​​Police Ombudsman reports on collusive behaviour by RUC may require 'significant health warnings' says judge

Mr Justice Scoffield suggested an agreed form of words could be inserted into the public statements as a remedy following his ruling that Marie Anderson exceeded her legal powers.

Last month he held that the Ombudsman acted ultra vires by reaching conclusions in public statements which amounted to determinations of misconduct.

The watchdog body’s role is to investigate rather than adjudicate, the judge stressed.

It followed a legal challenge by the Northern Ireland Retired Police Officers Association to the contents of three separate reports into Troubles-era killings.

Even though the Ombudsman is set to mount an appeal, lawyers on both sides returned to court today as part of efforts to agree on any action needed to reflect the ruling.

Counsel for the Association proposed that a copy of the judgment and explanatory notes could be included at the introduction of the reports.

Mr Justice Scoffield responded: “These documents have been out and published for some time, it’s impossible to put the genie back in the bottle completely.”

But he provisionally indicated that further steps beyond his stand-alone determination may be necessary.

“For the moment, pending appeal, the statements have to come with a significant health warning,” the judge stated.

The Association has been locked in a long-running legal attempt to have the three public statements declared unlawful.

One of the cases focuses on a probe into a series of loyalist paramilitary murders in the south Belfast area between 1990 and 1998.

In 2022 Mrs Anderson found evidence of “collusive behaviour” by police in the attacks, which included the February 1992 massacre at the Sean Graham betting shop on the Ormeau Road where UDA gunmen shot dead five Catholic victims.

Legal action was also taken over the report into the police handling of loyalist killings in the northwest region from 1989 to 1993.

A third challenge related to findings in the case of four men wrongly accused of murdering a British soldier in Londonderry.

Known as the ‘Derry Four’, the Ombudsman concluded that RUC officers had unfairly obtained confessions from them for the killing of Lt Stephen Kirby in the city in 1979. The four men later fled Northern Ireland until their acquittal in 1998.

The retired RUC officers claimed Mrs Anderson was legally forbidden from making findings which effectively branded them guilty of colluding in brutal terrorist murders without proper due process.

A Court of Appeal judgment in 2020 restricted her scope to accuse former policemen and women of the criminal offence of collusion with paramilitaries.

Those proceedings related to a previous case taken by retired senior policemen Raymond White and Ronald Hawthorne over the contents of former Ombudsman Dr Michael Maguire’s report into the 1994 Loughinisland atrocity.

Acknowledging her limitations, Mrs Anderson said she had identified conduct within the RUC amounting to "collusive behaviours".

But the Association argued that she misunderstood her permitted role and cannot use that term without establishing a malign motive.

The Ombudsman had wrongly labelled all police working in those areas at the relevant times as complicit with the terrorists responsible for brutal campaigns of murder, it was contended.

Counsel representing the Ombudsman hit back by suggesting the retired officers were becoming “collusion deniers”.

He told the court she had carried out a forensic analysis to reach legally-sound findings, identifying behaviour indicative of collusion without being determinative.

In his ruling, Mr Justice Scoffield acknowledged each of the reports was the product of detailed investigation and significant hard work by the Ombudsman and her team of officers.

However, he held that a distinction drawn by the Ombudsman between “collusion” and “collusive behaviours” was either unsustainable or insufficiently clear.

She reached conclusions beyond a proper remit set out by the Court of Appeal, the judge found.

He ruled that the published reports represented an extension of the Ombudsman’s role beyond its statutory bounds.

In court today, David McMillen KC, for the Association, indicated there has been a potential “meeting of minds” on the issue of further remedies.

“A copy of the judgment should be appended to each of the published reports, and a statement included in the introduction to highlight the existence of the court’s decision and key elements,” he suggested.

Adjourning proceedings for two weeks, Mr Justice Scoffield encouraged both sides to agree on a final form of relief.