Unconvincing Omagh Judgment

national | crime and justice | opinion/analysis Wednesday June 24, 2009 00:44 by I. Greene

On 8 June 2009 Mr Justice (Sir) Declan Morgan delivered the judgment in the marathon Omagh civil case. The judgment delivery ended the year long hearing leaving more questions unanswered than answered with its content less than convincing. The burden of proof in civil cases is based on the laws of probability and in this case Mr. Justice Morgan stretched the probability rule well outside the boundaries. The judgment in its entirety contained multiple ambiguities and inevitably the defendants will appeal. One can only assume that Mr Morgan is a highly intelligent man by the very fact that he has recently been elevated to the office of Lord Chief Justice, however this particular judgment may come back to haunt him.

On 8 June 2009 Mr Justice (Sir) Declan Morgan delivered the judgment in the marathon Omagh civil case. The judgment delivery ended the year long hearing leaving more questions unanswered than answered with its content less than convincing. The burden of proof in civil cases is based on the laws of probability and in this case Mr. Justice Morgan stretched the probability rule well outside the boundaries. The judgment in its entirety contained multiple ambiguities and inevitably the defendants will appeal. One can only assume that Mr Morgan is a highly intelligent man by the very fact that he has recently been elevated to the office of Lord Chief Justice, however this particular judgment may come back to haunt him.
The only thing that was achieved after the year long hearing was a superficial exercise identifying four individuals said to be responsible for the atrocity. By legal standards the judgment findings is certainly not convincing according to experts who had been monitoring the year long case. It is difficult to ascertain if the four individuals or at least some of them could have been responsible in some way. However, the evidence presented in the civil case even using the lower standard of probability (51%) was weak and unconvincing against the men.
Michael McKevitt, Colm Murphy, Seamus Daly and Liam Campbell are all accused of being someway involved in the attack either directly or indirectly according to Morgan’s judgment. Over the past 10 years the same individuals had already been tried and found guilty by the media without due process. As a result, the civil hearing could never have returned anything even resembling a fair hearing. In reality nothing was achieved apart perhaps from a false delusion of satisfaction of identifying the four individuals as the perpetrators. The Omagh civil case against the men was designed to find them responsible regardless.
Evidently the most important questions from the Omagh atrocity still remain unanswered. Some aspects of the unanswered questions were alluded to by Mr. Michael Gallagher during a press conference at the end of the civil case. During the conference Mr Gallagher called on both governments to have a public inquiry to get to the truth behind the bomb attack. By making such a direct statement one can only assume that Gallagher firmly believes that both Governments are in possession of information of an evidential nature not previously disclosed. Why is Mr Gallagher so convinced that there is still relevant information being withheld, what does he know? If Gallagher is in possession of any information why didn’t he make it available to the civil court? Maybe it is now time for him to come clean himself, publicly spell out what questions remain unanswered and what evidence does he believe is being withheld.
Michael Gallagher has a duty and a responsibility to reveal everything he knows about the bombing. Were the perpetrators used as pawns by other sinister forces? Does he believe that the bombing and the loss of life could have been prevented? Was there prior knowledge of an imminent attack on the town? Many outstanding questions should have been brought to the attention of the court and perhaps could have been addressed during the hearing, but they weren’t. It appears as though Mr Gallagher preferred to withhold what he knows. Possibly the real agenda was more sinister and prevented major questions being highlighted and brought into the public arena.
Mr Justice Morgan was also selective in how he addressed the case and the evidence he allowed to evolve. Disturbing aspects of the civil case which weren’t addressed by Mr Justice Morgan are as follows:
• State witnesses including the police (RUC) refused to participate or cooperate in the case.
• The senior police officer who led the Omagh investigation was accused of stealing police files relating to the bomb investigation, bizarrely this was not queried by the judge.
• The British Security Services personnel including MI5 operatives refused to cooperate and withheld relevant information on the bombing, this was not addressed either.
• David Rupert a paid MI5 informant refused to appear in court or give evidence by video-link in fear of cross-examination. However, his evidence from a different trial was accepted without the opportunity of cross-examination by the defence. In the judgement Morgan conceded that Rupert was financially motivated and was dishonest with his evidence to the Dublin court. It was also accepted that the civil court didn’t have an opportunity to examine Rupert’s demeanour which is a major issue of influence in accepting evidence from such a witness, particularly a prosecution witness motivated solely by financial gain. Yet Rupert’s evidence from a previous trial in 2003 was accepted without being examined despite Morgan’s reservations of his evidence from the previous trial.
• MI5 agent David Rupert’s admission of his participation in an earlier attempt to bomb Omagh weeks before the actual atrocity took place was not addressed.
Before the civil case got under way both MI5 and the PSNI made it clear that they would not participate in the hearing. It is difficult to understand why there was such reluctance by those bodies to face cross-examination. Included in any normal court of law, we have a defence a cross-examination of witnesses however; the Omagh civil case denied McKevitt’s defence team such an opportunity.
The cut and thrust of the civil case had been misdirected from the outset and it’s evident that important questions still remain unanswered. Many observers always felt that the civil case was a deflection to redirect the blame away from the state forces involvement in the bombing and the subsequent mishandling of the investigation after the bombing. The withholding of information by MI5 of an imminent attack on the town was never resolved. The missing police files into the investigation have never been recovered or any explanation forthcoming. The endless list of contentious issues surrounding the Omagh investigation was not resolved by the civil case and it was a lost opportunity because the agenda was controlled and directed by those who feared exposure themselves.
According to a source close to Michael McKevitt he consulted with his legal team immediately after the judgment was delivered. The initial observation by McKevitt’s legal team was disbelief and all agreed that the judge erred in law. However, it is believed that McKevitt was elated to find where Mr. Justice Morgan conceded that the MI5 agent David Rupert was financially motivated and had lied to the Dublin Special Criminal Court during the original trial. Despite this, Rupert’s evidence to the Dublin court was the main support used in the civil case against McKevitt.
Before the civil case got under way Rupert agreed to give direct evidence but was not prepared to face cross-examination. However, after he discovered that McKevitt was granted legal aid and had assembled a top legal team he withdrew his cooperation altogether. Subsequently McKevitt’s defence team requested for Rupert to give evidence to the Belfast court by video-link from the US, apparently this was also rejected by Rupert citing health grounds as his reason. It was obvious he wasn’t confident of participating under any circumstances. His MI5 and FBI handlers felt that his creditability would have been shredded if he had agreed to cross-examination. The British authorities were fearful that it may have resulted in McKevitt’s earlier conviction being overturned.
The defence team presented witness evidence to the court of Rupert conducting business deals freely in his home town without any security restrictions or any sign of obvious illness. Justice Morgan did not address this.
From the outset of the Omagh civil case McKevitt’s involvement was inundated with contentious issues. The Belfast High Court under Mr Justice Morgan had consistently denied him legal aid to defend himself even though no creditable evidence had been produced. The continued denial of legal aid was clearly an attempt by the British authorities to prosecute using a lower standard of proof (on balance of probabilities) than would be necessary in criminal proceedings (beyond reasonable doubt). While on the other hand the other defendants in the case were granted legal aid from the outset. The British authorities singled out McKevitt and consistently attempted to ensure that he would not be legally represented. This was a clear attempt to secure a favourable verdict against him by stealth. However, McKevitt continually confronted the British legal authorities and in 2005 he succeeded in a case against the attorney general Lord Falconer after the High Court in Belfast found that Falconer’s decision to fund the Omagh families had been unlawful. The landmark decision to fund the Omagh families had been unlawful. The landmark decision forced the British to change the law to fund the families. McKevitt’s continuous pressure and persistence eventually paid off when in 2008 as the hearing was about to get under way he was granted “limited” legal aid. However, the lateness robbed him of the opportunity to investigate matters relating to the case. It also denied him the opportunity to make adequate preparations for a proper defence.

The financing of the plaintiffs’ case by the British authorities ensured that they controlled and directed everything in the case. As far as they were concerned it was never designed to achieve anything other than a cover-up and a deflection. Although that objective was accomplished the full picture of what happened in Omagh was not. Did the families get the closure that they longed for? No, Mr Justice Morgan’s judgment certainly didn’t provide them with the complete closure.
End.