Finucane’s (Geraldine) Application
| Jurisdiction | Northern Ireland |
| Judge | Stephens J |
| Judgment Date | 26 June 2015 |
| Neutral Citation | [2015] NIQB 57 |
| Court | Queen's Bench Division (Northern Ireland) |
| Docket Number | STE9642 |
| Date | 26 June 2015 |
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Neutral Citation No. [2015] NIQB 57 Ref:
STE9642
Judgment: approved by the Court for handing down Delivered:
26/06/2015
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
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QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
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Finucane’s (Geraldine) Application [2015] NIQB 57
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STEPHENS J
Part One: Introduction
[1] This is an application by Geraldine Finucane (“the applicant”) for judicial
review of the decision of the then Secretary of State for Northern Ireland (“SOSNI”)
to hold “a review into the death of Patrick Finucane (her husband) rather than a
public inquiry of the kind recommended by Judge Peter Cory.” The applicant
challenges both (a) the decision of the SOSNI not to hold a public inquiry of that
kind into his death and also (b) the decision to establish an independent review of
the circumstances of his death.
[2] The factual background to the application is the murder of Patrick Finucane, a
practising solicitor, in his home in North Belfast on the evening of Sunday
12 February 1989. The attack was carried out by gunmen from an illegal loyalist
paramilitary group. They entered the family home while the applicant and her
husband were having Sunday dinner with their three children. Patrick Finucane
was shot 14 times and the applicant was injured by a ricochet bullet that struck her
in the ankle. The Ulster Freedom Fighters (“UFF”) claimed responsibility for his
murder. The applicant was convinced from the beginning that servants or agents
of the state were involved in the murder of her husband. The government has
accepted that there was state involvement and has apologised for it. It is hard to
express in forceful enough terms the appropriate response to the murder, the
collusion associated with it, the failure to prevent the murder and the obstruction of
some of the investigations into it. Individually and collectively they were
abominations which amounted to 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. There is and can be no attempt at justification. In measured terms Sir
Desmond de Silva has stated that “… the ground rules of counter-terrorism strategy
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must be that the Army and the security forces conduct all counter-terrorism
operations within the law.” That is the only position that can be adopted.
[3] I summarise the grounds of challenge upon which the applicant relies.
a) Substantive legitimate expectation. The applicant relies on a
substantive legitimate expectation that a public inquiry would be held
into the murder of her husband of the kind recommended by Judge
Peter Cory;
b) Procedural legitimate expectation. The applicant also relies on a
procedural legitimate expectation that she would be consulted in
advance about any decision to establish a “review” or any procedure
other than a public inquiry. The applicant accepts that she was
consulted about the decision as to whether to hold a public inquiry
but states that the consultation was deficient in that it did not extend
to the question as to whether there should be a review and if so the
nature of such a review;
c) That in deciding not to hold a public inquiry there was a failure
to properly take into account the existence of the applicant’s
legitimate expectation. The applicant contends that the decision
making process as to whether to hold a public inquiry was deficient in
that the promise made to her to do so was not properly taken into
account.
d) Sham process and closed mind. The applicant alleges that the
consultation process was a sham in that from the outset the
respondent was intent on not having a public inquiry and had no
intention of departing from the Government’s previously declared
policy of “no more open-ended and costly inquiries into the past.”
Rather all the documents and meetings were generated with a view,
amongst other matters, to provide a legal defence to an envisaged
judicial review challenge. That the decision was not made on the
merits of the case or with an open mind but in compliance with a
policy of no more open-ended and costly inquiries into the past and
under the influence of those opposed to any further investigation of
the role of State agents in the murder. Furthermore that the decision
was not in fact made in accordance with the stated process or even in
real terms by the person who was supposed to make it, the SOSNI. In
this regard the applicant submits that a) While the decision was
“primarily” one for the SOSNI, in reality it was driven by the Prime
Minister who was determined to abide by his declaration that there
would be no more inquiries; b) The application by the SOSNI of his
criteria had produced the result whereby two options remained; c)
The PM, without any reference to the published process or criteria,
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introduced a third option, the option that was ultimately adopted; d)
From that point onwards the process was focused on that option and
the justification for it was constructed accordingly; e) For those
reasons the decision not to hold a public inquiry but instead to hold a
review was not the product of a genuine process and the application
of the stated criteria.
e) Wednesbury grounds. That there was a failure to take into
account relevant factors and various irrelevant factors were taken into
account so that the decision of the SOSNI was a decision that no
reasonable decision maker could have taken. An instance of an
irrelevant consideration is that in his announcement of the de Silva
review the SOSNI said “The Government accept the clear conclusions
of Lord Stevens and Judge Cory that there was collusion.” However,
Judge Cory did not find that there was collusion rather his findings
were “provisional only” and could not be taken to be “final
determinations of any matter” though he had found “strong evidence
of collusive acts.” Accordingly the SOSNI had taken into account an
irrelevant consideration and/or acted on a mistake of fact in reaching
his conclusion about the best way forward in the Finucane case. A
further instance is that the SOSNI erred in considering that a review
would be the “most effective way of getting to the truth” it
subsequently being demonstrated that it did not in fact get to the
truth.
f) Article 2 ECHR. The applicant contends that in refusing to
establish a public inquiry the respondent has acted in a manner that is
incompatible with the applicant’s rights pursuant to Article 2 ECHR in
that the procedural obligation applies and there has been a failure to
comply with it.
[4] I summarise the respondent’s case. In relation to substantive legitimate
expectation the respondent accepts that representations were made to, amongst
others, the applicant but contends that those representations were not devoid of
relevant qualifications. Alternatively, that the decision to override the expectation
was a proportionate decision taken by the SOSNI that the public interest would be
met by a review, rather than a public inquiry. That the intensity of judicial review of
the SOSNI’s decision is limited by virtue of its macro–political nature. The
respondent contends that as a matter of domestic law the procedural obligation
under article 2 ECHR does not apply given that the death occurred before the
coming into force of the HRA 1998. Alternatively, that there has been compliance
with that obligation.
[5] I divide this judgment into distinct parts.
(a) Part one contains this introduction.
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