MC KEVITT AND CAMPBELL v. THE UNITED KINGDOM
Inadmissible
Aleš Pejchal;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo;Robert Spano
1. The first applicant, Mr Michael McKevitt, is an Irish national who was born in 1949 and is currently imprisoned in Portlaoise, Ireland. The second applicant, Mr Liam Campbell, is an Irish national, who was born in 1962 and is currently detained in HMP Maghaberry in Northern Ireland. Both applicants are represented before the Court by Mr K. Winters of KRW Law - LLP, a lawyer practising in Belfast. 2. The United Kingdom Government (“the Government”) are represented by their Agent, Mr P. McKell of the Foreign and Commonwealth Office. 3. The Government of Ireland were notified of the applications and were asked if they wished to exercise their right to intervene pursuant to Article 36 § 1 of the Convention and Rule 44 of the Rules of Court. However, they did not seek to exercise this right. 4. The facts, as submitted by the parties, may be summarised as follows. 5. At 3.05pm on 15 August 1998 a 500lb bomb exploded in the centre of Omagh, a town in County Tyrone, Northern Ireland. As a result of the explosion, twenty-nine people were killed, including a woman pregnant with twins, and more than three hundred people were injured. In addition, there was extensive damage to property in the town. The incident was the single worst atrocity in the course of the years of violence which occurred in Northern Ireland from the late 1960s onwards. 6. Approximately half an hour before the blast, three warning calls had been made by callers using a code word previously used by an organisation calling itself Óglaigh na hÉireann, otherwise known as “The Real Irish Republican Army” (“the Real IRA”). The callers gave conflicting and misleading information about the location of the bomb. 7. Following the blast, responsibility was claimed by the Real IRA. However, no individual has been convicted of causing the bomb or the consequent deaths, injuries and property damage. 8. Many of the families who suffered as a result of the Omagh bomb brought an action for damages for trespass to the person, intentional infliction of harm and conspiracy to injure against the parties they believed to be responsible for the incident. Those parties included the Real IRA as an organisation and the two applicants, who they believed were responsible for the planning, production, planting and detonation of the bomb. 9. The principal witness of the plaintiffs in the civil action was D.R., an FBI agent who had infiltrated dissident Republican terrorist groups. 10. On 29 September 2006 the High Court ordered that D.R. could give evidence by video link because he was receiving the benefit of an FBI witness protection program in the United States of America and the Police Service of Northern Ireland (“PSNI”) had assessed the risk to his life to be severe if he were to give evidence in Northern Ireland. 11. On 9 March 2007 the plaintiffs indicated that D.R. was no longer available to give evidence by video link. They submitted an affidavit explaining that the FBI was no longer prepared to make him available because of the threat to his security and an unexplained medical condition. In his absence, they sought to rely on evidence he had given in two previous criminal trials. 12. In or around 2003 the first applicant had been convicted by the Special Criminal Court in Dublin of membership of the IRA and directing terrorism during the period from August 1999 to October 2000. D.R. had been the principal witness for the prosecution. His evidence, which described the involvement of the Real IRA in the Omagh bombing, the direct involvement of the first applicant in procurement and training within that organisation, and the presence of the second applicant at army council meetings, was based on three statements made by him between January 2001 and March 2001, and documents disclosed by the FBI and British Security Service, including approximately 2,300 pieces of email traffic between him and his handlers. 13. At the trial D.R. had given evidence over fourteen days. For eleven of those days he was cross-examined by counsel for the first applicant, who attacked his credibility as a witness. D.R. did not rely on the email documentation in his direct evidence and he was not cross-examined in relation to it. 14. In 2001, following a sting operation by the British Security Service, three persons had been arrested by the Slovakian police and extradited to the United Kingdom to stand trial for offences committed under the Terrorism Act 2000. The subsequent criminal proceedings took place at Woolwich Crown Court (for further details see O’Farrell and Others v. the United Kingdom, no. 31777/05, 5 February 2013). Neither applicant in the present proceedings was involved in the criminal trial. However, in the course of those proceedings a tape was produced containing a compilation of conversations between a person named “Karl” and members of the British Security Service. It was clear from the conversations that “Karl” was directing the Real IRA’s operation in Ireland and seeking to procure arms and/or funding from foreign Governments. In the course of the Woolwich proceedings D.R. identified “Karl’s” voice as that of the first applicant. His evidence was supported by that of an Inspector in An Garda Síochána (“the Garda”), the National Police Service of Ireland. 15. The plaintiffs applied for permission to rely on the transcript of evidence and materials disclosed during the Dublin proceedings. However, the first applicant submitted that the introduction of this hearsay evidence would deprive him of the opportunity to cross-examine D.R. and prevent the court from assessing his credibility. 16. The High Court judge heard evidence about the effort made by the plaintiffs and the first applicant to secure D.R.’s attendance to give video link evidence. He accepted that the plaintiffs’ solicitor had made a number of attempts to cause the FBI to alter its view; the plaintiffs’ solicitor had attempted to obtain some written explanation for D.R.’s inability to give evidence but had been unable to do so; any application to the relevant judicial authorities in the United States of America to take the evidence of D.R. would likely be opposed by the FBI; and although the first applicant had applied to the court to institute a request for D.R. to be called for crossexamination under the Hague Convention, that request had been refused by the United States’ authorities. The judge therefore accepted that the plaintiffs and the first applicant had taken every possible step to secure the attendance of D.R. as a witness. 17. The judge further considered whether or not the action in trespass constituted a “criminal charge” in accordance with the autonomous jurisprudence of this Court. However, he decided that there had been no “criminal charge” as the proceedings were classified as civil under domestic law and any award the court could make would be compensatory. Although the plaintiffs’ had stated that the objective of the proceedings was not to obtain compensation but to “see the applicants held to account”, the judge considered that their subjective intention was of “little or no bearing” in deciding whether the proceedings were criminal or civil. The judge therefore held that the protections contained in Article 6 § 3 of the Convention did not apply as of right. 18. The judge then considered whether the evidence could be admitted pursuant to the Civil Evidence (Northern Ireland) Order 1997 (see paragraph 48 below). In answering this question in the affirmative, he noted that although his power to exclude relevant evidence was circumscribed by the 1997 Order (see paragraph 48 below), the court’s obligation to ensure a fair trial within the meaning of Article 6 of the Convention could be achieved by permitting the plaintiffs to admit the evidence and applying the appropriate safeguards contained within the Order. In particular, he indicated that once the evidence was received it would be open to the applicants to submit that he should accord it no weight. 19. The plaintiffs also sought to rely on a copy of the “Karl” tape. Counsel for the first applicant contended that pursuant to the Security Service Act 1989, the tape had been disclosed unlawfully by the Metropolitan Police to the plaintiffs. 20. In a decision dated 22 October 2008 the High Court Judge found that the tape had been lawfully disclosed to the plaintiffs and could therefore be admitted in evidence, although the weight to be given to it would be “a matter for submissions”. 21. At the hearing, the first applicant chose not to give evidence in answer to this case against him. The second applicant had initially entered a defence to the claim but subsequently instructed his solicitors to come off record. 22. The High Court judge first considered the appropriate standard of proof and concluded that it should be the balance of probabilities since the seriousness of the allegation against the applicants alone was not a reason for departing from the civil standard. 23. The judge accepted that the Omagh bombing was part of a campaign of terror involving the use of explosive devices in locations where there was a large number of members of the public. In view of the fact that the warnings were specifically designed to prevent detection of the location of the bomb car before the explosion, the judge was satisfied that those involved in the planning, production, planting and detonation of the bomb recognised the likelihood of serious injury or death from its detonation but had decided to take that risk. 24. The plaintiffs sought to adduce evidence of the first applicant’s conviction by the Special Criminal Court in Dublin for directing terrorism. The judge held that the conviction could not be admitted as evidence that the first applicant had committed the acts which grounded the conviction. However, he found that the conviction could be admitted at common law as evidence of bad character, if probative and relevant. 25. The first applicant mounted an attack on the character of D.R. based in substantial part on answers he gave during cross-examination in the Dublin proceedings. In particular, in one email D.R. had suggested an intention to perjure himself in unrelated proceedings; he had once described himself as a “whore” and a “mercenary”; he had been charged with passing bad cheques; there was evidence to suggest that he had been prepared to facilitate criminal activity as long as there was a suitable financial reward for him; he was paid for the information provided to the FBI and the British Security Service; and he had had a reputation as a smuggler, drug dealer and “bad guy”. 26. In assessing the weight to be attached to the evidence of D.R., the judge identified two separate questions: whether the email material represented a fair and accurate account of the actual traffic that passed between D.R. and his handlers, and whether the statements and emails represented a fair and accurate account of the exchanges between D.R. and the first applicant. Both of those questions required consideration of the Civil Evidence (Northern Ireland) Order 1997. 27. In respect of the first question, the judge made the following observations: The statements which were prepared for the purpose of giving evidence in the Dublin proceedings were not prepared contemporaneously, but the emails represented actual traffic between D.R. and his handlers. In virtually all cases the emails were generated within hours of the end of lengthy meetings, but caution had to be exercised in relation to isolated comments in response to queries raised by handlers where there may have been failures of recollection or misinterpretation. D.R.’s motivation for embarking on his activity was the prospect of financial reward. He had been dishonest in his dealings with money and in representation of circumstances, particularly where his financial interests and reputation were involved. D.R. was engaged under a financial contract with his handlers. Since he had a financial interest in producing material that was likely to be considered significant, care had to be exercised in assessing the material. The extraordinary level of detail, which included identification by name of a significant number of people whom it was highly unlikely that D.R. would previously have known was compelling evidence of an attempt to provide an accurate and comprehensive record of actual meetings. The materials were generated for the purpose of enabling handlers to assess intelligence and there was no reason to think that the content had been manipulated in any particular way. The hearsay evidence of D.R. was decisive in the sense that without it the plaintiffs could not succeed against the first applicant. The applicant had a proper opportunity to investigate the credibility of D.R. He had had the advantage of the disclosures which had been made for the purposes of the criminal trial, including the transcript of cross-examinations. It was recognised that some material might be missing and there was the possibility of human error, having regard to the limited interaction necessary to deal with the encryption of these materials. 28. In light of the above considerations, the judge was satisfied to a very high standard of probability that the exchanges set out in the emails represented actual traffic that occurred between D.R. and his handlers. 29. The judge further considered Article 6 of the Convention and, in particular, the Chamber judgment in Al-Khawaja and Tahery v. the United Kingdom, nos. 26766/05 and 22228/06, 20 January 2009. Although he recognised that this was not a criminal case and the minimum rights set out in Article 6 § 3 were therefore not expressly engaged, he accepted that the entitlement to a fair hearing would often involve consideration of many of the issues identified as minimum rights within Article 6 § 3 and it was therefore necessary to examine whether the admission of the hearsay evidence and the giving of weight to it would render the hearing unfair. In this regard, the judge noted that the guarantee of a fair hearing required observance of the principle of equality of arms and the principle that proceedings as a whole should be adversarial; in other words, each party had to be afforded a reasonable opportunity to present his case under conditions that did not place him at a substantial disadvantage vis-à-vis his opponent, and be given the opportunity to have knowledge of and comment on the evidence adduced by the other party. Nevertheless, the judge noted that in this case the material upon which the plaintiffs relied had long been known to all of the parties. Consequently, the defendants, who had available the disclosure which was made within the criminal trial and the transcript of the extensive cross-examination of D.R. at that trial, had had a proper opportunity to investigate D.R.’s credibility. 30. In respect of the second question of whether the material was an accurate record of events and conversations, the judge made the following observations: There was evidence of dishonesty by D.R. in respect of financial matters and the fact that he was being paid for intelligence should properly cause the court to exercise caution in relation to the accuracy of this material. There was, however, overwhelming evidence that D.R.’s account in relation to attendance at meetings and gatherings was accurate – including evidence from Garda officers involved in surveillance of the first applicant – and he could be confident that the emails represented a reliable record of D.R.’s activities. The Woolwich evidence was strongly supportive of the content of the emails: taken together with the hearsay statement made in the Dublin proceedings that the person identified as “Karl” was in fact the first applicant, the Woolwich evidence would appear to confirm that the first applicant had been actively involved in the procurement of terrorist materials, that he had a leadership role in relation to procurement and was a committed terrorist. 31. The judge was therefore satisfied that he should give considerable weight to the content of the email traffic without offending the first applicant’s fair trial rights under Article 6 of the Convention. 32. The principal evidence against the second applicant was also that of D.R., who had recorded his attendance at meetings of the army council where the second applicant appeared to be in charge. In addition, there was independent telephone evidence which indicated that the drivers on the “bomb run” had phoned the second applicant a number of times on the morning of the Omagh bombing. 33. The judge, having already dealt with the weight to be given to the hearsay evidence of D.R. in considering the position of the first applicant, was satisfied that there was also cogent evidence that the second applicant was a member of the army council of the Real IRA at the time of the Omagh bomb, and that he held an important leadership position in the Real IRA both at that time and subsequently. He was further satisfied that there was cogent telephone evidence demonstrating that the second applicant had been involved in directing the operation and participating in it. 34. The judge therefore found both applicants liable in trespass to the plaintiffs. In reaching this conclusion, he described the applicants’ failure to answer the case against them (the first applicant having elected not to give evidence and the second applicant having not attended the hearing at all, either in person or through representatives – see paragraph 21 above) as “inexplicable” and opined that these failures had made the case against them “overwhelming”. 35. The quantum of damages was assessed separately for each plaintiff depending on the losses suffered, and included financial awards to reflect dependency (the loss of financial support from the deceased); bereavement (a fixed sum of GBP 7,500 payable for grief and trauma following the death of certain specified family members); psychiatric injury to the surviving relatives; loss of earnings; “aggravated damages” to compensate for the injury to feelings flowing from consequences such as the indignity, mental suffering, disgrace and humiliation which may be caused by tortious conduct; and funeral costs. 36. The applicants appealed against the judge’s decision on the ground that he had been wrong to conclude that the appropriate standard of proof was the civil standard of proof on a balance of probabilities. However, the Court of Appeal found that the High Court judge had correctly analysed the authorities and was right to apply the civil standard. A tort was a claim for civil law remedies – the findings of the court gave rise to no criminal sanctions and would not in themselves assist in any prosecution – and did not cease to be such because the conduct giving rise to the tort was also criminal. 37. Counsel for the first applicant also argued that the High Court judge had been wrong to attach the weight he did to the evidence of D.R., since evidence had shown him to be a demonstrable confidence trickster who manipulated information at every turn; that the evidence of the first applicant’s conviction by the Special Criminal Court in Dublin should not have been found to be admissible at common law; and that the judge should not have drawn any adverse inference from the decision of the first applicant not to answer the case against him. 38. However, the Court of Appeal observed that the fact that a witness had been demonstrated to be unreliable and, indeed, mendacious and dishonest on important occasions did not mean that everything he said should be discounted as valueless and unreliable. The judge had made it clear that D.R.’s hearsay evidence had to be approached with care. Moreover, he was evidently alive both to the financial motive to lie and exaggerate and to the evidence from D.R. himself which indicated dishonesty in his own financial affairs. Therefore, on a fair reading of the judgment the judge was fully conscious of serious flaws in D.R. as a witness of truth on some issues. 39. Insofar as the judge had held that the evidence of the first applicant’s conviction by the Special Criminal Court in Dublin could be admitted at common law as evidence of bad character, the Court of Appeal found that he had erred. However, this error did not affect the outcome of the proceedings, as the Woolwich evidence had already established that the first applicant was a committed and active terrorist who was willing to participate in serious terrorist crime. The Dublin conviction therefore added no material weight to the plaintiffs’ case against him. 40. Furthermore, the Court of Appeal found that in the circumstances of what was a relatively strong prima facie case the judge had been fully entitled to draw an adverse inference from the first applicant’s failure to give evidence. The first applicant had clearly had access to material facts but gave no explanation for his failure to call any evidence or go in the witness box. 41. The second applicant appealed on the grounds that the judge should have subjected the hearsay evidence to proper scrutiny in the context of the case against him instead of adopting the findings in relation to the case against the first applicant, especially as he had not been a party to the criminal proceedings in Dublin and had not, therefore, had an opportunity to cross-examine D.R.; that the judge had been wrong to make the evidential leap that his alleged use of a particular mobile telephone connected him to the bomb and placed him in a position of control and command; and that it was wrong of the judge to draw inferences from his absence from the proceedings as he had been unrepresented (his assets were frozen in the Republic of Ireland by the Criminal Assets Bureau and his legal aid had been revoked). 42. However, the Court of Appeal found that the judge had been entitled to reach the conclusion that he did in respect of the evidence of D.R. While his analysis of the evidence in the context of the first applicant’s case was not of itself determinative of the question whether it was reliable evidence against the second applicant, he had been aware of the relevant considerations in determining the strength and weaknesses of the evidence. Moreover, there was some corroboration as the Garda had observed the second applicant and D.R. together and the telephone evidence also connected him to the bombing. Linking the pieces of evidence together, the judge was justified in reaching the conclusion that he did. 43. The Court of Appeal further found that the fact the second applicant had declined to testify meant that he had nothing to contradict the evidence against him, which strengthened that evidence even in the absence of any inference which could be drawn. 44. In a decision dated 7 July 2011 the Court of Appeal dismissed the appeals of both applicants. 45. On 27 July 2012 the applicants were refused permission to appeal to the Supreme Court. 46. A claim for trespass to the person, which may be brought for a wilful or negligent act of direct force, is classified as a civil action under domestic law. It is tried before a civil court, which does not determine whether a criminal offence has been committed in order to assess liability. 47. Where liability for trespass to the person is established, the plaintiff is entitled to claim damages to compensate for his or her loss. The general principle underlying the award of damages for tortious acts is to seek to put the plaintiff in the financial position he or she would have been in had the tort not taken place. 48. The admissibility of hearsay evidence in civil proceedings in Northern Ireland is governed by the Civil Evidence (Northern Ireland) Order 1997. Article 3 of the Order provides that in civil proceedings evidence shall not be excluded on the ground that it is hearsay. 49. Articles 4, 5 and 6 contain safeguards relating to the admission of hearsay evidence: “4. —(1) Rules of court may provide that, where a party to civil proceedings adduces hearsay evidence of a statement made by a person and does not call that person as a witness, any other party to the proceedings may, with the leave of the court, call that person as a witness and cross-examine him on the statement as if he had been called by the first-mentioned party and as if the hearsay statement were his evidence in chief. (2) Without prejudice to any other power to adjourn proceedings, where, in accordance with rules of court made by virtue of paragraph (1), the court gives a party leave to call the maker of a statement as a witness, the court may adjourn the proceedings, on such terms as to costs or other matters as it thinks fit, for the purpose— (a) of enabling the witness to be brought before the court; or (b) of giving the party concerned a proper opportunity to investigate the statement or the credibility of the witness. 5. —(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence. (2) Regard shall be had, in particular, to whether the party by whom the hearsay evidence is adduced gave notice to the other party or parties to the proceedings of his intention to adduce the hearsay evidence and, if so, to the sufficiency of the notice given. (3) Regard may also be had, in particular, to the following— (a) whether it would have been reasonable and practicable for the party by whom the evidence is adduced to have produced the maker of the original statement as a witness; (b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated; (c) whether the evidence involves multiple hearsay; (d) whether any person involved had any motive to conceal or misrepresent matters; (e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose; (f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight. 6. — (3) Where in civil proceedings hearsay evidence is adduced and the maker of the original statement, or of any statement relied upon to prove another statement, is not called as a witness— (a) evidence which, if he had been so called, would have been admissible for the purpose of attacking his credibility as a witness is admissible for that purpose in the proceedings; (b) evidence may, with the leave of the court, be adduced of any matter which, if he had been called as a witness, could have been put to him in cross-examination in relation to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party; and (c) evidence tending to prove that, whether before or after he made the statement, he made another statement inconsistent with it is admissible for the purpose of showing that he has contradicted himself; and (d) evidence which, if he had been so called, would have been admissible for the purpose of supporting his credibility as a witness is admissible for that purpose in the proceedings, but, in the case of evidence of another statement made by that person, only with the leave of the court; and where evidence of another statement which is admissible by virtue of sub-paragraph (c) or (d) is adduced accordingly, it shall also be admissible as evidence of the matters stated.”