In the matter of an application by Geraldine Finucane for Judicial Review (NI) [2019] UKSC 7 Part Two
26 Tuesday Mar 2019
JONATHAN GLASSON QC, Barrister at Matrix Chambers Case Comments
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Were there valid reasons to renege on the promise made to Mrs 
Finucane?
The appellant argued that all the relevant evidence pointed to the decision not to hold the inquiry being a sham. The basis on which it had been suggested that this was a decision taken in the public interest was, Mrs Finucane argued, spurious. Moreover, the process of consultation and discussions was entirely cosmetic. The outcome had been predetermined. (See Lord Kerr’s summary of the grounds of challenge at paras 50-52)
Lord Kerr commented that they were “serious charges” which would require “clear evidence” before they could be accepted. Whilst there was “no reason to doubt the genuineness of the conviction of the appellant as to the reasons which she believes prompted the government to renege on the promise that she had been given….however strongly held is her belief as to the circumstances in which the decision not to hold the inquiry was taken, this cannot be a substitute for the unambiguous evidence that is needed to vindicate it.”(para 78)
Lord Kerr concluded at para 81 that:
“There is simply no sustainable evidence that the process by which the decision was taken was a sham or that the outcome was predetermined. As to the role played by the Prime Minister, there are indications that he was strongly convinced that a costly, open-ended inquiry would ensue if the promise made to Mrs Finucane was kept. And it appears that he played an important, if not indeed a controlling, role in the discussions which led to the establishing of the de Silva review. He was prepared to disregard (or, at least, not accept) the strongly worded recommendation of Sir Jeremy Heywood. But there is nothing untoward about any of this. The decision as to whether a public inquiry into Mr Finucane’s death should take place was a matter of considerable political importance. As Gillen LJ said, it would be extraordinary if the Prime Minister had not been consulted. Having been consulted, the part that he played and the influence which he exerted were matters for his political judgment. This part of the appellant’s appeal fails, in my view.”
Was there a breach of the ECHR, art 2 investigative (or procedural) obligation?
Mrs Finucane argued that the failure to establish a public inquiry constituted a violation of her rights under ECHR, art 2 and the Human Rights Act, s 6. This was not advanced however as a freestanding argument for a declaration that the investigations that had so far taken place are not sufficient to constitute an art 2 complaint inquiry. At first instance, Stephens J decided that a limited declaration should be made to the effect that an art 2 compliant inquiry into Mr Finucane’s murder had not, at the time of his judgment, taken place. The Court of Appeal did not agree that a declaration should be made, noting that leading counsel for the appellant had declined an invitation to amend the application for judicial review to plead, as a freestanding issue, that the state was in breach of its art 2 obligation. Lord Kerr however concluded that the art 2 issue was firmly before the Supreme Court and could “be shelved simply because the appellant elected not to formulate it as an independent ground of challenge”:
“152. It appears to me, in any event, that we, as a Supreme Court, cannot ignore the question. The confines of our deliberations in this case are not necessarily to be determined by the manner in which the parties choose to make their presentations to us. If we detect that a violation of a Convention right has taken place, it would surely be wrong for that to go unremarked upon. It would be, at least arguably, a failure on our part to comply with the enjoinder contained in section 6 of HRA which requires any public authority, including a court, not to act in a way which is in contravention of a Convention right. To fail to acknowledge that there has been a breach of article 2where that has been established would be in breach of the spirit, if not the literal requirement, of that provision. This is particularly so because of section 6(6) of HRA . It stipulates that an act includes a failure to act. The failure of the Supreme Court to declare that there has been a violation of article 2 of ECHR where one has been detected in a case before it, however incidentally, would not keep faith with that enjoinder. But, it is not necessary to decide that point for the reasons given earlier and I refrain from expressing a final view on it.
153. 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.”
In reaching this conclusion, Lord Kerr rejected the Respondent’s arguments that there could not be a breach of art 2 as the death had occurred 11 years before the Human Rights Act’s entry into force in 2000. The respondent had argued that the Supreme Court decision in In Re McCaughey’s Application for Judicial Review [2011] UKSC 20, [2012] 1 AC 725 needed to be considered in the light of the Grand Chamber’s observations in Janowiec v Russia (55508/07) (2014) 58 EHRR 30. However, as Lord Kerr noted at para 109 of his judgment, the Respondent was not inviting the Supreme Court to depart from its earlier decision in McCaughey’s case.
Lord Kerr concluded that “a genuine connection” had been established between the murder and the entry into force of the Human Rights Act. Although the lapse of time should not normally exceed 10 years (see para 146 of Janowiec), Lord Kerr, like Stephens J at first instance, noted that that was not an immutable requirement as the ECtHR had stated in Mocanu v Romania (10865/09) (2015) 60 EHRR 19 and as the Supreme Court had found in McCaughey’s case (see paras 118, 119 and, in particular, 139 of McCaughey’s case.)
The Court of Appeal had held that the evidence emerging during the de Silva review had not been sufficient to revive (in accordance with Brecknell v United Kingdom (32457/04) (2008) 46 EHRR 42, [2007]) the art 2 procedural or investigative obligation. Lord Kerr disagreed noting that Brecknell said that any information with the potential to undermine the conclusions of an earlier investigation would prompt revival.
Lord Kerr noted in particular that the de Silva review had expressed doubt as to the role of state agents and concluded that that doubt was sufficient to warrant further investigation. Although the police had found that the evidence did not afford any basis for further investigation or prosecution, that did not determine whether art 2 ECHR had been met: the need for effective investigation went well beyond facilitating a prosecution. At para 139 of his judgment, Lord Kerr noted:
“Sir Desmond de Silva’s conclusion that he was 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” is, in itself, an eloquent statement about the inadequacy of the inquiries into Mr Finucane’s murder and the incapacity of those inquiries to fulfil the requirements of article 2 , for the reasons discussed at paras 118 and 119 above. It has proved to be incapable of establishing the identity of the persons implicated in the murder of Mr Finucane. A proper, inquiry along the lines described in preceding paras was the means by which an article 2 compliant inquiry would have been achieved.”
Lord Kerr stated that the review might have been able to identify those individuals had it been able to compel witnesses and probe their accounts and if it had been able to press those whose testimony might have led to the identification of those involved: at para 140 he commented:
“Sir Desmond’s conclusions are not criticised for their failure to identify the people involved in bringing about Mr Finucane’s murder. Rather, the means by which he might have done so had been denied him. I have dealt with these in para 134 above. If he had been able to compel witnesses; if he had had the opportunity to probe their accounts; if he had been given the chance to press those whose testimony might have led to the identification of those involved in targeting Mr Finucane; if the evidence of the handler had been obtained, or alternatively, objective, medical evidence of her incapacity to provide it had been forthcoming, one might have concluded that all means possible to identify those involved had been deployed. Absent those vital steps the conclusion that an article 2 compliant inquiry into Mr Finucane’s death has not yet taken place is inescapable.”
Comment
The Supreme Court’s decision attracted widespread coverage at a time when there is significant debate as to how Northern Ireland should deal with the legacy of cases from “the Troubles” – see for example
https://www.rte.ie/news/2019/0227/1033102-finucane_judgement/
The Irish Prime Minister immediately called upon the UK Government to establish a public inquiry. Whether or not such an inquiry will however be established is uncertain. https://www.newstalk.com/news/pat-finucane-family-lose-uk-supreme-court-challenge-public-inquiry-831872
At the same time there has already been academic criticism of the decision in relation to “legitimate expectation”, Professor Mark Elliott of Cambridge University arguing that “the regrettable net result of Finucane is the thickening, rather than the dispersal, of the fog that surrounds this area of administrative law” –see
Please see Part One here.