ANALYSIS:THE VICTIMS and relatives of the Omagh bombing have waited almost 11 years for blame to be laid at the door of those they considered responsible for the atrocity. They succeeded yesterday in a civil case, run on an entirely different basis to a criminal trial.
A criminal trial, prosecuted in the name of the people as a whole, sets out to prove a crime has been committed against the people, not against an individual, through an infringement of the criminal code. The accused is presumed innocent, the sanctions are penal, and guilt must be proved “beyond all reasonable doubt”.
In contrast, this civil case was taken under the law of tort under which a person can sue another for causing them injury. There are no presumptions of guilt or innocence, and for liability to exist, responsibility for the injury is on the “balance of probabilities”. The outcome, if the defendant is liable, normally involves the payment of damages.
A “chain of causation” needs to be established linking the actions of the defendants to the injury suffered by the plaintiffs. This is what lawyers for the Omagh relatives set out to do. By associating the defendants with the Real IRA, the plaintiffs sought to link them directly with the bombing, while also seeking to attribute to them personal responsibility for the deaths and injuries by linking them with placing the bomb.
In his survey of case law in this area, Mr Justice Morgan pointed out that either an intention to cause harm or proceeding in the knowledge that personal injury was the likely consequence of an action, would be sufficient to establish a “trespass” or the intentional infliction of harm. This could be either intentional or the result of negligence.
The tort of “intentional infliction of harm” may also be established where it is obvious that personal injury will result even though the defendant may not actually foresee it, he said.
He then outlined why he considered that the actions of the Real IRA and of four of the five named individuals led to the deaths and injuries in Omagh, even if they did not set out to kill or injure.
Referring to the Real IRA, he pointed out that the time between the issuing of warnings and the explosion of bombs had been reduced following the dismantling of two bombs by the RUC in Lisburn and Armagh earlier in 1998.
This was likely to increase the danger to members of the public, and those who were members of the army council of the Real IRA in August 1998 bear responsibility for directing the Omagh bomb and are therefore liable, he said.
He said that the failure of a party to give evidence in relation to matters which are likely to be “within the knowledge of the silent party” could lead a prima facie case to become “a strong or even an overwhelming case”. None of the defendants gave evidence to counter that given against them.
He examined in detail the evidence linking the five named individuals with the bombing, in particular the movements of mobile phones associated with the warnings in the case against Colm Murphy, and mobile phone evidence, combined with the evidence of David Rupert, an FBI informer who had infiltrated the Real IRA, in the case against Michael McKevitt, Liam Campbell and Séamus Daly.
Though Rupert did not give evidence in this case, the e-mails between him and his handlers were admitted in evidence.
The failure of Michael McKevitt, Liam Campbell, Colm Murphy and Séamus Daly to give evidence was “inexplicable”, he said. The combination of Rupert’s evidence and mobile phone evidence and the absence of contrary evidence, led to an “irresistible inference” that they were liable for the bomb and ensuing injuries.
The evidence against Séamus McKenna was contradictory and confused and he dismissed the case against him.
The relatives said this provided a precedent for similar cases to be taken when criminal prosecutions fail. However, it must be borne in mind that this case cost an estimated €17.8 million to mount.