Loughinisland report is challenged in High Court

Loughinisland report is challenged in High Court

6 December 2017

THE Police Ombudsman’s report into the Loughinisland murders failed to properly consult and protect officers it accused of criminality and collusion, it has been claimed.

In a judicial review of the report at Belfast’s High Court brought by two retired policemen, their lawyer argued that police facing serious allegations were “entitled to a fair trial like any other person”.

David McMillen QC said the Police Ombudsman’s conclusions should have led to a referral to the PPS for prosecution if he was properly following statutory procedure.

Dr Michael Maguire’s report into the UVF murder of Adrian Rogan (34), Malcolm Jenkinson (53), Barney Green (87), Daniel McCreanor (59), Patrick O’Hare (35) and Eamon Byrne (39) was published in June last year and found “collusion was a significant feature” of the 1994 attack.

While he found no evidence the police knew in advance about the Heights Bar murder plot, Dr Maguire was heavily critical of how the RUC Special Branch handled informers and failed to robustly disrupt the activities of a UVF gang operating in south Down. 

He also criticised Special Branch officers for failing to share intelligence with detectives investigating the gang and claimed there was a “hear no evil, see no evil, speak no evil” approach.

Raymond White, a representative of the Northern Ireland Retired Police Officers’ Association, and Thomas Hawthorne, a retired chief superintendent and former sub-divisional commander in the area, are the two officers challenging the legality of the document.

Central to the challenge is the assertion there are statutory outcomes to any Police Ombudsman investigation, such as a referral to the PPS or to police for disciplinary action. Outside that remit, they say the watchdog has no general power to come to a final determination.

In his opening remarks at the High Court on Friday, Mr McMillen argued there was “an ad hoc scheme” that allowed the Ombudsman “to create his own checks and balances such as they were”.

The lawyer was particularly critical of a letter sent to former local police chief Thomas Hawthorne in October 2015 from the Ombudsman, requesting a meeting and referring to his status as a potential witness. He said there were no references to key issues such as the handling of the getaway car or the assertion that loyalist terrorists were allowed to run out of control in South Down.

“There are no allegations at all put to him — here is the gist of what is being said about you,” Mr McMillen said. “The letter came three years after the investigation commenced, that is about eight or nine months before the report is published. We are three quarters of the way through the entire process. Only then do they decide to speak to someone who is a key part of the exercise.”

The lawyer added that the language and tone suggested it was an optional conversation should the officer “feel obliged”.

“It’s disarming — don’t really feel worried about it,” the lawyer suggested.

Mr Justice McCloskey, who examined the letter, said that it seemed the retired officer was being invited to a “casual conversation”.

Mr McMillen went on to say that following the Ombudsman’s findings “it was remarkable he would not have been sending a report to the DPP if he was following the statutory process. The Ombudsman seems not to understand how the statutory scheme operated.”

While police officers were referred to only by number in the report, Mr McMillen said those facing allegations of serious criminality and collusion required the highest level of protection.

He added: “There was no forum to challenge the facts other than a judicial review.”

Tony McGleenan QC for the Ombudsman, said a high degree of subjective judgement was involved in the Ombudsman’s role.

“The office of the Ombudsman has been created generally to sit outside the formal justice system,” he said.

He said the Ombudsman had no option but to engage with his investigation.

“If the applicants are right in their submission, then what they are saying is that the Ombudsman should have simply walked away and done nothing about the serious allegations of collusion,” he said.

“That isn’t right. The seriousness of the allegations meant the Ombudsman had no option other than to investigate.”

The lawyer had not concluded his opening remarks at Friday’s hearing, with the judicial review due to resume later this week.

Solicitor Niall Murphy, who represents the families of the victims, described the legal action as an insult to them.

“This is an application taken by retired police officers, many of whom did not co-operate with the Police Ombudsman’s investigation,” he said.

“This report has been accepted in its entirely by the Chief Constable, by the then Secretary of State Theresa Villiers, and also the prime minister, who wrote to the families on the 12th of July last year to say that the British government accepted the report wholly, in its entirety.”