By James Simons And Edward Trotter-
A judge has been asked to withdraw from a watchdog probe into alleged police collusion, after being accused of bias.
Mr Justice McCloskey faced the family members of six catholic men shot dead in 1994 , as their applications for his withdrawal from the emotive case was presented by lawyers.
McCloskey was critical against Northern Ireland’s Police Ombudsman Dr Michael Maguire last month. He ruled that he had exceeded his statutory powers by declaring officers guilty of colluding in the Ulster Volunteer Force shootings in Loughinisland, Co Down in 1994.
The Ombudsman and relatives of the six Catholic men shot dead have jointly applied for the judge to recuse himself because, of a perceived conflict of interest. As a barrister, he once represented one of the two retired police officers who mounted the judicial review challenge against Dr Maguire’s findings.
The judge claims to have no memory of representing the officer in the 2002 case related to a separate Police Ombudsman’s probe into the 1998 Omagh bomb. He said he would take time to consider the application and announce his decision next week.
Dr Maguire stated in a landmark 2016 report that Royal Ulster Constabulary (RUC) officers colluded in the UVF gun attack in the village of Loughinisland.
Two loyalist gunmen burst into the Heights Bar and opened fire on locals watching the Republic of Ireland play Italy in USA ’94.
After two retired officers took judicial review proceedings against the Ombudsman’s findings and judge McCloskey found in their favour in December.
Judge McClosely is expected to complete his judgement today with respect of whether the Ombudsman’s report should be formally quashed. The joint application for recusal has been submitted ahead of him issuing that decision, which had been expected on Friday
Fiona Doherty QC, representing the families, said the application was being made with regret and only after careful consideration.
Whilst clarifying that the professional integrity of the judge was not being questioned, she said his role in the historic case could lead to public unease about him presiding in the current proceedings.
“At the very least there is a doubt, “ she said. “Where there is a doubt it should be resolved in favour of recusal.”
Mr McGrory, Northern Ireland’s former Director of Public Prosecutions, said a reasoned independent observer might find it “difficult to accept” the judge’s assertion that he did not recall his involvement in a case related to such a high-profile atrocity as Omagh.
“The apprehension of bias, either direct or subconsciously, is all that needs to be established,” he said.
OATH
The judge made reference to his solemn oath to be rigorously impartial, as he suggested that there wasn’t the “slightest whiff of unconscious bias” in his judgement
The judge also drew the court’s attention to a judgement he had delivered in 2010 where he was highly critical about the conduct of police officers.
David McMillen QC, representing the retired officers, said the application was “absolutely without foundation”.
He said the judiciary had a proud record of independence in Northern Ireland, demonstrated during the violent years of the Troubles.
“A fair-minded observer wouldn’t even think for one moment there’s a real possibility of bias in this,” he said.
When oral submissions were finalised, Justice McCloskey told the court he was faced with a “complex and challenging” decision.
“The effect is that it’s not possible for the court to indicate its decision now,” he said. “I regret that greatly because the families are going to be delayed once again.”
The judge said he would rule on the matter on January 26. He indicated that, if he decided to retain the case, he would then deliver his judgement on the fate of the Ombudsman’s report.
The men who died at Loughinsland were Adrian Rogan, 34, Malcolm Jenkinson, 53, Barney Green, 87, Daniel McCreanor, 59, Patrick O’Hare, 35, and Eamon Byrne, 39. Five others were wounded.