The Omagh ruling is bad for all of us
However outraged you were by the 1998 bombing, you should be worried by this week’s ruling against the ‘bombers’.
This week’s civil court ruling on the Omagh bombing of 1998, which has found four men ‘liable’ for the attack, has been widely welcomed. ‘Civil justice has finally proven that the attacked can hit back against the attackers’, gushed one legal correspondent. A Northern Ireland official says that because it had proven ‘enormously difficult to achieve a criminal conviction’ over Omagh – due to lost documents and contaminated evidence – it has taken a civil case to ‘finally hold someone responsible’ (1).
Those ‘someones’ are Michael McKevitt, Liam Campbell, Colm Murphy and Seamus Daly, alleged members or associates of the Real IRA, the splinter organisation suspected of planting the 500lb bomb in Omagh, Tyrone, in August 1998 which killed 29 people. The men will not be given prison sentences (three of them are in prison anyway for other crimes), but they can now be sued by the families of the Omagh victims for up to £1.6million. As many commentators have pointed out, it is highly unlikely that the Real IRA has that kind of money, or that it will hand it over just because a civil ruling says it should. These facts have not, however, dampened the widespread celebrations of this week’s ‘unprecedented ruling’ (2).
It is indeed unprecedented. Unprecedentedly bad, for justice and for universal law. Whatever you think of the Real IRA, an isolated, collapsing, Baader-Meinhof-style outfit, and however outraged you were by the horrific Omagh bombing 11 years ago, you should still be deeply concerned by the legal events that took place this week. In taking a collapsed criminal case to a civil trial, so that men not convicted in the rigorous atmosphere of a criminal court can later be held liable by the far less rigorous standards of a civil court, the Omagh case further weakens the already-battered ‘double jeopardy’ rule by effectively allowing retrials, without even any new evidence and with a lower standard of proof, and has given rise to yet more official expressions of disdain for that key element of all just criminal trials: that a jury must be certain ‘beyond all reasonable doubt’ that the suspect is guilty, or else set him free and let him alone.
By holding up the Omagh civil ruling as evidence that ‘the attacked can hit back against the attackers’, commentators are overlooking two important things (3). First, this case was not simply brought by ‘the attacked’, the families of Omagh victims who we can all sympathise with and some of whom have indeed devoted their life’s energies to pursuing a civil action; it was also supported by some powerful interests, including Tony Blair and George W Bush, and was part funded by British government officials (4). Second, the four men now found liable for the bombing cannot, in any serious public discussion, be described as ‘the attackers’ of Omagh, since they have never been found guilty, or have been found not guilty on appeal, in the criminal system. Anyone interested in justice should insist that a civil ruling is simply not good enough for the purpose of branding someone a mass murderer.
Two people have been put on criminal trial for the Omagh bombing. Following the arrests of numerous people in 1998 and 1999 by both the Gardai in the Republic of Ireland and the then Royal Ulster Constabulary (RUC) in Northern Ireland, one man, Colm Murphy, was charged with conspiracy in relation to Omagh and was found guilty in Dublin’s Special Criminal Court in January 2002. However, his conviction was quashed by Dublin’s Court of Criminal Appeal in January 2005, on the basis that the Gardai had falsified interview notes and the trial judges had wrongly and unjustly taken into consideration Murphy’s previous conviction, something that is normally, and for good reasons, forbidden in criminal trials. Yet Murphy is now held ‘liable’ for the Omagh bombing.
In late 2006, Murphy’s nephew, Sean Hoey, was put on trial in Belfast Crown Court for 29 counts of murder and for terrorism and explosive charges. He was found not guilty of all charges after police were found to have ‘beefed up’ their statements – ‘they had lied, in plain English’, said a BBC report – and after the Low Copy DNA tests used to link Hoey to the bombing were found to be unreliable (5). Hoey is not one of those named as ‘liable’ in this week’s civil ruling.
There are those of us who might even have questioned the solidity of criminal convictions against Murphy and Hoey if they had been secured, not because we have any sympathy for these probably dubious and unlikeable individuals, but because their cases were heard in juryless courts. The Special Criminal Court that initially found Murphy guilty is simply overseen by three judges appointed by the Irish government, and is used to try terrorist or organised crime cases in which ‘the ordinary courts are inadequate for securing the effective administration of justice’ (6). Hoey was tried under the ‘Diplock system’ at Belfast Crown Court, a juryless trial procedure introduced by the British in 1972 in order to try alleged terrorists more ‘efficiently’ and ‘effectively’.
Yet all criminal trials – and especially the most serious ones, in which an individual might lose his liberty for 30 or 40 years – should be debated and ruled on by a jury, that body of 12 men and women who, because they are not employed by the state, are properly independent, and because they are not involved in the daily application of the law do not have a jaundiced view of humanity. The jury is an oasis of democracy in the criminal justice system, ensuring that one state-paid judge cannot simply send people to prison with a whack of his hammer and ensuring that evidence is discussed rationally and in detail by the suspect’s peers. Also, a jury must be convinced ‘beyond reasonable doubt’ that someone is guilty, before taking the very serious decision to convict him and send him to prison.
It is a shocking indictment of the low standards and weak requirement for evidence in the civil court system that four men who could not even be found guilty of the Omagh bombing in the cynical and corrupt Special Criminal Court in Dublin or in a Diplock court in Northern Ireland have now been found ‘liable’ in a civil case.
The Omagh civil case, thought to be the first time citizens have sued a terrorist outfit, is not only potentially bad for the four men now named as liable for the bombing – it is potentially bad for all of us in the dangerous precedent it sets. It makes a mockery of the ‘double jeopardy’ rule if individuals can publicly be branded as liable for a crime that they have previously been found not guilty of. Under ‘double jeopardy’, individuals could never be tried twice for the same crime. The doctrines of autrefois acquit (formerly acquitted) and autrefois convict (formerly convicted) have been considered ‘essential elements for the protection of the liberty of the subject’ (7). Yet these historic protections have been severely watered down by New Labour, whose Criminal Justice Act 2003 allows retrials for murder, manslaughter, kidnapping, rape and serious drug offences. This empowers the state obsessively and ruthlessly to pursue individuals who have been acquitted by juries, thus demeaning both the rights of the individual and the finality of jury decisions. The Omagh case pushes this process further in a novel and disturbing way, by for example allowing a retrial without new evidence, something that even New Labour’s illiberal new rules on retrials demands.
Also, the Omagh civil case, and the positive response to it, puts the criminal justice system’s ‘beyond reasonable doubt’ requirement in the dock as something problematic and undesirable. In a criminal trial (well, a normal one, held in a normal court), a jury must be convinced ‘beyond reasonable doubt’ that someone is guilty. This and other protections for the suspect were introduced over years of revolution, radical demands and reform because it is widely recognised that there is no equality in a criminal trial. A criminal trial involves the immense forces of the state, with its police, prosecution lawyers, judges and prison system, lined up against one man or a handful of men; and thus the suspect or suspects need certain inalienable, untouchable rights – to remain silent, to be tried by a jury, to know who is charging them, to be imprisoned only if and when all doubt about their guilt has been eliminated by the prosecution – in order to shift the balance and make it somewhat more equal. In short, it has been made difficult for the criminal prosecution to put someone in prison, and must remain so, because the state is powerful and potentially vindictive and the individual is weak and potentially will lose the thing all of us hold most dear: our liberty.
In a civil trial, however, guilt can be decided on the far weaker basis of the ‘balance of probabilities’. That is because the clash in a civil case, unlike in a criminal case, is between two nominally equal forces – normally two individuals who are at loggerheads, or a group of individuals who want to sue an organisation for some reason or other. Over the past 10 years, New Labour officials have seriously discussed introducing the ‘balance of probabilities’ requirement in the criminal justice system, too, and the Omagh case has been welcomed for reminding us how much easier and efficient this weaker requirement makes things. Under the headline ‘A welcome decision on Omagh’, one legal writer said that where ‘beyond reasonable doubt’ had proved impossible in the Omagh case, ‘On the “balance of probabilities” it was a different story’, as Northern Ireland’s chief justice ruled that there was ‘overwhelming evidence’ linking the men to the bombing (8).
Never mind that the evidence was ‘contaminated’; that it had been thrown out in the criminal justice system for being unreliable. Never mind that of the four men now found liable for Omagh, only one had previously been criminally charged and had later had his conviction quashed on appeal. Never mind that a civil court case only ever finds that someone is ‘more likely than not’ to be liable, rather than that they are guilty beyond a shadow of a flicker of a doubt. The Omagh case and the positive response to it pushes us further down the road towards overriding juries, watering down requirements before convicting someone of a crime, and trying people for the same crime twice in various different courts – all of which are leaps backward in the legal system that could impact, not just on those four men and not just on all suspects’ legal rights when they are in court, but also on our democratic rights more broadly and on the relationship between the state and the individual. The case could also convince victims of other tragedies to demand government cash in order to pursue, in the lesser courts, those whom they believe to be responsible for the tragedy.
It doesn’t matter what you think of McKevitt, Campbell, Murphy and Daly; it doesn’t even matter if you think, in the back of your mind, that they were involved in the Omagh bombing. What matters is that on the back of finding four unpopular men liable for a heinous crime, justice itself has been attacked.
Brendan O’Neill is editor of spiked. Visit his website here. His satire on the green movement – Can I Recycle My Granny and 39 Other Eco-Dilemmas – is published by Hodder & Stoughton. (Buy this book from Amazon(UK).)
In 2003, Mick Hume asked if justice could be bought for the victims of the Omagh bombing. Elsewhere, Brendan O’Neill argued that the attacks in March this year were the work of the Zombie IRA and described Northern Ireland’s politics of self-esteem. Kevin Rooney outlined the IRA’s shift from insurgency to identity and railed against the way politics is being written out of the history of the conflict. Chris Gilligan revealed the impact of therapy culture on Northern Ireland’s police. Or read more at spiked issue Ireland.
(1) Omagh ruling ‘tribute to courage’, BBC News, 9 June 2009
(2) Omagh civil case ‘unprecedented’, BBC News, 7 April 2009
(3) A welcome decision on Omagh, Comment Is Free, 9 June 2009
(4) After the Omagh verdict, The First Post, 9 June 2009
(5) How the Omagh case unravelled, BBC News, 20 December 2007
(6) About the courts, Irish Courts Service
(7) See The fight for individual liberty starts here, by Brendan O’Neill
(8) A welcome decision on Omagh, Comment Is Free, 9 June 2009
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