“Significant health warnings” may need to attach to an ombudsman’s finding of “collusive behaviours” by the RUC in a series of murders by loyalists, a High Court judge in Belfast has said.
Following his previous ruling that Northern Ireland Police Ombudsman Marie Anderson exceeded her legal powers in her report, Mr Justice David Scoffield suggested on Wednesday that an agreed form of words could be inserted into relevant public statements.
Last month he ruled she had acted beyond her jurisdiction by outlining conclusions in public statements that amounted to determinations of misconduct.
The watchdog body’s role is to investigate rather than adjudicate, the judge said.
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His ruling followed a legal challenge by the Northern Ireland Retired Police Officers Association to the contents of three reports on Troubles-era killings.
The ombudsman is set to mount an appeal against the High Court’s decision.
However, lawyers on both sides returned to court on Tuesday as part of efforts to agree on actions needed to reflect the ruling.
Counsel for the association proposed that a copy of the judgment and explanatory notes could be included at the introduction of the ombudsman’s reports.
Mr Justice Scoffield said the documents had been “out and published for some time” so it was “impossible to put the genie back in the bottle completely”.
He provisionally indicated that further steps beyond his stand-alone determination may be necessary, but he adjourned the matter for two weeks.
“For the moment, pending appeal, the statements have to come with a significant health warning,” the judge said.
The association has been locked in a long-running legal attempt to have the three public statements declared unlawful.
One of the cases focuses on an inquiry into a series of murders by loyalist paramilitaries in south Belfast between 1990 and 1998.
In 2022, Ms Anderson found evidence of “collusive behaviour” by police in the attacks, which included the February 1992 massacre at the Sean Graham betting shop on Ormeau Road when UDA gunmen shot dead five Catholics.
Legal action was also taken over a report on the police handling of killings by loyalists in the northwest region from 1989 to 1993.
A third challenge related to findings in the case of four men wrongly accused of murdering a British soldier in Derry.
The ombudsman said that RUC officers unfairly obtained confessions 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 said Ms Anderson was legally forbidden from making findings in effect branding them guilty of colluding in 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 a report by former ombudsman Michael Maguire into the 1994 Loughinisland atrocity.
Acknowledging her limitations, Ms Anderson said she identified conduct within the RUC amounting to “collusive behaviours”.
But the association argued she misunderstood her permitted role and could not use that term without establishing a malign motive.
Counsel for the ombudsman told the court she made legally sound findings, identifying behaviour indicative of collusion without being determinative.
In his ruling, Mr Justice Scoffield acknowledged each of the reports was the product of detailed investigation and significant hard work by the Ombudsman and her team of officers.
However, he held that a distinction drawn by the ombudsman between “collusion” and “collusive behaviours” was either unsustainable or insufficiently clear.
She reached conclusions beyond her proper remit as set out by the Court of Appeal, the judge said.
