Smithwick Tribunal: Narrow Water relatives may take civil case
A number of civil court actions are likely to be launched following the publication of the Smithwick Report.
Judge Peter Smithwick found there was Irish police collusion in the murders of two senior Northern Ireland policemen in 1989.
The Belfast Telegraph understands that some of relatives of the 18 soldiers killed in the 1979 Narrow Water ambush may attempt to take a civil action against An Garda Siochana on the basis of evidence heard by the tribunal that the scene of where the bombers detonated the devices may have been tampered with.
In addition John McBurney, the solicitor who represented the family of Chief Superintendent Harry Breen, has said that he would be advising the murdered police officer's family of the potential to sue.
"It would be remiss of me not to advise them of the potential for civil action. Although it has not been on their minds up to this point, it is something that has to be addressed," he said.
Mr McBurney won't be the only lawyer advising clients they could sue a government after seeing tribunal finding or Historic Enquiry Team reports indicating collusion, negligence or even failure to hold a proper investigation.
There is likely to be a tsunami of such actions in the next year or so, mostly for nationalist victims in Northern Ireland, but also, potentially, from the families of murdered police officers, alleged informers and loyalists.
Without a new approach, that will be the next big thing in dealing with the past.
The drawback is that it is unlikely to put much information into the public domain because such cases are generally settled out of court. Victims who take this route will have the satisfaction of saying they received damages, and feel vindicated.
Recently, Anne Cadwallader, whose book Lethal Allies focused on Northern Ireland security force collusion with loyalists, urged the authorities to admit they were at fault even on the balance of probabilities. That is to a civil standard.
The difference is that to bring a criminal prosecution you need proof beyond reasonable doubt. To sue for damages, the bar is lower. Proof on a balance of probabilities is enough to secure an award.
This gap was seized on by some victims of the Omagh bombing to sue men who they suspected of the bombing, but who had not been convicted. That case is being watched with interest, but the next round of actions is likely to be against the State and its agencies.
Suing is expensive and State agencies like the police or the Army have the resources to cover your costs and pay damages if you are successful. On the other hand, suspected terrorists are often 'men of straw' in legal terms. They are likely to get legal aid to defend themselves and leave a successful claimant with nothing to show but a legal bill.
Victims' campaigne, Willie Frazer said he has been speaking to some of the relatives of the 18 soldiers killed at Narrow Water in 1979, and that they were interested in taking a case against the Garda on the basis of some of the evidence heard at the tribunal.
Retired RUC Assistant Chief Constable Raymond White told the tribunal there was frustration among the CID officers who had investigated the Narrow Water bombing, in that they felt the detonation site had been seriously trampled before a proper forensic investigation could be carried out.
Justice Peter Smithwick's findings are to the standard of proof that would be required in a civil action against the Garda, or the Minister of Justice. However, he argues that for his tribunal to accuse an individual of murder, the probability would have to be so high that it would come close to proof beyond reasonable doubt.
"Collusive acts are, by their very nature, surreptitious... there is no record of a phone call, no traceable payment, no smoking gun," he explained. He later added that this is why he did not accuse any named member of the Garda of collusion in the murders of Mr Breen and Mr Buchanan.
So, Smithwick leaves it open to the families to sue the Garda – perhaps also the Northern authorities – for failing to do enough to protect Mr Breen and Mr Buchanan.