Sean Molloy
The Court of Appeal (CoA) in Northern Ireland recently ruled
that former Police Ombudsman Northern Ireland (PONI), Dr Michael Maguire had “overstepped
the mark” in finding Royal Ulster Constabulary (RUC) officers committed
criminal acts of collusion with loyalists who massacred six Catholic men at The
Heights bar in the Co Down village in Northern Ireland in June 1994. The full judgment, which can
be found here (see here for a summary) has led to a media frenzy with
various contributions offering different and at times diverging interpretations
of the outcome. Whilst, the Belfast Telegraph’s piece is referring to the families of those
killed and is entitled “Loughinisland families’ relief as judges rule Ombudsman
report stands”, the Newsletter’s coverage states that “Loughinisland ruling
helps “expose fake news of collusion”. Still again, the Law firm KRW Law tweeted that “The power to make a public statement is
validated and remains clear. The capacity for a Police Ombudsman to investigate
and publish facts remains unambiguous.”
How can one
judgment lead to such contrasting perspectives? The answer lies in the fact that
as with many cases, there are narrow and broader lenses through which to view a
case. Similar outcomes can be interpreted from different perspectives and
particular points emphasized over others. In addition, there are often wider
implications of court rulings than the direct points of law. With the above in
mind, this post attempts to briefly examine the judgment from the perspectives
of a number of interested parties. These are namely, the appellants- retired
police officers Thomas Ronald Hawthorne and Raymond White-, the respondent-
PONI; and the Loughinsland families. The purpose is to advance, as I see it, a
number of narrow and broader implications of the case, the latter apparent upon
a wider reading of the case history.
Background
The Police
Ombudsman in Northern Ireland is an independent, impartial system for the
handling of complaints about the conduct of police officers. It serves a role like
that of the Independent Office for Police Complaints in England and Wales and
the Police Investigations and Review Commissioner in Scotland. It differs,
however in that the Police Service of Northern Ireland’s (PSNI) Historical
Enquiries Team, set up to examine all murders during ‘The Troubles’, refers to
PONI’s Historical Investigations Directorate any matter arising from its work
which raises a concern of possible police criminality. The Directorate looks at
matters in which members of the RUC (the predecessor of the PSNI and the police
force in place during the conflict) may have been responsible for deaths or
serious criminality in the past, and in particular between 1968 until 1998. It also receives
complaints of a grave or exceptional nature from members of the public about
police conduct during this period, including allegations of police involvement
in murder, attempted murder, as well as conspiracy and incitement to murder. In
this way, PONI is directly engaged in investigating allegations of police
misconduct that are historic in nature and directly related to the conflict in
Northern Ireland.
In the case
of Hawthorne’s (Thomas Ronald) and White’s (Raymond) Application, the NI Court
of Appeal was asked to rule on the extent to which PONI had acted outside of
its powers. The appellants sought to challenge the lawfulness of a number of
offending paragraphs in PONI’s public statement (PS), which suggested criminal
conduct on the part of the police. A public statement is a detailed statement
of finding provided at the end of an investigation to bereaved families.
By way of brief 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,
amongst other things that:
“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
appellants in the case claimed that in making determinations of potential
criminal culpability in the public statement, PONI had acted ultra vires- acting
beyond those powers conferred under the Police Act (NI) 1998.
Delivering
the judgment, Morgan LCJ found in the appellants’ favor. It was held that the
scheme of the legislation requires the Ombudsman to make determinations on
whether a member of the police force may have committed a criminal
offence or whether disciplinary proceedings are appropriate. The Court agreed
with the appellants ‘that the legislative steer is firmly away from the
Ombudsman having power to make determinations of the commission of criminal
offences’ [para. 43]. The Ombudsman, in the court’s view, has no
adjudicative role in respect of the outcome thereafter. Part VII of the 1998
Act does not impose any express duty on the Ombudsman to substantiate or
dismiss any complaint [para. 21]. In doing so, the Court affirmed that
PONI was not permitted to make determinations of criminal conduct. PONI’s remit
is one of investigation not adjudication [para. 40, 43, 63].
The
Narrow Reading
On a narrow
reading of the case and judgment, one that limits itself to the particulars of
the appeal and the court’s ruling thereon, the judgment has a number of
immediate consequences. Firstly, the appellants are likely to feel vindicated
of any implied or express accusations of criminal misconduct. In ruling that
PONI had overstepped its mark in drawing criminal conclusions, the court was
effectively ruling out any inferences that the appellants, as former police
officers, were criminally liable. Secondly, the judgment directly impacts on
PONI’s powers and thus on how it opts to utilize public statements. The ruling
will likely serve as a reference point and benchmark that informs how PONI opts
to articulate its findings going forward. Future public statements issued by
PONI will, following the judgment, be mindful of attaching findings from
investigative work to potential criminality. Doing so, as noted, was deemed by
the court to be beyond its powers. Thirdly, the CoA’s ruling disappoints those
that are currently awaiting the findings of PONI’s. The judgment removes the
possibility that the PONI will make any determination akin to that of a
criminal court and will likely restrict its statements to matters of fact. Fourthly,
the judgment will likely have implications for other public bodies performing
similar accountability and investigative roles. The court reaffirms past
rulings that not only are ombudsman offices subject to judicial review (see,
for example, R v Commissioner for Local
Administration, ex p Croydon London Borough Council) but that courts are more than willing to rule
on whether these bodies are operating intra or ultra vires (see, for example, R v Parliamentary Commissioner for
Administration, ex p Balchin). The judgment will therefore serve as a further reminder that, as
statutory bodies, Ombudsman offices are permitted to act only within the powers
that are conferred upon them by statute.
Even on a
narrow reading of the judgment, therefore, the direct impacts and implications
may well extend beyond the appellants to include PONI, other public bodies and those
that have or will in the future lodge complaints against the police. In this particular
case, the finding in favor of the appellants obviously extend beyond a victory
on a particular point of law. They equally strike out findings or at least
suggestions of criminal conduct.
Nevertheless,
despite the win for the appellants, various media outlets opted to focus their
attention on the positive way in which the Loughinsland families received the
Court’s findings (see BBC reporting here). At first glance, this would appear somewhat
surprising, particularly as the CoA undermined the PONIs findings of criminal
conduct. Yet, a broader reading of the case and judgment helps to explain their
enthusiasm.
The
Broader Approach
To
understand both the adulation of the Loughinisland families and aspects of the judgment
that were favorable to PONI, it is necessary to take a broader approach to
examining this case. The original Judicial Review was brought in 2016 with judgement delivered by Justice
McCloskey in
December 2017. Following complications relating to the role of the judge in
formally representing the RUC, a new judge was appointed- Justice Keegan who found in favour of PONI in the High Court in January 2018.
The appeal before the CoA was against that judgment. Part of the appellants’ original
argument was that the Ombudsman should only issue a public statement when a
statutory outcome was reached such as a recommendation for criminal or
disciplinary proceedings. The argument advanced was that the most the Ombudsman
could report on was that he did not believe that any criminal or disciplinary
charges were merited. To go further was
to step outside the statutory role [para. 63]. In short, if PONIs
investigations failed to uncover either of these two scenarios, there was no
statutory basis for issuing a public statement. The potential implications of
any ruling to this effect would no doubt be profound. Effectively, absent these
narrow outcomes, victims and their families would have little information
regarding serious allegations of suspected serious police misconduct.
However, this
notwithstanding, the Court nevertheless refused to quash the public statement.
The Court examined Section 62 is the provision at the centre of the dispute in
this appeal and provides:
“The Ombudsman may, in relation to any
exercise of his functions under this Part, publish a statement as to his
actions, his decisions and determinations and the reasons for his decisions and
determinations.”
The
existence of this provision does not necessarily provide a basis in law for the
use of a PS. Indeed, part of the judgment involved a consideration and
ultimately a rejection of the application of various authorities on the discretion
of an Ombudsman (see, for example, R(Chief Constable of West Yorkshire)
v IPCC and R v Parliamentary Commissioner ex p
Dyer (for a
discussion of the case law see Kirkham and Allt, 2016) finding that none of these cases were
sufficiently analogous to the case at hand. Instead, the refusal to quash the
PS and, by implication, the upholding of the execution of the s. 62 discretion,
turned on a human rights issue. In examining the role of PONI in light of
article 2 ECHR obligations, the court nodded to its role as an investigative
body, which could, in certain circumstances, dispense of the state’s duty to
conduct article 2 compliant investigations.
Thus, the
CoA judges adopted a holistic approach to statutory construction, one that
required looking beyond the literal interpretation of its provisions. This
included a consideration of internal and external aids, following the judgment
in Pepper v. Hart. In terms of the context of the
legislative scheme, for instance, the judgment noted that ‘The Patten
Commission expressly recognised the importance of the Ombudsman in securing
accountability and public trust in the police’ [para. 50]. Like other
mechanisms, such as coroners’ inquests, is the court found it a logical
consequence of an investigative body that some approach to articulating the
findings of the investigation is necessary.
The court
determined that those involved in scrutinizing the activities of public bodies,
ought to be able to articulate the outcomes of their investigation. In the
present case, the inability to convey to both the families and wider public the
outcomes of the investigation would likely lessen public confidence in the
accountability of security services. In both refusing to quash the report and
in holding that it was appropriate for the former Police Ombudsman to
“acknowledge that the matters uncovered by him were very largely what the families
claimed constituted collusive behaviour”, the Court confirms that public
statements are a necessary and inevitable consequence of the investigative role
or PONI.
The families positive endorsement of the judgment is,
therefore, a reaction to the
fact that the court determined it unnecessary to quash the report and in doing
so upheld the findings of PONI. To understand the significance of this aspect
of the judgment, it is useful to contrast one of the offending paragraphs in
the public statement with another that was not deemed offensive:
(9.2) “police were aware of plans by the UVF,
UDA and Ulster Resistance to import a significant consignment of weaponry to
Northern Ireland in mid to late 1987 and knew about the arrival of the assault rifles,
semiautomatic handguns, grenades and other weapons forming the shipment shortly
after it was landed in Northern Ireland”.
(9.9) I have seen sufficient information to be
satisfied that corrupt relationships existed between members of the Security Forces
in South Down and the UVF Unit, to whom police attributed the murders at
Loughinisland. The failure by police to investigate the veracity of
intelligence that those responsible had been ‘warned’ by a police officer of
their imminent arrest is inexcusable.
The CoA, in
refusing to quash PONI’s public statement, held that statements such as those
in para. 9.2 of the PS amounted to a narrative of events [para. 63], the
expression of which is wholly in line with the purpose of an investigating
body. By contrast, section 9.9, according to the Court, “were not in our view
decisions or determinations to which section 62 applied and overstepped the
mark by amounting to findings of criminal offences by members of the police
force” [para. 63]. Examining these respective paragraphs in tandem illuminates
once again, the legal point in question- whether PONI has the scope to make
determinations of criminal offences. At the same time, reading both statements also
points to what was not in question and what, upon refusing to quash the report,
the court upheld.
Both
statements demonstrate the existence, in the view of PONI, of corruption but
differ in the expression of potential criminal culpability attached to them. Whereas
the former was deemed to overstep the mark, the perceived existence of
corruption remained untouched. Indeed, in supporting this claim, it is
noteworthy that the court outlined that the Ombudsman acknowledge that the
matters uncovered by him were very largely what the families claimed
constituted collusive behaviour. Clearly, what the court was examining
was the extent to which PONI could make determinations of criminal conduct
based on findings of collusion, not whether collusion existed.
Thus, for the Loughinisland families, the central issue was
that the public statement- which held that corruption was a feature of the
deaths of their loved ones- was left untouched. Unless the families have a
particular interest over questions
of intra or ultra vires tests or the mechanics of statutory interpretation, the
contestation over the specific remit of PONI’s powers is likely to be of little
moment to the families. What is instead significant is that the report in
question remains, in the absence of a remedy to quash, the primary record of
this case. The findings of collusion remain unchanged.
In
addition, there are also wider implications for PONI’s work. The judgment
appears to affirm the legality of issuing public statements under the
discretion afforded by s. 62. Crucially, this discretion can be used in such a
way as to provide, in the interests of public trust and confidence, information
to those that have challenged police conduct. This is an important ruling in
the context of PONI’s ongoing investigations and one that will no doubt be
widely received by those with complaints currently under investigation.
Summing Up
As with any
case, whether one party considers a judgment to be a success or failure, will
depend not only on the outcome but also their interpretation and reading of it.
On a narrow reading, PONI failed on the vires test argument, while the
appellants were successful. The interpretation of the CoA was clear in deciding
that the PONI had overstepped his mark. While there will likely be differences
of opinion regarding the merit of that ruling (for instance, how can PONI provide
compensation if it cannot make determinations?), it is nevertheless the case
that the appellants won the day on this specific legal point. Inasmuch as the
PONI’s offending paragraphs could be interpreted to target individuals, these
persons are likely to feel vindicated by the ruling. Moreover, in determining
that PONI possesses no adjudicative powers, an important legal principle of
innocent until proven guilty must apply.
At the same
time, judgments must also be analysed from a broader perspective and in light
of a case history. On such a reading, the judgment merely curtails how PONI is
able to frame and convey its findings. It does not affect the scope of its
investigative work nor how it discharges its statutory duties. There is now a
common law ruling on the lawfulness of the issuing of a public statement, which
views their function as a corollary to the investigative responsibilities of
the Ombudsman. There may be future discussion on the need to extend its scope
to including adjudicative powers, but that is a matter for another time.
Understood in this way, the CoA’s ruling will serve as a useful framework with
which to assist in how PONI opts to articulate the outcomes of its
investigative work.
In terms of
the overall context of the case, the vires issue was a relatively insignificant
one. The objective, from the outset, was to quash the report. In this sense,
the decision of the court to affirm rather than remove from record the public
statement, vindicates PONI’s findings, albeit with the proviso that any future
statements remain within the scope of its powers alongside the always-present
common law requirement of procedural fairness. But the ability to continue to
utilize PS will be of immense benefit to other families awaiting PONI reports.
For the
Loughinisland families, it is not difficult to understand why the judgment was
welcomed. In failing to quash the report, it remains the primary record of the
events that surrounded the murder of their loved ones. While some will
celebrate the vires issue, no amount of spin can remove the significance of the
Court’s decision not to do so. And yet, still, the families will no doubt feel
bitter sweet, particularly as justice has yet to be served in this case (See
Alison Morris’s article in the Irish News).
At a more
general level, this case serves as a reminder for lawyers that the impacts of the
outcome of judicial reviews often stretch far beyond the particular and
technical legal aspects of a case. The case equally illuminates that the
analysis of these particular points of law must also be examined in light of
the wider case history, including the initial and overall objectives of the
parties.
