Loughinisland: Outcome of legal battle will shape role of ombudsman

The ombudsman has acted outside his powers, ex-officers have claimed
The ombudsman has acted outside his powers, ex-officers have claimed

The powers of the police ombudsman (PONI) have been in the spotlight in an ongoing legal challenge by former senior officers.

In his June 2016 report on the shooting dead of six men at The Heights bar Loughinisland, current ombudsman Dr Michael Maguire stated that police collusion with the UVF killers was a “significant feature” in the murders.

That public statement was made despite no individual officer being identified as guilty of a criminal offence, or as having breached the police code of conduct.

Dr Maguire’s original report also claimed the then police sub-divisional commander, superintendent Ronnie Hawthorne, was guilty of “negligence” over his alleged role in the disposal of the killers’ getaway car.

Within weeks both Mr Hawthorne and the NI Retired Police Officers’ Association launched a judicial review request, with the outcome announced by Mr Justice McCloskey in December 2017.

In a scathing judgment, the senior judge upheld the former officers’ complaint, saying they were, in effect “accused, tried and convicted without notice and in their absence”.

The ombudsman, Justice McCloskey found, did not use the language of accusation, or opt for restrained vocabulary of suspicion, belief or opinion.

“Rather, he determined, unambiguously, that collusion had occurred,” the judge said.

“This was an outright and unqualified condemnation.”

Justice McCloskey said Mr Hawthorne suffered “unjustified severe public criticism” and the ombudsman agreed to issue an amended report in March 2018 with all references to the retired officer removed.

Mr Hawthorne expressed relief at the ruling and said he had been completely “vindicated” by the judge’s decision in relation to his own actions.

However, lawyers for the ombudsman then formally requested that Justice McCloskey step aside to allow another judge to rule on whether the report should have certain passages removed.

The lawyers argued there was a potential public perception of bias as, while working in a private capacity as a barrister 16 years previously, he had been involved in a case involving the ombudsman’s office.

Mr Justice McCloskey responded saying the legal test for him to step aside had not been satisfied but that he would step aside anyway – to assuage even the slightest doubt over any potential subconscious bias.

He strenuously rejected the notion of such bias and said he could barely remember the previous case.

Announcing his decision in January 2018, the judge made it clear he had not recommended the quashing of Dr Maguire’s report in its entirety.

He said: “I conclude that an order quashing the police ombudsman’s second Loughinisland report would be unnecessary and disproportionate.

“I am satisfied that an uncomplicated exercise of excision, or expurgation, can be carried out, leaving most of the report not merely intact but also coherent.”

Having reviewed the case, in November 2018 Mrs Justice Keegan overturned the McCloskey recommendation around PONI’s authority to allege collusion, ruling that the ombudsman had the “power to refer complaints for criminal or disciplinary disposal and he can take other defined actions”.

She added: “In the unique situation presented by the Troubles it is appropriate that bereaved families should have the benefit of an independent investigative report such as this, particularly where no prosecutions have been brought.”

Justice Keegan also reiterated that PONI “wanted to make it abundantly clear that its determination of collusion did not apply to Mr Hawthorne”.

Writing in the News Letter in January 2018, barrister Austen Morgan posed a number of questions arising from the case he suggests have now been opened up.

Mr Morgan said: “Did parliament, when it provided for a police ombudsman in 1998, envisage such historical investigations, decade after decade?

“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?”

The retired police officers have launched an appeal against the judgment of Justice Keegan in favour of the ombudsman.