The Police Ombudsman exceeded her legal powers in making findings of collusive behaviour by RUC officers in a series of loyalist murders, the High Court has ruled.
A judge held that Marie Anderson acted ultra vires by reaching conclusions in public statements which amounted to determinations of misconduct.
The verdict represents victory in a legal challenge by the Northern Ireland Retired Police Officers Association over the contents of three separate reports into Troubles-era killings.
Mr Justice Scoffield stressed that the watchdog body’s role is to investigate rather than adjudicate.
“It is not for the Ombudsman to make determinations, whether express or implied, as to whether criminal conduct or even misconduct has in fact occurred; no more than it is for the police to determine and publicly state that a suspect is guilty of a crime,” he said.
“The respondent exceeded her powers given the findings or conclusions expressed in the impugned reports which amounted to determinations of (at least) misconduct.”
A further hearing will now be held to decide on any future implications for the reports under judicial scrutiny.
The Association has been locked in a long-running legal attempt to have the three public statements declared unlawful.
One of the cases focuses on a probe into a series of loyalist paramilitary murders in the south Belfast area between 1990 and 1998.
In 2022 Mrs Anderson found evidence of “collusive behaviour” by police in the attacks, which included the February 1992 massacre at the Sean Graham betting shop on the Ormeau Road where UDA gunmen shot dead five Catholic victims.
Legal action was also taken over the report into the police handling of loyalist killings in the northwest region from 1989 to 1993.
A third challenge related to findings in the case of four men wrongly accused of murdering a British soldier in Derry.
Known as the Derry Four, the Ombudsman concluded that RUC officers had unfairly obtained confessions from them for the killing of Lt Stephen Kirby in the city in 1979. The four men later fled Northern Ireland until their acquittal in 1998.
The retired RUC officers claimed Mrs Anderson was legally forbidden from making findings which effectively branded them guilty of colluding in brutal terrorist murders without proper due process.
A Court of Appeal judgment in 2020 restricted her scope to accuse former policemen and women of the criminal offence of collusion with paramilitaries.
Those proceedings related to a previous case taken by retired senior policemen Raymond White and Ronald Hawthorne over the contents of former Ombudsman Dr Michael Maguire’s report into the 1994 Loughinisland atrocity.
Acknowledging her limitations, Mrs Anderson said she had identified conduct within the RUC amounting to “collusive behaviours”.
But lawyers for the Association argued that she misunderstood her permitted role and cannot use that term without establishing a malign motive.
The Ombudsman had wrongly labelled all police working in those areas at the relevant times as complicit with the terrorists responsible for brutal campaigns of murder, it was contended.
Counsel representing the Ombudsman hit back by suggesting the retired officers were becoming “collusion deniers”.
He told the court she had carried out a forensic analysis to reach legally-sound findings, identifying behaviour indicative of collusion without being determinative.
In his ruling on Thursday, Mr Justice Scoffield acknowledged each of the reports was the product of detailed investigation and significant hard work by the Ombudsman and her team of officers.
“Nothing in this judgment is intended to undermine or cast doubt upon their professionalism, dedication or bona fides in undertaking their work in relation to the relevant complaints,” he said.
However, the judge held that a distinction drawn by the Ombudsman between “collusion” and “collusive behaviours” was either unsustainable or insufficiently clear.
He set out how the watchdog described alleged behaviour as “deliberate” and “particularly egregious”.
“I cannot see how the fair minded, objective reader would understand these comments as anything other than relatively plain findings of conduct on the part of police officers which the Ombudsman herself considered to amount to collusion but which, in any event, must have amounted to misconduct,” Mr Justice Scoffield held.
“Most, if not all of these conclusions, fall foul of the Ombudsman’s proper remit as explained by the Court of Appeal.
“The dominant, but inconsistent, use of the phraseology ‘collusive behaviours’ does not rescue the conclusions in this regard.”
He concluded: “The publication of impugned reports in the terms which have been challenged by the applicants in these proceedings represents an extension of the Ombudsman’s role beyond its proper bounds having regard to the statutory scheme which confers and governs her statutory functions.”