Crucial court ruling today on Loughinisland report will have a major impact on dealing with the past

Mr Justice McCloskey is due to rule today  on whether the police ombudsman’s  findings of  police collusion in the Loughinisland murders should be quashed. His earlier ruling that the findings  were “ careless, thoughtless and inattentive . . . in . . . language and structuring” and “quite unacceptable by any standard” was greeted with satisfaction by the retired police officers’ association which had brought the action,  but dismay among human rights activists and not least, the Loughinisland  relatives. Belief was widespread that the ombudsman’s report marked a landmark development in dealing with the past. This may now be reversed.

Today’s ruling by Judge McCloskey was previewed yesterday in the Irish News in a report by Allison Morris which raised questions about his suitability for handling the case. Headlined “ Loughinisland judge previously represented police challenge in ombudsman challenge,”  she  wrote :

In 2001 former ombudsman Nuala O’Loan ruled there had been failings by the RUC during the investigation into the Omagh bombing.

Her report was unsuccessfully challenged by former chief constable Ronnie Flanagan and Raymond White, with Bernard McCloskey QC representing the policemen.

He was appointed a High Court judge in 2008.

Guidelines issued to judges by the Lord Chief Justice state: “Past professional association with a party as a client need not in itself be a reason for disqualification, but the judge must assess whether the particular circumstances, and in particular any prior knowledge relevant to the case, could create an appearance of bias.”

A declaration in such circumstances is at the discretion of the judge.

When asked if Mr Justice McCloskey had declared previously representing Mr White as a possible perceived conflict of interest, a spokesperson for Sir Declan Morgan’s office said: “The Statement of Ethics for the Judiciary in Northern Ireland provides guidance to judges on when it may be appropriate for them to recuse themselves.

“This will generally be when there is an actual, potential or perceived conflict of interest or where there is the potential for an appearance of bias to be created.

“Judges who are aware of any such conflict or who are asked to recuse themselves will make an assessment based on the circumstances of the individual case.

“There was no such awareness or request in the present case.”

The suggestion of a judge’s potential unsuitability is answered in time honoured fashion. The record of a barrister’s cases is no guide to his or her conduct  as a judge.   Barristers make the strongest case they can for one side or the other ; when they become judges they switch immediately to a position of independent impartiality.

Further comment on this subject currently before the courts should be restrained.

The subject of the Loughinisland murders killings received a detailed public airing in the film documentary No Stone Unturned which was made with the cooperation of the police ombudsman Michael Maguire and members of his team. The documentary makers were able to match different parts of evidence to name the key suspects whose anonymity was preserved in the report itself.

In a careful review in the Irish Times  of the ombudsman’s  findings and the judge’s initial response to them, the BBC investigator John Ware who played such a prominent part in the Omagh investigations describes  which of a number of different definitions of collusion, Maguire adopted, namely:

Maguire saw collusion from the “protection of informants through both wilful acts and the passive ‘turning a blind eye” and “catastrophic failures in the police investigation”….

In his earlier remarks the judge stated that  Maguire’s “unambiguous determination” that police officers were guilty of collusion amounted..  to an accusation that they had actually “participated in the murder of six innocent civilians”.

Nowhere is so specific an allegation made in the report. Rather, Maguire saw collusion from the “protection of informants through both wilful acts and the passive ‘turning a blind eye” and “catastrophic failures in the police investigation”.

..(the judge’s) pre-Christmas summary implies that it is not for the Ombudsman to make “determinations”; rather it is for him to set out facts.

Instead, the judge believes that the Ombudsman should investigate cases and then send them to the public prosecutor to decide if there are grounds for a prosecution, or alternatively a court to adjudicate a verdict.

However, such a view of matters is questioned not just by the Ombudsman. “That would stand the whole idea of the Ombudsman’s office on its head,” said a perplexed NI Department of Justice official.

Much is at stake next week. Maguire and his colleagues were stunned into near silence as they heard the judgment before Christmas but, within an hour or so, felt emboldened to fight back. If the NI Retired Police Officers’ Association wins, it will have succeeded in closing down an important official source of information about alleged collusion and its scale, small or large.

Loughinisland is not the only investigation. Due for publication in 2018 are ones into the UDA’s 1992 attack on the Sean Graham bookie shop on the Ormeau Rd when five died, along with the attack on The Rising Sun bar in Greysteel, Co Derry, on Halloween in 1993 when eight were lost. The question now is whether those documents will ever see the light of day.

Later from BBC News NI

A judge has delayed his ruling on a police ombudsman’s report into the massacre of six Catholic men in 1994.

He said the ombudsman’s new legal representative needed time to read himself into the case.

Meanwhile the first police ombudsman Baroness Nuala O’Loan has called  on the government to set up an independent historical inquiries commission.

Writing in the Irish Catholic newspaper, Mrs O’Loan said the “NI assembly has shown itself incapable of handling these and other legacy matters in the interests of the victims”.

“The British government has a duty now, almost 20 years after the Good Friday Agreement, to provide and independent historical inquiries commission properly empowered to investigate all the crimes of the Troubles with an adequate budget and total cooperation from all the agencies in both Ireland and the UK..

The resources cannot be taken from the PSNI budget. They must be provided by Government in the same way that it has funded enquiries such as Hillsborough, Gossport, Litvinenko and others in the rest of the UK.

There are, of course, reasons why the IRA, the UVF, the UDA, the INLA and all the other terrorist organisations do not want this to happen. They all killed their own, as well as the other, and some of those who were once involved in terrorism have now moved on, and are said to be contributors to the Peace Process.

For MI5 and the military in the UK, the disclosure that collusion was a reality has been terrible. That agents of the state, who supplied information for “the fight against terrorism” were allowed to continue their murderous activities without being made accountable, as they could have been, for their crimes is something which, for most people, is unthinkable.

It has grown significant distrust in the authorities. Yet it happened

 

She does not make the case for a law on limiting prosecutions but adds:

In the rare cases where prosecution is a possibility, suspects should be placed before the courts and dealt with in accordance with the Rule of Law which is one the foundations of both states, and of which we proclaim ourselves to be so proud.

 

 

 

 

 

 

 

Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London