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Legal first for NI as bid for partially secret hearing over 'withheld intelligence' connected to Omagh gets under way at the High Court

By Alan Erwin

Published 26/02/2016

Breda Devine, 20 months
Breda Devine, 20 months
Esther Gibson
Spaniard Gonzalo Cavedo poses with a child on his shoulders beside the car carrying the bomb that seconds later killed 29 people, including the photographer
Elizabeth Rush
Olive Hawkes, aged 60
Julie Hughes, aged 21
Ann McCombe, aged 45
Mary Grimes, aged 65
Aiden Gallagher, aged 21
The bomb attack was the worst ever atrocity of Northern Ireland's decades of violence.
Brian McCrory, left, aged 54
Samantha McFarland, aged 17
Philomena Skelton, aged 39
Jolene Marlow, aged 17
The scene of the Omagh Bomb
Brenda Logue, aged 17
Alan Radford, aged 16
Bryan White, aged 27
Oran Doherty
Lorraine Wilson
Fred White
Veda Short
Geraldine Breslin
Deborah-Ann Cartwright
The scene of devastation in Omagh Town centre where upto 25 people have been killed in this afternoons blast. PACEMAKER BELFAST 15/08/98
Gareth Conway, Omagh bomb victim
James Baker, Omagh bomb victim
Several men have faced charges in connection with the attack, but nobody has ever been convicted of the murders
Cathy and Michael Gallagher, the sister and father of Omagh bomb victim, Aiden Gallagher.
PACEMAKER BFST 03-08-99: Man United manager Sir Alex Ferguson has a chat with Claire Gallagher, who lost her sight in the Omagh bomb, before yesterday's friendly against Omagh Town in aid of the Omagh Bomb Fund.
The happy couple — Ryan and Claire Bowse on their wedding day last year, nine years after Claire lost her sight due to injuries suffered in the Omagh bombing
The damage caused by the bomb explosion in Market Street, Omagh, 1998
Donna Marie McGillion, who was seriously injured in the Omagh bombing
The secret email which shows intelligence bosses knew that Omagh was a prime target for a terrorist attack weeks before the car bomb that devastated the town
Claire Radford, whose brother Alan was killed in the Omagh bomb, examines a new stained-glass window in the town's library with her daughter Mia. The window was created in memory of the victims of the blast which killed 29 people and unborn twins.
Michael Gallagher whose son Aiden, 21, was killed in the Omagh bomb attack Pic Paul Faith
Michael Gallagher (right), whose son Aiden, 21, was killed in the Omagh bomb attack with Stanley McCombe who lost his wife Ann Pic Paul Faith

A landmark bid for a partially secret hearing over intelligence gathered on the Omagh bombing has begun at the High Court.

Lawyers for the Government are arguing the intelligence includes sensitive material linked to national security that should not be revealed in public or to the person taking the legal action.

They contend that it is suitable for an application to hold a closed material procedure (CMP).

The move forms part of a legal challenge to Secretary of State Theresa Villiers' refusal to hold a public inquiry into the atrocity.

Michael Gallagher, whose son Aiden was among 29 people killed by the Real IRA on August 1998, is seeking to have her decision judicially reviewed. The case centres on claims a range of intelligence - from undercover agents, to MI5 and RUC officers - could have been drawn together to prevent the attack. An alleged gap in the information relates to any monitoring of the bomb and scout cars as they crossed the Irish border into Omagh on the day.

But counsel for the Secretary of State is seeking a CMP in advance of the legal challenge being heard in full. That process would examine whether public disclosure of some information would be damaging to national security.

It would involve intelligence documents being assessed by a judge and a special advocate barrister being appointed to protect the rights of Mr Gallagher while he is shut out of the hearing.

The first stage involves deciding if the case is suitable for a CMP application.

Following an initial open session, Mr Justice Maguire is now sitting in private to consider the relevant issues.

The application represents the first such legal bid in judicial review proceedings in Northern Ireland.

Ahead of the hearing, a sample of the closed material was gathered and stored at a secure location away from the Royal Courts of Justice.

As part of the process, barrister David Scoffield QC has been appointed as special advocate to represent Mr Gallagher's interests.

He can attend private hearings and examine the closed material, to which the bereaved father has no access.

Mr Gallagher launched his legal action after Ms Villiers rejected calls for a public investigation in September 2013.

She decided instead that a probe by Police Ombudsman Michael Maguire was the best way to address any outstanding issues surrounding the atrocity.

In October 2014, Dr Maguire published a report in which he found that RUC Special Branch withheld some intelligence information from detectives hunting the bombers.

No one has ever been convicted of carrying out the attack, but Seamus Daly, a 44-year-old bricklayer from Cullaville, Co Monaghan, is currently charged with the 29 murders, which he denies.

Central to the judicial review challenge is a contention that the Government has a duty under Article 2 of the European Convention on Human Rights to protect lives and investigate the bombing.

The case continues.

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