The Long Shadow of the Troubles
7 July 2015
In Finucane’s (Geraldine) Application  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  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  EHRR 99 and Janowiec and Others v Russia  ECHR 55508, as well as the domestic decisions in Re McCaughey  1 AC 825 and R(Keyu) and others v Secretary of State for Foreign Affairs and Commonwealth Affairs  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  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.