IN THE UNITED KINGDOM SUPREME COURT
IN THE MATTER OF AN APPLICATION BY GERALDINE FINUCANE FOR JUDICIAL REVIEW
THE SECRETARY OF STATE FOR NORTHERN IRELAND
APPELLANT’S PRINTED CASE
“Does the PM seriously think that is right to renege on the previous Govt’s clear commitment to hold a full judicial inquiry? This was a dark moment in the country’s history – far worse than anything that was alleged in Iraq/Afghan. I cannot really think of any argument to defend not having a proper inquiry…..” (Sir Jeremy Heywood, then Cabinet Secretary and Head of the Home Civil Service)
I INTRODUCTION & BACKGROUND
1. By this appeal the appellant, the wife of Patrick Finucane (deceased) seeks to set aside the order made by the Court of Appeal below whereby it dismissed her application for judicial review and refused to order the establishment of a public inquiry into the murder of her husband, Patrick Finucane. She asks this court to order the holding of such an inquiry.
2. The background to these proceedings is complex and sinister. This case is one of the most notorious of the Northern Ireland “Troubles”. It is notorious for good reason. The available evidence suggests that agents of the state responsible for law enforcement devised and operated a policy of extra-judicial execution, the essential feature of which was that loyalist terrorist organisations were infiltrated, resourced and manipulated in order to murder individuals identified by state agents as suitable for assassination: in other words, a policy of “murder by proxy” whereby the state itself engaged in terrorism through the agency of loyalist paramilitaries. It is hard to imagine a more serious allegation against a liberal democracy founded on the rule of law.
3. Patrick Finucane, a solicitor and officer of the court who enjoyed a reputation as a committed human rights lawyer prepared to challenge perceived abuses of state power, was a victim of this policy. He was identified for assassination by state agents and duly shot dead in front of his family- the appellant and their three young children- in a particularly brutal fashion on 12 February 1989. The Ulster Freedom Fighters (UFF), a cover name for the Ulster Defence Association (UDA), claimed responsibility for the murder .
4. All investigations into Patrick Finucane’s death have clearly established that he was no more than a solicitor intent on doing his job and doing it very well, albeit at the expense of attracting the adverse attention of elements of the state. He was not a member of the IRA or involved in providing assistance to that organisation and there is no evidence to suggest he was.
5. Prior to his death Mr Finucane had, via his clients in police detention, been the subject of death threats from police officers. As a result, his family suspected collusion between the security forces and loyalist paramilitaries in his murder from the outset.
6. Information that has emerged over the years since the murder has shown that the family were correct in that suspicion.
7. Information emerged on a piecemeal basis, largely through the work of investigative journalists, in particular John Ware, and Non-Governmental Organisations, in particular British Irish Rights Watch (now Rights Watch UK). Official investigations into the murder were deliberately and consistently obstructed and frustrated by agents of the state .
8. The Army, the Police and the Security Service have been implicated to varying degrees in the events surrounding Patrick Finucane’s death and in the operation of the policy that led to it. Questions arise as to the level within these organisations at which the policy was authorised. Questions also arise as to the extent to which the policy was known and authorised by the government.
9. As Mr Justice Stephens said at first instance
“…It is hard to express in forceful enough terms the appropriate response to the murder, the collusion associated with it, the failure to prevent the murder and the obstruction of some of the investigations into it. Individually and collectively they were abominations which amounted to the most conspicuously bad, glaring and flagrant breach of the obligation of the state to protect the life of its citizens and to ensure the rule of law. There is and can be no attempt at justification…” (Appendix Volume 1, p73, para 2)
10. As a result of his high profile as a human rights lawyer who acted in judicial reviews against the police and government, in complaints made against the government in the European Court of Human Rights and in criminal cases, often on behalf of Republican suspects, the case of Patrick Finucane has become the iconic case in point. Eventually, after sustained domestic and international pressure, and following an independent judicial examination of the papers, the government committed itself formally, solemnly and unequivocally to a public inquiry into his murder, a commitment repeated on a number of occasions in unqualified terms.
11. That inquiry was delayed however because, it was claimed, the national security issues in the case were so sensitive that a new Act of Parliament was required before an inquiry could be held under legal conditions that accommodated those issues. The Inquiries Act 2005, which now governs all statutory public inquiries, was therefore introduced directly and specifically to deal with this case.
12. Enough is known about the case for the Prime Minister, “like everyone else outside the MOD”, to regard it as “an awful case and as bad as it gets, and far worse than any post 9/11 allegation”. (Appendix Vol 4, p1058, emphasis added). The papers show that Sir Jeremy Heywood, former Cabinet Secretary and Head of the Home Civil Service, asked “Does the PM seriously think that is right to renege on the previous Govt’s clear commitment to hold a full judicial inquiry? This was a dark moment in the country’s history – far worse than anything that was alleged in Iraq/Afghan. I cannot really think of any argument to defend not having a proper inquiry…..” (Appendix Vol 4, p1059)
13. There has been widespread local and international concern about the murder of Patrick Finucane. Such concern has included clear calls for the establishment of a public inquiry to investigate the murder from the following:
• The Irish Government;
• Dáil Éireann;
• The US House of Representatives;
• Senator Barack Obama (as he then was);
• UN Human Rights Committee;
• UN Committee Against Torture;
• UN Special Rapporteur on the Independence of Judges and Lawyers;
• European Commissioner for Human Rights;
• NI Human Rights Commission;
• The General Council of the Bar of Northern Ireland;
• The Northern Ireland Law Society;
• The Bar Council of Ireland;
• The Law Society of Ireland;
• The Law Society of England and Wales;
• The American Bar Association;
• The International Bar Association.
14. It is against this broad background that this appeal falls to be considered. Notwithstanding the gravity of the matters in issue and the binding nature of the commitments to hold a public inquiry into them, the government decided to renege on the commitment made to hold an inquiry. That is a decision which, for the reasons that follow, can be fairly characterised as not only unlawful but “as bad as it gets” in public law terms.
15. An overview chronology of events is appended to the Statement of Facts and Issues. A chronology of the impugned decision making process is at Appendix 1 to this printed case and a list of personalities appears at Appendix 2.
16. The following are the issues agreed by the parties to this appeal:
a) whether the decision making process announced by SOSNI was a sham process and was pre-determined;
b) whether the Respondent followed the stated decision-making process;
c) whether the Appellant enjoyed a substantive legitimate expectation that a public inquiry into the murder of Patrick Finucane would be established;
d) if so, whether the Respondent was justified in departing from that expectation by refusing to establish a public inquiry, but instead to conduct an independent review;
e) whether the failure to establish a public inquiry into the murder of Patrick Finucane is compatible with the appellant’s Article 2 ECHR rights and section 6 of the Human Rights Act 1998; and
f) what, if any, relief should be granted by this Court.
17. The Appellant wishes to pursue the following additional issue, which is not agreed by the Respondent:
“Whether the practice of accepting affidavit evidence from government officials in proceedings challenging Ministerial decisions requires review or amendment in cases such as these.”
II SHAM PROCESS/PRE-DETERMINATION AND FAILURE TO FOLLOW THE STATED PROCESS
18. In his public statement at the time of the publication of the report of Lord Saville’s Bloody Sunday Inquiry the Prime Minister sought to “reassure” the House of Commons that “there will be no more open-ended and costly inquiries into the past”. (Appendix Vol 7, p2339, Col 741). That position had also been clearly articulated by the SOSNI, both in opposition and in government (Appendix Vol 1, p211, para 32).
19. The appellant submits that the decision not to hold a public inquiry into the murder of Patrick Finucane was predetermined by the government’s adherence to this position. The decision-making process that the SOSNI purported to adopt was no more than a sham process designed to give the appearance that the SOSNI was making a decision with an open mind in accordance with proper criteria and following meaningful consultation with the appellant.
20. Moreover, the decision was not, in any event, in fact made in accordance with the stated process or even in real terms by the person who was supposed to make it, the SOSNI. In this regard the appellant submits that:
a) While the decision was “primarily” one for the SOSNI, in reality it was driven by the Prime Minister who was determined to abide by his declaration that there would be no more open-ended and costly inquiries into the past;
b) The application by the SOSNI of his criteria produced the result that two options remained;
c) The PM, without any reference to the published process or criteria, introduced a third option, the option that was ultimately adopted;
d) From that point onwards the process was focused on that option and the justification for it was constructed accordingly;
e) For those reasons the decision not to hold a public inquiry but instead to hold a review was not the product of a genuine process and the application of the stated criteria.
21. A detailed chronology of the impugned decision-making process is attached to this submission at Appendix 1.
22. It is clear that while the decision on whether to establish a public inquiry was “primarily a matter for the Secretary of State for Northern Ireland” (Appendix Vol 1, p199, para 5) the Ministerial Code requires that the Prime Minister must be consulted about any proposal to set up a “major” public inquiry under the Inquiries Act 2005 (Appendix Vol 4, p984, para 4.10).
23. The papers show that on entering government the SOSNI was briefed about the Finucane case and, at a meeting with officials (of which no record has been provided), decided to follow advice on a process to be adopted to reach a decision on the case (Appendix Vol 1, p211, paras 31-33; Appendix Vol 4, p1104).
24. The SOSNI wrote to the Prime Minister on 3 November 2010 before he met with the Finucane family on 8 November 2010 outlining the process he intended to follow (Appendix Vol 4, pp985-989).
25. It is clear from the papers that officials recognised (no doubt on the basis of legal advice) that the refusal to hold a public inquiry into the murder of Patrick Finucane would be open to challenge. The Prime Minister met with SOSNI and the Attorney General on 5 November 2010 to discuss the matter. A briefing note for the Prime Minister said that:
“They key point for the Prime Minister to understand is that whilst the somewhat complex process of lengthy consultation against specified criteria over a period of months may seem elaborate, it is viewed as legally essential. Because of the commitment made by the previous Government in 2001…the Finucane family are likely to initiate a legal challenge in the event that the Government does not agree to an inquiry. To that end it is imperative that the Government is seen to have given proper consideration to all relevant factors, and that no premature decisions are taken without due process….” (Appendix Vol 4, p990, para 2, emphasis added)
26. In that note the Finucane case is recognised as “the most difficult of a number of difficult legacy issues about the actions of state forces” (Appendix Vol 4, p990, para 3).
27. If the Prime Minister’s view on whether or not there should be a public inquiry wasn’t already clear from his public statements that there would be no more open-ended and costly inquiries into the past, then it is made clear in the note to him from his adviser on Northern Ireland and Foreign Policy issues, Tom Fletcher (Appendix Vol 4, p992). Attaching the SOSNI’s letter to the Prime Minister, Mr Fletcher says:
“It is probably too soon for you to make a formal intervention on this issue. Better to allow colleagues to chip in with views and – ideally – for Owen to come forward with the conclusion that a further inquiry would be inappropriate” (emphasis added)
28. The note then goes on to say
“But we need to think carefully with Owen about handling:
– Coalition dynamics;
– Cabinet discussion;
– the Irish….
– The Americans”
29. It is noteworthy that “handling” was being considered only for those who had previously expressed support for the establishment of a public inquiry into Mr Finucane’s murder. It was never even contemplated that the outcome of the decision-making “process” would be a decision to hold an inquiry or therefore a need to think about “handling” those who would be seen as likely to oppose that outcome.
30. The meeting of 5 November is recorded in a letter from Mr Fletcher to an NIO Official of 5 November where he records that:
a) “The Prime Minister agreed to the course of action set out in the letter” and
b) “Without prejudice to the outcome of the Secretary of State’s deliberations, the Prime Minister asked for further thought on other ways of dealing with the case – e.g. through the HET or a non-statutory inquiry.” (Appendix Vol 4, p1000)
31. Emails between officials in the NIO record that what the Prime Minister in fact said was that
“He understood this was a difficult case, and that there was pressure to hold a public inquiry. However, given the Government’s policy on public inquiries, he asked that further consideration be given before a final decision is made to the option of making a statement saying what we knew about what had happened, apologising for actions which we thought were wrong – and possibly also asking an independent person to carry out a rapid investigation of the details of the case, but stopping short of holding a full public inquiry.” (Appendix Vol 7, p2489, emphasis added)
32. The affidavit evidence submitted in relation to the Prime Minister’s role in this case is from a Private Secretary, Simon King, who was not at the meeting on 5 November 2010 (Appendix Vol 1, p189, para 6).
33. Despite his absence from the meeting and the content of the contemporaneous documents, Mr King, at paragraph 8 of his affidavit, ascribes much fuller comments to the Prime Minister than are contained in those documents and then concludes with a comment: “I believe that this view is consistent with the view previously expressed in public by the Prime Minister for example in his response in Parliament on the Report of the Saville Inquiry to the effect that these decisions should be made on a case by case basis.” (Appendix Vol 1, p189, para 8)
34. The SOSNI set out his intended approach in correspondence to the applicant on 11 November 2010 (Appendix Vol 3, p878). That correspondence and a Written Ministerial Statement laid in Parliament on the same day (Appendix Vol 4, pp1155-1156) indicated that that he would take into account representations made by the appellant and any other relevant representations received. It further outlined the factors he would be taking into account when deciding whether it was in the public interest to establish a public inquiry into Patrick Finucane’s murder as follows:
• The commitment made to Parliament by the previous Government in 2004;
• The conclusions of reviews and investigations into the death and the extent to which the case has caused, and is capable of causing, public concern;
• The experience of the other inquiries established after the Weston Park commitments
• The delay that has occurred since the 2004 announcement and the potential length of any inquiry;
• Political developments that have taken place in Northern Ireland since 2004 and
• The potential cost of an inquiry and the current pressures on the UK Government’s finances.
35. There then followed a number of meetings, both within the NIO, and between NIO officials and representatives of the Finucane family. Those meetings are outlined at paragraphs 40-49 of Mark Larmour’s affidavit (Appendix Vol 1, pp214-291).
36. The SOSNI met with his officials on 8 April 2011. Five options as set out in the briefing paper (Appendix Vol 4 p1207 and following) were discussed. Those were:
a) A full, open-ended 2005 Act inquiry;
b) A limited 2005 Act inquiry;
c) A full non-statutory inquiry;
d) A non-statutory information recovery model; and
e) A decision not to hold an inquiry.
37. After a “lengthy two hour meeting” it is clear that, taking account of the family’s position and presumably referring to the criteria, “it was agreed that any non-statutory option would be excluded from further debate” (Appendix Vol 4 pp1262-1263). An open ended 2005 Act inquiry was also dropped from further consideration. Only two options – a limited public inquiry and no inquiry – were left on the table and these two options continued (ostensibly) to be considered within the NIO. These two options were later described as the “only two viable potential ways forward…” (Appendix Vol 4, p1264, para 2)
38. There was another meeting between the PM and SOSNI about the Finucane case on 5 May 2011. Briefing material for that meeting from the NIO confirms the outcome of the internal NIO meeting of 8 April:
“From his initial considerations, SoSNI feels that there are only two viable options – one is for a statutory inquiry with clear time and cost controls, the other is a decision not to hold an inquiry…neither of the options is obviously attractive…” (Appendix Vol 4, p1006)
39. These options had been arrived at by the SOSNI following extensive meetings and consultation with his officials, supposedly taking account of the factors he set out at the commencement of the process. However, the Prime Minister’s own briefing note, from Simon King, includes a “third option” suggested by the Cabinet Office:
“refusing to hold an inquiry, but apologising for the actions of the security forces. There is more than enough in the Stevens and Cory reports to support an admission that this was a terrible case which reflects very badly on the actions of the security forces at the time…” (Appendix Vol 4, p1008).
40. Mr King was present at the meeting between the PM and SOSNI on 5 May 2011. Again the meeting is recorded by way of a letter, this time from Mr King to an NIO official. The PM is recorded as again having said that “He understood that this was a difficult case, and that there was pressure for a public inquiry” (Appendix Vol 4, p1012) but he then:
“…asked that further consideration be given before a final decision is made to the option of making a statement saying what we knew about what had happened, apologising for actions which we thought were wrong – and possibly also asking an independent person to carry out a rapid examination of the details of the case…but stopping short of a full public inquiry.”
41. This was a repetition of the views expressed by the PM some 6 months earlier on 5 November 2010 at the very start of the “process”. It was not the product of comprehensive consideration, as laid out in advance by the SOSNI, but rather the imposition of the Prime Minister’s view (without reference to the stated criteria) that there should be no more public inquiries.
42. The papers show that the SOSNI’s ostensible application of the process and stated criteria had led to a point where two options existed, a limited statutory inquiry or no inquiry at all. From the moment of the Prime Minister’s intervention those options were effectively abandoned in favour of the “apology/review” option.
43. The outline of what was to become the de Silva review is clearly set out in a briefing note provided to both the Secretary of State and Simon King on 17 May 2011 (Appendix Vol 4, p1015 & p1277).
44. In that note (para 3) the proposed review is described as “a ‘Cory II’ review which would be “asked to provide a definitive judgment on the case, rather than the provisional findings put forward by Cory”, even though the reviewer would be confined to a review of the papers available to Judge Cory and therefore in no better position to provide a definitive judgment.
45. The note recognises that such a review would not be Article 2 compliant (Appendix Vol 4, p1016, para 5).
46. A document attached to that note acknowledges that even if public guarantees in relation to access to documents and employees were given by HMG they would “clearly not extend to retired staff or individuals who have never been employed by the state.” (p1019).
47. Following receipt of a briefing note on this option (Appendix Vol 4, p1021) the PM commented, on 9 June 2011, “Good. Let’s give this a try.” (Appendix Vol 4, p1028)
48. A later briefing paper to the SOSNI (16 June 2011) informed him that “As the lead Cabinet Minister on this issue, you are likely to be expected to lead the collective discussion of the issue and indicate your preferred option to Cabinet colleagues.” (Appendix Volume 4, p1290, at p1293 para 11).
49. A meeting of cabinet ministers was convened to discuss the proposed review on 11 July 2011.
50. Despite his previous conclusion that only two options existed, the SOSNI had, by that time, apparently “made known to officials that his preferred option was not to hold a public inquiry, but to carry out an independent review of the circumstances of the murder…” (Appendix Vol 1, p221). There is no independent record of that decision or of the reasons for it, including the reasons for the SOSNI’s change of position.
51. A subsequent briefing note for SOSNI dated 8 July 2011 (Appendix Vol 4, p1298) attaches a draft speaking note which “reflects your preferred option of the review model” but does not record how the SOSNI reached that decision or weighed the various public interest factors in reaching it.
52. While the briefing material prepared for the Prime Minister in advance of the 11 July meeting mentions the public interest factors outlined by the SOSNI at the commencement of the process (Appendix Vol 4, p1041) it does not contain a detailed, or any, consideration of those criteria.
53. Email exchanges between officials in advance of the meeting of 11 July show the views of Jeremy Heywood (now the Cabinet Secretary):
“Does the PM seriously think that is right to renege on the previous Govt’s clear commitment to hold a full judicial inquiry?
This was a dark moment in the country’s history – far worse than anything that was alleged in Iraq/Afghan. I cannot really think of any argument to defend not having a proper inquiry…..” (Appendix Vol 4, p1059)
54. They also provide an insight into the Prime Minister’s view of the case:
“he, like everyone else outside the MOD shares the view that this was an awful case and as bad as it gets, and far worse than any post 9/11 allegation” (p1058, emphasis added)
“he has been pressing hard and repeatedly for an alternative to a full public inquiry” (p1057, emphasis added)
55. Simon King’s affidavit does not dispute that these views were an accurate reflection of the Prime Minister’s position or his actions (Appendix Vol 1, p193, para 17).
56. Despite the earlier advice to SOSNI that he would be expected to lead the discussion at the Ministerial meeting, it is clear that the Prime Minister opened and led the meeting, indicating that “the primary objective must be to find the truth” and that his “…preferred route was…to ask an independent person to carry out a paper based review of all existing material relating to the case…” (Appendix Vol 4, p1304)
57. It is not surprising then that at the ministerial meeting “The collective view was that it was not in the public interest to establish a statutory inquiry” (Appendix Vol 1, p193, para 19). This collective view, driven as it was by the Prime Minister acting in accordance with his previously stated intention of having “no more open-ended and costly inquiries into the past”, became the decision that the SOSNI presented as his own made in accordance with the process he had set out in his Ministerial Statement to the House of Commons.
58. In the Ministerial Statement and in answering the questions that followed (Appendix Vol 1, pp233-248) SOSNI said
“…My right hon. friend the Prime Minister invited the family to Downing street yesterday so that he could apologise to them in person and on behalf of the Government for state collusion in the murder of Patrick Finucane.
“The Government accept the clear conclusions of Lord Stevens and Judge Cory that there was collusion. I want to reiterate the Government’s apology in the House today. The Government are deeply sorry for what happened. Despite the clear conclusions of previous investigations and reports, there is still only limited information in the public domain. That is why my right hon. friend the Prime Minister and I have committed to establishing a further process to ensure that the truth is revealed. Accepting collusion is not sufficient in itself. The public now need to know the extent and nature of that collusion. I have, therefore, asked the distinguished former United Nations war crimes prosecutor Sir Desmond De Silva QC to conduct an independent review to produce a full public account of any state involvement in the murder.” (at Appendix Vol 1, p 233, Col. 335)
“The task now is to uncover the details of this murder.” (Appendix Vol 1, p 234, Col. 336)
“I am clear that we do not need to repeat all the work that Lord Stevens has already carried out for the truth to be revealed.” (Appendix Vol 1, p 234, Col. 336)
“…Sir Desmond de Silva will now have full access to the Stevens files and all Government papers to ensure that the full facts are finally set out.” (Appendix Vol 1, p 235, Col. 336)
“I strongly believe that the this will be the quickest and most effective way of getting to the truth.” (Appendix Vol 1, p 235, Col. 336)
“As my right hon friend the Prime Minister and I have made clear for some time, we do not believe that more costly and open-ended inquiries are the right way to deal with Northern Ireland’s past.” (Appendix Vol 1, p 235, Col. 337)
“The appointment of an internationally respected and wholly independent figure to produce a full public account demonstrates the Government’s determination that the truth about this murder should be finally revealed.” (Appendix Vol 1, p 235, Col. 337)
“The question now is how do we get to the truth?” (Appendix Vol 1, p 238, Col. 339)
“There are 1 million documents and there will be more than 9000 witness statements. That is where the truth lies, and we want to get the truth out…” (Appendix Vol 1, p 238, Col. 339)
“…I…[was] elected on a platform of no more costly and open-ended inquiries and we are quite clear about that. I am more concerned, however, about the effectiveness of the inquiries. My worry, having met Mrs Finucane, is the time they take and the complication that they cause. I believe that our solution will get to the truth quicker than a public inquiry would have done.” (Appendix Vol 1, p 243, Col. 345)
“… we believe that [Sir Desmond] will find the truth in the 9000 statements taken under caution.” (Appendix Vol 1, p 246, Col. 348)
“…We were quite clear before, during and after the election that we believe there should not be any more costly and open-ended inquiries. We believe this is a swifter and better route…” (Appendix Vol 1, p 247, Col. 348)
“What we have set out today is a swift route to the truth.” (Appendix Vol 1, p 247, Col. 349).
59. It is submitted that the flaws in the government’s reasoning, in its model for supposedly uncovering the truth and the true underlying reasoning were captured in the penultimate question asked by Mr David Anderson (Appendix Vol 1, p 248, Col. 350) when he said
“It seems strange for the Secretary of State to say that the truth lies in the archives. It would then have lain in the archives for over 22 years; if the truth is there why is someone not already in jail? Witnesses need to be called in a proper way, and that could happen only through a public inquiry. Clearly, this is more about the Conservative party looking to its manifesto and saving money than about justice being done.”
60. For these reasons it is submitted that the papers clearly show:
(i) predetermination of the issue, meaning that the process announced was an elaborate façade designed to give the appearance of legality; and
(ii) that, in any event, that process was not followed.
III THE EVIDENCE BEFORE THE COURT
61. The Court of Appeal considered these issues at paragraphs - of Gillen LJ’s judgment. In summary, the Court found that “there is neither the necessary strength nor quality in any of the evidence produced to found an allegation that this outcome was pre-determined or that the process followed amounted to a sham.” (Appendix Vol 1, pp37-40).
62. While this conclusion is not accepted by the appellant for the reasons set out above, it is for this reason that the appellant has proposed an additional issue for the Court’s consideration. That issue is not agreed by the respondent. It relates to the evidence before the Court. The Court is invited to revisit the convention whereby evidence in judicial review proceedings (or in particular types of judicial review proceedings) is provided by civil servants on behalf of or instead of the Minister who took the impugned decision.
63. The courts below did not have affidavit evidence from the Minister/s involved in making this decision, in particular the SOSNI and the Prime Minister. The affidavit evidence in this case comes from officials, who often did not attend meetings that they purport to give evidence about. As a result, and because of the decision of the NICA in Re Williamson’s Application  NICA 52 (applications to cross-examine non-deponents in judicial review proceedings can only be made in exceptional circumstances which did not exist in this case), no application could be made to cross-examine the SOSNI or PM to ascertain the motive/s for the decision and whether it was made as a result of predetermination. The appellant and the courts were therefore bound to consider the matter on the basis of the available documentation. An application for discovery was required to ensure that all relevant material was disclosed ( NIQB 45).
64. It is submitted that the practice which has arisen by which it has been accepted that government officials can act as deponents in proceedings challenging Ministerial decisions requires review or amendment in cases such as this.
65. The practice has been the subject of some judicial comment (see, for example, Fordham’s Judicial Review Handbook (6th ed.) at 17.1.8). The case law cited therein appears to indicate that the practice has arisen due to “Departmental Realities”. While it can readily be accepted that there are many decisions in which Ministerial evidence will not be required, it is submitted that decisions such as the present which raise issues of the utmost gravity and in which the mind of the Minister in taking the decision requires exposition, is an exceptional case.
66. Concerns about the practice were expressed by Mr Justice Sedley (as he then was) in R v Minister of Agriculture, Fisheries and Food ex parte Hamble (Offshore) Fisheries (Ltd.)  1 CMLR 533 where he said
“I have set out earlier in this judgment the history of the issue from what was principally the applicant’s point of view. The respondent’s side of the case is deposed to by Keith Anthony Porter, a senior executive officer in the Fisheries Division I of the respondent since September 1990, during which period he has been responsible for advising on the formulation and implementation of policy on the management of United Kingdom fish quotas and the operation of the restrictive fish licencing scheme. He makes his affidavit, however, not in the name of or on behalf of the minister, who in law is the decision-maker, but simply as having knowledge of the matters to which he deposes. Mr Green has taken no point on this and has been prepared in his submissions to treat Mr Porter’s deposition as sufficient evidence of the working of the departmental mind. I place on record, however, my concern that ministerial policy is not something that can ordinarily be deposed to by a senior executive officer, however experienced and knowledgeable. If, for example, the case were one in which cross-examination of deponents became necessary, I do not see from his affidavit how Mr Porter could speak as the alter ego of the minister who (despite the naming of his department as the respondent to these proceedings) is legally answerable for the policy in question.” 
67. In a case such as this, these concerns are particularly apposite. The first issue is essentially an allegation of bad faith. It arises in a case with a long and sordid history of the state acting in bad faith and acting to frustrate the uncovering of the truth. It is not surprising, and indeed understandable, that the Finucane family and sections of the public are sceptical about any state action in this case. A full and comprehensive explanation is required for the decision taken by the Minister who took it. In the absence of such an explanation made on affidavit by the Minister, cross-examination can effectively be avoided by him/her and the courts and applicants are inevitably hampered in the presentation of their cases.
68. For this reason it is submitted that the Court should review the current practice.
IV LEGITIMATE EXPECTATION
69. It is submitted that the appellant had a legitimate expectation that a public inquiry would be held into the murder of her husband, and that expectation should be recognised and enforced by this court.
70. It was agreed between the parties, and accepted by Mr Justice Stephens in the High Court and by the Court of Appeal, that there are two stages involved in the enforcement of a substantive legitimate expectation by the courts. The first, a matter of fact, is the establishment of the existence of a “clear and unambiguous representation devoid of relevant qualifications”. The burden of so establishing rests on the party seeking enforcement.
71. If such a representation is found to exist, the court must then consider whether there was sufficient “overriding interest” to justify a departure from the promise. The onus for showing that such an overriding interest exists lies with the party disputing enforceability.
“The initial burden lies on an applicant to prove the legitimacy of his expectation. This means that in a claim based on a promise, the applicant must prove the promise and that it was clear and unambiguous and devoid of relevant qualification. If he wishes to reinforce his case by saying that he relied on the promise to his detriment, then obviously he must prove that too. Once these elements have been proved by the applicant, however, the onus shifts to the authority to justify the frustration of the legitimate expectation. It is for the authority to identify any overriding interest on which it relies to justify the frustration of the expectation. It will then be a matter for the court to weigh the requirements of fairness against that interest.”
Paponette v Attorney General of Trinidad & Tobago  1 AC 1 
Clear and unambiguous representation devoid of relevant qualifications
72. The first instance judge concluded (at ) that in this case
“…there was a promise which was a clear and unambiguous representation devoid of relevant qualifications that a public inquiry into the death of Patrick Finucane would be held….The only relevant qualification to that promise was that the public inquiry had to be recommended by Judge Cory. As soon as that recommendation was made then there was a substantive legitimate expectation that a public inquiry would be held.” (Appendix Vol 1, p136)
73. The Court of Appeal agreed. Their conclusion on this issue can be found at - of Gillen LJ’s judgment (Appendix Vol 1, p27) where the Court said
“We are satisfied that the Government made to the appellant a promise to hold a public inquiry that was clear, unambiguous and devoid of relevant condition subject only to the qualification that it required to be recommended by Judge Cory” (at )
74. The Court’s reasons for reaching this conclusion are set out at -. They included the following:
a) The indication given to the appellant, the Government of Ireland, the NI political parties and the general public as a result of the Weston Park negotiations that a judge of international standing would examine 6 cases including the Patrick Finucane case, and “In the event that a Public Inquiry is recommended in any case, the relevant Government will implement that recommendation.” (Appendix Vol 2, p482, para 19 emphasis added);
b) Mr Justice Peter Cory’s letter of appointment repeated the commitment – “In the event that a Public Inquiry is recommended in any case the relevant Government will implement that recommendation” (Appendix Vol 2, p488);
c) Following his investigation Judge Cory did recommend a public inquiry (Appendix Vol 2, p703, para 1.293);
d) The repetition of the promise on numerous occasions in Parliament and in correspondence. Those statements included the following:
3 March 2004
“I stand by the commitments of Weston Park…” (The Prime Minister, Hansard 3 March 2004 Appendix Vol 2, p596)
1 April 2004
“The Government stands by the commitment we made at Weston Park” (SOSNI Statement to Parliament 1 April 2004 attached to personal letter to applicant from SOSNI of the same date Appendix Vol 3, p724, para 12)
23 September 2004
“The Government has consistently made clear that in the case of the murder of Patrick Finucane…it stands by the commitment made at Weston Park (SOSNI statement to Parliament 23 September 2004 attached to personal letter to applicant from SOSNI of the same date Appendix Vol 3, p744)
2 November 2004
[Tony] “Blair said that now they had finished the criminal trial [of Ken Barrett], the Cory investigation and Stevens 3, they would set up a proper inquiry.” (PM meeting with the Fincuane family, 2 November 2004. Appendix Vol 3, p758)
9 November 2004
“…we [the Government] believe it is important that the inquiry into Patrick Finucane’s death should have powers of compulsion at its disposal, like the Bloody Sunday Inquiry and the other three statutory inquiries that are being established….the inquiry into his death must be given all the powers necessary to uncover the full facts of what happened.” (Letter from SOSNI to Peter Madden 9 November 2004 Appendix Vol 3, p748)
5 July 2005
“…we [the United Kingdom authorities] are committed to an inquiry which will be tasked with uncovering the full facts of what happened and which will, in accordance with Judge Cory’s recommendations, be both independent and, to the extent possible, held in public..” (Letter from UK Permanent Representative to the Council of Europe 5 July 2005 Appendix Vol 3, p803);
“…One option…would have been a non-statutory inquiry. However we are clear that the Finucane inquiry should and will have statutory powers to compel the attendance of witnesses and the disclosure of evidence…”(Letter from UK Permanent Representative to the Council of Europe 5 July 2005 Appendix Vol 3, p804);
“…the UK Government intends that the inquiry should provide a thorough, effective and independent investigation into the circumstances surrounding Patrick Finucane’s death, to the extent possible bearing in mind the passage of time. The inquiry will be held in public, to the extent possible, and will offer the opportunity for the family to participate, subject to the need to protect national security and the lives of others such as informants…” (Letter from UK Permanent Representative to the Council of Europe 5 July 2005 Appendix Vol 3, p808);
1 December 2005
a meeting was held to discuss aspects of the inquiry which are set out in the document at Appendix Vol 3, p774-776
20 February 2006
“I am committed to establishing an independent, statutory inquiry, with full powers to require the production of all the relevant documents and, most importantly, to compel witnesses to attend. The inquiry must also, as Judge Cory recommended, be ‘public to the extent possible’” (Letter from SOSNI to the applicant 20 February 2006 Appendix Vol 3 p785)
“I remain committed about to establishing the truth of what happened to your husband, and it is my strong belief that an inquiry is the only way to do this.” (Letter from SOSNI to the applicant 20 February 2006 Appendix Vol 3 p791)
“I have consistently made clear the key features which I consider to be essential to the Inquiry’s ability to get at the full facts and expose any wrongdoing: the Inquiry will have an independent chair who sees all the evidence; it will have full statutory powers to compel any evidence that could be compelled by a court; it will be public to the extent possible; and its conclusions will be made public.” (Letter from SOSNI to the applicant 10 April 2006 Appendix Vol 3 p796)
7 May 2008
“The Government’s general position with respect to establishing an inquiry was fully explained to Mrs Finucane in the letter from the former Secretary of State dated 20 February 2006” (letter to Peter Madden from Simon Marsh, Principal Private Secretary to SOSNI dated 7 May 2008 Appendix Vol 3 p841)
75. It is submitted that Mr Justice Stephens and the Court of Appeal were correct to conclude that a promise had been made which was “clear and unambiguous” and “devoid of relevant qualification”. It is difficult to imagine what would constitute a clear and unambiguous representation devoid of relevant qualification if the promise in this case did not. The only qualification was that Judge Cory should recommend the holding of a public inquiry, which he subsequently did.
Overriding public interest
76. As noted above, the onus of establishing that there is an overriding public interest justifying the decision to renege on the clear promise made is on the respondent. Whether such an overriding public interest does exist is a matter for the Court (R v North and East Devon Health Authority, ex parte Coughlan  QB 213) para 76).
77. The appellant submits that the respondent has not identified the, or any, overriding public interest justifying the decision to renege on its promise.
78. Mr Justice Stephens’ judgment addressed this issue in one paragraph at Appendix Vol 1, p137,  where the judge says:
“The written ministerial statement laid in Parliament on 11 November 2010 identified six public interest factors five of which could justify the frustration of the expectation namely:
i. The conclusions of reviews and investigations into the case and the extent to which the case has caused, and is capable of causing, public concern.
ii. The experience of the other inquiries established after the Weston Park commitments.
iii. The delay that has occurred since the 2004 announcement and the potential length of any inquiry.
iv. Political developments that have taken place in Northern Ireland since 2004.
v. The potential cost of any inquiry and the current pressures on the UK Government’s finances.
“Those matters were also contained in the briefing paper dated 1 July 2011 and in the detailed background paper for the meeting on 11 July 2011. Inevitably in the decision-making process some of those factors obtained greater emphasise, but I consider that the respondent has established in relation to each of them that they were overriding interests which as far as the decision maker was concerned justified the frustration of the expectation.”
79. The judge therefore relied on the factors identified at the outset of the SOSNI’s “process” when, on the respondent’s case, he had an open mind about the decision and on the discussion of those factors in various briefing papers.
80. The Court of Appeal considered that “…public interest considerations were identified again and again in the course of exchanges with the SOSNI and the Prime Minister deriving from the various briefing papers and policy documents prepared by officials for them. Contained therein were not only frequent references to the public interest issues but a considered analysis of the pros and cons of permitting them to outweigh the demands of the respondents for a public inquiry. It is idle to speculate that these factors were unconnected to the final decision” (Appendix Vol 1, p29, ; see also -).
81. It is submitted that the factors identified at the outset of the SOSNI’s process do not assist with the identification of the overriding public interest which is said to have justified the decision ultimately taken.
82. Similarly, the fact that those factors are discussed at length in the briefing papers referred to by the judge does not assist. It is clear that some of those factors pointed in favour of holding a public inquiry e.g. the factor that required consideration of the commitment made by the previous Government in 2004 (see Appendix Vol 4, p1188).
83. The courts below have fallen into error by conflating the identification and discussion of those factors by officials with their adoption by SOSNI as reasons for the decision taken. The appellant submits that the discussion of issues in briefing papers and their inclusion therein simply cannot be seen as evidence of the reasoning for the final decision. They are evidence only of what the civil servant author considered to be the issues relevant to the decision and/or how it should be made. They or their content cannot be equated with or substituted for a properly reasoned decision. In this case, it is submitted that the extensive discussion of the issues in briefing papers and at meetings during the decision-making process has been erroneously conflated with the reasoning for the final decision. In fact, no or inadequate reasons have been given for the decision. It should be noted, in particular, that neither the Prime Minister nor the SoSNI have sworn affidavits adopting the reasoning set out by officials in the briefing papers or confirming how exactly they (as opposed to their officials) weighed the competing factors.
84. The appellant submits:
a) Nowhere in the papers has/have the overriding public interest/s justifying the decision to renege on the promise been identified;
b) The factors identified prior to and discussed during the decision making process do not discharge that burden because there is no indication as to if or how those factors were actually considered by SOSNI, how he took them into account, what his conclusion was on each of them and/or how those conclusions were balanced to reach the final decision;
c) An overriding public interest/s was/were not identified in the respondent’s oral or written arguments before the Courts below;
d) Consequently, the onus to justify the decision to renege on the clear promise made has not been discharged (see Paponette & others v Attorney General of Trinidad and Tobago  1 AC 1 at ) and the courts below erred in finding that it had been.
85. For these reasons it is submitted that the decision to renege on the promise to hold a public inquiry has not been justified.
Does the decision lie within the macro political field?
86. In the absence of a justification for the decision it is not strictly necessary for the court to consider this question because, no matter how intense the review of the decision, the outcome would remain the same. However, in light of the decisions reached below the appellant considers it appropriate to address the issue in the alternative to the submissions made above.
87. First, the appellant submits that the subject matter of this case, concerning state sponsored assassination of one of its citizens, is a matter for the most anxious scrutiny (see e.g. R v Secretary of State for the Home Department, ex parte Brind  1 AC 696, 757B-C). The concentration by the courts below on the “political” aspects of the decision (which is not accepted, see below) has effectively invoked the doctrine of separation of powers to limit the courts’ ability to scrutinise the decision and the process by which it was taken, on common law grounds.
88. In fact, the appellant submits, this is a paradigm example of a case where the supervisory jurisdiction of the courts is required for the protection of individual rights. This case is about a most serious breach of the rule of law – it is “as bad as it gets”. The function of these courts is to uphold the rule of law
• “One of the principal functions of our courts is, whenever possible, to protect the individual from injustice and oppression. It is important…that we should not abdicate that function.” (per Salmon LJ Nagle v Feilden  2 QB 633, 654F-G)
• “Constitutional dangers exist no less in too little judicial activism as in too much” (per Simon Brown LJ R(International Transport Roth GmbH) v Secretary of State for the Home Department  QB 728 at )
• “…there is no principle more basic to our system of law than the maintenance of the rule of law itself and the constitutional protection afforded by judicial review.” (per Lord Dyson R(Cart) v Upper Tribunal  1 AC 663 at )
89. Secondly, the issue of the standard of review in legitimate expectation cases which lie in the “macro-political field” stems from comments of Laws LJ in the case of R v Secretary of State for Education and Employment, ex parte Begbie  1 WLR 1115 where he said (at 1131)
“….The more the decision challenged lies in what may inelegantly be called the macro-political field, the less intrusive will be the court’s supervision. More than this: in that field, true abuse of power is less likely to be found, since within it changes of policy, fuelled by broad conceptions of the public interest, may more readily be accepted as taking precedence over the interests of groups which enjoyed expectations generated by an earlier policy.”
90. The Begbie case concerned a pre-election pledge made by a Secretary of State when in opposition. Around 1500 people were likely to be affected and enforcement of the pledge would have run contrary to primary legislation. There can be no doubt the decision in the Begbie case was correct and was one which lay in the “macro-political” field, i.e. concerned issues of government policy.
91. The promise in this case was one made to the appellant and her family. That much is clear from the personal correspondence sent to her by successive Secretaries of State and Prime Ministers and her meetings with various holders of those offices. The circumstances surrounding the murder of the appellant’s husband and the subsequent state cover-up were such an affront to the rule of law and standards of modern democratic government that it is not surprising the case gained political attention and the appellant gained support from those involved in political life. Indeed, all right-thinking people will shudder to think what might have lain uncovered without the intervention of politicians and NGOs in Northern Ireland and abroad.
92. However, the fact that the case attained a certain political notoriety does not convert the decision to hold an inquiry into a decision made in the “macro-political field”. It is right that there are many people who were and are “interested” in the decision to hold a public inquiry but it is only the appellant and her family who have “an interest” in that decision. A decision to hold a public inquiry in this case would have implications only for this case.
93. Thirdly, in any event, it is submitted that the reason given for the decision not to hold an inquiry and instead to hold a review is clearly not something that lies within the macro-political field or outside the court’s expertise. On the contrary it is a reason that the court is perfectly placed to assess.
94. The reason offered for the decision to hold a review and not a public inquiry was that it was the quickest and most effective way of getting to the truth. This can be seen in the SOSNI’s statement to the House of Commons and his answers to the questions that followed (see above) and also in the Prime Minister’s response to a question in the House (see above and, for example, Appendix Vol 1 p249).
95. It is entirely within the competence of this court to consider whether a paper-based review of documents held in private, without powers to compel the attendance of witnesses or the production of documents, and without the input of the appellant and her family was the most effective way of getting to the truth of this matter. The appellant submits it was not. The history of obstruction of investigations into this murder militate against it for a start. In addition, Sir Desmond’s task was (save for the conclusions that should be drawn) no different to that given to Judge Cory. The Judge was clear that he could not reach conclusions on the basis of the papers alone and that a public inquiry which allowed for the testing of evidence was required. Sir Desmond’s review mechanism did not allow for that.
96. For these reasons it is submitted that the court’s ability to review this decision is not limited as was found below. On the contrary the court has a duty and an obligation to adopt an anxious scrutiny approach.
Was the frustration of the expectation so unfair as to be a misuse of the respondent’s powers?
97. The short answer to this question is yes. The NI Court of Appeal has previously addressed the test to be applied at this stage of the proceedings in the following terms:
“… the doctrine of legitimate expectation should be narrowly construed. Enforcement of a legitimate expectation involves a restriction on the width of the decision maker’s discretion. The legislature in conferring statutory discretionary powers cannot cater for all circumstances. The decision maker will have to make decisions in the light of changing circumstances. The need for flexibility is the underlying rational for the principle the decision makers cannot lawfully fetter their discretion through inflexible policies, a principle most clearly enunciated in British Oxygen & Co v. Minister of Technology  AC 610. The court will thus lean against the finding of a fettering of discretion. If the doctrine of legitimate expectation were too loosely and widely interpreted and applied, public authorities could too readily be disabled by their representations from acting subsequently in what they truly consider to be and in what may very well be the public interest. Different considerations arise, however, where the authority has undertaken responsibility by clear unambiguous unequivocal representations made to an individual in circumstances in which it would be conspicuously unfair and hence an abuse of power to act contrary to the representation. In such a situation the balance must be struck differently.” (Re Loreto Grammar School’s Application for Judicial Review  NICA 1, , emphasis added)
98. The SOSNI’s decision to renege on the government’s promise to hold a public inquiry if Judge Cory so recommended was “conspicuously unfair” for all of the reasons outlined above and below and “hence an abuse of power”. In this case the balance must be struck in favour of the appellant.
99. The conspicuous unfairness arises from circumstances of the case including the following considerations:
a) The horrendous manner in which Patrick Finucane died, his murder witnessed by his wife and young children;
b) The involvement of agents and employees of the state (both police and military) in his murder;
c) The extensive and elaborate cover up engineered to suppress the truth;
d) The remarks made by a senior government minister just weeks before the murder, at the instigation of the police, and the suspicion that the policy of state-sponsored terrorism was secretly authorised or condoned by ministers;
e) The ongoing government resistance to the holding of a public inquiry;
f) The promise made to the appellant and maintained by successive Secretaries of State;
g) The existence of an international agreement which has been honoured by both Government parties in all respects except as it relates to this case;
h) The significant local and international concern about the case and about the manner in which it was investigated;
i) The deficiencies in the investigative mechanisms employed to date, including Sir Desmond De Silva’s review;
j) The fact that the provision made for family involvement in any of those mechanisms has been minimal; and
k) The fact that public access to the process of investigation has been minimal.
100. In addition, both Mr Justice Stephens and the NI Court of Appeal made much of the fact that there was no guarantee that witnesses would illuminate events further, or even remember events sufficiently (see  of Gillen LJ’s judgment, Appendix Vol 1, p36). There is no reason to suggest that is the case. It does not appear to have posed a difficulty for Sir Desmond De Silva. However, as Lord Steyn said in Re McKerr  1 WLR 807
“One would have expected an affidavit from the state explaining why an investigation is impossible. To such an affidavit I would have paid the closest attention. There is no affidavit. The strategy has been to steer clear of the facts. The observations of the Attorney General that an inquiry is no longer possible, unsupported by evidence, have no more weight before the House than that of any other advocate or litigant in this case who is parti pris. In any event, counsel for Mr McKerr pointed out that the fruits of police investigations are still in existence; the transcripts of the criminal trials are available; and there is available the Stalker/Sampson report consisting of 3,609 pages in 20 separate volumes including one album of maps and photographs. If an inquest were to be held, it would be up to the coroner to read the latter report and consider whether it should be put in evidence. So far neither the coroner in Northern Ireland nor any judge considering the matter has read the report. In Northern Ireland judicial review proceedings it was held that the report is irrelevant. How one can say, in advance of studying it, that it is not relevant I do not understand. The European Court was clearly sceptical. So am I.” 
101. His Lordship also observed, in the case of R v Secretary of State for the Home Department (ex parte Amin)  1 AC 653,
‘In John v Rees  Ch 345, 402, Megarry J observed about the argument that “it will make no difference”:
“As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.”’ (at ).
102. For these reasons, and in light of the history of this case, the only remedy that will suffice is an order of mandamus compelling the holding of a public inquiry into the murder of Patrick Finucane.
V BREACH OF ARTICLE 2 ECHR
103. This issue is examined last in the submissions, after the common law points, in line with the indication given in the case of Osborn v The Parole Board  UKSC 61 (see e.g. )
104. The applicant submits that the failure to hold a public inquiry into the murder of Patrick Finucane was incompatible with her Article 2 ECHR rights and therefore a breach of section 6 of the Human Rights Act 1998.
105. She submits that Article 2 (via section 6 of the Human Rights Act 1998) requires the holding of a public inquiry into her husband’s murder.
106. It is submitted that Mr Justice Stephens was correct to conclude that Article 2 ECHR applies in this case (see Appendix Vol 1, p82 - and p147 ).
107. The Court of Appeal adopted a different approach, following the scheme of the judgments delivered in the Supreme Court in Keyu  AC 1355 i.e. deciding first what approach would be taken in Strasbourg, without going on to decide if the Human Rights Act applied in this case (Appendix Vol 1, pp44-60, paras -).
108. It is submitted that this was the wrong approach to adopt as this is a case which falls squarely within the parameters of the Supreme Court decision in McCaughey  1 AC 725.
109. The decision in McCaughey was based on the ECtHR’s decision in Silih v Slovenia (2009) 49 EHRR 37 where the ECtHR said
159 Against this background, the Court concludes that the procedural obligation to carry out an effective investigation under art.2 has evolved into a separate and autonomous duty. Although it is triggered by the acts concerning the substantive aspects of art.2 it can give rise to a finding of a separate and independent “interference” within the meaning of the Blečić judgment. 74 In this sense it can be considered to be a detachable obligation arising out of art.2 capable of binding the state even when the death took place before the critical date.
161 However, having regard to the principle of legal certainty, the Court’s temporal jurisdiction as regards compliance with the procedural obligation of art.2 in respect of deaths that occur before the critical date is not open-ended.
162 First, it is clear that, where the death occurred before the critical date, only procedural acts and/or omissions occurring after that date can fall within the Court’s temporal jurisdiction.
163 Secondly, there must exist a genuine connection between the death and the entry into force of the Convention in respect of the respondent State for the procedural obligations imposed by art.2 to come into effect.
Thus a significant proportion of the procedural steps required by this provision—which include not only an effective investigation into the death of the person concerned but also the institution of appropriate proceedings for the purpose of determining the cause of the death and holding those responsible to account 76 —will have been or ought to have been carried out after the critical date.
However, the Court would not exclude that in certain circumstances the connection could also be based on the need to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective manner.
110. In McCaughey the Supreme Court Justices applied the Silih principle to the application of the Article 2 right under the Human Rights Act. Lord Phillips said:
“…if a state decides to carry out those procedural steps long after the date of the death, they must have the attributes that article 2 requires.” (at )
“It is this obligation that is of potential relevance in the current case. The United Kingdom is not under a continuing obligation under article 2 to carry out an investigation into the deaths over 20 years ago of Martin McCaughey or Dessie Grew. But an inquest is going to be held into those deaths. As a matter of international obligation it is now apparent that the United Kingdom has come under a free standing obligation under article 2 to ensure that the inquest complies with the procedural requirements of that article, at least in so far as this is possible under domestic law. In Šilih v Slovenia the Grand Chamber was satisfied that the two sets of proceedings that had been initiated were “theoretically capable of leading to the establishment of the exact circumstances which had led to the death and potential responsibility for it at all levels”: see para 125. The appeals before us have proceeded on the basis that the coroner will be able, if so required, to conduct an inquest that satisfies the requirements of article 2 .” 
“…In so far as article 2 imposes any obligation, this is a new, free standing obligation that arises by reason of current events. The relevant event in these appeals is the fact that the coroner is to hold an inquest into Martin McCaughey’s and Dessie Grew’s deaths. Šilih v Slovenia establishes that this event gives rise to a free standing obligation to ensure that the inquest satisfies the procedural requirements of article 2. That obligation is not premised on the need to explore the possibility of unlawful state involvement in the death. The development of the law by the Strasbourg court has accorded to the procedural obligation a more general objective than this, albeit that in the circumstances of these appeals state involvement is likely to be a critical area of investigation.” 
“Is the presumed intention of Parliament when enacting the HRA that there should be no domestic requirement to comply with this international obligation? This is a very different question from that considered by the House of Lords in In re McKerr  1 WLR 807 , and so far as I am concerned it produces a different answer. The mirror principle should prevail. It would not be satisfactory for the coroner to conduct an inquest that did not satisfy the requirements of article 2 , leaving open the possibility of the claimants making a claim against the United Kingdom before the Strasbourg court. On the natural meaning of the provisions of the HRA they apply to any obligation that currently arises under article 2 . These appeals are concerned with such an obligation. The mirror principle reinforces an interpretation that does not exclude this obligation from the ambit of the HRA. It may be that this involves a departure from the decision of the House of Lords in In re McKerr…” 
111. Lord Hope said:
“… We are told by Strasbourg that the procedural obligation, as now understood, has a life of its own as it is detachable from the substantive obligation. Furthermore, there is no need for a trigger to bring the obligation into operation in this case, as it has been decided that an inquest is going to be held into these deaths. The objection that this would be giving retrospective operation to section 6 of the 1998 Act does not arise. The question whether the inquests must satisfy the procedural requirements of article 2 otherwise they will be unlawful in terms of that section is being directed to something that has yet to take place. The answer to it is not to be found in In re McKerr , as the House treated the procedural and the substantive obligations in that case as inseparable.” 
“…But the holding of inquests into the deaths in this case will be a procedural act which the state itself has decided should take place and, as the deaths were the result of acts by agents of the state, the circumstances meet the test for an article 2 inquiry that was identified in R (Middleton) v West Somerset Coroner  2 AC 182 , para 3.” 
112. Lady Hale said:
“if there is now [i.e. post 2 October 2000] to be an inquiry into a death for which the state may bear some responsibility under article 2 , it should be conducted in an article 2-compliant way.” 
113. Lord Kerr concluded:
(i) “There must be a connection between the substantive event (the death) and the critical date (in this case, the coming into force of the HRA)”
(iii) “Where much of the investigation into the death occurs after the critical date, the connection is present” 
114. Also for the majority, Lord Dyson said:
“The deaths were 10 years before the HRA came into force. That is a relevant factor to be taken into account when considering whether there is a sufficient connection between the deaths and the coming into force of the Act. But Šilih v Slovenia 49 EHRR 996 shows that it is not the only factor. In particular, of considerable importance is the fact that at that date the investigation had been initiated, but a significant proportion of the procedural steps required to be taken had not yet been taken. In that respect, the facts of the case are similar to the facts in Šilih v Slovenia. This is the feature of Šilih v Slovenia which is emphasised by the majority at para 165 and by Judge Lorenzen at para O-I4 of the EHRR report.” 
“I would hold that the inquests into the deaths should be conducted in accordance with the requirements of article 2. I also agree with Lord Phillips PSC that this conclusion is reinforced by the mirror principle. It would be unsatisfactory for the coroner to conduct an inquest which did not satisfy article 2 leaving open the possibility of a claim against the United Kingdom in the ECtHR.” 
115. In this case a significant portion of the procedural steps required to comply with Article 2 took place after the coming into force of the HRA in October 2000. As such, they had to comply with Article 2 ECHR for the reasons outlined by the majority in McCaughey.
116. The outcome of McCaughey has been applied, without demur from state agencies, to the running of all inquests in Northern Ireland concerning deaths caused by or involving state agents, even where the death occurred prior to October 2000. In particular, it has been applied to second inquests directed by the Attorney General for Northern Ireland after October 2000 in relation to deaths that took place prior to that date, often many years prior to that date.
117. It is submitted, for the same reasons, the actions taken in this case after the coming into force of the HRA must satisfy the requirements of Article 2. There is no reason to confine the McCaughey principle either to inquests or to inquests relating to pre-October 2000 deaths which were still to be held at that date.
118. Indeed at  of her judgment in McCaughey (see above) Lady Hale did not so confine the principle, referring to the broader term “inquiry” rather than inquest. Moreover, in Keyu Lord Neuberger commented, in parenthesis, that he could “see no reason why the same reasoning [the McCaughey principle] would not apply where the decision was to hold an inquiry into a death which had occurred before 2 October 2000” (emphasis added).
119. In light of the clear application of McCaughey in this case it should not be necessary for the Court to consider further the cases of Janowiec v Russia and Keyu which are primarily concerned with the jurisdiction ratione temporis of the European Court of Human Rights and not the jurisdiction of domestic courts pursuant to the Human Rights Act. Nor should it be necessary to consider the case of Brecknell v United Kingdom 46  EHRR 957. If such an examination becomes necessary then it is submitted that:
(i) Mr Justice Stephens’ consideration of those cases, the principles emerging from them and their application to this case was correct; and
(ii) the Court of Appeal’s conclusions on whether a valid Article 2 claim arises were correct (Appendix Vol 1, pp46-50, -).
120. For these reasons it is submitted that action taken in this case following the coming into force of the European Convention on Human Rights had to comply with Article 2 ECHR.
Has there been compliance with the requirements of Article 2?
121. Of course, if the requirements of Article 2 ECHR have already been met then that provision cannot require any further action on this case. Contrary to the findings of Mr Justice Stephens and the Court of Appeal, the appellant submits that Article 2 has not been satisfied.
122. The appellant submits that this is one of those rare cases where compliance with the Article 2 ECHR obligation to investigate a death (and thus with section 6 of the Human Rights Act 1998) requires the holding of a public inquiry. No lesser mechanism will suffice. That requirement stems from the nature of the case, the high level of concern it has generated, the information now available and the manner in which investigation has been obstructed by the state over the 29 years since Patrick Finucane’s murder. It also stems from the use of other international instruments to interpret the requirements of Article 2 ECHR.
123. The Court of Appeal considered that there had been compliance with the Article 2 investigative obligation for the reasons set out at  of Gillen LJ’s judgment (Appendix Vol 1, p53) and, consequently, that the holding of a public inquiry was not required. In so doing it is submitted that the court erred in:
a) disregarding international standards over and above the ECHR – such standards must be taken into account in interpreting the Article 2 ECHR obligation to investigate a death;
b) giving undue weight to the ECtHR’s failure to order a public inquiry and to the decision of the Committee of Ministers to close its supervision of the execution of the Finucane v UK judgment insofar as the individual measures are concerned; and
c) concluding that there has been effective investigation of Patrick Finucane’s murder.
The use of international human rights standards to interpret the ECHR
124. In its judgment in the case of Finucane v UK at - the ECtHR set out the UN Principles for the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (1989) and the Model Protocol for the Investigation of extra-legal, summary and arbitrary Executions (the “Minnesota Protocol” 1991). The appellant submits that these principles have been breached in significant respects in the investigation of the murder of Patrick Finucane.
125. The Minnesota Protocol in particular recognises that there may exist certain cases in which the only form of investigation that meets international standards is a commission of inquiry with powers of compulsion. Both documents emphasise the need for the involvement of the next of kin of the deceased.
126. Indeed the importance of the involvement of family members in death investigations has been emphasised by the High Court in Northern Ireland in relation to inquests
“If inquests are to maintain public confidence, put minds at rest and answer the questions of the families who are bereaved, it is vital to ensure that the interested parties/next of kin can participate in an informed, open and transparent fashion on an equal footing with all other parties throughout the various stages of the Inquest including, at the outset of the process, the very scope of the inquest. This can only be achieved where appropriate disclosure has been made of potentially relevant material. As Mr McDonald QC, who appeared for certain of the notice parties with Ms Doherty, reminded me next of kin may be in a unique position to assist the Coroner pursue avenues not readily apparent to him and to throw new light on material that on first blush may give the appearance of being inconsequential. I accept the strength of the argument of Mr O’Donoghue QC, who appeared on behalf of the Coroner with Mr Daly, that the need for a public investigation, in this instance into issues surrounding the allegation that the State has a “shoot to kill” policy, requires the Coroner to view disclosure in a generous light to enable informed representations to be made by the notice parties as to the scope of the inquest itself. Hence the need to ensure they are appropriately involved in the manner suggested by the Coroner in this instance.” (per Gillen J, Re Chief Constable’s Application  NIQB 66 at )
127. The appellant and her family have not been involved in any of the investigations into her husband’s murder in any way other than by the provision of evidence as witnesses. They chose not to meet Sir Desmond De Silva for a number of reasons including the fact that they did not agree that his review could get at the truth and because he refused to answer a number of questions posed on the appellant’s behalf shortly after his appointment. In any event it is clear that the appellant could not have been involved in his review in any meaningful way.
128. More recently there have been specific comments made on the Patrick Finucane case by the UN Human Rights Committee which interprets the requirements of the International Covenant on Civil and Political Rights [August 2015] and the UN Committee Against Torture which interprets the requirements of the UN Convention Against Torture . Those comments were made in full knowledge of the outcome of the De Silva review and both bodies expressed concern about the failure to establish a public inquiry.
129. The state of international law and standards on a particular issue is an important interpretative tool for courts considering Convention rights. By way of example, at paragraphs 85 & 86 of its judgment in the case of Demir & Baykara v Turkey  48 EHRR 54, the Grand Chamber of the ECtHR made it clear that
85. The Court, in defining the meaning of terms and notions in the text of the Convention, can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values. The consensus emerging from specialised international instruments and from the practice of Contracting States may constitute a relevant consideration for the Court when it interprets the provisions of the Convention in specific cases.
86. In this context, it is not necessary for the respondent State to have ratified the entire collection of instruments that are applicable in respect of the precise subject matter of the case concerned. It will be sufficient for the Court that the relevant international instruments denote a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of member States of the Council of Europe and show, in a precise area, that there is common ground in modern societies (see, mutatis mutandis, Marckx, cited above, § 41).
130. The Court of Appeal effectively disregarded the international human rights standards and comments from Human Rights Treaty bodies at - of its judgment (Appendix Vol 1, p52). It erred in failing to appreciate the significance of these principles for the interpretation of Article 2 ECHR in the circumstances of this case.
131. The UN Principles for the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (1989) have clearly been breached in relation to the prevention of the murder of Patrick Finucane. However it is submitted that they have also been breached in relation to its investigation by the state. The principles applying to investigation include the following (emphasis added to show the failings in the de Silva review)
9. There shall be thorough, prompt and impartial investigation of all suspected cases of extra-legal, arbitrary and summary executions, including eases where complaints by relatives or other reliable reports suggest unnatural death in the above circumstances. Governments shall maintain investigative offices and procedures to undertake such inquiries. The purpose of the investigation shall be to determine the cause, manner and time of death, the person responsible, and any pattern or practice which may have brought about that death. It shall include an adequate autopsy, collection and analysis of all physical and documentary evidence and statements from witnesses. The investigation shall distinguish between natural death, accidental death, suicide and homicide.
10. The investigative authority shall have the power to obtain all the information necessary to the inquiry. Those persons conducting the investigation shall have at their disposal all the necessary budgetary and technical resources for effective investigation. They shall also have the authority to oblige officials allegedly involved in any such executions to appear and testify. The same shall apply to any witness. To this end, they shall be entitled to issue summonses to witnesses, including the officials allegedly involved and to demand the production of evidence.
11. In cases in which the established investigative procedures are inadequate because of lack of expertise or impartiality, because of the importance of the matter or because of the apparent existence of a pattern of abuse, and in cases where there are complaints from the family of the victim about these inadequacies or other substantial reasons, Governments shall pursue investigations through an independent commission of inquiry or similar procedure. Members of such a commission shall be chosen for their recognized impartiality, competence and independence as individuals. In particular, they shall be independent of any institution, agency or person that may be the subject of the inquiry. The commission shall have the authority to obtain all information necessary to the inquiry and shall conduct the inquiry as provided for under these Principles.
16. Families of the deceased and their legal representatives shall be informed of, and have access to any hearing as well as to all information relevant to the investigation, and shall be entitled to present other evidence. The family of the deceased shall have the right to insist that a medical or other qualified representative be present at the autopsy. When the identity of a deceased person has been determined, a notification of death shall be posted, and the family or relatives of the deceased shall be informed immediately. The body of the deceased shall be returned to them upon completion of the investigation.
17. A written report shall be made within a reasonable period of time on the methods and findings of such investigations. The report shall be made public immediately and shall include the scope of the inquiry, procedures and methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law. The report shall also describe in detail specific events that were found to have occurred and the evidence upon which such findings were based, and list the names of witnesses who testified, with the exception of those whose identities have been withheld for their own protection. The Government shall, within a reasonable period of time, either reply to the report of the investigation, or indicate the steps to be taken in response to it.
132. The Model Protocol for the Investigation of extra-legal, summary and arbitrary Executions (the “Minnesota Protocol” mentioned at paragraph 58 of the European Court’s judgment in Finucane) includes the following (again emphasis is added to show the failings of the De Silva review)
D. Commission of inquiry
In cases where government involvement is suspected, an objective and impartial investigation may not be possible unless a special commission of inquiry is established….This section sets out factors that give rise to a presumption of government complicity, partiality or insufficient expertise on the part of those conducting the investigation. Any one of these presumptions should trigger the creation of a special commission of inquiry. It then sets out procedures that can be used as a model for the creation and function of commissions of inquiry. The procedures were derived from the experience of major inquiries that have been mounted to investigate executions or similarly grievous cases of human rights violations.
1. Factors triggering a special investigation
Factors that support a belief that the Government was involved in the execution, and that should trigger the creation of a special impartial investigation commission include:
(ii) Where the modus operandi is recognizably attributable to government-sponsored death squads;
(iii) Where persons in the Government or associated with the Government have attempted to obstruct or delay the investigation of the execution;
(b) As set out in paragraph 11 of the Principles, an independent commission of inquiry or similar procedure should also be established where a routine investigation is inadequate for the following reasons:
(iii) The importance of the matter; or
(iv) The apparent existence of a pattern of abuse; or
(v) Complaints from the family of the victim about the above inadequacies or other substantial reasons.
3. Power of the commission
The principles set out in a general manner the powers of the commission. More specifically such a commission would need the following:
(a) To have the authority to obtain all information necessary to the inquiry, for example, for determining the cause, manner and time of death, including the authority to compel testimony under legal sanction, to order the production of documents including government and medical records, and to protect witnesses, families of the victim and other sources;
It follows from general principles of criminal procedure that hearings should be conducted in public, unless in camera proceedings are necessary to protect the safety of a witness. In camera proceedings should be recorded and the closed, unpublished record kept in a known location.
Occasionally, complete secrecy may be required to encourage testimony, and the commission will want to hear witnesses privately, informally and without recording testimony.
12. Receipt of evidence
Power to compel evidence. As emphasized in Principle 10 (see annex I), commissions of inquiry should have the power to compel testimony and production of documents: in this context, Principle 10 refers to “the authority to oblige officials” allegedly involved in extra-legal, arbitrary and summary executions. Practically, this authority may involve the power to impose fines or sentences if the Government or individuals refuse to comply.
Use of witness statements. Commissions of inquiry should invite persons to testify or submit written statements as a first step in gathering evidence Written statements may become an important source of evidence if their author become afraid to testify, cannot travel to proceedings, or are otherwise unavailable.
Use of evidence from other proceedings. Commissions of inquiry should review other proceedings that could provide relevant information. For example the commission should obtain the findings from an inquest into cause of death conducted by a coroner or medical examiner. Such inquests generally rely on postmortem or autopsy examinations. A commission of inquiry should review the inquest and the results of the autopsy presented to the inquest to determine if they were conducted thoroughly and impartially. If the inquest and autopsy were so conducted, the coroner’s findings are entitled to be given great weight.
13. Rights of parties
As mentioned in Principle 16, families of the deceased and their legal representatives shall be informed of, and have access to, any hearing and to all information relevant to the investigation, and shall be entitled to present evidence. This particular emphasis on the role of the family as a party to the proceedings implies the specially important role the family’s interests play in the conduct of the investigation. However, all other interested parties should also have the opportunity at being heard. As mentioned in Principle 10, the investigative body shall be entitled to issue summons to witnesses, including the officials allegedly involved and to demand the production of evidence. All these witnesses should be permitted legal counsel if they are likely to be harmed by the inquiry, for example, when their testimony could expose them to criminal charges or civil liability. Witnesses may not be compelled to testify against themselves regarding matter unrelated to the scope of inquiry.
There should be an opportunity for the effective questioning of witnesses by the commission. Parties to the inquiry should be allowed to submit written questions to the commission.
14. Evaluation of evidence
The commission shall assess all information and evidence it receives to determine its relevance, veracity, reliability and probity. The commission should evaluate oral testimony based upon the demeanour and overall credibility of the witness. Corroboration of evidence from several sources will increase the probative value of such evidence. The reliability of hearsay evidence from several sources will increase the probative value of such evidence. The reliability of hearsay evidence must be considered carefully before the commission should accept it as fact. Testimony not tested by cross-examination must also be viewed with caution. In camera testimony preserved in a closed record or not recorded at all is often not subjected to cross-examination and therefore may be given less weight.
15. The report of the commission
As stated in Principle 17, the commission should issue a public report within a reasonable period of time. It may be added that where the commission is not unanimous in its findings, the minority commissioner(s) should file a dissenting opinion.
From the practical experience gathered, commission of inquiry reports should contain the following information:
(a) The scope of inquiry and terms of reference;
(b) The procedures and methods of evaluating evidence;
(c) A list of all witnesses who have testified, except for those whose identities are withheld for protection and who have testified in camera, and exhibits received in evidence;
(d) The time and place of each sitting (this might be annexed to the report);
(e) The background to the inquiry such as relevant social, political and economic conditions;
(f) The specific events that occurred and the evidence upon which such findings are based;
(g) The law upon which the commission relied;
(h) The commission’s conclusions based upon applicable law and findings of fact;
(i) Recommendations based upon the findings of the commission.
133. From these standards it is clear that the examination of the murder of Patrick Finucane has fallen short of what is required, even when all of the investigations and reviews are considered cumulatively.
134. This conclusion is further mandated by the stance taken by the authoritative international treaty bodies who recognise that the case requires a public inquiry. In its concluding observations on the UK’s report in August 2015 the UN’s Human Rights Committee “noted with concern” that “the review relating to the murder of Patrick Finucane (i.e. the de Silva review) does not appear to satisfy the effective investigation standards under the Covenant”. The Committee further indicated that the UK should “consider launching an official inquiry into the murder of Patrick Finucane”. (Appendix Vol 7, pp2248-2249, para 8)
135. In 2008 the same Committee had said:
9. The Committee remains concerned that, a considerable time after murders (including of human rights defenders) in Northern Ireland have occurred, several inquiries into these murders have still not been established or concluded, and that those responsible for these deaths have not yet been prosecuted. Even where inquiries have been established, the Committee is concerned that instead of being under the control of an independent judge, several of these inquiries are conducted under the Inquiries Act 2005 which allows the Government minister who is responsible for establishing an inquiry to control important aspects of that inquiry. (art.6)
The State party should conduct, as a matter of particular urgency given the passage of time, independent and impartial inquiries in order to ensure a full, transparent and credible account of the circumstances surrounding violations of the right to life in Northern Ireland. (Appendix Vol 7, p2394)
136. In 2013 (also after the publication of the de Silva review report), the UN Committee Against Torture said that it “is concerned about the State party’s decision not to hold a public inquiry into the death of Patrick Finucane” and recommended that one should be established (Appendix Vol 7, p2278, para 23).
137. It is submitted that these principles and comments clearly show that international standards require the establishment of a public inquiry into the murder of Patrick Finucane. Article 2 takes its meaning and content from these standards and it is therefore submitted that this is one of the rare cases in which only a public inquiry will suffice.
Decisions of the ECtHR and the Committee of Ministers
138. Section 2(1) of the Human Rights Act 1998 clearly states that these decisions must be taken into account by the courts insofar as they are relevant to the proceedings.
139. In this case it is submitted that little or no significance can be attached to the failure of the ECtHR to order the establishment of a public inquiry in its judgment in the case of Finucane v UK. As the Court itself said in that case at §89
“…the Court has not previously given any indication that a Government should, as a response to such a finding of a breach of Article 2, hold a fresh investigation into the death concerned and has on occasion expressly declined to do so (see Ülkü Ekinci v. Turkey, no. 27602/95, § 179, 16 July 2002). Nor does it consider it appropriate to do so in the present case.”
140. As for the decision made by the Committee of Ministers, it is submitted that it is of similarly limited significance in the context of this case. First, it is not a legal ruling. The Committee of Ministers is the Council of Europe’s decision-making body. It is comprised of the Foreign Affairs Ministers of all of the member states, or their permanent diplomatic representatives in Strasbourg. It is political in nature.
141. Secondly, in any event, the Committee of Ministers closed its supervision of the case on the basis that all relevant information had been seen and examined. It did not know that there was “new and significant information” available to Sir Desmond De Silva that had not been seen by Lord Stevens or Judge Cory. Indeed there was material available to Judge Cory that had not been seen by Lord Stevens. That was in circumstances where Judge Cory had been given assurances similar to those given to Sir Desmond De Silva.
142. The “new and significant information” was such that Sir Desmond described it thus:
“…This has served to throw a flood of light on certain events that are crucial to my findings. In many instances, I have had to re-evaluate the evidence they had previously scrutinised. On occasions, after testing the witness statements produced from the Stevens archive against other material made available to me, I have been able to put aside the evidence of a witness on a particular point when it has clearly been contradicted.” (Appendix Vol 5, p1420 para 1.37)
143. It still isn’t clear to the appellant what that “new and significant information” is. More than five years after Sir Desmond De Silva’s review the PSNI and PPSNI have yet to complete their examination of his report.
144. The appellant has submitted to the Committee of Ministers that the closure of its supervision was premature (Appendix Vol 7, p2461-2463). An application to reopen will be determined at the close of these proceedings. The Government of Ireland supports the appellant’s application to reopen the supervision.
145. Thirdly, the case was closed at a time when the Committee was aware a promise had been made to hold a public inquiry and discussions were taking place to allow that to happen. It strongly encouraged the continuation of those discussions.
146. The Committee closed its consideration of the individual measures in the Finucane case in its interim resolution of 19 March 2009 which included the following:
“Noting with satisfaction that, as to the possibility of holding a statutory inquiry, the United Kingdom authorities are currently in correspondence with the Finucane family on the basis on which any inquiry would be established;
“Strongly encouraging the United Kingdom authorities to continue discussions with the applicant on the terms of a possible statutory inquiry.” (Appendix Vol 3, p973)
147. In other words, the Committee of Ministers made its decision to close the case in circumstances where the UK Government was actively working on proposals for establishing a statutory public inquiry. The resolution also noted that no new information from Stevens 3 had been made public since the Court’s judgment ((Appendix Vol 3, p973 reinforcing the Court’s finding that Stevens 3 could not satisfy Article 2 due to its lack of publicity). The UK government had argued before the Committee that Stevens 3 was sufficient to comply with Article 2 in this case.
148. The resolution also noted that the DPP had issued a public statement for the failure to prosecute arising out of Stevens 3 and that there had been no judicial review of that decision.
149. However, as Mr Justice Stephens found, the Committee of Ministers closed its consideration of the individual measures in the case relying on the Stevens 3 investigation and the DPP’s consideration of the product of that investigation. The decision was made
“…without any knowledge of the fact that there was documentary material either directly or indirectly available to the authorities which was received by Sir Desmond de Silva that was not available to Sir John Stevens, Judge Cory or the DPP (NI). Sir Desmond describes that new documentary material as including new and significant information. Accordingly significant information was not seen by the DPP(NI) prior to making prosecutorial decisions and in turn the documents were not reviewed by independent senior counsel prior to those decisions being made…In a situation where, as here, documents which in the opinion of Sir Desmond contain new and significant information were not available to or considered by the PSNI or the DPP(NI) and where those documents were in the possession of Government departments or could have been obtained by the PSNI from other organisations, I consider that there was not, as at March 2009, an effective investigation in compliance with Article 2 ECHR.” (Appendix Vol 1, p148 )
The efficacy of previous investigations
150. It is clear from the ECtHR’s decision in Finucane v UK that the investigations which had taken place prior to that decision did not, singly or cumulatively, provide compliance with Article 2 ECHR.
151. The court concluded:
a) The initial RUC investigation was not independent as it was carried out by members of the same police force suspected of issuing threats against Patrick Finucane. That lack of independence also raised doubts as to the thoroughness or effectiveness with which the possibility of collusion was pursued (§74-§76);
b) The inquest was concerned only with the immediate circumstances of the shooting and failed to address serious and legitimate concerns of the family and the public. It could not be regarded as providing an effective investigation into the incident or a means of identifying or leading to the prosecution of those responsible (§77-§78);
c) The Stevens 1 and 2 inquiries were not concerned with investigating the death of Patrick Finucane with a view to bringing prosecutions as appropriate. The reports were not made public and the applicant was never informed of their findings. The necessary elements of public scrutiny and accessibility of the family were missing (§79);
d) As to Stevens 3, it was acknowledged that investigation could not comply with the requirement of promptness. However, in addition, the Court had seen the “summary overview” which is the only material ever made public by the Stevens team. It said “It is not apparent to what extent, if any, the final report will be made public, although a summary overview has recently been published. In the light of these defects, the Court does not find it necessary to consider further allegations…” (§80). The Court therefore identified the lack of promptness/due expedition and the (at that stage apparent, but later confirmed) lack of publicity as defects for the purposes of Article 2 ECHR;
e) At §81-§83 the Court considered the role of the DPP, observing that reasons had not been given for the failure to prosecute following the Stevens 1 and 2 inquiries. It noted that the purpose of such reasons is to provide “reassurance that the rule of law had been respected.”
152. Also in its judgment the Court repeated its outline of the requirements of the Article 2 investigative obligation:
67. The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, p. 49, § 161, and Kaya v. Turkey, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 324, § 86). 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. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, 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 either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (see, for example, mutatis mutandis, İlhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000-VII).
68. For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see, for example, Güleç v. Turkey, judgment of 27 July 1998, Reports 1998-IV, p. 1733, §§ 81-82; Oğur v. Turkey [GC], no. 21594/93, §§ 91-92, ECHR 1999-III). This means not only a lack of hierarchical or institutional connection but also a practical independence (see, for example, Ergi v. Turkey, judgment of 28 July 1998, Reports 1998-IV, pp. 1778-79, §§ 83-84, and the recent Northern Irish cases cited above, for example, McKerr, § 128, Hugh Jordan, § 120, and Kelly and Others, § 114).
69. The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances (see, for example, Kaya, cited above, p. 324, § 87) and to the identification and punishment of those responsible (see Oğur, cited above, § 88). This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death (see, for example, Salman v. Turkey [GC], no. 21986/93, § 106, ECHR 2000-VII; Tanrıkulu v. Turkey [GC], no. 23763/94, § 109, ECHR 1999-IV; and Gül v. Turkey, 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard (see the recent Northern Irish cases concerning the inability of inquests to compel the security force witnesses directly involved in the use of lethal force, for example McKerr, cited above, § 144, and Hugh Jordan, cited above, § 127).
70. A requirement of promptness and reasonable expedition is implicit in this context (see Yaşa v. Turkey, judgment of 2 September 1998, Reports 1998-VI, pp. 2439-40, §§ 102-04; Çakıcı v. Turkey [GC], no. 23657/94, §§ 80, 87 and 106, ECHR 1999-IV; Tanrıkulu, cited above, § 109; and Mahmut Kaya v. Turkey, no. 22535/93, §§ 106-07, ECHR 2000-III). While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see, for example, Hugh Jordan, cited above, §§ 108, 136 40).
71. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Güleç, cited above, p. 1733, § 82; Oğur, cited above, § 92; Gül, cited above, § 93; and the recent Northern Irish cases, for example McKerr, cited above, § 148).
153. Of the “investigations” that took place or concluded after the ECtHR decision the following comments can be made:
a) Stevens 3 was a police investigation to which the appellant had no input and not all of the results were made public;
b) Judge Cory’s task was limited to considering whether the case papers showed there was a case to be answered which required more detailed inquiry by way of a public inquiry. His conclusions were provisional only. He did not take any evidence;
c) Sir Desmond De Silva’s review was described in the papers as “Cory II”. The only difference was that he was asked to reach conclusions, in circumstances where Judge Cory clearly considered that he could not. The family were not involved, Sir Desmond had no powers to take evidence or compel production of documents and although he took meetings and received “evidence” from individuals it was not sworn evidence and it was not challenged by way of cross-examination. While Sir Desmond did write to Mrs Finucane and was keen to meet her it is clear that she would not have been asked to attend meetings Sir Desmond held with individuals, nor would she have been afforded the opportunity to ask those individuals questions. The review’s limited powers meant that it could not properly and thoroughly test the evidence. His report was published, along with some of the documents he considered. That such a review would not be Article 2 compliant was acknowledged in the briefing paper prepared by Brendan Threlfall of the NIO on 17 May 2011 (Appendix Vol 4, pp1016-1017, para 5).
154. It also should be noted that the conviction of Mr Barrett for his role in the murder is not enough to comply with Article 2 in a case like this. Quite apart from the fact that Mr Barratt pleaded guilty, his trial did not and would not have addressed his involvement and the involvement of others with the machinery of the state. This is a case, like McKerr v United Kingdom  34 EHRR 20 where
“…there may be circumstances where issues arise that have not, or cannot, be addressed in a criminal trial and … Article 2 may require a wider examination. Serious concerns arose from these three incidents as to whether police counter-terrorism procedures involved an excessive use of force, whether deliberately or as an inevitable by-product of the tactics that were used. The deliberate concealment of evidence also cast doubts on the effectiveness of investigations in uncovering what had occurred. In other words, the aims of reassuring the public and the members of the family as to the lawfulness of the killings had not been met adequately by the criminal trial. In this case therefore, the Court finds that Article 2 required a procedure whereby these elements could be examined and doubts confirmed, or laid to rest.” (at §137)
155. In the case of Edwards v UK  35 EHRR 19 the European Court of Human Rights considered a claim that there had been a violation of Article 2 ECHR in relation to the investigation of a death in prison. The deceased had been killed by a mentally ill cellmate. His death had been the subject of an inquiry held in private. The Court found that
“The applicants, parents of the deceased, were only able to attend three days of the inquiry when they themselves were giving evidence. They were not represented and were unable to put any questions to the witnesses, whether through their own counsel or, for example, through the inquiry panel. They had to wait until the publication of the final version of the inquiry report to discover the substance of the evidence about what had occurred. Given their close and personal concern with the subject matter of the inquiry, the Court finds that they cannot be regarded as having been involved in the procedure to the extent necessary to safeguard their interests.” (at §84)
156. The Court also found that the publication of the inquiry’s report was not enough to ensure public scrutiny because
“…In the present case, where the deceased was a vulnerable individual who lost his life in a horrendous manner due to a series of failures by public bodies and servants who bore a responsibility to safeguard his welfare, the Court considers that the public interest attaching to the issues thrown up by the case was such as to call for the widest exposure possible. No reason has been put forward for holding the inquiry in private…” (at §83)
157. Overall, the court found that
“…the lack of power to compel witnesses and the private character of the proceedings from which the applicants were excluded, save when they were giving evidence, failed to comply with the requirements of Article 2 of the Convention to hold an effective investigation into Christopher Edward’s death.” (at §87)
158. The issues in this case called for the “widest exposure possible” and for the involvement of the family in any investigation. The investigations held to date have not satisfied those requirements.
159. For these reasons the applicant submits that her appeal should succeed and the relief sought by her should be granted for the following reasons:
a) The decision making process announced by SOSNI was a sham process and was pre-determined;
b) The Respondent did not follow the stated decision making process;
c) The Appellant enjoyed a substantive legitimate expectation that a public inquiry into the murder of Patrick Finucane would be established and the Respondent was not justified in departing from that expectation by refusing to establish a public inquiry and instead to conduct an independent review; and
d) The failure to establish a public inquiry into the murder of Patrick Finucane was incompatible with the appellant’s Article 2 ECHR rights and section 6 of the Human Rights Act 1998.
Barry Macdonald QC SC
Fiona Doherty QC
9 May 2018