The Court of Appeal (CoA) in Northern Ireland recently ruled\nthat former Police Ombudsman Northern Ireland (PONI), Dr Michael Maguire had \u201coverstepped\nthe mark\u201d in finding Royal Ulster Constabulary (RUC) officers committed\ncriminal acts of collusion with loyalists who massacred six Catholic men at The\nHeights bar in the Co Down village in Northern Ireland in June 1994. The full judgment, which can\nbe found here<\/a> (see here<\/a> for a summary) has led to a media frenzy with\nvarious contributions offering different and at times diverging interpretations\nof the outcome. Whilst, the Belfast Telegraph\u2019s piece<\/a> is referring to the families of those\nkilled and is entitled \u201cLoughinisland families’ relief as judges rule Ombudsman\nreport stands\u201d, the Newsletter\u2019s coverage<\/a> states that \u201cLoughinisland ruling\nhelps \u201cexpose fake news of collusion\u201d. Still again, the Law firm KRW Law tweeted<\/a> that \u201cThe power to make a public statement is\nvalidated and remains clear. The capacity for a Police Ombudsman to investigate\nand publish facts remains unambiguous.\u201d<\/p>\n\n\n\n How can one\njudgment lead to such contrasting perspectives? The answer lies in the fact that\nas with many cases, there are narrow and broader lenses through which to view a\ncase. Similar outcomes can be interpreted from different perspectives and\nparticular points emphasized over others. In addition, there are often wider\nimplications of court rulings than the direct points of law. With the above in\nmind, this post attempts to briefly examine the judgment from the perspectives\nof a number of interested parties. These are namely, the appellants- retired\npolice officers Thomas Ronald Hawthorne and Raymond White-, the respondent-\nPONI; and the Loughinsland families. The purpose is to advance, as I see it, a\nnumber of narrow and broader implications of the case, the latter apparent upon\na wider reading of the case history. <\/p>\n\n\n\n Background\n<\/strong><\/p>\n\n\n\n The Police\nOmbudsman in Northern Ireland is an independent, impartial system for the\nhandling of complaints about the conduct of police officers. It serves a role like\nthat of the Independent Office for Police Complaints in England and Wales and\nthe Police Investigations and Review Commissioner in Scotland. It differs,\nhowever in that the Police Service of Northern Ireland\u2019s (PSNI) Historical\nEnquiries Team, set up to examine all murders during \u2018The Troubles\u2019, refers to\nPONI\u2019s Historical Investigations Directorate any matter arising from its work\nwhich raises a concern of possible police criminality. The Directorate looks at\nmatters in which members of the RUC (the predecessor of the PSNI and the police\nforce in place during the conflict) may have been responsible for deaths or\nserious criminality in the past, and in particular between 1968 until 1998. It also receives\ncomplaints of a grave or exceptional nature from members of the public about\npolice conduct during this period, including allegations of police involvement\nin murder, attempted murder, as well as conspiracy and incitement to murder. In\nthis way, PONI is directly engaged in investigating allegations of police\nmisconduct that are historic in nature and directly related to the conflict in\nNorthern Ireland.<\/p>\n\n\n\n In the case\nof Hawthorne’s (Thomas Ronald) and White’s (Raymond) Application, the NI Court\nof Appeal was asked to rule on the extent to which PONI had acted outside of\nits powers. The appellants sought to challenge the lawfulness of a number of\noffending paragraphs in PONI\u2019s public statement<\/a> (PS), which suggested criminal\nconduct on the part of the police. A public statement is a detailed statement\nof finding provided at the end of an investigation to bereaved families.<\/p>\n\n\n\n By way of brief background, on 9 June 2016, the Police\nOmbudsman for Northern Ireland issued a public statement arising out of\nthe second investigation of the murders at the Heights Bar, Loughinisland on 18\nJune 1994. The Executive Summary of the PONI\u2019s statement said the investigation\nhad sought to answer the families\u2019 question: \u201cWhy has no one been held\naccountable for the murder of their loved ones?\u201d The PONI\u2019s statement read,\namongst other things that: <\/p>\n\n\n\n \u201cLet there be no doubt, the\npersons responsible for the atrocity at Loughinisland were those who entered\nthe bar on this Saturday evening and indiscriminately opened fire. It is also\nimportant to recognise that despite the feelings identified in this report\nthere have been many within the RUC and the PSNI who have worked tirelessly to\nbring those responsible to justice. I am grateful to those members of the\npublic and retired police officers who assisted my enquiries. However my\ninvestigation into this area was constrained by a refusal of a number of key\npeople to speak to my investigators.\u201d <\/p>\n\n\n\n The\nappellants in the case claimed that in making determinations of potential\ncriminal culpability in the public statement, PONI had acted ultra vires- acting\nbeyond those powers conferred under the Police Act (NI) 1998<\/a>. <\/p>\n\n\n\n Delivering\nthe judgment, Morgan LCJ found in the appellants\u2019 favor. It was held that the\nscheme of the legislation requires the Ombudsman to make determinations on\nwhether a member of the police force may<\/em> have committed a criminal\noffence or whether disciplinary proceedings are appropriate. The Court agreed\nwith the appellants \u2018that the legislative steer is firmly away from the\nOmbudsman having power to make determinations of the commission of criminal\noffences\u2019 [para. 43<\/strong>]. The Ombudsman, in the court\u2019s view, has no\nadjudicative role in respect of the outcome thereafter. Part VII of the 1998\nAct does not impose any express duty on the Ombudsman to substantiate or\ndismiss any complaint [para. 21<\/strong>]. In doing so, the Court affirmed that\nPONI was not permitted to make determinations of criminal conduct. PONI\u2019s remit\nis one of investigation not adjudication [para.<\/strong> 40, 43, 63].<\/strong><\/p>\n\n\n\n The\nNarrow Reading<\/strong><\/p>\n\n\n\n On a narrow\nreading of the case and judgment, one that limits itself to the particulars of\nthe appeal and the court\u2019s ruling thereon, the judgment has a number of\nimmediate consequences. Firstly, the appellants are likely to feel vindicated\nof any implied or express accusations of criminal misconduct. In ruling that\nPONI had overstepped its mark in drawing criminal conclusions, the court was\neffectively ruling out any inferences that the appellants, as former police\nofficers, were criminally liable. Secondly, the judgment directly impacts on\nPONI\u2019s powers and thus on how it opts to utilize public statements. The ruling\nwill likely serve as a reference point and benchmark that informs how PONI opts\nto articulate its findings going forward. Future public statements issued by\nPONI will, following the judgment, be mindful of attaching findings from\ninvestigative work to potential criminality. Doing so, as noted, was deemed by\nthe court to be beyond its powers. Thirdly, the CoA\u2019s ruling disappoints those\nthat are currently awaiting the findings of PONI\u2019s. The judgment removes the\npossibility that the PONI will make any determination akin to that of a\ncriminal court and will likely restrict its statements to matters of fact. Fourthly,\nthe judgment will likely have implications for other public bodies performing\nsimilar accountability and investigative roles. The court reaffirms past\nrulings that not only are ombudsman offices subject to judicial review (see,\nfor example, R v Commissioner for Local\nAdministration, ex p Croydon London Borough Council<\/a>) but that courts are more than willing to rule\non whether these bodies are operating intra or ultra vires (see, for example, R v Parliamentary Commissioner for\nAdministration, ex p Balchin<\/a>). The judgment will therefore serve as a further reminder that, as\nstatutory bodies, Ombudsman offices are permitted to act only within the powers\nthat are conferred upon them by statute.<\/p>\n\n\n\n Even on a\nnarrow reading of the judgment, therefore, the direct impacts and implications\nmay well extend beyond the appellants to include PONI, other public bodies and those\nthat have or will in the future lodge complaints against the police. In this particular\ncase, the finding in favor of the appellants obviously extend beyond a victory\non a particular point of law. They equally strike out findings or at least\nsuggestions of criminal conduct. <\/p>\n\n\n\n Nevertheless,\ndespite the win for the appellants, various media outlets opted to focus their\nattention on the positive way in which the Loughinsland families received the\nCourt\u2019s findings (see BBC reporting here<\/a>). At first glance, this would appear somewhat\nsurprising, particularly as the CoA undermined the PONIs findings of criminal\nconduct. Yet, a broader reading of the case and judgment helps to explain their\nenthusiasm. <\/p>\n\n\n\n The\nBroader Approach<\/strong><\/p>\n\n\n\n To\nunderstand both the adulation of the Loughinisland families and aspects of the judgment\nthat were favorable to PONI, it is necessary to take a broader approach to\nexamining this case. The original Judicial Review was brought in 2016 with judgement delivered by Justice\nMcCloskey<\/a> in\nDecember 2017. Following complications relating to the role of the judge in\nformally representing the RUC, a new judge was appointed- Justice Keegan who found in favour of PONI<\/a> in the High Court in January 2018.\nThe appeal before the CoA was against that judgment. Part of the appellants\u2019 original\nargument was that the Ombudsman should only issue a public statement when a\nstatutory outcome was reached such as a recommendation for criminal or\ndisciplinary proceedings. The argument advanced was that the most the Ombudsman\ncould report on was that he did not believe that any criminal or disciplinary\ncharges were merited. To go further was\nto step outside the statutory role [para. 63<\/strong>]. In short, if PONIs\ninvestigations failed to uncover either of these two scenarios, there was no\nstatutory basis for issuing a public statement. The potential implications of\nany ruling to this effect would no doubt be profound. Effectively, absent these\nnarrow outcomes, victims and their families would have little information\nregarding serious allegations of suspected serious police misconduct. <\/p>\n\n\n\n However, this\nnotwithstanding, the Court nevertheless refused to quash the public statement.\nThe Court examined Section 62 is the provision at the centre of the dispute in\nthis appeal and provides: <\/p>\n\n\n\n \u201cThe Ombudsman may, in relation to any\nexercise of his functions under this Part, publish a statement as to his\nactions, his decisions and determinations and the reasons for his decisions and\ndeterminations<\/em>.\u201d <\/p>\n\n\n\n The\nexistence of this provision does not necessarily provide a basis in law for the\nuse of a PS. Indeed, part of the judgment involved a consideration and\nultimately a rejection of the application of various authorities on the discretion\nof an Ombudsman (see, for example, R(Chief Constable of West Yorkshire)\nv IPCC<\/em><\/strong><\/a> and R v Parliamentary Commissioner ex p\nDyer<\/em><\/strong><\/a> (for a\ndiscussion of the case law see Kirkham and All<\/strong>t<\/a>, 2016) finding that none of these cases were\nsufficiently analogous to the case at hand. Instead, the refusal to quash the\nPS and, by implication, the upholding of the execution of the s. 62 discretion,\nturned on a human rights issue. In examining the role of PONI in light of\narticle 2 ECHR obligations, the court nodded to its role as an investigative\nbody, which could, in certain circumstances, dispense of the state\u2019s duty to\nconduct article 2 compliant investigations. <\/p>\n\n\n\n Thus, the\nCoA judges adopted a holistic approach to statutory construction, one that\nrequired looking beyond the literal interpretation of its provisions. This\nincluded a consideration of internal and external aids, following the judgment\nin Pepper v. Hart<\/em><\/strong><\/a>. In terms of the context of the\nlegislative scheme, for instance, the judgment noted that \u2018The Patten\nCommission expressly recognised the importance of the Ombudsman in securing\naccountability and public trust in the police\u2019 [para. 50<\/strong>]. Like other\nmechanisms, such as coroners\u2019 inquests, is the court found it a logical\nconsequence of an investigative body that some approach to articulating the\nfindings of the investigation is necessary.<\/p>\n\n\n\n The court\ndetermined that those involved in scrutinizing the activities of public bodies,\nought to be able to articulate the outcomes of their investigation. In the\npresent case, the inability to convey to both the families and wider public the\noutcomes of the investigation would likely lessen public confidence in the\naccountability of security services. In both refusing to quash the report and\nin holding that it was appropriate for the former Police Ombudsman to\n\u201cacknowledge that the matters uncovered by him were very largely what the families\nclaimed constituted collusive behaviour\u201d, the Court confirms that public\nstatements are a necessary and inevitable consequence of the investigative role\nor PONI.<\/p>\n\n\n\n The families positive endorsement of the judgment is,\ntherefore, a reaction to the\nfact that the court determined it unnecessary to quash the report and in doing\nso upheld the findings of PONI. To understand the significance of this aspect\nof the judgment, it is useful to contrast one of the offending paragraphs in\nthe public statement with another that was not deemed offensive:<\/p>\n\n\n\n (9.2) \u201cpolice were aware of plans by the UVF,\nUDA and Ulster Resistance to import a significant consignment of weaponry to\nNorthern Ireland in mid to late 1987 and knew about the arrival of the assault rifles,\nsemiautomatic handguns, grenades and other weapons forming the shipment shortly\nafter it was landed in Northern Ireland\u201d.<\/em><\/p>\n\n\n\n (9.9) I have seen sufficient information to be\nsatisfied that corrupt relationships existed between members of the Security Forces\nin South Down and the UVF Unit, to whom police attributed the murders at\nLoughinisland. The failure by police to investigate the veracity of\nintelligence that those responsible had been \u2018warned\u2019 by a police officer of\ntheir imminent arrest is inexcusable.<\/em><\/p>\n\n\n\n The CoA, in\nrefusing to quash PONI\u2019s public statement, held that statements such as those\nin para. 9.2 of the PS amounted to a narrative of events [para. 63<\/strong>], the\nexpression of which is wholly in line with the purpose of an investigating\nbody. By contrast, section 9.9, according to the Court, \u201cwere not in our view\ndecisions or determinations to which section 62 applied and overstepped the\nmark by amounting to findings of criminal offences by members of the police\nforce\u201d [para. 63<\/strong>]. Examining these respective paragraphs in tandem illuminates\nonce again, the legal point in question- whether PONI has the scope to make\ndeterminations of criminal offences. At the same time, reading both statements also\npoints to what was not in question and what, upon refusing to quash the report,\nthe court upheld. <\/p>\n\n\n\n Both\nstatements demonstrate the existence, in the view of PONI, of corruption but\ndiffer in the expression of potential criminal culpability attached to them. Whereas\nthe former was deemed to overstep the mark, the perceived existence of\ncorruption remained untouched. Indeed, in supporting this claim, it is\nnoteworthy that the court outlined that the Ombudsman acknowledge that the\nmatters uncovered by him were very largely what the families claimed\nconstituted collusive behaviour. Clearly, what the court was examining\nwas the extent to which PONI could make determinations of criminal conduct\nbased on findings of collusion, not whether collusion existed. <\/p>\n\n\n\n Thus, for the Loughinisland families, the central issue was\nthat the public statement- which held that corruption was a feature of the\ndeaths of their loved ones- was left untouched. Unless the families have a\nparticular interest over questions\nof intra or ultra vires tests or the mechanics of statutory interpretation, the\ncontestation over the specific remit of PONI\u2019s powers is likely to be of little\nmoment to the families. What is instead significant is that the report in\nquestion remains, in the absence of a remedy to quash, the primary record of\nthis case. The findings of collusion remain unchanged. <\/p>\n\n\n\n In\naddition, there are also wider implications for PONI\u2019s work. The judgment\nappears to affirm the legality of issuing public statements under the\ndiscretion afforded by s. 62. Crucially, this discretion can be used in such a\nway as to provide, in the interests of public trust and confidence, information\nto those that have challenged police conduct. This is an important ruling in\nthe context of PONI\u2019s ongoing investigations and one that will no doubt be\nwidely received by those with complaints currently under investigation. <\/p>\n\n\n\n Summing Up<\/strong><\/p>\n\n\n\n As with any\ncase, whether one party considers a judgment to be a success or failure, will\ndepend not only on the outcome but also their interpretation and reading of it.\nOn a narrow reading, PONI failed on the vires test argument, while the\nappellants were successful. The interpretation of the CoA was clear in deciding\nthat the PONI had overstepped his mark. While there will likely be differences\nof opinion regarding the merit of that ruling (for instance, how can PONI provide\ncompensation if it cannot make determinations?), it is nevertheless the case\nthat the appellants won the day on this specific legal point. Inasmuch as the\nPONI\u2019s offending paragraphs could be interpreted to target individuals, these\npersons are likely to feel vindicated by the ruling. Moreover, in determining\nthat PONI possesses no adjudicative powers, an important legal principle of\ninnocent until proven guilty must apply.<\/p>\n\n\n\n At the same\ntime, judgments must also be analysed from a broader perspective and in light\nof a case history. On such a reading, the judgment merely curtails how PONI is\nable to frame and convey its findings. It does not affect the scope of its\ninvestigative work nor how it discharges its statutory duties. There is now a\ncommon law ruling on the lawfulness of the issuing of a public statement, which\nviews their function as a corollary to the investigative responsibilities of\nthe Ombudsman. There may be future discussion on the need to extend its scope\nto including adjudicative powers, but that is a matter for another time.\nUnderstood in this way, the CoA\u2019s ruling will serve as a useful framework with\nwhich to assist in how PONI opts to articulate the outcomes of its\ninvestigative work.<\/p>\n\n\n\n In terms of\nthe overall context of the case, the vires issue was a relatively insignificant\none. The objective, from the outset, was to quash the report. In this sense,\nthe decision of the court to affirm rather than remove from record the public\nstatement, vindicates PONI\u2019s findings, albeit with the proviso that any future\nstatements remain within the scope of its powers alongside the always-present\ncommon law requirement of procedural fairness. But the ability to continue to\nutilize PS will be of immense benefit to other families awaiting PONI reports. <\/p>\n\n\n\n For the\nLoughinisland families, it is not difficult to understand why the judgment was\nwelcomed. In failing to quash the report, it remains the primary record of the\nevents that surrounded the murder of their loved ones. While some will\ncelebrate the vires issue, no amount of spin can remove the significance of the\nCourt\u2019s decision not to do so. And yet, still, the families will no doubt feel\nbitter sweet, particularly as justice has yet to be served in this case (See\nAlison Morris\u2019s article<\/a> in the Irish News). <\/p>\n\n\n\n At a more\ngeneral level, this case serves as a reminder for lawyers that the impacts of the\noutcome of judicial reviews often stretch far beyond the particular and\ntechnical legal aspects of a case. The case equally illuminates that the\nanalysis of these particular points of law must also be examined in light of\nthe wider case history, including the initial and overall objectives of the\nparties.<\/p>\n","protected":false},"excerpt":{"rendered":" Sean Molloy The Court of Appeal (CoA) in Northern Ireland recently ruled that former Police Ombudsman Northern Ireland (PONI), Dr Michael Maguire had \u201coverstepped the mark\u201d in finding Royal Ulster Constabulary (RUC) officers committed criminal acts of collusion with loyalists … Continue reading