Wednesday 27 February 2019

Geraldine Finucane's Application

On 27 February 2017, some eight months after the hearing on 26-27 June 2018 and 19 months after permission to appeal was granted, the Supreme Court handed down its reserved judgment In the matter of an application by Geraldine Finucane for Judicial Review (Northern Ireland) [2019] UKSC 7.

The appellant, Geraldine Finucane, was the wife of Patrick Finucane, a solicitor murdered in his home in North Belfast by an illegal paramilitary group.  That was on 12 February 1989 - 30 years ago.  The State colluded in the murder by using its agents deliberately to manipulate loyalist paramilitaries so that they targeted suspected republican terrorists. The appellant’s husband, who was not connected with terrorism, was targeted in this way leading to his murder.  The State knew of the plan to murder him and either took no action to prevent his death or was complicit in it.

Previous posts on this case are at 8 August 2017 and 26 June 2018.

The case in the Supreme Court:

Geraldine Finucane claimed that she had a legitimate expectation that a public inquiry would be held because of an unequivocal assurance given to her in September 2004.  She said that 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.

Mrs Finucane supported her case by arguing that the failure to establish a public inquiry constituted a violation of her rights under Article 2 of the ECHR and section 6 of the Human Rights Act 1998 (“HRA”) which requires any public authority (including a Court) not to act in a way which is in contravention of an ECHR right. 

Mr Justice Stephens dismissed her application for judicial review but made a limited declaration that an Article 2 compliant inquiry into Mr Finucane’s murder had not yet taken place. The Court of Appeal (Northern Ireland) upheld this decision, save that it set aside the declaration.


The Supreme Court held that Mrs Finucane had a legitimate expectation that there would be a public inquiry into Mr Finucane’s death.  However, she had been unsuccessful in showing that the government’s decision not to honour this promise was made in bad faith or that it was not based on genuine policy grounds.  

As noted by the UK Supreme Court blog - "This was because, though the Court found that undertakings given by the various ministers amounted, individually and cumulatively, to an unequivocal undertaking to hold a public inquiry into Mr Finucane’s death, it is the case that such promises may be overtaken by political issues, and there was  no sustainable evidence to the effect that the process was a sham and the outcome was fixed."

The Supreme Court made a declaration that there has not been an Article 2 compliant inquiry into the death of Mr Finucane.

Lord Kerr gave a judgment with which all members of the Court agreed. Lord Carnwath delivered a concurring judgment.

The judgment (para 153) explains the effect of the declaration.  Lord Kerr said -
It remains to be seen how the government will respond to this declaration given that the procedural requirement of Article 2 has not been met.
The case is also discussed on the UK Supreme Court blog

Further reading:

Professor Mark Elliott - Public Law for Everyone blog - The Supreme Court's judgment in Finucane - I. Legitimate expectations, reliance, procedure and substance

II. Three unanswered questions concerning the doctrine of legitimate expectation

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