In a further court judgment in the long running saga of the investigations of the murder of solicitor Patrick Finucane, Stevens J, in the High Court of Northern Ireland, has held that the decision of the British Government not to hold an public inquiry that could examine the complicity of state agents and employees in his murder was lawful.

"The killing involved 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."

Stephens J: Finucane’s (Geraldine) Application [2015] NIQB 57   

The Background

Patrick Finucane was murdered by members of the Ulster Freedom Fighters in 1989.   The British government have since accepted that there was state involvement in the death.  In 2004 a Canadian judge who had been appointed to conduct a documentary review of the case had recommended a public inquiry.   The Secretary of State for Northern Ireland (“SOSNI”) subsequently announced the establishment of an inquiry to be held under the Inquiries Act 2005.  When Mr Finucane’s wife, objected to the use of that Act and declined to participate the inquiry was not continued with.

In 2011 the then SOSNI decided to hold a review into the death rather than a public inquiry. That review had no powers to compel witnesses to answer questions. The review reported in 2012 and found a “serious violation of human rights” by agents of the state and that “a series of positive actions by employees of the state actively furthered and facilitated the murder and that, in the aftermath of the murder, there was a relentless attempt to defeat the ends of justice.” 

The applicant challenged the decision to hold a review rather than a pubic inquiry on the grounds that: (1) she had a substantive and procedural legitimate expectation that a public inquiry would be held;  (2)  in deciding not to hold  such a inquiry there was a failure properly to take into account the existence of her legitimate expectation; (3) the consultation process was sham, in that from the outset the Government was intent not to  depart from the  previously declared policy of “no more open-ended and costly inquiries into the past”;  (4)  there was an unreasonable  failure to take into account relevant factors and various irrelevant factors were taken into account and that (5)  failure to establish a public inquiry was incompatible with the applicant’s Art 2 procedural rights.

The decision

Dismissing the application Stevens J agreed that a legitimate expectation had been created by the clear and unambiguous promise of a public inquiry.  But even such an expectation was subject to the implicit qualification that a public authority would not  be held bound by the law to maintain a policy which it has chosen to alter or abandon on reasonable grounds.  A balance had to be struck between the interests of the individual and that of the general community within the macro-political field.    

The policy was for “no more open-ended and costly inquiries into the past.”

The overriding interest  justified the frustration of the expectation in this case and the decision to set up the review rather than an inquiry was not so unfair as to be a misuse of the government’s power.  Furthermore, it was not an irresistible requirement under Article 2 that a public inquiry should be held.  

The issue of the breach of the Art 2 procedural investigative obligation had already been addressed in the decision of the ECHR in Finucane v UK (2003) 37 EHRR 29 when the European Court held that the totality investigations to that date had not been Art 2 compliant, in that the necessary elements of public scrutiny and accessibility of the family were missing and that effective investigations had not been commenced promptly and conducted with due expedition. However the EtCHR did not direct what must be done to remedy this but had  stated that it fell to the Committee of Ministers to consider what may practicably be required by way of compliance for the future and accordingly, the EtCHR did not make a declaration to the effect that a specific type of investigation should be held.

Stevens J held that the outstanding issues under the Article 2 procedural obligation did not mean that the further investigative measures required a public inquiry or to place disproportionate burdens on the authorities.  There was an on-going police investigation and the de Silva report together with new documentary material was being considered by the police.  The Art 2 procedural obligation would be met if the de Silva report and the related documents were are all considered by the PSNI and by the DPP (NI) with the assistance of independent senior counsel and thereafter if the prosecutorial decision was not to prosecute, the reasons for this were given publicly.