By Mike RitchieThe appeal against the judgment of Mrs Justice Keegan regarding the Loughinisland Police Ombudsman report by the Retired Police Officers Association (RPOA, led by Raymond White, former head of RUC Special Branch) was heard on Thursday 16th May 2019 in Belfast.
On the bench were Declan Morgan LCJ, Stephens LJ and Deeny LJ. Appearing for the RPOA was Robert McMillen QC, for the Police Ombudsman was Barra McGrory QC and for the Loughinisland families was Fiona Docherty QC.
The case concerns the view of the RPOA that the Police Ombudsman exceeded his powers in the extent and tone of his criticism of the RUC in respect of the complaint made to him by the victims of the Loughinisland massacre. Accordingly, the main discussion at this hearing concerned the powers available to the Ombudsman, the extent of his discretion in terms of his use of language and tone and the purpose overall of the mechanism in the context of the general architecture of the criminal justice system. The statutory basis for the Ombudsman is set out in Part VII of the Police (NI) Act 1998.
The judges explored in detail the contrast between the Ombudsman’s powers and functions (generally (a) receiving complaints, (b) investigating them and (c) referring possible criminal cases to the PPS, possible disciplinary cases to the PSNI disciplinary department and (d) issuing reports) and his discretion as to using those powers and their wider purpose. These latter are set out at s. 51 (4) as follows: “The Ombudsman shall exercise his powers under this Part in such manner and to such extent as appears to him to be best calculated to secure (a) the efficiency, effectiveness and independence of the police complaints system; and (b) the confidence of the public and of members of the police force in that system.”
While this text suggests a pretty wide discretion in how the Ombudsman can operate, this discretion is not free-standing; it can only apply in respect of the limited powers s/he exercises, limitations which the Lord Chief Justice appeared determined to spell out.
The judges clearly found it difficult to understand how the Ombudsman’s report into the Loughinisland case could make such coruscating criticism of the police and yet he – the Ombudsman – had not been able either to find anyone who had committed a criminal or disciplinary offence or to say that these had been committed but on the one hand (in the case of criminality) it was impossible to identify who had committed it or on the other (in the case of disciplinary matters) all police officers had now retired and were beyond the reach of disciplinary procedures.
The judges were keen to emphasise that the office of the Ombudsman is, essentially, an investigative mechanism. The holder should be careful not to see her/himself as a finder of fact and of criminality which are the proper role of the courts, based on a considered prosecution by the PPS.
In this context, the judges were keen to draw a distinction between the Ombudsman stating, for example, that collusion took place and stating that s/he found evidence of collusion or, on the basis of the evidence s/he is of the opinion that collusion took place. Thus, Deeny LJ said that the Ombudsman could make a finding that there is “compelling evidence of collusion so long as [s]he doesn’t purport to be a court”.
A close examination of how the judges read the legislation suggested that the only information that should be put in the Ombudsman’s public reports included: that s/he did or did not find evidence of criminal acts and/or disciplinary acts, what s/he did on the basis of what s/he found, what referrals s/he made and her/his reasons for doing so.
One might wonder whether this is merely a piece of semantic pedantry and the content of a report would be much altered by more careful use of language. However, if the outcome is that the judges quash the Loughinisland report, the families would be horrified that their long-fought-for official acknowledgement of collusion has been rescinded.
Moreover, when appeal court judges appear to be intent on clipping the wings of the Police Ombudsman, it gives pause for thought: are they anxious at the Ombudsman encroaching on their constitutional privileges?
After all, what is the difference between the Police Ombudsman examining the evidence, investigating its implications and coming to conclusions (or findings) and the role and function of an inquest in coming to conclusions as to the circumstances in which a particular death or set of deaths occurred?
At a time when the PSNI have shown themselves to be so intent on preventing transparency about the role of the RUC during the conflict, shutting down or restricting the powers of Police Ombudsman – the one unarguable Article 2 compliant investigative mechanism that has a role in investigating conflict-related deaths and wider issues – would be hugely regrettable.
In this context it is worth recalling what the Patten Commission’s intentions were in respect of the Ombudsman. They clearly wished it to be a powerful, independent authority with the capacity to contribute to the creation of a new beginning to policing after the awful role of the RUC. The following excerpts from the Patten report make this clear:
“We recommend that:
“• The Police Ombudsman should be, and be seen to be, an important institution in the governance of Northern Ireland …
“• The Ombudsman should take initiatives, not merely react to specific complaints received. He/she should exercise the power to initiate inquiries or investigations even if no specific complaint has been received.
“• The Ombudsman should exercise the right to investigate and comment on police policies and practices, where these are perceived to give rise to difficulties, even if the conduct of individual officers may not itself be culpable, and should draw any such observations to the attention of the Chief Constable and the Policing Board. …
“We cannot emphasize too strongly the importance of the office of Police Ombudsman in the future policing arrangements proposed in this report. The institution is critical to the question of police accountability to the law, to public trust in the police and to the protection of human rights.”
The Patten Commission, established on the back of referenda across Ireland, wanted a body capable of cutting through the veil of corruption that the RUC had left behind it. Indeed, it envisaged the Police Ombudsman having a quasi-constitutional role in terms of its access to information and its capacity to make findings based on its investigations.
It would be a disaster if the judiciary undermined the office at the behest of former RUC officers who themselves undermined human rights through their activities in RUC Special Branch.
There was reassurance when Fiona Docherty reminded the panel that there are bereaved families behind this case who have been to the courts far too often than should have been necessary. Their lordships appeared to acknowledge that quashing the report would be an unfortunate outcome of this case, whatever prescriptions they might apply to the office-holder’s report-writing going forward.
Judgment has been reserved.