The Loughinisland appeal, when “withdrawal” is not “recusal”

Now I may have been dreaming but I’m almost sure I read yesterday that Mr Justice McCloskey had announced he was still sticking with the Loughinisland appeal case, in spite of the objections from the lawyers representing the families and the police ombudsman.

But no. I woke up to this morning to learn he had in fact withdrawn. Reporting howler in jumping the gun?  Maybe. But then there’s that legal language of fine distinction  but crucially different meaning like “ withdraw” rather than “recuse”. ( You can have “averments” for free). And so trailing clouds of language behind him, he was gone. I’m grateful to Bimpe Archer for clearing that up.           

“You’d have been in trouble if you were live tweeting that judgment,” one veteran hack observed.

“I don’t think he’s going to recuse himself,” whispered a relative in the public gallery.

To summarise, I find the evidence and argument put forward on behalf of the Ombudsman… flimsy, artificial and entirely unpersuasive,” he concluded.

But then, before the eyes of the watching press, victims and legal teams, the judge found a third way to resolve the case.

He would not be recusing himself – “the case for recusal is not satisfied… the application is refused accordingly”, but he was withdrawing from the case, with “a fresh hearing before a differently constituted court” – one where he is not the judge.

His initial judgment ruling the Ombudsman’s report unlawful stands, but will not be “binding on any party”.

The unprecedented move places Mr Justice McCloskey’s ruling in a special category all of its own.

By his own admission, it sits in a “hybrid status, somewhat akin to an advisory opinion, which features in legal systems other than ours”.


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