‘Unprecedented’ call for judge to withdraw from hearing

‘Unprecedented’ call for judge to withdraw from hearing

1 January 2019

A HIGH Court judge has described a call for him to withdraw from a hearing challenging the arrest of the Loughinisland massacre documentary makers as “totally unprecedented”.  

Mr Justice McCloskey also said that the request from the company behind the documentary into the loyalist murders of six local men in 1994 represented “an affront to the rule of law”.

He was speaking at a High Court hearing on December 19 challenging the validity of a search warrant used against the film-makers investigating a suspected theft of documents from the Police Ombudsman’s Office.

Journalists Trevor Birney and Barry McCaffrey, who were behind the film No Stone Unturned about the Loughinisland massacre murder, were arrested and questioned in August last year as part of the probe.

Supported by the PSNI officers, detectives from Durham Constabulary also searched three properties in Belfast at the time. 

Lawyers for the film-maker, Fine Point Films, and the two award-winning journalists, are now challenging the validity of the search warrant and claim it did not cover all the material seized. 

However, police have given an undertaking not to examine any of the documents or computer equipment until after the challenge outcome.

At a review hearing on December 19, lawyers for Fine Point Films said that the request for the judge to be withdrawn was being made “respectfully” ahead of a formal bid for him to be excused.

A similar move was made in an earlier challenge to an Ombudsman report into the Loughinisland killings because of the judge’s role as a barrister in separate litigation 17 years ago. 

Despite rejecting claims he could be seen as unintentionally biased, Mr Justice McCloskey agreed to a limited re-hearing in front of a judicial colleague.

However, he said he was “absolutely stunned” by a letter submitted to the proceedings.

“The court is in receipt of a totally unprecedented letter, written by a range of people, most of whom are not party to these proceedings,” said the judge.

“The letter contains the extraordinary suggestion that a judge of the High Court of Northern Ireland is not sufficiently impartial or fair or independent to give case management directions in this case.”

He said that the letter “should never have been written” as, “It is, on its own, an affront to the rule of law.”

Mr Justice McCloskey adjourned proceedings to early in January and imposed a deadline for police to confirm that they intend to oppose the action moving to a full hearing.