Police Ombudsman will appeal High Court ‘collusion’ ruling
The High Court has determined that the Police Ombudsman for Northern Ireland “exceeded her powers” by implying misconduct on the part of former RUC officers involved in investigating paramilitary murders during the Troubles.
Gavin Robinson, Democratic Unionist Party (DUP) leader, said it was “a monumental slap down for the Ombudsman and another significant milestone for the retired police officers who have long battled the ‘collusive behaviours’ terminology”.
The ruling by Justice Scoffield came after the Northern Ireland Retired Police Officers Association challenged the Ombudsman’s legal right to make collusion findings over past police conduct. The judge emphasised that the Ombudsman’s role is to investigate rather than adjudicate.
The case related to several investigations, including murders in south Belfast between 1990 and 1998, and killings in the northwest region from 1989 to 1993.
The Police Federation for Northern Ireland (PFNI) said the court has made it clear that the Ombudsman “exceeded her remit”.
Police Ombudsman Marie Anderson has confirmed that she will appeal the judgment and seek “clarity as to the scope of her powers”.
However, Mr Robinson said: “Let us not forget that we have been here before. Indeed this is the second time the courts have delivered such a judgment in relation to PONI’s approach to legacy cases,” said Mr Robinson.
“We have consistently said it is wrong for the Ombudsman to make sweeping claims of ‘collusive behaviour’ despite no such offence being defined in law, despite not a single prosecution or misconduct file being brought forward and despite seemingly no evidence of an improper motive on the part of officers.
“DUP MLAs have previously brought concerns regarding the efficacy and fairness of the Police Ombudsman’s Office, and its overreach in terms of legacy, to the floor of the Assembly.
“To date the Justice Minister has appeared reticent to recognise that there is a problem. This ruling demonstrates the need for that approach to change and change quickly.
“This judgment will have wider ramifications for how police officers have been maligned and we will take time to consider.”
The PFNI said the judgment made clear that it was not for the Ombudsman to make determinations as to whether criminal conduct or even misconduct had occurred.
PFNI chair Liam Kelly said: “The court has been clear that the Ombudsman exceeded her remit.
“The PFNI supported this legal action and is delighted by the findings of the court.
“The outcome confirms that the Police Ombudsman must stay within the tramlines of the legislation that established her office. It is worth pointing out that the Ombudsman exceeded her powers in the conclusions section of not one but three separate reports.”
TUV (Traditional Unionist Voice) leader Jim Allister said: “For too long the Ombudsman has exceeded the remit of the office to make expansive findings of ‘collusion’ etc which are presented as misconduct, or worse.
“However, in this judgment we have had an overdue clipping of the Ombudsman’s wings. The language of the judgment is emphatic and clear, ‘the Ombudsman’s role is investigative and not adjudicative. It is not for the Ombudsman to made determinations (whether express or implied) as to whether criminal conduct or even misconduct has in fact occurred; no more than it is for the police to determine and publicly state that a suspect is guilty of a crime. That is a matter to be determined by others in different processes specifically established for that purpose’.
“Too often the Ombudsman has played to the anti-police gallery by throwing around findings of ‘collusion’, etc, – all of which oversteps the investigative role of the office by bolting on adjudicative and prejudicial findings.
“I trust the Ombudsman will take heed of this judgment and not again have to be called into line for overstepping the prescribed functions of the office.”
The Police Ombudsman has confirmed that she will appeal the judgment by Justice Scoffield in relation to the Operation Achille and Greenwich reports, which she believes is a departure from the Court of Appeal’s clear ruling in 2020 (Hawthorne and White).
“In that decision the Court of Appeal held expressly that it would be appropriate for the Police Ombudsman ‘to acknowledge that the matters uncovered by [her] were very largely what the families claimed constituted collusive behaviour’, and the Ombudsman has, therefore, followed that ruling in subsequent reports,” said Ms Anderson.
“The Ombudsman seeks clarity as to the scope of her powers given that the judgment has significant implications for the work of the Office in relation to extant legacy cases, non-Troubles related historical investigations and complaints about current police officer conduct.
“The Office also notes that Justice Scoffield makes clear that nothing in his judgment undermines or cast doubts on the professionalism, dedication or bona fides of the work of the Ombudsman’s Office.
“Further consideration is being given to an appeal in respect of Operation Farrier.”