There were dramatic scenes in Belfast High Court yesterday as Barra McGrory QC made a surprise appearance representing the Police Ombudsman, in what is his first private practice case since he stood down as Director of Public Prosecutions last month.
Justice Bernard McCloskey had been expected to quash a report by Dr Michael Maguire's office relating to the RUC investigation into the Loughinisland massacre.
The report released by the watchdog last June found that some officers had colluded with the UVF gunmen responsible for the 1994 attack at the Heights Bar in Co Down.
The NI Retired Police Officers Association had challenged the report and in December Mr Justice McCloskey delivered a damning assessment of the ombudsman investigation saying he had gone beyond his statutory powers in reaching conclusions which were "unsustainable in law".
Former Assistant Chief Constable Raymond White and retired officer Thomas Hawthorne had taken the judicial review into the ombudsman's findings.
Justice McCloskey found the officers had been subjected to "destructive and withering condemnations" without the protection of due process and there were calls for the watchdog to resign.
The Ombudsman had been represented by Mr Tony McGleenan QC throughout the hearing but in a dramatic last hour change of legal team, Mr McGrory QC appeared in his place yesterday.
It is understood that Mr McGrory's practising certificate had to be approved by the Bar Council on the eve of the case in order for him to appear for Dr Maguire's office.
The small Judicial Review court in an upstairs room of the grand Royal Courts of Justice was packed with relatives of the victims and there was a large media and legal presence, with standing room only.
However, after a short delay in proceedings it became clear that issues had been raised making delivery of the final ruling impossible.
There were tetchy scenes as the former head of the prosecution service was reprimanded by Mr Justice McCloskey for conferring with his junior council during the hearing, which the judge told him was "distracting".
The case was adjourned for a week to allow further submissions about what was described in court as a "significant issue".
While there was little in the way of details forthcoming about the major development, earlier this week the Irish News reported that Mr Justice McCloskey had previously represented the Police Officers Association in a similar case in 2003 which sought to quash a report by former ombudsman Nuala O'Loan into findings of RUC collusion in the Omagh bombing.
While that challenge was unsuccessful one of the complainants named in the case was Raymond White.
The Irish News understands that lawyers for both the ombudsman and the victim's families have raised questions in relation to this, pointing to guidelines which recommend judges recuse themselves where there may be a perceived conflict of interest.
When asked about the issue earlier this week, Lord Chief Justice Sir Declan Morgan's office told the Irish News: "Judges who are aware of any such conflict or who are asked to recuse themselves will make an assessment based on the circumstances of the individual case.
"There was no such awareness or request in the present case."
With the case adjourned until next Friday it now seems that an appeal by the ombudsman- regardless of Justice McCloskey's final ruling - is inevitable.
