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Report No. 198

The NZ Court of Appeal continued:

"This approach is consistent with that adopted by the English Court of Appeal in R v. Lord Saville of Newdigate (1999)(4) All ER 860, which concerned an inquiry of a specially appointed tribunal into the 'Bloody Sunday' shootings in Londonderry, Northern Ireland in 1972. An application to the tribunal by a number of soldiers for anonymity was in question.

Lord Woolf MR, giving the judgment of the Court, said that the issue was not to be determined by the onus of proof and approved the dictum of Lord Diplock in Fernandez v. Government of Singapore 1971(2) All ER 691, a case concerning the return of a fugitive offender. Prejudice involving a risk of inappropriate trial or punishment was there at issue. Lord Diplock said at p. 647:

"My Lord, bearing in mind, the relative gravity of the consequences of the Court's expectation being falsified in one way or in the other, I do not think that the test of applicability of para (c) is that the Court must be satisfied that it is more likely than not that the fugitive will be detained or restricted if he is returned. A lesser degree of likelihood is, in my view, sufficient; and I would not quarrel with the way in which the test was stated by the magistrate or with the alternative way in which it was expressed by the Divisional Court "A reasonable chance", "substantial ground for thinking", "a serious possibility"."

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