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"Please ... please ... please ... get up off your knees. Please ... please ... please ... leave me out of this please. So love is hard, and love is tough, but love is not what you're thinking of." (1) "The British continue to claim sovereignty over part of our country and while that is the case armed struggle will always be justified." (2)
In the wake of the attacks on the World Trade Center and the Pentagon on September 11, 2001, considerable intellectual energy has gone towards devising new methods to fight terrorism. Largely lost within this discourse is the United Kingdom's (UK) decision to use a potentially revolutionary tool in its war on terrorism, namely, state-sponsored civil suits directed at terrorists. (3) On the surface, this idea appears ingenious. The victims of terrorist acts and/or their families have an opportunity for financial compensation and closure. Moreover, the tool may financially incapacitate terrorist actors, which would severely hamper their ability to carry out future acts of terrorism. Yet, as will be demonstrated, the legality of such a tactic is uncertain, given the suspect status of the tactic under UK and/or international law.
Even if the tactic is legally sound, it raises a series of troublesome and even chilling issues. For instance, the British Government has a tendency to overreach in its legal responses to violent Republicanism, (4) which has fostered increased Republican violence. As such, the British Government needs to take care that its sponsorship of these civil suits does not derail the peace process in Northern Ireland. In addition, there is the potential that use of this tactic to fight terrorism may create "an arbitrary and politically motivated justice system," (5) as well as create an ethically uneasy situation where compensation comes from "blood money." Given these considerations, if the sponsorship approach is deemed legally valid, extreme care and tact must be employed in its application if the approach is to be used at all.
The United Kingdom's ground-breaking move came in response to the tragic Omagh Bombing on August 15, 1998. However, an analysis of these events, as well as an analysis of the questionable legality and potential consequences of state-sponsored civil suits to fight terrorism, must begin with the contentious history of Ireland itself. Beginning with the Norman invasion of Ireland in 1169, the British, with varying degrees of success, began to colonize Ireland. (6) This was most pronounced in the "planting" of Ulster, which "[i]nvolved settling both English colonists and Scottish Presbyterians and Episcopalians on confiscated Irish lands" in Northern Ireland. (7) After centuries of often-violent agitation, the predominantly Catholic Irish formed the Irish Free State in 1922 upon the completion of the Anglo-Irish War. (8) However, the largely Protestant Northern six counties, known as Ulster, remained within the United Kingdom.
In the late 1960s, inspired in part by the Civil Rights Movement in the United States, Catholics in Northern Ireland began to agitate for civil rights. (9) This civil rights agitation was often met with draconian repression, and sectarian fighting ensued. (10) Within the vacuum of sectarian violence, the Provisional Irish Republican Army (IRA) formed in December of 1969 (11) in order to defend Catholics from sectarian attacks and to fight for the reunification of Ireland. The sectarian violence escalated, and the British Government subsequently stripped Northern Ireland's Parliament of its power and imposed direct rule on March 28, 1972. (12) Spasmodic violence between the Provisional IRA and Protestant Loyalists and British Security forces continued for over twenty-five years during a period referred to as "the Troubles." (13)
The 1998 enactment of the Good Friday Accords (14) has served as the practical end of the Troubles. Sinn Fein, the political wing of the Provisional IRA, supported the Good Friday Accords and has bought into the peace process. (15) Yet a small group of hardliners within the Republican community wanted to continue the "'armed struggle' against the British forces in Northern Ireland." (16) They split off and formed the Real IRA, and subsequently continued sporadic attacks on targets deemed impediments to a united Ireland.
On August 15, 1998, police in Omagh, Northern Ireland, received warning of an explosive device. The warning lethally miscalculated the location of the explosives, and a bomb detonated in an area into which police had moved people for their protection. (17) The ensuing blast killed twenty-nine people (as well as two unborn twins) and injured 220 in what has been the single worst loss of life in the Troubles. (18) The Real IRA subsequently claimed responsibility. (19)
Attempts to punish the suspected bombers within the criminal justice system have largely lacked success. Since the bombing, "about 80 people have been arrested and released without charge because of a lack of evidence." (20) Yet what makes the lack of criminal proceedings against the bombers particularly painful to the citizens of Omagh, and to the police in Northern Ireland, is that the identity of the five primary culprits is well known. (21) Michael McKevitt, Liam Campbell, Colm Murphy, Seamus Daly, and Seamus McKenna are widely believed to be the primary culprits behind the bombing. (22) Yet, to date, there has not been a single conviction for the actual execution of the bombing. (23)
The inertia in the criminal case has led the victims' families to seek redress in Civil Court. (24) The United Kingdom forbids "American-style contingent fees" and utilizes fee shifting, which usually requires the loser to pay the winner's costs. (25) Consequently, the plaintiffs needed to raise [pounds sterling]1.5 million to fund the suit. (26)
Initially, the British Government stayed on the sidelines, (27) and the Northern Ireland Law Society failed to provide legal aid to the families. (28) As time progressed, and two of the suspected bombers received legal aid for the civil action, public opinion began to foment that the victims' families were being denied access to the judicial system. (29) The emerging political power of the victims' family members, (30) combined with public opinion, created an uncomfortable situation for the Government.
This situation was eventually averted. On August 8, 2003, the present Northern Ireland Secretary, Paul Murphy, decided to forward the plaintiffs the remaining [pounds sterling]800,000 that they needed, "after discussions with the Department of Constitutional Affairs in London." (31) The justness of this move has been widely hailed within the United Kingdom. (32) Yet the move looks to have more wide-ranging implications than merely ensuring that the Omagh plaintiffs have access to the courts. The move has been hailed by some commentators as a potentially revolutionary new method to fight terrorism, and the Omagh civil action proceedings are being closely watched by other nations eager to add another option to their terror-fighting arsenals. (33)
Largely lost within this atmosphere of self-congratulation are hard questions about the wisdom of this sponsorship tactic. These hard questions begin with the tactic's questionable legality. The suspects have indicated that they intend to challenge the arrangement as a violation of both the common law rule against maintenance, and of the right to a fair trial enshrined within Article Six of the European Convention on Human Rights. (34)
III. THE LEGALITY OF THE SUIT
A. The Law of Maintenance
1. History and Development of the Doctrine
Both commentators and the suspects have indicated that a maintenance defense will likely be raised. (35) The law of maintenance is an "archaic" legal concept within the UK, which forbids lawsuits funded by a third party with "no legitimate interest" in the suit. (36) The origins of the law of maintenance can be traced to medieval times, where it served as both a criminal infraction and a tort used to prevent dubious and manipulative lawsuits from land barons. (37)
The present status of the law of maintenance is uncertain. (38) The Criminal Law Act of 1967 took much of the bite out of maintenance claims, as it abolished criminal (39) and tortuous (40) liability for maintenance in the United Kingdom. Yet some vestige of traditional maintenance claims persisted due to a provision within the Criminal Law Act of 1967, which stipulated that contracts of maintenance could still be deemed "contrary to public policy or otherwise illegal." (41)
Recently, the High Court in London has further narrowed the law of maintenance in Stocznia Gdanska SA v. Latreefers Inc. (42) However, of note to the Omagh defendants, and future terrorism defendants subject to similar state-sponsored civil suits in the UK, is the fact that the Court did state that it is still possible to dismiss a suit due to maintenance. (43) The court stated that a suit can be dismissed for maintenance if there was an "abuse of the court's process." (44) The court went on to hold that such an abuse may occur in situations where there was "[w]anton and officious intermeddling with the disputes of others in which they [the funders] have no interest and where that assistance is without justification or excuse...." (45)
Hence, the balance within a maintenance claim now favors the recipient and the funder, in this case, the Omagh plaintiffs and the British Government, respectively. (46) Under the present regime, a claimant's (the Omagh families) right of access will only be dislodged if, on the particular facts of the case, there is a "significant likelihood of abuse." (47)
2. Basis of the Claim
These suspected terrorists have a fairly serviceable, albeit unlikely, defense that the subsidization is "an abuse of the court's process." (48) A leading Belfast defense solicitor, who wished to remain unnamed, has perhaps articulated the suspects' strongest argument. The solicitor said, "[t]his could be perceived as giving an unfair advantage or at least expressing with money an interest in one half of the case." (49) This sentiment has been echoed in certain segments of the Republican community who believe that "the British government has been covertly encouraging some of the relatives" to bring the civil suit. (50) The prior-mentioned interest and encouragement may stem from the British Government's goal of punishing the Omagh suspects, a goal for which the criminal justice system has proven unsatisfactory. This may create a situation where the court's process is abused, as the state is simply using the Omagh plaintiffs' civil suit as a proxy to punish the defendants.
Not only does the suit appear to be an end run around the criminal justice system, but it poses an additional problem. Stephen Swabey, one of the leading experts on maintenance law, claims that "their civil trial might be tainted because the government was financing the plaintiffs, while also acting as the principle supplier of official evidence against them [the defendants]." (51) This appears to be "an abuse of the court's process" (52) as well, for the Government is interfering in a private civil action, effectively stacking the deck against one side.
3. Governmental Response
While these arguments certainly resonate, they may eventually prove ineffective, given that the British Government has a series of fairly substantial "justification[s] or excuse[s]" (53) for seeing this case go to trial. For example, the United Kingdom has substantial interest in a "full investigation in a legal tribunal of those said to be responsible for the bombing," (54) as a public trial would serve as a much needed and cathartic truth-finding tribunal. This truth-finding tribunal may be of great utility to …