Probe terminology brings real prospect of Loughinisland charges

Posted By: June 16, 2016

Newton Emerson. Irish News (Belfast). Thursday, June 16, 2016

The Loughinisland report is being debated, predictably, in terms of the definition of collusion.

Police Ombudsman Michael Maguire bypassed that debate when he referred to “corrupt relationships” between loyalists and some RUC officers.

Solicitors for the Loughinisland families have picked up on this but few others seem to have noticed. There is so much interest in constructing competing narratives of the past that justice for individual victims tends to be forgotten. Justice is also rarely served by campaigning for inquiries or reinvestigations of Troubles crimes, as they happened too long ago for a practical prosecution today. When such campaigns end up saying ‘we just want the truth’, as they invariably do, what they are actually saying is ‘we’ve given up holding anyone to account, so please just endorse our narrative’.

The concept of corruption cuts through all this to offer a very real prospect of putting someone in the dock. The difference is that instead of pursuing suspects for a murder, you would be pursuing police officers for not properly investigating a murder – something that is far more straightforward to prove.

Corruption, correctly called misconduct in public office, is the criminal offence of wilfully acting or neglecting to perform a public duty to a degree that abuses public trust, without reasonable excuse or justification.

It is a common-law offence, which means there is no specific law against it. Instead, there are centuries of legal precedent (800 years in this instance, ironically) establishing who is an office holder, what proves ‘wilfulness’ and so on. The maximum penalty is life imprisonment.

Misconduct in public office is so broadly defined that it is considered problematic by the courts. Prosecutors are advised not to use it if an alternative charge is available. Perverting the course of justice might be a relevant example.

However, police officers failing to properly investigate a murder are so unambiguously covered by precedent, as incidentally are army officers and government ministers, that there should be no problem bringing a case. In fact, police officers are considered such an important object of misconduct charges that last year the UK government created a statutory offence in England and Wales of corrupt or improper exercise of police powers and privileges.

Stormont’s Department of Justice has consulted on a similar offence here. If the intention was to protect officers it has not succeeded – legal experts say the new criminal law in England and Wales is even broader than common law.

How a police officer might defend themselves in a collusion case is an interesting question. Informant handling could involve wilful neglect of public trust, yet arguably be justified.

If that sounds like a return to the competing narratives debate, it would at least force the official version to be made in court. It would also sweep aside all the sophistry about there being no rules or laws on intelligence work during the Troubles, because what would be on trial is the exercise of duty – and the duty of the police to investigate murder is unarguable.

Because misconduct in public office is a criminal offence, bereaved families or indeed anyone else can in theory simply call the police and report a crime, then sit back and let the wheels of justice grind away at their own expense.

In practice, few families in that position would trust the system to be objective, although they might still consider a complaint to be a spanner worth dropping in the works. There could even be merit in a campaign of coordinated complaints. In February this year, 150 former British solders threatened to report every IRA attempt on their lives during the Troubles. Their stated intention was to swamp the PSNI and bring investigation of the past to a halt. The same tactic might embarrass the police enough to make more openness on the past seem less embarrassing.

If that all sounds too much like taking authority on trust, there is an alternative approach. Misconduct in public office has an almost identical civil offence, misfeasance in public office, which a victim can pursue through their own solicitors. It is even broader again, covering public bodies as well as public officials, with a lower burden of proof and the prospect of financial compensation.

If no-win no-fee cases were allowed in Northern Ireland, this part of dealing with the past could be surprisingly affordable – and if someone in the dock decided to defend themselves by pointing the finger upwards, would that not combine truth with justice?