State collusion in the murder of its own citizens is not something that one would expect to find within the UK. Yet it was a prominent and ugly feature of the conflict in Northern Ireland for many years. Elements within the local police and the British security services colluded with loyalist paramilitaries in a manner that resulted in the murder of many persons from, or associated with, the Irish nationalist community. Yet, the government has stubbornly resisted all calls for a public inquiry capable of revealing the full nature and extent of that collusion and rendering accountable to the law all those involved in it.
One of the most notorious of these murders reflected a fundamental and direct attack on the core rule of law and democratic values on which the State is based. The government’s failure to establish a public inquiry into it has been challenged relentlessly by the victim’s family over the past 30 years. In the latest chapter of their journey, the Supreme Court handed down its decision a few days ago in In the Matter of an Application by Geraldine Finucane for Judicial Review (Northern Ireland) [2019] UKSC 7. The Court ruled that the government has not held an effective investigation into the murder in satisfaction of its obligations under Article 2 (right to life) of the European Convention on Human Rights (ECHR).
The victim, Pat Finucane, was a Belfast solicitor who was shot dead in February 1989 by loyalist gunmen while at home with his family. Mr Finucane had a high-profile reputation for providing a very professional and effective service for clients targeted or pursued by the police and security services in Northern Ireland. This, in turn, attracted acute hostility against him within those bodies. It has long been accepted that there was significant police and security services collusion with the loyalist paramilitaries in his murder. While two loyalist paramilitaries have been convicted of involvement in his murder, the nature and extent of State collusion, and the identities of all those involved, have never been fully established.
Apart from the initial police investigation (which did not consider State collusion), the murder has featured in several reviews and internal investigations. An independent review of the case was conducted by a Canadian judge (Mr. Justice Cory), appointed by the government in 2001. When making the appointment, the government expressly stated that if the judge recommended the establishment of a public inquiry, it would implement that recommendation. In his report in 2004, the judge concluded that there was disturbing evidence of collusion, including that: the security services might have had advance warning that Mr Finucane was being targeted, they failed to warn him in order to protect one of their agents, and both the police and security services had an attitude that they were above the law and beyond its reach. He concluded that there was a compelling case for a public inquiry. Nevertheless, the government subsequently resiled from its promise to abide by that recommendation.
Following an application by Mr. Finucane’s family under Art.2, the European Court of Human Rights (ECtHR) held in July 2003 that none of the investigations into his murder provided the family or the public with information that would give reassurance that the rule of law had been respected. As the ECtHR did not feel able to order the government to hold a fresh investigation, it referred the matter to the Committee of Ministers of the Council of Europe to consider what could practicably be done to fulfil the government’s obligations under Art.2. In March 2009, this Committee (which is composed of government ministers, or their diplomatic representatives, from the Council of Europe States) voted to close its examination of the specific measures taken by the UK government in response to the ECtHR’s decision. Critically, it also indicated that the government should continue its discussions with the family on the possible terms of a public inquiry into the circumstances of the murder. This seems to have been influenced by the fact that the government was actively engaged at the time in pursuing the possibility of a statutory inquiry.
In the event, the government decided in July 2011 to proceed with a non-statutory, document-based, review without oral hearings. It was conducted by Sir Desmond de Silva (a former UN War Crimes prosecutor) under a remit to produce a full account of any involvement by the army, the RUC (the Northern Ireland police service at the time), the security service or other UK government body, in the murder of Pat Finucane.
De Silva’s report in 2012 found, among other things, that “a series of positive actions by employees of the State actively furthered and facilitated [Pat Finucane’s] murder and that, in the aftermath of the murder, there was a relentless attempt to defeat the ends of justice”. Nevertheless, de Silva did not identify any of the individuals involved, and the new evidence he produced was not sufficient to persuade the DPP to initiate any further prosecutions.
Critically, de Silva did not succeed in speaking with a British Army “handler” of one of the key paramilitary agents who played a role in several of the murders. The “handler” was in a pivotal position to shed light on whether the Army’s intelligence unit had advance knowledge of the plan to murder Mr. Finucane. However, access to her was blocked by the Ministry of Defence, supposedly on medical health grounds. Critically, no medical evidence was ever produced to support this excuse.
The family launched a judicial challenge in the UK courts against the government’s refusal to hold a public inquiry into Mr. Finucane’s murder. They argued that the government’s failure amounted to, among other things, a breach of Art.2 which states, in part:
“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of the sentence of a court following his conviction of a crime for which the penalty is provided by law.”
It is firmly established in the jurisprudence of the ECtHR that there is both a substantive and a procedural dimension to the protection afforded by Art.2. In addition to imposing an obligation on the State not to kill people, it requires the State to carry out an effective official investigation into any case where there is a suspicion that it may have breached its substantive obligation not to kill. The Supreme Court was primarily concerned with this procedural obligation in the Finucane case.
The Human Rights Act, 1998, makes it unlawful for a public authority to act in a way that is incompatible with a Convention right such as Art.2. The Act, however, only came into effect in October 2000, almost twelve years after the murder of Pat Finucane. The first question that arose, therefore, was whether the applicant could rely on Art.2 in the domestic courts given that the Act was not in force at the time. In answering this question, the Supreme Court was guided by the jurisprudence of the ECtHR on the analogous situation of an applicant seeking to rely on a Convention right against a State in respect of an alleged breach that occurred some years before that State’s accession to the Convention.
The ECtHR jurisprudence established that the Art.2 procedural obligation on the State to conduct an effective investigation into a suspicious death has evolved into an autonomous and free-standing duty. Although it is triggered by a suspected breach of the substantive duty to protect life, it is capable of giving rise to a separate and independent interference with the Art.2 right to life. Accordingly, it is capable of imposing a continuing and binding obligation on the State to investigate a murder, even if the murder occurred before the Convention had come into effect with respect to that State. For this to apply, however, there must be a “genuine connection” between the death and the entry into force of the Convention in the State concerned.
The existence of a genuine connection in this context will depend partly on the time lapse between the murder and the coming into effect of the Convention, and partly on whether a significant part of the procedural obligations with respect to the death had been carried out (or ought to have been carried out) after the entry into force of the Convention. It could also be satisfied by the need to ensure that the guarantees and underlying values of the Convention are protected in a real and effective manner; but that will only arise in exceptional circumstances.
The time lapse in this context must not normally exceed ten years. In the Finucane case, the lapse was in the region of twelve years. The Supreme Court, however, emphasised the qualification “normally”, together with the need to consider the time lapse in conjunction with the other aspect; namely when most of the relevant inquiries into the murder took place. Most of the important inquiries into Pat Finucane’s murder occurred after the Human Rights Act came into effect. Taking both into account, the Court concluded that there was a sufficient genuine connection between his murder and the coming into effect of the Human Rights Act. Accordingly, the investigation (or investigations) into it would have to be conducted in a manner that satisfied Art.2 standards.
In probing what is required by an Art.2 compliant investigation in the context of the Finucane murder, the Supreme Court also drew on the ECtHR jurisprudence. It explained that it would not be sufficient for the DPP to be provided with an opportunity to prosecute as a result of new evidence uncovered by the de Silva report. The need for an effective investigation goes well beyond facilitating a prosecution. The investigation must be capable of leading to the identification and punishment of those responsible. The focus is not on the result, but on the means adopted to achieve the result. The authorities must have taken reasonable steps available to them to secure the evidence relating to the murder. Any deficiency in the investigation which undermines its ability to identify the perpetrator or perpetrators will risk falling foul of the requisite standard. In addition, an Art.2 compliant inquiry must provide the opportunity to recognise, if possible, the lessons to be learned so that a similar event can be avoided in the future.
The Supreme Court found that the de Silva inquiry fell below these Art.2 requirements. The constraints imposed upon it undermined its capacity to establish the vital facts, such as the identity of those involved in the murder. It did not identify those in the police and security services who failed to discharge their duty to warn Pat Finucane of the threat to his life. Equally, it did not identify and hold to account those police officers suspected of the very serious offences associated with targeting him for assassination.
Critically, the Supreme Court found that these failings were due to the fact that the de Silva inquiry was not equipped with the tools to conduct an in-depth probing investigation to uncover the truth of what actually happened. He did not have the power to compel the attendance of witnesses. He was not able to obtain evidence from a critically important witness, nor was he able to source independent verification of her medical unfitness to cooperate. Moreover, he was not in a position to challenge the witnesses who did attend on the veracity or accuracy of their evidence. Absent these vital elements, in the words of the Supreme Court, “.. the conclusion that an article 2 compliant investigation into Mr. Finucane’s murder has not yet taken place is inescapable.”
The Supreme Court acknowledged that its decision might seem to be at odds with the position adopted some years ago by the Committee of Ministers. It noted, however, that the context in which its own decision was taken differs in two material respects from that in which the Committee’s decision was taken. First, at the time of the latter decision, there was still a real prospect of a public inquiry being held into the murder. That prospect has not been realised, and the de Silva inquiry has left too many vital questions unanswered. The circumstances prevailing today differ so widely from those confronting the Committee in 2008 that there is no warrant for concluding that it would reach the same decision on them. The second factor is that the Committee’s decision is, to some extent, a political one, whereas the court’s judgment must be guided exclusively by the application of the correct legal principles.
The Supreme Court issued a declaration to the effect that there has not yet been an Art.2 compliant inquiry into the death of Pat Finucane. This does not, of itself, require the government to establish an inquiry under the Inquiries Act 2005. To comply with its obligations, however, the government will have to establish a form of inquiry that remedies the defects in the de Silva inquiry (and preceding investigations). That might be achieved most effectively through an inquiry established under the 2005 Act. Much, however, will depend on whether the government stops sheltering behind a national security screen in order to prevent the full truth emerging on the nature and extent of State collusion in the murder of Pat Finucane 30 years ago.