Gallagher's (Michael) Application for Judicial Review and in the matter of a decision by the Secretary of State for Northern Ireland made on 12th September 2013
| Jurisdiction | Northern Ireland |
| Judge | Horner J |
| Judgment Date | 08 October 2021 |
| Neutral Citation | [2021] NIQB 85 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 08 October 2021 |
1
Neutral Citation No: [2021] NIQB 85
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: HOR10876
ICOS No: 2013/125920/1
Delivered: 08/10/2021
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION
(JUDICIAL REVIEW)
________
IN THE MATTER OF AN APPLICATION BY MICHAEL GALLAGHER
FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
AND IN THE MATTER OF A DECISION BY THE SECRETARY OF STATE
FOR NORTHERN IRELAND MADE ON 12 SEPTEMBER 2013
________
HORNER J
Framework of Judgment Paragraphs
A. EXECUTIVE SUMMARY 1
B. INTRODUCTION 2-21
C. BACKGROUND CIRCUMSTANCES 22-143
Dissident Republicans 22-28
The authorities 29-40
Intelligence Gathering and Sharing 41-43
Disruption 44-56
Legal Powers of the authorities 57-91
Hindsight 92-102
Investigations and Inquiries 103-130
Public Inquiry 131-141
Omagh – A Target? 142-143
D. GROUNDS OF PREVENTABILITY 144-145
E. RELEVANT LEGAL PRINCIPLES 146-214
The applicability of the Human Rights Act 1998 146-156
Article 2 157-167
The Osman Obligation 168-189
The requirements of an Article 2 Compliant Investigation 190-194
Causation 195-196
Rationality and Proportionality 197-209
Time-barred 210-214
F. DISCUSSION - GROUNDS OF PREVENTABILITY 215-309
G. CONCLUSION 310-311
2
A. EXECUTIVE SUMMARY
[1] The court concludes that:
(i) The applicant has persuaded the court that there are arguable grounds that
there has been a breach of Article 2 of the European Convention on Human
Rights on grounds 2, 6, 7 and 9 (“the grounds”).
(ii) These grounds relate essentially to the failure of the authorities to act against
those dissident republican terrorists, north and south of the border, who had
been involved in acts of terrorism in the months leading up to the Omagh
bombing because of:
(a) The alleged presence of an informer in the Real IRA (“RIRA”) whose
presence the authorities did not want to risk revealing;
(b) The risks that a proactive security response to deal with dissident
terrorists would irreparably damage the peace process.
(iii) There is no arguable basis disclosed on the OPEN materials on the other
grounds including the rationality challenge, whether considered separately or
together;
(iv) The court directs that an Article 2 compliant investigation should be carried
out in Northern Ireland to examine the grounds referred to above and
expresses the desire that simultaneously an Article 2 compliant investigation
will consider the same issues in the Republic of Ireland. It is not the role of
the court to determine the precise nature of the investigation(s) but any
investigation should be capable of receiving both OPEN and CLOSED
material.
B. INTRODUCTION
[2] On Saturday 15 August 1998 just after 3.00 pm a massive car bomb exploded
in the small country town of Omagh, Co Tyrone. The car containing the bomb was
parked 330 metres from the courthouse at the junction of High Street and Dublin
Road. The bomb, which is believed to have been constructed of semtex explosive,
fertiliser and fuel oil, created blast temperatures in its immediate vicinity of over
1,000° centigrade. Structural damage occurred over an area of 125 metres and blast
damage within a range of 500 metres. Vehicle fragments of the car carrying the
bomb were found 300 metres from the explosion.
[3] Twenty-nine men, women and children and two unborn children were
murdered as a consequence of the Omagh bomb exploding. Many others were
grievously injured, both physically and mentally. It was a scene of utter carnage and
devastation. One eye-witness described the scene thus:
3
“There were bodies everywhere; it was like a war zone, a
killing field.”
[4] What happened on that fateful day has been the subject of condemnation and
criticism from many commentators. The Prime Minister at the time, Tony Blair,
described what happened as:
“An appalling act of savagery and evil.”
Professor Diarmaid Ferriter in his book, The Border, said of the Omagh outrage:
“Beyond devastating, it was the biggest single atrocity in
the history of the Troubles and the work of dissident
republicans, styled the Real IRA, some of whom were
based in the Republic. The bomb had been transported
over the border and the victims came from both sides of it
as well as England and Spain. Despite an extensive cross
border investigation in its aftermath, no one was
criminally convicted of a crime that prompted the poet,
John Montague, to despair that History creaks on its
bloody hinge and the unspeakable is done again.”
The heart breaking loss of lives unlived, the grieving families and friends left behind,
and the terrible injuries, both physical and mental, inflicted on those who survived
the bomb and its immediate aftermath, all combine together to make the Omagh
bombing such a horrific crime against humanity.
[5] The Chief Constable at the time, Sir Ronnie Flanagan, described the method of
attack as follows:
“A Vauxhall Cavalier was stolen in Carrickmacross,
Co Monaghan, on 13 August 1998. Over the next two
days it was fitted with false number plates and packed
with explosives. At around 12:40 hours on 15 August
1998, preceded by a scout vehicle, it left the Castleblayney
area of Co Monaghan and headed for Omagh, arriving
there at approximately 1400 hours. At 1410 the
supervisor in the scout vehicle spoke by mobile phone to
the person believed to be the OC, then in South Armagh,
and at 1414 a call was made from the bomb car to another
Real IRA suspect also in South Armagh. At 1419 the
bomb car contacted the scout vehicle, and at 1420 the
bomb car moved into its final position in Market Street,
outside SD Kells shop facing towards the courthouse.
The two male occupants got out and are believed to have
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Finucane's (Geraldine) Application and in the matter of a decision of The Secretary of State for Northern Ireland
...the High Court had previously required, by way of a mandatory order, that a public inquiry be established. Re Gallagher’s Application [2021] NIQB 85 (at para [311]) is an example of Horner J expressly declining to make such an order on the basis that he did not consider it right for the cou......