Loughinisland judge previously represented police officer in ombudsman challenge
A landmark judgment in a case taken against the Police Ombudsman by retired officers is expected to be appealed as it emerged the judge previously represented one of the officers in a similar case.
Mr Justice Bernard McCloskey held last month that the ombudsman went beyond his statutory powers in reaching conclusions on the Loughinisland atrocity which are unsustainable in law.
In June last year Dr Michael Maguire said there had been collusion between some officers and the UVF gunmen who opened fire in a Co Down pub in June 1994.
Adrian Rogan (34), Malcolm Jenkinson (53), Barney Green (87), Daniel McCreanor (59), Patrick O'Hare (35), and 39-year-old Eamon Byrne were killed.
Retired policemen Raymond White and Thomas Hawthorne challenged the ombudsman's report and Mr Justice McCloskey ruled that none of the officers subjected to "destructive and withering condemnations" of collusion had the protection of due process.
Mr White is a former RUC assistant chief constable and senior Special Branch officer.
Tomorrow Mr Justice McCloskey is expected to say whether the report should be quashed.
The case sparked calls for the resignation of Ombudsman Dr Michael Maguire and has ramifications for future investigations in legacy cases.
DUP MP Ian Paisley also called for an inquiry into all previous reports alleging collusion.
The ombudsman has indicated that it intends to appeal the Loughinisland ruling.
The Irish News understands that among potential grounds are questions over whether the judge should have recused himself from the High Court case, having formerly represented one of the officers in a challenge against the ombudsman's office.
In 2001 former ombudsman Nuala O'Loan ruled there had been failings by the RUC during the investigation into the Omagh bombing.
Her report was unsuccessfully challenged by former chief constable Ronnie Flanagan and Raymond White, with Bernard McCloskey QC representing the policemen.
He was appointed a High Court judge in 2008.
Guidelines issued to judges by the Lord Chief Justice state: "Past professional association with a party as a client need not in itself be a reason for disqualification, but the judge must assess whether the particular circumstances, and in particular any prior knowledge relevant to the case, could create an appearance of bias."
A declaration in such circumstances is at the discretion of the judge.
When asked if Mr Justice McCloskey had declared previously representing Mr White as a possible perceived conflict of interest, a spokesperson for Sir Declan Morgan's office said: "The Statement of Ethics for the Judiciary in Northern Ireland provides guidance to judges on when it may be appropriate for them to recuse themselves.
"This will generally be when there is an actual, potential or perceived conflict of interest or where there is the potential for an appearance of bias to be created.
"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."