A judge who ruled that a damning report into the Loughinisland atrocity was unlawful is to step aside from the case – despite rejecting claims he could have been seen as subconsciously biased.
Amid unprecedented courtroom developments, Mr Justice Bernard McCloskey held the challenge to the Police Ombudsman’s findings that RUC officers colluded with loyalists who killed six Catholic men should be re-run in front of another member of the judiciary to ensure victims’ relatives’ confidence in the final outcome.
He said: “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.”
The outcome meant no final order could be made on whether to quash the watchdog report under challenge.
But before reaching his determination the judge also set out his view that parts of the ombudsman’s report could have been removed, leaving the rest of it intact.
Last month he delivered a landmark verdict that the ombudsman's conclusions were procedurally unfair. In High Court litigation mounted by two retired senior policemen, he found it had gone beyond the body's statutory powers in reaching conclusions on events surrounding the massacre which were unsustainable in law.
UVF gunmen opened fire in a pub in the Co Down village of Loughinisland as their victims watched a World Cup football match in June 1994. Six men were killed: Adrian Rogan (34), Malcolm Jenkinson (53), Barney Green (87), Daniel McCreanor (59), Patrick O'Hare (35) and Eamon Byrne (39). Five others were wounded in the attack.
In June 2016 the Police Ombudsman, Dr Michael Maguire, said collusion between some officers and the loyalists was a significant feature in the murders.
He found no evidence police had prior knowledge, but identified “catastrophic failings” in the investigation.
One of those who issued judicial review proceedings against Dr Maguire's assessment was Raymond White, a representative of the Northern Ireland Retired Police Officers Association. It was stressed that the report had not blamed him for any of the alleged investigative failings.
Following the main ruling, lawyers representing the ombudsman and relatives of those killed in the massacre argued that Mr Justice McCloskey should withdraw due to a potential perception of subconscious bias.
Their application was based on his role as a barrister in a separate legal challenge 16 years ago. The court heard he was involved in a separate legal bid back in 2002 to overturn former police ombudsman Nuala O'Loan's devastating report into the Omagh bomb investigations.
Mr Justice McCloskey had acted as senior counsel for police officers behind that challenge – who included Mr White. Newly instructed counsel for the ombudsman, the former DPP Barra McGrory QC, and the Loughinisland families’ legal representatives, argued that he should recuse himself to enable a fresh hearing before another judge.
During the legal move counsel emphasised they were not calling into question his judicial independence or integrity – instead basing their application on possible public perception.
Mr Justice McCloskey confirmed he had no memory of being involved in the earlier litigation until it was drawn to his attention, describing his recollection as “zero”. Returning on Friday to deliver his final judgment, he refused the application after describing submissions advanced on behalf of the Ombudsman as “flimsy, artificial and entirely unpersuasive”.
Based on all available information and affidavits, he concluded that the test for recusal was not satisfied.
“In my judgment, the independent observer would not reasonably apprehend a realistic possibility of subconscious bias in this court’s resolution of certain pure questions of law in favour of the applicants.”
Despite that assessment, he went on to set out his reasons for deciding a fresh hearing before a different judge should now take place.
“To describe the events which have materialised in the aftermath of this judgment as unpredictable and unprecedented is to indulge in understatement,” he said. “The families have been engulfed in a veritable maelstrom.”