Mr Justice Morgan today found Michael McKevitt, Liam Campbell, Colm Murphy, Seamus Daly and the Real IRA liable in various ways for the Omagh bomb and awarded damages to the family members who brought the action.

Delivering his verdict today in the High Court in Belfast, Mr Justice Morgan said that he did not intend to rehearse in his judgment the detail of the medical reports or the accounts given to him of the enormous difficulties faced by the family members: “For many, the effects are catastrophic and their lives will never be the same”.

The action

The plaintiffs in this action claimed damages for personal injuries sustained by them as a result of the bomb explosion in Omagh on 15 August 1998. They also submitted further claims for damages as a result of the death of members of their families in the explosion and a claim for an injunction to restrict the defendants in respect of their future conduct. The plaintiffs alleged that the defendants were in various ways responsible for the planning, production, planting and detonation of the bomb and sued the five defendants on their own behalf and two as representing the Real IRA.

Mr Justice Morgan said that there was no criminal charge at issue in this case and it was not for the court to determine whether any criminal offence had been committed: “The role of the court is to establish whether the plaintiffs have discharged the burden of demonstrating that the defendants were responsible for causing harm to the plaintiffs in the manner alleged and, if so, to determine what, if any, damages are payable in respect of the harm proved”.

Events on the Day of the Bomb

Mr Justice Morgan referred in his judgment to the location of the car containing the bomb, the telephone warnings and the bomb components including the timer device. He heard evidence that timers with the same batch number were used in 26 separate explosions in Northern Ireland, the Republic of Ireland and England between 1998 and 2002. The judge said that although it was likely that a number of the devices were prepared by the same person (and it was possible that all of the devices were prepared by one person) it was not probable that the same person prepared all of the devices although the similarities suggested some sharing of knowledge and source of components.

Mr Justice Morgan said it was clear that the bombers’ primary objective was to ensure that the bomb exploded without detection and the safety of those members of the public in Omagh town centre was at best a secondary consideration. None of the telephone warnings identified the specific location or the make, model and colour of the bomb car. The judge found that the general warnings, which were conflicting and misleading, were purposely designed to prevent detection of the location of the bomb car before the explosion. This increased the area that needed to be cleared and the time necessary to do it. The period necessary for evacuation certainly exceeded the 35 minute warning that was given. Mr Justice Morgan said he was satisfied, therefore, that those involved in the planning, preparation, planting and detonation of the bomb recognised the likelihood of serious injury or death from its detonation but decided to take that risk.

The Telephone Evidence

The police investigation shortly after the bomb was focussed on seeking to identify whether mobile phones were used in the transmission of the bomb into Omagh and to facilitate the making of the warning calls. The court was presented with documentary evidence of the records of calls made to and from four mobile phones on the day of the explosion. There was further evidence on floppy disks relating to some 27 phones covering a period from January to October 1998.

The judge found that the records for the mobile phones registered to Colm Murphy (“the 585 phone”) and to Michael McDermott, the father in law of Terence Morgan who in fact used the phone and who was employed by Colm Murphy (“the 980 phone”), showed a series of calls between the phones on 15 August 1998. The calls for the 585 phone show a clear direction of travel from Castleblaney, the general vicinity in which the bomb car was stolen, to Omagh between 12.41 and 13.57. The 980 phone is regularly in contact with the 585 phone and the evidence suggests that it is travelling in the same direction at the same time. The timings of the calls are consistent with the delivery of the bomb to the centre of Omagh after 14.00. Mr Justice Morgan said that this broadly accords with the evidence of witnesses who claim to have seen the vehicle. A call was made from the 585 phone to another phone (“the 430 phone”) at 14.10. That phone receives the call by use of a cell site in the vicinity of the phone box from which the first warning call is made. A further two calls are made from the 585 phone to the 430 phone at 14.37 and a minute later when that phone is using a cell site in the vicinity of the other phone box from which warning calls were made. Both the 585 and 980 phones return to the Republic of Ireland by 15.13 on the day of the bombing. Mr Justice Morgan considered that the movements of these phones from the Republic of Ireland and back, the connection between them, the times of travel, the location from which they came having regard to the theft of the bomb car and the connection with the 430 phone in the vicinity of the call boxes from which the warning calls were made lead to an “irresistible inference” that the phone registered to Colm Murphy and the phone used by Terence Morgan were the mobile phones which were used in the bomb run on 15 August 1998. The judge said that there is no suggestion that the phone material has identified any other phones which could have played such a role.

The Evidence in relation to the First Named Defendant - Seamus McKenna

The case against Seamus McKenna depended entirely upon a connection which the plaintiffs sought to establish between him and the 980 phone which they say was used on the bomb run. The telephone evidence presented to the court suggests that at 15.41 on the 15 August 1998, the 980 phone phoned the landline of the home of Seamus McKenna’s estranged wife in Silverbridge. The plaintiffs contend that the call was made by Seamus McKenna and that this established his connection to the bomb run. They based this on the hearsay evidence of Mrs McKenna.

Mrs McKenna appeared in court on 21 October 2008 and she was cross-examined by Seamus McKenna about the statements she made during interview by the RUC in 1999. Mr Justice Morgan considered that her oral evidence was of no assistance to the plaintiffs and questioned what, if any, weight he should give to the statements upon which they relied. The judge said that he was satisfied that the plaintiffs did not produce Mrs McKenna as a witness because they considered her to be an unreliable witness. The judge, as a consequence, dismissed the action against Seamus McKenna.

The Evidence in relation to the Second Named Defendant – the Real IRA

The court heard evidence in relation to the emergence of the Real IRA and was told that the “Martha Pope” codeword which was used in the Omagh bomb was also used in relation to car bombs in 1998 in Lisburn, Armagh and Banbridge. Mr Justice Morgan said that it was of some significance that after the defusing of the Lisburn and Armagh car bombs, the period of time between the receipt of the warning and the explosion was reduced. He said that this was evidence of a deliberate policy to reduce the amount of time available to police to attempt to prevent the explosion and its consequences. The judge said that he was “satisfied to a very high degree” that the Real IRA were responsible for the Omagh bomb in that the membership of the organisation were committed to the carrying out of the terrorist campaign in every respect and were part of a concerted enterprise to that end.

Mr Justice Morgan said that the real issue was whether as a matter of law it was possible to maintain an action against the Real IRA as, in legal terms, it is an unincorporated association and as such it cannot be made a defendant in its own right to action. The judge determined that the law in relation to representative proceedings should not prevent the plaintiffs from recovering against the Real IRA which had consistently and relentlessly pursued the terrorist campaign identified in evidence put before the court.

He concluded that those who were members of the Army Council of the Real IRA in August 1998 bear responsibility for directing the Omagh bomb as part of the campaign that was being waged at that time and are therefore liable. He made a representation order in respect of Liam Campbell as representing the members of the Army Council of the Real IRA on 15 August 1998 as the evidence demonstrated that he was a member of the Army Council on that date. [All other members of the Army Council of the Real IRA on that date are also liable for the damages awarded to the plaintiffs.]

Evidence in relation to the third named defendant – John Michael McKevitt

Mr Justice Morgan said that the case against Michael McKevitt depended upon the hearsay evidence of David Rupert. Much of this was presented to the Special Criminal Court in Dublin in 2003 during the trial of Michael McKevitt. It included over 2293 pages of e-mail correspondence between David Rupert and his handlers and Michael McKevitt.

At his trial, Michael McKevitt’s counsel claimed that he had never met David Rupert. Evidence was taken in Dublin from members of the Garda team who had been carrying out surveillance on Michael McKevitt in 2000. The judge said that each of the Garda officers was carefully tested about what they observed. He said that he found no reason to doubt the accuracy of the Garda officers and was entirely satisfied that he could rely on their evidence to establish that David Rupert and Michael McKevitt were well known to each other. He concluded that the suggestion by Michael McKevitt that he had never met David Rupert was “plainly false”.

The plaintiffs sought to rely upon the fact that Michael McKevitt was convicted in 2003 of membership of the Real IRA and directing terrorism. Mr Justice Morgan said that the fact of the conviction could, in his view, have some modest bearing in circumstances where there was other material contributing to the cogent evidence needed to establish the allegations upon which the plaintiffs rely.

Michael McKevitt sought to contend that David Rupert’s statements and e-mails were not credible. This was based in substantial part on answers that David Rupert gave during cross-examination during the criminal trial against Michael McKevitt in Dublin. Mr Justice Morgan also heard evidence about David Rupert’s financial dealings in the USA. He accepted that David Rupert had exhibited evidence of dishonesty in relation to financial matters and said the evidence supported the view that David Rupert used the insolvency laws in a way that appeared to enable him to enjoy a relatively comfortable lifestyle even after insolvency and the probability was that some money was hidden from creditors. The judge also heard evidence that David Rupert had used his trucking business in the USA for thefts, smuggling and the illegal importation of aliens, drugs, weapons and explosives. The judge said that clearly the local police were of the view that David Rupert engaged in this activity but he had no convictions.

Mr Justice Morgan then went on to consider whether the e-mail correspondence presented to the court represented a fair and accurate account of the exchanges between David Rupert and his handlers and between him and Michael McKevitt. He considered that it would not have been reasonable or practicable for the plaintiffs to have produced David Rupert as a witness but was satisfied to a very high standard of probability that the exchanges set out in the 2293 pages of e-mails represented actual traffic that occurred between David Rupert and his handlers.

The judge also considered whether any person involved had any motive to conceal or misrepresent matters. The judge said Rupert was engaged under a financial contract in which his terms and conditions had improved as time went by and that it seemed fair to conclude that this was in part influenced by the assessment by his handlers of the quality of the material that he was producing. Rupert, the judge said, therefore had an interest in producing material that was likely to be considered significant. Accordingly, in assessing the material that he did produce, it was necessary for the court to exercise care. The judge said it was striking, however, that the e-mails contained an extremely high level of detail in relation to encounters not only with Michael McKevitt but with many others. The judge said that the “extraordinary level of detail and the reference to these individuals is compelling evidence that these accounts represent an attempt to provide an accurate and comprehensive record of actual meetings”. Mr Justice Morgan also said that David Rupert’s statements helped to copper-fasten the Garda observation evidence in relation to his attendance at Michael McKevitt’s home. He said there was no doubt, therefore, that Rupert was a visitor to Michael McKevitt’s home and he considered it as indicative of the fact that matters relating to dissident republicanism would have been discussed between them.

Mr Justice Morgan accepted that without the statements and e-mail evidence of David Rupert, the plaintiff’s case against Michael McKevitt could not succeed. He said that this hearsay evidence constituted the sole or decisive evidence against Michael McKevitt. The judge said that it was necessary to examine whether the admission of this evidence and the giving of weight to it would render the hearing unfair in accordance with the European Convention on Human Rights (ECHR). Mr Justice Morgan said that the material upon which the plaintiffs rely has long been known to all of the parties and he considered that the defendants had a proper opportunity to investigate the credibility of David Rupert. The judge accepted that there was some disadvantage to Michael McKevitt in that he was not in a position to assess the demeanour of David Rupert as a witness. He said in light, however, of the extensive previous cross-examination of David Rupert at the Dublin trial and the extent of disclosure of material in relation to the credibility of David Rupert by agencies in the USA, UK and the Republic of Ireland, he considered that he could give substantial weight to the evidence without offending Michael McKevitt’s right to a fair trial under Article 6 of the ECHR.

The judge said that the most telling evidence in relation to the accuracy of the content of the e-mails was the evidence of telephone conversations between Security Service agents and a representative of the Real IRA known as “Karl”. Both David Rupert and an inspector in the Garda identified the voice of “Karl” as belonging to Michael McKevitt. The judge said that this evidence demonstrated Michael McKevitt’s active involvement in relation to the procurement of terrorist materials and his involvement in procurement for the Provisional IRA as far back as 1986.

Mr Justice Morgan was satisfied therefore that he should give considerable weight to the content of the e-mails. He concluded that Michael McKevitt held and has always held a significant leadership role within the Real IRA which is reflected by the fact that he was certainly its leader in August 1999. In his leadership role he was undoubtedly responsible for encouraging the campaign of bombing in 1998 which culminated in the Omagh bomb and the availability of the materials to prepare that bomb could only have occurred with this support and approval. He also said that he drew the inference that the policy decision to reduce the amount of time available to locate and defuse bombs was instigated or approved by Michael McKevitt in his leadership position.

The judge found that Michael McKevitt was liable in trespass to the plaintiffs. He also considered that by virtue of his leadership role, Michael McKevitt was liable as aiding, counselling and directing the commission of the tort. The judge added that, if it were necessary to do so, he would consider that the failure of Michael McKevitt to give evidence in answer to the case against him is inexplicable and makes the case against him overwhelming.

Evidence in relation to the fourth named defendant – Liam Campbell

David Rupert recorded in an e-mail that Liam Campbell was introduced to him as a member of the Army Council. The judge referred to a series of e-mails describing meetings between David Rupert and Liam Campbell. He also said that there was relevant phone evidence. He referred to the 430 phone which was one of the phones used during the Omagh bomb. The judge heard evidence that, although this phone was registered to a person for whom Liam Campbell used to work, it was actually used by Liam Campbell.

Mr Justice Morgan said that Liam Campbell initially entered a defence to this claim byt subsequently he instructed his solicitors to come off record. He throught it was inexplicable that he should not have answered this case if he had an answer to it and considered the case against Liam Campbell as overwhelming. He said he was therefore satisfied that there was cogent evidence that Liam Campbell was a member of the Army Council of the Real IRA at the time of the Omagh bomb. He was further satisfied that he held an important leadership position in the Real IRA both at that time and subsequently. He was also satisfied that there was cogent evidence that the 430 phone was being used by Liam Campbell at the time of the Omagh bomb and that the two communications between the 585 phone and the 430 phone on the day of the bomb demonstrated Liam Campbell’s involvement in direction the operation and participating in it.

Evidence in relation to the fifth named defendant – Michael Colm Murphy

Mr Justice Morgan referred in depth to the notes of a series of interviews of Colm Murphy carried out by Gardai detectives between 21 and 23 February 1999. The judge also referred to extracts from Colm Murphy’s trial before the Special Criminal Court in Dublin.

Mr Justice Morgan said that he was satisfied that the notes of one of the interviews with Colm Murphy were rewritten. The rewriting probably occurred at a later stage because someone realised that a comment contained in it was not true. The judge said that the fact that this occurred meant that he had to be careful to treat the evidence in relation to the interviews cautiously. Mr Justice Morgan said that, as a consequence, he had grave reservations as to whether Colm Murphy made the alleged admission that his phone had been used in Banbridge on 1 August 1998 about the time when the bomb exploded.

Mr Justice Morgan said that Colm Murphy was mentioned on a number of occasions in David Rupert’s e-mails. He was described as being a member of the Continuity IRA and was noted as saying that he had been regularly carrying out terrorist attacks jointly with Michael McKevitt from 1995. He said that in his view this was significant and cogent evidence that Colm Murphy is a dedicated terrorist who has been an active participant in carrying on terrorist attacks over a long period. The court also heard evidence of Colm Murphy’s previous convictions for terrorist offences.

Mr Justice Morgan was satisfied there was evidence that Colm Murphy provided the 585 and 980 phones for the Omagh bomb attack knowing full well the nature of the attack which was going to be conducted. He said he was satisfied that Colm Murphy was an active member of the Continuity IRA at the time and that the Omagh bomb was a joint operation between that organisation and the Real IRA.

Mr Justice Morgan noted that Colm Murphy still has to face a criminal prosecution in the Republic of Ireland. The judge told Mr Murphy’s legal representatives that he would be prepared to consider stringent arrangements to protect the evidence about him from publicity or disclosure in advance of this prosecution but Colm Murphy did not seek to avail of such arrangements.

Evidence in relation to the sixth named defendant – Seamus Daly

The phone records indicated that a call was made from the phone owned by Seamus Daly and alleged to have been involved in the Omagh bomb to Denis O’Connor just after 3.30 pm on 15 August 1998. Denis O’Connor was arrested on 22 February 1999. He said he was a registered building contractor who was operating a scheme designed to evade tax. Denis O’Connor said that he had entered into arrangements with Colm Murphy and a man by the name of Seamus “Healy” from Dundalk. The gardai asked Denis O’Connor if the man Healy could be Seamus Daly and he then identified him from a photograph.

Denis O’Connor was not brought to court for cross-examination and the Gardai were unable to identify his present whereabouts. The judge said that he O’Connor was obviously involved in a tax fraud and that would undoubtedly bear upon his credibility. There was no evidence to raise any suggestion that O’Connor was involved in any way in relation to the Omagh bomb. The judge accepted that the evidence of O’Connor was the only direct evidence upon which the plaintiffs relied in establishing that Seamus Daly is liable to them. The judge said that there was considerable evidence that Seamus Daly and Denis O’Connor were in occasional if not frequent contact prior to the Omagh bomb and that O’Connor would have been well able to recognise Daly’s voice if Daly rang him. The evidence also established to a very high standard of reliability that Daly had a reason for being in contact with O’Connor in relation to the C2 certificate.

Mr Justice Morgan said that it was an “irresistible inference that the user of the phone did not consider that the call was likely to be traced and there was no reason, therefore, why the phone would not be used for non-terrorist purposes”. Seamus Daly chose to provide no answer to the case against him. Mr Justice Morgan said that in his view his failure to give evidence in light of the material against him further supported the case against him and that he was satisfied that he was liable in trespass to the plaintiffs.

Damages

Mr Justice Morgan said that it was clear to him from the reports he read and the evidence of the plaintiffs who appeared before him in court that “the senseless and indiscriminate nature of this appalling outrage has deeply affected each of them”. He considered this was an appropriate case in which to make an award of aggravated damages to include damages for injury to feelings as a result of the manner of the commission of this outrage.

The plaintiffs had also sought a claim for an injunction to restrict the defendants in respect of their future conduct. Mr Justice Morgan said that there was very little evidence presented to the court in relation to the present position of the defendants and declined to make any order.