One of the most keenly-awaited judgments from the Northern Ireland High Court, Gallagher’s application  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.
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.
In Northern Ireland, the Troubles are not the only part of its troubled past and present. In March this year, the Stormont administration found itself mired in controversy over women’s reproductive rights and access to abortion services. In April, a fresh controversy arose: a legislative ban on so-called “gay conversion therapy”. On 18 March 2021, Ulster Unionist Party MLAs Doug Beattie and John Stewart tabled a private member’s motion in the Northern Ireland Assembly calling for a legislative ban on the practice. The motion was debated on 20 April, with one amendment ringfencing religious activities from the proposed ban, taking centre-stage.
To characterise the debate which followed as polarising would be to put it mildly. The Assembly Hansard for 20 April records angry, frustrated exchanges between MLAs who called for safeguarding the LGBTQ community from harmful practices (condemned by the UN Human Rights Council as creating “a significant risk of torture”) and MLAs who called for safeguarding the free exercise of religion.
In the event, the DUP amendment failed and the UUP motion was passed unamended by 59 votes to 24, providing Communities Minister Deirdre Hargey MLA with a strong mandate to bring legislation to ban conversion therapy in Northern Ireland. However, that was not the end of the matter. In the immediate aftermath of the Assembly vote, the DUP signalled its intent to block legislation unless “robust protections for churches” were included. Eight days after the vote, the Northern Ireland First Minister and DUP leader Arlene Foster MLA faced significant rebellion in the party against her leadership and announced her intention to resign both the leadership of the DUP and the First Ministership. The extent to which the motion to ban conversion therapy played a part in the rebellion against Foster remains a matter for debate, especially given concerns about the impact of the DUP’s political stance on the very recently enacted access to abortion and same-sex marriage in Northern Ireland.
As many around the world celebrated the International Day against Homophobia, Biphobia and Transphobia on 17 May, the events of the past month were a reminder of how different the story of LGBT equality was in Northern Ireland, compared to Great Britain.
Lawyers working on cases dealing with Northern Ireland’s troubled past know that this field of legal work develops slowly. Sometimes, however, developments occur at an unexpected and unwelcome speed. Such has been the case this week. From the collapse of a controversial trial to the reporting of a legislative “amnesty”, the legacy of the Troubles remains an indelible part of both judicial business and daily life.
The fatal shooting of Joe McCann (The Queen v Soldiers A & C)
Joe McCann had been a member of the Army Council of the Official IRA. In 1972, he was the Officer in Command, First Battalion of the Official IRA and in charge of the Markets area of Belfast. He was suspected to have been involved in the murders of two soldiers and the attempted murders of four police officers (among other serious incidents). In the afternoon of 15 April 1972, he was seen by a Royal Ulster Constabulary (RUC) police officer who alerted a nearby patrol of paratroopers which included soldiers A and C. The police officer tried and failed to arrest Joe McCann, who was running away from him and the paratroopers. The police officer shouted at him to halt but he kept running. There was then sudden gunfire from behind the police officer, where the paratroopers were standing. Joe McCann was struck by two or possibly three bullets and died quickly at the scene. No forensic analysis was undertaken to determine who had fired the fatal shot.
Abortion reform in Northern Ireland has had a fraught history, to say the least. Matters appeared to finally come to a head when in 2019, the UK Parliament enacted the Northern Ireland (Executive Formation etc.) Act 2019 (2019 Act), which created a duty on the Secretary of State to implement abortion reform by following the report of the Committee on the Elimination of Discrimination of Women (CtteEDAW). Nearly two years and two statutory instruments later, Stormont finds itself mired in fresh controversy as long-term abortion facilities in Northern Ireland have yet to be commissioned. So the obvious question arises: what happened?
The route to legal change
At the outset, it should be remembered that when abortion reform was enacted in Great Britain in 1967, it was not extended to Northern Ireland – which was, at that time, the only devolved administration in the UK (with healthcare firmly devolved to Stormont). Nor was abortion reform extended to Northern Ireland when Direct Rule began in 1972. Until 2019, abortions were mostly illegal under sections 58 and 59 of the Offences Against the Person Act 1861 and section 25(1) of the Criminal Justice Act (Northern Ireland) 1945. The only exception to this sweeping regime was the so-called “Bourne exception”, derived from the summing up of evidence in the criminal case off in which Mr Justice Macnaghten had said that an abortion may be lawfully carried out “in good faith for the purpose only of preserving the life of the mother”.
Re B’s application  NIQB 76 was a challenge to a decision to prosecute a soldier for offences going back to 1972. Part of the small but politically divisive cohort of prosecutions arising out of the Troubles in Northern Ireland, Re B provides a classic example of how courts approach the issue of fairness in criminal prosecutions for historic offences.
“B” is a former soldier of the British Army who had been serving in Northern Ireland. On 31 July 1972, the Army launched “Operation Motorman” to clear so-called “no-go” areas in Belfast and Derry, which had become highly problematic and dangerous for security forces at the time.
In the early hours of 31 July 1972, B was part of a company of soldiers deployed in the Creggan Heights area of Derry. He was armed with a 7.62 x 51 mm calibre General Purpose Machine Gun. At around this time, three local people were also in the area: Thomas Hegarty, his brother Christopher Hegarty and their cousin Daniel Hegarty. At some time shortly after 4.15 am, there was a burst of machine gun fire. When it stopped, Daniel Hegarty lay dead on the street, having been shot twice in the head. He was 15 years old. Christopher Hegarty was also wounded in the shooting, but survived.
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