Former RUC officers have secured High Court permission to challenge the Police Ombudsman’s legal right to make findings of collusive behaviour by the force in a series of loyalist murders.
A judge granted leave for the Northern Ireland Retired Police Officers Association to seek a judicial review in a case centred on three separate reports by Marie Anderson into Troubles-era killings.
Mr Justice Scoffield identified an arguable case that she “overstepped the mark” in some of her findings.
The association is seeking to have public statements issued by the watchdog body declared unlawful.
One of the cases focuses on a probe into a series of loyalist paramilitary murders in the south Belfast area between 1990 and 1998.
Earlier this year, Mrs Anderson found evidence of “collusive behaviour” by police in the attacks, which included the February 1992 massacre at the Sean Graham betting shop on the Ormeau Road where UDA gunmen shot dead five Catholic victims.
Legal action is also being taken over the report into the police handling of loyalist killings in the northwest region from 1989 to 1993.
A third challenge relates to findings in the case of four men wrongly accused of murdering a British soldier in Derry.
Known as the Derry Four, in June this year the Ombudsman concluded that RUC officers had unfairly obtained confessions from them for the killing of Lt Stephen Kirby in the city in 1979. The four men later fled Northern Ireland until their acquittal in 1998.
The retired RUC officers claim Mrs Anderson was legally forbidden from making findings which effectively branded them guilty of colluding in brutal terrorist murders without proper due process.
A Court of Appeal judgment in 2020 restricted her scope to accuse former policemen and women of the criminal offence of collusion with paramilitaries.
Those proceedings related to a previous case taken by retired senior policemen Raymond White and Ronald Hawthorne over the contents of former Ombudsman Dr Michael Maguire’s report into the 1994 Loughinisland atrocity.
Acknowledging her limitations, Mrs Anderson said she had identified conduct within the RUC amounting to "collusive behaviours".
But counsel for the association claimed she misunderstood her permitted role and cannot use that term without establishing a malign motive.
The Ombudsman had wrongly labelled all police working in those areas at the relevant times as complicit with the terrorists responsible for brutal campaigns of murder, it was contended.
A barrister representing the Ombudsman hit back by suggesting the retired officers were becoming “collusion deniers”.
He told the court that she had carried out a forensic analysis to reach legally-sound findings, identifying behaviour indicative of collusion without being determinative.
Ruling on the initial stage of the case today, Mr Justice Scoffield acknowledged that the precise nature of the Ombudsman’s role in legacy investigations and the extent of her powers in issuing “remains a running sore” between her office and former officers.
The judge said there was merit in some objections raised by the watchdog as he “weeded out” some areas of challenge.
But he confirmed: “However, my ultimate conclusion is that each case raises some ground or grounds which can appropriately and should be considered in substance by the court.”
Referring to the reports into the killings in south Belfast and the northwest, he said: “I am satisfied that it is arguable that the Ombudsman’s statements in both the first and second cases have ‘overstepped the mark’ in a similar manner as occurred in the Hawthorne and White case.”
A full hearing in the legal challenges will be listed at a later stage.
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