Up to 400 former soldiers called to give evidence to the Bloody Sunday tribunal yesterday won their legal battle not to testify in Derry because they feared attack by dissident republicans.
The soldiers are now likely to give evidence via video-link in London or a venue outside Northern Ireland, following a judgment in the High Court that the tribunal had reached an "erroneous" conclusion when it ruled the soldiers had no reasonable fears for their safety and should testify in Derry.
The High Court decision will be challenged, however, as the tribunal and some of the families of the 14 men killed on Bloody Sunday have been granted leave to test the ruling in the Court of Appeal on the grounds that the tribunal is concerned with matters of public interest.
The High Court overturned a ruling in August by Lord Saville of Newdigate, chairman of the tribunal, that it was vital for public confidence that the soldiers, who have been granted anonymity, should give their evidence in Derry. Lord Saville said he was persuaded in light of protection offered by the security services that the soldiers would not be put at risk if they appeared in person.
Lawyers for 36 representative soldiers, who sought judicial review of the tribunal's decision in the High Court, had argued the tribunal misdirected itself in law and applied the wrong legal test when assessing the risk to them, wrongly concluding they had no reasonable fears for their safety.
In addition, the soldiers had insisted the tribunal's approach to deciding the venue was flawed in considering public confidence would be assured only if they gave evidence in Derry.
Lord Justice Rose and Mr Justice Sullivan said the tribunal was wrong to conclude that the soldiers' fears were not reasonable and they must reconsider the issue of venue from the point of view that their fears were "properly characterised" as reasonable.
Referring to the legal test for assessing the threshold of risk, the judges ruled that instead of asking whether there was a "real possibility" of risk, the tribunal had wrongly asked whether the soldiers' fears were reasonable and wrongly concluded they were not.
"This misdirection fundamentally flaws the tribunal's decision," the judges said. "Whether their decision would have been the same or different if the correct test had been applied is a matter for the tribunal rather than this court to determine."
Pointing to recent dissident republican incidents, the judges said: "The security agencies will of course do their best to ensure an adequate level of protection, but it does not follow that the people to be protected do not have reasonable fears for their safety notwithstanding the existence of that protection."
The tribunal's emphasis on the "quiet and calm manner" of the Guildhall in Derry, the judges concluded, "ignores the impact on middle-aged witnesses, many of whom have been civilians for many years, of the extensive security measures required in relation to accommodation, transport and close protection".
The judges also ruled the tribunal's contention that the Guildhall was not particularly intimidating or hostile "ignores both the security precautions in relation to soldier witnesses before reaching the Guildhall and after leaving it".
The "primary purpose" of the tribunal was to "find the truth" and it was vital that it should command public confidence, but the judges concluded the tribunal did not appear to have taken into account all areas of public confidence.
"The confidence of the families in the tribunal's findings is obviously of great importance. So too, as it seems to us, is the confidence of the soldier witnesses, some of whom are accused of murder. Equally, although the confidence of the people of Northern Ireland is of high importance, so too is the confidence of people in other parts of the United Kingdom."
The High Court also rejected the tribunal's conclusion that holding a vital part of the inquiry at another venue would breach the families' right to a fair hearing, insisting if it sat in Britain, the proceedings would be "equally independent . . . transparent and open to public scrutiny".
The Shadow Northern Ireland secretary, Mr Quentin Davies, described the ruling as a victory for common sense, saying the tribunal's attempt to compel the soldiers to travel to Derry "could have placed many of them and their families in great danger".