[A-List] The Omagh civil court ruling is bad for all of us

[james daly]

Wednesday 10 June 2009
The Omagh ruling is bad for all of us
However outraged you were by the 1998 bombing, you should be worried by this 
week's ruling against the 'bombers'.
Brendan O'Neill


This week's civil court ruling on the Omagh bombing of 1998, which has found 
four men 'liable' for the attack, has been widely welcomed. 'Civil justice 
has finally proven that the attacked can hit back against the attackers', 
gushed one legal correspondent. A Northern Ireland official says that 
because it had proven 'enormously difficult to achieve a criminal conviction' 
over Omagh - due to lost documents and contaminated evidence - it has taken 
a civil case to 'finally hold someone responsible' (1).
Those 'someones' are Michael McKevitt, Liam Campbell, Colm Murphy and Seamus 
Daly, alleged members or associates of the Real IRA, the splinter 
organisation suspected of planting the 500lb bomb in Omagh, Tyrone, in 
August 1998 which killed 29 people. The men will not be given prison 
sentences (three of them are in prison anyway for other crimes), but they 
can now be sued by the families of the Omagh victims for up to £1.6million. 
As many commentators have pointed out, it is highly unlikely that the Real 
IRA has that kind of money, or that it will hand it over just because a 
civil ruling says it should. These facts have not, however, dampened the 
widespread celebrations of this week's 'unprecedented ruling' (2).
It is indeed unprecedented. Unprecedentedly bad, for justice and for 
universal law. Whatever you think of the Real IRA, an isolated, collapsing, 
Baader-Meinhof-style outfit, and however outraged you were by the horrific 
Omagh bombing 11 years ago, you should still be deeply concerned by the 
legal events that took place this week. In taking a collapsed criminal case 
to a civil trial, so that men not convicted in the rigorous atmosphere of a 
criminal court can later be held liable by the far less rigorous standards 
of a civil court, the Omagh case further weakens the already-battered 
'double jeopardy' rule by effectively allowing retrials, without even any 
new evidence and with a lower standard of proof, and has given rise to yet 
more official expressions of disdain for that key element of all just 
criminal trials: that a jury must be certain 'beyond all reasonable doubt' 
that the suspect is guilty, or else set him free and let him alone.
By holding up the Omagh civil ruling as evidence that 'the attacked can hit 
back against the attackers', commentators are overlooking two important 
things (3). First, this case was not simply brought by 'the attacked', the 
families of Omagh victims who we can all sympathise with and some of whom 
have indeed devoted their life's energies to pursuing a civil action; it was 
also supported by some powerful interests, including Tony Blair and George W 
Bush, and was part funded by British government officials (4). Second, the 
four men now found liable for the bombing cannot, in any serious public 
discussion, be described as 'the attackers' of Omagh, since they have never 
been found guilty, or have been found not guilty on appeal, in the criminal 
system. Anyone interested in justice should insist that a civil ruling is 
simply not good enough for the purpose of branding someone a mass murderer.
Two people have been put on criminal trial for the Omagh bombing. Following 
the arrests of numerous people in 1998 and 1999 by both the Gardai in the 
Republic of Ireland and the then Royal Ulster Constabulary (RUC) in Northern 
Ireland, one man, Colm Murphy, was charged with conspiracy in relation to 
Omagh and was found guilty in Dublin's Special Criminal Court in January 
2002. However, his conviction was quashed by Dublin's Court of Criminal 
Appeal in January 2005, on the basis that the Gardai had falsified interview 
notes and the trial judges had wrongly and unjustly taken into consideration 
Murphy's previous conviction, something that is normally, and for good 
reasons, forbidden in criminal trials. Yet Murphy is now held 'liable' for 
the Omagh bombing.
In late 2006, Murphy's nephew, Sean Hoey, was put on trial in Belfast Crown 
Court for 29 counts of murder and for terrorism and explosive charges. He 
was found not guilty of all charges after police were found to have 'beefed 
up' their statements - 'they had lied, in plain English', said a BBC 
report - and after the Low Copy DNA tests used to link Hoey to the bombing 
were found to be unreliable (5). Hoey is not one of those named as 'liable' 
in this week's civil ruling.
There are those of us who might even have questioned the solidity of 
criminal convictions against Murphy and Hoey if they had been secured, not 
because we have any sympathy for these probably dubious and unlikeable 
individuals, but because their cases were heard in juryless courts. The 
Special Criminal Court that initially found Murphy guilty is simply overseen 
by three judges appointed by the Irish government, and is used to try 
terrorist or organised crime cases in which 'the ordinary courts are 
inadequate for securing the effective administration of justice' (6). Hoey 
was tried under the 'Diplock system' at Belfast Crown Court, a juryless 
trial procedure introduced by the British in 1972 in order to try alleged 
terrorists more 'efficiently' and 'effectively'.
Yet all criminal trials - and especially the most serious ones, in which an 
individual might lose his liberty for 30 or 40 years - should be debated and 
ruled on by a jury, that body of 12 men and women who, because they are not 
employed by the state, are properly independent, and because they are not 
involved in the daily application of the law do not have a jaundiced view of 
humanity. The jury is an oasis of democracy in the criminal justice system, 
ensuring that one state-paid judge cannot simply send people to prison with 
a whack of his hammer and ensuring that evidence is discussed rationally and 
in detail by the suspect's peers. Also, a jury must be convinced 'beyond 
reasonable doubt' that someone is guilty, before taking the very serious 
decision to convict him and send him to prison.
It is a shocking indictment of the low standards and weak requirement for 
evidence in the civil court system that four men who could not even be found 
guilty of the Omagh bombing in the cynical and corrupt Special Criminal 
Court in Dublin or in a Diplock court in Northern Ireland have now been 
found 'liable' in a civil case.
The Omagh civil case, thought to be the first time citizens have sued a 
terrorist outfit, is not only potentially bad for the four men now named as 
liable for the bombing - it is potentially bad for all of us in the 
dangerous precedent it sets. It makes a mockery of the 'double jeopardy' 
rule if individuals can publicly be branded as liable for a crime that they 
have previously been found not guilty of. Under 'double jeopardy', 
individuals could never be tried twice for the same crime. The doctrines of 
autrefois acquit (formerly acquitted) and autrefois convict (formerly 
convicted) have been considered 'essential elements for the protection of 
the liberty of the subject' (7). Yet these historic protections have been 
severely watered down by New Labour, whose Criminal Justice Act 2003 allows 
retrials for murder, manslaughter, kidnapping, rape and serious drug 
offences. This empowers the state obsessively and ruthlessly to pursue 
individuals who have been acquitted by juries, thus demeaning both the 
rights of the individual and the finality of jury decisions. The Omagh case 
pushes this process further in a novel and disturbing way, by for example 
allowing a retrial without new evidence, something that even New Labour's 
illiberal new rules on retrials demands.
Also, the Omagh civil case, and the positive response to it, puts the 
criminal justice system's 'beyond reasonable doubt' requirement in the dock 
as something problematic and undesirable. In a criminal trial (well, a 
normal one, held in a normal court), a jury must be convinced 'beyond 
reasonable doubt' that someone is guilty. This and other protections for the 
suspect were introduced over years of revolution, radical demands and reform 
because it is widely recognised that there is no equality in a criminal 
trial. A criminal trial involves the immense forces of the state, with its 
police, prosecution lawyers, judges and prison system, lined up against one 
man or a handful of men; and thus the suspect or suspects need certain 
inalienable, untouchable rights - to remain silent, to be tried by a jury, 
to know who is charging them, to be imprisoned only if and when all doubt 
about their guilt has been eliminated by the prosecution - in order to shift 
the balance and make it somewhat more equal. In short, it has been made 
difficult for the criminal prosecution to put someone in prison, and must 
remain so, because the state is powerful and potentially vindictive and the 
individual is weak and potentially will lose the thing all of us hold most 
dear: our liberty.
In a civil trial, however, guilt can be decided on the far weaker basis of 
the 'balance of probabilities'. That is because the clash in a civil case, 
unlike in a criminal case, is between two nominally equal forces - normally 
two individuals who are at loggerheads, or a group of individuals who want 
to sue an organisation for some reason or other. Over the past 10 years, New 
Labour officials have seriously discussed introducing the 'balance of 
probabilities' requirement in the criminal justice system, too, and the 
Omagh case has been welcomed for reminding us how much easier and efficient 
this weaker requirement makes things. Under the headline 'A welcome decision 
on Omagh', one legal writer said that where 'beyond reasonable doubt' had 
proved impossible in the Omagh case, 'On the "balance of probabilities" it 
was a different story', as Northern Ireland's chief justice ruled that there 
was 'overwhelming evidence' linking the men to the bombing (8).
Never mind that the evidence was 'contaminated'; that it had been thrown out 
in the criminal justice system for being unreliable. Never mind that of the 
four men now found liable for Omagh, only one had previously been criminally 
charged and had later had his conviction quashed on appeal. Never mind that 
a civil court case only ever finds that someone is 'more likely than not' to 
be liable, rather than that they are guilty beyond a shadow of a flicker of 
a doubt. The Omagh case and the positive response to it pushes us further 
down the road towards overriding juries, watering down requirements before 
convicting someone of a crime, and trying people for the same crime twice in 
various different courts - all of which are leaps backward in the legal 
system that could impact, not just on those four men and not just on all 
suspects' legal rights when they are in court, but also on our democratic 
rights more broadly and on the relationship between the state and the 
individual. The case could also convince victims of other tragedies to 
demand government cash in order to pursue, in the lesser courts, those whom 
they believe to be responsible for the tragedy.
It doesn't matter what you think of McKevitt, Campbell, Murphy and Daly; it 
doesn't even matter if you think, in the back of your mind, that they were 
involved in the Omagh bombing. What matters is that on the back of finding 
four unpopular men liable for a heinous crime, justice itself has been 
attacked.
Brendan O'Neill is editor of spiked. Visit his website here. His satire on 
the green movement - Can I Recycle My Granny and 39 Other Eco-Dilemmas - is 
published by Hodder & Stoughton. (Buy this book from Amazon(UK).)



Previously on spiked
In 2003, Mick Hume asked if justice could be bought for the victims of the 
Omagh bombing. Elsewhere, Brendan O'Neill argued that the attacks in March 
this year were the work of the Zombie IRA and described Northern Ireland's 
politics of self-esteem. Kevin Rooney outlined the IRA's shift from 
insurgency to identity and railed against the way politics is being written 
out of the history of the conflict. Chris Gilligan revealed the impact of 
therapy culture on Northern Ireland's police. Or read more at spiked issue 
Ireland.

(1) Omagh ruling 'tribute to courage', BBC News, 9 June 2009
(2) Omagh civil case 'unprecedented', BBC News, 7 April 2009
(3) A welcome decision on Omagh, Comment Is Free, 9 June 2009
(4) After the Omagh verdict, The First Post, 9 June 2009
(5) How the Omagh case unravelled, BBC News, 20 December 2007
(6) About the courts, Irish Courts Service
(7) See The fight for individual liberty starts here, by Brendan O'Neill
(8) A welcome decision on Omagh, Comment Is Free, 9 June 2009

reprinted from: http://www.spiked-online.com/index.php/site/article/7000/