Omagh: mixing politics and law
Should we support the Omagh families' civil action against the alleged bombers?
The Real IRA’s bombing of Omagh, Northern Ireland, on 15 August 1998 killed 29 civilians – including 11 children and a woman heavily pregnant with twins.
The bomb was intended to disrupt the peace process, but proved a massive own goal for the terrorists who planted it. Significantly, they have not attempted a similar attack since.
To date, the only person to have been prosecuted for the attack is Colm Murphy, who was tried by Dublin’s Special Criminal Court in the Republic of Ireland in January 2001. Murphy, described as a seasoned terrorist and gun-runner, was convicted of conspiring to cause the bomb at Omagh, which the court said was the worst atrocity in Northern Ireland since the start of the conflict in 1969.
However, nobody has been prosecuted in Northern Ireland. A row erupted in December 2001 between the then chief constable of the Northern Ireland Police Service Sir Ronnie Flanagan and the Police Ombudsman Nuala O’Loan, over her report criticising the authorities’ actions in relation to Omagh (1).
As recently as May 2002, the secretary of state for Northern Ireland John Reid was appealing for witnesses to come forward, saying that the police need information in order to bring a prosecution (2).
So far, those in the know have proved immune to such moral pressure. The grief-stricken Omagh families are understandably frustrated by the authorities’ failure to prosecute, claiming that the British and Irish governments have gone weak on terrorism – and are currently trying to raise enough money to bring a civil action against those alleged to be responsible for the bombing. But it would be pointless – and unjust – for the Northern Ireland authorities to bring a prosecution without proper evidence.
So can people sue those responsible for crimes, whether or not a prosecution has taken place? In principle, there is nothing to stop them seeking redress from the civil courts, but such actions are exceptional. Generally, defendants alleged to have committed serious crimes are not worth suing, and no civil court can put them in jail. The only remedies civil courts can offer are damages, or a declaration that someone’s rights have been infringed.
Civil actions alleging murder are almost unheard of. There was a famous case in England in 1991, when the grandmother of Lynn Siddons, who had been stabbed to death aged 16 in 1978, took her alleged killer Michael Brookes to court. Mr Justice Rougier found Brookes responsible and awarded damages of £10,641. Later, Brookes was successfully prosecuted and convicted for Lynn’s murder (3).
In 1998, the family of Dr Joan Francisco successfully sued her former boyfriend for unlawfully killing Joan. He was convicted of murder in 1999. In the USA, OJ Simpson was acquitted of the murder of his ex-wife Nicole and her partner Ronald Goldman in 1994; but in 1997 another jury awarded $8.5million damages against Simpson, in a wrongful-death civil suit.
Judges hearing civil claims use the civil standard of proof (the balance of probabilities), which is significantly lower than the criminal standard (beyond reasonable doubt). In the rare cases when victims of criminal acts (or their personal representatives) sue in the civil courts, this is seen as an advantage. But if a crime is being alleged, civil courts will insist on very compelling evidence. For practical purposes, this means the judge is likely to use the criminal standard of proof, though she may not say as much.
After considerable pre-publicity, the bereaved families of Omagh have started a landmark civil action against those believed to be responsible for the bombing. If someone is injured and killed by a deliberate assault, the time limit for an action by their estate is six years. By a quirk in the law, their dependants only get three years in which to sue (4). At any rate, the Omagh families’ legal advisers felt obliged to issue writs against various suspects on 10 August 2001, including the Real IRA. Irish litigation takes a more leisurely course than in England or Wales, so the families got 12 months in which to serve the writs. They have spent this time lobbying for money.
Unusual moral pressure is being brought to bear on the public to support the Omagh families’ campaign. It has been portrayed as a battle of good v evil, ‘taking angels into court to face Darth Vader’, as one report put it (5). Such language implies wrongdoing – a matter which remains to be proven in court.
Initially, the Omagh families said they needed to raise £1million (6). Former Northern Ireland secretary Peter Mandelson has spoken out in support of the campaign, and has donated £10,000. The 14 August deadline is fast approaching, when the families must serve the writs or ask the court to extend time for service. A further appeal has been made for funds (7) – and apparently the families now need £2million (8).
Irish racing car driver Eddie Irvine has donated £100,000, describing Omagh as Northern Ireland’s 11 September, and rock band U2 have also made a donation. A number of politicians and former politicians – including David Trimble, Bill Clinton, Ken Livingstone and Iain Duncan Smith – have helped to promote the campaign. But does the campaign stand up to scrutiny? And should we sympathise with litigants who use the media to attack their opponents, instead of getting on with their case?
Mandelson gave a number of reasons for supporting the families’ legal action. Apart from showing ‘solidarity’ with the bereaved, his reasons were political:
‘I also want to see continued public pressure being exerted on the Real IRA so that it feels exposed; so that its political appeal among republicans does not go unchallenged; and because the governments of the United Kingdom, the Republic and America must know that their attempts to combat the Real IRA are widely supported in the community.’ (my italics) (9)
The idea that the public can help defeat terrorism by supporting litigation is novel and has superficial appeal – but it is unconvincing. Civil courts provide a forum for individuals’ claims against other individuals; they cannot take any effective action against terrorism. Terrorists are – by definition – people who operate outside the rule of law.
Mandelson also said that a successful civil suit could lead to the Omagh bombers being prosecuted. Conceivably, the families’ investigations might turn up some evidence which had been overlooked. But rules on evidence are stricter in a criminal court, and if witnesses will not come forward, the problems with mounting a prosecution remain.
Mandelson claims there can be no settled peace without justice (10). But surely nobody believes that the success of Northern Ireland’s peace process will be determined by the vagaries of the legal system? Whatever concerns politicians have about the peace process, the notion that a private lawsuit can put matters to rights is nonsense. The idea that litigation is the panacea for society’s ills is a modern belief that some groups – including some lawyers – have skilfully promoted. But the law is a blunt instrument, and courts are ill-suited to resolving societal or political problems – especially those of Northern Ireland (11). Their function is more limited: to decide disputes according to law.
David Trimble says there can be no ‘closure’ unless justice is done. This idea of litigation as therapy is another modern article of faith. But litigation – which is hugely stressful, time-consuming and distracting – is apt to turn grievance into obsession. Far from providing the cathartic experience that non-lawyers might expect, courts are unforgiving places with little to offer the bereaved. Michael Gallagher, whose son Aidan was killed in the Omagh bombing, says that nearly four years after his son’s death, his seat is still left empty at the dinner table and his bedroom’s contents remain untouched (12). This suggests a family still tragically consumed by grief.
The public have already responded very generously to the Omagh families, particularly in the wake of the bombing. The Omagh Fund was set up, which by 13 May 1999 had paid out £4.1million to the bombing’s victims (13). Yet Sir Bob Geldof says there is a ‘collective sense of shame’ that the Omagh families are still battling for the money for their lawsuit (14). ‘I’m appalled by the lack of outpouring from our two countries, Britain and Ireland.… It is necessary for us all to expunge this badge of shame that we wear, said Geldof (15).
According to a spokesperson for the Omagh Victims Legal Trust, if funds are not raised to enable the action to proceed it will be ‘a bloody awful indictment of the society we live in’ (16). But the Trust already has a litigation fund beyond the dreams of most private litigants – so why doesn’t it get on with the case?
It is unclear whether the Omagh litigation will be successful. But once the writs are served, the Plaintiffs must plead detailed allegations against the defendants ‘on the record’. The families and their lawyers must know by now what they intend to allege. The essence of their case is, presumably, that the defendants murdered or maimed innocent people by detonating a bomb in a crowded place, or that they conspired to do so. Such serious accusations will require detailed particulars – otherwise the case might be thrown out at an early stage.
According to one family member, the families’ aim is ‘to get these people into court to have to answer questions, to say and give explanations for what they did on August 15 1998’. But that depends on the defendants having a case to answer. You don’t start litigation to get people to answer questions; you start it because you have some evidence with which to prove wrongdoing.
The Omagh families cannot expect the other side to make their case for them. They need more than mere suspicion, unsupported assertions, or appeals to public sympathy. They need hard evidence – from witnesses, documentary records, and so on. If it seemed that the case against the defendants was weak, the defendants could choose to say nothing, as in a criminal trial, and simply put the plaintiffs to proof.
Of course, Colm Murphy has already been convicted in the Irish Republic in connection with the Omagh bombing. The Plaintiffs could rely on his conviction and invite the judge to conclude that, since the Special Criminal Court in Dublin found him guilty beyond reasonable doubt, he must be liable on the balance of probabilities. However, the moral case for suing Murphy is not so compelling: he has already been punished for his part in the crime.
Claimants in civil actions who lose their case usually have to pay the other side’s costs. The judge always retains a discretion, but the prevailing philosophy is that bad cases should be discouraged, while successful claimants should not have to pay for having their rights vindicated. Nowadays, some claimants can buy ‘after-the-event’ insurance, to cover their costs liability if they lose. Such insurance is available, when the prospects of success are good, albeit for a hefty premium. Presumably, in such an unusual case as this, no insurer would offer cover. According to the Omagh families’ lawyer Jason McCue, the fundraising is for insurance against the possibility that the families might have to pay the defendants’ lawyers’ costs, if the action fails (17).
The frantic air of the fundraising campaign implies that the action poses risks for the claimants. They face something of a Catch-22. They cannot expect very much support if they are likely to lose, as few people will relish the prospect of their money being used to pay alleged terrorists’ legal costs. And if the prospects of winning are reasonable, why not take their chance in court with the money they have got now?
Ironically, if the families fought the case and lost, they could still argue that penalising them in costs is contrary to the European Convention on Human Rights. Article 2 of the Convention protects the right to life. Clearly this cannot guarantee a prosecution – still less a successful one – in all cases of murder. But by implication, it requires states to ensure that, when people have lost their lives through the use of force, there is some form of effective official investigation (18).
The rules governing inquests in Northern Ireland prevented the coroner who dealt with the Omagh inquest from handing down a verdict of unlawful killing (19) – a procedural defect, which the European Court of Human Rights has found violates Article 2 in several recent cases (20). The Omagh families could say that they were trying to obtain an official verdict of unlawful killing, from a civil court. They might argue that they had no other option, given the defective rules governing inquests in Northern Ireland. This technical argument might persuade the judge at trial not to order costs against them if they lose. And even if they lost that argument, they might then seek compensation from the UK government.
Whatever happens, the Omagh litigation cannot effect change in Northern Ireland. It is up to the elected politicians and the communities they represent to achieve that.
Barbara Hewson is a barrister at Hardwicke Civil
(1) ‘Legal challenge to report on Omagh inquiry is allowed’ Irish Times, 22 March 2002
(2) Northern Ireland Office Online, Press Archives, May 9 2002
(3) ‘Canal Killer loses Appeal’, BBC News, 8 October 1998
(4) Limitation of Actions (Consultation Paper 151), § 3.85, Law Commission of England & Wales; Civil Proceedings (SLS, 1997), B Valentine p52-4
(5) ‘I’ll name Omagh bombers, say top-ranking RUC man’, Tyrone Constitution, 15 March 2001
(6) ‘Another road to justice’, Guardian, 27 February 2001; ‘Mandelson’s £10,000 Omagh gesture’ BBC News UK (Northern Ireland), 19 February 2001
(7) ‘Geldof calls for funds for Omagh civil action’, Irish Times, 21 February 2002
(8) ‘Terror victims appeal for civil suit funds’, CNSNews.com. See also the Omagh Victims’ Legal Trust website
(9) ‘How to help bring the Real IRA bombers to justice’, Daily Telegraph, 15 March 2001
(10) ‘Geldof calls for funds for Omagh civil action’, Irish Times, 21 February 2002
(11) Today it’s just pure naked bigotry, by Brendan O’Neill; A sectarian peace, by Brendan O’Neill
(12) ‘Aiden was our life’, Daily Mail, 7 February 2002
(13) Omagh News, 27 July 1999
(14) ‘Omagh families’ last ditch appeal’, Guardian, 21 February 2002
(15) ‘Omagh families’ last ditch appeal’, Guardian, 21 February 2002; ‘Geldof calls for funds for Omagh civil action’, Irish Times, 21 February 2002
(16) ‘Terror victims appeal for civil suit funds’, CNSNews.com
(17) ‘Terror victims appeal for civil suit funds’, CNSNews.com
(18) Edwards v United Kingdom (App No 46477/99) judgment 14 March 2002; McKerr v UK (2002) 34 EHRR 553, judgment 4 May 2001, §111 – and Jordan v UK, Kelly v UK and Shanaghan v UK, 4 May 2001; McShane v UK judgment 28 May 2002
(19) ‘Real IRA ‘fully to blame’ for Omagh’, BBC News, 3 October 2000
(20) McKerr v UK (2002) 34 EHRR 553, judgment 4 May 2001, §111 – and Jordan v UK, Kelly v UK and Shanaghan v UK, 4 May 2001; McShane v UK judgment 28 May 2002
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