ANALYSIS:The scope of the evidence in the trial was again an issue in yesterday's proceedings, writes Carol Coulter, Legal Affairs Editor
WHEN MONDAY'S proceedings came to an end the presiding judge, Mr Justice Morgan said that it was not the practice to allow the defendants to make an opening statement at this stage in a trial. "They can if they wish to. But it is the practice not to," he said.
According to legal sources, this is a reference to a practice that arises from a ruling of the Northern Ireland Court of Appeal. In other common law jurisdictions, notably the Irish and English courts, the defendants give an outline to the plaintiffs of their case.
Lord Brennan QC has asked the defendants a number of times what their case is. During legal submission yesterday he said that despite not pleading any alternative to the position being put by the plaintiffs, the defendants were claiming that the bomb was not intended to injure or kill.
In later submissions Lord Brennan again complained that the defendants had not outlined what their case would be. "They should tell us what their case is. This is not a criminal trial. This means we should know where we are going." Brian Fee QC, for Seamus McKenna, said he did not accept that the defendants should be required to set out the basis of their defence. The case made out against the defendants was very thin. The first-named defendant (Mr McKenna) might make a submission later in the case that there was no case against him. If so, it would be wrong to attempt to give answers to specific questions.
One indication of an aspect of the defendants' case was given, however, when Dermot Fee QC, having questioned Sgt Wesley McCracken on the warnings given, said: "The plaintiffs' case is that this was a deliberate attempt to kill and injure seriously. A more reasonable explanation is that this was a mess, that things went wrong. What we have established is that you were not given information about the bomb." Mr Justice Morgan indicated that he would study the authorities on the points being made in the submissions, and return to them later.
Lawyers for four of the six defendants (neither the Real IRA nor Liam Campbell are represented) claimed that evidence was being introduced that was not relevant to the claim. Mary Higgins QC, representing Colm Murphy and Seamus Daly, said evidence was being brought in by way of hearsay. This was not a case about what happened in Woolwich or what happened in Dublin, she said. "Yesterday we heard about the bodies of people who were not related to the action."
Mr Justice Morgan said that part of the way in which the case was being put was that the defendants deliberately sought to achieve a high degree of personal injury, and that this was the desired consequence. The facts were not being strengthened in any way by reference to other bombings. These were not facts at issue. "They say that their evidence is relevant to this. It seems to me to be relevant."