NI High Court: No participation of special advocates in Omagh bombing inquiry

About this case:

• Citation:
  [2026] NIKB 32
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Mr Justice Gerry McAlinden

Delivering judgment for the High Court, Mr Justice Gerry McAlinden urged, “let this Inquiry get to work and tackle a myriad of issues arising out of its Terms of Reference rather than getting bogged down and paralysed in issues relating to the instruction of special advocates. The wait for the truth in respect of the Omagh atrocity has been far too long… Have confidence in Lord Turnbull and his vastly experienced legal team and work with them in co-operation to uncover that long awaited truth.”

Mr Hugh Southey KC and Mr Aidan McGowan appeared on behalf of the Applicant instructed by Fox Law Solicitors, Mr Paul Greaney KC, Mr Nicholas De La Poer KC, Mr Edward Pleeth and Mr John Rafferty appeared on behalf of the Respondent instructed by the Crown Solicitor’s Office, Ms Kate Grange KC and Mr David Reid appeared on behalf of the Secretary of State for Northern Ireland instructed by the Crown Solicitor’s Office, Mr Ian Skelt KC and Mr Andrew McGuinness appeared on behalf of Sir Ronnie Flanagan instructed by MTB Law, Ms Leona Askin appeared on behalf of Nicola Hamilton instructed by Campbell and Haughey Solicitors, Mr Michael Mansfield KC and Ms Nicola Rowntree appeared on behalf of Anthony Rush instructed by Desmond J Doherty, Elev8Law Solicitors, Mr Alan Kane KC, Ms Beth McMullen and Mr Michael Smyth appeared on behalf of the John McBurney Core Participants instructed by Anderson Gillan Barr Solicitors, Mr Joseph Aiken KC appeared on behalf of the Police Ombudsman for Northern Ireland instructed by Claire McManus Solicitor, Michael Roche appeared on behalf of Emmett Tunney, Notice Party instructed by Roche McBride Solicitors.

Background

In July 2021, the court in Re Gallagher [2021] NIQB 85 concluded that the State had failed in its obligation to conduct an investigation compliant with Article 2 of the European Convention on Human Rights (ECHR) into the 1998 Omagh bombing on the basis that there was plausible evidence that the bombing could have been thwarted, that this needed to be properly investigated and that such an investigation had not occurred. 

The Omagh Bombing Inquiry was set up in response to that judgment. The inquiry is to examine inter alia whether there was any failure by the UK authorities to act on information, evidence or intelligence available prior to the bombing which could arguably have prevented the tragedy. 

In November 2025, Lord Turnbull, Chair of the inquiry, refused to permit the appointment of special advocates to participate in closed hearings in the course of the inquiry, finding that this was neither necessary nor desirable.

The applicant sought judicial review of the ruling, contending that the Inquiries Act 2005 permitted such appointments and that the participation of special advocates was required to represent the interests of the applicant and other core participants in order to comply with Article 2 ECHR and with common law fairness principles.

The High Court

Mr Justice McAlinden firstly reviewed inter alia the terms of reference of the inquiry, its proposed procedures, the hearing arrangements, and the role of core participants.

Noting that the primary function of the core participants in such an inquiry is to assist the chair in ascertaining the truth, Mr Justice McAlinden highlighted that core participants “are not there to mount a case or to push for a certain outcome” and so legal representation is not provided to core participants at the cost of the inquiry, although certain core participants would have “very difficult questions to answer” concerning their conduct or inaction and that it was clearly appropriate that they would have the benefit of legal advice.

The court rejected the argument that the implied obligation of investigation under Article 2 ECHR mandated the appointment of special advocates to represent the interests of family core participants in closed hearings in circumstances where the protocols and procedures, including disclosure, the provision of gists of closed material where possible, and opportunities to suggest lines of inquiry, permitted these parties to participate to the extent necessary to safeguard their legitimate interests.

Mr Justice McAlinden was not swayed by the contention that the principle of “equality of arms” applied in the context of an independent statutory inquiry, where the procedure was not adversarial in nature.

The judge further considered that the instruction of special advocates for the purpose of “marking the Inquiry chair’s and counsel to the Inquiry’s homework” was not necessary to satisfy the test of meaningful participation, with neither Article 2 nor natural justice requiring a supervisory role to be grafted onto independent statutory inquiry practice and procedure.

Concluding inter alia that the inquiry procedures were capable of producing a “manifestly fair” process compliant with the principles of natural justice, the court also found it clear from the statutory framework and architecture of the 2005 Act and the Inquiry Rules 2006 that there was no express power or authorisation to facilitate the appointment of special advocates in this context.

In those circumstances, the court was obliged to examine whether it was the parliament’s intention that there should exist such an implied power or authorisation.

Noting that a number of other statutory schemes clearly contemplated the appointment of special advocates where closed hearings are embarked upon, the court outlined that “Having regard to the overall structure of the Act and Rules, there is a strong argument for concluding that if Parliament had intended to include within the scheme a power to recommend the appointment of special advocates, it would have said so expressly. The fact that it had not done so is in my view a powerful indicator of the absence of any such power.”

The court also pointed to inter alia certain aspects of the 2005 Act, including s.2 thereof which makes it clear that an inquiry under the 2005 Act has no power to determine civil or criminal liability, s.17 which ensures that the need to control cost is a valid consideration for the chair when conducting and planning proceedings, and s.19 and s.20 of the 2005 Act which set out the extent to which proceedings can be held in private and evidence and documentation can be withheld from the public domain in the public interest.

Concluding that the legislative framework did not permit the appointment of special advocates where intercept evidence and materials formed part of the material to be considered, the court endorsed Lord Turnbull’s conclusion that the deployment of special advocates was prohibited in the context of the inquiry.

Conclusion

Accordingly, the High Court dismissed the application.

In the Matter of an Application by Michael Gallagher for Leave to Apply for Judicial Review [2026] NIKB 32