New twist in troubling legal saga over Loughinisland case
One of the most dramatic court determinations in modern legal history in Northern Ireland was handed down yesterday.
A high court judge dismissed a bid by retired police officers to have a Police Ombudsman report into the Loughinisland massacre quashed.
Mrs Justice Keegan rejected the judicial review case that the Ombudsman exceeded his legal powers in his findings.
The reason the case is extraordinary is that it is a radically different finding from one some months ago. Mr Justice McCloskey had issued a devastating judgement in the same case that the Ombudsman report was unlawful.
His ruling was one of the most important of the many findings in legacy cases in recent years. It gave a rare hope to police officers and others who are concerned at the sweeping use of the phrase collusion in allegations against the RUC.
But lawyers for the Ombudsman then argued that Mr Justice McCloskey should withdraw due to the potential perception of subconscious bias due to his role in a separate legal challenge 16 years before. Mr McCloskey strongly denied such bias, said he could barely remember the previous case and pointed out that among his many judgements he had in the past issued devastating findings against police officers.
However, partly in a bid to give comfort to the families of the loyalist massacre in 1994, he stepped aside. Now a judge has, it seems, reached an almost opposite conclusion.
Formally arguing in court the possibility of bias in a judge is these circumstances is highly unusual. For such a suggestion to result in the judge recusing himself is all the more so.
This is a deeply troubling episode. Yesterday’s full judgement will only be released today. It will need to careful scrutiny before the implications of it become clear for legacy.
The response of the NI Retired Police Officers Association to this latest development is admirably restrained. They are clearly right to say that evidence of collusion must be subject to independent scrutiny and that anything less is unjust.