Belfast Telegraph

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

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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