The programme provoked an unusual alliance between the Ulster Unionist leader, David Trimble, the Sinn Fein President, Gerry Adams, the Conservative spokesman on Northern Ireland, Andrew MacKay, and the Irish Prime Minister, Bertie Ahern. None of them thought that transmission was in the public interest. I profoundly disagree and so did the senior BBC management who recommended to the Director General, Greg Dyke, that the programme be shown.

Despite a joint RUC-Garda Shiocana investigation of unprecedented scale, the Omagh bomb inquiry had hit a familiar roadblock: the silence of witnesses. It beggars belief that there do not exist today along the border friends, relatives or neighbours who don’t know something of assistance to the authorities about the 15 men suspected of being involved in all the different stages of the bombing. These witnesses are either understandably afraid to speak; or, as a point of principle, they refuse to deal with the Gardai or the RUC because the RUC would inevitably be involved in a trial, whether in Belfast or Dublin; or because they believe that no good will come of more Irishmen going to jail. The overriding purpose of the programme was to appeal to the good will of potential witnesses in whatever category. Without knowledge of the names of suspects, potential witnesses may have been unaware of vital evidence they might possess.

David Trimble suggested that we were playing the TV ratings game. This was oddly cynical. Panoramas on “The Troubles” have traditionally scored our lowest ratings. Gerry Adams argued for a kind of parity of condemnation. He said that because anonymity had been granted to some British soldiers during Lord Saville’s current inquiry into the events of “Bloody Sunday “ when 13 civil rights demonstrators were shot dead, Real IRA bomb suspects shouldn’t be named either. Bertie Ahern accused us of bandying about names [before he had seen the programme] and Andrew MacKay said we were “grossly irresponsible” and “self indulgent.” Both argued we could prejudice future proceedings, thereby depriving the relatives of seeing the guilty locked up. This was also the basis of the attempt to injunct us three days before transmission, in the High Court in Belfast, by Lawrence Rushe who suffered the tragic loss of his wife Libby.

Incorruptible

The programme alleged that four men had either lent or used mobile telephones which had travelled from the Irish Republic to Omagh, where they were used at the time the car bomb was being parked, and then back again to the Republic. The pattern of calls and their changing locations were consistent with their having been used to communicate between a bomb car travelling in convoy with a scout car to check the road ahead. The records of two of these telephones also fitted with them having been used in previous Real IRA bombings.

When I confronted the men with a series of questions about the phone records, they hid behind locked doors, refusing to come out. So we sent their solicitor written questions which they also refused to answer, although their solicitor stated on their behalf that they had no involvement with the Omagh bombing. The court would not be influenced by the failure of the four suspects to answer my questions. It would, however, be interested to hear what their answers might be in the witness box.

On the day of transmission, there was a further attempt to ban the programme. This time the High Court saw the Northern Ireland Human Rights Commission flexing its muscles with the European Convention on Human Rights, which had become part of British law the previous week. The Commission was put on a statutory footing as part of the Good Friday peace agreement. So it’s an official watchdog funded by the taxpayer and using taxpayer’s money. It argued that Panorama would breach no fewer than five articles of the Convention. In the Commission’s view, pretty well everyone’s rights were about to breached: the relatives’ right to see a prosecution, the rights of the police to pursue their investigation, the rights of the suspects to a fair trial, privacy and a family life, and to protection from what they referred to as “trial by media”. The Commission argued that “no public interest” would be advanced by the programme.

It’s hard to argue against human rights but the logic of the Commission’s case would have meant that no prima facie evidence of criminal conduct should ever be exposed in public for fear of prejudicing something or someone. This could have put an end, for example, to broadcasters and newspapers exposing acts of corruption. Fortunately with only 90 minutes to go before transmission, Mr Justice Kerr agreed that such a blanket ban would have been unacceptable in a liberal democracy such as ours. But it seems strange that a body committed to human rights had to be reminded of this fundamental right to free expression. Meanwhile, the BBC has been warned by solicitors acting for three of the four men we named that we can expect writs for defamation, and that they will seek punitive damages. We’ll see.

It’s certainly true that, financially, the plaintiffs have little to lose because libel cases in the Irish Republic are usually handled on a no-win-no-fee basis. Indeed, defending defamation there is altogether a very much tougher and more expensive business than in the UK. In effect, the procedures in Irish libel courts are so favourable to the plaintiff that lawyers have described them as a plaintiff’s charter. Hearsay evidence is not admissible so we might expect the plaintiffs to seek to hide from the jury the witness evidence about these four suspects which has already been given to the Irish police. The reluctance of these witnesses through fear to give evidence in person is one reason why no-one has yet been charged directly with the Omagh bombing.

The murder in 1999 of a former IRA man, Eamon Collins, graphically illustrates what can be at stake. Collins had given evidence in a Dublin court that helped clinch The Sunday Times case against Tom “Slab” Murphy, who had claimed that he was just an innocent pig farmer. In fact Murphy was a founder member of the provisional IRA and became its Chief Of Staff. Early one morning, seven months later, the bludgeoned body of Collins was discovered near his home. His tongue had been cut out.

One would hope that, in the wake of Collins, the Irish libel courts might make some allowance for the fear factor in IRA cases by at least permitting police officers who take the statements of witnesses, to give evidence of what they said and leave it to the jury to decide where the truth lies. This kind of hearsay would certainly be admissible in UK and US libel courts. However, in Ireland the rules on hearsay evidence even in civil cases are very strict indeed. So, if the plaintiffs succeed in preventing us from presenting in some form or other the evidence of witnesses who prefer not to come to court, we may have to subpoena them and trust that they will tell the truth.

Advantage

Alas in Dublin we can expect no assistance from a vital new legal principle in defamation proceedings, recently established in the UK, known as the “Reynolds” defence. Ironically this important piece of armour for British journalists arose out of a failed libel action brought against The Sunday Times by the former Irish Prime Minister, Albert Reynolds. The paper alleged that Reynolds had deliberately misled the Irish Parliament and his Coalition Government colleagues. The “Reynolds” defence effectively extends the protection of privilege when allegations about important matters of public interest are published, irrespective of their veracity, provided, of course, that all steps to establish their truth have been taken properly and fairly. In essence “Reynolds” holds that in these circumstances the public has a right to know what is being alleged and brings British defamation law closer into line with the American courts. Once again, the Irish courts have yet to recognise the principle.

If because the precedents and procedures in Irish courts are so favourable to libel plaintiffs the suspects we named are tempted to sue, they will find the BBC prepared to fight every step of the way to ensure the hearing is as fair as we could expect in the UK courts. The plaintiffs can expect a long and arduous battle, if necessary all the way to the Human Rights Court in Strasbourg. In the face of the clear threat of libel proceedings and all the handicaps that confront defendants in the Irish courts, the BBC’s decision to transmit “Who bombed Omagh?” was a courageous one, and is a measure of just how much we believed it was in the public interest.