McKEVITT v. THE UNITED KINGDOM

Communicated on 4 March 2014

FOURTH SECTION

Applications nos 61474/12 and 62780/12
Michael McKEVITT against the United Kingdom
and Liam CAMPBELL against the United Kingdom
lodged on 18 September 2012

STATEMENT OF FACTS

The applicant in the first case, Mr Michael McKevitt (“the first applicant”), is an Irish national who was born in 1949 and is currently detained in Portlaoise Prison, Dublin.

The applicant in the second case, Mr Liam Campbell (“the second applicant”), is an Irish national who was born in 1962 and is currently detained in HMP Maghaberry, Lisburn.

Both applicants are represented before the Court by Mr K. Winters of KRW Law LLP, a firm of solicitors based in Belfast.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

1. The Omagh bombing

At 3.05 pm on 15 August 1998 a 500lb bomb exploded in the centre of Omagh, a town in Country Tyrone, Northern Ireland. As a result of the explosion, twenty-nine people and two unborn babies were killed 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.

Approximately half an hour before the blast, three warning calls had been made by callers using a code word previously used by an organization calling itself Óglaigh na hÉireann, otherwise known as “The Real Irish Republican Army” (“the Real IRA”). However, the callers gave conflicting and misleading information about the location of the bomb.

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.

Many of the families who suffered as a result of the Omagh bomb brought civil proceedings against the parties they believed to be responsible for the incident, including the Real IRA as an organization and the two applicants.

2. Relevant criminal proceedings

a. The Dublin proceedings

In or around 2003 the first applicant was convicted by the Special Criminal Court in Dublin of membership of the IRA and directing terrorism during the period August 1999 to October 2000. The principal witness for the prosecution had been David Rupert, an FBI agent who had infiltrated dissident Republican terrorist groups. At the hearing he gave evidence over fourteen days, during eleven of which he was cross-examined by counsel for the first applicant. His evidence was based on three statements made by him between January 2001 and March 2001. In addition, disclosure from both the FBI and the British Security Service consisted of approximately two thousand three hundred pieces of email traffic between David Rupert and his handlers and four ring binders of documents. David Rupert did not rely on the email documentation in his direct evidence and he was not cross-examined in relation to it. Rather, the cross-examination focused on his credibility as a witness.

b. The Woolwich proceedings

In 2001, following a sting operation by the British Security Service, three persons were 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 (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 David Rupert 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.

3. The civil proceedings

The Plaintiffs brought an action for damages against the applicants and a number of other defendants for trespass to the person, intentional infliction of harm and conspiracy to injure. In support of their allegations against both applicants, the Plaintiffs sought to rely on the evidence of David Rupert and the first applicant’s conviction by the Special Criminal Court in Dublin of membership of the IRA and directing terrorism.

The Plaintiffs had applied to have David Rupert’s evidence taken by video link because he was receiving the benefit of an FBI witness protection program 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. On 29 September 2006 the High Court ordered that he could give evidence by video link against both applicants.

a. Preliminary application concerning the admissibility of hearsay evidence

On 9 March 2007 the Plaintiffs indicated that David Rupert 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 the transcript of the evidence he gave during the Dublin proceedings as well as the statements and emails generated by him and disclosed to the first applicant in the Dublin proceedings. However, the first applicant submitted that the introduction of David Rupert’s hearsay evidence would deprive him of the opportunity to cross-examine the witness and the court of the opportunity to assess his credibility.

The High Court Judge heard evidence about the effort made by the Plaintiffs to secure David Rupert’s attendance to give video link evidence and made the following findings:

 the FBI had advised the Plaintiffs’ solicitor that David Rupert would not be available due to his current health and increased security concerns;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 David Rupert’s inability to give evidence but had been unable to do so;in the absence of any indication as to the nature of David Rupert’s medical condition it was impossible to know whether or not it was such as to make it likely that he would be unable to give evidence;there was no evidence any assessment had been carried out in respect of the risk to David Rupert if he were to give evidence by video link; andany application to the relevant judicial authorities in the United States of America to take the evidence of David Rupert would likely be opposed by the FBI.

In deciding whether or not to submit the hearsay evidence, the judge first considered whether or not the relevant proceedings constituted a criminal charge in accordance with the autonomous jurisprudence of this Court. He noted first, that the proceedings were classified as civil under domestic law; secondly, that any award the court could make would be compensatory and the extent of the damage caused could not change the character of the proceedings from compensatory to punitive; and thirdly, that the nature of the proceedings was not altered by the Plaintiffs’ expressed desire to “see the applicants held to account”. The judge therefore concluded that the proceedings were civil in nature and that the protections contained in Article 6 § 3 of the Convention did not apply as of right.

The law governing the admissibility of hearsay evidence in civil proceedings in Northern Ireland was found in the Civil Evidence (Northern Ireland) Order 1997 (see section on Domestic Law and Practice). In summary, it provided that relevant evidence should not be excluded on the ground that it was hearsay. However, various safeguards were provided and, in setting out the factors the court should consider in deciding what weight to give to hearsay evidence, the Order expressly provided for the circumstance where no weight at all was given to it.

Although the judge recognized that the court was under an obligation to preserve fair trial rights, he noted that in cases such as the present his power to exclude relevant hearsay evidence was circumscribed by the 1997 Order. In a decision dated 6 May 2008, he concluded that:

“Conscious of my obligation to ensure a fair trial for all of the parties I consider that this is properly achieved by permitting the plaintiffs to admit the evidence and applying the appropriate safeguards contained within the 1997 Order. That does not in any way diminish the entitlement of any defendant to a fair trial in this action nor does it prohibit or predetermine a submission on behalf of the defendants once the evidence is received that I should accord it no weight. I consider that such an approach is indicated by the statutory scheme of the 1997 Order and is consistent with the obligation under Article 6 of the ECHR to secure the fair trial rights of all the parties in the litigation.”

b. Preliminary application concerning the admissibility of the Woolwich evidence

The Plaintiffs also sought to rely on the evidence produced in the course of the Woolwich proceedings; in particular, a copy of the tape recording of the conversations between “Karl” and members of the British Security Service. However, counsel for the first applicant contended that pursuant to the Security Service Act 1989 (see section on Domestic Law and Practice), any further disclosure of the tape could only lawfully be made for the purposes set out in that Act. It could not be disclosed for the purpose of civil proceedings and it had therefore been disclosed unlawfully by the Metropolitan Police to the Plaintiffs. The Plaintiffs, on the other hand, argued that once the tape had been disclosed in the Woolwich proceedings, the material was no longer subject to the statutory scheme.

In a decision dated 22 October 2008 the High Court Judge found that the 1989 Act imposed no express separate duty on the recipient of the information, once disclosure had been made, and no such duty could be read into the Act. He therefore concluded that the tape was lawfully disclosed to the Plaintiffs by the Metropolitan Police.

c. The substantive hearing before the High Court

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.

α. Standard of proof

The High Court Judge first considered the appropriate standard of proof and concluded that it should be the balance of probability standard. Although he accepted that there was a residual category of civil cases where it was appropriate to apply the criminal standard, those cases were generally characterized by the fact that the proceedings were usually taken by or on behalf of the State; and they normally involved some material interference with freedom of movement or other personal liberty and criminal sanctions were prescribed for any breach of the orders that were made. None of those features were present in this case and the judge did not consider that the seriousness of the allegation alone was a reason for departing from the civil standard.

ß. Intent

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 misleading information given in the warning calls, he further accepted that it was the firm intent of those involved in the planning, production, planting and detonation of the bomb that it should explode causing massive damage to Omagh town centre. Moreover, it was plain to any of those involved in the planning, production, planting and detonation of the bomb that there was a likelihood its detonation would kill or injure some of those in its vicinity.

γ. Evidence of previous convictions

The Plaintiffs sought to adduce evidence of the first applicant’s conviction by the Special Criminal Court in Dublin for directing terrorism. However, the judge ruled that he was bound by Hollington v. Hewthorn [1943] KB 587, which indicated that the fact a defendant in a civil action had been convicted of a criminal offence could not normally be adduced for two reasons: first, the conviction merely proved that another court had acted on evidence which was unknown to the tribunal trying the civil action; and secondly, the reception of the conviction as evidence infringed the hearsay rule as well as the rule against opinion. He therefore held that the conviction could not be admitted as evidence that the first applicant had committed the acts which grounded the conviction. Nevertheless, he found that the conviction could be admitted at common law as evidence of bad character, if probative and relevant.

δ. Hearsay evidence against the first applicant

The principal evidence against the first applicant was the hearsay evidence of David Rupert. That evidence was comprised of three statements made by David Rupert between January and March 2001 for the purpose of the Dublin proceedings, nearly two thousand three hundred pages of emails between him and his “handlers” and certain small extracts from the transcript of evidence in the Dublin proceedings, a further statement dealing with certain aspects of the emails, and two statements dated 21 February 2002 made in connection with the Woolwich proceedings. This evidence described the involvement of the Real IRA in the Omagh bombing and the direct involvement of the first applicant in procurement and training within that organisation.

In his defence, the first applicant mounted an attack on the character of David Rupert based in substantial part on answers he gave during cross-examination in the Dublin proceedings. In particular, in one email he 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; he had filed for bankruptcy on a number of occasions; he had shown a propensity in his business and legal affairs to blame others when doing so would put him in a better light; there was evidence to suggest that he had been prepared to facilitate criminal activity involving organized crime 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”.

In assessing the weight to be attached to the evidence of David Rupert, the judge identified two separate questions: whether the email material represented a fair and accurate account of the actual traffic that passed between David Rupert and his handlers, and whether the statements and emails represented a fair and accurate account of the exchanges between David Rupert and the first applicant. Both of those questions required consideration of the Civil Evidence (Northern Ireland) Order 1997.

In respect of the first question, the judge made the following observations:

 The Plaintiffs had taken every reasonable step to seek to ensure that David Rupert was available to give evidence in the proceedings and attend for cross examination.The first applicant had been given a proper opportunity to investigate David Rupert’s credibility having regard to what had transpired in the Dublin proceedings.In respect of the matters to which regard must be had under Article 5(3) of the Civil Evidence (Northern Ireland) 1997 Order, the judge observed:–

 It would not have been reasonable or practicable for the Plaintiffs to have produced David Rupert as a witness.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 David Rupert 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.David Rupert’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.David Rupert 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 about whom it is highly unlikely that David Rupert 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 David Rupert 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 David Rupert. 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 in collation.

Finally, the judge considered Article 6 of the Convention and concluded:

“This, of course, is not a criminal case and the minimum rights set out in Article 6 (3) are, therefore, not expressly engaged. The entitlement to a fair hearing, however, will often involve consideration of many of the issues identified as minimum rights within Article 6 (3) and in my view in this case it is necessary to examine whether the admission of this evidence and the giving of weight to it would render the hearing unfair. The minimum rights set out in Article 6 (3) are in the nature of protections afforded to the individual against the State in circumstances where the state is seeking to exercise its retributive power of punishment against the individual. The minimum rights are, therefore, designed to establish a balance between the state and the individual which must, of course, recognise the substantial investigative powers available to the state and the extent of resource also available to it. The nature of the balance must also recognise the potentially significant consequences for the individual in terms of possible loss of freedom or deprivation of property.

In a civil case the balance is different. Here the state is seeking to resolve competing claims by individuals who have no connection with the state. There is no question of punishment. The purpose of the proceedings is to uphold respect for the proper objectives of distributive justice. In relation to the specific issue with which this evidence is concerned the plaintiffs and their representatives were not a party to any conversations between Rupert and [the first applicant]. The plaintiffs’ case, however, is that [the first applicant] was a party to those conversations. He is, therefore, in a position to deal directly with the assertion that he was engaged in the conversations recounted by Rupert in the e-mail correspondence. It is clear, however, that the requirement for a fair hearing requires observance of the principle of equality of arms and the principle that proceedings as a whole should be adversarial. In litigation involving opposing private interests this requires that each party must be afforded a reasonable opportunity to present his case -- including his evidence -- under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent. Each party must also be given the opportunity to have knowledge of and comment on the observations filed or evidence adduced by the other party (see Dombo Beheer v The Netherlands (1994) 18 EHRR 213 at paragraph 33 and Buchberger v Austria (2003) 37 EHRR 13 at paragraph 50).

In this case the material upon which the plaintiffs rely has long been known to all of the parties. I have already indicated that I consider that the defendants have had a proper opportunity to investigate the credibility of Rupert. The defendants have had the advantage of the disclosure of which was made within the criminal trial. That material has been used in accordance with article 6 of the 1997 Order to introduce evidence which could have been put to him in cross-examination if he had attended as a witness but which could not have been adduced by the defendants if he had given evidence because of the collateral evidence rule. The defendants have had available to them the transcript of the extensive cross-examination of Rupert by experienced defence counsel which was directed to the question of his credibility. That is the factual issue which [the first applicant] and fifth named defendant contest at this trial. Although the e-mails were not relied upon by the prosecution or defence in the criminal trial they were available to [the first applicant] at all times and it is clear that the substance of the statements repeats in summary form many of the matters referred to in the e-mails. I accept that there is some disadvantage to [the first applicant] in that I am not in a position to assess the demeanour of Rupert as a witness. It is important to note, however, that the jurisprudence of the European Court recognises that the testing of the witness might occur before the trial and it does not appear, therefore, that this disadvantage is perceived to be substantial according to the Court’s case law. I also accept that there may be matters which Mr O’Higgins in cross-examination might pursue with Rupert. [The first applicant] suggests that Rupert might have been cross-examined as to whether his e-mails really did connect the Real IRA with the Omagh bomb. He makes the point that the e-mails never asserted [the first applicant] was in the Real IRA. The organisation in respect of which [the first applicant] was convicted was Oglaigh na hEireann, not the Real IRA. All of these points it seems to me are in any event the subject of submission on behalf of [the first applicant]. It is asserted that there would have been further cross-examination about Rupert’s tax affairs but given the extensive cross-examination to which I had been referred it is difficult to see how [the first applicant] is substantially disadvantaged by the lack of the opportunity to reopen that material. There are circumstances in which the reliance on evidence where there was an inability to require a witness to attend for cross-examination could constitute a breach of article 6 (1) of the ECHR but in light of the extensive previous cross-examination of this witness as to his credibility by experienced counsel on behalf of [the first applicant] and the extent of disclosure of material in relation to the credibility of this witness by agencies in the United Kingdom, the United States and the Republic of Ireland I consider that I can give substantial weight to this evidence without offending [the first applicant’s] fair trial rights under Article 6 of the ECHR.”

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 David Rupert in respect of financial matters and the fact that he was being paid for intelligence services should properly cause the court to exercise caution in relation to the accuracy of this material;There was, however, overwhelming evidence that David Rupert’s account in relation to attendance at meetings and gatherings was accurate and he could be confident that the emails represented a reliable record of David Rupert’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.

The judge was therefore satisfied that he should give considerable weight to the content of the email traffic.

ε. Hearsay evidence against the second applicant

The principal evidence against the second applicant was also that of David Rupert. In particular, he had recorded his attendance at meetings of the Army Council where the second applicant appeared to be in charge. In addition, there was 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.

The judge concluded that:

“I have already dealt with the weight to be given to the Rupert material in considering the position of [the first applicant]. I am satisfied on the basis of this material that there is cogent evidence that [the second applicant] was a member of the Army Council of the Real IRA at the time of the Omagh bomb. I am further satisfied that he held an important leadership position in the Real IRA both at that time and subsequently. I am satisfied that there is cogent evidence that the 430 phone was being used by [the second applicant] at the time of the Omagh bomb and that the two communications between the 585 phone and the 430 phone on the day of the bomb demonstrate [the second applciant’s] involvement in directing the operation and participating in it.”

ζ. Liability

In relation to liability, the judge noted that the case against the first applicant depended upon the hearsay evidence of David Rupert and that he had decided to give considerable weight to the content of the e-mail traffic, which demonstrated that the first applicant had held a significant leadership role in the Real IRA at the relevant time; that he had had a particular responsibility in relation to procurement; and that in those circumstances the availability of the materials to prepare the bomb could only have occurred with his support and approval. Having previously found that there was a policy decision to reduce the amount of time available to locate and defuse bombs, the judge drew the inference that this was a policy decision instigated or approved by the first applicant in his leadership position. In light of the fact that there was a proper inference to be drawn that he was responsible for authorising the provision of the material for the bomb the judge therefore concluded that he was liable in trespass to the Plaintiffs on the basis that he intended that the bomb should explode and that he foresaw the likely consequence of personal injury, particularly having regard to the nature of the time allowed for clearance. In any event the judge considered that by virtue of this leadership role he was liable as aiding, counselling and directing the commission of the tort. The judge further considered that the first applicant’s failure to give evidence in answer to this case against him was inexplicable and made the case against him overwhelming.

The judge was also satisfied that there was cogent evidence that the second applicant was a member of the Army Council of the Real IRA at the time of the Omagh bombing and that he had held an important leadership position in it at that time and subsequently. Moreover, the judge found that in his case it was also inexplicable that he should not have answered this case if he had had an answer to it. As a consequence, the judge considered that the case against him was overwhelming and found that he was liable in trespass to the Plaintiffs.

η. Damages

The judge assessed damages recoverable in respect of each of the Plaintiffs and awarded aggravated damages.

d. Proceedings before the Court of Appeal

The applicants appealed against the judge’s decision on the ground that the judge 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 of proof. A tort was a claim for civil law remedies and did not cease to be such because the conduct giving rise to the tort was also criminal. In a case such as the present the findings of the court gave rise to no criminal sanctions and would not in themselves assist in any prosecution. The litigation remained, in effect, litigation between two private sets of individuals.

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 David Rupert; 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.

With regard to the first ground, counsel for the first applicant argued that evidence had shown David Rupert to be a demonstrable confidence trickster who manipulated information at every turn; neither he nor the FBI had supplied a proper reason for his failure to give evidence by video link; and it was unclear whether or not the entirety of the email evidence was properly before the court.

However, the Court of Appeal noted that the fact a witness was demonstrated to be unreliable and, indeed, mendacious and dishonest on important occasions was not itself determinative of the question whether everything he said should be discounted as valueless and unreliable. The judge had made it clear that David Rupert’s hearsay evidence had to be approached with care. Moreover, he was clearly alive both to the financial motive to lie and exaggerate, and to the evidence from David Rupert 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 David Rupert as a witness of truth on some issues. The judge had also properly taken into consideration the evidence relating to the unavailability of David Rupert to give evidence and was satisfied that both the Plaintiffs and the Defendants had taken every possible step to ensure his attendance.

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, it found that this error did not affect the outcome 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.

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. In particular, it noted that 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.

The second applicant sought to appeal against the High Court Judge’s decision 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 David Rupert; that the judge had been wrong to make the evidential leap that his alleged use of a particular mobile phone 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).

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 David Rupert. 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 David Rupert 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.

The Court of Appeal further found that the fact the second applicant had declined to give evidence 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.

Therefore, in a decision dated 7 July 2011 the Court of Appeal dismissed the appeals of both applicants.

On 2 December 2011 the applicants were refused permission to appeal to the Supreme Court.

B. Relevant domestic law and practice

1. Hearsay evidence in civil proceedings

The admissibility of hearsay evidence in civil proceedings in Northern Ireland is governed by the Civil Evidence (Northern Ireland) Order 1997, which provides as follows:

“3.—(1) In civil proceedings evidence shall not be excluded on the ground that it is hearsay.

(2) All common law rules providing for exceptions to the rule against hearsay in civil proceedings are superseded by this Order.

(3) In this Order—

(a)“hearsay” means a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated; and .

(b) references to hearsay include hearsay of whatever degree. .

(4) Nothing in this Order affects the admissibility of evidence admissible apart from this Article.

(5) The provisions of Articles 4 to 6 (safeguards relating to hearsay evidence) do not apply in relation to hearsay evidence admissible apart from this Article, notwithstanding that it may also be admissible by virtue of this Article.

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.”

2. Disclosure of confidential information

The Security Service Act 1989 provides for the disclosure of confidential information in certain circumstances. It provides as follows:

“1.— (1) There shall continue to be a Security Service (in this Act referred to as “the Service”) under the authority of the Secretary of State.

(2) The function of the Service shall be the protection of national security and, in particular, its protection against threats from espionage, terrorism and sabotage, from the activities of agents of foreign powers and from actions intended to overthrow or undermine parliamentary democracy by political, industrial or violent means.

(3) It shall also be the function of the Service to safeguard the economic well-being of the United Kingdom against threats posed by the actions or intentions of persons outside the British Islands. .

(4) It shall also be the function of the Service to act in support of the activities of police forces, the National Criminal Intelligence Service, the National Crime Squad and other law enforcement agencies in the prevention and detection of serious crime.

(5) Section 81(5) of the Regulation of Investigatory Powers Act 2000 (meaning of “prevention” and “detection”), so far as it relates to serious crime, shall apply for the purposes of this Act as it applies for the purposes of the provisions of that Act not contained in Chapter I of Part I.

2.— (1)The operations of the Service shall continue to be under the control of a Director-General appointed by the Secretary of State.

(2) The Director-General shall be responsible for the efficiency of the Service and it shall be his duty to ensure—

(a) that there are arrangements for securing that no information is obtained by the Service except so far as necessary for the proper discharge of its functions or disclosed by it except so far as necessary for that purpose or for the purpose of the prevention or detection of serious crime or for the purpose of any criminal proceedings; and .

(b) that the Service does not take any action to further the interests of any political party;

(c) that there are arrangements, agreed with the Director General of the National Criminal Intelligence Service, for co-ordinating the activities of the Service in pursuance of section 1(4) of this Act with the activities of police forces, the National Criminal Intelligence Service, the National Crime Squad and other law enforcement agencies.”

COMPLAINTS

The applicants complain under Article 6 of the Convention that the civil proceedings did not amount to a “fair hearing”. In particular, they submit that the proceedings were essentially criminal in nature, that the appropriate standard of proof should have been the criminal one, and that the admission of the hearsay evidence of David Rupert violated Article 6 § 3(d) of the Convention. In the alternative, if the proceedings could not be described as criminal in nature, they submit that the admission of the hearsay evidence violated Article 6 § 1 of the Convention.

QUESTIONS TO THE PARTIES

1. Was Article 6 under its “criminal head” applicable to the trespass proceedings? If so, did those proceedings comply with the requirements of Article 6 §§ 1 and 3(d)?

2. On the basis that Article 6 § 1 was applicable to the trespass proceedings only under its “civil” head, were those proceedings “fair” for the purposes of that provision?

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