An undertaking to hold a public inquiry created a legitimate expectation which the authority giving the undertaking would not be allowed to depart from it unless it was shown that it was fair to do so, the UK Supreme Court held today.
Five Justices ruled that UK Government ministers had given an unequivocal undertaking to hold a public inquiry into the murder of Belfast solicitor Patrick Finucane, who was gunned down by Loyalist terrorists in his own home in 1989 during the Northern Ireland troubles. It emerged that members of the security forces had colluded with his killers. Various investigations had so far failed to reveal their identity or the nature of the assistance they gave.
After the European Court of Human Rights ruled that there had not been an inquiry which complied with article 2 of the Convention (right to life), and a judge appointed to consider the question concluded that a public inquiry was required, the Secretary of State for Northern Ireland wrote to Mr Finucane’s widow and made a statement to the House of Commons in 2004 that an inquiry would be held. However no agreement was reached on the form of the inquiry, and after the change of Government in 2010 Sir Desmond de Silva, a former UN war crimes prosecutor, was appointed to conduct an independent review. He was unable to meet a particular individual whom he wished to interview, but later decided (without giving reasons) that it was not necessary to do so. He concluded that he was "left in significant doubt as to whether Patrick Finucane would have been murdered by the UDA in February 1989 had it not been for the different strands of involvement by elements of the state”.
Mrs Finucane brought a judicial review, claiming she had a legitimate expectation that a public inquiry would be held because of the unequivocal assurance given to her in September 2004, that the Government had failed to show valid grounds for failing to fulfil this promise and that the evidence suggested that the decision not to hold the inquiry was a sham with a predetermined outcome. The failure constituted a violation of her rights under article 2 of the ECHR and s 6 of the Human Rights Act 1998. A Northern Ireland judge made a limited declaration that an article 2-compliant inquiry had not yet taken place. This was set aside by the Court of Appeal and Mrs Finucane appealed.
Lord Kerr, with whom Lady Hale, Lord Carnwath, Lord Hodge and Lady Black agreed, said that where a clear and unambiguous undertaking was made, the authority giving the undertaking would not be allowed to depart from it unless it was shown that it was fair to do so. Undertakings given by various ministers amounted, individually and cumulatively, to an unequivocal undertaking to hold a public inquiry into Mr Finucane’s death. This promise was not of a substantive benefit to a limited class of individuals but was a policy statement about procedure which applied to the world at large.
He added that where political issues overtook a promise given by the Government and a decision was taken in good faith and on genuine policy grounds not to adhere to the original promise, it would be difficult for a person who held a legitimate expectation to enforce compliance with it. The findings negativing Mrs Finucane’s argument that the process was a sham and the outcome was fixed could not be faulted; this was a serious charge which would require clear evidence before it could be accepted.
In relation to the article 2 obligation, the procedural obligation to investigate was capable of binding the state even where the death took place before the critical date when the Human Rights Act came into force. Although it was suggested for the Government that the period between the death and the critical date should not exceed 10 years, there was no absolute rule to that effect. The period was less significant where, as in this case, most of the significant inquiries into the death took place after the Act came into force.
It had been established by the Human Rights Court that any information or material which had the potential to undermine the conclusions of an earlier investigation or to allow an earlier inconclusive investigation to be pursued further would prompt a revival of the procedural obligation. The need for an effective investigation went well beyond facilitating a prosecution In order to be compliant, an investigation had to be capable of leading to the identification and punishment of those responsible, which had to involve having the means to identify those implicated in the death. Various features showed that Sir Desmond’s review fell short of being an effective article 2-compliant inquiry.
Mrs Finucane’s representative had declined an invitation by the Court of Appeal to plead, as a freestanding issue, that the state was in breach of its article 2 obligations. Notwithstanding this, the issue of breach of the procedural obligation under article 2 was before the court and called for determination . In any event, the confines of the deliberations of the Supreme Court were not necessarily determined by the manner in which the parties chose to make their presentations.
Without expressing a final view, Lord Kerr added that to allow a violation of an ECHR right to go unremarked upon where that had been established would be in breach of the spirit, if not the literal requirement, of the Convention, having regard to s 6 of the Human Rights Act.
He concluded: "I would therefore make a declaration that there has not been an article 2 compliant inquiry into the death of Patrick Finucane. It does not follow that a public inquiry of the type which the appellant seeks must be ordered. It is for the state to decide, in light of the incapacity of Sir Desmond de Silva’s review and the inquiries which preceded it to meet the procedural requirement of article 2, what form of investigation, if indeed any is now feasible, is required in order to meet that requirement.”