As Allison noted (6.53 in) in last Friday’s edition of Slugger TV (if you haven’t done so already, go and watch the whole thing) the Loughinisland is, along with Kingsmill and many other tragedies just one of the things maintaining polarisation.
But the way that case is being fought is an extraordinary bend in what has already been a very zig-zaggy road to peace. Bearing in mind Brian’s excellent briefing on the unique status of Mr Justice McCloskey’s advisory judgement, here’s an extract:
The court has made three central conclusions in law.
The first is that the Police Ombudsman did not have the legal power to make a “determination” of police collusion in the Loughinisland atrocity.
The second is that the Police Ombudsman did not have the legal power to make a “determination” that Mr Hawthorne had been guilty of an “act of negligence”.
Thirdly, the court has found this discrete “determination” to be unlawful on the further ground of procedural unfairness.
By virtue of these conclusions, certain aspects of the report cannot be permitted any enduring existence.
The collusion “determinations” were made by the Ombudsman at a point where a bright luminous line had been reached. His failure to act within the limits of his legal powers occurred because in the relevant passages of the report he traversed this notional line.
The Ombudsman committed precisely the same error of law in purporting to make a “determination” that Mr Hawthorne had been guilty of an act of negligence.
These are three clear points of law. Moreover, they are points of law which have not been challenged by the Ombudsman’s counsel. The actual case for recusal was on the point of public perception, but Mr Justice McCloskey response was to…
…illustrate of the range of his previous judgements, Mr Justice McCloskey cited a previous case in which he had issued such a damning judgment against the police that policing practice had been urgently changed on the back of his findings.
So, six years into the case and the whole thing will have to be re-heard. At the centre of it are a group of families of the innocent victims of at the centre of this case, who have continuously felt the rise and fall of expectations.
As Ben Lowry notes in the News Letter, this would not have been the first time an Ombudsman’s report on Loughinisland slaughter has been quashed in court.
Unless the Ombudsman’s senior counsel (and his solicitors) can find another line of argument, this review will likely come back to the very same place McCloskey was taking it. On the face of it, there seems no apparent way out for the families.
Meanwhile, Mary Lou McDonald and the local SF South Down MP were down the road in Castlewellan commemorating the death of local IRA volunteer Peter McNulty at the opening of the bloodiest year of the Troubles during an attack on the local RUC station.
Like the Ballymurphy families before them, the grieving families are being put through an endless and torturous Groundhog Day system that can never deliver what they are looking for, because of arrangments already made to “preserve the peace”.
Mick is founding editor of Slugger. He has written papers on the impacts of the Internet on politics and the wider media and is a regular guest and speaking events across Ireland, the UK and Europe. Twitter: @MickFealty