Commission on Security and Cooperation in Europe

Testimony :: Elisa Massimino
Washington Director - Human Rights First

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Chairman Smith, and members of the Helsinki Commission, thank you for convening this timely hearing and for providing Human Rights First this opportunity to share our perspectives with the Helsinki Commission concerning the importance of a public inquiry into the 1989 murder of Patrick Finucane.

We welcomed the chance to present testimony to the Commission at your March 16 hearing on Human Rights and Police Reform in Northern Ireland, and appreciate that you have now convened this hearing, and have invited both Judge Peter Cory and Geraldine Finucane to testify, in the wake of the release of Judge Cory’s report and the failure of the British government to establish a public inquiry in the Finucane case.

The core mission of Human Rights First, formerly the Lawyers Committee for Human Rights, to protect and promote human rights is rooted in the premise that the world’s security and stability depend on long-term efforts to advance justice, human dignity, and respect for the rule of law in every part of the world. Since we were established in 1978, we have worked both in the United States and abroad to support human rights activists who fight for basic freedoms and peaceful change at the local level; to protect refugees in flight from persecution and repression; to help build strong national and international systems of justice and accountability; and to make sure human rights laws and principles are enforced.

Human Rights First has been working actively for many years to advance human rights in Northern Ireland and has long been campaigning for public inquiries into the murders of both Patrick Finucane and Rosemary Nelson. We have published several reports about the intimidation and murder of defense lawyers in Northern Ireland, with particular focus on these two cases, and have documented how the situation of defense lawyers there is closely linked to the criminal justice and emergency law system and to the conduct of the police.

Despite the British government’s delay in releasing the Cory reports, we welcomed the April 1 announcement that inquiries would be forthcoming in the Nelson case, as well as those of Robert Hamill and Billy Wright. We were, however, extremely disappointed about the results in the Finucane case. Further delay in the case is especially painful for Geraldine Finucane and her family. More broadly, it prolongs the achievement of truth and accountability at a time when Northern Ireland is struggling to reform its police service and other criminal justice agencies and instill greater public confidence in government institutions. The horrible evidence of collusion, as reported by Judge Cory in his report on the Finucane case, cannot be left unscrutinized.

Judge Cory’s recommendation to hold a public inquiry in the Finucane case has substantial support in the international community and inside the United Kingdom. On April 16, 2004, the government of the Republic of Ireland made a statement at the United Nations in which it expressed disappointment in the British government’s decision to delay action on Judge Cory’s recommendation. Param Cumaraswamy, former UN Special Rapporteur on judges and lawyers, also criticized the decision, as did numerous others.

Many of those who have called for an inquiry urged this action long before Judge Cory’s independent investigation. But in committing itself to follow Judge Cory’s recommendation, the British government agreed to abide by a particular process. This is a particularly crucial moment in what has been a fifteen-year struggle to uncover the truth in the Finucane case. We urge the Commission to reiterate its previous call on the British government to establish a public inquiry. We also hope the testimony of Dr. Mitchell Reiss of the Department of State at today’s hearing will help clarify the U.S. government’s position on the case.

Public Inquiries: Overview

In August 2001, the British and Irish governments agreed to appoint an independent, international judge to investigate allegations of collusion in four British cases, including the Finucane case, and two Irish ones. In reaching that Weston Park agreement, the two governments “accept[ed] that certain cases from the past remain a source of grave public concern, particularly those giving rise to serious allegations of collusion by the security forces.” They agreed that “[i]n the event that a Public Inquiry is recommended in any case, the relevant Government will implement that recommendation.”

Various statutes in the United Kingdom allow for the establishment of inquiries into serious public matters or allegations of misconduct. The Tribunals of Inquiry Act of 1921, under which the Bloody Sunday inquiry was constituted, provides for public inquiries—with the power to compel evidence—into matters of “urgent public importance.” In the past, inquiries have been held in the United Kingdom in cases of public disasters, racist murders, financial misconduct by state actors, and allegations of police brutality, among others.

Following his appointment, and after thoroughly investigating the six cases under his terms of reference, Judge Cory recommended public inquires in all of the cases. His characterization of “public inquiries,” as he explained in the Finucane report, is consistent with many of the provisions specified in the Tribunals of Inquiry Act, including that such tribunals have the power to subpoena witnesses and documents and to utilize investigators. According to Judge Cory, the inquiries should be independent and held in public to the extent possible, with “findings and recommendations … in writing and made public.”

In his April 1 statement upon the release of Cory’s reports, Northern Ireland Secretary of State Paul Murphy explained that inquiries into the Nelson, Hamill, and Wright cases will have the same powers as those set up under the Tribunals of Inquiry Act. The Nelson and Hamill case inquiries will be established under the Police (Northern Ireland) Act of 1998, which provides for a public or private inquiry into “any matter connected with policing” at the Secretary of State’s direction. The Wright case is to be set up under a similar provision of Northern Ireland’s Prison Act of 1953.

Under the Police and Prison Acts, the Secretary of State has discretion regarding the public nature of the inquiries and publication of their findings, and we hope that the decision to utilize them is not used as an excuse to narrow the inquiries’ powers or the need for a public and independent investigation. We also hope that in the Nelson case, the inquiry will examine the shortcomings in the police investigation after her death.

The Finucane Case

During the same April 1 Parliamentary hearing, the British government failed to commit to a public inquiry in the Finucane case, saying that “we will set out the way ahead at the conclusion of prosecutions.” In his statement, Secretary of State Murphy noted that there were no outstanding prosecutions in the Wright or Hamill cases and that in the Nelson case, the Chief Constable of Northern Ireland had advised the government that a public inquiry would not prejudice the investigation.

Secretary Murphy, however, did not explain the shift in the British government’s position: that the establishment of inquiries in these cases was contingent on the completion of prosecutions. He also did not clarify why an inquiry in the Finucane case was not possible at the same time as a prosecution, or why it might be more prejudicial than in the other cases— saying only that there was one prosecution ongoing and the potential for others, and that public interest demanded the conclusion of prosecutions.

When the British and Irish governments agreed in 2001 to the appointment of an international judge, they clearly stated—as noted above—that a recommendation for a public inquiry would be implemented. Their agreement acknowledged prosecutions, saying that that the international judge’s inquiry would begin no later than April 2002, unless such an investigation would be “clearly prejudicial to a forthcoming prosecution at that time.” The commitment made no such condition regarding implementation of the judge’s recommendations after the investigation was undertaken.

In his report, Judge Cory discussed the conflict that might arise if new prosecutions were to proceed in the Finucane case, noting that it is the duty of the Attorney General to balance relevant factors and decide if prosecutions must be brought as a result of recently discovered evidence. But he pointed out that “[t]his may be one of the rare situations where a public inquiry will be of greater benefit to a community than prosecutions” and that, in light of his “finding that there is sufficient evidence of collusion to warrant a public inquiry, the community might prefer a public inquiry over a prosecution even if it means that some witnesses must receive exemption from prosecution.”

Certainly it is an exceptional case where a public inquiry is preferable to prosecutions. Yet the Finucane case is just such a case for a number of reasons. For example, strong evidence has emerged that:

  • The murder was committed with the knowledge of three U.K. intelligence agencies, including divisions of the local police and the national army, and through the actions of government agents;

  • The inquest and initial police investigations were inadequate, blocked, and lacked independence; and

  • Scrutiny by the Chief Commissioner of the London Metropolitan Police, Sir John Stevens, was obstructed by both the army and the police force during three separate investigations related to the Finucane case,[1] and by a fire in one of the investigation team’s offices, which Stevens believes was a deliberate act of arson.



Every independent observer of the Finucane case, including Sir Stevens, the United Nations, Human Rights First, and most recently Judge Cory, has found evidence of collusion. Despite fifteen years of a government investigation, there have been no convictions of the killers or their handlers, or official determinations of government misconduct. There has yet to be a public accounting for the strong evidence of government action and complicity in Finucane’s death.

Last year, the European Court of Human Rights found that Patrick Finucane’s right to life had been violated because the investigation into his death “failed to provide a prompt and effective investigation into the allegations of collusion by security personnel.” The Court did not, however, call for a fresh investigation, finding that it could not be assumed that a future investigation would be carried out usefully or provide redress to the family or the public at large. In such circumstances, there is a necessity for accountability in a transparent way. In Judge Cory’s conclusion, he found that “[i]f public confidence is to be restored in public institutions then in some circumstances such as those presented in this case a public inquiry is the only means of achieving that goal.”

As the British government acknowledged when it pledged to appoint an international judge, this is a case of “grave public concern.” As a matter of “urgent public importance,” a public inquiry is not only appropriate, but necessary.

To be clear, we do not believe in any regard that a public inquiry into the Finucane case would interfere with any prosecution. But the central issue here remains that prosecutions cannot address the wider institutional problems that this case highlights, nor promote the kind of institutional improvements that extend beyond the specifics of this, or any other, individual case. Given the British government’s poor track record over the past fifteen years in the Finucane case, the loss and destruction of important evidence, and the unavailability of key witnesses and others so many years after the fact, prosecutions also present the prospect of further delay without the likelihood of any ultimate success.

In contrast to this uncertainty surrounding prosecutions, a public inquiry would allow the community to judge if current and future reforms to the criminal justice system are accurately targeted. A public inquiry would help to ensure that current policies, procedures, and structures are likely to withstand future prospects of institutional conflict and corruption of the kind Northern Ireland experienced in the past. And it would go a long way toward instilling long-needed trust in the rule of law.

While the British government may claim that an inquiry could prejudice prosecutions, its own defense of emergency measures provides a strong argument for concurrent proceedings. If the purpose of prosecutions without juries is to promote impartiality, then the judges in those trials should not be influenced by a public inquiry, keeping their decision-making to evidence presented in court and admitted into the record. In addition, in narrow circumstances tribunals of inquiry have the power to limit public access to certain evidence or aspects of the proceedings; an independent tribunal could make such decisions if a situation arose that could jeopardize a fair prosecution.

Finally, in the past the British government has not found public inquiries to be inconsistent with ongoing criminal investigations and possible prosecutions. For example, in the Lawrence Inquiry, which looked into the death of Steven Lawrence, a public inquiry was not viewed as preventing criminal prosecutions. As noted, this recognition was also reflected in the August 2001 agreement by the governments of Ireland and the United Kingdom that led to Judge Cory’s appointment.

In its statement last month, the British government did not explain whether either the Attorney General or Chief Constable had determined that a public inquiry would be prejudicial to the current prosecution in the Finucane case. Nor has it provided a full explanation for its failure to call an inquiry in the case. In short, the government’s invocation of a conflict with the criminal proceedings, after it had committed itself to abide by Judge Cory’s recommendations, is the source of great frustration and heightened concerns about its commitment to see justice done. We therefore believe that the British government should now abide by its 2001 commitment and call for a public inquiry into the Finucane case.

The Need for Accountability: David Trimble’s Statements and Their Implications

The broader context surrounding the issues discussed above has also been impacted by what Human Rights First regards as inflammatory statements made in the House of Commons by MP David Trimble. Upon the release of the Cory reports on April 1, Trimble spoke in the House of Commons and publicly accused both Patrick Finucane and Rosemary Nelson of having “a clear terrorist connection” and raised questions about “how people such as Mr. Finucane operated and about the nature of his associations and contacts.” He subsequently defended these statements, telling a journalist that “I don’t think anybody thought [Mr. Finucane] was simply a lawyer.”

These comments are strikingly reminiscent of those made by Douglas Hogg in an address to the British Parliament on January 9, 1989. Hogg charged that unnamed solicitors in Northern Ireland “are unduly sympathetic to the cause of the IRA.” Just weeks later, Mr. Finucane was murdered. In recent weeks, the Chairman of the Criminal Bar Association in Northern Ireland and the Chief Executive of the Law Society said that Trimble’s comments may put the lives of other human rights lawyers at risk.

On April 6, Human Rights First Executive Director Michael Posner wrote to Trimble to convey our deep concerns that his remarks were without foundation, dangerous and incendiary. He asked Trimble to offer a formal apology to the Nelson and Finucane families and to retract the statements. We are not aware, however, of any such response in the aftermath of the incendiary statement and our correspondence, and urge the Commission to continue to closely monitor the situation.

In the aftermath of Trimble’s comments, Chief Constable Hugh Orde emphasized that there was no evidence to link Mr. Finucane to the IRA, an assertion that the RUC had made in 1989. Judge Cory, who has thoroughly reviewed the police documentation in the case, said that “[t]here can be little doubt that it was his role as a solicitor that led to his murder.” He said the same about Rosemary Nelson’s murder. Regarding Mr. Finucane, Judge Cory noted further that “there is nothing in the RUC files which indicates that Patrick Finucane was a member of PIRA, the IRA or the INLA.”

Those statements buttressed earlier ones by several former senior police officials. For example, following Ms. Nelson’s murder in 1999, Chief Constable Ronnie Flanagan described both Finucane and her in the Northern Ireland press as “highly professional solicitors doing nothing more than their professional best to represent the interests of their clients.” At Mr. Finucane’s inquest, the Senior Investigating Officer said: “The police refute the claim that Mr. Finucane was a member of PIRA. He was just another law-abiding citizen going about his professional duties in a professional manner. He was well known both inside and outside the legal profession. He was regarded in police circles as very professional and he discharged his duties with vigour and professionalism.”

Trimble’s comments are thus directly at odds with the positions of a number of senior officials who were intimately familiar with both the Finucane and Nelson cases. Coming on the heels of disparaging remarks he made about human rights advocates in Madrid in late January 2004 at an international conference of victims of terrorism, where he attacked human rights organizations as “one of the great curses of this world” and asserted that they “justify terrorist acts and end up being complicit in the murder of innocent victims,” they raise profound concerns about Trimble’s apparent willingness to contribute to a climate in which governments and non-state actors feel little restraint in attacking defense lawyers and other human rights defenders who may be critical of official actions or working to uphold the rule of law.

Conclusion

David Trimble’s recent remarks underscore the consequences of the ongoing denial of justice in the Finucane case. The lack of accountability for a murder committed fifteen years ago makes it possible for prominent officials to perpetuate unsubstantiated claims. Coming just as Judge Cory issued his report documenting both the brutality of the murder and the evidence of state culpability, they point to the ongoing need for a full public inquiry to uncover the truth.

The Finucane case demands a further inquiry that can promote genuine accountability. Four years after the Helsinki Commission held a hearing that led to a call for public inquiries on the Finucane case and others, there can be no further justification for any additional postponement and delay. The interests at stake—from the friends and family of Patrick Finucane to lawyers and other human rights defenders to the broader community in Northern Ireland seeking to promote the rule of law—compel a full accounting for what happened a decade and a half ago.

Thank you for your longstanding interest in these issues and your consideration of our views.


1. The Finucane case was included in the terms of reference of only the last of Stevens’s three investigations.