High Court of Justice in Northern Ireland Queen's Bench Division Decisions

"4 That evidence of what happened on an earlier occasion may make the occurrence of what happened on the occasion in question more or less probable can scarcely be denied. If an accident investigator, an insurance assessor, a doctor or a consulting engineer were called in to ascertain the cause of a disputed recent event, any of them would, as a matter of course, inquire into the background history so far as it appeared to be relevant. And if those engaged in the recent event had in the past been involved in events of an apparently similar character, attention would be paid to those earlier events as perhaps throwing light on and helping to explain the event which is the subject of the current inquiry. To regard evidence of such earlier events as potentially probative is a process of thought which an entirely rational, objective and fair-minded person might, depending on the facts, follow. If such a person would, or might, attach importance to evidence such as this, it would require good reasons to deny a judicial decision-maker the opportunity to consider it. For while there is a need for some special rules to protect the integrity of judicial decision-making on matters of fact, such as the burden and standard of proof, it is on the whole undesirable that the process of judicial decision-making on issues of fact should diverge more than it need from the process followed by rational, objective and fair-minded people called upon to decide questions of fact in other contexts where reaching the right answer matters. Thus in a civil case such as this the question of admissibility turns, and turns only, on whether the evidence which it is sought to adduce, assuming it (provisionally) to be true, is in Lord Simon's sense probative. If so, the evidence is legally admissible. That is the first stage of the inquiry."

Applying that approach I consider that the fact that a phone attributed to a defendant was active at or about the site of a bomb or improvised explosive device at a place in Northern Ireland far removed from the residence of either of the defendants and being used in a manner similar to the use of phones by those allegedly connected to the planting of the Omagh bomb is relevant to the issue of whether the same phones or other phones were so used in Omagh. Secondly I consider that any evidence that the phones were in contact with those in respect of whom there is evidence that they had a terrorist disposition is evidence tending to support the view that the holders of the phones were using them for terrorist purposes. Thirdly although it might be argued that the making of calls by those who had been in contact with the relevant phones to others who had terrorist dispositions is evidence of involvement in a terrorist operation it is clear that the connection is more remote and the extent of inquiry required to test the evidence much wider.

"5 The second stage of the inquiry requires the case management judge or the trial judge to make what will often be a very difficult and sometimes a finely balanced judgment: whether evidence or some of it (and if so which parts of it), which ex hypothesi is legally admissible, should be admitted. For the party seeking admission, the argument will always be that justice requires the evidence to be admitted; if it is excluded, a wrong result may be reached. In some cases, as in the present, the argument will be fortified by reference to wider considerations: the public interest in exposing official misfeasance and protecting the integrity of the criminal trial process; vindication of reputation; the public righting of public wrongs. These are important considerations to which weight must be given. But even without them, the importance of doing justice in the particular case is a factor the judge will always respect. The strength of the argument for admitting the evidence will always depend primarily on the judge's assessment of the potential significance of the evidence, assuming it to be true, in the context of the case as a whole."

In this case I consider that the material relating to calls made and received by phones attributable to either the fifth or sixth named defendant upon which the plaintiffs rely in respect of either of the incidents at Lisburn or Banbridge should be admitted. In each case the defendants are in a position to deal with the issue of attributability and if attributable to deal with the background to the calls. I further consider that evidence of criminal convictions, whether in this jurisdiction or otherwise, such as membership of an unlawful association or possession of explosives or causing explosions of those to whom calls were made or from whom calls were received by phones attributable to either the fifth or sixth named defendant should be admitted having regard to the fact that each defendant will be in a position to deal with those calls as above. If the plaintiffs rely on these convictions as evidence of disposition it will be necessary to take into account their date when determining the weight if any to be attributed to them and I leave open any submission that a conviction is so old that it should not be admitted. I consider that any wider evidence concerning the extent of telephone traffic is likely to be of limited significance in the context of the trial as a whole and potentially may lead to significant additional investigation at trial which would be of very limited value. Accordingly as a matter of discretion I will not permit the introduction of this wider evidence.