Re: Finucane’s Application for Judicial Review  UKSC 7;  2 WLUK 382, 27.2.2019
In February 1989 Patrick Finucane, an Irish Catholic lawyer, was eating dinner with his wife and children when gunmen forced their way into his home and shot him 14 times. Thirty years later this murder remains one of the most notorious events of the Northern Ireland ‘Troubles’.
An inquest the following year examined only the immediate circumstances of the death. Before long, however, it emerged that there was, as his widow suspected, collusion between the murderers and members of the security forces. The British Government have acknowledged and formally apologised for that collusion. Despite a subsequent guilty plea to the murder by one loyalist paramilitary, none of the numerous investigations into the killing have identified the members of the security forces involved or the assistance provided. There has still been neither an Art 2 inquest nor any formal public inquiry into the state involvement.
The Supreme Court have now determined that, whilst the decision not to hold a public inquiry was lawful, in the circumstances of Mr Finucane’s death Art 2 does require that there is a further investigation conducted which has the means to identify the perpetrators. Whilst the precise form of that investigation will not be prescribed by the courts and remains a matter for the government, whatever form of investigation or inquiry is adopted must meet the Art 2 procedural obligations.
The earlier investigations
The inquest into Patrick Finucane’s death commenced on 6 September 1990 and ended the same day. Evidence was heard from RUC officers involved in investigating the death, his widow, two neighbours and a taxi driver whose car had been hijacked and used by those responsible for the shooting. The investigating police officer stated that none of the suspects had any connection with the security services.
Since the first inquest a number of inquiries into the death have been conducted. The third ‘Stephens Inquiry’ concluded in 2003 that there had been collusion between members of the security services and Loyalist paramilitaries and that, had intelligence been acted upon, Pat Finucane’s murder could have been prevented.
As part of the ‘Good Friday Agreement’ a retired Canadian Supreme Court Judge, Judge Cory, was appointed to investigate a number of cases of alleged collusion. The British Government promised that if a public inquiry was recommended by the judge his recommendation would be implemented. Judge Cory concluded in April 2004 that a public inquiry was required into Pat Finucane’s death.
Duty to undertake effective investigation
In 2003, prior to the publication of Judge Cory’s report, the ECtHR had granted an application by Mrs Finucane and declared that an Art.2 compliant investigation into the death had not yet been undertaken.
“Any investigation of alleged unlawful killing must be independent and capable of identifying perpetrators, with sufficient element of public scrutiny and involvement of the next of kin.”
The police investigation had not been independent, the inquest had not inquired into collusion and the independent inquiries had not involved sufficient public scrutiny.
However despite this ECtHR decision and the earlier promises made a public inquiry never took place. In part this was because when the government proposed that the inquiry should be held under the new Inquiries Act 2005 Mrs Finucane had objected. Years of negotiations about the form of inquiry followed but had not been resolved by 2010 when the new UK (coalition) government was elected. The Tory’s then stuck to their manifesto promise that, generally, there would be no more long-running costly open ended inquiries into the past of Northern Ireland.
Fast forward to July 2011, and the decision was made that, rather than a public inquiry, Sir Desmond de Silva (the former UN war crimes prosecutor) would undertake a non-statutory independent review into the state involvement in Mr Finucane’s murder.
Sir Desmond’s review was provided with some extensive powers, including unrestricted access to documents. Importantly, however, he was unable to compel witnesses to attend and questioning took place within personal meetings rather than at open oral hearings. Nevertheless Sir Desmond reached the conclusion that not only could Pat Finucane’s murder have been prevented but that “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.”
The JR grounds of challenge
Mrs Finucane remained dissatisfied and judicially reviewed the decision not to hold a public inquiry. Her primary argument was that, following Judge Cory’s conclusion in 2004, she had a legitimate expectation that a public inquiry would be held and that the government had unfairly reneged on the promise made to her.
The Supreme Court was with her half of the way, holding that:
- An unequivocal undertaking to hold a public inquiry into Mr Finucane’s death had been given – Mrs Finucane did therefore have a legitimate expectation that there would be such an inquiry; BUT
- It was open to the government to resile from such an undertaking and frustrate that expectation if, as here, there was a bona fide decision taken on policy grounds because political issues and contemporary considerations impelled a different course.
Despite having lost the ‘legitimate expectation’ point Mrs Finucane still had an alternative argument to run. What she really wanted was a public inquiry, and so her second line of argument was that the state’s continued failure to hold an Art 2 compliant inquiry meant the government was nevertheless required to adhere to its initial promise of a public inquiry.
Notably Mrs Finucane had already declined the High Court’s invitation to amend her JR grounds and argue as a freestanding issue that the state was in breach of its Art 2 procedural obligations. Happily however for Mrs Finucane, the Supreme Court decided that this was an issue that “cannot be shelved simply because the applicant elected not to formulate it as an independent ground of challenge.” (Big lesson to all advocates here – if the court invites you to run a slightly different argument from the one you were planning on running it’s a huge hint and you should really take it up as its likely to be an argument that has much better prospects than your own idea.)
The Supreme Court then went on to hold that:
- The procedural obligation of article 2 can apply to deaths occurring before the HRA came into force (indeed, Mr Finucane’s death pre-dated the coming into force of the HRA by over 10 years); and
- Where state agents are arguably involved in a death, Art. 2 compliance requires an independent investigation with the means to identify those implicated in the death;
- There had not been an Art 2 compliant investigation into Pat Finucane’s death;
- BUT it did not follow that a public inquiry of the type Mrs Finucane sought must be ordered; as
- The precise form of any investigation now required was for the state to decide.
Article 2 requires an investigation with the means to identify those implicated in the death
The Supreme Court Justices found that there had been several constraints upon Sir Desmond de Silva’s review, which illustrated why his review could not be considered to be an “in-depth, probing investigation with all the tools that would normally be available to someone tasked with uncovering the truth of what had actually happened”.
In contrast with an inquest or public inquiry, the de Silva review did not have the power to compel the attendance of witnesses. Indeed a potentially critical witness had been excused attendance on health grounds without any medical evidence being provided in support. Furthermore, those witnesses who did meet Sir Desmond were not tested by way of “challenging probes as to the veracity and accuracy of their evidence”.
An Art 2 compliant inquiry involves providing the means where, if they can be, suspects are identified, and if possible brought to account. Sir Desmond de Silva had not been given the chance to press those whose testimony may have led to identification of those involved: many important questions still remained unanswered.
Application of Finucane to inquests: Must all article 2 inquests seek to determine the identification of perpetrators?
Finucane may, at first glance, appear to be at odds with the recent Court of Appeal decision in Coroner for the Birmingham Inquests (1974) v. Hambleton & Ors.  EWCA Civ 2081 (see our detailed blog post by Nageena Khalique QC here). In the Hambleton case, the Coroner had decided that an investigation as to who had carried out the 1974 Birmingham bombings was outside the scope of his inquiry. The Court of Appeal agreed, holding that exploration of the “perpetrator issue” was not required to discharge the state’s art 2 obligations. The Coroner’s decision had been lawful and within the Coroner’s discretion.
Part of the reason the “perpetrator issue” was not considered to be within scope in Hambleton was because the police had already spent decades trying to investigate and prosecute the crime. An inquest in 2018 was unlikely to now succeed where police, with their greater investigatory powers and resources had failed. Multiple police investigations and a comprehensive recent report had been unable to answer the question of who was criminally responsible. Where the inquest follows such a comprehensive police investigation which has been unable to identify those responsible, it is not for the Coroner to in effect conduct a fresh criminal investigation.
Contrast this with Finucane, where the Supreme Court Justices made clear that the security services’ criminal involvement had not yet been fully and properly investigated in any forum in an Art 2 compliant manner.
Art 2 obligations can be satisfied by a number of investigations taken together. But what is important is that the investigations when taken as a whole must be capable of identifying perpetrators and provide the opportunity to test and probe evidence. The actual identification of perpetrators is not an Art 2 requirement: but the state must provide the means to do so.
The proper focus should be on the inquiries that have been conducted to date and on an examination of whether they constitute an article 2 compliant inquiry.
The decision in Finucane was clearly foreshadowed in Hambleton when the Court of Appeal accepted that in some cases it may be appropriate for an inquest to hear evidence about the identity of the person(s) responsible for a homicide. Within the confines of an inquest, the question for the Coroner will be whether such identification is relevant to the four statutory questions she or he must answer, taking into account the circumstances of the case and in particular, whether the alleged involvement of state agents has already been properly explored, probed, tested and investigated elsewhere. Where there are doubts about the adequacy of earlier investigations of a homicide the bereaved may still be able to argue that the perpetrator issue falls within an Art 2 inquest’s scope.
 Finucane v UK  37 E.H.R.R. 29
 Her objection in part was because s.19 of that Act would have allowed ministers to impose restrictions on attendance at and disclosure of documents to any inquiry.
 “[W]e, 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.” §152
 The Grand Chamber had earlier held in Šilih v Slovenia (2009) 49 EHRR 37, that the procedural obligation under Art 2 had evolved into a separate and autonomous duty that could bind the state even if the death was before accession to the Convention.
 “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” at §153
 at §134
 at §134
 The convictions of the “Birmingham Six” having been infamously overturned.
 See further §138 – §140