DON'T PRIVATISE JUSTICE

Fenton Bresler says the families of the Omagh

victims deserve sympathy but not support in their private case against the bombers

AT 3.10 p.m. on Saturday, 15 August 1998, a 500 lb car bomb exploded in a crowded shopping centre in Omagh, Northern Ireland. Twenty-nine people and a pair of unborn twins were killed, and some 400 were wounded. It was the greatest single loss of life caused by an atrocity in Ireland, and the Real IRA proudly claimed responsibility.

Condemnation was universal in the civilised world. Tony Blair called it an 'appalling act of savagery' and spoke of his 'total determination to bring the perpetrators to justice'. Bertie Ahern, the Irish Prime Minister, promised that his country would 'ruthlessly suppress those responsible for the attack'. As so often with those two men, the rhetoric was empty.

Exactly three years later, at 3.10 p.m. on Saturday, 11 August 2001, with not a single person having gone on trial on either side of the border, families of the murdered victims made legal history. In the Belfast High Court they sued for damages five men, four living in the Irish Republic, whom they accused of being the bombers or their helpers. And they joined as an additional defendant the Real IRA itself, cio an address in Dundalk in the county of Louth. For the first time, victims of terrorism were suing alleged terrorists in a civil court because the police had failed in their task, As a claimant, whose 12-year-old son had been killed, explained, 'This is the only remedy open to us. If our case is established and an award is made, then at least we will be able to say that these are the people who were responsible. It is not out of revenge. I am doing it for James, not for me, because someone must stand up for him. This government does not.'

The families had raised more than .E300,000 to bring the action. But money is still very much needed for a lawsuit that is likely to be protracted. Such disparate figures as Peter Mandelson and Bob Geldof have lent their support to an Omagh Victims Legal Fund that has been launched.

It is a noble cause, and many will be tempted to contribute; but I cannot be among them. I believe that, as a matter of principle, victims' families should not have recourse to civil proceedings. It should be for the state to prosecute — with all its resources — in such matters.

In fact, this is just the latest in a series of disturbing cases where people denied justice, as they see it, in a criminal court have later sought another form of justice in a civil court. There used to be a cast-iron distinction between civil law and criminal law. If someone committed a crime, they would be prosecuted. If guilty, they would — at least, in theory — be convicted; if innocent, they would — also in theory — be acquitted. You could sue in the civil courts over an act that was both a crime and a civil wrong, but there would usually first have to be a prosecution, successful or otherwise. Even if there were a conviction, it could not even be mentioned in the subsequent civil case. That was regarded merely as the opinion of another court and, as such, inadmissible.

But over the past 20 years that has changed, with civil suits after successful criminal prosecutions becoming commonplace. This has especially been so with motoring cases where a conviction for dangerous or careless driving is now routinely followed by a successful damages claim, the case being settled out of court. Insurers

do not waste money fighting such cases.

But recently a new phenomenon has emerged: unsuccessful criminal trials followed by a civil lawsuit, often successful, brought by grieving relatives. It will be no surprise to discover that it comes to us from the United States. Indeed, we owe it to O.J. Simpson.

His two court hearings — the ninemonth criminal trial resulting in two murder acquittals in 1995 and the successful 'wrongful deaths' civil lawsuit two years later — were, of course, worldwide celebrity events. Today, they have passed into the half-forgotten memories of public consciousness. But they have had a lasting effect on British crime-related litigation. The old divisions between criminal prosecution and civil lawsuit have disappeared.

The latest instance was three months ago, when Sarfraz Najeeb, the Indian student injured in a savage street assault in Leeds, said that he was planning to sue the two Leeds United players, Lee Bowyer and Jonathan Woodgate, who had been acquitted of causing him grievous bodily harm.

In Britain, as in the United States, there is a lower standard of proof in civil than in criminal cases: the less onerous yardstick of 'balance of probabilities' prevails instead of proof beyond reasonable doubt. But, to the victims or their families, that does not matter. The primary motivation is often not money but justice. It is in holding, in some tangible way, a wrongdoer to account. As Ron Goldman's father said, after the successful outcome of the O.J. trial in 1997, 'Our family is grateful for a verdict of responsibility, which is all we ever wanted.'

But one would have thought that getting that verdict was the role of the police. That is why I dislike these second-bite-ofthe-cherry lawsuits. When successful, they are a powerful indictment of the criminal prosecution system. If all police officers, lawyers, judges — and sometimes politicians — did their job effectively, this do-ityourself justice would not be necessary.

In my view, civil suits undermine the importance of finding — and punishing — in a criminal court those who commit heinous criminal acts. If the police did their work correctly, with the required determination and resources, there would be no need for such suits. They provide an unacceptable soft option.

This is amply proved by the Omagh situation. In October 2000, ten months before

the families issued their writ, three of the defendants were named in a BBC television Panorama documentary and, in January of this year, one man, Colm Murphy, was convicted of conspiracy to cause the explosion and sentenced to 14 years' imprisonment by a special criminal court in Dublin.

It is difficult to escape the conclusion that if, for once, Blair and Ahern had really meant what they said and directed their political will less towards saving the 'peace process', upon which their reputations so much depend, and more towards honouring their pledges to bring the perpetrators of this outrage to justice, the families would not have felt the need to launch this lawsuit.

It is almost a return to the primitive tote' of Anglo-Saxon law where there was no criminal law as we understand it today and the state did not have the power to punish transgressors of 'private' or 'personal' acts of violence but only major 'public' crimes, such as treason, cowardice in battle, or sins against the Church. Those were dubbed `botleas', for which the only possible remedy was to declare the man an outlaw — whom anyone could then harm or kill. In effect, private justice was allowed to do the job that central government was too weak or ineffectual to do.

The same basic concept is at the root of the Omagh lawsuit — and I do not like it. I think that our society should have made more progress over the last 1,000 years.