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On appeal from: [2017] NICA 7

This appeal considered whether the respondent’s decision to appoint Sir Desmond de Silva to conduct a review into the murder of Patrick Finucane rather than to hold a public inquiry into the murder of the appellant’s husband was taken in accordance with the stated decision making process or whether it was a sham process and/or whether the outcome was pre-determined. It also considered whether the appellant had a substantive legitimate expectation that a public inquiry would be established and whether any expectation was frustrated by the respondent and, if so, whether the frustration was justified. It finally considered whether the failure to establish a public inquiry into the murder of the appellant’s husband is compatible with ECHR, art 2.

The Supreme Court unanimously 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 did not show 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. This was because, though the Court found that undertakings given by the various ministers amounted, individually and cumulatively, to an unequivocal undertaking to hold a public inquiry into Mr Finucane’s death, it is the case that such promises may be overtaken by political issues, and there was  no sustainable evidence to the effect that the process was a sham and the outcome was fixed.

The Supreme Court made a declaration that there has not been an art 2 compliant inquiry into the death of Mr Finucane. The Court considered that, in order to be compliant, an investigation must be capable of leading to the identification and punishment of those responsible. Because Sir Desmond 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, his review fell short of being an effective art 2 compliant inquiry.

For judgment, please download: [2019] UKSC 7
For Court’s Press Summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (26 Jun 2018 morning session) (26 Jun 2018 afternoon session) (27 Jun 2018 morning session) (27 Jun 2018 afternoon session)