Police must decide whether to publish Glenanne Gang report, Court of Appeal rules
Bereaved relatives are being denied their legitimate expectation that an independent police team will oversee a probe into a loyalist terror unit linked to more than 100 murders, the Court of Appeal ruled.
Lord Chief Justice Sir Declan Morgan held there was a "clear and unambiguous" representation that an overarching analysis of suspected state collusion around the Glenanne Gang's series of killings in the 1970s.
Although he found no enforceable duty under human rights law due to the passage of time, Sir Declan indicated the onus was now on police to consider whether to complete and publish a thematic report.
He said: "The Chief Constable's task is to appoint independent officers who should then determine how to respond to the expectation."
The verdict came in a bid by the PSNI to overturn a ruling that the force had unlawfully frustrated any chance of an effective investigation into the Glenanne Gang's deadly attacks.
In 2017 the High Court held that victims' families had been frustrated in their expectations that the now-defunct Historical Enquiries Team (HET) would produce a major report into the activities.
Proceedings were brought by Edward Barnard, whose 13-year-old brother Patrick was among four people killed in a St Patrick's Day bombing at the Hillcrest Bar in Dungannon in March, 1976.
Five years later Dungannon UVF member Garnet James Busby received a life sentence after admitting his role in the no-warning attack and other terrorist offences.
The murder gang based at a farm in Glenanne, Co Armagh, allegedly contained members of the Royal Ulster Constabulary and the Ulster Defence Regiment.
Up to 120 murders in nearly 90 incidents in Mid Ulster and Irish border areas are under scrutiny.
They include outrages such as the 1975 Miami Showband Massacre, where three members of the popular group were taken from their tour bus and shot dead on a country road in Banbridge, County Down, and the Step Inn pub bombing in Keady a year later, which claimed the lives of two Catholics.
It has also been linked to the murder of 33 people, including a pregnant woman, in the 1974 Dublin and Monaghan bombings.
A draft HET report into alleged security force collaboration with the killers was said to have been 80% finalised before being shelved.
Challenging the High Court ruling, counsel for former Chief Constable Sir George Hamilton insisted the Hillcrest investigation met the "gold standard" of human rights obligations by securing a conviction.
He also argued that an HET review into the bombing identified no collusion with the killers.
But Mr Barnard's lawyers told the Court of Appeal a number of promises meant there was a compelling case for producing an overarching report.
They claimed off-duty police officers and soldiers were connected by weapons to the "extraordinary pattern" of loyalist killings.
Members of the security forces were involved in a "state practice" of murder, according to their case.
Delivering judgment in the appeal, Sir Declan upheld the finding that police representations amounted to a procedural legitimate expectation.
"We do not consider that the appellant has shown that it was fair to disappoint the expectation and accordingly we agree that the learned trial judge was entitled to conclude that the respondent was entitled to rely upon it," he said.
But because the Hillcrest Bar killings occurred 24 years before the Human Rights Act came unto force, the court said there is no Article 2 duty to complete such an investigation.
Deciding not to make an order compelling police to act, Sir Declan instead declared that Mr Barnard's legitimate expectation that independent officers would analysis the HET database for any wider collusion between terrorists and security forces in the Glenanne series of killings had been breached.
He cautioned: "If, however, the Chief Constable unduly delays in appointing independent officers he would be at risk of further proceedings challenging such a failure."
Belfast Telegraph Digital