The Long Shadow of the Troubles

7 July 2015 by

Photo: The Guardian

Photo: The Guardian

In Finucane’s (Geraldine) Application [2015] NIQB 57 the Northern Ireland High Court  dismissed a challenge to the decision by the British Government to carry out a ‘review’ by Sir Desmond Da Silva rather than a public inquiry into the murder of Belfast solicitor Pat Finucane on 12 February 1989.

Mr Finucane, a Belfast solicitor who had represented a number of high profile IRA and INLA members including Bobby Sands, was murdered in front of his family by loyalist paramilitaries in one of the most notorious killings of the Troubles. His death was mired in controversy due to the collusion between the security forces and his killers. Mr Justice Stephens stated at the outset of his judgment that

It is hard to express in forceful enough terms the appropriate response to the murder, the collusion associated with it, the failure to prevent the murder and the obstruction of some of the investigations into it. Individually and collectively they were abominations which amounted to the most conspicuously bad, glaring and flagrant breach of the obligation of the state to protect the life of its citizen and to ensure the rule of law. There is and can be no attempt at justification.


The Judge went on to summarise the core allegation being that the army, through a branch of army intelligence (the FRU) and one of its agents, deliberately manipulated loyalist paramilitaries to carry a murder-by-proxy campaign against suspected republican terrorists. The FRU allegedly knew of the plan to murder Pat Finucane and either took no action to prevent his death, or was complicit in it.

Sir Desmond da Silva’s review of the murder had similarly concluded that there had been “an extraordinary state of affairs in which both the army and the Royal Ulster Constabulary Special Branch had prior notice of a series of planned Ulster Defence Association assassinations yet nothing was done by the RUC to seek to prevent those attacks… Overall… a series of positive actions by employees of the State actively furthered and facilitated his murder…in the aftermath of the murder, there was a relentless attempt to defeat the ends of justice.”

A series of investigations have taken place into the circumstances of Mr Finucane’s death, including one led by a retired Canadian Supreme Court Judge, Justice Cory. This had followed on from the 2001 Weston Park agreement between the UK and Republic of Ireland for a through investigation into allegations of collusion in various deaths, including that of Pat Finucane. Justice Cory’s review of the documents concluded that “the documents raise serious and perplexing questions regarding the extent to which FRU had advance knowledge of the targeting of Patrick Finucane… these questions can only be answered by a public inquiry.”

The various investigations culminated in the ‘independent review’ led by Sir Desmond da Silva, who was tasked to produce a full public account of any involvement of any UK Government body in Pat Finucane’s murder. Sir Desmond later stated that he was given access to all relevant documents, including documents that had not been available to previous investigations, in particular those conducted by Sir John Stevens.

However, the British government’s decision in October 2011 to commission Sir Desmond’s review rather than to hold a public inquiry was challenged by Pat Finucane’s widow in this application. Mrs Finucane based her challenge on the following grounds: (1) a substantive legitimate expectation that a public inquiry would be carried out; (2) a procedural legitimate expectation that she would be consulted in advance about whether there should be an independent ‘review’ in lieu of an inquiry, and on the nature of such a review; (3) the decision making process did not properly take into account the promise made to Mrs Finucane to hold a public inquiry; (4) the consultation process was a sham as the Government was intent on not holding a public inquiry from the outset and/or that the decision was made in compliance with a set policy that there would be no more open ended and costly inquiries into historic Northern Ireland deaths and/or that the decision was in reality driven by the Prime Minister’s personal determination not to hold any more inquiries rather than by application of the published criteria; (4) the decision of the Secretary of State for Northern Ireland was unlawful as it took irrelevant factors and/or failed to take relevant factors into account; and (5) the refusal failed to comply with the United Kingdom’s procedural obligations under Article 2 of the ECHR.

Mr Justice Stephens considered the applicable case law regarding legitimate expectation at §§9 to 21. In respect of the first stage of the test for substantive legitimate expectation he held at §161 that there had been a promise made by the British Government, which amounted to a clear and unambiguous representation devoid of relevant qualifications that a public inquiry in Pat Finucane’s death would be held if it was recommended by Justice Cory following his review. That promise was made to Mrs Finucane, to the government of the Republic of Ireland, to the political parties at the Weston Park conference, and to the general public of both Northern Ireland and the Republic as an integral part of the peace process.

However, Mr Justice Stephens held at §§167 to 186 that the frustration of Mrs Finucane’s expectation and the decision to set up an independent review rather than a public inquiry was not so unfair as to amount to an unlawful misuse of power. In reaching that decision Mr Justice Stephens held  that the Government had identified five public interest factors that could justify frustrating the legitimate expectation, including political developments that had taken place in Northern Ireland since 2004, and the potential cost of any inquiry and the current pressures on the Government’s finances. He held that the case was clearly concerned with macro political issues, including the impact of the decision on relations with the Republic of Ireland, with the political parties in Northern Ireland and on the peace process generally, and the cost of previous inquiries into historic Northern Ireland deaths. He concluded that “this is a classic case of wide ranging issues of general policy with multi-layered effects.” Consequently the intensity of any review of the overall unfairness of the decision was necessarily limited. Mr Justice Stephens accepted that that any public inquiry would be likely to be prolonged, costly and with a significant risk of attendant judicial review applications. He also accepted that the government was entitled to take into consideration the financial downturn since 2008 and consequent financial restrictions.

Mr Justice Stephens summarily dismissed the claim for procedural legitimate expectation, holding at §182 that Mrs Finucane had been adequately consulted. He also rejected at §194-201 the argument that the decision was taken on the basis of a sham process and/or that the Northern Ireland’s Secretary’s mind was closed. He held at §195 that while there was a policy generally against open ended, long running and costly public inquiries into the past in Northern Ireland (which had been clearly articulated both by the Prime Minister and by the Northern Ireland Secretary), that policy was “not an absolute policy evidencing a closed mind.” The policy in itself was legitimate, and the relevant decision was taken following “anxious consideration of the impact of the various policy options.” Mr Justice Stephens held in respect of the impugned involvement of the Prime Minister in the decision making process that “there is nothing inappropriate about a decision of the Secretary of State being taken on a collective basis, on behalf of the entire government, by a group of interested Ministers, including the Prime Minister.

With respect to Article 2, Mr Justice Stephens at §25 repeated his summary of the nature of the requirements imposed on procedural obligation from his judgment last year in Jordan’s Applications [2014] NIQB 11.  With regards to whether the Article 2 procedural obligation applied in this case where the relevant death occurred after the United Kingdom’s ratification of the ECHR, but before the coming into force of the Human Rights Act, Mr Justice Stephens reviewed the relevant ECtHR decisions in Silih v Slovenia [2009] EHRR 99 and Janowiec and Others v Russia [2013] ECHR 55508, as well as the domestic decisions in Re McCaughey [2012] 1 AC 825 and R(Keyu) and others v Secretary of State for Foreign Affairs and Commonwealth Affairs [2014] EWCA Civ 312.

The Government argued that the decision in McCaughey was both restricted to inquests commenced before, but substantially processed after October 2000, and that the reasoning in McCaughey had been overtaken by the decision in Janowiec. However, Mr Justice Stephens held that he was bound by the reasoning in McCaughey and accordingly the procedural obligation as much of the investigation had taken place after the critical date of October 2000.

He went to consider in the alternative the Government’s argument that the decision in Janowiec applied an absolute limit of a ten-year lapse between the death and the ‘critical date’ of October 2000 for the procedural obligation to apply unless an exception was required to protect the guarantees of the ECHR. Mr Justice Stephens held at §34  that Janowiec did not lead to an absolute limit, stating that:

The purpose of a temporal time limit is to draw a line but not necessarily to draw a line in the circumstances where positively those on behalf of the State have obstructed an investigation. In this case the RUC and the Army positively obstructed and thereby initially prevented and ultimately delayed investigations. I consider that the genuine connection test has been met as the period of time between the triggering event and the critical date is reasonably short given the obstruction of the investigation by the RUC and the Army. Accordingly I consider that the genuine connection test has been met.

Furthermore the test for an exception was in any event met where “the murder of a solicitor involving collusion by State agencies negates the very foundations of the Convention… the adoption of a regime of “murder by proxy” whereby the murder of individuals within a state’s jurisdiction was facilitated by agents of the state does negate the very foundations of the Convention, and indeed of a democratic society.” Lastly, the procedural obligation was ‘revived’ in circumstances where the new documentary material obtained by Sir Desmond da Silva contained new and significant evidence that was not available to Sir John Stevens or Justice Cory.

Mr Justice Stephens held at §211 that he agreed with the ECtHR in Finucane v UK [2003] 37 EHRR 29 that the investigations up to March 2009 did not constitute an effective investigation as there had been insufficient independent inquiry into the allegations of collusion by the RUC or other parts of the Security Forces and where documents containing new and significant information were not available to or considered by either PSNI or the DPP(NI). He held at §214 that the Article 2 procedural obligation would be met if the de Silva report and its underlying documents were considered by the PSNI and by the DPP(NI) and if the reasons for any subsequent decision not to prosecute were given publicly. He concluded that the procedural obligation did not require a public inquiry.


Apart from Mr Justice Stephens’s useful summaries of the principles behind substantive legitimate expectation and the requirements imposed by the Article 2 procedural obligation, the main interest in this judgment lies in the rejection of a strict 10-year limit on the application of Article 2 to historic Northern Ireland deaths as well as the comments as to the applicability of Article 2 to non inquest investigations into such deaths. While the upholding of the decision not to hold a public inquiry could be seen as a victory for the Government against an ‘inquiry culture,’ this judgment may well be of some assistance to those seeking to revive or supplement earlier investigations into Troubles-related deaths, in particular those looking to hold fresh Article 2-compliant inquests.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: