Loughinisland: PONI conclusions to be ‘drawn on the basis of proven facts’ only
Writing in a police magazine as she prepared to enter office as the new Police Ombudsman (PONI), Nuala O’Loan said that all investigative conclusions would be based on “proven facts” only.
Baroness O’Loan was the first ombudsman appointed following the creation of the PSNI in November 2001, but had been in post as ombudsman designate since 1999.
In the ‘Proceedings’ magazine, published in April 2001, she said: “There will be no witch hunts and no vendettas: simply robust investigation and conclusions drawn on the basis of proven facts.”
In June 2016, current ombudsman Dr Michael Maguire published a second PONI report on the Loughinisland murders – four years after he succeeded in having the report of his predecessor Al Hutchinson quashed.
Dr Maguire was immediately accused by Jeffrey Donaldson MP of relying on “supposition or hearsay” to determine that ‘collusion’ was a significant feature in the UVF murder the six Catholic men at The Heights bar in the quiet Co Down village.
Chief Constable George Hamilton had similar concerns and questioned why the ombudsman had reached such a damning conclusion – despite finding no evidence that any officer had committed any offence, or even breached the police code of conduct.
Mr Hamilton told the BBC Spotlight programme there seemed to be “some sort of distance between the strength of the language in the report” and the fact police officers were not even reported to the PPS.
“If I got to a point where I was convinced in a very clear way that collusion was a key element of the Loughinisland murders then I’d be looking to take that conclusion into evidence through arrests, interviews, charges,” he added.
The PONI public statement of 2016 resulted in two former senior police officers, backed by the NI Retired Police Officers’ Association, challenging its legality on the grounds it was not sustainable in law.
Having considered the judicial review, in December 2017 Mr Justice McCloskey upheld the officers’ complaint saying: “They were, in effect, accused, tried and convicted without notice and in their absence.”
The Ombudsman, he found, did not use the language of accusation, or opt for restrained vocabulary of opinion, belief or suspicion.
“Rather, he determined, unambiguously, that collusion had occurred,” the judge said.
“This was an outright and unqualified condemnation. It is properly described as a verdict.”
The case took an unprecedented twist when the ombudsman and lawyers representing the Loughinisland families requested that Justice McCloskey step aside. They argued there was a potential public perception of bias as, while working as a barrister 16 years earlier, had been involved in a similar case against 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 the families might have over any potential subconscious bias. However, he strenuously rejected the notion of such bias and said he could barely remember the previous case.
Having reviewed the case in November 2018, Mrs Justice Keegan overturned the McCloskey ruling, and said the ombudsman had the “power to refer complaints for criminal or disciplinary disposal and he can take other defined actions,”
The judge 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.”
The two retired police officers, Raymond White and Ronnie Hawthorne, have launched an appeal against the Keegan ruling.
In response to the comments of the chief constable following the Loughinisland report, the ombudsman told the News Letter that the weight of information available – on guns importation, to the events in south Down and the Loughinisland attack itself – provided an overall picture which was “clear and significant.”
He added: “Our investigation found evidence that crimes may have been committed, but with the passage of time some witnesses were no longer available, some documentation was missing and it was not always possible to get a detailed picture of the role of certain individuals.”
In Monday’s News Letter we highlighted how former detective Johnston Brown claimed he was used as “fodder” by the current ombudsman to initiate the second investigation in 2012.
Mr Brown said that despite serious concerns being raised about his own interaction with a low-level police informant, he was never interviewed under caution to establish the facts.