About this case:

• Court:
  High Court
• Judge:
  Mrs Justice Keegan

Emphasising the independence of the office of the Police Ombudsman for Northern Ireland and its obligation to investigate, Mrs Justice Siobhan Keegan held that the Ombudsman had not acted outside his statutory powers.

Background

On 9 June 2016, the Police Ombudsman for Northern Ireland issued a public statement arising out of the second investigation of the murders at the Heights Bar, Loughinisland on 18 June 1994.

The Executive Summary of the PONI’s statement said the investigation had sought to answer the families’ question: “Why has no one been held accountable for the murder of their loved ones?”

The PONI’s statement read: “Let there be no doubt, the persons responsible for the atrocity at Loughinisland were those who entered the bar on this Saturday evening and indiscriminately opened fire. It is also important to recognise that despite the feelings identified in this report there have been many within the RUC and the PSNI who have worked tirelessly to bring those responsible to justice. I am grateful to those members of the public and retired police officers who assisted my enquiries. However my investigation into this area was constrained by a refusal of a number of key people to speak to my investigators.”

The amended PONI statement concluded: “Many of the issues I have identified in this report, including the protection of informants through both wilful acts and the passive ‘turning a blind eye’ are in themselves evidence of collusion as defined by Judge Smithwick. When viewed collectively I have no hesitation in unambiguously determining that collusion is a significant feature of the Loughinisland murders.”

Application for judicial review

In the judicial review proceedings in the High Court, Thomas Ronald Hawthorne and Raymond White challenged the public statement issued by the PONI.

Mr Hawthorne contended that, as the RUC’s Sub-Divisional Commander for Downpatrick Sub-Division at the time of the murders, he was readily identifiable as the person to whom the criticisms and negative findings of the report applied and stated that this caused distress, anxiety and upset to him and his family.

Mr White brought the application as chairman of the Retired Police Officers Association on its behalf and on behalf of its members.

Both applicants contended that in making the statement, the PONI had exceeded his statutory powers under Part VII of the Police (Northern Ireland) Act 1998.

Counsel for the applicants maintained that the PONI went beyond his remit under the Police (Northern Ireland) Act 1998 by making a series of final determinations in this case about individual actions of members of the police force and the police force as a corporate body. They complained that whilst the PONI may publish a statement as to his actions under s. 62 of the Police (Northern Ireland) Act 1998 that must be in relation to an exercise of his functions.

Further, in the absence of a recommendation for criminal and disciplinary proceedings, the PONI had no function to comment on matters which were in effect in the nature of determinations in relation to criminal and disciplinary proceedings; and that while the term “collusion” does not in itself comprise a criminal offence it could be categorised as such by someone reading the report and his clients would easily be identified with the determination as made.

Finally, it was argued that the PONI’s report went way beyond the obligation on him to give reasons notwithstanding the fact that he had not recommended criminal or disciplinary proceedings.

Dismissing the application challenging the PONI’s vires to make the public statement, Mrs Justice Keegan concluded that the applicants’ arguments could not prevail because:

1. The PONI is an independent office, tasked to investigate complaints; that involves an evaluative exercise.
2. It is too narrow a view that the investigative duty is concerned with crime and punishment alone. The literature which set up investigative bodies such as HET also refers to the wider need to bring some resolution to families in circumstances such as this.
3. By virtue of the statutory regime there is no prohibition upon PONI issuing a public statement under s. 62 in circumstances where no criminal complaint or disciplinary complaint is made.
4. This is not a free standing power. It is related to the investigation of a complaint.
5. It is a matter of discretion for the PONI in a particular case and the court should be slow to interfere with that discretion.
6. It would offend against the statutory aims of PONI contained in s. 51(4) if a public comment could not be offered on events such as this which are in the public domain and of high importance.
7. S. 62 is part of the PONI’s function which is necessary to satisfy the statutory aims including public confidence in the process.
8. It is contrary to the intention of the legislation to limit the role of PONI in the manner contended for.
9. The statement by PONI does not constitute a criminal or disciplinary finding against any individual.
10. In this case the applicants and indeed the PSNI were consulted prior to issue of the draft report and any procedural failings vis a vis the applicants have been corrected.
11. In the unique situation presented by the Troubles it is appropriate that bereaved families should have the benefit of an independent investigative report such as this particularly where no prosecutions have been brought.
12. If the applicants’ case was right and the PONI’s role was restricted there would be a potential breach of the investigative obligation placed upon the State by virtue of Article 2.

• by Seosamh Gráinséir for Irish Legal News