PATRICK FINUCANE: the fight for justice
1. British Irish RIGHTS WATCH (BIRW) is an independent non-governmental organisation that has been monitoring the human rights dimension of the conflict, and the peace process, in Northern Ireland since 1990. Our vision is of a Northern Ireland in which respect for human rights is integral to all its institutions and experienced by all who live there. Our mission is to secure respect for human rights in Northern Ireland and to disseminate the human rights lessons learned from the Northern Ireland conflict in order to promote peace, reconciliation and the prevention of conflict. BIRW’s services are available, free of charge, to anyone whose human rights have been violated because of the conflict, regardless of religious, political or community affiliations. BIRW take no position on the eventual constitutional outcome of the conflict.
2. This briefing chronicles the long struggle for justice in the case of Patrick Finucane, a Belfast lawyer who was a victim of state collusion.
3. Patrick Finucane opened his legal firm with his partner Peter Madden in 1979. For the next decade he was ivolved in some of the most controversial legal cases arising out of the Northern Ireland conflict: the hunger strikes, shoot-to-kill, ill-treatment in police custody, the broadcasting ban, and prolonged detention without production before a court. Like other colleagues who defended those accused of acts of terrorism, he was hated by the police, who regularly issued death threats against him. In May 1987 Patrick Finucane was one of a group of defence lawyers who issued a statement complaining about abuse by RUC officers.
4. Early in January 1989 Douglas Hogg MP, then Parliamentary Under-Secretary of State for the Home Department, went over to Belfast and was briefed by the Chief Constable, Sir John Hermon, and two other
senior police officers, Blair Wallace and Michael McAtamney. Hogg was told in the strictest confidence that there was concern over two or three lawyers. The RUC said there was “grave concern” over Patrick Finucane. On 17th January, 1989 Hogg said in a Committee stage debate on the Prevention of Terrorism (Temporary Provisions) Bill:
“I have to state as a fact, but with great regret, that there are in Northern Ireland a number of solicitors who are unduly sympathetic to the cause of the IRA.”
Although challenged, he failed to substantiate this allegation, although he repeated it several times in similar language, saying only:
“…I state it on the basis of advice that I have received, guidance that I have been given by people who are dealing with these matters, and I shall not expand on it further.”
Statements made in Parliament are privileged and cannot be made the subject of legal action. Speaking in reply, Seamus Mallon MP said:
“I have no doubt that there are lawyers walking the streets or driving on the roads of the North of Ireland who have become targets for assassins’ bullets as a result of the statement that has been made tonight … Following [this] statement, people’s lives are in grave danger. People who have brought cases against [sic] the European Court of Human Rights will be suspected. People accused of IRA membership and other activities will be suspected.”
5. On 12th February 1989 two armed men burst into the Finucane home and shot Patrick Finucane 14 times in front of his wife and three children. His wife Geraldine was injured in the foot by a ricochet bullet.
6. Patrick Finucane was murdered by members of loyalist paramilitary group, the UDA. However, the UDA had been infiltrated by the Force Research Unit (FRU), a secret British military intelligence unit. Over the years it has emerged that Patrick Finucane was just one of many people set up for murder by the UDA by FRU agent Brian Nelson, who acted as the UDA’s intelligence officer. It has also transpired that one of the weapons used to kill Patrick Finucane was stolen from Palace Barracks in 1987 and was supplied to the murderers by William Stobie, an RUC Special Branch agent who kept his handlers informed of his movements throughout the run-up to the murder.
7. For many years the British government denied that collusion existed and that there had been collusion in Patrick Finucane’s death. However, in September 1989 they were forced to appoint John (now Lord) Stevens to investigate allegations of collusion after loyalists plastered police photomontages of IRA suspects over the walls of Belfast’s streets in an
attempt to prove that they were not just targeting innocent Catholics, such as Loughlin Maginn, whom they killed in August 1989. Stevens’ first
investigation uncovered the activities of FRU and Brian Nelson, and led to Nelson standing trial for murder and other crimes. He was sentenced to only 10 years’ imprisonment, of which he served only five. Despite these developments, and the fact that during his investigation Stevens’ office was the target of a deliberate arson attack by military intelligence, the first Stevens investigation found that collusion was “neither widespread nor institutionalised”, a finding that he was later to revise.
8. On 13 September 1990 William Stobie was arrested after weapons were found at his home. He confessed to supplying the weapons used to kill Patrick Finucane, but was not charged with that offence. Other charges of possession of weapons were dropped after he threatened to make public what he knew of the Finucane murder.
9. On 3 October 1991 an RUC officer called Jonty Brown tape recorded a UDA man and Special Branch informer, Ken Barrett, confessing to having been involved in Patrick Finucane’s murder. A week later, Special Branch taped a second conversation with Barrett, which repeated the first conversation but left out any mention of Patrick Finucane.
10. In the summer of 1992, Stevens was recalled to conduct a second investigation, after the transmission of a BBC Panorama documentary made by journalist John Ware exposed the existence of FRU and the activities of Brian Nelson. This investigation focused on the legality of FRU’s operations, but did not lead to any prosecutions. As with Stevens One, Stevens Two did not specifically investigate Patrick Finucane’s murder.
11. On 2 October 1995, the Northern Ireland Forensic Science Laboratory unaccountably returned to the army one of the weapons used to murder Patrick Finucane, the Browning pistol stolen from Palace Barracks. This weapon was used for several years subsequently and reconditioned more than once, to the point where it was robbed of any evidential value.
12. In 1997, following yearly reports from British Irish rights watch (BIRW) concerning the murder of Patrick Finucane and attempted intimidation of other defence lawyers, the United Nations’ Special Rapporteur on the independence of judges and lawyers, Dato’ Param Cumaraswamy, made an unprecedented visit to the United Kingdom. His report was published on 1 April 1998. He found that intimidation and harassment of defence lawyers in Northern Ireland was “consistent and systematic” and he called for an independent judicial inquiry into the murder of Patrick Finucane.
13. On 12 February 1999, the tenth anniversary of Patrick Finucane’s murder, BIRW delivered a confidential report, Deadly Intelligence, to the UK government detailing the considerable amount of information, much of it the subject of official secrecy, then available concerning not only his murder but also the illegal activities of the FRU. The only honourable response to this report would have been the establishment of the independent public inquiry recommended by the UN, but instead Stevens was called back for the third time, this time with instructions to investigate Patrick Finucane’s murder. Attempts were made to obstruct this investigation. For example, the police tried to palm off the reconstructed second Ken Barrett tape on Stevens, a ploy which almost succeeded until Jonty Brown pointed out that the second tape contained reference to a murder which had taken place during the week that separated the first tape from the second.
14. Stevens Three led to the prosecution of William Stobie for aiding and abetting the murder of Patrick Finucane. This trial collapsed when a key witness, journalist Neil Mullholland, was found unfit to testify. On 4 December 2001 Stobie appeared in a UTV documentary, Justice on Trial, about the Finucane murder. On 12 December Stobie was murdered.
15. Stevens Three also led to the arrest of Ken Barrett, the only person ever to be charged with Patrick Finucane’s murder. Stevens also sent 24 other files to the Director of Prosecutions.
16. In August 2001 the British and Irish government signed the Weston Park Agreement, a document which contained a number of confidence-building measures designed to shore up the 1998 Good Friday peace agreement which had brought the Northern Ireland conflict to an end. One of those measures was the appointment of an international judicial figure to carry out a behind-closed-doors enquiry into whether collusion had taken place in six cases, including that of Patrick Finucane. If this judge recommended a public inquiry into any of the cases, the governments undertook to hold one. In May 2002, after much prevarication on the part of the British government, former Canadian Supreme Court judge Peter Cory was appointed to conduct this enquiry.
17. Before Judge Cory could complete his work, a summary of the Stevens Three report was published in April 2003. Stevens found that Patrick Finucane’s murder could have been prevented and that the RUC investigation should have led to the detection and early arrest of the perpetrators. He also found that, “Collusion is evidenced in many ways. This ranges from the wilful failure to keep records, the absence of accountability, the withholding of intelligence and evidence, through to the extreme of agents being involved in murder.” None of the three Stevens reports has ever been published.
18. On 1 July 2003, the European Court of Human Rights delivered its judgment in a case lodged on behalf of Geraldine Finucane in July 1994 by Madden & Finucane. The Court held unanimously that there had been “a failure to provide a prompt and effective investigation into the allegations of collusion by security personnel”.
19. On 7 October 2003, Judge Cory provided his six reports, four to the UK government and two to the Irish government. He recommended public inquiries in five out of the six cases, including, inevitably, that of Patrick Finucane. While the Irish government published their two reports in December, the UK waited until the following April to publish theirs, all of them heavily redacted, with the Finucane report most heavily of all. On 1 April 2004 the UK government announced public inquiries into three of the four cases, but said that an inquiry into the case of Patrick Finucane must await the outcome of prosecutions.
20. Ken Barrett was convicted of the murder on 16 September 2004. Under the terms of the Good Friday Agreement he served only two years in jail. He did not testify in his own defence, so no new information emerged from his brief trial. On 23 September 2004 the UK announced that, before it could hold an inquiry into Patrick Finucane’s case, it would be necessary to change the law.
21. It was in April of the following year that the Inquiries Act 2005 was passed. It effectively took public inquiries out of the control of the independent judiciary and gave that control to government ministers. However, no inquiry in Patrick Finucane’s murder was established, even under the new law.
22. On 8 March 2006 the Irish Dáil passed a unanimous motion calling for independent inquiry as agreed at Weston Park. Similar resolutions were later passed by the American Senate and House of Representatives.
23. On 25 June 2007, over four years after the Stevens Three summary report was published, the DPP finally announced that he would not be prosecuting any member of the security forces for any offence.
24. The UK government had run out of excuses for not holding a public inquiry, but it continued to delay and prevaricate. Finally, under pressure from Madden & Finucane, on 27 April 2010 government lawyers issued a draft Restriction Notice under the Inquiries Act 2005 which was so draconian that it was completely unacceptable. Not only would the Finucane family be denied sight of many crucial documents, but they would not even know which documents they were being denied.
25. Then on 8 November 2010, following a General Election earlier that year which resulted in a change of administration, the new Secretary of State for Northern Ireland, Owen Paterson MP, asked to meet Geraldine Finucane. He informed her that the new government would not be bound by the previous administration’s approach, and that they would be looking at the case afresh.
26. Three days later, Paterson issued a written statement in the House of Commons saying that he was conducting a two month consultation over whether it remained in the public interest to hold a public inquiry into the Finucane case.
27. Under the previous administration, discussions had taken place between the Finucane family’s legal team and government lawyers. At the family’s instigation, these talks began again, and centred on whether it would be possible to conduct a meaningful inquiry under the Inquiries Act 2005. On 28 January 2011, the government’s lawyers put forward three possible models for inquiries, including an example of an inquiry held under the inquiries Act. This was the Baha Mousa Inquiry into the murder by British soldiers of an Iraqi hotel receptionist. As part of that inquiry, the Ministry of Defence entered into a protocol with the inquiry whereby all matters which under the Act could be dealt with by the Secretary of State were instead to be deal with by the independent Chair. On 10 March 2011 Madden & Finucane made submissions to the consultation exercise, the deadline for which had been extended, indicating that the Baha Mousa Inquiry would be an appropriate model to follow in Patrick Finucane’s case.
28. Nothing further was heard from the government until September 2011, when Owen Paterson’s office contacted Madden & Finucane to arrange a meeting at 10 Downing Street. This was the first time that David Cameron MP, the Prime Minister had become involved in the process. The meeting took place on 11 October 2011 and was attended by both David Cameron and Owen Paterson. Geraldine Finucane and five other members of the Finucane family were also present as was the family’s solicitor, Peter Madden, and Jane Winter, Director of BIRW. The Prime Minister opened the meeting by apologising for Patrick Finucane’s murder on behalf of the whole of the British government and acknowledging that collusion had taken place. This was the first admission after over 22 years that collusion had been involved. However, the Prime Minister went on to offer not the Baha Mousa style inquiry that everyone had been expecting, but an on paper, behind-closed-doors review by Sir Desmond de Silva QC, to report by December 2012. It rapidly became evident that the family would play no part in this review, would not be able to scrutinise the documents seen by Sir Desmond, and would not have the opportunity to examine any witnesses. It was equally clear that this review was not intended to be a prelude to a public inquiry, but a substitute for one, and that the review would go ahead whether the family wanted it or not. This process fell so far short of the family’s most basic requirements that Geraldine Finucane brought the meeting to an end after just 30 minutes.
29. The family found it difficult to understand why they had been brought to London, at their own expense, only to be delivered such a devastating blow. On 17 October 2011 they met the Tánaiste of the Irish government, Eamon Gilmore TD, who said that they had been equally surprised by this flagrant breach of the Weston Park Agreement. Like the family and their lawyers, the Irish government had also been told by the UK government that they expected the family to be pleased with the outcome of the meeting on 11 October. The Tánaiste pledged the Irish government’s full support for the family’s quest for a public inquiry.
30. The family’s legal team has now launched a judicial review to challenge the failure to provide an independent, judicial, public inquiry into the murder of Patrick Finucane.