Court rejects NI Secretary Heaton-Harris appeal against 'unlawful' Finucane public inquiry ruling

Senior judges have rejected an appeal by the former Northern Ireland Secretary that his refusal to consider a public inquiry into the murder of the Belfast solicitor Pat Finucane was unlawful.

The Court of Appeal also dismissed claims by lawyers representing former Secretary Chris Heaton-Harris that widow Geraldine Finucane should not have been awarded £5,000 in damages for the continued delays in responding to her ongoing campaign.

Mr Finucane, 39, was shot dead by UDA gunmen in front of his wife and three children at their north Belfast home on February 12, 1989.

The human rights lawyer was shot 14 times while his wife Geraldine Finucane was struck by a ricocheting bullet but she cheated serious injury.The Court of Appeal said on Thursday: "This was a deliberately cruel and vicious murder designed to cause maximum hurt and upset to the family and friends of Mr Finucane."Thirty five years later.....this murder stands out as a truly barbarous act, the murder of a man in his own home in the presence of his wife and his very young children."Mr Finucane was a solicitor dedicated to protecting the rights of of his clients, regardless of their political or religious views.''Previous reviews had already established that members of the loyalist paramilitary gang involved in planning and carrying out the assassination were British agents.

But Mrs Finucane and her family continued to lobby for a full public inquiry to establish the scale of security force collusion in one of the most notorious killings of the Troubles.In 2019 the UK Supreme Court declared that earlier investigations into the murder failed to meet standards required by Article 2 of the European Convention on Human Rights.Since then, the lawyer’s widow has mounted a series of legal battles over the Government’s response to those findings.In November 2020 former Secretary of State Brandon Lewis announced there would not be a public inquiry at this stage because he wanted other police review processes to run their course.He was then ordered to pay £7,500 damages to Mrs Finucane for the excessive delay in reaching that position.A further challenge was taken against the legality of his decision to await the outcome of reviews by the PSNI's Legacy Investigations Branch and the Police Ombudsman for Northern Ireland (PONI).In December 2022 High Court judge Mr Justice Scoffield ruled the Government remains in breach of Article 2 by the ongoing delay in completing a probe which meets those legal requirements.He quashed the decision not to establish a public inquiry at this stage, identifying an unlawful failure to reconsider its position following the conclusion of a police review process.In early 2023, he ordered a further £5,000 compensation to be paid to Mrs Finucane for the “culpable delay” in Mr Heaton-Harris reaching a fresh conclusion on whether to establish a public inquiry.Lawyers representing the Government sought to overturn the judge’s findings and award of damages.Paul McLaughlin KC, for the Secretary of State, stressed to the Court of Appeal judges of Lord Justice Horner, Mr Justice McFarland and Mr Justice Rooney that a public inquiry has not been ruled out.He argued it was wrong to conclude the Government believed the PSNI and PONI reviews might fulfil the Article 2 obligations.“What the Secretary of State made absolutely clear is that he was simply deferring a decision to be taken at a later point in time, so he could be informed of that process, and that a public inquiry would be (an option) on the table,” the barrister said.“We say that the judge went too far.”Disputing the findings which led to the £5,000 award made to Mrs Finucane, counsel claimed a failure to properly distinguish any culpable delay.“The judge blurred the differences between public authorities, namely the Secretary of State, PONI and PSNI,” Mr McLaughlin submitted.Citing a prompt completion of the police investigation and a change in attitude to waiting for the Ombudsman, he contended that findings were wrongly made before any delay occurred.Mr McLaughlin said: “Just satisfaction does not require an award of damages.”However, Mrs Finucane’s counsel insisted the High Court had correctly identified a legal error in Government thinking that the PSNI and PONI processes could potentially discharge the Article 2 duty. Fiona Doherty KC said: “The Secretary of State who took this decision, and his successor who now stands over it, are the latest in a long line of Secretary of States who have taken decisions to kick the can down the road in this case and run down the clock on it.“This court should not allow them to do it.”Giving the judgement of the court today (Thursday), Lord Justice Horner said: "We have no hesitation in concluding that a second award of damages (£5,000) is appropriate given the culpable delay."The Secretary of State chose originally to await the outcome of the (PSNI and PONI) processes which were notoriously beset with delay."He took no steps whatsoever to ensure either the PSNI or PONI were able to deliver their respective process with due expedition."The Secretary of State should have anticipated, at the very least, that there was a real risk of delay given what had happened in the past."Despite this, no steps were taken to prevent such delay blighting these proceedings."It should have come as no surprise to the Secretary of State that, for example, the PONI process was hopelessly delayed."In all the circumstances we see no basis to interfere with the award of £5,000 damages for the period of November 2020 to the date of Scoffield J's decision to afford satisfaction to Geraldine Finucane.''The appeal judges said they considered it would be "constitutionally inappropriate'' to grant a mandatory order to establish a public inquiry in the present circumstances."The Secretary of State took one particular course of action when there are others which remain lawfully open to him."In the present case there are a number of options open to the Secretary of State as to how he should go about establishing an Article 2 compliant inquiry."However, should there be any undue delay in setting up an Article 2 inquiry, then this court may be driven to make a mandatory order.''The Court of Appeal has now set out a timetable for this: the parties have three weeks from today (Thursday) to agree on an Article 2 compliant process for investigation of the relevant aspects of Mr Finucane's death.If there is no agreement, a further three weeks will be granted to allow parties to submit their own proposal as to how an Article 2 compliant investigation should be carried out."The court will endeavour to select from the two choices put forward by the respective parties."In the unlikely event that the court is unable to choose either of the choices put forward, the court reserves the right to order its own Article 2 compliant process for the investigation into the callous and brutal murder of Mr Finucane as a last resort."For the reasons which we have outlined, this court dismisses the appeal of the Secretary of State.''Lord Justice Horner agreed to give the parties two weeks for the appropriate order of costs.

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