Finucane's (Geraldine) Application and in the matter of a decision of The Secretary of State for Northern Ireland
| Jurisdiction | Northern Ireland |
| Judge | Scoffield J |
| Judgment Date | 21 December 2022 |
| Neutral Citation | [2022] NIKB 37 |
| Date | 21 December 2022 |
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Neutral Citation No: [2022] NIKB 37
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: SCO12024
ICOS No: 21/014639/01
Delivered: 21/12/2022
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
KING’S BENCH DIVISION
(JUDICIAL REVIEW)
___________
IN THE MATTER OF AN APPLICATION BY GERALDINE FINUCANE
FOR JUDICIAL REVIEW
AND IN THE MATTER OF A DECISION OF
THE SECRETARY OF STATE FOR NORTHERN IRELAND
___________
Fiona Doherty KC and Aidan McGowan (instructed by Madden & Finucane, Solicitors)
for the applicant
Paul McLaughlin KC and Philip McAteer (instructed by the Crown Solicitor’s Office) for
the respondent
Tony McGleenan KC and Leona Gillen (instructed by the Crown Solicitor’s Office) for
the Chief Constable of the Police Service of Northern Ireland, a notice party
Andrew McGuinness (instructed by the Legal Directorate within the Office of the Police
Ombudsman) for the Police Ombudsman for Northern Ireland, a notice party
___________
SCOFFIELD J
Introduction
[1] By these proceedings, the applicant challenges a decision on the part of the
Secretary of State for Northern Ireland (“the Secretary of State”), made on
30 November 2020, not to establish a public inquiry at this time in relation to the
death of her late husband, Patrick Finucane, and to, instead, await the outcome of a
“process of review” by the Police Service of Northern Ireland (PSNI) and certain
further investigations being conducted by the Police Ombudsman for Northern
Ireland (PONI) (“the Ombudsman”). The PSNI and PONI appeared as notice parties
in these proceedings. The applicant further challenged an additional decision on the
part of the Secretary of State not to review his earlier decision following the
conclusion of the PSNI’s process of review on 6 May 2021.
[2] Ms Doherty KC and Mr McGowan appeared for the applicant;
Mr McLaughlin KC and Mr McAteer appeared for the respondent; Mr McGleenan
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KC and Ms Gillen appeared for the Chief Constable; and Mr McGuinness appeared
for the Ombudsman. I am grateful to all counsel for their extremely detailed written
submissions and helpful oral submissions.
Factual background
[3] The murder of Patrick (‘Pat’) Finucane has become notorious in the context of
what have come to be termed ‘the Troubles’ in Northern Ireland. For present
purposes, it is unnecessary to set out a great deal of the background to
Mr Finucane’s murder. He was killed on the evening of 12 February 1989 when
gunmen burst into his home and shot him some 14 times, in the presence of his wife
and children. Since that time, his family – principally through the efforts of his wife,
the present applicant – have been seeking a thorough, searching and independent
examination of the circumstances surrounding the murder, including the extent of
any involvement of state agents in it. Much of the background to the issue is set out
in detail in the decision of the UK Supreme Court in Re Finucane’s Application [2019]
UKSC 7 (see, in particular, paras [1]-[49]).
[4] On 1 November 1998, the applicant applied to the European Court of Human
Rights (ECtHR) for a declaration that the UK Government had failed to carry out a
proper investigation into her husband’s death and for an order requiring the
government to conduct a full public inquiry into its circumstances. On 1 July 2003
the ECtHR held that there had not been an inquiry into the death which complied
with article 2 of the Convention. It considered that the original police investigation
had lacked sufficient independence, as there were allegations that RUC officers had
been involved in issuing threats against Mr Finucane (see para 74); that the original
inquest was unduly narrow in scope, as it had not included consideration of
allegations of state collusion (see para 78); that the necessary element of public
scrutiny was not at that time satisfied, in light of the limited amount of information
then in the public domain regarding the Stevens I and Stevens II investigations and
the lack of clarity as to what of the Stevens III investigation would be made public
(paras 79-80); and the failure of the Director of Public Prosecutions (DPP) to give
reasons to explain ‘no prosecution’ decisions which had been made (see para 83).
There was also an issue as to lack of reasonable promptitude in the commencement
of the Stevens investigation specifically addressing the Finucane murder (see para
80). The respondent emphasises that the ECtHR declined to order a fresh
investigation or any other step by the UK authorities. Instead, the Court stated that
it fell to the Committee of Ministers acting under article 46 of the Convention to
consider “what might practicably be required” by way of the government’s
obligation to comply with its article 2 obligations (see para 89).
[5] As a result, the Committee of Ministers, the decision-making body of the
Council of Europe, then commenced supervision of the execution of the ECtHR’s
judgment, pursuant to article 46(2) of the Convention. Further details about this
process are set out below.
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[6] On 23 September 2004, in a statement to the House of Commons, the then
Secretary of State made a commitment to hold a public inquiry into Mr Finucane’s
death. That commitment has not been delivered upon and, as appears further
below, much has happened since. From time to time, further consideration has been
given to the establishment of a full public inquiry to look into the circumstances
surrounding Mr Finucane’s death. In 2011 another important decision was taken in
that regard, which was the subject of litigation to which I shall turn shortly. It is
only right to record that, for a time at least, part of the reason for a public inquiry not
being established was the Finucane family’s opposition to the type of public inquiry
which was proposed, namely one operating under the provisions of the Inquiries
Act 2005 (“the 2005 Act”).
[7] Meanwhile, on 17 March 2009, the Committee of Ministers decided that its
examination of the specific measures taken by the UK on foot of the decision of the
ECtHR should be closed. There has been some discussion in the course of these
proceedings of the basis for, and import of, that decision. The applicant relies upon
the fact that the Committee of Ministers at that point, as later noted by the UK
Supreme Court, was proceeding on the basis that the UK Government was actively
working on proposals for establishing a statutory public inquiry: that is to say, it
closed its examination in the expectation that a public inquiry was going to be held.
In accordance with the Secretariat’s recommendation, the Committee of Ministers
noted with satisfaction “the possibility of holding a statutory inquiry” and “strongly
encouraged” the continuation of dialogue between the UK Government and the
Finucane family.
[8] In the event, the UK Government then decided not to hold a public inquiry,
notwithstanding the Secretary of State’s previous statement in the House of
Commons. Instead, on 12 October 2011, the then Secretary of State made a further
statement to the House of Commons outlining that Sir Desmond de Silva QC had
been asked to carry out a review of any state involvement in Mr Finucane’s murder.
In that statement, the Government accepted the clear conclusions of previous
investigations that there had been collusion and indicated that it was “committed to
establishing a further process to ensure that the truth is revealed.” The Secretary of
State said, “Accepting collusion is not sufficient in itself. The public need to know
the extent and nature of that collusion.” The Government now proposed to achieve
this through Sir Desmond’s review, rather than by way of a public inquiry.
[9] The applicant’s response to this change of direction by the Government was
twofold. First, she initiated judicial review proceedings challenging the decision;
and it was those proceedings which culminated in the appeal to the Supreme Court
mentioned above. Second, by letters dated 27 August 2014 and 29 September 2015
the applicant also asked the Committee of Ministers to reopen its supervision of the
execution of the ECtHR’s 2003 judgment. At its meeting in December 2015 the
Committee of Ministers decided to postpone its decision on that request until the
conclusion of the domestic legal proceedings initiated by the applicant.
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