Loughinisland - When is a judgment not a judgment?

Mr Justice McCloskey said he will not recuse himself but will stand aside
Mr Justice McCloskey said he will not recuse himself but will stand aside Mr Justice McCloskey said he will not recuse himself but will stand aside


MR JUSTICE Bernard McCloskey delivered more twists and turns at Court of Appeal Two yesterday than the scriptwriters of ITV drama Broadchurch.

High court judges are notorious fans of the `big reveal' (pop out of the courtroom for a cup of tea during a lengthy judgment at your own risk) - but His Honour's will go down in legal legend.

"You'd have been in trouble if you were live tweeting that judgment," one veteran hack observed.

Mr Justice McCloskey heard arguments last week from lawyers, representing Police Ombudsman Michael Maguire and relatives of those murdered in the Loughinisland atrocity, that he recuse himself from the case.

They had contended, because he acted as a lawyer for one of the retired police officers mounting the legal challenge in a previous similar case, there was a potential perception of unconscious bias.

To all intents and purposes, yesterday's hearing was for the judge to either formally recuse himself from the case, or reject the call and uphold his judgment, directing whether the controversial report would be quashed.

However, when Mr Justice McCloskey began to address `remedy' (what the Ombudsman would be legally required to do to following the judgment) and concluded "an order quashing the Police Ombudsman's second Loughinisland report would be unnecessary and disproportionate", with an "uncomplicated exercise of excision... leaving most of the report not merely intact but also coherent", he seemed to have all but ruled out taking himself off the case.

"I don't think he's going to recuse himself," whispered a relative in the public gallery.

An excoriation of the Ombudman's legal team followed, during which the judge pointed out on five different occasions, when the issue was "consciously - and no doubt carefully - considered, experienced legal representatives were unanimous in the view that recusal action was not appropriate".

He referred to "the (unmistakable) inpropriety involved" in an affidavit sworn by the Ombudsman's director of legal services "purporting to depose the Ombudsman's state of mine and knowledge".

Mr Justice McCloskey made reference to an "improper... inclusion of averments" (ie allegations) which he denounced as "inaccurate rank speculation".

"To summarise, I find the evidence and argument put forward on behalf of the Ombudsman... flimsy, artificial and entirely unpersuasive," he concluded.

But then, before the eyes of the watching press, victims and legal teams, the judge found a third way to resolve the case.

He would not be recusing himself - "the case for recusal is not satisfied... the application is refused accordingly", but he was withdrawing from the case, with "a fresh hearing before a differently constituted court" - one where he is not the judge.

His initial judgment ruling the Ombudsman's report unlawful stands, but will not be "binding on any party".

The unprecedented move places Mr Justice McCloskey's ruling in a special category all of its own.

By his own admission, it sits in a "hybrid status, somewhat akin to an advisory opinion, which features in legal systems other than ours".

The Police Ombudsman has until February 25 to indicate which parts of Mr Justice McCloskey's non-binding judgment he wishes to challenge before a new high court judge.

That judge will be able to take or leave the benefit of their predecessor's wisdom.

Technically, the damning finding stands in its entirety - and will do even if Dr Maguire chooses not to challenge Mr Justice McCloskey's judgment, which exists in law but has no power to alter the document it criticises.