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SEPTEMBER 2004
government moves goalpostS on finucane case - again
On 24th September the UK government finally bowed to the inevitable and announced that they would hold an inquiry into the 1989 murder of Belfast lawyer Patrick Finucane. Those of us who have been working on the case for the past 14 or 15 years immediately noticed the absence of the word “public” before “inquiry”, but worse was to come. Northern Ireland Secretary of State Paul Murphy went on to say, “In order that the inquiry can take place speedily and effectively and in a way that takes into account the public interest, including the requirements of national security, it will be necessary to hold the inquiry on the basis of new legislation…” The Tribunals of Inquiry (Evidence) Act has been in place since 1921. Over the years, all sorts of safeguards have been put in place to deal with every sensitive issue imaginable. Yet there is something about the Finucane case which is obviously just too hot to handle. So it came as no surprise when Murphy later gave media interviews in which he said that most of the Finucane inquiry would be held in private, and that there was no guarantee that even the Finucane family would be allowed to be present. What it boils down to is that the people who know what really happened will sit in a room in secret and tell each other what they already know! For more information about this infamous and blatant attempt to prevent the truth from becoming known, please see the homepage of our website.
new legislation on inquries
Some clues as to what the proposed new law on inquiries might look like appeared in a paper published late this month summarising the responses the government received to a Department of Constitutional Affairs’ consultation paper on Effective Inquiries and setting out the government’s conclusions in light of the consultation exercise. The consultation was not about the 1921 Act, but primarily concerned non-statutory inquiries established by government ministers into controversial events, such as the Hutton Inquiry into the death of Dr Michael Kelly. Some of the main conclusions in the latest report include:
ministers must decide whether or not an inquiry is in the public interest
ministers should be able to commission inquiries, when they are necessary, and any legislation should contain a power to that effect
ministers should explain publicly any decision to establish, or not to establish, an inquiry
it is for Parliament to consider the question of whether it might establish its own inquiries, but these raise many questions
carefully considered terms of reference are key to a successful inquiry
the need for consultation on terms of reference with the chair or interested parties will vary between inquiries, but the final decision rests with the minister
the commissioning minister should retain responsibility for appointing the chair and other panel members
in controversial cases, e.g. where a government department has a direct interest in the inquiry, it should be possible for the minister to take steps to ensure that the appointment of the chair and other panel members is, and is seen to be, impartial
the selection process should be as transparent as possible, but will probably not involve public advertising
there should be a statutory requirement for the minister to have regard to the need for impartiality when appointing inquiry panel members
there could be a requirement for the minister to ensure that the panel has the necessary expertise to conduct the inquiry
powers to enforce the attendance of witnesses, to examine witnesses on oath or affirmation and to compel the production of documents
sanctions for non-compliance
sanctions for destruction, suppression or distortion of evidence
witnesses will have immunity from civil proceedings brought as a result of their evidence and the right to refuse to answer on the grounds of self-incrimination
inquiries should be inquisitorial and adversarial elements should be avoided where possible
procedural rules will govern the conduct of inquiries
statutory requirement on the chairman to have regard to the potential costs to public funds and to inquiry participants when planning and conducting the inquiry
either the minister (at the outset) or the chair (during the inquiry) can decide whether an inquiry should be held wholly or partly in private
either the minister or the chair (presumably the minister will decide who) will have responsibility for publication of the inquiry report
It will always be appropriate for ministers to state what they intend to do in response to an inquiry’s recommendations.
It seems that many of the powers currently exercised by independent judges will be placed in the hands of government ministers. This will mean that, in some controversial cases, the government will be in charge of investigating itself. It is also apparent that any new law will take some time to work its way through Parliament, and may not even make it before the next election, which will probably be in May 2005. It is not clear whether the Finucane case will be delayed yet again by this process, or whether the government intends to pass some quick and dirty law just to deal with Finucane. If so, it will be yet another case of an Irish law designed solely to deal with what the government perceives as an Irish problem. How much simpler and fairer it would be to use the existing legislation, the 1921 Act.
ken barrett convicted
The gambit of introducing new legislation was dreamed up after an earlier stumbling block was removed when on 16th September Ken Barrett was convicted of being one of the gunmen who murdered Patrick Finucane. He pleaded guilty, which meant that absolutely no new information came to light as a result of his trial. Weir J handed down a mandatory life sentence and recommended that Barrett serve 22 years before being considered for release, but in reality Barrett will be released nest year under the early release provisions of the Good Friday Agreement. So the Stevens 3 team may have got a conviction, but justice seems to be a little thin on the ground. BIRW’s Deputy Director Lorna Davidson attended the trial on our behalf.
ATTEMPT TO PREVENT NGOs FROM TAKING NOTES IN COURT
Lorna and other observers from human rights groups were very surprised to find that when they arrived at court to observe Ken Barrett’s trial they were told that they would not be allowed to take notes. Independent monitoring of the justice process is a vital aspect of democracy, and this is the first time that any BIRW observer has been faced with such a denial of such a fundamental right. Thankfully, the problem was resolved fairly swiftly, but we assert our right to observe any hearing in open court, to take notes, and to report on the proceedings, whether at the request of any party to the proceedings or of our own volition.
no further progress on the nelson, hamill and wright inquiries
We are still waiting to hear the names of the judges who will head the public inquiries into the deaths of Rosemary Nelson, Robert Hamill and Billy Wright. It remains to be seen whether the Northern Ireland Office will live up to the assurances that they gave to the three families that they will be able to meet the judges and discuss terms of reference, the membership of the tribunals, and the conduct of the proceedings. Amnesty International, the Committee on the Administration of Justice and BIRW have written an open letter to the Prime Minister about our concerns about these three inquiries, which is available on the homepage of our website.
CE human rights commissioner to visit the uk
On 15th September I met John Dalhuisen to brief him on the Council of Europe’s Commissioner for Human Rights, Alvaro Gil-Robles’ visit to the United Kingdom in November, when he will spend some time in Northern Ireland. This is the Commissioners’ first visit to the UK since his office was established in 1999. Needless to say we had much to discuss in relation to Northern Ireland.
hearings on hate crimes
While Lorna Davidson was in Belfast, she also attended a hearing of the Northern Ireland Affairs Committee on hate crimes, when religious leaders gave their views.
judicial appointments
She also went to a seminar organised by the Northern Ireland Court Service to discuss the new Judicial Appointments Commission that is being established.
sergeant joe campbell
On 28th September I met a Senior Investigating Officer from the Police Ombudsman’s office to discuss the murder in 1977 of RUC Sergeant Joe Campbell. It is hoped that the Ombudsman’s report on this brutal and murky murder will be available soon.
MARTIN O’HAGAN
The 28th of September saw the third anniversary of the murder of journalist Martin O’Hagan. BIRW continues to be concerned that the police investigation into his death appears to have run into the sand and that some journalists in Northern Ireland continue to work in fear of their lives.
Jane Winter,
Director,
30th September 2004.
For Peace Justice & Human Rights
