In the matter of an application by Geraldine Finucane for Judicial Review (Northern Ireland)

A clear and unqualified government promise may create a legitimate expectation. The government may nevertheless depart from it following a bona fide decision on genuine macro-political grounds, subject to the court’s assessment of fairness.

The procedural duty under article 2 may apply to a death preceding the Human Rights Act 1998 where a genuine connection exists. The usual ten-year period is a guide, not an immutable limit. Credible material capable of reopening an inconclusive investigation may require further measures. An effective investigation is an obligation of means and must possess the tools needed to identify and hold responsible persons to account. The absence of prosecutable evidence is not decisive. A Committee of Ministers decision must be considered under section 2(1)(d), but it does not bind the domestic court where the context has materially changed.

Patrick Finucane was murdered in 1989 amid collusion between loyalist paramilitaries and members of the security forces. Successive investigations failed to identify the state personnel involved or provide a complete account of the collusion. After Judge Cory recommended a public inquiry, the government repeatedly promised to hold one. It later established a non-statutory, document-based review conducted by Sir Desmond de Silva instead.

Mrs Finucane sought judicial review. She relied on legitimate expectation and the procedural obligation under article 2 of the ECHR. Stephens J rejected the challenge to the decision not to hold a public inquiry but declared that no article 2-compliant inquiry had occurred. The Court of Appeal, [2017] NICA 7, upheld the rejection of the legitimate-expectation challenge and allowed the government’s cross-appeal against the declaration.

The Supreme Court considered whether the government had lawfully resiled from its promise, whether article 2 applied despite the pre-commencement death, and whether the investigations undertaken had discharged the procedural obligation.

1. Disposition. The appeal was allowed in part. Lord Kerr, with whom Lady Hale, Lord Hodge and Lady Black agreed, declared that there had not been an article 2-compliant inquiry into Patrick Finucane’s death. Lord Carnwath agreed with Lord Kerr’s reasoning and conclusions on the principal issues. The appeal was otherwise dismissed.

2. Legitimate expectation. The government had made a clear, unambiguous and unqualified promise to hold a public inquiry, subject only to Judge Cory recommending one. That recommendation was made. The promise therefore created a legitimate expectation. This was a policy statement about procedure made publicly, rather than a promise of a substantive benefit to a limited class. Detrimental reliance was consequently not a prerequisite in this case.

   A government may resile from an undertaking where political developments overtake it and a bona fide decision is made on genuine macro-political policy grounds. The court remains the arbiter of fairness. The evidence did not establish that the consultation was a sham, that the outcome was predetermined or that the Prime Minister’s involvement was improper. The challenge on this ground therefore failed.

3. Temporal application of article 2. The article 2 investigative obligation is separate and detachable from the substantive obligation. The approach adopted in In re McCaughey’s application for judicial review [2012] 1 AC 725 applies domestically where a death preceded the Human Rights Act 1998. A genuine connection existed. The interval between the death and commencement of the Act was important, but a period exceeding ten years was not an absolute bar. Most significant investigative steps occurred after commencement.

4. Inadequate investigation. The credible information and unresolved doubts emerging from the de Silva review required further investigative measures under the Brecknell principle. An effective investigation is an obligation of means, not result. It must possess the capacity and practical tools to identify those responsible and bring them to account where possible. The possibility of prosecution is relevant but does not exhaust the state’s duty.

   The de Silva review lacked powers to compel witnesses and test their evidence. A potentially critical witness was not questioned, and important actors remained unidentified. Those limitations prevented the review, whether alone or with earlier inquiries, from satisfying article 2.

5. Relief and subsidiary matters. Section 2(1)(d) of the Human Rights Act 1998 required consideration of the Committee of Ministers’ decision, not adherence to it. The Committee had acted when a statutory inquiry remained in prospect and before the de Silva review exposed further unanswered questions. The declaration did not require a public inquiry of the particular form sought. The state retained responsibility for deciding what further investigation was feasible and required. The new objection to ministerial evidence, raised for the first time in the Supreme Court, was not entertained.

1. United Kingdom Supreme Court: Allowed the appeal in part and declared that there had not been an article 2-compliant inquiry into Patrick Finucane’s death. The appeal was otherwise dismissed: [2019] UKSC 7.

2. Court of Appeal in Northern Ireland: Upheld the rejection of the challenge to the government’s decision not to hold a public inquiry. It allowed the government’s cross-appeal and set aside the High Court’s article 2 declaration: [2017] NICA 7.

3. High Court of Justice in Northern Ireland: Stephens J held that the government had made a clear promise but could lawfully resile from it on the grounds advanced. He nevertheless declared that an article 2-compliant inquiry had not occurred. The citation is not stated in the judgment.