Omagh revisited

19 October 2021 by anuragdeb

One of the most keenly-awaited judgments from the Northern Ireland High Court, Gallagher’s application [2021] NIQB 85 is a roughly-300-paragraph deep-dive into some of the abiding legal controversies surrounding the Omagh bombing of 15 August 1998. The bombing, for which the Real Irish Republican Army (RIRA) later claimed responsibility, killed 29 men, women and children and 2 unborn children and injured many others. It continues to reverberate down the years as the deadliest single incident in the history of the Troubles in Northern Ireland.

Gallagher is a paradigm example of Convention rights at play. As such, it provides food for thought when considered against the scrutiny of both the Human Rights Act 1998 and Legacy litigation. This post sets out some of the main facts before analysing the main Convention-related arguments and the Court’s treatment of them.

The facts

First, this case did not determine who was to blame for the bombing. The issue was a challenge to a 2013 decision, by then Northern Ireland Secretary, Theresa Villiers MP, not to order an inquiry into the Omagh bombing. This was important was because of the series of investigations that had preceded the 2013 decision – and failed to answer lingering questions.

Police investigations in both Northern Ireland and the Republic of Ireland turned up little. Prosecutions did not result in successful convictions. A subsequent civil claim for damages against five individuals and the RIRA resulted in an award of £1.6 million to 12 relatives of the Omagh bombing victims. This was appealed and a partial retrial ordered by the Northern Ireland Court of Appeal. The retrial came to the same conclusion as the original trial, and was upheld on appeal. A petition to the European Court of Human Rights in respect of this judgment was dismissed by that court in 2016.

A 2001 investigation by the Police Ombudsman for Northern Ireland found a series of failures on the part of the original police investigation, recommending (among other things) that an independent police team investigate the bombing. That recommendation led to the appointment of (then) Merseyside Deputy Chief Constable Mike Tonge to assess whether policing arrangements were fit for satisfactorily concluding the investigation into the bombings. He concluded in 2003 that they were. A review in 2008 by then Intelligence Services Commissioner Sir Peter Gibson examined intercepted intelligence relating to the bombings in greater detail, concluding that the bombings could not have been prevented. This conclusion was disputed in evidence to the Northern Ireland Affairs Committee in Parliament in 2009.

The above facts illustrate an important point. Liability for the Omagh bombing has been determined, but only in a narrow sense, being the people who carried out the atrocity, on a balance of probabilities (in the civil claim). Liability in the wider sense, giving rise to such questions as preventability, has never been examined to conclusion. This is what concerned the High Court in Gallagher.

The arguments

Mr Justice Horner in Gallagher had to deal with three main questions: jurisdiction, the nature of the relevant right and the scope of any breach of that right.

The sole right under the European Convention on Human Rights (ECHR) with which the Court was concerned was Article 2: the protection of life. In a long line of cases at the European Court of Human Rights at Strasbourg, starting with the case of Šilih v Slovenia, Article 2 is said to encompass two elements detachable from each other: the first, a negative duty not to take life and the second, a positive obligation to investigate deaths in suspicious circumstances. The detachability of these two elements is important because the State does not have an obligation only to investigate deaths that it caused or permitted. Thus, even though responsibility for the Omagh bombing lies with the RIRA, Article 2 ECHR provides for the possibility that the UK nevertheless has a responsibility to investigate the circumstances of the bombing.

When looking at the investigative duty in this case, however, an important preliminary issue arises. The Omagh bombing occurred in August 1998, over two years before the Human Rights Act 1998 (HRA) came into force. It is the HRA that gives effect to the ECHR in domestic law, so that its rights can be enforced in domestic UK courts. Thus, it is a live question whether the UK, as a matter of domestic law, is caught by the Article 2 investigate duty for something that happened before that duty was available to be enforced in domestic law. It is important to remember that this is only an issue in domestic law — before the Strasbourg Court, as a matter of international law, the UK could not use the date of the Omagh bombing as a means of arguing that it is not under an investigative duty in relation to it. This is because the UK is bound, under international law, by the terms of the ECHR from when it ratified the treaty in 1951. The domestic law question thus is a question of jurisdiction: do UK courts have the ability to enforce ECHR rights in respect of pre-HRA matters?

Typically, UK courts follow the Strasbourg Court in answering this question. So for example, McCaughey and Finucane both concerned deaths which were pre-HRA. Nevertheless, the Supreme Court held that the investigative duty was engaged, because the Strasbourg Court had (in cases such as Janowiec) provided for ways in which pre-ECHR events could also be examined through the lens of the ECHR. In Gallagher, therefore, Horner J was easily able to find the jurisdiction to decide the case; the more so because many of the investigative steps which were said to have been inadequate occurred after the HRA came into force [155].

With the jurisdiction question thus resolved, the next question was the precise nature of the ECHR duty. Of course, no one was suggesting that the State carried out the bombing. The question was one of preventability. The relevant Strasbourg case-law (Osman) uses the language of a “real and immediate risk” to life. This phrase was clarified in cases such as Officer L as: “a real risk is one that is objectively verified and an immediate risk is one that is present and continuing”. The Secretary of State in Gallagher argued that the Osman duty should be narrow, even arguing at one point that only warnings which specifically mentioned Omagh could satisfy the Osman duty [180]. Horner J was, however, unpersuaded, pointedly observing:

There is a plausible case on the […] evidence that the authorities knew the identities of many of those committed to and involved in this violent insurrection against the Northern Ireland state and arguably could have done more to disrupt their activities. [184].

This is an important point which distinguishes Gallagher from many other cases in which the Article 2 investigative duty is invoked in the context of the Troubles. Typical of such cases is Finucane, which concerned the brutal murder of a prominent solicitor in Northern Ireland, in his home and in front of his family. In Finucane, the question was whether there existed any new plausible or credible information with the potential to undermine earlier investigative conclusions, so that the Article 2 investigative duty could be revived (Finucane, [117]). This is a classic restatement of a test first laid out by the Strasbourg Court in Brecknell, another Article 2 case relating to the Troubles. In Gallagher, by contrast, the Court was not faced with a Brecknell-style revival point, but rather the conclusion that the State had arguably failed to discharge its substantive Article 2 duty — that of protecting life itself. In these circumstances, an investigation into such an arguable failure was an irresistible requirement.

Finally, the Court detailed the reasons why preventability was an issue in this case, with reference to 10 grounds which were put forward by the applicant, of which 4 were persuasive and the rest, dismissed. Two main issues around which the Court was persuaded were the alleged presence of an informer in the RIRA and the risks that a “proactive security response” to deal with dissidents would “irreparably damage” the (then) nascent peace process.

The Court thus found that there had been a breach of the Article 2 investigative duty, the remedy for which is to have an investigation which complies with Article 2. At this point, Horner J restated the requirements of an Article 2 compliant investigation. Some of these requirements, being public scrutiny and involvement of the families of the Omagh victims, were used to criticise earlier investigations which did not meet these requirements.

Now, at this juncture, the courts usually stop at restating the requirements of Article 2 and grant a declaration that these requirements have yet to be satisfied. Finucane, Dalton and McQuillan all all recent examples of this. The reason for not going further and actually ordering an inquiry is that an inquiry is not the only vehicle by which an investigation can be carried out. Moreover, the logistics and resourcing of any investigation is self-evidently not a matter for the courts, but other State elements, notably the government. Gallagher stands out in this regard. While Horner J stopped short of ordering a public inquiry, the Judge laid down requirements which would be best fulfilled by an inquiry. Notably, the Judge stated that any investigation ought to be capable of hearing both publicly disclosable (OPEN) and sensitive (CLOSED) evidence and, unusually, expressed a “desire” that a simultaneous Article 2 compliant investigation occur in the Republic of Ireland. Of course, while the Court has no jurisdiction in relation to the Republic of Ireland, this is perhaps the furthest any UK court has gone into prescribing the investigative vehicle by which Article 2 can be satisfied, at least in the context of the Troubles.

Implications

Gallagher is dense and detailed. It serves as a painful reminder of the fragility of the Northern Ireland peace process: a shocking and atrocious act, less than six months after the Belfast (or Good Friday) Agreement was overwhelmingly approved by the public across Ireland.

However, Gallagher also serves as an important reminder of two other points. First, the continued importance of the HRA. In the continuing discourse on the impact of and reform to the HRA, it is important to remember that the incorporation of ECHR rights into Northern Ireland’s law continues to be a requirement of the Belfast (Good Friday) Agreement. The HRA is the vehicle of ECHR incorporation. In Northern Ireland, the statute is not simply a public good, but fundamental to the peace process.

Second, Gallagher serves to highlight the challenges in Legacy litigation. The “evidence” to which Horner J refers in the previous section was partly what sets Gallagher apart from many other judicial review cases involving the ECHR. It is important to remember that the decision under challenge was made in 2013 — and that the judgment was handed down nearly 8 years later. The reason for this was because Gallagher involved the examination of voluminous evidence — not just the evidence that the Court could hear in public, but also the evidence that the Court could only hear in private. Horner J’s judgment refers, at multiple points, to OPEN (public) and CLOSED (private) evidence, including the CLOSED judgment which was handed down in parallel to the OPEN judgment in Gallagher. This CLOSED judgment cannot be made public, and any references to it or its contents in the OPEN judgment are carefully made so as not to disclose what cannot be disclosed in public. The use of this CLOSED procedure, brought into existence for civil proceedings generally in 2013, has become an increasingly normalised part of Legacy litigation in Northern Ireland. Gallagher illustrates the bittersweet way that this procedure operates. On the one hand, Horner J was able to consider a wealth of material which will never be made public, including full intelligence reviews ([109] and [113]). On the other hand, it took almost a decade to hand down judgment in this case.

This is an important point worth exploring in the context of the UK Government’s proposals in relation to Legacy cases, which represent the widest and most drastic proposals ever made. In Gallagher, the long years it took for the Court to hear the totality of the evidence (including sensitive evidence) shone an important new light on one of the worst terrorist attacks in Northern Ireland’s history. The Government’s proposals risk firmly and permanently shutting the door on these cases, with delay being cited as a significant reason. However, as Gallagher shows, the wheels of justice may turn slowly, but they grind exceedingly fine.

Anurag is a PhD researcher and aspiring barrister based in Belfast. He tweets @governmentalite