Blog by Casework Manager Mike Ritchie
According to David Cameron, Pat Finucane’s murder is “as bad as it gets”. His advisor called it “a horror story”. Why then did they decide to refuse a promised public inquiry?
In the high court in Belfast from May 11th to 14th, 2015, Geraldine Finucane challenged the decision by David Cameron in October 2011 to refuse a public inquiry into her husband’s murder, despite it having been a promise as part of the Weston Park Agreement in 2001. In front of Judge Ben Stephens, Barry McDonald QC for the family and James Eadie QC for the British government argued in turn.
Relatives for Justice (RfJ) have supported the Finucane family throughout their ordeal. It is RfJ’s view that the promised independent judicial inquiry is still necessary and we have supported Geraldine in taking this challenge. The hearing was attended by RfJ’s Director – Mark Thompson – and caseworkers – Mike Ritchie and Paul Butler – in order to show solidarity for the family and commitment to their continuing campaign for the promised inquiry.
Geraldine Finucane’s complaint
Mrs Finucane’s position is that hers is the only case of the 6 identified at Weston Park which has not had the promise fulfilled: inquiries have been held here in the north into the Robert Hamill, Rosemary Nelson and Billy Wright cases; an inquiry has been held in Dublin into the Bob Buchanan and Harry Breen case; finally, the family of Judge Gibson did not wish to have an inquiry. This leaves the Finucane family uniquely and unfairly treated in not having been given the inquiry promised at the Weston Park agreement. It should be remembered that the procedure agreed was that retired senior Canadian judge, Peter Cory, was tasked to examine the files in all six cases. On the basis of his assessment, he could conclude the need for a public inquiry if he found sufficient evidence suggesting collusion between the police force in each case and one or other paramilitary group. In the event, Judge Cory recommended an inquiry into all six cases. Accordingly, the Finucane family accuse David Cameron of unfairness, misuse of power and unreasonable behaviour in eventually refusing the promised inquiry at the very stage where there had seemed to be agreement on a way forward.
Other key developments were the sudden promulgation of the Inquires Act in 2005 which super-ceded previous public inquiry legislation. In the new act, government ministers were given considerable powers to intervene in the running of an inquiry. They could direct private hearings, interfere in the publication of documents and otherwise protect “national security” concerns. This legislation was widely felt to be an unscrupulous attempt to “load the deck” in advance of a public inquiry into the Finucane case. The last thing the government would countenance, many felt, was a properly independent examination of all documents and open testimony from military intelligence operatives, former RUC Special Branch officers and government ministers.
In the end, Prime Minister Cameron opted for another review of documents by Sir Desmond de Silva QC, who produced a report in December 2012. The family rejected this could be viewed as an independent, effective and thorough investigation as required by Article 2 of the European Convention on Human Rights. Hence the judicial review proceedings here in Belfast last week.
During the hearing, Barry McDonald outlined the development of decision-making by the government in 2011; moving from a commitment to holding a public inquiry to giving an apology alongside a paper review by Desmond de Silva. Documents obtained through discovery ordered by the judge Stephens, were used to show the way in which Article 2 compliant investigations, the search for truth and concern about wrong-doing by state agents was gradually overtaken by more political considerations. These included; a recent manifesto commitment ruling out further inquiries due to delays, legal wrangling and costs; worries about backbench unease in the Conservative Party; and media criticism in the Daily Telegraph and the Daily Mail. During 2011, briefing notes become focussed on cosmetics and presentation rather than any moral questions or the need to fulfil legal and human rights requirements. As counsel put it, official briefs in 2011 had “nothing to do with finding the truth”.
One document in particular showed how far government thinking had progressed. In an email prior to a ministerial meeting in July 2011, Downing Street Cabinet Secretary, Sir Jeremy Heywood wrote to Simon King, a Prime Ministerial adviser: “Does the prime minister seriously think it’s right to renege on a previous government’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/Afghanistan. I can’t think of any argument to defend not having a public inquiry. What am I missing?” A responding email seemed to assure Heywood, that the Prime Minister “shares the view that this is an awful case, and as bad as it gets, and far worse than any post 9/11 allegation”. In another document, the same official described the case as “a horror story” adding the Ministry of Defence are “in denial” over the case. Despite all this, there is little compelling information as to why the decision should have altered so much over the following two months.
Indeed, at the time – in October 2011 – that the Prime Minister finally informed the Finucane family of his decision to refuse an inquiry, there was considerable agreement between government lawyers and the family on crucial issues relating to putative inquiry procedures. On the basis of discussions between the two sides, the family understood: that the inquiry would be conducted under the 2005 Inquiries Act; however the Baha Moussa inquiry model (into an allegation of British army ill-treatment in Iraq) would be followed which included a ministerial commitment not to interfere; and that the inquiry itself (rather than the minister) would be the arbiter of when hearings should be conducted in private. With many of the witnesses still alive and plenty of documentation to examine, the stage was set for the inquiry to be established and the family – and wider society – had a legitimate expectation that the government’s promise would follow.
Barry McDonald QC continued on behalf of Geraldine Finucane to challenge the Prime Ministerial decision in October 2011. He outlined that, from the papers released to show how the decision came to be made, there was no over-riding public interest that could be seen, nor were there any rational criteria set out to explain the reason for the change of view. While not denying that a government could change its mind, there had been no effort to acknowledge the Finucane family’s legitimate expectation by consulting with them. The change of policy was simply sprung on the family, who had travelled to Downing Street that October morning expecting to be told the terms of reference of the promised inquiry.
Continuing the family case, Barry McDonald reviewed the various examinations of Pat Finucane’s murder by the UFF in February 1989 in order to assess whether they meet the criteria of a thorough, effective, publicly-transparent investigation which involves the family and keeps them informed. The police investigation, the inquest, the three Stevens inquiries and the Desmond De Silva review all fall short in various ways, even though as a result new information has become available on a cumulative basis. (The Cory inquiry was set up – as part of Weston Park – precisely to review the papers and recommend whether there should be a public inquiry. In the event, Peter Cory said yes.) McDonald also pointed out that there has been systematic obstruction of the many of the investigations, the full extent of which has not yet been revealed.
Turning to the right to life (Article 2 of the European Convention on Human Rights, which was incorporated into UK law by the Human Rights Act 1998), McDonald sought to show why the need for a public inquiry relies on the requirement for an Article 2-compliant investigation. Case law on this right has developed over the last 10 years with a range of benchmarks and hurdles that need to be met in order to access the protection for which the right exists. Does the case meet temporal application requirements even though it occurred 11 years before the coming into force of the Human Rights Act? Is there a “genuine connection” between the murder and the coming into force of the Human Rights Act? Given the various investigations that there have been, it is right that a particular incident can have a continuing right to an Article 2 compliant investigation until the family gets the result it is looking for? After all the so-called procedural obligation is a matter of means not results. In answer to these points, the Finucane family say yes: they were entitled to have a legitimate expectation of a public inquiry given the Weston Park commitments and the recommendation of Peter Cory.
The British government’s rebuttal
On this case it appears that London was taking no chances flying in from London their most senior lawyer, James Eadie QC, rather than leaving it to those who regularly appear on behalf of the government. He is brought out for all cases touching on significant national interest and “national security” issues. His involvement in this case is further indication – should it be required – of the serious implications of the Finucane case.
Eadie, on the part of the British Government, immediately began to attack the notion that government must always keep its promises; these can never be without qualification. What if the promise runs on too long and circumstances change? Under questioning from judge Stephens he argued that it can be legitimate for government to change its mind. Quoting legal authorities, he sought to show that while a seemingly sudden change in policy can be seen as misuse of power, this can only be when it is seen as “so unfair” as to be completely unreasonable. This test he pointed out, has been defined in law and he outlined what he saw as his legal authorities to back up his argument. He argued, moreover, that government must govern and take decisions “in the public interest”. And an important question is when there is a sufficient public interest to over-ride a “substantive legitimate expectation”.
He also laid out that it is for the decision-maker to decide what matters are relevant when taking – or changing – a decision; the criteria, however, must be shown to be rational. In this regard, he raised matters of cost and speed as relevant issues to be considered. A commitment to hold no more expensive and lengthy public inquiries had been included in the Conservative Party’s manifesto for the election in 2010 that led to the coalition government now responsible for taking matters forward. It follows that the British government was legally entitled to review any commitment made by the previous administration. In this context: “It would be something of a miracle if public interest considerations had stayed the same”. Plainly, he argued, they hadn’t.
Turning to the attacks, on behalf of Geraldine Finucane, on the de Silva review, Eadie said it was “ridiculous” to characterise it as a “sham”. Rather, the outcome of the government’s reconsideration was to acknowledge collusion, appoint de Silva to carry out a thorough examination of all relevant documentation and come to his conclusions in a much more speedy time than a full scale public inquiry could have done. An apology was also an important aspect of the government’s new approach.
Judge Stephens pressed Eadie on the need to get at the truth as a “recurring theme” in this case. In response, Eadie answered that the government could legitimately balance competing considerations rather than simply doing nothing, which was one possible option following reconsideration of all public interest issues. “The decision was rather to acknowledge collusion, apologise for it and appoint de Silva.”
James Eadie then addressed matters of international law. He sought to undermine the family’s arguments that an Article 2 compliant investigation was still required and that this could only be fulfilled through the promise of a public inquiry. To the contrary, he claimed that looking at the range of investigations that have already taken place, it is perfectly reasonable to say that, cumulatively, all the procedural requirements of an article 2 compliant investigation have been met, particularly when viewed through the obligation that such an investigation must be capable of leading to the identification and prosecution of the perpetrators. Under pressure from Judge Stephens, he enumerated his position as follows: the Stevens 1 investigation led the prosecution of Brian Nelson; Stevens 3 led to the identification and prosecution of William Stobie and Ken Barrett; Stevens 3 also resulted in recommendations to the Director of Public Prosecutions to prosecute 25 other individuals; finally, the fact that the DPP decided against prosecution is neither here nor there as far as Article 2 is concerned, due process took place in assessing whether prosecution should happen.
(Of course, what Eadie chose not to mention was that, of the 25 prosecutions recommended, 24 related to members of RUC and British military. All case files held by Stevens had been independently examined in London by senior barristers with significant prosecutorial experience. They selected the 25 files which were then submitted, in Belfast, to then Director of the prosecution service, Sir Alasdair Fraser. It is RFJ’s understanding that of all the files the 25 selected more than met the prosecution test when applied independently.)
To support his argument, Eadie outlined the architecture established to supervise state party implementation of European Court of Human Rights decisions: the Committee of Ministers (CoM) of the Council of Europe. This body, he said, had “signed off” on the Pat Finucane case in 2008, even though they acknowledged that a public inquiry might still take place. While judge Stephens wondered whether this could be seen as a “binding judicial finding”, and Barry McDonald dismissed the sign-off as a political deal without significance, Eadie claimed the CoM decision was a significant consideration for the court.
James Eadie faced some close questioning from Ben Stephens over some of his arguments. The judge suggested that the adversarial element was absent from all investigations that had thus far taken place, the possibility for the family to closely test documents and witnesses. In all the processes, the family were only able to look at what was volunteered from the official perspective. But the adversarial method is surely the best way to establish the truth, if that is what you are seeking to do. Also, in response to Eadie’s point that a right to life cannot continue indefinitely, Stephens asked for his view on whether state obstruction to investigations “over a prolonged period” made any difference. Most tellingly, the judge intervened while Eadie was talking about the limited exceptions to the general rule that a state must implement an Article 2 investigation. These exceptions are limited to grave breaches of international law, war crimes and other incidents of over-riding gravity. At this point the judge asked whether “a state colluding in the murder of lawyers” would constitute a serious crime under international law. Visibly discomfited – and remarkably – Eadie replied: “I’m not sure it would”.
Geraldine Finucane’s closing response
After Eadie concluded his arguments, Barry McDonald replied on behalf of Geraldine Finucane and her family. He sought to emphasise that the government’s decision-making process was flawed, that reasons not to have an inquiry were not balanced against the consequences of not having an inquiry, that matters of cost and election manifesto cannot be weighed in the balance of a quest for truth. He asked the judge to find that the shocking seriousness of the issue – collusion by the state in a lawyer’s extra-judicial execution – required the full judicial rigour of a public inquiry to provide a definitive narrative and that for wider public confidence reasons as well as the promises made to Geraldine Finucane, he should find in her favour.
Judgment is reserved.