A final hearing in the judicial review – by the former RUC member Hawthorne, the former head of RUC Special Branch Raymond White and the Retired Police Officers’ Association (RPOA) – of the Police Ombudsman over his Loughinisland report took place this morning in front of Mr Justice Bernard McCloskey.
“Isn’t he the judge who recused/removed himself from the case due to a possible perception of a conflict of interest?”, I hear you say.
Actually, he “stepped aside”, claiming last time that the legal test for recusal had not been met. Nevertheless, in his last judgment of 19th January 2018, he said (para 187), “Following anxious reflection, my evaluative conclusion is that our legal system will not have served the families well if they are not given the opportunity of having this case heard by a differently constituted court.”
This was a nod to the families.
Furthermore, the applicants would be able “to urge another judge to accept this court’s analysis of the law is the correct one”.
This was his nod to the former RUC officers.
Overall, “Trust and confidence in the legal system are critical ingredients of the rule of law which binds and governs all of society” (para 186).
This was his nod to wider society.
That all sounded to me like he was saying the whole matter would be argued out again in front of a different judge. McCloskey J was bowing out – regretfully, yes – but graciously, with the wider good in view.
This morning, however, a different story unfolded, and a different man was on the bench. He set out a tale of court orders and directions being ignored, deadlines overrun, disrespect being shown to the court; all in all, “an entirely unacceptable state of affairs”.
This was all directed at counsel for the Police Ombudsman. When he (counsel) sought to defend himself against the judicial onslaught, Mr McCloskey was having none of it, expressing major irritation at having “to spell out” legal procedure in kindergarten terms.
Gone was the wider view, the need for trust and confidence in the legal system. No; Mr Justice McCloskey would set the terms for the next hearing very specifically and would use this hearing to ensure the vindication of the applicants.
What had caused this change of demeanour?
Did the Police Ombudsman take their eye off the ball? A close examination of previous rulings showed that Mr McCloskey wanted to focus the next hearing in front of the new judge. He had identified a range of issues relating to procedural fairness which we wanted the Ombudsman to address. They had not done so.
Their cause was not greatly helped by a press release issued, this very morning, which seemed to concede every single point in the Loughinisland report which Mr Hawthorne had contested and which Mr Justice McCloskey had listed in his previous rulings. Indeed, Mr Hawthorne’s barrister had little to do in court today but point out that this press release seemed to vindicate his client completely; and smile very broadly at the end as Bernard McCloskey awarded 100% costs against the Police Ombudsman.
The judge went on to claim that, on the basis of the exchanges in the court today, his judgment last December (before the application that he recuse himself) had been “substantially vindicated”; the Police Ombudsman had indeed “inadequately and inaccurately reflected” Mr Hawthorne’s role in the investigation into the Loughinisland atrocity; that the Police Ombudsman had “failed to take proper investigative steps”; and that the Police Ombudsman’s report “fell short of acceptable standards and quality”. Finally, the finding of collusion was “unsustainable in law”.
In all this, counsel for the Police Ombudsman could only sit mute and concede. On one occasion he sought to intervene only to be brusquely brushed aside and threatened with professional disciplinary action. It was a harsh and chastening day for Dr Michael Maguire’s legal team.
The outstanding matter for the new judge is now the question of what power precisely the Police Ombudsman has in coming to determinations on questions of police practice and, in the particular report at issue, whether a finding of collusion against the police is beyond his powers (i.e. ultra vires).
Before he closed the matter, Mr McCloskey had one further contribution: setting the timeline for the next hearing – and setting it very tight. The court will sit at 9.45am in 12th April. Written argument must be drafted in days back and forth between the parties, who will have to burn the midnight oil to catch up with what McCloskey J carried off today.
It was brutal and breathless and all former RUC personnel – who paid the legal fees for the challenge – will be cheered at the humiliation of the Police Ombudsman.
But at last, in the matter of the Police Ombudsman’s Loughinisland report, Mr McCloskey has left the building!
Today’s hearing does not impact upon the main issue of challenge in respect of the case, whether or not a Police Ombudsman has the power to make a determination of collusion. That will be reheard before a new Judge on 23rd and 24th April.
Today’s hearing merely confirmed an agreement to remove two paragraphs (7.113 and 7.114) in respect of Retired Superintendent Ronnie Hawthorne who authorised the destruction of the getaway car on 7 April 1995, 10 months after the atrocity. It remains a fact that Retired Supt Ronnie Hawthorne did authorise this destruction but his ‘vindication’ is that it is now an accepted fact that he didn’t know that he was authorising the destruction of the getaway car in Loughinisland. A mass murder of international proportions which occurred 11 miles from his station, less than 10 months previously. Fair enough. But the RUC still destroyed the car and because of the inability of the Police Ombudsman to COMPEL retired police officers to engage with his enquiries we do not know why the Senior Investigating Officer, Police Officer 8, submitted the car to be destroyed as he refused to co-operate with the Ombudsman’s office. See paragraph 7.112 which has not been removed. Needless to say, Police Officer 8 did not apply for Judicial Review to seek ‘vindication’.
It remains a fact that the RUC destroyed the car. That FACT has not been challenged.
A number of questions arise:
- Why should a judge continue to intervene so definitively in a case once he has decided to “step aside”? It was as if he regretted his decision and couldn’t accept the question mark against him. A commonsense approach would have been let the whole matter be considered before the new court rather than interfere to the extent he did.
- The purpose of the judicial review from the point of view of the Retired Police Officers Association and Raymond White was to prevent the Police Ombudsman from finding collusion between the RUC and loyalism. It would be a travesty if this court process succeeded in modifying the Ombudsman’s approach.
- Families will rightly be alarmed if the court prevents the Ombudsman coming to his conclusions without fear or favour. That collusion took place is widely understood; the Ombudsman should not shy away stating the truth.
- What impact will all this have on other mechanisms that might be established such as those under the Stormont House Agreement. The government and state combatant groups have an interest in hiding their illegal and unethical practices during the conflict. Accountability requires that they be uncovered.
- The Ombudsman has been presented to European oversight bodies as a mechanism capable of carrying out an Article 2 compliant investigation into conflict-related killings. If the next hearing in this case restricts the Ombudsman’s powers, the UK government will have to explain this to the Council of Europe.
- Finally, the Loughinisland families and many other relatives of those killed in suspicious circumstances suggesting collusion between loyalists and the RUC or secret British intelligence agencies will worry that investigative reports by the Ombudsman that are well advanced may be re-worded to reduce criticism. RFJ will do all it can to support families in this position and advocate for the truth to be told.
- All of this shows that the next hearing is of fundamental importance for the effective truth finding capacity of the Police Ombudsman regarding the RUC’s role during the conflict. The Loughinisland report has now been modified in respect of Mr Hawthorne’s role; Raymond White and the RPOA want to see the report cleansed of any reference to collusion and they want to stop the Ombudsman from mentioning collusion in future. Mr Justice McCloskey agreed with them; thus far, however, the damning finding against the RUC remains in place. The next hearing on 12th April will determine whether its truth telling power is vindicated or eviscerated.