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Sean Molloy: A Note on: In the Matter of an Application by Geraldine Finucane for Judicial Review (Northern Ireland)

This post summarises and offers a brief analysis of the ruling on Geraldine Finucane’s application before the United Kingdom Supreme Court (UKSCt). The application concerned the British government’s decision not to hold a public inquiry into the death of Patrick Finucane, a human rights lawyer who was gunned down on the evening of 12 February 1989, whilst having supper with his wife and three children in North Belfast. On Wednesday 27 February, the UKSCt ruled that refusing to hold a public inquiry was lawful but, significantly, also made a declaration that there had been a violation of the right to life in that an appropriate inquiry into Mr Finucane’s murder had not yet taken place.

The basis of the appeal

In February 2017, the Court of Appeal in Northern ruled that the UK government’s refusal to hold a public inquiry into the death of Patrick Finucane was lawful (Northern Ireland Finucane (Geraldine) v The Secretary of State for Northern Ireland). This decision upheld a previous ruling by Northern Ireland’s High Court (In Finucane’s (Geraldine) Application [2015] NIQB 57). Permission to appeal the decision before the UKSCt was granted on 27 July 2017. As we see below, this latest refusal to hold a public inquiry has a long history.

The appeal centred on the claim that Mrs Geraldine Finucane had a ‘legitimate expectation’ that a public inquiry would be held because of the unequivocal assurance given to her in September 2004. A legitimate expectation arises where a clear and unambiguous undertaking is made. In such cases, the authority giving the undertaking will not be allowed to depart from it unless it is shown that it is fair to do so [para. 62 of UKSCt judgement]. The legitimate expectation arose, according to Mrs Finucane, as a result of a promise made in a letter by the Secretary of State for Northern Ireland that an inquiry into Mr Finucane’s death would be held at some time in the future under new legislation (the Inquiries Act, 2005]). The Secretary of State in a statement to the House of Commons reiterated this on 23 September 2004.

On 11 July 2011, a decision was taken that a public inquiry would not be conducted. Instead, Sir Desmond de Silva, a former United Nations war crimes prosecutor, was appointed to conduct an independent review into any state involvement in Mr Finucane’s murder. This report, which was published in 2012, documented extensive evidence of State collaboration with Loyalist gunmen, including the selection of targets, and concluded that ‘there was a wilful and abject failure by successive governments to provide the clear policy and legal framework necessary for agent-handling operations to take place effectively within the law.’

In the appeal before the Supreme Court, Mrs Finucane further argued that the government failed to show valid grounds for not fulfilling this promise and that the evidence suggests that the decision not to hold the inquiry was predetermined. Her case was supported by the argument that the failure to establish a public inquiry constitutes a continuing violation of her rights under Article 2 of the European Convention on Human Rights (ECHR), and section 6 of the Human Rights Act 1998 (HRA), which requires any public authority (including a Court) not to act in a way which is in contravention of an ECHR right. The broader thrust of the Finucane campaign is to determine the extent of collusion between Loyalist killers and the British government.

The Judgement

The judgement can be parsed out into two separate, though not mutually exclusive issues: the lawfulness of failing to hold a public inquiry and the failure of the state to discharge its article 2 obligations.

The lawfulness of refusing to hold a public inquiry

Delivering the ruling of the Supreme Court, Lord Kerr held that Mrs Finucane did have a legitimate expectation that there would be a public inquiry into Mr Finucane’s death, but that Mrs Finucane had not shown that the government’s decision not to fulfil this promise was made in bad faith or that it was not based on genuine policy grounds.

The decision is based on the Supreme Court’s interpretation of ‘legitimate expectation’. The Court accepted that the Secretary of State’s promise to Mrs Finucane that a public inquiry would be undertaken created a legitimate expectation on the part of Mrs Finucance. Nevertheless, the court concluded that if political issues overtake a promise given by the government and a decision is taken in good faith and on genuine policy grounds not to adhere to the original promise, it will be difficult for a person who holds a legitimate expectation to enforce compliance with it [para 76]. In the Court’s view, the position of the government that it would be ‘costly’ and ‘open-ended’, ‘procedurally difficult’ and potentially ‘unworkable in light of national security issues’ were sufficient reasons to override the previous promise [para 42.] The Court also concluded that Mrs Finucane’s argument that the process was predetermined was a serious charge, which would require clear evidence before this could be accepted [paras. 77 – 78]. There is, according to the court, no sustainable evidence to this effect, so this part of Mrs Finucane’s appeal failed [para 81].

The failure of the state to discharge its article 2 obligations

The Court did, however, make a declaration that there had been a violation of the right to life in that an appropriate inquiry into Mr Finucane’s murder had not yet taken place (whether to issue a similar declaration divided the Court of Appeal in Northern Ireland– Justice Stephens supported making a limited declaration while Lord Justice Gillen and Justice Deeny did not). The relevant provision, Article 2 of the European Convention on Human Rights, gives rise not merely to a duty not to kill people but, where there is an issue as to whether the state had broken this obligation, an obligation on the part of the state to carry out an effective official investigation into the deaths. The declaration affirmed that the UK government has yet to honour this commitment.

Drawing on jurisprudence as to the continuing nature of an article 2 violation, the Court referred to Jordan v United Kingdom (2001), a case that concerned the shooting of Pearse Jordan in 1992 in Belfast by an RUC officer. In this case European Court of Human Rights found a violation of article 2 in respect of failings in the investigative procedures after Mr Jordan’s death. At para. 107 the court in the Jordan case stated:

“The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible. This is not an obligation of result, but of means. … Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard.” (Emphasis added)

The declaration, which is a powerful tool in the Court’s arsenal, made clear that in the Supreme Court’s view, the litany of efforts to date to investigate Mr Finucane’s murder and the collusion involved has been inadequate.

Analysis

The outcome of this case has been miscommunicated in the media. Sky News, for instance, led with the headline that ‘Family lose legal bid to force public inquiry into Pat Finucane murder.’ The BBC headlined with: ‘Pat Finucane murder: Widow loses inquiry challenge against PM’. These headlines fail to capture the significance of the Supreme Court’s article 2 declaration.

In finding that the failure to adhere to its promise to hold a public inquiry was lawful, it is unsurprising that it the court did not state unequivocally that a public inquiry must be held. Indeed, one could argue that in a place like Northern Ireland, where issues of justice and accountability remain a central sticking point in the peace process (see, for instance, the unimplemented Stormont House Agreement), it is prudent that judges do not make such overt political determinations. This is reflected in Lord Kerr’s opinion:

I would therefore make a declaration that there has not been an article 2 compliant inquiry into the death of Patrick Finucane. It does not follow that a public inquiry of the type which the appellant seeks must be ordered. It is for the state to decide, in light of the incapacity of Sir Desmond de Silva’s review and the inquiries which preceded it to meet the procedural requirement of article 2, what form of investigation, if indeed any is now feasible, is required in order to meet that requirement [para. 153].

Nevertheless, in making a declaration that there has not been an article 2 compliant investigation into the death of Patrick Finucane, the Court identifies that the Finucane case has been subject, directly or indirectly, to a number of failed investigations. These have included, as examples, an initial RUC investigation (1989); a coroner’s inquest (1990); an investigation by Judge Cory (2002, report published in 2004); and the Sir Desmond de Silva inquiry (2011, report published in 2012). The Court is clear that none of these endeavours, individually or collectively, have discharged the state’s article 2 procedural obligations [para. 134] to effectively investigate the murder of Patrick Finucane. For instance, the court noted that the De Silva review was fundamentally limited in a number of respects and that these limitations departed from the standard set in Jordan. Amongst other flaws, the court noted that Sir Desmond de Silva did not have the power to compel the attendance of witnesses, those who met him were not subject to testing as to the accuracy of their evidence, and a potentially critical witness was excused attendance for questioning [para. 134].

The real significance of the judgement is not that the decision not to hold a public inquiry was lawful, which, whether one accepts or rejects the validity of the Court’s rationale regarding the issue of legitimate expectation, was an inevitable consequence of that interpretation. The significance instead is that while the court is careful not to interfere in what is a political choice as to the next appropriate course of action, the judgement leaves open, particularly when read alongside the litany of prior failed attempts to facilitate a proper investigation, the possibility that a public inquiry will be held in the future. In this sense, the court appears to go as far as it reasonably could to support the Finucane family’s ongoing pursuit for justice. The ruling is, in essence, a significant win for the family, clearly identifying that the UK government has not discharged its obligation to hold an article 2 compliant investigation.

Conclusion

The Supreme Court ruling reaffirms a rich body of case law from the European Court of Human Rights (primarily from Northern Ireland) that the failure to properly investigate state involvement in murder is a human rights violation. It also implicitly suggests that state collusion (and the extent of that collusion) cannot go unanswered, nor be hidden behind limited investigations, which give the pretence of accountability without meeting the stringent requirements set down by ECtHR and accepted by UKSCt to be required to satisfy Article 2. The judgement also demonstrates the importance of reading judgements in their entirety and viewing court decisions in light of the political realities and contexts within which they are taken.

Sean Molloy, Research Associate at Newcaslte University Law School 

(Suggested citation: S. Molloy, ‘A Note on: In the Matter of an Application by Geraldine Finucane for Judicial Review (Northern Ireland)’, U.K. Const. L. Blog (6th Mar. 2019) (available at https://ukconstitutionallaw.org/))

One comment on “Sean Molloy: A Note on: In the Matter of an Application by Geraldine Finucane for Judicial Review (Northern Ireland)

  1. Loyalist Lawyer
    March 6, 2019

    I do not understand why Mr Molloy states that this Judgment “constitutes a significant win for the family.” The family’s appeal is dismissed. The Court recognises that the prospect for an Article 2 compliant investigation to be carried out now after the elapse of such a great deal of time is not feasible. The Government is highly unlikely to try to prove the Court wrong by pouring scarce resources into such an investigation even if could be foreseen that a final conclusion in respect of Mr Finucane’s death could be drawn. This is the end of the line for the Finucanes unless an investigation is resurrected in future as part of a scheme of legacy investigations in Northern Ireland itself.

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