Submission to Judge Cory – Patrick Finucane Deceased

INTRODUCTION

1. The circumstances surrounding the murder of Pat Finucane require no elaboration in this submission in light of the already voluminous material submitted by others.

2. In summary the position is as follows:

a. Patrick Finucane was murdered in circumstances which raise the most serious allegations of direct security force collusion with his killers at all stages of the murder. The actions of state agents and the state itself in relation to the murder of Patrick Finucane and its subsequent investigation “cry out for an explanation”. Such an explanation has not yet been forthcoming. For more than thirteen years the state has failed to act to bring to an end the clear and obvious breaches of the applicant’s rights under Article 2 of the Convention. This is despite the unprecedented number of calls for an Article 2 compliant investigation from numerous respected organisations and individuals, both at domestic and international level.

(ii) The various investigative measures taken in relation to the murder have not, by any standards, been sufficient to satisfy the requirements of Article 2. In particular

a. The RUC investigation was not sufficiently independent given the hierarchical connection between those investigating the murder and those against whom allegations of collusion are made;

b. It did not provide for public scrutiny of the circumstances of the murder, and in particular the allegations of collusion arising therefrom;

c. It did not ensure the requisite protection of the family’s rights as a result of the lack of accessibility of the investigation to them;

d. The RUC failed to inform the DPP that Ken Barrett had admitted to Patrick Finucane’s murder;

e. The inquest did not provide a thorough investigation into his murder, given its restricted remit and the fact that allegations of collusion could not be and were not examined at the hearing;

f. The inquest was not a procedure that could form an effective part of the process of identification and prosecution of a perpetrator of an unlawful act;

g. The first and second Stevens investigations did not investigate the murder of Patrick Finucane;

h. In any event, none of the Stevens investigations were commenced promptly;

i. None provided for public scrutiny of the circumstances of the murder, and in particular the allegations of collusion arising therefrom;

j. The failure to allow the family and its legal representatives access to the investigations did not ensure the requisite protection of their rights;

k. As investigations established by the Chief Constable of the RUC and reporting to him the Stevens investigations do not satisfy the independence requirement of Article 2;

l. The actions of the DPP in failing to prosecute William Stobie in connection with the murder of Patrick Finucane in 1990 were contrary to Article 2 or alternatively raise concerns about the independence of the DPP;

m. The halting of the trial of William Stobie on arms charges in circumstances where it is suspected that he had threatened to expose the police’s prior knowledge of the plan to murder Patrick Finucane raises credible concerns about the independence of the DPP;

n. The failure to give any or adequate explanations for these actions when requested to do so;

o. The failure to prosecute Brian Nelson in connection with the murder of Patrick Finucane and associated offences in circumstances where a self-incriminating statement exists was contrary to Article 2 or alternatively raises concerns about the independence of the DPP;

p. The failure to give any or adequate reasons for this action when requested to do so; and

q. The decision to discontinue charges against Jim Spence was contrary to Article 2 or alternatively raises concerns about the independence of the DPP.

1. On 2 July 2002 the European Court of Human Rights (Fourth Section) declared Mrs Finucane’s application admissible. A copy of the Admissibility Decision is attached as Annex 1. It is to be observed that by letter dated 20 November 2002 the UK Government accepted that the first and second Stevens Inquiries did not satisfy the procedural obligations in Article 2. Furthermore, it was also accepted that the third Stevens Inquiry did not satisfy the Article 2 requirement of prompt and reasonable expedition.

2. These concessions were late and limited and prompted our response dated 6 January 2003 a copy of which is attached asAnnex 2.

POSITION OF UK GOVERNMENT

3. The UK Government has indicated that, in the event that a public inquiry is recommended, it will implement that recommendation.

SUBMISSION

4. It is submitted that it has already been established that there is an overwhelming case for a full, public, independent judicial inquiry. Such an inquiry, in order to inspire the necessary confidence in its deliberations and to demonstrate its complete independence will require to be international in character. It must also comply with relevant international law and practice. This includes the UN Principles on Extra-Legal Executions and in particular the requirement that the family and their legal representatives shall have access to “all information relevant to the investigation”.(1) A copy of these Principles is attached asAnnex 3.

5. In view of the involvement of, inter alia, the Force Research Unit and Special Branch and possibly other intelligence agencies, and recent experience in the Bloody Sunday Inquiry, it is vital that your report should recommend strict adherence to the UN Principles identified above. There is a substantial risk that unless such a recommendation is made that access by the family and its legal representatives to all information relevant to the investigation may be withheld. Were this to occur, the necessary confidence, vital for any inquiry to command respect for its findings, would dissipate. Lord Widgery’s Inquiry into the events of Bloody Sunday is a potent example of an inquiry which never commanded the necessary confidence or respect for its findings as a result of which, almost thirty years later, the UK Government had to establish a second inquiry into the same events.

6. There is a realistic fear, founded on experience, that the government and its security agencies and the Ministry of Defence could seek to subvert the inquiry by asserting wide-scale claims for public interest immunity. Undoubtedly there exist powerful interests who would seek to frustrate any inquiry by asserting such claims. In order to counteract this risk it will be important that your report includes a recommendation that there should be strict adherence to the UN Principles and expressly recognising the concerns expressed herein. In particular, it should be emphasised that the inquiry and the family and its legal representatives must have access to all information relevant to the investigation.

7. As to the extent to which state authorities have been prepared to use PII as a means of preventing effective investigation of the use of lethal force by state agents, your attention is drawn to paras.149-151 of the judgment in McKerr (2) and the conclusion of the European Court at para.157 that the use of PII Certificates had the effect of preventing the inquest examining relevant matters. A copy of this judgment is attached as Annex 4.

8. Moreover, the Chief Constable of the PSNI, Hugh Orde, has admitted that the report by Sir John Stevens into the murder will not be published in full due to ‘intelligence issues’. (3) It is submitted that this reinforces the view held by the family that a full public inquiry is necessary to get to the truth and that it will be essential for your report to include recommendations along the lines suggested above.

CONCLUSION

9. For the above reasons it is submitted that you should recommend the following:

a. A full, independent, public judicial inquiry into all the circumstances surrounding the murder of Patrick Finucane;

b. That the inquiry be international in character;

c. That it strictly adheres to relevant international legal standards and in particular the UN Principles on Extra-Legal Executions;

d. That the family and its legal representatives shall have access to “all information relevant to the investigation”;

e. That PII Certificates will not be relied upon to prevent disclosure of any relevant information either to the Inquiry or to the family and its legal representatives

1. Principle 16 of the UN Principles on Extra-Legal Executions provides:“Families of the deceased and their legal representatives shall be informed of, and have access to, any hearing as well as all information relevant to the investigation and shall be entitled to present other evidence …”

2. [2002] 34 EHRR 20

3. Sunday Tribune – 2 February 2003

DATED: 7 February 2003

SEAMUS TREACY QC
PETER MADDEN SOLICITOR