The High Court has ruled that the BBC is not entitled to have a jury determine whether it was in contempt of court when it broadcast, three months before his trial, a Panorama programme which allegedly linked a Co Louth man to the Omagh bomb atrocity.
Colm Murphy has taken proceedings against the BBC arising from the broadcast on October 9th, 2000, and repeated on October 13th, 2000. Murphy's trial on charges arising from the Omagh bombing was then fixed for January 16th, 2001.
In January 2002, Murphy (51), Jordans Corner, Ravensdale, Dundalk, was convicted on a charge of conspiring to cause an explosion after a lengthy trial before the non-jury Special Criminal Court. He was jailed for 14 years. His appeal against conviction and sentence was heard earlier this month, and judgment has been reserved.
In January 2001, Murphy issued proceedings against the BBC arising from the Panorama broadcast. The DPP is a notice party to the action. In his proceedings, he claims the programme sought to and did influence public opinion on his trial; that it proceeded on the assumption of his guilt; and that it influenced potential witnesses and people generally against him.
He is seeking orders for attachment and committal against BBC directors and agents.
As preliminary issues in the proceedings, Mr Justice McKechnie was asked to decide, in the light of the contempt matter having been raised before the Special Criminal Court and that court deciding the High Court was the more appropriate venue for determining the issues, whether the BBC was prevented from arguing that Murphy did not have the necessary legal standing to bring the High Court proceedings.
If the BBC was so precluded, he also had to decide whether Murphy could bring the High Court proceedings. He was further asked to decide whether Murphy was entitled to have the proceedings tried with a jury.
In a judgment which dealt in detail with the law on contempt, Mr Justice McKechnie described the Omagh bombing as an atrocity planned by "utmost evil and wicked minds, executed with profound depravity and perpetrated with inhuman savagery".
It had caused the deaths of 31 people, including unborn twins, and otherwise gravely maimed multiple other innocent people.
The judge held the BBC was not barred from arguing before the High Court whether Murphy had the required legal standing. However, because of the overall position adopted by the BBC before the Special Criminal Court, and particularly as documents indicated the BBC did not raise the point and the issue of standing was debated between Murphy and the DPP, he was firmly of the view that it would be an abuse of the High Court to permit the BBC now to argue that question.
The BBC had with full deliberation accepted at all times the standing of Murphy to bring proceedings in the High Court, he found.
The judge also held that Murphy had the necessary legal standing to bring the High Court proceedings.
On the third issue, he found the BBC was not entitled to have the matter determined by a jury. The law of contempt was not, when dealing with non-minor matters, a criminal offence within the meaning of Article 38.5 of the Constitution, and accordingly a person facing such an allegation was not entitled to a jury trial.
Provided the right to a fair trial was preserved, which, the judge said, was fully achievable even without a jury, then any relevant constitutional provisions and articles of the European Convention on Human Rights would be satisfied.