Two junior Police Service of Northern Ireland officers were unlawfully disciplined for an arrest made at a Troubles atrocity commemoration to allay any threat of Sinn Féin abandoning its support for policing in Northern Ireland, a High Court judge ruled today.
Mr Justice Scoffield quashed decisions to suspend one probationary constable and reposition his colleague following an outcry at how police handled the service marking an anniversary of the February 1992 Sean Graham bookmakers attack.
Five people were murdered and nine others wounded when loyalist gunmen opened fire inside the betting shop on the Ormeau Road in south Belfast.
In February 2021, the annual wreath-laying ceremony at the scene took place amid restrictions on public gatherings due to Covid-19 regulations.
During that event attended by up to 30 people, one man who had been shot and injured in the massacre was detained on suspicion of disorderly behaviour and put in handcuffs. He was later released without charge.
Chief Constable Simon Byrne later apologised for the incident and confirmed the disciplinary steps taken against the two recently recruited officers.
Although the suspension and repositioning decisions were lifted later that year following a review, both constables remained aggrieved at their treatment.
Backed by the Police Federation, the pair applied for a judicial review into the lawfulness of the disciplinary moves.
In a statement, one of the constables stressed they were unaware that a commemorative event was being held on the Ormeau Road.
He claimed there was some hostility from within the gathering, with one man arrested after swearing and ignoring warnings about his behaviour.
The court heard he felt isolated, abandoned, embarrassed and demoralised by the decision to suspend him.
A chief inspector who served him with the notice allegedly remarked that it was the first time in 30 years that he disagreed with a suspension decision, but was following lawful orders.
Counsel for the officers argued that the PSNI got it wrong by focusing on the fallout, rather than the seriousness of any alleged misconduct.
Mr Justice Scoffield was told that as a deputy chief constable went to deal with the incident he received a phone call from Sinn Féin’s police spokesperson, Gerry Kelly, as part of a “frenzy of activity” in the immediate aftermath.
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His attention was also drawn to the arrest being made within days of an alleged loyalist show of strength at Pitt Park in east Belfast where up to 60 masked men gathered without any immediate police intervention.
At the time, Sinn Féin Deputy First Minister Michelle O’Neill tweeted about an apparent culture of double standards in the PSNI and of “turning a blind eye to UDA and UVF thugs, while targeting those laying flowers on the anniversary of loved ones”.
Mr Byrne later confirmed that he spoke to her about the events on the Ormeau Road.
A barrister representing the chief constable insisted he had defused an unprecedented, critical incident which drew heavy criticism from Sinn Féin and jeopardised wider public confidence in Northern Ireland’s reformed police service.
Despite expressing sympathy for two young constables described as having acted “over-zealously”, counsel claimed the incident created an existential threat to the PSNI.
However, Mr Justice Scoffield ruled that it involved a “legally impermissible” assessment of the public interest.
“Both the deputy chief constable and the chief constable were acutely aware of the threat of Sinn Féin withdrawing support for policing and/or withdrawing from the policing board if immediate action was not taken in respect of the officers’ duty status,” he said.
“It is impossible to avoid the conclusion that the pressure so exerted was, in large measure, a result of a wholly separate and unrelated (Pitt Park) incident which was wrongly conflated with the actions of the applicants in the incident in which they were involved.”
The judge held: “I have been persuaded that the respondent imposed suspension in the first applicant’s case because of the threat (whether real or perceived) that, if it did not do so, republican support for policing would be withdrawn.
“To reach a decision on that basis was in my view unlawful.”
Despite acknowledging the difficult situation in which the PSNI was placed, he concluded that the decision to move the second officer was also influenced by the same threat, real or perceived, that one party would quit Northern Ireland’s policing board unless the duty status of both probationary constables at the commemoration event was changed.
Mr Justice Scoffield confirmed: “I will allow the applicants’ judicial review on the limited grounds explained, and will quash the decision made to suspend the first applicant and the decision to reposition the second applicant.
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“Although the practical effect of those decisions has dissipated, given that they have previously been lifted upon review, I consider the applicants are entitled to a form of relief which removes those decisions from their records as a matter of law.”
Reacting to the judgement, PSNI Chief Constable Simon Byrne said that the events of February 5th 2021 were “difficult for everyone”.
“As Chief Constable I accept the findings of the court. In particular that there was a legal error in the way in which the public interest test was applied in deciding to suspend one officer and reposition another, rendering the action unlawful.”
Mr Byrne added that it was “important to clarify that neither officer has been disciplined to date”.
“This judgment relates to the decision to suspend one officer and re-position another whilst the Police Ombudsman conducted an investigation following a public complaint,” he said.
“We will of course take time to carefully consider the full judgment to ensure any lessons are learnt to prevent any future recurrence.”
The Police Federation for Northern Ireland said the ruling raised “serious questions” about the decision-making of the PSNI’s senior executive team.
Federation chair Liam Kelly said his organisation had “no hesitation” in taking the judicial review and welcomed the judgment as a “clear vindication of the position we adopted”.
“It was our clear view that the initial actions taken by PSNI against both officers were high-handed, unwarranted and excessive,” he added.
“In our view, this High Court judgment calls into question the decision-making of the senior executive team right up to and including the deputy chief constable and the chief constable himself.”
Mr Kelly confirmed that one of the officers is still subjected to a disciplinary process and called on the PSNI to “expedite this matter forthwith”.
“Today, an injustice has been corrected and the men and women I represent are delighted at the outcome.”
