PATRICK FINUCANE: THE REWRITING OF HISTORY CONTINUES

By Austen Morgan, News Letter, September 13th, 2024

A public inquiry for the Finucane family, on, symbolically, 9/11! But how many more such uncosted and untimed events, before the legacy of the troubles may be laid to rest?

Hilary Benn, the secretary of state, made a stab at statesmanship, in parliament on Wednesday, but his reasoning was far from faultless. More importantly, he abandoned an arguable constitutional position on truth and justice, for the ideological rewriting of the history of the troubles as simply state abuse.

Benn referred to the UK government’s promise on public inquiries, at Weston Park, in August 2001, reiterated by Paul Murphy, as secretary of state, in September 2004. But Weston Park was not accepted by the political parties, then or since. And the Inquiries Act 2005, associated by Murphy with the Finucane case, was rejected by the family’s supporters during enactment and for many years.  

Most importantly, the UK supreme court, in its decision of 27 February 2019, cited by the secretary of state, took the view – as Gavin Robinson MP explained – that: ‘It does not follow that a public inquiry of the type which the appellant [Geraldine Finucane] seeks must be ordered.’

 It was not, though Benn could not bring himself to mention that, despite opportunities to clarify when answering questions.

 The Finucane case is not, as claimed on Wednesday, unique. And there is no logical reason why Kingsmills – one example given in parliament – should not also have its public inquiry. The difference, of course, is the identify of those clamouring (consciously or not) for lawfare and effectively the continuation of the troubles with lawyer warriors.

In 1968-98 and after, some 3,750 persons were killed. Sixty per cent were victims of republicanism; thirty per cent of loyalism. All those killings were unlawful (and therefore murder). And all those victims have families. The ten per cent of state killings were lawful, except where they have been held to be unlawful. And these dead also have families, who have suffered loss.

Patrick Finucane was murdered by the West Belfast UDA, and Brian Nelson, not William Stobie, and Ken Barrett were convicted.  Ironically, Nelson and Barrett served only two years of their long sentences in prison. Most importantly, all three were working for the police and/or army, under differing regimes.

The early release from prison was due to the 1998 Belfast agreement, which promised peace and reconciliation. Paramilitary prisoners were released after two years, as would have been any sentenced police officers or soldiers. That set the framework for legacy policy in subsequent decades.

Parliament legislated for amnesties, in connection with decommissioning and the disappeared. Immunity was granted witnesses in the Saville, and four lesser, public inquiries. Above all, between 2000 and 2014, at least 187 of 228 IRA applicants (the so-called on the runs), were issued with secret comfort letters about their non prosecution in return for their continuing support for Gerry Adams and Martin McGuinness.

None of this was tackled in the Legacy Act 2023, and the independent commission on reconciliation and information recovery (ICRIR) is now responsible for legacy policy.

Geraldine Finucane had campaigned from 1995. She made progress with the three Stevens inquiries, in the 1990s. She won an article 2 case at the European court of human rights in Strasbourg, in 2003. And, in 2002-04, she made progress with Judge Cory of Canada, who concluded there was a prima facie case for collusion (which he defined as including inaction by state bodies!).

But, after years of domestic litigation, her appeal was dismissed in the supreme court, in February 2019. Then surprisingly, in July 2024 (days after Labour came to power), she succeeded in the court of appeal in Northern Ireland (a case the government decided not to take to the supreme court).

There is a two-volume (841 page) report on the murder of Patrick Finucane, by Sir Desmond de Silva QC, which was published in December 2012. I urge people to read it. De Silva, an English criminal barrister of Sri Lankan origin (who died in 2018), tackled the idea of collusion head on through a forensic analysis of army and police agents during the troubles, without statutory regulation until 2000.

He concluded: ‘My Review of the evidence…has left me in no doubt that agents of the State were involved in carrying out serious violations of human rights up to and including murder. However, despite the different strands of involvement by elements of the State, I am satisfied that they were not linked to an over-arching State conspiracy to murder Patrick Finucane.’

Geraldine Finucane refused to accept this conclusion, telling the Belfast Telegraph on 8 October 2019: ‘She adds that Judge Cory…told her he had seen papers marked “for cabinet eyes only” and they involved collusion and the killing of her husband.’ There is no such security classification in the UK.

Benn had a successful private meeting with Geraldine Finucane, on Tuesday. However, if his unnamed judge, who will conduct the public inquiry in the next few years, tilts towards de Silva (with his 329 pages of documents from the deep state), and not endorse her conspiracy theory, she will have another British ministerial scalp to add to an illustrious collection over the decades.

Benn – by simply referring to article 2 – has seriously misconstrued the legal obligation on the UK government, regarding a public inquiry.

From 2004, the house of lords/supreme court opined against retrospective justice. In McQuillan in December 2021, the justices held that there was no article 2 obligation for deaths before 2 October 2000 (less a controversial ten-year Strasbourg rule).

Patrick Finucane was killed on 12 February 1989, and did not therefore qualify. But Lord Kerr, from Northern Ireland, who majored on article 2, perversely finessed the ten-rule to a twelve-year one, in order to bring Finucane in. This was not resolved until Dalton in October 2023, when Lord Hodge, Lord Sales and Lady Rose lost the argument against four colleagues, including Dame Siobhan Keegan, the lady chief justice of Northern Ireland.

The Labour government could have sought to go again to the supreme court on article 2; instead, it chose the ideologically attractive – but legally dubious – route of deferring to the late Lord Kerr’s finessing.