On 27 February 2019 the Supreme Court gave judgment in the appeal glasson_j_145617_bw_indmembrought by the widow of the Belfast solicitor, Pat Finucane, against the refusal of the Secretary for State for Northern Ireland to hold a public inquiry into her husband’s death.  Giving the leading judgment, Lord Kerr (with whom Lady Hale, Lord Hodge and Lady Black agreed) allowed the appeal on the basis that there had been a breach of the investigative obligation under ECHR, art 2.  The Supreme Court found that although Mrs Finucane had a legitimate expectation that there would be a public inquiry into Mr Finucane’s death she 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.  Lord Carnwarth gave a concurring judgment in which he commented on the criticism that had been made of obiter remarks he had made in United Policyholders Group v Attorney General of Trinidad and Tobago [2016] UKPC 17 in relation in relation to the necessity for a detriment to have been suffered before a claim for substantive legitimate expectation could be made.

The factual background

Pat Finucane had been murdered in 1989 by paramilitaries in Northern Ireland.   At the time he was having supper with his wife and three children. In their presence he was brutally murdered. He was shot 14 times. Mrs Finucane was injured by a ricocheting bullet which struck her on the ankle.  As Lord Kerr commented at the start of his judgment: “[t]his shocking and dreadful event still ranks, almost 30 years later, as one of the most notorious of what are euphemistically called ‘the Northern Ireland troubles’.”

Various investigations into the death indicated that there was collusion between Mr Finucane’s murderers and members of the security forces.  However, none of the investigations have uncovered the identity of those members of the security services who engaged in the collusion nor the precise nature of the assistance which they gave to the murderers.

In 2001, talks were held between the UK and Irish Governments at Weston Park. It was decided that a judge of international standing would be appointed to investigate allegations of collusion in a number of cases, including that of Mr Finucane. It was said that if the judge recommended a public inquiry in any case, the relevant Government would implement that recommendation.  Judge Cory, a retired judge of the Supreme Court of Canada, was appointed in June 2002.

Meanwhile, on 1 July 2003, following a case brought by Mrs Finucane, the European Court of Human Rights decided that there had not been an inquiry into the death of Mr Finucane which complied with ECHR, art 2.

Judge Cory published his report on 1 April 2004.  He recommended that a public inquiry should be held into five of the six cases of alleged collusion that he had investigated, including that of Mr Finucane. Two of the cases – the killing of two Royal Ulster Constabulary officers and the killing of Northern Ireland Lord Justice Maurice Gibson and Lady Cecily Gibson – related to allegations of collusion by the Garda Síochána and these reports were submitted to the Irish Government.  The first of those two cases led to the establishment of the Smithwick Tribunal.  In the case of Lord Justice and Lady Gibson, who were killed in a car-bomb explosion by the Provisional IRA on 25 April 1987, Judge Cory concluded that there is no evidence of collusion by the Garda Síochána or any other Government agency that would warrant the holding of an inquiry.  Judge Cory’s recommendations led to public inquiries into the deaths of Rosemary Nelson, Billy Wright and Robert Hamill.

In his judgment Lord Kerr described Judge Cory’s conclusions in relation to the death of Mr Finucane as “by any standard… [amounting] to compelling reasons for the holding of a public inquiry.” [para 33-34].

In September 2004, the Secretary of State for Northern Ireland wrote to Mrs Finucane and on 23 September made a statement in the House of Commons to the effect that the inquiry would be held on the basis of new legislation which was to be introduced shortly: the Inquiries Act 2005. Mrs Finucane objected strenuously to the proposal that the inquiry would take place under the new legislation and a number of discussions as to the terms of the inquiry took place over the years that followed.

In May 2010, there was a general election and a new Government was formed.  A decision was made to hold a two month consultation on the form which an inquiry into the murder of Mr Finucane should take. The consultation include discussions with the Finucane family as well as relevant public authorities and the public in general. As a consequence various briefing papers were prepared and submitted to Ministers. They included comments made by Sir Jeremy Heywood, later the Cabinet Secretary, who stated in an email:

Does the PM seriously think that it is right to renege on the previous Government’s clear commitment to hold a full judicial inquiry? This was a dark moment in the country’s history – far worse than anything that was alleged in Iraq/Afghan. I cannot really think of any argument to defend not having a proper inquiry.” (see para 44 (v) of Lord Kerr’s judgment)

In the event a decision was made on 11 July 2011 that a public inquiry would not be conducted.  Instead, Sir Desmond de Silva QC was appointed to conduct an independent non-statutory document based review into any state involvement in Mr Finucane’s murder.

Sir Desmond was given unrestricted access to documents and was free to meet anyone whom he felt could help with his inquiry. Mrs Finucane did not participate in the review although she had been invited to do so.  Critically, Sir Desmond was not given the power to hold oral hearings or to compel the attendance of witnesses.

Sir Desmond’s overall conclusion was set out in paras 115-116 of his review:

115. … I am left in significant doubt as to whether Patrick Finucane would have been murdered by the UDA in February 1989 had it not been for the different strands of involvement by elements of the state. The significance is not so much, as Sir John Stevens concluded in 2003, that the murder could have been prevented, though I entirely concur with this finding. The real importance, in my view, is that a series of positive actions by employees of the state actively furthered and facilitated his murder and that, in the aftermath of the murder, there was a relentless attempt to defeat the ends of justice.

116. My Review of the evidence relating to Patrick Finucane’s case has left me in no doubt that agents of the state were involved in carrying out serious violations of human rights up to and including murder. However, despite the different strands of involvement by elements of the state, I am satisfied that they were not linked to an over-arching state conspiracy to murder Patrick Finucane. Nevertheless, each of the facets of the collusion that were manifest in his case – the passage of information from members of the security forces to the UDA, the failure to act on threat intelligence, the participation of state agents in the murder and the subsequent failure to investigate and arrest key members of the West Belfast UDA – can each be explained by the wider thematic issues which I have examined as part of this Review.”

The Supreme Court’s decision

Legitimate expectation

Lord Kerr reviewed the authorities in relation to substantive legitimate expectation and concluded:

“From these authorities it can be deduced that where a clear and unambiguous undertaking has been made, the authority giving the undertaking will not be allowed to depart from it unless it is shown that it is fair to do so. The court is the arbiter of fairness in this context. And a matter sounding on the question of fairness is whether the alteration in policy frustrates any reliance which the person or group has placed on it. This is quite different, in my opinion, from saying that it is a prerequisite of a substantive legitimate expectation claim that the person relying on it must show that he or she has suffered a detriment.”

In his judgment, the various undertakings given by the Government, individually and cumultatively amounted to an “unequivocal undertaking to hold a public inquiry” [para 68 of his judgment].

Lord Kerr robustly rejected the Respondent’s argument that it was incumbent on Mrs Finucane to show that she had suffered a detriment: “that argument simply does not avail in this instance, since the question of detriment can only arise, if it arises at all, in the context of a substantive legitimate expectation. Here the promise made did not partake of a substantive benefit to a limited class of individuals (as, for instance, in Ex p Coughlan); it was a policy statement about procedure, made not just to Mrs Finucane but to the world at large.

Does an applicant have to have suffered a detriment?

Lord Kerr considered on the facts of the case that it was unnecessary to decide whether it is a requirement for there “to be a reciprocal undertaking by the person or group to whom the promise is made or that they should suffer a detriment in order to sustain a claim for substantive legitimate expectation” [para 63 and 70 of his judgment].  Nonetheless, referring to Lord Carnwarth’s remarks in United Policyholders and his judgment in this case, he expressed the view that it was unnecessary for a detriment to have been suffered, “for a fundamental reason”:

“A recurring theme of many of the judgments in this field is that the substantive legitimate expectation principle is underpinned by the requirements of good administration. It cannot conduce to good standards of administration to permit public authorities to resile at whim from undertakings which they give simply because the person or group to whom such promises were made are unable to demonstrate a tangible disadvantage. Since the matter does not arise, however, it is better that the point be addressed in a future case when it is truly in issue.” [Para 72]

Lord Carnwarth gave a short judgment solely addressed to the question as to whether or not it was necessary for a claimant alleging a breach of substantive legitimate expectation to have suffered a detriment. Lord Carnwarth acknowledged that there had been critical academic comment on his remarks at para 121 of United Policyholders Group:

“Although I may not have made this sufficiently clear, my reference in that paragraph was based on the analogy with breach of contract or estoppel in private law, noted in the passages cited earlier in my judgment (paras 94-95): see R v Inland Revenue Comrs, Ex p Preston [1985] AC 835 , 886-887 per Lord Templeman; Ex p MFK [1990] 1 WLR 1545 , 1569-1570 per Bingham LJ. On reflection, however, I accept that, even in that limited context the proposition may have been too narrowly stated.” (Para 158 of his judgment)

Please see Part Two here.