‘No justification' for special advocates for families in Omagh closed hearings

Irish Examiner

2 days ago

There is 'no justification' for special advocates for survivors and bereaved families in closed hearings during the Omagh Bombing Inquiry, it has been contended.
It is expected that some hearings during the inquiry, which is probing whether the 1998 dissident republican atrocity could have been prevented, will be closed due to sensitive evidence and national security.
Twenty nine people, including a woman pregnant with twins, were killed when the Real IRA exploded a car bomb in the Co Tyrone town.
The aftermath of the Omagh bomb in 1998. (PA Archive)
Inquiry chairman Lord Turnbull heard arguments over the last two days around applications from some of the family groups for special advocates.
They said their interests should be represented in closed hearings, and raised a risk of damage to confidence in the inquiry if they are not.
However a lawyer for the Government said no statutory public inquiry has had special advocates to date, and there was no justification to have them in this case.
Katherine Grange KC also contended no provision was made for such appointments in the 2005 Inquiries Act, and cautioned around avoiding unnecessary costs.
She described the Saville Inquiry into the Bloody Sunday atrocity, which lasted for 12 years and cost £195 million, as the background of that Act.
'The language of the statutory scheme, the purpose and the context of the legislation and Parliament's intention, as demonstrated in subsequent legislations all strongly suggest that no such power exists (to appoint a special advocate),' she said.
'Alternatively, we submit that even if such a power existed, it would not be necessary or appropriate for the chair to make any such appointment in this inquiry.
'No inquiry has taken that step to date, even inquiries with a very substantial closed national security element to them, and there is no justification from departing from that approach.'
The hearing room at the Silverbirch Hotel in Omagh (PA)
She added: 'Words that come to mind in the last two days are, it's about reassurance, confidence, robustness.
'One can understand, on a human level, why those points are being made but ultimately, you have to have faith in your own appointment, your independence and the skill of your counsel to your inquiry.'
Earlier, Hugh Southey KC, representing a group of survivors and bereaved families, said the state parties would be felt to have an advantage.
'Everybody thinks that the inquiry is capable of doing a good job. Everybody thinks the counsel to the inquiry are experienced in this field. Everybody thinks they're very well qualified. Everybody thinks they're very diligent, but we need the second tier of representation,' he added.
'Everyone recognises that large key parts of this process are likely to be closed …. it's frustrating for the individuals, because they want to know the truth. They want to know that whatever findings may be made are reliable.
'If they have someone who they have confidence in, who is present, who is, effectively, saying there is no problem here, that adds to confidence in the process, particularly in circumstances where, as I say, the state parties are present, the state parties will have that advantage.'
Alan Kane KC, representing another group of survivors and bereaved families, said they would like their own special advocate for closed hearings.
'Their wish would be to see all the relevant evidence after 26 years, however if there must be closed material, then we say that it should, where possible, be kept to a minimum, and if judgments are to be made then close calls must fall on the side of disclosure rather than being hidden from our families' view,' he said.
'They view a special advocate not as some special bonus or as a challenge to the inquiry legal team but as something that should be granted as they see it, as an additional assistance to them in shining light on any material which is withheld as closed by the state authorities.
'They have that legitimate interest we say, and that certainly is a matter of not only public confidence but in particular the confidence of the families.'
Fintan McAleer, who represents another group of survivors and bereaved families, said they endorsed the submissions made so far.
Lord Turnbull asked Mr McAleer about a point made in written submissions that the 'deep mistrust and suspicion of the state that exists in this country will never be fully allayed unless it's confirmed that every single document and piece of information is placed into the open'.
Mr McAleer responded saying they respect the powers and the processes of the inquiry, but they wanted to reflect the effect of scepticism based on experience.
'The series of revelations over the years since the bomb have served to undermine their trust in the state,' he added.
'We're simply trying to convey the aspiration of the core participants we represent is that this inquiry should be in public in everything that it does, we accept there is a limitation on that, and that paragraph is an attempt to address that.'
Meanwhile, Michael Mansfield KC, who represents the family of the late campaigner Laurence Rush – whose wife Elizabeth was killed in the bomb, said they are not asking for a special advocate to be appointed for them.
They voiced concern about the possibility of delay to proceedings.
Ian Skelt KC, acting for former chief constable Ronnie Flanagan, said his client is 'entirely sympathetic' to the requests of the families and acknowledges why they seek the appointment of special advocates.
He said Mr Flanagan does not seek a special advocate for himself, but acknowledged that having been chief constable at the time of the bombing, he had the authority at that time to view much of the closed material.
However, Mr Skelt said if Mr Flanagan is excluded from the closed processes, he 'may have to ask for some person to represent his interest in closed process beyond the assistance that would be given by the inquiry legal team'.
At the conclusion of the hearings around special advocates on Tuesday afternoon, Lord Turnbull said the issue raised is 'both important and interesting'.
'It's necessary that I take care to reflect on all of those submissions, and I will produce a written decision in due course,' he said.