Northern Ireland judge orders disclaimer to be added to Police Ombudsman collusion reports

Mr Justice Scoffield held that the reports should not be formally quashed or removed from publication, but said an additional statement was required to reflect earlier court findings that former Ombudsman Marie Anderson acted ultra vires by reaching conclusions amounting to determinations of misconduct.

He said: “I consider that a strengthened form of notice should be included with the published reports…giving some indication of the court’s core findings.”

The ruling brings a further stage in legal proceedings brought by the Northern Ireland Retired Police Officers Association over three public statements concerning Troubles-era cases.

The association has pursued a long-running challenge to have the reports declared unlawful.

One report examined a series of loyalist paramilitary murders in south Belfast between 1990 and 1998. In 2022 Anderson found evidence of “collusive behaviour” by police in the attacks, including the February 1992 Sean Graham betting shop massacre on the Ormeau Road in which five Catholic civilians were killed by UDA gunmen.

Separate challenges concerned a report into police handling of loyalist killings in the northwest between 1989 and 1993 and findings relating to the Derry Four, who had been wrongly accused of murdering British soldier Lt Stephen Kirby in Londonderry in 1979.

The ombudsman concluded that RUC officers had unfairly obtained confessions from the four men, who later left Northern Ireland and were acquitted in 1998. Retired officers argued Anderson had no legal authority to make findings which effectively attributed collusion in terrorist murders without due process.

Their case relied in part on a 2020 Court of Appeal ruling that limited the ombudsman’s ability to accuse former officers of the criminal offence of collusion with paramilitaries.

That judgment arose from proceedings brought by retired senior officers Raymond White and Ronald Hawthorne over former Ombudsman Dr Michael Maguire’s report into the 1994 Loughinisland killings.

Although Anderson maintained she had identified conduct amounting to “collusive behaviours”, rather than making findings of collusion itself, the association argued she had misunderstood the limits of her role and could not use the term absent proof of malign intent.

Counsel for the ombudsman rejected those claims and argued she had undertaken a forensic assessment that identified behaviour indicative of collusion without making determinative findings.

Last February, Mr Justice Scoffield ruled that the distinction drawn between “collusion” and “collusive behaviours” was either unsustainable or insufficiently clear. He found that Anderson had reached conclusions beyond the remit defined by the Court of Appeal and had extended the ombudsman’s statutory role.

Although an appeal is expected, both sides subsequently sought agreement on the appropriate final order. Delivering judgment on Monday, Mr Justice Scoffield said there was consensus that the reports should remain publicly available.

“This was a pragmatic view on the part of the applicants, taken, at least partly, on the basis that the statements had been publicly available for some time,” he said.

“It was not possible to put the genie back in the bottle.”

However, he confirmed that a further notice must now accompany the published reports. Making a partial award of costs to the applicants, the judge added: “I consider that the just and proportionate approach.”