The police ombudsman went beyond his legal powers in publishing a report “replete” with determinations that RUC officers colluded with loyalists who massacred six Catholic men, the Court of Appeal has heard.
Counsel for two retired senior policemen claimed the watchdog’s damning findings on the Loughinisland atrocity should only have been released if it had recommended prosecutions or disciplinary action against any of those under scrutiny.
Judgment was reserved in the renewed bid by Raymond White and Ronald Hawthorne to have the report quashed.
UVF gunmen opened fire at the Heights Bar in Loughinisland, Co Down as their victims watched a World Cup football match in June 1994.
The men killed were: Adrian Rogan, 34, Malcolm Jenkinson, 53, Barney Green, 87, Daniel McCreanor 59, Patrick O’Hare, 35, and Eamon Byrne, 39.
Five others were also wounded in a sectarian attack for which no-one has been brought to justice.
In June 2016 the ombudsman, Dr Michael Maguire, said collusion between some officers and the loyalists was a significant feature in the murders.
He found no evidence police had prior knowledge, but identified “catastrophic failings” in the investigation.
Mr White, representing the Northern Ireland Retired Police Officers’ Association, and Mr Hawthorne, a former sub-divisional police commander, have been involved in a long-running legal challenge to the published findings.
A first hearing resulted in a ruling in 2017 that the report was procedurally unfair and had failed to make clear it conclusions did not apply to Mr Hawthorne.
At that time the watchdog agreed to remove any references to him to ensure he is not connected to any alleged wrongdoing – a move seen as complete vindication for the former police commander.
A limited rehearing before a different judge focused only on issues around the extent of the powers to publish the findings.
In November last year a High Court judge rejected the retired officers’ case that Dr Maguire had exceeded his legal remit.
Mr White and Mr Hawthorne are now now appealing that ruling.
The former policemen’s barrister, David McMillen QC, stressed their complete support for the ombudsman’s role in scrutinising and holding officers to account.
He argued, however, that the watchdog lacked the legislative authority to publish such “conclusive findings” in the Loughinisland report.
“He simply does not have that power,” Mr McMillen said.
“This is an organ of the state, an important and very public organ of the state finding police officers guilty.”
Asked if he believed the ombudsman’s report had concluded police officers may have committed criminal offences, counsel replied: “It was replete with those suggestions.”
But Mr McMillen rejected suggestions that the document could be amended to state there “may” be evidence of criminal or disciplinary offences.
“The report is so infected with conclusive language all the way through, about what he found, that a simple rider would not make sense,” he said.
Barra McGrory QC, for the ombudsman, countered that the legislation allowed him to express an opinion on the alleged collusion.
He said: “The definition the ombudsman has set out on collusion is broad enough to encompass behaviour and actions by police officers which cannot be identified as specific criminal offences which could be referred (to the Public Prosecution Service) under that part of the scheme.”
Following submissions Lord Chief Justice Sir Declan Morgan, sitting with Lord Justices Stephens and Deeny, pledged to give judgment on the appeal as soon as possible.