High Court judge ‘stunned’ by step aside request in ombudsman theft case

A Belfast High Court judge has described as “extraordinary” a suggestion he should step aside from the early stages of a legal challenge to the validity of a search warrant over the suspected theft of confidential documents from the Police Ombudsman’s office.

Mr Justice McCloskey said he was “stunned” to receive a letter which suggested he recuse himself from the case because of his role as a barrister in separate litigation 17 years ago.

Award-winning reporters Trevor Birney and Barry McCaffrey were arrested in August over the alleged theft of confidential material from the offices of Police Ombudsman for Northern Ireland Michael Maguire.

Police Ombudsman Michael Maguire
Police Ombudsman Michael Maguire (Paul Faith/PA)

It is alleged the material appeared in their No Stone Unturned film on the 1994 loyalist paramilitary massacre of six Catholic men in the Co Down village of Loughinisland.

Searches were also carried out at three properties in Belfast by detectives from Durham Constabulary supported by officers from the Police Service of Northern Ireland.

The legality of that search warrant is being challenged.

A barrister acting for Fine Point Films and Mr Birney told the court on Wednesday that his instruction was that a formal recusal application be made, if the judge intended to sit.

Mr Justice McCloskey told him the letter contains the “sadly misconceived” suggestion that a judge of the High Court in Northern Ireland is “not sufficiently impartial” to manage a case.

The senior judge said he read the letter “several times to make sure I am not in the middle of some bad dream”.

“The court is in receipt of a totally unprecedented letter, written on behalf of a range of people, most of whom are not parties to these proceedings,” he said.

“The letter contains the extraordinary suggestion that a judge of the High Court of Northern Ireland is not sufficiently impartial or fair or independent to give case management directions in this case.

“That suggestion is sadly misconceived, it should never have been made, it is an affront to the rule of law. It portrays a total misunderstanding of the relevant tenets of the rule of law.

“The letter should never have been written.”

The case is due to be heard again in the new year.

Six men were killed when Ulster Volunteer Force gunmen opened fire inside the Heights Bar in Loughinisland in June 1994.

Patsy O’Hare, Barney Green, Adrian Rogan, Eamon Byrne, Daniel McCreanor and Malcom Jenkinson were killed in the Heights Bar
Patsy O’Hare, Barney Green, Adrian Rogan, Eamon Byrne, Daniel McCreanor and Malcom Jenkinson were killed in the Heights Bar (Loughinisland/PA)

The victims were football fans who had gathered to watch the Republic of Ireland play in the World Cup.

The 2017 documentary by Mr Birney and Mr McCaffrey broke new ground by publicly naming those it said were suspects.

No one has ever been convicted for the killings.

In a landmark report in 2016, Dr Maguire concluded the security forces colluded with the killers.

The PSNI, concerned about conflict of interest issues, asked Durham Constabulary to probe the alleged theft of the document after the film was released last year.

Durham’s Chief Constable Mike Barton and the ombudsman are at odds over whether a crime was reported to police.

The ombudsman’s office has denied making a “complaint of theft” to the PSNI.