The Supreme Court held that government statements had created a legitimate expectation of a public inquiry into the 1989 murder of Patrick Finucane, but that the government could lawfully depart from the promise on genuine macro-political policy grounds. The investigations that had taken place, including Sir Desmond de Silva’s review, did not satisfy the procedural obligation under article 2 of the ECHR. The Court declared that no article 2-compliant inquiry had occurred, while leaving the form of any further investigation to the state.
Solicitor Patrick Finucane was murdered at his home in Belfast in 1989. Later investigations found collusion with members of the security forces. His widow sought an effective investigation into the circumstances of his death.
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An initial Royal Ulster Constabulary investigation produced no charges. A 1990 inquest was confined to the immediate circumstances of the death and excluded evidence from Mrs Finucane about alleged threats. Sir John Stevens conducted three inquiries into collusion. The third concluded that the murder could have been prevented, that there had been collusion, and that intelligence handling had been seriously deficient. Brian Nelson, a Force Research Unit agent inside the Ulster Defence Association, was convicted of terrorist offences unconnected with the murder. William Stobie was charged with the murder; the case collapsed and he was later killed.
After the Weston Park talks, retired Canadian judge Peter Cory recommended a public inquiry. He found contradictory evidence about advance knowledge, failures to warn Mr Finucane of threats, and material suggesting that elements of the security forces regarded themselves as above the law. The government had undertaken to act on any such recommendation. In 2004 the Secretary of State stated that an inquiry would proceed under new legislation, later the Inquiries Act 2005. Mrs Finucane objected because section 19 allowed ministers to restrict attendance and disclosure. Negotiations, including discussion of a Baha Mousa-style protocol, failed.
After the 2010 election the Prime Minister and Secretary of State expressed a general preference against long, open-ended and costly inquiries into the past in Northern Ireland, while stating that each case would be considered individually. On 11 July 2011 ministers decided against a public inquiry and in favour of a speedier paper-based review. Sir Desmond de Silva was appointed to produce a full account of any state involvement, with unrestricted access to documents but without power to compel witnesses or conduct oral hearings.
The de Silva review
Sir Desmond found that state employees had facilitated the murder, including through failures to warn and the supply of intelligence. He found no overarching state conspiracy. Some of his conclusions remained qualified: the review had no power to compel testimony or test conflicting accounts at an oral hearing.
Legitimate expectation
Lord Kerr, with whom Lady Hale, Lord Hodge and Lady Black agreed, held that the 2004 statements and related ministerial undertakings were a clear, unambiguous promise, qualified only by Judge Cory’s recommendation, to hold a public inquiry. A legitimate expectation therefore arose. The promise was a procedural policy statement made to the world at large, so questions of individual detriment did not arise. A public authority may nevertheless depart from such an undertaking where a bona fide decision is taken on genuine policy grounds, particularly in the macro-political field. The courts below had found no sustainable evidence that the 2011 process was a sham, predetermined, or improperly driven by the Prime Minister, whose involvement was consistent with the political importance of the decision and the Ministerial Code. Those findings could not be faulted, and this part of the appeal failed. Lord Carnwath agreed, adding that the detriment issues discussed in other legitimate-expectation cases did not arise on these facts.
Article 2
Article 2 requires an effective official investigation capable of leading to the identification and accountability of those responsible where state involvement in a death is in issue. Although the murder preceded the Human Rights Act 1998, a genuine connection with the coming into force of the Act was established: the time lapse was a relevant but not immutable factor, and the bulk of the significant investigative steps occurred afterwards. An inconclusive earlier investigation, or credible material capable of undermining it, can require further measures.
Taken together, the inquiries did not meet that standard. Sir Desmond could not compel witnesses or test their accounts. A potentially important handler was not interviewed. His findings frequently failed to identify the officers who failed to give warnings, who probably proposed the target, or who supplied intelligence, and he was left in significant doubt whether the murder would have occurred without state involvement. These were shortcomings of means, not merely of result. Decisions by the police and prosecutors about the prospects of further prosecution did not themselves discharge the wider investigative duty. The Committee of Ministers had closed its examination when a statutory public inquiry was still in prospect; the circumstances had since changed. Lord Kerr therefore held that no article 2-compliant inquiry had taken place.
Verdict: The Court declared that the investigations to date had not met article 2. It declined to order a particular form of public inquiry. It was for the state to decide what further investigation was feasible and required.
