWCA Civ 2048
Parties
Appellants: Lord Saville of Newdigate and Others; Respondents: Widgery Soldiers and Others; Intervener/support for Respondents: Ministry of Defence; Intervener/support for Appellants: Various bereaved and wounded (represented by Madden & Finucane); Intervener/support for Appellants: Relatives of Bernard McGuigan, Alexander Nash & William Nash, deceased and Daniel Gillespie and Michael Quinn; Intervener/support for Appellants: Relatives of Patrick Doherty deceased; Intervener/support for Appellants: Michael Bradley and Michael Bridge; Intervener: Various former officers of the Northern Ireland Civil Rights Association
Jurisdiction
England and Wales
Procedural Posture
Judicial Review Appeal / Court of Appeal Judgment on Appeal From Administrative Court
Outcome
Appeal dismissed
Legal Topics
Article 2 ECHR (right to Life), Procedural Fairness, Judicial Review, Public Inquiries, Witness Protection, Venue of Hearings
Public Law Human Rights Law Administrative Law Article 2 ECHR (right to Life) Procedural Fairness Judicial Review Public Inquiries Witness Protection +1 more

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Parties

Lord Saville of Newdigate and Others

Appellants

Widgery Soldiers and Others

Respondents

Ministry of Defence

Intervener/support for Respondents

Various bereaved and wounded (represented by Madden & Finucane)

Intervener/support for Appellants

Relatives of Bernard McGuigan, Alexander Nash & William Nash, deceased and Daniel Gillespie and Michael Quinn

Intervener/support for Appellants

Relatives of Patrick Doherty deceased

Intervener/support for Appellants

Michael Bradley and Michael Bridge

Intervener/support for Appellants

Various former officers of the Northern Ireland Civil Rights Association

Intervener

Procedural Posture

Judicial Review Appeal / Court of Appeal Judgment on Appeal From Administrative Court

Legal Issues

  1. 1 Whether requiring soldier witnesses to give evidence in Londonderry infringes their Article 2 ECHR rights due to risk to life from terrorist attack
  2. 2 Whether the Tribunal applied the correct legal test for risk under Article 2
  3. 3 Whether procedural fairness requires a change of venue for soldier witnesses

Ratio Decidendi

The Tribunal erred in applying too high a threshold of risk under Article 2 ECHR by requiring a 'real and immediate risk' rather than considering whether there was a serious or real possibility of risk to the soldier witnesses. Given the objectively justified fears for their safety and the lower risk if evidence is taken outside Londonderry, there is a compelling reason to change the venue. Procedural fairness and Article 2 require that the soldier witnesses' evidence not be taken in Londonderry.

Court Disposition

Appeal dismissed

Orders

  • Tribunal's decision on venue quashed
  • Matter remitted to Tribunal with direction that soldier witnesses' evidence should not be taken in Londonderry