Breslin & ors -v- McKenna & ors, [2008] IESC 43 (2008)

Docket Number:110 112 117 & 118/08
Party Name:Breslin & ors, McKenna & ors
Judge:Geoghegan J.
 
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THE SUPREME COURT

Appeal No. 110/2008

Murray C.J.

Hardiman J.

Geoghegan J

BETWEEN/

MARK CHRISTOPHER BRESLIN, CATHERINA

ANNE GALLAGHER, MICHAEL JAMES GALLAGHER,

AUDREY MARTHA MOONEY, CAROLINE FAITH MARTIN,

EDMUND WILLIAM GIBSON, ELIZABETH CATHERINE

GIBSON, ROBERT JAMES GIBSON, WILLIAM JAMES

GIBSON, WILMA SELINA KYLE, STANLEY JAMES

McCOMBE, GERALD GEORGE McFARLAND, MARIAN

ELAINE RADFORD, PAUL WILLIAM RADFORD,

COLIN DAVID JAMES WILSON, DENISE FRANCHESCA

WILSON, GARRY GODFREY CHARLES WILSON,

GERALDINE ANN REBECCA WILSON AND

GODFREY DAVID JAMES WILSON

Plaintiffs/Respondents

and

SEAMUS McKENNA, JOHN MICHAEL HENRY McKEVITT,

LIAM CAMPBELL, MICHAEL COLM MURPHY AND

SEAMUS DALY

Defendants/Appellants

JUDGMENT of Mr. Justice Geoghegan delivered the 16th day of July 2008

giving reasons for concurrence with the judgment of the court pronounced ex tempore on 4th April 2008

This was an appeal and cross-appeal from a judgment of the High Court (Gilligan J.) delivered on the 20th March, 2008 on the issue of whether the defendants/appellants are permitted by the law of this jurisdiction to comply with orders made by the High Court of Justice in Northern Ireland and the Court of Appeal of Northern Ireland requiring production for inspection of books of evidence and transcripts relating to criminal trials against the appellants in this jurisdiction in the Special Criminal Court. The Northern Ireland proceeding is a civil action brought by victims and relatives of victims of certain criminal explosions carried out in Omagh, Co. Tyrone almost ten years ago and commonly known as "The Omagh Bombings". In the Northern Ireland action the respondents are seeking to establish that each of the appellants was actively involved in the Omagh bombings.

The Northern Ireland courts did not make an absolute order for the production of these documents but made the orders subject to there not being any rule of law in this jurisdiction against their production. Furthermore in the case of the fourth-named appellant the order was confined to those parts of the books of evidence and transcript relevant to telephone evidence given at the trials, a matter to which I will be returning.

Proceedings by way of special summons were issued in the High Court on behalf of the respondents on the 22nd May 2007. In the special endorsement of claim on that summons five specific reliefs were sought. These were and are:

1. A declaration that there is no impediment under Irish law preventing the defendants from producing for inspection the transcripts and books of evidence relating to the criminal proceedings concerning them before the Special Criminal Court.

2. A declaration that the documents supplied to the defendants for the purposes of their criminal trials before special criminal courts and in particular the transcripts and books of evidence are not subject to an implied undertaking that they would not be used for any other purpose other than the defence of the criminal proceedings. 3. If necessary an order granting the defendants leave to produce to the plaintiffs the transcripts and books of evidence furnished to them for the purposes of criminal proceedings before the Special Criminal Court.

4. If necessary, an order varying the terms of any implied undertaking pursuant to which the defendants were furnished with transcripts and books of evidence from the Special Criminal Court.

5. Furthermore or in the alternative and if necessary, a declaration that in so far as a rule of law precludes, prohibits or prevents the production of the transcripts and books of evidence from the Special Criminal Court pursuant to the Order of the High Court of Justice in Northern Ireland then the said rule of law is incompatible with the obligations of the Republic of Ireland under the European Convention of Human Rights and Fundamental Freedoms.

The judgment of Gilligan J. which is the subject of the appeal and cross-appeal herein was the judgment of the High Court delivered in those proceedings. For the sake of completion, I should mention that prior to the issue of those proceedings the respondents applied to the Special Criminal Court before which the various criminal proceedings had taken place for a ruling in their favour in relation to compliance with the Northern Ireland orders but that court took the view that it had no jurisdiction to deal with the matter. It is not relevant to consider whether that ruling was correct or not. It is now redundant in the light of the High Court proceedings. Irrespective of whether the ruling as to jurisdiction by the Special Criminal Court was correct or not, I am satisfied that the High Court had full jurisdiction to deal with the matter. That indeed was also the view of the Special Criminal Court based on case law to which I will be referring.

The judgment of Gilligan J. helpfully sets out the relevant criminal record of each of the respondents. For the purposes of this judgment, I will give a shorter summary.

Seamus McKenna, the first-named defendant, was convicted by the Special Criminal Court of unlawful and malicious possession of explosive substances with intent to endanger life or cause serious injury to property contrary to statute and was sentenced to six years imprisonment from the 15th June 2003. That conviction was not appealed and Mr. McKenna is now out of prison.

John Michael McKevitt, the second-named defendant, was convicted of membership within the State of an unlawful organisation styling itself the Irish Republican Army contrary to section 21 of the Offences against the State Act, 1939, as amended, and was sentenced to a term of imprisonment for six years. He was further convicted by the Special Criminal Court of directing the activities of an illegal organisation styling itself the Irish Republican Army in respect of which a suppression order had been made pursuant to section 19 of the said Act of 1939, as amended, and on that offence he was sentenced to a term of twenty years imprisonment as from 29th March, 2001. He appealed that conviction to the Court of Criminal Appeal. The appeal was dismissed but the certificate enabling him to appeal further to the Supreme Court was issued under section 29 of the Courts of Justice Act, 1924. That appeal was heard in February 2008 by this court and the court has reserved judgment.

Liam Campbell, the third-named defendant was convicted by the Special Criminal Court on two counts of membership of an unlawful organisation and sentenced to four years imprisonment on both counts, the sentences to run concurrently. He is now out of prison.

Michael Colm Murphy, the fourth-named defendant, was convicted by the Special Criminal Court of unlawfully and maliciously conspiring with another person not before the court to cause an explosion of a nature likely to endanger life or cause serious injury to property within the State or elsewhere...

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