ANALYSIS:New ground has been broken in the Omagh relatives' civil case, writes CAROL COULTER.
ASKED FOR the provenance of the "rules of engagement" for yesterday's taking of evidence in the Omagh civil trial, Judge Conal Gibbons said that they came from him.
He was referring to the conditions laid down for the asking of questions of the Garda witnesses being called by the plaintiffs.
Counsel for Michael McKevitt, Michael O'Higgins SC, commented that the writing of the constitution for such proceedings was an unfair onus to place on the District Court judge, who found himself drafting rules for the implementation of an important EU directive on taking evidence in a civil or commercial trial in another EU state.
It was the first time that a Northern Ireland judge sat in an Irish court hearing evidence in a civil trial, and the first time that the conditions for such a hearing were laid down.
This is also the first time this EU directive on the taking of evidence in civil trials, which was made in 2001, is being used in this jurisdiction. While it was intended for use in a civil trial, it is widely accepted that the relatives who are the plaintiffs in this action are seeking to attribute responsibility for a criminal act.
This makes it a highly unusual civil trial, in that most of the evidence is drawn from the investigation of a very serious criminal act - the mass murder of 29 people 10 years ago. That included investigation of suspected terrorist activity, including covert surveillance.
This gave rise to difficulties for the Irish Government, with members of the Garda Síochána giving evidence concerning their investigations, particularly into terrorist-related activity, in another jurisdiction. They could not plead public interest immunity if asked questions they considered might compromise ongoing investigations or their personal safety.
Last February the presiding judge in the High Court in Belfast, Mr Justice Declan Morgan, ordered that a formal request be made to the judicial authorities in Dublin for their help in securing the testimonies sought. He indicated he would come south to participate in the hearing.
The request was made under the 2001 directive, translated into Irish law by Statutory Instrument 102 of 2008. This was only made last month, indicating that it was prompted by the action of the Northern Ireland court.
Yesterday's hearing clarified the respective roles of various participants in the hearing. Under the Statutory Instrument, responsibility for the hearing falls to a District Court judge, in this case Judge Conal Gibbons, who drew up the rules under which the evidence would be given. Mr Justice Morgan was present, but only to observe, unless invited to comment or ask a question by Judge Gibbons.
Judge Gibbons said he would be asking him for his opinion on the admissibility of evidence, but added: "He is a judicial authority, but he has no direct role. I am the presiding judge and I will decide issues."
Mr Justice Morgan then said: "I want to make it absolutely clear that I have no jurisdiction in the Republic of Ireland. I will contribute only at the request of the presiding judge."
Earlier, Judge Gibbons had stressed to counsel for the defendants that he had no role in ruling on the type of questions that could be asked. His function was to assist in the collection of evidence for the case, which was being decided by the Northern Ireland court. Any issues concerning the nature of the questions, and the admissibility of evidence, was for the judge in that court.
Yesterday's proceedings concluded with an agreement that submissions on the questions to be put would be made to the Northern Ireland judge. However, this may not be the last clarification of the respective roles that will be required.