Breslin v Mckevitt [2011] NICA 33 (07 July 2011)

The appellants, found liable in a civil action for the Omagh bombing, appealed the decision. They challenged the trial judge's reliance on the evidence of a key informant witness. The Court of Appeal re-evaluated the witness's credibility but ultimately dismissed the appeal.

Facts

This case is an appeal against a High Court decision which found the appellants, Michael McKevitt and Liam Campbell, liable in a civil action for the 1998 Omagh bombing. The action was brought by relatives of the victims of the bombing. The trial judge, Morgan J, found the appellants and two other defendants liable for the tort of trespass to the person. The case against the appellants rested heavily on the evidence of David Rupert, an American citizen who, whilst working as an agent for the FBI and MI5, infiltrated dissident republican organisations. Rupert provided detailed testimony about conversations and meetings where McKevitt discussed and accepted responsibility for the Omagh bombing. The appellants challenged the trial judge’s findings of fact, arguing that he had misjudged the credibility of Rupert.

Issues

The primary issue on appeal was whether the trial judge had erred in his assessment of the evidence of David Rupert. The appellants contended that the judge failed to give sufficient weight to Rupert’s admitted duplicity, his financial motivations for providing evidence, and alleged inconsistencies in his testimony. They argued that Rupert was an accomplice witness whose evidence was unreliable and insufficiently corroborated, and that the trial judge’s acceptance of his testimony was ‘plainly wrong’. The appellate court therefore had to determine if the trial judge’s conclusions on fact and credibility could be sustained.

Judgment

The Court of Appeal, with the judgment delivered by Lord Chief Justice Morgan, dismissed the appeal. The court began by reaffirming the high threshold for an appellate court to overturn a trial judge’s findings of fact, especially when those findings are based on the credibility of a witness who has been seen and heard in court. The judgment cited established precedent on this matter:

The approach of an appellate court to a challenge to a trial judge’s findings of fact is well established. Both sides referred us to the speech of Lord Thankerton in Thomas v Thomas [1947] AC 484 where he identified the principles upon which an appellate court should act in an appeal against a judgment of a judge sitting alone. It is not a rehearing but that does not mean that an appellate court is bound by the trial judge’s findings of fact. Where the finding of fact is based upon the credibility of a witness, however, the appellate court must be conscious that it has not had the advantage of seeing and hearing the witness.

The Court of Appeal conducted its own extensive review of Rupert’s evidence and the appellants’ challenges to it. It acknowledged Rupert’s complex and morally ambiguous character, noting his greed, duplicity, and role as an agent provocateur. However, the court also found that there was significant corroboration for many aspects of his testimony from independent sources, including telephone records, travel records, and the evidence of other witnesses. The court analysed the key evidence Rupert gave concerning McKevitt’s admissions of involvement in the Omagh bombing.

Ultimately, the court concluded that the trial judge’s assessment was not flawed. They found that the judge had been fully aware of all the negative aspects of Rupert’s character and had correctly scrutinised his evidence with the necessary caution. The court shared the trial judge’s conclusion on Rupert’s credibility:

In our view, however, whatever his motives and however unattractive his character, Rupert was an impressive witness who gave a coherent and internally consistent account of many matters which was supported in a significant number of respects by other evidence so as to enable us to rely upon it where it was not so supported. Even having made all due allowance for the criticisms properly advanced against him, we consider that we can safely rely upon his evidence. In those circumstances we do not consider that the judge’s material findings of fact were plainly wrong. Indeed, having carried out our own review of the evidence, we agree with his conclusions.

Implications

The decision confirms the significant deference an appellate court will show to a trial judge’s findings of fact, particularly concerning witness credibility. It illustrates the application of this principle in a high-profile and emotionally charged civil case arising from terrorism. The judgment provides a detailed analysis of how courts should approach the evidence of informants and agents provocateurs, balancing their questionable motives and character against the internal consistency and external corroboration of their testimony. The case is a landmark in the use of civil proceedings to achieve a measure of justice for victims of terrorism where criminal prosecution has not succeeded, and it affirmed the applicability of the tort of trespass to the person in this context.

Verdict: Appeal dismissed.

Source: Breslin v Mckevitt [2011] NICA 33 (07 July 2011)