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

Cite as:[2019] UKSC 7
Hand-down Date:February 27, 2019
 
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Hilary Term [2019] UKSC 7 On appeal from: [2017] NICA 7

JUDGMENT

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

Lady Hale, President Lord Kerr Lord Carnwath

Lord Hodge

Lady Black JUDGMENT GIVEN ON 27 February 2019 Heard on 26 and 27 June 2018 Appellant Respondent

Barry Macdonald QC

Sir James Eadie QC Paul McLaughlin BL (Instructed by Crown Solicitor's Office) Fiona Doherty QC

(Instructed by Madden & Finucane)

LORD KERR: (with whom Lady Hale, Lord Hodge and Lady Black agree)

Introduction

  1. On the evening of 12 February 1989, gunmen burst into the North Belfast home of Patrick Finucane, a solicitor. He was having supper with his wife and three children. In their presence he was brutally murdered. He was shot 14 times. Mrs Finucane was injured by a ricocheting bullet which struck her on the ankle. This shocking and dreadful event still ranks, almost 30 years later, as one of the most notorious of what are euphemistically called "the Northern Ireland troubles".

  2. Mrs Finucane and her children have waged a relentless campaign since Patrick's killing to have a proper investigation conducted into the circumstances in which he was murdered. It became clear at an early stage that those responsible were soi-disant loyalists. Before long, it also emerged that there was collusion between Mr Finucane's murderers and members of the security forces. Various investigations about the murder and the nature of the collusion have been conducted. None of these has uncovered the identity of those members of the security services who engaged in the collusion nor the precise nature of the assistance which they gave to the murderers.

    (i) The police investigation

  3. An investigation into Mr Finucane's death was launched by the Royal Ulster Constabulary (RUC), then the police force in Northern Ireland. A number of suspects were arrested and interviewed in the days following the murder. None was charged with a criminal offence. The initial RUC investigation did not consider the possibility of collusion between the security services and the loyalists who killed Mr Finucane.

  4. On 4 July 1989 a gun was found during a police search in the Shankill Road area of Belfast. It proved to be one of the weapons used to murder Mr Finucane. It had been stolen by a Colour Sergeant of the Ulster Defence Regiment (UDR) in 1987. In April 1990 three people were convicted of possession of the gun and of membership of the banned paramilitary organisation, the Ulster Freedom Fighters, but they could not be linked to Mr Finucane's murder. The Colour Sergeant who had stolen the weapon sold it to a man called Ken Barrett. In 2004 Barrett pleaded guilty to the murder of Mr Finucane.

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    (ii) The inquest

  5. When an inquest into Mr Finucane's death was held on 6 September 1990, his widow, Geraldine, was stopped from giving evidence about threats to her husband's life which, it is claimed, had been made to some of his clients by police officers who were interviewing them at Castlereagh Holding Centre, a police detention centre where suspects were interviewed. The coroner conducting the inquest ruled that, as the law then stood, his inquiry was confined to the cause and immediate circumstances of the death. (The inquest was held, obviously, before the decision of the House of Lords in R (Middleton) v West Somerset Coroner [2004] 2 AC 182.)

    (iii) The Stevens and Langdon Inquiries

  6. In September 1989, John Stevens (then the deputy chief constable of the Cambridgeshire constabulary, later Sir John, and yet later Lord Stevens) was appointed by the chief constable of the RUC to investigate allegations of collusion between the security forces and loyalist paramilitaries. This investigation did not specifically examine the murder of Patrick Finucane. Sir John Stevens reported to the chief constable in April 1990.

  7. On 17 May 1990, the Right Honourable Peter Brooke MP, the then Secretary of State for Northern Ireland, made a statement to the House of Commons relating to Sir John Stevens' investigation. He said that as a result of that inquiry, 94 people had been arrested and that 59 had been reported for or charged with offences. As a consequence of the investigation 45 individuals were later convicted of terrorist related offences - mostly for possession of materials likely to be of use to terrorists. Those convicted included 32 members of the Ulster Defence Association (UDA), a loyalist paramilitary group, and 11 members of the UDR. The report of Sir John Stevens which led to these events has never been published.

  8. It has later been established that Sir John Stevens was seriously obstructed in his investigations. Instructions were given to deny him access to intelligence information. Material about advance warnings to UDA members in relation to pending arrests was deliberately withheld.

  9. The first Stevens Inquiry did lead to the identification of Brian Nelson, however. He was an informer for the security services, in particular, an organisation within the British army known as the Force Research Unit (FRU). Although the army had denied running any agents in Northern Ireland, the discovery of Nelson's fingerprints on intelligence documents put paid to that particular denial. Nelson had

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    been recruited by FRU. On their instigation, he infiltrated the UDA and became its chief intelligence officer. His role involved the gathering of information about possible targets for assassination.

  10. Nelson was arrested by the Stevens team on 12 January 1990. He made statements to the investigators about his activities. In due course, he was charged with a number of terrorist crimes and in January 1992 he pleaded guilty to five charges of conspiracy to murder, two of collecting information likely to be useful to terrorists, 12 charges of aiding and abetting others to possess or collect information likely to be useful to terrorists and one charge of possession of a firearm with intent. He was sentenced to ten years' imprisonment. None of his convictions related to the murder of Patrick Finucane.

  11. At Nelson's sentencing hearing, the commanding officer of FRU, identified as Colonel J, gave evidence on his behalf. He claimed that Nelson had given information to FRU which had been instrumental in saving many lives. This evidence is highly controversial. It has been the subject of examination in a number of reports concerning Mr Finucane's murder. These shall be discussed later in this judgment.

  12. On 11 February 1992, Mrs Finucane began a civil action against the Ministry of Defence and Brian Nelson. She later commenced proceedings against the police. These proceedings remain outstanding.

  13. On 8 June 1992 a second Stevens Inquiry was instituted. This followed the broadcast on the BBC of a programme entitled, "Dirty War", in which it was claimed that Nelson had been involved in a number of murders and that he had been responsible for targeting Patrick Finucane. It was also reported that he had passed Mr Finucane's photograph to the UDA.

  14. Interim reports from the second Stevens Inquiry were submitted to the Director of Public Prosecutions in April and October 1994 and a final report was delivered on 24 January 1995. No prosecutions were instituted on foot of those reports. Again, this inquiry did not address directly the killing of Mr Finucane.

  15. In 1999, a non-governmental organisation, British Irish Rights Watch, provided the Secretary of State for Northern Ireland with a paper entitled, "Deadly Intelligence: State Collusion with Loyalist Violence in Northern Ireland". This made a number of claims including that there had been state collusion in the murder of Patrick Finucane. This, the paper asserted, had taken place as a result of contact and exchanges between Brian Nelson, his FRU handlers and the RUC Special Branch.

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  16. Shortly after this, the Secretary of State asked a Home Office civil servant, Anthony Langdon, to conduct an inquiry into whether a fresh investigation of these claims was warranted. Among the conclusions reached by Mr Langdon were these:

    (1) There were grounds for believing that one of his army handlers had assisted Nelson in the targeting of a murder victim;

    (2) The same handler knew nothing about the threat to Patrick Finucane before his murder;

    (3) But the handler had refused to answer police questions about these matters;

    (4) Colonel J's evidence at Nelson's trial had misled the trial judge;

    (5) The FRU gave Nelson intelligence information in some instances;

    (6) Nelson's handlers were well aware of his efforts to support the UDA in targeting republicans;

    (7) It was probable that Nelson had mentioned something about Patrick Finucane to his handler before the murder.

  17. A third Stevens Inquiry was set up in May 1999. This focused on the murder of Mr Finucane and another man and the question of collusion between members of the security services and loyalist paramilitaries.

  18. The following month a man called William Stobie was charged with the murder of Mr Finucane. During a court hearing, Stobie's solicitor stated that he had twice given information about the intended attack on Mr Finucane and that on neither occasion had this information been acted on. The case against Stobie collapsed when a vital witness refused to give evidence and all charges against him were dismissed in November 2001. A short time later, on 12 December 2001, he was murdered by, it is believed, loyalist paramilitaries.

  19. On 19 June 2002 the BBC broadcast a programme called, "A licence to murder." In the course of this, a reporter, John Ware, interviewed Sir John Stevens and asked, "Was what was done in the name of the state defensible?" He replied "...

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    the activities of the so called double agent Nelson ... of course [were] inexcusable." Detective Sergeant Nicholas Benwell, a member of the Stevens Inquiry team from 1989 to 1994, was...

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