By John Ware (for the Irish Times)
Next Friday morning, a group, mostly men, mostly late middle-aged, hope and expect to hear a ruling from Mr Justice Bernard McCloskey in the Royal Courts of Justice in Chichester Street in Belfast for which they have long campaigned.
Members of the Northern Ireland Retired Police Officers’ Association, they went to court last year to challenge the report of the Northern Ireland Police Ombudsman, Dr Michael Maguire, into the 1994 Loughinisland killings.
Twenty-four people were gathered in The Heights Bar in the Co Down village on June 18th, 1994, watching the Republic of Ireland vs Italy in the World Cup, when two UVF members wearing boiler suits and balaclavas walked in shortly after 10pm.
Shouting “Fenian bastards”, one opened fire with an assault rifle, unleashing more than 60 bullets. Six men died, including Barney Green (87). Five were wounded. The gunmen laughed as they ran away.
Following a three-year investigation, the NI Police Ombudsman produced a 157-page report, reaching the “unambiguous determination” that the Royal Ulster Constabulary had colluded with loyalist terrorists in the slaughter.
However, in the High Court, four days before Christmas, Mr Justice McCloskey delivered a withering judgment, describing the report as “careless, thoughtless and inattentive . . . in . . . language and structuring” and “quite unacceptable by any standard”.
The stage is now set for next Friday at the Royal Courts when Mr Justice McCloskey will deliver his remedy for Maguire’s “withering and damning condemnation of professional police officers”.
The remedy sought by the Northern Ireland Retired Police Officers Association, which represents 3000 ex-RUC men and women, is that the findings of Maguire’s report should be quashed.
In his report, Maguire disclosed how informers used by RUC Special Branch had been involved in the Loughinisland planning, including the importation of the weapons that were used by the boiler-suited killers.
The involvement of informers, he argued, helped to explain why 24 years on no-one has ever been charged with the deaths of Barney Green, Adrian Rogan (34), Patrick O’Hare (35), Eamon Byrne (39), Malcolm Jenkinson (53), and Daniel McCreanor (59).
Maguire’s report was the second inquiry into Loughinisland. The first in 2011 by his predecessor, Al Hutchinson found that the police investigation had lacked “diligence, focus and leadership”.
Significant lines of enquiry were not identified, the police had failed properly to talk to the victims’ families. However, he found that there was “insufficient evidence of collusion” and “no evidence that police could have prevented the attack”.
Maguire decided differently, when he looked at the killings in a report published in 2016, saying: “I have no hesitation in unambiguously determining that collusion is a significant feature of the Loughinisland murders.”
The RUC had known about the importation of the guns used in the killings because one of its informers were involved. Some of the weaponry was later captured by the police, but there was potential that more could have been.
The five key suspects were not interviewed for a month. One of them was an informer. The Ombudsman found that the RUC Special Branch’s desire to protect its informer trumped the need to bring the killers to justice.
Initially, after Maguire’s report was published in 2016, the official British reaction was positive. Then prime minister David Cameron and Theresa Villiers, nearing her final days as NI secretary of state, accepted Maguire’s findings.
The Police Service of Northern Ireland chief constable George Hamilton accepted them “in full” and said what had happened had been “totally unacceptable”, emphasising that Maguire played an “essential” role in holding the police to account.
In making his determination, however, Mr Justice McCloskey found Maguire had acted contrary to common law and by using the “language of indictment” had not afforded due process to the RUC officers involved.
What are the bereaved relatives to make of it all? Was there, or was there not collusion? “This judgment has devastated us all,” said a bewildered Emma Rogan, a Sinn Fein politician, whose father Adrian was one of those murdered.
However, although the chief constable accepted Maguire’s report “in full”, the PSNI now says he had reservations “consistent” with that of Mr Justice McCloskey’s.
Hamilton said he expected the Ombudsman to be held to the same evidential standards as the PSNI and wondered why, if Maguire was so convinced there’d been collusion, he had not recommended prosecutions.
The answer to that is the quagmire into which the battle for control of the story of the Troubles has sunk. For a start, there is no clear definition of collusion, so it cannot be defined in law. Anyway, it may not always involve criminality.
Maguire considered no fewer than nine different definitions which have governed the conclusions to a slew of inquiries since the 1998 Belfast Agreement, both criminal and public.
Firstly, there is former Metropolitan Police Commissioner Sir John Stevens’ definition used during his years in Northern Ireland, which includes “absence of accountability and withholding of intelligence”.
The other end of the spectrum was adopted by the 2010 public inquiry into the murder of the Mid-Ulster UVF “commander” Billy Wright by the Irish National Liberation Army inside the Maze prison. That inquiry defined collusion as meaning anything that involved “an agreement or arrangement between individuals and organisations, including government departments, to achieve an unlawful or improper purpose”.
Faced with such a definition, the NI Retired Police Officers’ Association says that, unless the evidence can sustain a specific criminal charge like conspiracy, fraud, or misfeasance in public office, then critics should stay silent.
“Collusion has become a wink-wink, nod-nod approach with a ‘Need I say more’ [attitude],” says NIRPOA’s chairman Ray White, a former RUC assistant chief constable and a senior Special Branch officer.
In his inquiry, Dr Maguire chose the broader end of the definition adopted by Judge Peter Smithwick in his public inquiry in Dublin into alleged collusion between members of An Garda Siochana and the IRA, a definition that was accepted by the PSNI at the time.
A “consistent pattern of investigative failures” could be considered as collusion depending on the case, Maguire decided, which would be “particularly” the situation when State agents behaved criminally.
Faced with this, the retired police officers argue that it backs up their charge that Maguire had engaged in “confirmation bias” - deciding that a certain thing had happened, then seeking out only information that supports it.
Behind the NIRPOA’s attempt to get Maguire’s Loughinisland collusion finding quashed lies a seething frustration over what former RUC officers see as the rewriting of the narrative of the Troubles.
They especially object to those who argue that the price of peace requires the IRA to be seen “not as ‘shoot-you-in-the-back-terrorists’, but as morally equivalent “combatants” in an allegedly just conflict.
The statistics tell a different story, they point out. The RUC killed just 1.4 per cent (51) of the 3,720 people lost during the nearly 30 years of conflict, compared with the 2,152 who died at the hands of republicans.
Citing George Orwell’s dictum that “who controls the past controls the future; who controls the present controls the past”, the NIRPOA argues that a republican narrative buttressed by officials steeped in human rights activism has increasingly taken hold.
Central to this rewriting of history, the NIRPOA says, has been the notion that the RUC Special Branch engaged in widespread collusion protecting informers from prosecution, even for mass murder.
The truth, says NIRPOA, is that what people like Dr Michael Maguire and others - who they regard as “ingenues” - call “collusion” actually won the peace by boxing in the IRA. Can’t we just leave it at that, they ask?
Well, no, not if you lost your mother, or father, or brother or sister in an attack that included a state agent which the State either knew about beforehand, or if they continued to protect that agent later.
Maguire and his team do not come across as ingenues. They understand the difficulties running agents during an armed insurgency and they insist that even if they do investigate through a human rights lens, they still understand where the black line becomes red.
LINE WAS CROSSED
In Loughinisland, that line was crossed time and time again, argues Maguire - from destruction of interview transcripts and key exhibits, to the failure to arrest the five suspects quickly, even though detectives had their names within hours.
These are the so-called “golden hours”, when suspects are at their most vulnerable, and where the opportunities to gather vital forensic evidence to guarantee prosecutions are strongest.
Such arguments were made by NIRPOA chairman Ray White about the failure to make early arrests after the 1998 Omagh bombing, despite British intelligence services knowing names quickly. Why would the same not apply to Loughinisland?
Interviewed for the documentary into the Co Down killings, No Stone Unturned, which gets a global release next week, one of Maguire’s investigators, former Det Chief Insp Phil Denison, explained his thoughts.
“All I will tell you,” says Denison, “is that . . . we have specifically identified one [police informer] within the suspect group that, for our investigations purposes, was relevant but there certainly could have been more than one within that.”
Det Con Jimmy Binns, who was part of the original investigation, explains that the suspect was tipped off by a police officer the night before he was arrested for questioning.
DC Binns sat in on the subsequent interview. Describing it as a charade, Binns claims a colleague told the suspect - identified as Person A in the report - that he would be held for two hours, but no more.
“You killed these people, you were the gunman,” he quotes his colleague. “No, I wasn’t,” the suspect replied. “All right, we’re not going to get anywhere here, you’re not going to admit it, that’s fine, let’s have a chat,” the officer replied
The interrogation then ceased and an invitation was then made to Person A. Could he not kill an IRA gunman who posed a threat to the detective, Binns told the documentary-makers?
“So this detective spent most of the time telling (Person A) that if he doesn’t kill this Catholic gunman soon this Catholic gunman is going to get him. So you’re telling the cat: ‘Kill the mouse before the mouse gets you, because I’m shit-scared of the mouse killing me.’”
Maguire argues that Loughinisland prosecutions did not happen because agents had to be protected. Risible nonsense says NIRPOA, arguing that a multitude of other - non-collusive - factors can innocently explain the mistakes made.
Besides, they say, Maguire’s report is wreathed in errors, something which they apparently intend to demonstrate in a so-far unseen rebuttal document. Faced with such a possibility, the Ombudsman’s investigators say privately: “Bring it on.”
The tide, though, in this long-running battle has been turned by Mr Justice McCloskey in NIRPOA’s favour - something which the organisation has striven for ever since the RUC was criticised by the first Police ombudsman Nuala O’Loan.
In her blistering 2001 report, she accused the then RUC assistant chief constable (Crime) and the then chief constable Ronnie Flanagan of “serious flaws” in “judgement and leadership” over the RUC’s Omagh investigation.
Then, as now White (and Flanagan) tried to quash O’Loan’s report, represented by QC, Bernard McCloskey, before he became a judge. Then as now, White argued that it was unfair and filled with factual errors and inaccuracies.
In his ruling before Christmas, Mr Justice McCloskey examined the report’s coverage of the actions of former RUC superintendent Thomas Hawthorne, who led the Downpatrick sub-division covering Loughinisland at the time.
Hawthorne agreed to the destruction of the gunmen’s getaway car. Maguire acknowledges that it had first been subjected to a “thorough” forensic examination, but argues that it should not have been destroyed.
By doing so, the “integrity of the exhibit was compromised” because it may still have contained an important exhibit, a piece of yellow twine which had been wrapped around the steering wheel to stop the faulty horn from continuously sounding.
Maguire accepts there was nothing “sinister” motivating Hawthorne’s decision. Nonetheless, says Mr Justice McCloskey, Maguire should have made it “abundantly clear” that his “unequivocal” verdict of collusion “did not apply to Mr Hawthorne”.
The judge accepted Maguire had excluded Hawthorne, but argued that the Ombudsman’s report had fallen short because it had been “careless, thoughtless and inattentive” in its “language and structuring”.
Maguire’s “unambiguous determination” that police officers were guilty of collusion amounted, said the judge, to an accusation that they had actually “participated in the murder of six innocent civilians”.
Nowhere is so specific an allegation made in the report. Rather, Maguire saw collusion from the “protection of informants through both wilful acts and the passive ‘turning a blind eye” and “catastrophic failures in the police investigation”.
Mr Justice McCloskey’s full judgement is to be published next Friday. However, the pre-Christmas summary implies that it is not for the Ombudsman to make “determinations”; rather it is for him to set out facts.
Instead, the judge believes that the Ombudsman should investigate cases and then send them to the public prosecutor to decide if there are grounds for a prosecution, or alternatively a court to adjudicate a verdict.
However, such a view of matters is questioned not just by the Ombudsman. “That would stand the whole idea of the Ombudsman’s office on its head,” said a perplexed NI Department of Justice official.
Section 62 of the Police (Northern Ireland) Act 1998 states that the Ombudsman “ may . . . publish a statement as to his actions, his decisions and his determinations and his reasons”. It says nothing about the evidential threshold needing to be the criminal standard.
Much is at stake next week. Maguire and his colleagues were stunned into near silence as they heard the judgment before Christmas but, within an hour or so, felt emboldened to fight back. If the NI Retired Police Officers’ Association wins, it will have succeeded in closing down an important official source of information about alleged collusion and its scale, small or large.
Loughinisland is not the only investigation. Due for publication in 2018 are ones into the UDA’s 1992 attack on the Sean Graham bookie shop on the Ormeau Rd when five died, along with the attack on The Rising Sun bar in Greysteel, Co Derry, on Halloween in 1993 when eight were lost. The question now is whether those documents will ever see the light of day.