Affidavit sworn by Peter Madden

IN 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 AND IN THE MATTER OF DECISIONS OF THE SECRETARY OF STATE FOR NORTHERN IRELAND

I Peter Madden, solicitor, of Madden & Finucane Solicitors, 88 Castle Street Belfast, aged 18 years and upwards make oath and say as follows:

  1. I am a partner in the above named firm with conduct of the Applicant’s case and am duly authorised to make this affidavit on her behalf.

 

  1. As the Respondent’s affidavits and exhibits in this application make clear a number of issues fall to be determined by the court in relation to this case. These include the following

 

  1. a) whether the Government intends to implement Judge Cory’s recommendation;
  2. b) whether the stated reasons for the failure to implement Judge Cory’s recommendation are the true reasons;
  3. c) whether the stated reasons for the failure to implement Judge Cory’s recommendation are proper reasons having regard to, inter alia, the advice and/or views received by the Government from various agencies and the sources of that advice and/or views.

 

  1. The decision made by the Secretary of State is sought to be impugned on a number of grounds including

 

  1. a) The decision of the Secretary of State refusing to establish a public inquiry without delay is motivated by bad faith.

 

  1. b) The expressed reason for refusing to establish the inquiry is not the true reason.

 

  1. c) The Secretary of State is party to an attempt “to try to block a public inquiry”;

 

  1. d) The Secretary of State erred in failing to obtain independent advice;

 

  1. e) The involvement of the DPP in tendering advice vitiates the decision-making process for lack of independence;

 

  1. f) Insofar as the Secretary of State relied on advice from the Attorney General in reaching his decision, that decision is vitiated for lack of independence;

 

  1. In response to the application the Respondent has filed three affidavits. All three have been sworn by Sir Joseph Pilling, the Permanent Under Secretary in the Northern Ireland Office and not by the respondent the Secretary of State for Northern Ireland.

 

  1. The respondent has refused to provide the court with a direct answer to the question of whether the government intends to comply with Judge Cory’s recommendation to hold a public inquiry into the murder of Patrick Finucane.

 

  1. In addition, the material before the court in relation to the decision not to implement Judge Cory’s recommendation is ambiguous in that it does not clearly state the reasons for this decision, the means by which that decision was arrived at or on what advice it was based.

 

  1. Further, there is material before the Court that suggests that such reasons as have been stated for the decision are not the true reasons. The Court is referred to the note of the meeting between the Finucane family and Sir John Stevens exhibited to the affidavit of Martin Finucane and which states inter alia as follows

 

“Peter Madden sought clarification about the other cases apart from Barrett.  He asked what impact the other 20+ cases that had gone to the DPP might have and whether Stevens could give an assurance that they would not have any impact on a public inquiry.  Phil James said he could not give a cast iron assurance but he believed the issues in relation to Pat Finucane that might arise in the other cases would be marginal to a public inquiry.  Peter Madden asked if this had been said in the letters in response to the Cory consultation, and John Stevens said it had.  Dave Cox explained that their letter had been in response to the government’s soundings once they had received the Cory reports.  They had felt that they were being encouraged to say that there was a whole string of prosecutions in the pipeline and that they were being used to try to block a public inquiry and they wanted to make sure that did not happen.

 

 

“Peter Madden said that he disagreed that Cory was the key, Stevens was.  He pointed out that Barrett was a member of a team.  John Stevens replied that so far as Pat Finucane’s murder was concerned, Barrett was the end of live lines of enquiry.  Stakeknife and other lines were being followed, but they would not affect Pat’s case.  Peter Madden said that FRU’s involvement with Pat’s murder would do so, and those cases were continuing.  Dave Cox assured him that they would not hold up a public inquiry.  Vince McFadden said that other peripheral matters may need investigation but they would not impinge on a public inquiry.  Peter Madden said that if this was so then they should be prepared to make it public.  John Stevens replied that he would see where they could go with that.  As far as he was concerned, any obstacle to a public inquiry should be over by September.  Peter Madden said they would argue that trials need not impede a public inquiry, relying on the Amnesty legal opinion, the ability of judges to ignore evidence given in voir dires, and so on.”

 

  1. Accordingly disclosure of documents relating to this aspect of the case are an indispensable aspect of the Applicant’s right to a fair trial. Furthermore having regard to the issues in the case the Respondent should have exhibited all material documents in any event to the affidavits.

 

  1. Cross examination of the Respondent is also an indispensable aspect of the Applicant’s right to a fair trial to enable her to test the Respondent’s assertions that the reason for the failure to comply with Judge Cory’s recommendation that a public inquiry should be held is “because there is an ongoing prosecution and the investigation by Sir John Stevens, that may result in further prosecutions, continues” (second affidavit of Sir Joseph Pilling at paragraph 2).

 

  1. By reason of the foregoing the Applicant submits that she is entitled to the relief sought in each of the summonses filed herewith.

 

 

 

Save as otherwise appears I depose to the foregoing from my own personal knowledge.

 

 

Sworn at

in the County of the City of Belfast

on the                  day of                                    2001

Before me a Solicitor Empowered to Administer

Oaths for the Supreme Court of Judicature in

Northern Ireland in and for the said County

 

…………………………………………………

 

 

This Affidavit is filed on behalf of the Applicant by her Solicitors Madden & Finucane 88 Castle Street Belfast