1. The matter originally came before the court by way of an ex parte application for an injunction against the BBC to restrain it from broadcasting a programme in which it appears that the Defendant Corporation intends to name individuals alleged to have participated in the Omagh bombing atrocity. In the course of the arguments that have arisen in respect of the injunction matter it became clear that there was a question as to whether the proceedings raised a matter which if at all should be before the court on a judicial review application. Mr Stephens QC on behalf of the Corporation at the outset argued that the action itself is misconceived. If there is any remedy, which he said there is not, he argues that it should be pursued in a judicial review application. Against that background the question then arises as to whether leave should be granted at this stage to the plaintiff to bring a judicial review application.

2. The plaintiff under Order 53 in an application for leave is normally required to put before the court a statement setting out a description of the applicant and the relief sought and the grounds on which the relief is sought together with an affidavit verifying the facts relied on. It appears that in practice the court is prepared in urgent matters to grant leave upon oral submissions or evidence with an undertaking that necessary documentation will be filed to backup the oral submissions. In this case I have been prepared to entertain an oral application for leave to apply and I have heard argument from Mr Coyle in relation to why leave should be granted. In an ex parte application on occasion the intended respondent having notice of the ex parte appears and seeks leave to intervene at the ex parte stage and Mr Stephens on behalf of the Corporation has done so today.

3. Mr Coyle has indicated that his judicial review application would seek prohibition to prohibit the BBC from disseminating information on the programme about the identity of the individuals concerned. He said that in addition he would seek an injunction which is one of the remedies now available in respect of a judicial review application. He argues that the BBC is a creature of statute, a public corporation which he contends represents the state and it is funded out of licence fees and is a body which is subject to the public law remedies of judicial review in situations such as have arisen in this case. In relation to the challenge to the proposed broadcast Mr Coyle defines his remedies by virtue of the Convention which is incorporated into domestic law by the Human Rights Act 1998 which became effective on the 2 ^nd of this month. He argues that the provisions of Article 6 are material. It provides so far as material

4. Mr Coyle’s argument is based on the proposition that his client the plaintiff, a close member of the families of the deceased who died in the atrocity, is a victim of the proposed conduct of the BBC which he said says would result or could result in the prevention of a fair and public trial of any charges arising out of the atrocity against individuals named in the programme.

5. The starting point in relation to the asserted breach of a Convention right is to look at the Convention right which is being relied on and to see at this stage whether the person aggrieved can establish that he has an arguable case in relation to a breach of the Convention right. It is also clear that the person before he can assert a breach of the Convention in such a way as to get a remedy must be able to establish that he is “a victim” of the breach of the Convention. The word “victim” is a term of art within the Convention and Convention case law. It appears from cases such as Markx v Belgium 2 EHRR 330 which were cited to me that the European Court of Human Rights (“the ECHR”) has taken the view that a “victim” means a person directly and immediately affected by the breach of the Convention right, somebody affected personally by the breach of the Human Convention right asserted.

6. In this instance what Article 6 deals with is the rights of a person when it comes to the determination of his civil rights and obligations or where criminal charges against him fail to be determined. The wording is fairly clear and specific. It is in the determination of “his” civil rights and obligations or of any criminal charge against “him” that he is entitled to a fair and public hearing. “Everyone” in the context of the article is to be read as referring back to the person whose civil rights and obligations are to be determined or in respect of whom criminal charges are pending. The fact is that in this instance the plaintiff is not a person who is going to be affected in the sense of having his civil rights and obligations determined or having any criminal charges against him determined.

7. Mr Coyle argues that in order to deal with the Convention rights the broad intention is that the court should read Article 6 as in fact conferring on everybody affected by a criminal prosecution through to the trial a right to ensure that the procedure is conducted in a fair and proper way. He argues that if the actions of the BBC would result in the risk of the individuals named not having a fair trial or seeking to stop the trial on the basis that they cannot have a fair trial then the consequence of that is that his client has been affected prejudicially by the lack of a fair and public trial of the issue against the named individuals. He was not able to point to any authority which establishes that that proposition is accepted by the ECHR and there is no domestic law that would support that approach. I conclude that this is not a case in which the plaintiff could establish a breach of a Convention right contained in Article 6.

8. In this context one must also refer to Article 17 which provides that nothing in the Convention may be interpreted as implying for any state or person any right to engage in any activity or perform any acts aimed at the destruction of any of the rights set forth therein or at their limitation to a greater extent than is provided for in the Convention.

9. It is argued that the action of the BBC is a form of state action that limits the right of a fair trial of the named individuals and that is beyond what is provided for in the Convention. The plaintiff comes up again against the problem. “Is he a victim for the purposes of the Convention?”. I have concluded that he is not a “victim”. It follows if that is correct that he would not have a “sufficient interest” for the purposes of a judicial review application having regard to section 7(3) of the Act which provides that if proceedings are brought on an application for judicial review the applicant is to be taken “to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act”. The victimhood precondition to a breach of a Convention right is not established in the circumstances of the case. It thus follows that I am not satisfied that the plaintiff has made out a case for the leave to bring a judicial review in relation to the matter and that really disposes of the judicial review aspect of the matter unless the applicant wishes to pursue a remedy in the Court of Appeal which may or may not be the case.

10. In view of the conclusion which I have reached it follows that the plaintiff has no cause of action for an injunction and I dismiss his application for an injunction. This does not prejudice his right to ask the Attorney-General to consider bringing an application or to seek to challenge any refusal by him to do so.

11. I grant leave to appeal.

12. Transcribed: 9 October 2000.