Subcommittee of the Committee on Foreign Affairs On Africa, Global Health, Global Human Rights, and International Organizations

On Wednesday May 15th 2013, Michael Finucane, eldest son of murdered human rights solicitor Patrick Finucane, will address the US House of Representatives Committee on Foreign Affairs. The focus of his testimony will be recent developments in the investigation of the murder of Patrick Finucane.

The Sub-Committee on Africa, Global Health, Global human rights, and International organisations is chaired by Rep. Chris Smith (NJ) who has commented as follows;

“As part of the peace process, the British government freely committed to a judicial inquiry into government collusion in the murder of Irish human rights lawyer Pat Finucane. Yet it refuses to deliver on the commitment, and so the controversy continues. This hearing will inform Congress on the current status of the collusion case an advisor to Prime Minister Cameron recently called, ‘the big one.’”

Speaking ahead of his testimony, Michael Finucane stated:

“It is with enormous gratitude that I take up the invitation afforded to my family to update the House on recent developments concerning the murder of my father Patrick Finucane. I intend to give a comprehensive update to US politicians who have followed our case closely over a considerable period of time, and who’s support have ensured that the promise of an inquiry to my family by the British government is one that will ultimately be fulfilled.

I intend to provide them with my family’s response to the recent de Silva Review, and also update them on the startling revelations which have arisen as a result of our disclosure requests in our ongoing judicial review proceedings against the British government.”

Statement of Michael Finucane

Statement of Brigadier General James P. Cullen, USA

Statement of Jane Winter, former Director of British Irish Rights Watch

Executive summary

Despite a forthright, if belated admission, by Prime Minister David Cameron that there was collusion in the 1989 murder of Patrick Finucane, Geraldine Finucane and the whole of the Finucane family have had a very long battle for justice which is not over yet. That battle is detailed in Appendix A to this submission.

This submission analyses the report of the Patrick Finucane Review, carried out at the request of the Prime Minister by Sir Desmond de Silva QC.

It will address the following points:

there was no need for the de Silva Report
· there is a compelling case for a full, judicial, independent public inquiry

· such an inquiry has been endorsed by the US Congress, by President Obama, by the Irish government and the United Nations, among many others

· the UK government has already held six lengthy and costly investigations and yet there remain unanswered questions

· successive UK governments have broken the guarantee of an inquiry included in the 2001 Weston Park agreement

the report is not human rights-compliant
· the European Court of Human Rights has already ruled that there has been no effective investigation into the murder

· the de Silva Report fails to meet the criteria laid down by the Court for such an investigation

there are some serious flaws in the report
· Sir Desmond was not required or empowered to make recommendations

· he nonetheless reaches the conclusion that there was no “over-arching conspiracy”, thus misunderstanding the nature of collusion which the UK government admits took place

· he has missed three crucial aspects of the case: he has misunderstood the guidance available on agent-handling and its adverse impact on the detection and prevention of crime; he has omitted to investigate the fact that British army intelligence tampered with evidence; and he underplays the role of the intelligence service in the case

· crucially, he absolves successive government of responsibility for both the murder and the subsequent cover-up, in the teeth of the evidence

nevertheless, the report adds to our knowledge of the murder of Patrick Finucane
· he has put into the public domain important details about the failure to warn Patrick Finucane of threats to his life

· he has confirmed that 85% of the UDA’s[1] intelligence came from the security forces

· he has clarified the role of some of those loyalists involved in the murder

· he has added to what was already known about one of the murder weapons

· he has shed light on the briefings given to a government minister prior to the murder

· however, the only real value in his report is that it confirms collusion, vindicates Patrick Finucane, and in itself makes a compelling case for a public inquiry.

Introduction

I thank this honourable Subcommittee for accepting this submission, which I humbly request be read into the record of your proceedings. I especially thank the Chairman, Representative Chris Smith, for his enduring interest in and support for human rights in Northern Ireland and in Patrick Finucane’s case in particular.

I have worked with the family and lawyers of the murdered lawyer Patrick Finucane since 1990.

Despite a forthright, if belated admission, by Prime Minister David Cameron that there was collusion in the 1989 murder of Patrick Finucane, Geraldine Finucane and the whole of the Finucane family have had a very long battle for justice which is not over yet. That battle is detailed in Appendix A to this submission. She, her family, and her lawyers are to be commended for their courage and determination to expose the truth about Patrick Finucane’s death and their dedication in seeking justice in his name.

In summary, this submission will address the following points:

there was no need for the de Silva Report;
the report is not human rights-compliant;
there are some serious flaws in the report;
nevertheless, the report adds to our knowledge of the murder of Patrick Finucane.

THE DE SILVA REPORT WAS UNNECESSARY

From the moment it became apparent that Patrick Finucane’s murder was not simply an attack by loyalist paramilitaries but that it involved collusion on the part of the army (in particular, the Force Research Unit, or FRU), the police and the intelligence service (MI5), the Finucanes have been calling for a public inquiry. They were quite right to do so. For the state to be involved in the murder of a lawyer, especially in a developed democracy such as the United Kingdom, is exceptionally serious and is a matter of public interest and concern.

Every single individual and body that has considered Patrick Finucane’s case – and they are legion – has concluded that only a public inquiry will meet the case. The Unites States Congress, the Irish Government, and the United Nations have all called for a public inquiry and President Obama, during his first candidacy, made a similar call.

The British government itself has instigated no less than six investigations into the murder: three by Lord Stevens; the internal Langdon report, commissioned by then Secretary of State Mo Mowlam in response to BIRW’s 1999 report Deadly Intelligence; one by Judge Cory; and now the de Silva Report. Many millions of pounds of public money have been spent and many years wasted by successive governments in depriving the Finucanes of the public inquiry they so patently deserve, on the grounds that public inquiries are costly and time-consuming! In the 23 years that I have worked on the Finucane case I have come to the conclusion that there has been no public inquiry because, despite all that is now known about the Finucane murder, there remains something so shameful that governments are determined to hide it at any cost. Although I cannot by definition know what is being kept secret, it is my considered opinion that the most likely matter that remains undisclosed is the level at which there was prior knowledge of the murder and explicit or implicit sanction of it by those in authority.

Crucially, the de Silva Report overlooks the fact that the British government undertook, as part of the Weston Park Agreement reached with the Irish government in 2001, to submit Patrick Finucane’s case, among others to the independent scrutiny of a judge of international standing (who turned out to be Judge Cory), and, if he recommended a public inquiry, to instigate one.[2] Successive governments have broken this promise, although it has been honoured in all the other cases – indeed, the lengthy and expensive public inquiry into the deaths in Ireland of RUC officers Buchanan and Breen is still on-going, showing the Irish government’s faithful commitment to the Agreement. It is also significant that during the judicial review proceedings brought by Geraldine Finucane advice to the Prime Minister from the Cabinet Secretary was disclosed which said, “Surely you are not going to ignore the International Agreement?” Instead of the public inquiry recommended by Judge Cory, and endorsed by the American and Irish governments and the United Nations, the Finucane family have been given lies, delay and anguish for 24 years.

The de Silva Report was unnecessary because the case for a public inquiry is so plain – and was so before he wrote his report – and because, although he has placed some new information in the public domain, it amounts to very little in itself and it is certain that a public inquiry would subject even more information to public scrutiny.

Furthermore, the de Silva process has significantly added to the delay in obtaining a public inquiry.

THE DE SILVA REPORT WAS NOT HUMAN RIGHTS-COMPLIANT

As long ago as 2003 the European Court of Human Rights ruled that Patrick Finucane’s murder had not received an effective investigation, which the Court has ruled is an integral procedural right deriving from the right to life, as conferred by Article 2 of the European Convention on Human Rights.

The European Court of Human Rights has distilled the following element in such an investigation:

· where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, the burden of proof rests on the authorities to provide a satisfactory and convincing explanation[3]
· ARTICLE 2covers unintentional as well as intentional deprivation of life[4]
· the investigation must be capable of determining whether use of force was justified[5]
· it must lead to the identification and punishment of those responsible[6]
· sufficient public scrutiny is required to secure accountability[7]
· the legitimate interest of the next of kin is to be protected by their involvement[8]
· the payment of damages alone are not enough to meet the requirement for an effective investigation[9]
· reasons are to be given for any non-prosecution of perpetrators[10]
· civil proceedings, criminal trials and inquests are not adequate to provide an effective investigation[11]
· deprivations of life must be subjected to the most careful scrutiny, taking into consideration all the surrounding circumstances[12]

· the authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident[13]

· there must be an effective official investigation when individuals have been killed as a result of the use of force. The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibility[14]

· a prompt response is essential [15]

· the authorities must act of their own motion, once the matter has come to their attention; they cannot leave it to the initiative of the next of kin[16]

· the persons responsible for and carrying out the investigation must be independent from those implicated in the events[17].

This investigative duty was summarised by Lord Bingham in the House of Lords case in Amin:

“To ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost a relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others.”[18]

Without examining each of these elements in turn, it is evident that the Patrick Finucane Review did not meet the criteria for an effective investigation. It has not led to the identification and punishment of those responsible for the murder. There has been no public scrutiny. The Finucane family were not involved in the process, and were not allowed to examine the documents seen by de Silva or to examine any witnesses.

If follows that, by no stretch of the imagination, can the de Silva Report be said to provide an adequate substitute for a public inquiry.

Although the de Silva Report purports to deal with many issues that a public inquiry might consider, it has not been able to provide the satisfactory and convincing explanation required by Article 2, because the process by which the report was produced was not transparent.

It is a further matter of concern that, despite the fact that the Patrick Finucane Review drew, as its terms of reference recognised, on a “extensive investigations that have already taken place” – including the three Stevens investigations, Judge Cory’s investigation, and an adjudication by the European Court of Human Rights – new evidence came to light which has not been available to any of these previous investigations. For instance, de Silva says:

“However, although the volume of material already collated by Sir John [now Lord] Stevens was enormous, I decided at the outset of my Review that it was important to conduct a far more wide-ranging process than a straightforward examination of the available evidence gathered by the criminal investigations. I have, therefore, sought and received new documentary material from all the organisations cited in my Terms of Reference and a number of Government Departments. That material has included new and significant information that was not available to Sir John Stevens or Justice Cory.”[19]

Later he says:

“The European Court of Human Rights found in 2003 that the UK Government had breached its procedural obligations under Article 2 of the ECHR by failing to carry out an adequate official investigation into the murder. Additional material that was not available to the Court further highlights the importance of this finding.”[20]

As his terms of reference promised, de Silva was told:

“The Review will have full access to the Stevens archive and all Government papers, including any Ministry of Defence, Security Service, Home Office, Cabinet Office or Northern Ireland Office files that you believe are relevant.”

However, similar promises were made to his predecessors. John [now Lord] Stevens, was told in the terms of reference for his first investigation:

“I confirm that you will receive total support from all levels within the

Royal Ulster Constabulary during the course of your investigation.”[21]
A similar promise was made in relation to his third investigation:
“In this matter you will have unlimited access to all intelligence and information available to and all files held by the RUC.”[22]

Judge Cory was also told:

“The two Governments are keen to see rapid progress. To this end, we shall make the relevant material available to you as soon as possible. It is the Governments’ policy that public servants should co-operate fully and provide full access to all the papers.”[23]

Sir Desmond has published 329 pages of previously secret documents, many of them heavily redacted, in Volume 2 of his report, but he inherited from Stevens alone “12,000 witness statements, 32,000 documents and, in all, over a million pages of material”[24]. What has been disclosed is therefore a tiny fraction of what is available.

Given that Judge Cory saw papers never seen by Lord Stevens, and Sir Desmond has seen papers seen by neither of them nor the European Court of Human Rights, the question arises as to how the public can have confidence that any reviewer, including Sir Desmond, has seen all that is relevant. Furthermore, since the public has never seen the vast majority of the available material, how can it be confident that the state has given the satisfactory and convincing explanation required of it by Article 2?

THERE ARE SERIOUS FLAWS IN THE DE SILVA REPORT

One of the most obvious flaws in the de Silva Report is that he makes no recommendations. This, however, is not his fault. His terms of reference did not require or empower him to do so. It is difficult to escape the conclusion that, given some of Sir Desmond’s findings, and taking his good faith for granted, had he been able to do so, he would have recommended a public inquiry.

Even though he was not invited to make recommendations, Sir Desmond does come to conclusions, and they are not always correct. In particular, his conclusion that,

“My Review of the evidence relating to Patrick Finucane’s case has left me in no doubt that agents of the State were involved in carrying out serious violations of human rights up to and including murder. However, despite the different strands of involvement by elements of the State, I am satisfied that they were not linked to an over-arching State conspiracy to murder Patrick Finucane.”[25]

It would appear, then, that Sir Desmond’s definition of state collusion goes beyond collusive acts, however many of them there may have been, on the part of agents of the state to require “an over-arching State conspiracy”.

It is submitted that this is a flawed approach. If any agent of the state engaged in unlawful or improper activity which contributed in any way to Patrick Finucane’s murder, then as a matter of human rights law the state must bear responsibility and must be held to account. The term “collusion” is merely a shorthand for such activity, and whether an action is unlawful or improper is a matter of fact. It would be a mistake to import into the consideration of what part was played by the state in Patrick Finucane’s murder the notions of motivation or conspiracy, notwithstanding the fact that a future public inquiry may indeed come to findings of conspiracy.

The de Silva Report also misses three crucial pieces of information. First, he maintains that the RUC [the Royal Ulster Constabulary, or Northern Ireland police] had no adequate guidance on handling agents and informers.

The only guidance available, according to the Report, was the Home Office Consolidated Circular to the Police on Crime and Kindred Matters, which was re-issued in 1986 but was essentially unchanged since 1969. This guidance was not followed in Northern Ireland because the RUC regarded it as inadequate for dealing with terrorist crime.[26]

Something which Sir Desmond inexplicably omits to mention is the Walker Report. In 1980 the then Chief Constable of the RUC, John (later Sir John) Hermon, commissioned a report[27] on the interchange of intelligence between Special Branch[28] and CID, the ordinary criminal investigative branch of the RUC. The report was written by Patrick Walker, a senior MI5 intelligence officer in Northern Ireland who later became the head of MI5[29]. In reality, it is likely that, with the consent and co-operation of the Chief Constable, MI5 was the driving force behind an initiative to streamline and control intelligence-gathering and agents within the RUC. The Walker Report’s recommendations were implemented with effect from 1st March 1981. The report laid down the following arrangements:
· CID must share all it knew about agents with Special Branch[30]
· no RUC or army agents could be arrested in a pre-planned arrest without Special Branch approval[31]
· CID could not recruit anyone as an agent without involving Special Branch at an early stage[32]
· all agents were to be handled by Special Branch, or where that was impossible, jointly by CID and Special Branch[33]
· CID officers were encouraged to regard interviews of suspects as opportunities for gathering intelligence, if necessary prolonging the interviews for this purpose, and to involve Special Branch in interviews where intelligence was likely to be gathered[34]
· Special Branch briefings for CID could withhold information in order to protect intelligence sources[35].

These guidelines effectively gave Special Branch supremacy over CID. The effects on policing in Northern Ireland were devastating. Gathering and controlling intelligence took priority over the detection and prevention of crime, instead of being put at the service of these functions. The need to recruit, and then keep in place, informants meant that some agents were allowed to participate in crimes without being prosecuted, while other criminals were also granted de facto impunity in order not to blow agents’ cover.

Sir Desmond makes much of the fact that the RUC were pressing for guidance on agent-handling throughout the 1980s. However, Assistant Chief Constable Blair Wallace in a note to the Chief Constable dated 27th June 1989 gave a cogent picture of the reality of the situation:

“This is a very ‘hot potato’ as far as the NIO are concerned. Their mainland colleagues wash their hands of the matter as it does not particularly concern them at the moment, and the legal people seem to be reticent, to say the least, to become involved in formulating a system, despite the fact that what actually goes on is known or assumed by many. Legally they are not being asked to condone the commission of a crime any more so than in the present Guidelines. The requirement is for recognition that informants on terrorist activities must be involved in criminality otherwise they would not be useful informants.”[36]

While Sir Desmond suggests that guidance was necessary to demarcate the line between responsible intelligence-gathering and illegality, the RUC appeared to be more concerned, as was FRU, that its officers should not be prosecuted for the crimes of their informants, or, indeed, their own crimes.

Secondly, while Sir Desmond correctly concludes that Brian Nelson, who was infiltrated by FRU (army intelligence) into the UDA[37], was a state agent, he completely misunderstands the role played by Nelson’s masters in FRU in covering up his part in the Finucane murder, for which he never stood trial. Sir Desmond concludes:

“The very nature of Nelson’s re-recruitment from Germany and his subsequent handling leads me to the conclusion that by 1989 Nelson was, to all intents and purposes, a direct State employee. The FRU must, therefore, bear a degree of responsibility for whatever targeting activity Nelson carried out in his dual role as a UDA Intelligence Officer and a FRU agent during this period, whether or not in a specific case he shared with his handlers the full state of his knowledge. As A/05 [Lt Col Gordon Kerr, the officer in charge of FRU in 1989] himself put it at Nelson’s trial:

‘… whatever [Nelson] may or may not have done throughout his time with the UDA since 1987, he would not have done it had we in FRU not reinstated him in the UDA in the first place.’”[38]

As might be expected, the limitations of an on-paper review are apparent. Sir Desmond has not penetrated to the heart or realised the significance of the chronology here. FRU’s own documents relating to Nelson were not delivered to Stevens until around August 1990, after the Director of Public Prosecutions had issued a seizure warrant for them. At the trial of Tucker Lyttle, Winkie Dodds and Matt Kincaid[39], it emerged that FRU passed over 1,100 documents to the Stevens team[40]. When they arrived, it is alleged that they were subjected to ESDA testing, which showed that most pages had been altered[41]. FRU said they had done this to make the work of the Stevens investigation easier. Be that as it may, they had seven or eight months to clean up their own documents.

Ian Hurst, a former FRU intelligence officer, has claimed that he witnessed a quantity of documents being removed from FRU HQ in late 1989 and that FRU scrutinised its records very closely to see if they could be altered. Sir Desmond finds Hurst to be a witness who exaggerates and lacks credibility.[42] In particular, he dismisses a claim that Hurst made to the Lawyers Committee on Human Rights:

“When speaking to the Lawyers Committee for Human Rights he said that there had been three attempts to kill Patrick Finucane within the space of six months. Two of these attempts were supposedly prevented, whilst the third resulted in Patrick Finucane’s death. Hurst apparently told the Committee that he had seen FRU CFs [Contacts Forms] outlining the first two murder plans. Having conducted an extensive review of the available evidence, I am satisfied that there is simply no substance to these claims.”[43]

Sir Desmond chose not to interview Ian Hurst[44]. Had he done so, he might have come to the conclusion that missing FRU Contact Forms (CFs), and in particular the missing P (personality) Card that Nelson compiled on Patrick Finucane for targeting purposes, together with the fact that so many alterations had been made to those CFs ultimately disclosed to Stevens, had less to do with Hurst’s credibility and more to do with FRU’s having airbrushed Patrick Finucane from its records.

Thirdly, the de Silva Report underestimates the role of MI5. It makes no mention of the fact that each FRU Detachment (unit) included an MI5 liaison officer. It does disclose that CO FRU Directive 1/88, dated 1st July 1988 and entitled “Perestroika”, re-organised FRU so that it became an independent unit within army intelligence and its agent case files were moved to FRU HQ from the office of MI5’s Assistant Secretary Political (ASP).[45] This suggests that MI5 and FRU had much closer links than has previously been admitted. Shockingly, the report also reveals that MI5 conducted a propaganda campaign against Patrick Finucane and two other lawyers in the late 1980s.[46]

Finally, and this is perhaps the greatest failing of the de Silva Report, he absolves the politicians of all responsibility for not only the murder, but the aftermath and the cover-up. Sir Desmond devotes just 33 paragraphs to his consideration of ministerial responsibility, and comes to the following conclusion:

“In relation to the specific issues I have considered in this chapter, there is no evidence that Ministers sought to direct the security forces to take a relaxed or permissive approach to loyalist paramilitaries; Ministers do not appear to have been aware of Brian Nelson’s targeting activities prior to September 1990; and there is no evidence that Ministers had any foreknowledge of the murder of Patrick Finucane, nor that Ministers were subsequently provided with any intelligence briefing suggesting that the intelligence agencies had foreknowledge of a threat to Mr Finucane’s life.”[47]

In relation to Brian Nelson’s activities, the Report says:

“The problem evident from the material on this issue is not that Government Ministers were directing Nelson’s activities but rather the opposite – it seems Ministers had very little awareness of, or influence over, the nature of FRU operations in relation to agents such as Nelson. The system appears to have facilitated political deniability in relation to such operations, rather than creating mechanisms for an appropriate level of political oversight. A note sent by the Director of the T Branch of the Security Service [MI5] to the Director General (DG) on 14 March 1991 referred to this very problem. Looking ahead to a potential trial of Nelson, the Director of T Branch forecast that the proceedings could lead to:

‘Exposure of FRU behaviour and procedures which demonstrate a lack of legal and political responsibility, and management control.’”[48]

Sir Desmond appears to completely forget that in 1988 Home Office Minister Douglas Hogg MP was directly briefed by the Chief Constable and other senior RUC officers that named solicitors, including Patrick Finucane, “were in the pockets of terrorists”.[49] While that briefing did not mention agents or their activities, it does shed light on the level of specificity which briefings to government Ministers could descend. Sir Desmond also appears to forget that, just days before the murder, Hogg told a Parliamentary Committee:

“I have to state as a fact, but with great regret, that there are in Northern Ireland a number of solicitors who are unduly sympathetic to the cause of the IRA.”[50]

Sir Desmond also fails to make the connection between these matters and his own finding that Ken Barrett, the only person to be convicted of the Finucane murder, was incited by RUC officers to murder him.[51]

Another issue of governmental responsibility which the de Silva Report overlooks is the fact that the British government has broken the Weston Park Agreement reached with the Irish government in 2001.

Whatever version of the truth is correct – government ministers either know what was going on or they did not – reveals an undeniable dereliction of duty on the part of politicians.

THE DE SILVA REPORT DOES ADD TO OUR KNOWLEDGE OF THE FINUCANE MURDER

Despite the fact that the whole de Silva exercise was unnecessary it is fair to say that it, like all its predecessor investigations, it has added to the sum total of knowledge surrounding Patrick Finucane’s murder.

In particular, it has revealed the details of three occasions over the ten years prior to the murder on which MI5 had credible intelligence that Patrick Finucane was being targeted, yet nothing was done to warn or protect him. However, Sir Desmond is of the opinion that,

“Although the handling of threat intelligence relating to Patrick Finucane in 1981 and 1985 raises very real concerns, it could not be said to have contributed to his murder in 1989.”[52]

This is a highly contentious conclusion. In the first place, the complete absence of any duty of care in relation to the earlier threats, or to recognise that Patrick Finucane had been a UDA target for almost a decade by the time of his murder, together with the MI5 propaganda campaign against Patrick Finucane in the late 1980s, obviously contributed to the failure to protect him in 1989. Secondly, it is possible, although unlikely, that Patrick Finucane might have abandoned dangerous defence work if he knew the level of threat it entailed. Thirdly, he might very well have taken greater steps to protect himself (the outer of two front doors to his house was open on the night of the murder).

One very worrying fact that the Report has put into the public domain is that MI5 conducted a detailed assessment in 1985 which found that 85% of the UDA’s “intelligence” (information that enabled them to target people for murder) came from the security forces. Sir Desmond is of the view that the same situation would have pertained in 1989, at the time of Patrick Finucane’s murder.[53]

The Report also gives more or new information about the role played by individual UDA men (although their names are redacted) in the murder; the theft of the weapon used in the murder; and the briefings given to Douglas Hogg.

However, as has been pointed out, only a fraction of the information available has ever been disclosed to the Finucane family or their legal team, who were completely excluded from the de Silva process. The only mechanism whereby all that information can be subjected to proper and anxious scrutiny would be a public inquiry.

The only real value in the de Silva Report is that it unequivocally and authoritatively confirms what has been known all along, which is that there was official collusion in the murder of Patrick Finucane and that Patrick Finucane was not a member of the IRA but simply an effective lawyer doing his job well. Perhaps the best that can be said for the de Silva report is that it makes a very compelling case for a public inquiry.

May 2013
APPENDIX A

PATRICK FINUCANE: THE FIGHT FOR JUSTICE

1. British Irish RIGHTS WATCH (BIRW) is an independent non-governmental organisation that has been monitoring the human rights dimension of the conflict, and the peace process, in Northern Ireland since 1990. Our vision is of a Northern Ireland in which respect for human rights is integral to all its institutions and experienced by all who live there. Our mission is to secure respect for human rights in Northern Ireland and to disseminate the human rights lessons learned from the Northern Ireland conflict in order to promote peace, reconciliation and the prevention of conflict. BIRW’s services are available, free of charge, to anyone whose human rights have been violated because of the conflict, regardless of religious, political or community affiliations. BIRW take no position on the eventual constitutional outcome of the conflict.

2. This briefing chronicles the long struggle for justice in the case of Patrick Finucane, a Belfast lawyer who was a victim of state collusion.

3. Patrick Finucane opened his legal firm with his partner Peter Madden in 1979. For the next decade he was ivolved in some of the most controversial legal cases arising out of the Northern Ireland conflict: the hunger strikes, shoot-to-kill, ill-treatment in police custody, the broadcasting ban, and prolonged detention without production before a court. Like other colleagues who defended those accused of acts of terrorism, he was hated by the police, who regularly issued death threats against him. In May 1987 Patrick Finucane was one of a group of defence lawyers who issued a statement complaining about abuse by RUC officers.

4. Early in January 1989 Douglas Hogg MP, then Parliamentary Under-Secretary of State for the Home Department, went over to Belfast and was briefed by the Chief Constable, Sir John Hermon, and two other

senior police officers, Blair Wallace and Michael McAtamney. Hogg was told that there was concern over two or three lawyers. The RUC said there was “grave concern” over Patrick Finucane. On 17th January, 1989 Hogg said in a Committee stage debate on the Prevention of Terrorism (Temporary Provisions) Bill:
“I have to state as a fact, but with great regret, that there are in Northern Ireland a number of solicitors who are unduly sympathetic to the cause of the IRA.”
Although challenged, he failed to substantiate this allegation, although he repeated it several times in similar language, saying only:

“…I state it on the basis of advice that I have received, guidance that I have been given by people who are dealing with these matters, and I shall not expand on it further.”
Statements made in Parliament are privileged and cannot be made the subject of legal action. Speaking in reply, Seamus Mallon MP said:

“I have no doubt that there are lawyers walking the streets or driving on the roads of the North of Ireland who have become targets for assassins’ bullets as a result of the statement that has been made tonight … Following [this] statement, people’s lives are in grave danger. People who have brought cases against [sic] the European Court of Human Rights will be suspected. People accused of IRA membership and other activities will be suspected.”

5. On 12th February 1989 two armed men burst into the Finucane home and shot Patrick Finucane 14 times in front of his wife and three children. His wife Geraldine was injured in the foot by a ricochet bullet.

6. Patrick Finucane was murdered by members of loyalist paramilitary group, the UDA. However, the UDA had been infiltrated by the Force Research Unit (FRU), a secret British military intelligence unit. Over the years it has emerged that Patrick Finucane was just one of many people set up for murder by the UDA by FRU agent Brian Nelson, who acted as the UDA’s intelligence officer. It has also transpired that one of the weapons used to kill Patrick Finucane was stolen from the British army’s Palace Barracks in 1987 and was supplied to the murderers by William Stobie, an RUC Special Branch agent who kept his handlers informed of his movements throughout the run-up to the murder.

7. For many years the British government denied that collusion existed and that there had been collusion in Patrick Finucane’s death. However, in September 1989 they were forced to appoint John (now Lord) Stevens to investigate allegations of collusion after loyalists plastered police photomontages of IRA suspects over the walls of Belfast’s streets in an attempt to prove that they were not just targeting innocent Catholics, such as Loughlin Maginn, whom they killed in August 1989. Stevens’ first investigation uncovered the activities of FRU and Brian Nelson, and led to Nelson standing trial for murder (but not that of Patrick Finucane) and other crimes. He was sentenced to only 10 years’ imprisonment, of which he served only five. Despite these developments, and the fact that during his investigation Stevens’ office was the target of a deliberate arson attack by military intelligence, the first Stevens investigation found that collusion was “neither widespread nor institutionalised”, a finding that he was later to revise.

8. On 13 September 1990 William Stobie was arrested after weapons were found at his home. He confessed to supplying the weapons used to kill Patrick Finucane, but was not charged with that offence. Other charges of possession of weapons were dropped after he threatened to make public what he knew of the Finucane murder.

9. On 3 October 1991 an RUC officer called Jonty Brown tape recorded a UDA man and Special Branch informer, Ken Barrett, confessing to having been involved in Patrick Finucane’s murder. A week later, Special Branch taped a second conversation with Barrett, which repeated the first conversation but left out any mention of Patrick Finucane.

10. In the summer of 1992, Stevens was recalled to conduct a second investigation, after the transmission of a BBC Panorama documentary made by journalist John Ware exposed the existence of FRU and the activities of Brian Nelson. This investigation focused on the legality of FRU’s operations, but did not lead to any prosecutions. As with Stevens One, Stevens Two did not specifically investigate Patrick Finucane’s murder.

11. On 2 October 1995, the Northern Ireland Forensic Science Laboratory unaccountably returned to the army one of the weapons used to murder Patrick Finucane, the Browning pistol stolen from Palace Barracks. This weapon was used for several years subsequently and reconditioned more than once, to the point where it was robbed of any evidential value.

12. In 1997, following yearly reports from British Irish rights watch (BIRW) concerning the murder of Patrick Finucane and attempted intimidation of other defence lawyers, the United Nations’ Special Rapporteur on the independence of judges and lawyers, Dato’ Param Cumaraswamy, made an unprecedented visit to the United Kingdom. His report was published on 1 April 1998. He found that intimidation and harassment of defence lawyers in Northern Ireland was “consistent and systematic” and he called for an independent judicial inquiry into the murder of Patrick Finucane.

13. On 12 February 1999, the tenth anniversary of Patrick Finucane’s murder, BIRW delivered a confidential report, Deadly Intelligence, to the UK government detailing the considerable amount of information, much of it the subject of official secrecy, then available concerning not only his murder but also the illegal activities of the FRU. The only honourable response to this report would have been the establishment of the independent public inquiry recommended by the UN, but instead Stevens was called back for the third time, this time with instructions to investigate Patrick Finucane’s murder. Attempts were made to obstruct this investigation. For example, the police tried to palm off the reconstructed second Ken Barrett tape on Stevens, a ploy which almost succeeded until Jonty Brown pointed out that the second tape contained reference to a murder which had taken place during the week that separated the first tape from the second.

14. Stevens Three led to the prosecution of William Stobie for aiding and abetting the murder of Patrick Finucane. This trial collapsed when a key witness, journalist Neil Mullholland, was found unfit to testify. On 4 December 2001 Stobie appeared in a UTV documentary, Justice on Trial, about the Finucane murder. On 12 December Stobie was murdered.

15. Stevens Three also led to the arrest of Ken Barrett, the only person ever to be charged with Patrick Finucane’s murder. Stevens also sent 24 other files to the Director of Prosecutions.

16. In August 2001 the British and Irish government signed the Weston Park Agreement, a document which contained a number of confidence-building measures designed to shore up the 1998 Good Friday peace agreement which had brought the Northern Ireland conflict to an end. One of those measures was the appointment of an international judicial figure to carry out a behind-closed-doors enquiry into whether collusion had taken place in six cases, including that of Patrick Finucane. If this judge recommended a public inquiry into any of the cases, the governments undertook to hold one. In May 2002, after much prevarication on the part of the British government, former Canadian Supreme Court judge Peter Cory was appointed to conduct this enquiry.

17. Before Judge Cory could complete his work, a summary of the Stevens Three report was published in April 2003. Stevens found that Patrick Finucane’s murder could have been prevented and that the RUC investigation should have led to the detection and early arrest of the perpetrators. He also found that, “Collusion is evidenced in many ways. This ranges from the wilful failure to keep records, the absence of accountability, the withholding of intelligence and evidence, through to the extreme of agents being involved in murder.” None of the three Stevens reports has ever been published.

18. On 1 July 2003, the European Court of Human Rights delivered its judgment in a case lodged on behalf of Geraldine Finucane in July 1994 by Madden & Finucane. The Court held unanimously that there had been “a failure to provide a prompt and effective investigation into the allegations of collusion by security personnel”.
19. On 7 October 2003, Judge Cory provided his six reports, four to the UK government and two to the Irish government. He recommended public inquiries in five out of the six cases, including, inevitably, that of Patrick Finucane. While the Irish government published their two reports in December, the UK waited until the following April to publish theirs, all of them heavily redacted, with the Finucane report most heavily of all. On 1 April 2004 the UK government announced public inquiries into three of the four cases, but said that an inquiry into the case of Patrick Finucane must await the outcome of prosecutions.

20. Ken Barrett was convicted of the murder on 16 September 2004. Under the terms of the Good Friday Agreement he served only two years in jail. He did not testify in his own defence, so no new information emerged from his brief trial. On 23 September 2004 the UK announced that, before it could hold an inquiry into Patrick Finucane’s case, it would be necessary to change the law.

21. It was in April of the following year that the Inquiries Act 2005 was passed. It effectively took public inquiries out of the control of the independent judiciary and gave that control to government ministers. However, no inquiry in Patrick Finucane’s murder was established, even under the new law.

22. On 8 March 2006 the Irish Dáil passed a unanimous motion calling for independent inquiry as agreed at Weston Park. Similar resolutions were later passed by the American Senate and House of Representatives.

23. On 25 June 2007, over four years after the Stevens Three summary report was published, the DPP finally announced that he would not be prosecuting any member of the security forces for any offence.

24. The UK government had run out of excuses for not holding a public inquiry, but it continued to delay and prevaricate. Finally, under pressure from Madden & Finucane, on 27 April 2010 government lawyers issued a draft Restriction Notice under the Inquiries Act 2005 which was so draconian that it was completely unacceptable. Not only would the Finucane family be denied sight of many crucial documents, but they would not even know which documents they were being denied.

25. Then on 8 November 2010, following a General Election earlier that year which resulted in a change of administration, the new Secretary of State for Northern Ireland, Owen Paterson MP, asked to meet Geraldine Finucane. He informed her that the new government would not be bound by the previous administration’s approach, and that they would be looking at the case afresh.

26. Three days later, Paterson issued a written statement in the House of Commons saying that he was conducting a two month consultation over whether it remained in the public interest to hold a public inquiry into the Finucane case.

27. Under the previous administration, discussions had taken place between the Finucane family’s legal team and government lawyers. At the family’s instigation, these talks began again, and centred on whether it would be possible to conduct a meaningful inquiry under the Inquiries Act 2005. On 28 January 2011, the government’s lawyers put forward three possible models for inquiries, including an example of an inquiry held under the inquiries Act. This was the Baha Mousa Inquiry into the murder by British soldiers of an Iraqi hotel receptionist. As part of that inquiry, the Ministry of Defence entered into a protocol with the inquiry whereby all matters which under the Act could be dealt with by the Secretary of State were instead to be deal with by the independent Chair. On 10 March 2011 Madden & Finucane made submissions to the consultation exercise, the deadline for which had been extended, indicating that the Baha Mousa Inquiry would be an appropriate model to follow in Patrick Finucane’s case.

28. Nothing further was heard from the government until September 2011, when Owen Paterson’s office contacted Madden & Finucane to arrange a meeting at 10 Downing Street. This was the first time that David Cameron MP, the Prime Minister had become involved in the process. The meeting took place on 11 October 2011 and was attended by both David Cameron and Owen Paterson. Geraldine Finucane and five other members of the Finucane family were also present as was the family’s solicitor, Peter Madden, and Jane Winter, Director of BIRW. The Prime Minister opened the meeting by apologising for Patrick Finucane’s murder on behalf of the whole of the British government and acknowledging that collusion had taken place. This was the first admission after over 22 years that collusion had been involved. However, the Prime Minister went on to offer not the Baha Mousa style inquiry that everyone had been expecting, but an on paper, behind-closed-doors review by Sir Desmond de Silva QC, to report by December 2012. It rapidly became evident that the family would play no part in this review, would not be able to scrutinise the documents seen by Sir Desmond, and would not have the opportunity to examine any witnesses. It was equally clear that this review was not intended to be a prelude to a public inquiry, but a substitute for one, and that the review would go ahead whether the family wanted it or not. This process fell so far short of the family’s most basic requirements that Geraldine Finucane brought the meeting to an end after just 30 minutes.

29. The family found it difficult to understand why they had been brought to London only to be delivered such a devastating blow. On 17 October 2011 they met the Tánaiste of the Irish government, Eamon Gilmore TD, who said that they had been equally surprised by this flagrant breach of the Weston Park Agreement. Like the family and their lawyers, the Irish government had also been told by the UK government that they expected the family to be pleased with the outcome of the meeting on 11 October. The Tánaiste pledged the Irish government’s full support for the family’s quest for a public inquiry.

30. On 10 December 2012 Sir Desmond de Silva QC’s report was published. For the first time, an authoritative government-commissioned report acknowledged that there had been widespread official collusion in the murder of Patrick Finucane. However, the report was not human rights-complaint and raised more questions than it answered. Sir Desmond was not required or empowered to make recommendations, but his report nevertheless mad e a cogent case for a public inquiry.

30. The family’s legal team has now launched a judicial review to challenge the failure to provide an independent, judicial, public inquiry into the murder of Patrick Finucane.

[1] The Ulster Defence Association, the loyalist group that carried out the murder
[2] Weston Park Agreement, 2001, paragraph 19
[3] Jordan v the United Kingdom (2001) 37 EHRR 52, paragraph 103
[4] Ibid, paragraph 104
[5] Ibid, paragraph 107
[6] Ibid, paragraph 115
[7] Ibid, paragraph 109
[8] Ibid
[9] Ibid, paragraph 115
[10] Ibid, paragraph 123
[11] Ibid, paragraphs 141,120 and 128
[12] Ibid, paragraph 103
[13] Ibid, paragraph 107
[14] Ibid, paragraph 105
[15] Ibid, paragraph 108
[16] Ibid, paragraph 105
[17] Ibid, paragraph 106
[18] R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653
[19] The Report of the Patrick Finucane Review, Volume 1,HMSO, HC 802,
December 2012,[hereafter: Report], Executive Summary and Principle
Conclusions [hereafter: Report Summary], paragraph 7
[20] Summary, paragraph 92
[21] Terms of reference, Stevens 1
[22] Terms of reference, Stevens 3
[23] Judge Cory’s letter of appointment, June 2002
[24] Report Summary, paragraph 6
[25] Ibid, paragraph 116
[26] Ibid, paragraph 4.15
[27] Confidential RUC memorandum [hereafter RUC memo], reference C352/70,
23 February 1981
[28] The equivalent of the FBI
[29] Secret Service Told RUC that it Could Put Spying on Terrorists Ahead of Solving
Crime, by Richard Norton-Taylor and Nick Hopkins, Guardian, 14 June 2001
[30] RUC memo, paragraphs 1 and 7
[31] Ibid, paragraph 3
[32] Ibid, paragraph 4
[33] Ibid, Appendix C, paragraph 6
[34] RUC memo, paragraph 4 – interviews solely for the purpose of intelligence
gathering were in breach of Article 5 of the European Convention on Human
Rights
[35] Ibid, paragraph 10
[36] Report, paragraph 4.50
[37] The loyalist paramilitary group, the Ulster Defence Association
[38] Report, paragraph 21.215
[39] UDA men who were tried for other crimes as a result of the third Stevens
investigation
[40] NI Court Told of Man’s Role as Spy, Irish News, 26 June 1991
[41] The Dirty War, BBC TV Panorama, broadcast 8 June 1992, transcript, p. 27
[42] Report, paragraphs 21.198 – 204
[43] Ibid, paragraph 21.201
[44] Information of Ian Hurst
[45] Report, paragraph 3.19
[46] Ibid, Chapter 15
[47] Ibid, paragraph 25.33
[48] Ibid, paragraph 25.25
[49] Ibid, paragraph 14.9
[50] Hansard, Standing Committee B debate, 17 January 1989, column 508
[51] Report, paragraph 19.126
[52] Ibid, paragraph 16.59
[53] Ibid, paragraph 11.111