Judge 'stunned' after being asked to withdraw from Loughinisland film case over impartiality concerns
A request for a High Court judge to have no involvement in a challenge to the validity of a search warrant over the suspected theft of confidential documents from the Police Ombudsman's Office represents "an affront to the rule of law", he said today.
Mr Justice McCloskey described the contents of a letter which effectively asked him to withdraw from hearing the case as "totally unprecedented".
The request was made by the company behind a documentary into the loyalist murders of six men in the 1994 Loughinisland massacre, with the backing of victims' relatives.
In August two award-winning journalists involved in the film 'No Stone Unturned', Trevor Birney and Barry McCaffrey, were arrested, questioned and released as part of the probe into the suspected theft.
Detectives from Durham Constabulary, supported by officers from the PSNI, also searched three properties in Belfast - two residential and the third a business premises.
Lawyers representing the documentary maker, Fine Point Films, and the journalists, are now challenging the legality of the search warrant.
They claim it did not cover all of the material seized.
Police have given an undertaking not to examine any of the documents and computer equipment pending the outcome of the legal action.
At a review hearing today counsel for Fine Point Films stressed the request was being made respectfully to avoid a formal bid to have Mr Justice McCloskey recuse himself.
A similar move was made in an earlier challenge to the Ombudsman's report into the Loughinisland killings - because of the judge's role as a barrister in separate litigation 17 years ago.
Despite rejecting claims in that case that he could be seen as unintentionally biased, he consented to a limited re-hearing in front of a judicial colleague.
But Mr Justice McCloskey said he was "absolutely stunned" by the letter submitted in the current proceedings.
"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."
According to the judge, the contents were "sadly misconceived".
"It is, on its own, an affront to the rule of law," he continued.
"It portrays a total misunderstanding of the relevant tenets of the rule of law. The letter should never have been written."
Mr Birney, 51, and Mr McCaffrey, 48, were both present in court for the review hearing.
The court was told up to 40 grounds of challenge have been advanced in the bid to have the search warrants judicially reviewed.
Claims of incompatibility with human rights law and the Official Secrets Act feature in the case.
Adjourning proceedings to early next year, the judge imposed a deadline for police to confirm if they intend to oppose the action moving to a full hearing.
Belfast Telegraph Digital