Finucane v Secretary of State for Northern Ireland

JurisdictionNorthern Ireland
JudgeHorner JJ,Gillen LJ,Deeny
Judgment Date21 February 2017
Date21 February 2017
CourtCourt of Appeal (Northern Ireland)

Northern Ireland, Court of Appeal.

(Gillen LJ; Deeny and Horner JJ)

Re Application by Finucane for Judicial Review

Finucane
and
Secretary of State for Northern Ireland 1

Human rights — Right to life — Article 2 of European Convention on Human Rights, 1950 — Substantive obligation — Procedural obligation — Procedural obligation requiring State to carry out effective official investigation into circumstances of death — Human Rights Act 1998 entering into force on 2 October 2000 — Murder occurring in Northern Ireland in February 1989 — Allegations of State collusion — Strasbourg jurisprudence — Janowiec — Whether genuine connection test satisfied — Whether valid claim that Article 2 obligation arising under Strasbourg jurisprudence — New evidence — Whether new evidence capable of reviving Article 2 obligation — Whether State complying with Article 2 obligation under Strasbourg jurisprudence — Whether United Kingdom court having jurisdiction to entertain claim — Whether public inquiry required

Treaties — Application — Human rights treaties — European Convention on Human Rights, 1950 — Right to life — Article 2 — Substantive obligation — Procedural obligation — Procedural obligation requiring State to carry out effective official investigation into circumstances of death — Human Rights Act 1998 — Death occurring before Human Rights Act 1998 entered into force on 2 October 2000 — Whether procedural obligation arising — Strasbourg jurisprudence — Janowiec — Whether genuine connection test satisfied — Whether both criteria satisfied — Whether valid claim that Article 2 obligation arising under Strasbourg jurisprudence — New evidence — Whether new evidence capable of reviving Article 2 obligation — Whether State complying with Article 2 obligation under Strasbourg jurisprudence — Whether United Kingdom court having jurisdiction to entertain claim — Whether public inquiry required

Relationship of international law and municipal law — European Convention on Human Rights, 1950 — Human Rights Act 1998 entering into force on 2 October 2000 — Murder occurring in Northern Ireland in February 1989 — Allegations of State collusion — Article 2 of Convention — Substantive obligation — Procedural obligation — Procedural obligation requiring State to carry out effective official investigation into circumstances of death — Article 2 obligation under Strasbourg jurisprudence — Whether valid claim — New evidence — Whether procedural obligation capable of being revived — State compliance — Whether United Kingdom court having jurisdiction to entertain claim — Whether public inquiry required — The law of Northern Ireland

Summary:2The facts:—The appellant was the wife of Mr Finucane, a solicitor who was murdered in Northern Ireland on 12 February 1989. The Ulster Freedom Fighters, a protestant paramilitary group, claimed responsibility for the murder; there were allegations of State collusion. Neither the police investigation nor the inquest that followed examined these allegations.

The appellant lodged an application with the European Court of Human Rights (“the Strasbourg Court”). She complained that there had been no proper or effective investigation into the death of her husband in breach of Article 2 of the European Convention on Human Rights, 1950 (“the Convention”).3 On 1 July 2003, the Strasbourg Court held that proceedings following the death of her husband had failed to provide a prompt and effective investigation into the allegations of collusion by security personnel; there had been a failure to comply with the procedural obligation imposed by Article 2. It did not, however, order a public inquiry.4

The appellant challenged the decision of the United Kingdom Government to hold an independent review (“the de Silva review”),5 rather than the public inquiry promised in 2001 by the previous Government and recommended in the Cory report.6 The trial judge refused to order the respondent Secretary of State for Northern Ireland to hold a public inquiry into the

murder of Mr Finucane. He found that there had not been an Article 2 compliant investigation and made a limited declaration.7 He also held that there was a continuing procedural obligation on the State to investigate the murder. The appellant appealed; the respondent cross-appealed.

The appellant contended inter alia that the failure to hold a public inquiry was incompatible with her Article 2 rights under the Convention and therefore a breach of Section 6 of the Human Rights Act 1998 (“the 1998 Act”), which entered into force on 2 October 2000. The respondent maintained that the trial judge had erred in concluding that the State owed a procedural duty and that that duty had been violated under Article 2 of the Convention.

Held:—The appeal was dismissed. The cross-appeal was allowed; the declaration made by the trial judge was set aside. The Article 2 obligation had been revived by the de Silva report.

Per Gillen LJ: (1) There was a valid claim that an Article 2 obligation arose under the Strasbourg jurisprudence in the circumstances of this murder. An Article 2 investigative obligation arose notwithstanding that the murder of Mr Finucane occurred before 2 October 2000, when the 1998 Act came into force. The procedural obligation was detachable from the substantive Article 2 obligation.

(a) The Stevens Three and Cory Inquiries had produced evidence of State agency collusion in the murder; the new material was sufficiently weighty and compelling to warrant further investigation and discussions of a further review by de Silva. These acts under consideration after the 1998 Act had entered into force were undertaken in the context of proceedings capable of leading to the identification and punishment of those responsible for the murder of Mr Finucane (paras. 150–3).

(b) While ten years was the normal limit for the lapse of time between the triggering event and the critical date, Strasbourg had intended an element of flexibility. This could be extended where there was obstruction on the part of State agents, especially if by only one year. What a reasonably short period of time was depended on the context (paras. 154–8).

(c) To satisfy the genuine connection test,8 the period of time had to be reasonably short and a major part of the investigation had to have been carried out, or ought to have been carried out, after 2 October 2000. Both criteria had been satisfied in this case. While it was thus unnecessary to determine whether the Convention values and Brecknell tests had been satisfied, for future guidance, the trial judge's conclusion that the Convention values test had been met was not unreasonable although other conclusions were equally reasonable. His conclusion that the Brecknell test had been satisfied and that the new evidence was capable of reviving the Article 2 procedural obligation was, however, wrong (paras. 159–71).

(2) The State had complied with its Article 2 obligation under the Strasbourg jurisprudence. The Secretary of State had not acted in a manner incompatible with the procedural obligation under Article 2. The decision to establish a review rather than an inquiry was compatible with the applicant's rights; no further inquiry was needed.

(a) No particular procedure was required by the Strasbourg Court to examine the circumstances of a killing by State agents; it did not have to be single and unified but it had to be effective. To be effective it had to be capable of leading to the identification and punishment of those responsible. This was an obligation of means, not result. The authorities had to have taken the reasonable steps available to them to secure the evidence concerning the incident. The investigation had to be entirely independent of those who might have been implicated in the event. It did not have to be conducted in public. There was a requirement of promptness and reasonable expedition. There had to be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The next of kin of the victim had to be involved in the procedure to the extent necessary to safeguard his legitimate interests (paras. 172–80).

(b) International standards did not add materially to the principles outlined. In any event, they did not form part of domestic law and had not been transposed into legislation. Strasbourg jurisprudence clearly set out the principles governing Article 2 (paras. 181–6).

(c) A combination of independent investigators and processes had already been set up. The next of kin's involvement had been invited. No public inquiry had been ordered by the Strasbourg Court in this case. The requirements of independence and public scrutiny had been met. The inquiries had been cumulatively effective in uncovering State collusion (para. 187).

(d) The trial judge had erred in finding that there was a continuing obligation on the State to investigate Mr Finucane's murder, and that the fact that new and significant information uncovered by de Silva had not been seen by relevant persons meant that there was not an Article 2 compliant investigation as at March 2009. There was no evidence that the information constituted an Article 2 violation; it did not reveal any further investigative opportunities. Revival of an investigative obligation did not necessarily mean that prior investigations were ineffective (paras. 188–98).

(3) It was thus unnecessary to decide whether a United Kingdom court had jurisdiction to entertain such a claim under Article 2 of the Convention. The question as to whether a United Kingdom court was bound to order an inquiry pursuant to the 1998 Act if the Strasbourg Court held that there was an entitlement to an investigation under Article 2 remained to be decided by the United Kingdom Supreme Court. The decision in McKerr to the effect that the 1998 Act was not retrospective remained good law.9 Unlike

McCaughey,10 in this case no public inquiry had ever...

To continue reading

Request your trial
2 cases
  • Re Finucane's Application for Judicial Review
    • United Kingdom
    • Supreme Court
    • 27 February 2019
    ...had been violated under Article 2 of the Convention. On 21 February 2017, the Court of Appeal in Northern Ireland dismissed the appeal (184 ILR 588). It allowed the cross-appeal and set aside the declarationmade by the trial judge. It held that the Article 2 obligation had been revived by t......
  • McKenna's (Mary) Application
    • United Kingdom
    • Queen's Bench Division (Northern Ireland)
    • 27 October 2017
    ...(153 ILR 192); R (Keyu) and Others v. Secretary of State for Foreign and Commonwealth Affairs and Another (182 ILR 555); In re Finucane (184 ILR 588 15 Brecknell v. United Kingdom, judgment of the European Court of Human Rights of 27 November 2007. 16 Janowiec and Others v. Russia (Applicat......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT