Finucane (Geraldine) v The Secretary of State for Northern Ireland
| Jurisdiction | Northern Ireland |
| Judge | Gillen LJ |
| Judgment Date | 21 February 2017 |
| Neutral Citation | [2017] NICA 7 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 21 February 2017 |
1
Neutral Citation: [2017] NICA 7
Ref:
GIL10000
Judgment: approved by the Court for handing down Delivered:
21/02/2017
(subject to editorial corrections)*
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
________
ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
IN THE MATTER OF AN APPLICATION BY GERALDINE FINUCANE
FOR JUDICIAL REVIEW
________
GERALDINE FINUCANE
Appellant;
-and-
THE SECRETARY OF STATE FOR NORTHERN IRELAND
Respondent/Cross Appellant.
________
Before: Gillen LJ, Deeny J and Horner J
________
GILLEN LJ
INDEX
________
Paragraphs Subject
1 Introduction
2-3 Grounds of Appeal
4-67 Background Facts
68-128 Legitimate Expectation
129-135 Mala Fide
136-211 Article 2 of the Convention
212 Conclusion
2
Introduction
[1] In these appeals the appellant seeks to vary the order made by Stephens J
whereby he refused to order the Secretary of State for Northern Ireland to hold a
public inquiry into the murder of the husband of the appellant Patrick Finucane
(“PF”) and the respondent seeks to vary the limited declaration made in relation to
the State’s obligations under article 2 of the European Convention on Fundamental
Rights and Freedoms (“the Convention”). Mr Barry McDonald QC SC appeared
with Ms Fiona Doherty QC on behalf of the appellant. Mr James Eadie QC appeared
on behalf of the respondent with Mr Paul McLaughlin. We are grateful to both sets
of counsel for the assiduous care which they have invested in this appeal.
Grounds of Appeal
[2] In essence the grounds of appeal by the appellant were based on the alleged
errors of the trial judge in that he –
(1) Concluded that the process adopted to arrive at the impugned
decisions included detailed consideration of the impact of the various
policy options and was a genuine consideration of all the policy
options.
(2) Failed to conclude that the process adopted was a sham process and
that the respondent had a closed mind.
(3) Having concluded that there was a promise which was a clear and
unambiguous representation devoid of relevant qualifications that a
public inquiry into the death of PF would be held, erroneously
concluded that -
(i) The respondent had identified the overriding interest or
interests on which he relied to justify “the frustration of the
expectation”.
(ii) That the decision was concerned with macro political issues of
policy and that therefore the overall intensity of review is
limited.
(iii) The decision to conduct a review was not so unfair as to be a
misuse of the respondent’s power.
(iv) The frustration of the expectation and the decision to set up a
review was not so unfair as to amount to a misuse of the
respondent’s powers.
3
(v) The respondent had discharged the onus of justifying the
frustration and the expectation.
(5) Failed to conclude that in order to satisfy Article 2 of the ECHR a
public inquiry required to be held.
[3] A respondent’s Notice of Appeal has also been lodged. In essence the points
raised were that the learned Judge erred in concluding that:-
(i) the Government had given an assurance to hold a public inquiry into
the death of PF which was clear, unconditional and devoid of relevant
qualifications such as to give rise to a substantive legitimate
expectation for making an order for costs in favour of the appellant.
(ii) the State owed a procedural duty to the appellant pursuant to Section 6
of the Human Rights Act 1998 combined with Article 2 of the European
Convention on Human Rights and Fundamental Freedoms (“ECHR”)
to conduct an effective investigation in to the murder of PF.
(iii) there had been a violation of the duty owed to the appellant under
Article 2 of the ECHR.
Background Facts
[4] In the course of his comprehensive 78 page judgment the learned trial Judge
set out the factual background to this case between pages 19 and 59. Counsel has
indicated that there is no material issue taken with that recitation. Accordingly
borrowing from those background facts we can refine the background to some
degree and shall refer to the fuller findings of the judge as the need arises during the
course of this judgment.
[5] However before commencing the factual recitation, it may be helpful to
borrow from the judge’s synopsis of the core allegations in relation to the murder of
Patrick Finucane found at paragraphs [42]-[45] of that judgment. Where relevant it
states:-
“[42] The core allegation in relation to the murder of
Patrick Finucane is that the army, through a branch of
army intelligence called the Force Research Unit
(‘FRU’) and one of its agents, Brian Nelson, was
deliberately manipulating loyalist paramilitaries to
carry out a murder-by-proxy campaign against
republican terrorists so that the loyalist terrorist
campaign changed its focus from the random killing
of Catholics towards the deliberate targeting of
suspected republican terrorists who were classified as
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7 cases
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The Renewable Heat Association and Another Application for Judicial Review and in the matter of an application for leave to apply for Judicial Review by Thomas Forgrave
...the case of Finucane [2019] UKSC 7 subsequently decided by the Supreme Court and reported at that stage by the Court of Appeal at [2017] NICA 7. He also referred to the dicta of Laws J in Bhatt Murphy (A Firm) and others v The Independent Assessor [2008] EWCA Civ 755. Whilst he accepted tha......
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Doran's (Michael) Application
...not by the then Minister or the then Department. It is not wholly unlike the situation that arose in Finucane v The Secretary of State [2017] NICA 7 where I observed the greater liberty that a government had to depart from a policy or legitimate expectation made by a previous government. Wh......
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The Renewable Heat Association Northern Ireland and Another's Application
...of legitimate expectation has recently been considered by the Court of Appeal in Finucane v Secretary of State for Northern Ireland [2017] NICA 7 as follows: “Principles governing legitimate expectation 59 [70] Harvested from an array of familiar but powerful authorities cited before this c......
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McKenna's (Mary) Application
...which the court will advert to is the decision of the Court of Appeal in Northern Ireland in the case of In re Geraldine Finucane[2017] NICA 7, in which judgment was given after the close of argument in this case. In that case the applicant was the wife of a solicitor who had been murdered ......
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