Mark Christopher Breslin and Others and Seamus McKenna and Others Ruling No.15
| Jurisdiction | Northern Ireland |
| Judge | Morgan J |
| Judgment Date | 27 February 2009 |
| Neutral Citation | [2009] NIQB 19 |
| Date | 27 February 2009 |
| Court | Queen's Bench Division (Northern Ireland) |
| Year | 2009 |
1
Neutral Citation No.: [2009] NIQB 19 Ref:
MOR7434
Judgment: approved by the Court for handing down Delivered:
27/02/09
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
_______
QUEEN'S BENCH DIVISION
_________
BETWEEN:
MARK CHRISTOPHER BRESLIN AND OTHERS
PLAINTIFFS
-AND-
SEAMUS MCKENNA AND OTHERS
DEFENDANTS
__________
RULING NO 15
________
MORGAN J
[1] This is an application by the plaintiffs who seek an order for disclosure
directed to the Security Service, GCHQ, PSNI and the Police Ombudsman for
Northern Ireland of whether they have or have had in their possession,
custody or power any audio recording or transcript of any such recording or
any notes made from such transcript made by GCHQ of mobile telephone
calls made on 30 April 1998, 1 August 1998 and 15 August 1998 referred to in
the BBC Panorama programme broadcast on 15 April 2008 and production of
any such material.
Background
[2] The bomb explosion in Omagh on 15 August 1998 had been preceded
by a bomb explosion in Banbridge on 1 August 1998 and a bomb which was
located and defused in Lisburn on 30 April 1998. On 14 September 2008 the
BBC started to trail its Panorama programme which was broadcast the
following day. The trailer alleged that GCHQ recorded mobile phone
exchanges between the bombers on the day of the attack. It was alleged that
well-placed sources told Panorama that GCHQ had picked up the words
"we’re crossing the line" from one of the mobiles, this coinciding with one of
the cars crossing the border into Northern Ireland, and that at 2:20 pm the
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phrase "the bricks are in the wall" was used to denote the fact that the bomb
was planted, that phrase having been similarly used in respect of the
Banbridge bomb. On the same day John Ware, a BBC journalist, published an
article in the Telegraph newspaper alleging that GCHQ was monitoring the
conversations that the bombers had during the 90 minutes it took them to
take the bomb from the Irish Republic to Omagh. He alleged that there were
transcripts of some of the bombers’ snatched conversations but that the
information was not successfully exploited. He further maintained that a few
weeks before the Banbridge bomb Special Branch had discovered a mobile
phone number belonging to one of the bombers and that the head of Special
Branch South asked GCHQ to continue live tactical monitoring of that phone.
[3] The Panorama programme was broadcast on 15 September 2008. The
programme carried an interview with Mr White who was a former Assistant
Chief Constable and Head of Crime and Special Branch for the Police Service
of Northern Ireland. He indicated that he was not in Special Branch at the
time of the Omagh bombing but on the basis of his understanding from
colleagues he believed that GCHQ had the capacity to carry out live
monitoring of telephone numbers and to build up a matrix comprising the
various numbers contacted by that phone. He indicated that sometime in July
1998 the Special Branch identified a phone linked with a dissident group and
he believed that this number was the subject of live monitoring at the time of
the Omagh bomb. There is no serious dispute that GCHQ had this capacity at
the time and indeed Sir Peter Gibson’s report of 18 December 2008 noted that
dissident republicans were aware at that time of that capacity. Mr White
went on to say that the information was subsequently provided to Special
Branch South. It was further submitted that the material would have been
made available to the Police Ombudsman who carried out an inquiry in
relation to the Omagh bombing and to the Security Service because of their
intelligence remit.
[4] In a further affidavit on behalf of the plaintiffs it is contended that the
Security Service and/or PSNI Special Branch have in their possession a
recording or recordings made of transmissions from a covert listening device
placed in the maroon Vauxhall Cavalier car used to house the bomb
transported to Omagh on 15 August 1998 together with transcripts and notes
relating to that recording. The basis for that belief is a conversation with Mr
Ware who indicated that his inquiries revealed that some individuals in the
relevant authorities had read transcripts that appeared to include telephone
conversations of the bombers in the car that were one-sided. It was further
alleged that those conversations stopped at the time the bomb was detonated.
[5] Following the programme on 18 September 2008 the Prime Minister
invited Sir Peter Gibson as the Intelligence Services Commissioner to review
any intercepted intelligence material available to the security and intelligence
agencies in relation to the Omagh bombing and how this intelligence was
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Rush (Laurence) v Chief Constable of the Police Service of Northern Ireland
...by Morgan J, as he then was, in the unsuccessful application by the plaintiffs in Breslin and Others v McKenna and Others (Ruling No 15) [2009] NIQB 19. [74] I have concluded that the summary report may be admitted in evidence in this application. On the face of it the report draws on “a ra......