Judgment: approved by the Court for handing down
|(subject to editorial corrections)|
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
IN THE MATTER OF AN APPLICATION BY GERALDINE FINUCANE
 In this matter the applicant seeks the following relief:
(a) An order of mandamus compelling the Secretary of State to inform the applicant whether or not the Government intends to implement the recommendation of Justice Cory for a public inquiry into the murder of Patrick Finucane;
(b) An order of mandamus compelling the Secretary of State to establish a public inquiry into the murder of Patrick Finucane;
(c) An order of mandamus compelling the Secretary of State to establish without further delay a public inquiry into the murder of Patrick Finucane;
(d) A declaration that the applicant is entitled to be informed that the Government intends to implement the recommendation of Justice Cory for a public inquiry into the murder of Patrick Finucane.
 The current matter for determination before the court is an interlocutory application by the applicant in which she seeks an order pursuant to Order 24 Rule 3(1) for discovery and inspection of documents relevant to the judicial review. The following specific documents are sought:
(i) All documents howsoever described and whenever made arising out of or connected with the “process” carried out by the Government following delivery to the Secretary of State for Northern Ireland of Judge Cory’s report into the murder of Patrick Finucane whereby the Government requested views and/or advice from a variety of persons and/or agencies on that report. Without prejudice to the generality of the foregoing the applicant specifically seeks:
(a) any documents relating to views and/or advice received from the Attorney General;
(b) any documents relating to views and/or advice received from Sir John Stevens and/or his team of investigators;
(c) any documents relating to views and/or advice received from the Director of Public Prosecutions in Northern Ireland.
 In addition the applicant seeks an order pursuant to Section 18(2)(a) of the Judicature (Northern Ireland) Act 1978 requiring Mr Paul Murphy MP, Secretary of State for Northern Ireland to attend to give oral evidence and produce all necessary documents. Further and in the alternative she seeks an order requiring Sir Joseph Pilling to attend to give oral evidence and produce all necessary documents. Further and in the alternative she seeks an order pursuant to Order 53 Rule 8 and Order 38 Rule 2(3) directing that Sir Joseph Pilling attend at the Royal Courts of Justice for the purpose of submitting to cross-examination in respect of his affidavits filed in this matter.
The factual background
 Each interlocutory application is grounded on an affidavit sworn by Peter Madden solicitor of Madden and Finucane, solicitor who has conduct of the applicant’s case. (Hereinafter called “the Madden affidavit”).
 The background to this case arises out of the murder of Patrick Finucane on 12 February 1989. On 21 October 2001, as a result of the multi-party talks in Weston Park, the Government announced in Parliament that a judge of international standing would be appointed to investigate inter alia allegations of security force collusion in loyalist paramilitary killings including that of Patrick Finucane. The former Canadian Supreme Court judge Justice Peter Cory was appointed by the Government on 29 May 2002, and he delivered his report into the killing of Patrick Finucane to the Secretary of State for Northern Ireland on 7 October 2003. On 13 January 2004 the applicant applied for judicial review of the decision of the Secretary of State for Northern Ireland not to publish the report by Justice Cory at that time. Thereafter on 1 April 2004 the report by Justice Cory into the death of Patrick Finucane was published and in the House of Commons debate that followed publication the Secretary of State set out the steps that the Government proposed to take in response to Justice Cory’s recommendations. In the course of that statement to the House of Commons, which is exhibited to an affidavit from Sir Joseph Pilling of 7 April 2004 the following extracts appear.
“I am today publishing the four reports that were presented to the British Government – those relating to Pat Finucane, Robert Hamill, Rosemary Nelson and Billy Wright. …
Since we received the judge’s reports we have had to consider most carefully a number of important issues, as we said we would in the judge’s terms of reference: national security, the protection of life, the criminal justice process and fairness to those named in the reports. ….
The Governments stand by the commitment that we made at Weston Park. In the Wright case there are no outstanding investigations or prosecutions and the inquiry will start as soon as possible. ….
In the Finucane case, an individual is currently being prosecuted for the murder and the police investigation by Sir John Stevens and his team continues. It is not possible to say whether further prosecutions will follow, and the conclusion of the criminal justice process in that case is thus some way in the future. For that reason we will set out the way ahead at the conclusion of prosecutions.”
The Secretary of State then went on to state that in both the Hamill case and the Nelson case the inquiries would begin as soon as possible.
 In relation to the Finucane case the Secretary of State said:
“I recognise that the requirement in the Finucane case to wait until criminal proceedings are complete will disappoint some, but public interest demands that prosecutions should be pursued to their conclusion and that wrongdoers should be punished.”
Subsequently, in the course of a question put to the Secretary of State, the Secretary of State replied as follows:
“The Hon Gentleman will be aware that the Government made a pledge at Weston Park. It is important to honour the pledge and we stand by our commitment. …
If and when inquiries are concluded regarding people who would have been found culpable of collusion, it is also the Government’s duty to ensure they are charged if they have committed any crime. The Attorney-General assures me that the only issue that carried a difficulty with regard to a trial was the one regarding the case of Mr Finucane ….”
 On the same date, the Secretary of State wrote to the applicant in a letter(the” Geraldine Finucane letter”) exhibited to an affidavit of Peter Madden at “PM10” as follows:
“As you will be aware, I have today published in Parliament the reports of Justice Cory and the Government’s response to his recommendations. I enclose a copy of my statement to the House for your information.
In the case of your husband’s murder as you know an individual is currently being prosecuted for the murder. A police investigation by Sir John Stevens and his team has not yet been completed and it is not possible, at this stage, to say whether further prosecutions may follow. The conclusion of the prosecution process in this case may still be some way in the future. For that reason my statement explains that we will be better placed to set out the way ahead at the conclusion of prosecutions.
I realise that this will be a disappointment to you. However, the Attorney-General in his independent capacity as guardian of the public interest in the administration of justice, has taken the view that if an inquiry were to be commenced before the conclusion of those proceedings there is a significant risk that it would no longer be possible to continue with the prosecution. In weighing the public interest I must take account of that risk.”
 In the Madden affidavit grounding this current interlocutory application, Mr Madden avers that a number of issues fall to be determined by the court in relation to this case including:
(a) Whether the Government intends to implement Judge Cory’s recommendation;
(b) Whether the stated reasons for the failure to implement Judge Cory’s recommendations were the true reasons;
(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 source of that advice and/or views. He goes on to aver that the decision by the Secretary of State is sought to be impugned on grounds which include that the decision of the Secretary of State to refuse to establish a public inquiry without delay is motivated by bad faith and that the Secretary of State is party to an attempt “to try to block a public inquiry”.
 In the course of Mr Madden’s affidavit, he made express reference to a document which has been at the centre of the issue at this hearing and which I must quote in extenso. The document in question was exhibited to an affidavit by Martin Finucane, the brother of the deceased’s solicitor, dated 21 April 2004 and was a note made by Jane Winter (“the Winter note”) of the NGO British Irish Rights Watch of a meeting that occurred between the Finucane family and Sir John Stevens and his team on 23 February 2004. According to the note, amongst those present at the meeting were Mrs Finucane and other members of the Finucane family, Peter Madden solicitor, Jane Winter, Paul Mageean, Sir John Stevens, DCS Dave Cox, Vincent McFadden, DCI Collette Paul and DCI Phil James. The last five named I understood to be members of the Stevens Inquiry. Extracts from that note, and which were analysed at length in the course of this hearing, included the following which I have numbered, but which are not numbered in the note itself. They are as follows:
(i) In response to Seamus Finucane’s description of Stevens as having been a political appointment, Dave Cox responded that Stevens 1 and 2 had put the first crack in the state, in relation to Brian Nelson, and that was why Stevens had been appointed again to do Stevens 3. He said that it had been difficult for them to operate without any contact with the family. He also said that, as part of the consultations, they had put letters in place to stop them being used to block a public inquiry. The only case that impinges on a public inquiry into Pat Finucane’s case is the Barrett trial.
(ii) Geraldine Finucane asked if Cory was published and the media started referring to other prosecutions, would the Stevens team be prepared to say that those prosecutions did not impinge on Pat’s case. David Cox replied that they could quite confidently say that the only impediment to a public inquiry is the Barrett case. They have already said this in writing and the response to the consultations following the delivery of the Cory report.
(iii) Michael Finucane pointed out that the Government has made public statements saying that it believes that the perpetrator should be brought to justice and that prosecution should be pursued even to appeal.
(iv) John Stevens repeated that if there is a public inquiry it would be the Stevens team who feed information about Pat. There is no one else who can do so.
Seamus Finucane asked whether they could not say that a public inquiry could run in parallel with the Barrett trial. John Stevens replied that the advice they had received from the Attorney-General and the DPP was that Barrett was an obstacle. David Cox added that they needed to be seen as impartial, but that did not mean that they were the family’s enemy.
(v) Peter Madden sought clarification about 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 and the 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 they were being encouraged to say 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.
(vi) 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 inquiry. 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 the 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.”
The applicant’s argument
 Mr Treacy in the course of a skeleton argument ably augmented by oral submissions to me made in substance the following points:
(i) The court can order discovery or cross-examination whether there is some proper factual issue requiring resolution (such as would be crucial to whether or not there is a ground for judicial review) or some proper basis for doubting in a relevant respect the accuracy or completeness of the evidential picture. He drew my attention to the judgment of Kerr J (as he then was) In the Matter of an Application by Jean McBride for Judicial Review(unreported reference KERF3689 17 4 02).At page 36 the judge said;
“The level of intensity of review must depend on the nature of the interest involved and the type of decision that requires to be taken.”
The context of an impugned decision is at least therefore of substantial significance in any assessments of its validity. In this case Mr Treacy reminds me that the case made on behalf of the applicant is of collusion on the part of servants and agents of the state in the murder of a solicitor, an officer of the Supreme Court. He argues that this has already been the conclusion of the Stevens report. He submits that the applicant harbours reasonable and well-founded suspicions that an attempt is being made on the part of government to block an inquiry into the death of her husband and to that end the contents of the Winter note underline attempts being made to ask the Stevens inquiry to fall into line in the quest to prevent a public inquiry. Hence, he argues, it is crucial to the case being made by the applicant that discovery of that correspondence from the Stevens team should be disclosed. The respondent attacks the weight that should be ascribed to that Winter note on the basis that it relies on hearsay evidence, the authors of the statements contained therein have not sworn affidavits and they are not parties to these proceedings. Accordingly Mr Treacy says that it would be injustice to allow the effect of this document to be diluted by virtue of a failure to disclose the letters emanating from the Stevens team which would have served to throw a great deal light on the veracity of the contents of the Winter note.
(ii) Mr Treacy argued that for all intents and purposes the case of the respondent is predicated on the basis of advice which allegedly came from the Attorney General. He draws attention to the fact that the sole source of this argument emanates from the following sources. First the statement of the Secretary of State in the House of Commons which, Mr Treacy argues, did not refer to any advice from the Attorney General in the primary statement made before he was questioned. Second the Geraldine Finucane letter of 7th April 2004.Counsel submits that this letter subtly mentions the issue of future prosecutions in the penultimate paragraph without reference to the Attorney’s advice but refers to the singular prosecution of Barrett in the final paragraph when reference to the Attorney’s advice is made. This grounds counsel’s case that the evidence is that the Attorney’s advice at best is relevant only to the prosecution of Barrrett and that the extra reference to other prosecutions is part of the government attempt to strengthen the attempt to frustrate the holding of an enquiry .Hence the relevance of the Winter note. Thirdly a letter emanating from the third affidavit of Sir Joseph Pilling dated 27 April 2004 which exhibits a letter dated 23 May 2003 written by the Attorney General to the then Chairman of the Bar of England and Wales outlining the Attorney’s views in respect of the prosecution process. It is Mr Treacy’s submission that the absence of any up-to-date opinion from the Attorney General relied on by the Secretary of State in coming to a conclusion that the Finucane public inquiry should not immediately be instigated, particularly in light of the letter sent to Mrs Finucane of 7 April 2004, renders it necessary that in the interests of the justice there should be disclosed any documents relating to views and advice received from the Attorney-General to the Secretary of State.
(iii) The Winter note refers to Sir John Stevens indicating they had received advice not only from the Attorney-General but also the DPP that the Barrett prosecution was an obstacle. Mr Treacy submits that the role of the Director of Public Prosecutions in this whole process is an integral part of the application. He draws attention to the affidavit of Maggie Beirne dated 10 May 2004. This deponent is the Director of the Committee on the Administration of Justice a Belfast human rights group which actively campaigned for public inquiries in the four cases in question. She avers in her course of her affidavit that a key element of the inquiry is the role of the DPP and the prosecutorial decisions reached in the Finucane case. Given the challenge to the role and independence of the DPP in this process Mr Treacy’s case is that the reference to advice received from the DPP outlined in the Winter note raises a crucial issue. It is his argument that justice requires that if advice was received from the DPP, then disclosure should be made of the terms of that advice given the allegations that surround the alleged lack of independence of the DPP in this matter. In brief Mr Treacy alleges that the DPP is not an independent source and yet advice was apparently forthcoming from that source which may have influenced the decision of the Secretary of State in this matter.
The respondent’s argument
 Mr McCluskey QC, in the course of a closely argued skeleton argument again augmented by oral submissions before me, in essence made the following points:
(i) He reminds me that the fundamental rule in judicial review proceedings is that discovery of documents is neither made nor ordered as a matter of right and that, on the contrary, the courts jurisdiction to make a discovery order is heavily circumscribed by a series of well established tests and criteria. In consequence, he submits that discovery orders in this sphere of litigation are rare and only sparingly made. It is his submission that the applicant must positively establish, by reference to any admissible and reliable piece of evidence, some specific inaccuracy or inadequacy in the respondent’s affidavits before disclosure can be made. He invites the court to critically analyse the quality, substance and depth of the material on which the applicant relies on for this application.
(ii) In relation to the Winter note, he draws attention to the statements by the members of the Stevens inquiry that the Barrett trial could well be an impediment and argues that any comments relied on as having emanated from DCS Cox are expressions of that person’s own perception of events and are not made by any servant or agent of the respondent. In essence he submits there is nothing in that note which reliance could found a conclusion that the evidence relied on by the deciding authority is in some respects incorrect or inaccurate. He argues that any genuine concerns that may be harboured by the applicant do not constitute a test for disclosure. Any statements by members of the Stevens team are the views of third parties who are not law officers and do not have the responsibility of looking at the broader picture in the manner required by government
(iii) As far as the Attorney-General’s advice is concerned, Mr McCloskey draws my attention first to the fact that the Secretary of State did expressly refer to the advice of the Attorney-General when addressing Parliament in answer to a question by a member of Parliament .Secondly he argues that the Geraldine Finucane letter is a straightforward and practical analysis of the issues then outstanding made without any devious intent. Thirdly he submits that the letter exhibited in the third affidavit of Sir Joseph Pilling containing the views of the Attorney-General was expressly provided to Justice Peter Cory so he might be aware of the Attorney’s views in respect of the prosecution process and indeed was expressly referred to by Judge Peter Cory in his report. He therefore concludes that there are sufficient and current views of the Attorney-General in evidence and the weight to be attributed as they stand falls to be determined at the substantive hearing.
(iv) Turning to the request for disclosure of advice from the DPP he argues that this essentially is founded on the affidavit of Ms Maggie Beirne dated 10 May 2004 and is based on speculation and opinion. Mr McCloskey rhetorically asks as to the relevance of the DPP in the issue of disclosure at this stage. He stoutly argues that this is a matter to be raised and determined at the substantive hearing. If it is established that there was consultation with a Director of Public Prosecutions who lacked independence or was partial then that may be a cogent factor is in the case. He asks what more therefore is needed to determine that issue other than the material before the court .The fact that it may be an issue does not permit a fishing exercise to gather through disclosure more documents from the Director.
 I shall commence by stating certain principles which are well settled by decisions of high authority and essentially were not in dispute before this court:
(i) Re McGuigan’s Application (1994) NI 43, Re Rooney’s Application (1995) NI 398 and In the matter of an application by Belfast Telegraph Newspapers Limited for Judicial Review (2001) NICA 20(the Belfast Telegraph case) are all authority for the proposition that where an applicant for discovery in judicial review proceedings is unable to point to any material which suggests that the respondent’s affidavit was incorrect or insufficient, but wish to obtain discovery in the hope that discovery would provide material to enable him to attack the accuracy or good faith of the affidavit, discovery would not be ordered on such a contingency basis.
(ii) These cases are also authority for the proposition that discovery in judicial review proceedings is different from discovery in an action commenced by writ. Judicial review disclosure is granted on a much more limited basis that in an ordinary action. That is because judicial review is not a fact finding process but is concerned with the way a decision is reached rather than whether the decision was correct. It was for this reason that discovery was not to be ordered pursuant to RSC (NI) 1980 Ord 24, r 9 if it was not necessary for disposing fairly of the matter. The onus rests on the applicant approving that a responded has acted improperly and must point to material that suggests that the responded has acted improperly in coming to a decision. Merely suspecting impropriety is not a sufficient ground for disclosure or for disposing fairly of the case.
(iii)In the Belfast Telegraph case Carswell LCJ (as he then was) set out the principles for discovery in judicial review cases at pages 7 and 8. In that case the Court of Appeal determined that the decision-making process being scrutinised (namely the Equality Commission statutory investigation) did not engage Article 6 of the European Convention on Human Rights as now applicable under the Human Rights Act 1998. At page 11 Carswell LCJ said:
“The investigation itself would not determine any lis between the company and the Commission or between the company and the employees who complained of discriminatory treatment. It would at most lead to the making of a report and possibly recommendations under Article 60 of the 1976 Order neither of which would determine any rights though they might cause others to take action leading to such a determination. I accordingly do not consider that Article 6 applies to the present proceedings.”
I consider that Mr McCloskey is right in submitting that the same reasoning basically applies to the present case and that the onus does rest on the applicant in this case to demonstrate a material inaccuracy or inadequacy in the respondent’s affidavits and therefore needs materially to show that the evidence relied on by the respondent is inaccurate or false. Merely to allege improper motive or to raise suspicions is inadequate.
(iv) On an application for judicial review there is usually no disclosure because it is the obligation of the defendant public body in its evidence to make frank disclosure to the court of the decision-making process (see R v Secretary of State for the Home Department ex p Fayed (1998) 1 WLR 763 at 775C).
(v) Whilst the reluctance to become embroiled in the factual disputes and judicial review is accompanied by a generally restrained attitude to the ordering of disclosure (see “Judicial Review Handbook” Michael Fordham 3rd Edition at para 19.4) nonetheless the courts can make such orders where justice requires it provided some proper factual issue requiring resolution has been produced or there is some proper basis for doubting in a relevant respect the accuracy or completeness of the evidential picture.
 The court has a wide discretion as to what interlocutory directions including orders for disclosure are appropriate on the facts of each particular case (see R v Inland Revenue Commissioners ex p National Federation of Self Employed and Small Business Limited (1982) AC 617 at p. 638F but I have approached this case on the basis of the principles that I have herein set out.
 I have come to the conclusion that there is merit in Mr Treacy’s
submission that I should order disclosure of the documents sent to the government from Sir John Stevens and/or his team of investigators referred to in the note exhibited to the affidavit of Martin Finucane dated 21 April 2004 relevant to the setting up of a public inquiry into the death of Patrick Finucane and which were communicated by Sir John Stevens and his team as part of the consultations undertaken by the government in relation to the Cory report. For the removal of any doubt, I order disclosure in particular of such communications as are referred to in paragraph 3(b) and 3(e) of the affidavit of Martin Finucane dated 21 April 2004. I have come to this conclusion for the following reasons:
I consider that the issues in this case demand a very high level of intensity of review given the nature of the interests involved and the type of decision that is required to be taken. The applicant’s case, inter alia, is that the Government is deliberately attempting to frustrate the holding of a public inquiry into the death of Patrick Finucane. One issue relevant to this is clearly whether or not there is evidence, as suggested in the Winter note, that members of the Stevens inquiry 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 in the face of opposition from the members of that inquiry. Thus there are grounds for argument that the approach adopted by the respondent and the evidence relied upon by the deciding authority not to hold a public inquiry is in some respects incorrect or inadequate. The respondent seeks to challenge the weight of the assertions in the Winter note . I consider that there is a clear risk of injustice not to say denial of the requirements of logic and fairness if these communications were not produced in the hope of establishing the true facts one way or another. I make this order not simply because the applicant would justifiably otherwise entertain a smouldering sense of injustice, but because in my view it is necessary for the fair disposal of this case and justice requires it be done. This order is of course without prejudice to the right of the respondent to raise any issue of public interest immunity arising out of my order or to apply to delete irrelevant parts of the communications .
(ii) I have come to the conclusion that I should not accede to the applicant’s request for disclosure of documents relating to views and/or advice received from the Attorney-General. I have come to this conclusion for the following reasons:
Whilst the need for very close scrutiny of this case as a whole remains, I have determined that there is sufficient material before me to allow me to decide any issues arising out of the absence or presence of advice from the Attorney General without further disclosure. The issues in this matter are tolerably clear. Sir Joseph Pilling’s affidavits make it clear that the Secretary of State was relying at least to some material extent on advice given by the Attorney-General. The third affidavit from Sir Joseph Pilling exhibits the views of the Attorney-General at a given time and circumstance. The issue as to whether or not that is sufficient to sustain the respondent’s case is a matter to be determined at the substantive hearing. The applicant is perfectly entitled to comment on the absence or presence of such advice and as to its relevance, currency or antiquity as the case may be .Similarly any inadequacy or alleged duplicity in the Geraldine Finucane letter can be explored at that hearing. It is not for this court to direct the proofs of any party. Nor is it for the applicant to do so either. I find nothing in the issues surrounding the question of advice from the Attorney-General on the papers before me which suggests that the evidence relied on by the deciding authority in this instance is necessarily incomplete, incorrect or inadequate and accordingly it would be improper for me to order any further disclosure in this context.
(iii) I have come to the conclusion that I should not accede to the application of the applicant to disclose any documents relating to views and or advice received from the Director of Public Prosecutions in Northern Ireland. I have come to this conclusion for the following reasons:
I am again conscious of the need to give this case the closest scrutiny, but I find no proper basis at this stage for doubting in any relevant respect the completeness, correctness or adequacy of the evidential picture with reference to the involvement of the Director of Public Prosecutions in this matter. The applicant, at the substantive hearing, may raise questions concerning the relevance of any input from the Director of Public Prosecutions in this matter, the nature of any consultation with him and any issue of his independence. All of that is open to the applicant at the substantive hearing provided the test of relevancy is satisfied. Mere mention of advice given in the Winter note coupled with the contents of Miss Beirne’s affidavit are in my view insufficient to persuade the court at this stage that the evidence relied on by the respondent in that regard is in some respect incomplete, incorrect or inadequate or that justice demands the disclosure of any such advice.
Accordingly I am satisfied that it is not necessary to order such disclosure to dispose fairly of this case and I am unpersuaded at this stage of the proceedings that the applicant has been able to positively identify material outstanding or undisclosed relevant to the DPP which suggests that the respondent has acted improperly in making the impugned decision.