Austen Morgan is a Londonderry-born barrister practicing in London who regularly critiques NI legislation and is a former adviser to David Trimble. He has written a counterblast to the welcome given by the families of the Loughinisland murder victims and their supporters to the withdrawal of the judge from the judicial review of the police ombudsman’s findings of police collusion with alleged perpetrators.
Writing in the Newsletter, he joins those who find the withdrawal troubling.
A key fact in the judge’s original critical finding against the ombudsman’s report is that
we now know that Mr Justice McCloskey did not intend to quash the report, merely to remove passages containing conclusions reached unfairly.
Morgan goes on to state other “ basic facts” and pose questions, among them:
..there was nothing unusual in the judge, as a senior barrister, having been involved in a previous judicial review in 2002, of the first police ombudsman, Nuala O’Loan, a case he had completely forgotten.
This may be true as the former DPP Barra McGrory who was drafted in late to challenge the judge’s finding conceded on behalf of the Michael Maguire, the police ombudsman – but:
Mr McGrory, Northern Ireland’s former Director of Public Prosecutions, said a reasoned independent observer might find it “difficult to accept” the judge’s assertion that he did not recall his involvement in a case related to such a high-profile atrocity as Omagh.
“The apprehension of bias, either direct or subconsciously, is all that needs to be established,” he said.
The judge highlighted that he was bound by a solemn oath to be rigorously impartial and he challenged lawyers to point him toward the “slightest whiff of unconscious bias” in his judgment.
He suggested to Mr McGrory that a DPP would be bound by a similar duty to be impartial in all cases, regardless of who they had represented previously in their legal career.
Here the judge was making an obvious tilt at McGrory’s own record as a former lawyer for Gerry Adams. All the same, McGrory’s best point is unspoken. What might it say about Judge McCloskey’s conscious or unconscious mind when he said that his memory of taking part in a case as big as Omagh was “zero”? To the ordinary citizen this was literally an incredible statement and was surely as harmful to his position as it was unnecessary. On the other hand, is McGrory’s claim that “public perception of bias,” sufficient grounds for the judge to have withdrawn from the case?
Morgan turns his fire on McGrory;
the police ombudsman did not apply to have the judge recuse himself, on the ground of apparent or even actual bias, before judgment was given on 21 December 2017, and even afterwards.
Barra McGrory QC, who had stepped down recently as director of public prosecutions, dramatically altered the position, by agreeing to act as counsel for the police ombudsman. The judgment of 26 January 2018 is replete with criticism of this very late challenge…
Is it sensible for a former director of public prosecutions to return to legal practice, and to do so in such a dramatic manner?….
The administration of justice, it is all too obvious, is at serious risk of becoming politicised.
..given that English judges have recently been standing firm against applications to recuse, has an effective precedent now been set about victim power?
Has trial by media (including social media), with the emphasis upon emotion and immediacy, replaced the ‘bewildering and confusing’ legal system, as Mr Justice McCloskey put it last Friday?
These rejoinders need to be unpicked. The severest criticisms of the police handing and the details of collusion come directly from the police ombudsman’s report, not from “trial by media.” It is abundantly true however that Maguire and members of his team gave full support to The Detail investigative website who cooperated with the documentary film maker Jim Gibney in “No Stone Unturned.” Key investigators including Maguire himself appeared in it. Presumably the film was in the making before former police officers sought judicial review ( though this is worth clearing up). It graphically described the oddly negligent CID investigation and how obstacles were put in its way. And yet it was able to match different parts of evidence to accuse Thomas Hawthorne by name.
Morgan’s fear that the episode might politicise the administration of justice is overblown. Sinn Fein’s reflexive charge of cover-up and collusion is hardly a new development, nor is DUP’s ritual defence of the police. To be fair to both, they sometimes leave the door ajar to admit evidence.
PS. The days are long gone when judges used to pronounce loftily in a vacuum. Being sensitive to public opinion with discriminating and independent judgement doesn’t mean surrendering to a hue and cry. Fears of politicising the judiciary are tantamount to surrendering to the false notion that campaigns for justice are themselves dominated by polarised politics. A glance at the Loughinisland case shows they are not. Campaigners are perfectly able to recognise political opportunism when they see it. As is the legal establishment.
The case against the ombudsman is that he went too far in spelling out his case and may have been an accessory to the naming of names. Maguire’s defence may well be that if he hadn’t described the essential facts before the public, the case of the Loughinisland murders would have continued to languish despite the existence of compelling evidence and that it was part of his essential job to remedy this in evidence- based form.
We can look forward to absorbing arguments including whether Hawthorne can now receive a fair trial, at a new hearing which we hope will not be long delayed.