I have complained to the BBC about their website report of the Loughinisland case when Mr Justice McCloskey recused himself.
They provided inadequate and inaccurate coverage on what is a watershed case that may change everything in the legacy world.
Seventy-five words was all there was in the website report out of the judge’s 8,000 word judgment.
There was not a word about why he found the Police Ombudsman’s just-appointed barrister, had entirely failed to make a case for his recusal. He went much further and, at length, attacked the Ombudsman for omissions and failures. His remarks were about as severe as I have ever seen made by a judge (see the full judgment below).
He made reference to his proposal to the Ombudsman to publish the report without the offending remarks about the retired officer and the response to his suggestion or lack of same. The story made no mention of that.
The judge made a number of admonitions about the Ombudsman’s future conduct in the case which are of great interest.
Again no mention, or analysis.
The point that the judge had not represented Raymond White in the previous case, something inaccurately repeated in local media (including the BBC) was made with some force and should have been highlighted.
The judge stated, “Mr White was not a party to the 2002 litigation and, therefore, was not represented by any legal practitioner, solicitor or counsel.”
Having said that, even if he had represented one of the applicants, the judge provided a whole series of other tests that needed to be met to justify recusal.
As judges don’t give interviews after a court hearing, BBC journalists should use a considerable amount of detail from their judgements to explain to their audience why decisions were made.
The bias I perceive – frighteningly – is unconscious. BBC ‘balance’ nowadays means that the victims must get preference and pre-eminence in reporting for fear of offence being taken by perceived weaker or more vulnerable parties.
If the innocent party is someone in authority their rights take second place which is the basic problem of so many of the proposed new structures that came out of the Haass report, like the Historical Investigations Unit (HIU). They provide for a police force of the past with powers of prosecution.
In the wider context, until this case before Mr Justice McCloskey, the police had only been subject to negative legal decisions and had failed to defend themselves successfully. But in relation to the past only the state kept records so only the state can be found wanting or culpable and in the peculiar new processes agreed by Stormont and London.
The summary judgment and the overreaching role of the Police Ombudsman are so serious as to require decision-making about the past to be put on hold. The proposed Legacy Bill should be set aside and a review of the purpose and balance of the myriad of new institutions, like the HIU undertaken.
Injustice is almost built-in to the new structures if those with the investigatory powers of a police force are given an additional power to write and issue reports in cases where there cannot be a prosecution or disciplinary action.
All that the legacy bodies, as presently contemplated, will do is enable the rewriting of history and the creation of moral equivalence between paramilitaries and the state, at a huge cost.
Jeffrey Dudgeon, Councillor, Ulster Unionist Party, South Belfast