Incompetent policing is not same as conspiracy
The RUC investigation of the 1994 Loughinisland massacre was deeply flawed, the Police Ombudsman will say. But it's too easy to trot out the catch-all 'collusion', argues Alan Murray
By any objective criteria, the RUC investigation into the Loughinisland massacre was a woeful piece of police work, according to Al Hutchinson's report.
The Police Ombudsman's critique of the CID investigation into the 1994 atrocity perpetrated by the Ulster Volunteer Force highlights huge failings and inconsistencies which do beggar the question: was there collusion?
In his assessment, the former Canadian policeman cautions that "inadvertence, incompetence or even negligence or recklessness is not sufficient" to conclude that individual police officers, or a police service, conspired to effect a massacre, or to shield those who did.
His stated definition of collusion is much narrower than that applied by Judge Peter Cory, who reasoned that, where the security services were concerned, they could be considered to have acted collusively "by turning a blind eye to the wrongful acts of their servants or agents".
Most reasonable people would agree with that definition and would expect that, where an agent and his gang of paramilitaries were engaged in the type of brutal murders that the UVF's Mount Vernon crew committed, the agent or agents orchestrating the violence would be sidelined and arrested by their handlers.
But how do you eradicate a 'rogue' agent whose deeds are suspected on the basis of information from other agents involved in the same acts?
And if the agent's police handler is unsure of the 'rogue' agent's guilt, does he jettison him from the payroll and lose, in some cases perhaps, invaluable information that no other source can provide?
Generally, MI5 did not get involved in the 'dirty war', because its remit was to recruit agents who would give insight and analysis, rather than operational intelligence - that task left to RUC Special Branch and the army's Force Research Unit (FRU).
Mark Haddock and Freddie Scappaticci worked respectively for SB and the FRU and undoubtedly were involved in either the commissioning of murders or the interrogations of - in Scappaticci's case - other members of the terrorist organisation he served.
Did Scappaticci enjoy directing or witnessing brutal attacks on alleged IRA informers? And did he and Haddock advise their handlers of every terrorist act they had a hand in? While not knowing the definitive answer to that, it is almost certainly: no they didn't.
Loughinisland raises suspicion that acts of omission occurred during the RUC's CID investigation, but were there "wrongful acts" (in Judge Cory's phrase) by their servants or agents? One could argue that, in the Loughinisland case, a major measure of individual and management incompetence afflicted the original investigation.
Inexplicable failures on the part of the police litter the Ombudsman's report and it isn't the first to highlight investigative shortcomings during that era.
Gathering evidence two decades ago was much less comprehensive and much less sophisticated than it is today, yet we still learn of procedural investigative failures in relation to evidence-gathering and preservation.
As in all police forces, brilliant detectives, resourceful or crafty detectives or simply diligent detectives emerge to earn the plaudits of their colleagues.
Former Chief Superintendent Derek Martindale was one such figure in the 1990s, a reason why the IRA attempted to murder him.
The senior investigating officer who conducted the Loughinisland investigation declined to meet and co-operate with Al Hutchinson's probe.
Many of the inconsistencies identified by the Police Ombudsman relate to the acquiring of samples of hair, DNA and fingerprints from suspects. The Loughinisland SIO, however, could not have personally controlled, or eliminated, such failures which may have seriously hobbled his overall evidence-gathering task.
Operation of the Home Office's enquiry computer system was "poorly managed", Hutchinson concluded, leading to investigative opportunities being missed.
Other observations by the Police Ombudsman lead to the conclusion that the Loughinisland CID investigation was poorly managed and controlled.
But does this constitute collusion? Or were failings engineered by collusive acts behind the scenes to protect informants?
Over the years, the collusion line has been trotted out to describe inexplicable failures and alleged glaring oversights in other murders, such as in the cases of Pat Finucane and Rosemary Nelson. The 'collusion by omission' dimension was arguably determined in Nelson, but few similar determinations have been confirmed over the years.
Undoubtedly, some members of the security forces did supply security montages to members of loyalist paramilitary organisations - the Loughlin Maginn case confirmed this.
But, given the frequency of such supposed 'collusion', loyalists hardly caused the IRA to bat an eyelid at the thought that classified information might be exploited to eliminate their senior figures. Didn't Gerry Adams himself survive one such attack?
In fact, of the 347 active republicans killed during the Troubles, just 25 (7.2%) died at the hands of loyalist paramilitaries who may or may not have had classified files - hardly evidence of major collusion between the state and their alleged 'agents'.
Nearly 40% of republican paramilitaries who were killed died at the hands of fellow republican paramilitaries, proving that in the terrorist world, usually the devil you know is worse than the devil you don't know.
Loughinisland was a monstrous attack on innocent people - similar to attacks on pubs carried out by loyalists, but also those perpetrated by the IRA and the INLA without security force assistance.
Questions about Loughinisland - particularly about agent involvement or knowledge of the attack - are unanswered because Al Hutchinson is not empowered to probe such matters, he says.
His predecessor, Baroness O'Loan, appeared to go some way to investigate this in her examination of the Raymond McCord Jr murder, where she exposed a level of security force penetration of the UVF which led to turmoil within the organisation.
Many will ask where Al Hutchinson found a barrier that stopped him from treading the same path as his predecessor.