In re Finucane

This appeal concerned whether the government was bound by a clear and unambiguous promise to hold a public inquiry into the murder of Patrick Finucane and whether, irrespective of that promise, the State had complied with the procedural obligation under Article 2 of the European Convention on Human Rights. The court applied the law of substantive legitimate expectation (as explained in cases such as R v North and East Devon Health Authority, Ex p Coughlan) and considered the legitimate-expectation burden on claimants and the circumstances in which government may resile from a promise. The court also considered the temporal and substantive reach of the Article 2 procedural obligation (drawing on Šilih v Slovenia, Brecknell v United Kingdom, McCaughey and related authorities) and whether the de Silva review, together with earlier inquiries, satisfied Article 2.

The Supreme Court concluded that there had been a clear, unambiguous and unqualified promise that a public inquiry would be held subject to Judge Cory’s recommendation, so a substantive legitimate expectation existed. However, on the evidence there was no satisfactory basis to conclude the decision-making process was a sham or that the outcome had been predetermined, and the legitimate-expectation challenge otherwise failed. The court held that Sir Desmond de Silva’s non‑statutory review and the prior inquiries had not produced an Article 2 compliant investigation: the review lacked compulsory powers to compel attendance and cross‑examination and therefore could not satisfy the State’s procedural obligations. The court made a declaration that no Article 2‑compliant inquiry had yet taken place and dismissed the remainder of the appeal.

Background and facts:

• On 12 February 1989 Patrick Finucane, a solicitor, was murdered in his home in North Belfast. Mrs Geraldine Finucane and the family campaigned for a public inquiry into allegations of collusion between loyalist paramilitaries and elements of the security forces.
• Several investigations followed: initial RUC inquiries; three Stevens inquiries; Judge Cory’s inquiry; and, after political consideration, the non‑statutory de Silva review (2012). The de Silva review had wide document access but no power to compel witnesses or hold public oral hearings in the manner of a statutory inquiry under the Inquiries Act 2005.

Procedural posture: The appellant sought judicial review in Northern Ireland challenging the government’s failure to hold the promised public inquiry and asserting that the lack of an Article 2‑compliant investigation breached Convention obligations. The claim progressed through the High Court (Stephens J) and the Court of Appeal (NICA) and came to the Supreme Court on appeal from [2017] NICA 7.

Relief sought: The applicant sought to enforce the government’s undertaking to hold a public inquiry and advanced that Article 2 and the Human Rights Act 1998 required a full, public, Article 2‑compliant investigation.

Issues for decision:

1. Whether the government’s assurances gave rise to a substantive legitimate expectation that a public inquiry would be held and, if so, whether the government was entitled to resile from that promise.
2. Whether the State had fulfilled its procedural obligation under Article 2 ECHR and, relatedly, whether there was a genuine connection between the murder and the coming into force of the Human Rights Act 1998 such that Article 2 obligations could be engaged by inquiries carried out after that date.
3. Whether the de Silva review together with earlier inquiries amounted to an Article 2‑compliant investigation.

Reasoning and conclusions:

• The court accepted there had been an unequivocal governmental promise (subject to Judge Cory’s recommendation) giving rise to a legitimate expectation. The principles from legitimate expectation jurisprudence (including the Coughlan framework) were applied. The court reaffirmed that, where political or macro‑policy considerations arise, the court’s intervention is more limited, and that a public authority may resile from undertakings if there are bona fide, proportionate public‑interest reasons. Applying the evidence the court found no adequate basis to conclude the consultation process was a sham or predetermined and so refused to compel specific performance of the promise.
• On Article 2, the court adopted the approach in Šilih and McCaughey: the procedural obligation under Article 2 can be a freestanding duty where a significant part of the investigatory steps occur after the relevant date, and a multi‑factor assessment of the genuine connection is required. Given the post‑2000 inquiries (Stevens III, Cory, de Silva) the court found a genuine connection and that the procedural obligation could be engaged.
• Applying the Article 2 standards (effectiveness, ability to identify and where possible prosecute those responsible, and the means to do so), the court held that the de Silva review was not Article 2 compliant because it lacked compulsory powers to compel attendance and to test evidence in public, and crucial evidence (including that of a relevant handler) was unavailable or insufficiently verified. Accordingly, the court declared there had not yet been an Article 2‑compliant inquiry and left it to the State to decide what further investigation, if any, was now feasible.

The appeal was allowed in part and otherwise dismissed. The court held that a clear and unambiguous promise to hold a public inquiry (subject to Judge Cory’s recommendation) had created a legitimate expectation, but there was no proper evidence that the decision to resile was a sham or pre‑determined and the substantive legitimate expectation claim otherwise failed. Separately, the court declared that no Article 2‑compliant inquiry into Patrick Finucane’s death has yet taken place because the de Silva review and earlier inquiries lacked essential attributes (compulsory powers to compel attendance and to test evidence) required by Article 2; the court left it to the State to decide what further steps, if any, are practicable to satisfy Article 2.

This judicial review began in Northern Ireland (Stephens J giving first instance judgment). The respondent’s decision was appealed to the Court of Appeal in Northern Ireland ([2017] NICA 7, judgment of Gillen LJ, Deeny J and Horner J). The present judgment is the appeal to the Supreme Court from [2017] NICA 7.