Retired RUC officers went to court over the Police Ombudsman's report into Loughinisland not to excuse murder, but to get same rights as every other citizen
'Collusion' is an inexact, irresponsible term concocted by the Provisional IRA to distract from their campaign of mass murder, argues William Matchett
In Wonderland, "When I use a word, it means just what I choose it to mean," said Humpty Dumpty to Alice in a scornful tone. Amazed, she said: "The question is, whether you can make words mean so many different things?" He replied: "The question is, which is to be master. That's all."
In Northern Ireland, Humpty Dumpty is the Police Ombudsman, Dr Michael Maguire, and his interlocutor is BBC Northern Ireland's home affairs correspondent, Vincent Kearney.
Mr Justice McCloskey, in a judicial review last month, was scathing of the Police Ombudsman for using the word "collusion" to infer serious criminality in a report on the UVF murders in Loughinisland in 1994.
By "serious criminality", Mr Justice McCloskey meant "varying degrees of participation by police officers with terrorists in the murder of six innocent civilians and the infliction of injury on five others". Of this, he concluded: "It is difficult to conceive of a more withering and damning condemnation of police officers."
"Collusion" is irresponsible language that reinforces prejudices, a fusion of lies and bitterness concocted by the Provisional IRA to distract from their campaign of mass murder.
Even with a "collusion-buster" ruling ringing in his ears, the Police Ombudsman still insisted to Vincent Kearney that he could make a word mean whatever he wanted it to mean. He was as absolute on this as he was with having "no hesitation in unambiguously" determining "collusion" in the Loughinisland report.
A confusing word was wielded to define criminality in preference to clear definitions of crime fixed in law.
It is wrong to accuse people in unclear terms not known to them. It is wrong to accuse people of criminality with no supporting evidence to prosecute. And it is wrong to deny people a hearing to defend themselves.
This is not "due process". This is why retired officers took the judicial review.
I have been a criminal justice expert on projects for the European Union in emerging democracies where this is the kind of thing we were replacing, not implementing. The hardest thing in an investigation is to get evidence. And I mean a fingerprint, or eyewitness testimony of a crime - not opinion, belief, or suspicion.
Facts beyond reasonable doubt prove guilt, nothing less. As with internment, "collusion" falls below this legal benchmark.
It is why, despite enough reports to stock a small library, no officer has been prosecuted by any historical investigation.
Mr Justice McCloskey noted this in Loughinisland, as well as no officer having been "accused of the commission of a disciplinary offence and prosecuted in that forum".
The aim of a Police Ombudsman's investigation is to establish if officers committed a crime or gross misconduct of duty and report them for prosecution, where appropriate. If it draws a blank on both fronts, it cannot comment on criminality.
The Police Ombudsman's approach is a denial of basic human and legal rights, not that this triggered the attention of any human rights watchdog.
The judgment called the Police Ombudsman's approach "procedural unfairness" that left the officers "utterly defenceless" and that he had, in effect, acted "as judge and jury" in reaching his verdict. Indeed, Mr Justice McCloskey pointed out that the Police Ombudsman's language "could be said to be expressed more forcefully than such a verdict".
RUC chief constables had sued newspapers for headlines a lot less defamatory than those of Loughinisland. In the Belfast Agreement, not only did Sinn Fein and the SDLP convince Tony Blair to get rid of the RUC, they also got him to create a Police Ombudsman to investigate it.
The political imperative was to get nationalist leaders to support the police - something they did not do in the Troubles. With the RUC gone, so was the natural counterweight to the Police Ombudsman.
The PSNI replaced the RUC and the new criminal justice arrangement worked against a chief constable exposing Wonderland. It is still a poor show, however, when it took two old cops, supported by colleagues and friends of the Retired Police Officers Association, to confront the Police Ombudsman. Mr Justice McCloskey said as much.
The more a chief constable accepted "collusion", the more likely a Police Ombudsman was to keep using it. And such is the stigma, that accused officers kept their head down. That is, until Ray White and Ronnie Hawthorne.
Two highly decorated officers, who served the people with distinction in the worst of times, had simply had enough. They took on the "collusion" Goliath.
The Police Ombudsman is under pressure from a powerful "collusion" lobby motivated by political and economic interests. When its expectations are not met (as happened in the first Loughinisland report that did not find "collusion"), it "provoked anger among the families of the dead and wounded" and Sinn Fein called for the then-Police Ombudsman, Al Hutchinson, to resign, according to An Phoblacht.
Adding to Al Hutchinson's woes, a Criminal Justice Inspection Northern Ireland (CJINI) report in 2011 labelled his office "dysfunctional". Dr Michael Maguire, who was in CJINI at the time, was a co-author. When he presented the report to an Assembly committee, his opening included "collusion". There was no concern of the word being meaningless in law.
For a body scrutinising criminal justice, and given the concern of the DPP, PSNI and retired officers, it is an astounding omission.
A main point was that Al Hutchinson, a former senior officer in the Royal Canadian Mounted Police, had held back from criticising the RUC and its Special Branch.
In replacing Al Hutchinson as Police Ombudsman, Dr Maguire reversed the findings of Loughinisland in a second report. Each examined the same facts and reached opposite conclusions. People that had criticised Hutchinson praised Maguire.
Dr Maguire is in the Loughinisland film No Stone Unturned.
It was made for an international audience and is damning of the RUC. He indicts the officers, despite knowing they were challenging his findings in court. The film was released a month before the judicial review.
Total failure on the prosecution front forced the Police Ombudsman's office into an area beyond its competency threshold - counterinsurgency. Imaginary operational practices were overlaid on those actually employed by the police to show what should have been done, in order to find fault with what was done.
Also, "hindsight bias" - which the 9/11 Commission into terrorist attacks in the US cautioned itself against - was ignored. Such bias is a big obstacle to impartial and accurate post-mortem analysis of other people's decisions and performance.
Honest mistakes, limitations and intelligence practices became "collusion" and police officers became criminals in a world where everything was preventable.
The glaring flaw in the Office of Police Ombudsman is that it is, essentially, unaccountable; the last resort for retired officers was to go to court.
The judicial review was taken, not in denial that there have been some corrupt police officers in the past, or that investigative procedures could, on occasion, have been better. It certainly was not to excuse the atrocious acts of evil loyalist murderers.
Rather, it was about equality - retired officers getting the same rights as every other citizen.
The retired officers did not want to upset the innocent victims of terrorism. But in a "peace process" dancing to a Provo tune, this is often impossible.
If flaws in processes equated to "dysfunctional" in the Police Ombudsman's office, what do processes "unsustainable in law" equate to?
Humpty has had a bad fall. How bad, we will soon see. Mr Justice McCloskey's final judgment will be delivered later this month.
William Matchett is the author of Secret Victory: The Intelligence War that Beat the IRA. He is Adjunct Fellow at the Edward M Kennedy Institute for Conflict Prevention at Maynooth University