A judge went too far by declaring the UK Government’s response to demands for a public inquiry into the murder of solicitor Pat Finucane unlawful, the Court of Appeal heard on Monday.
Counsel for Northern Ireland Secretary Chris Heaton-Harris also claimed the lawyer’s widow Geraldine should not have been awarded £5,000 in damages for delays in responding to her ongoing campaign.
Mr Finucane (39) was shot dead by loyalist paramilitary gunmen in front of his wife and three children at their north Belfast home in February 1989.
Previous reviews have already established that members of the UDA team involved in planning and carrying out the assassination were British agents.
But Mrs Finucane and her family continue 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.
Earlier this year 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 are seeking to overturn the judge’s findings and award of damages.
Paul McLaughlin KC, for the Secretary of State, stressed 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 told the three appeal judges: “Just satisfaction does not require an award of damages.”
However, Mrs Finucane’s barrister 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.”
The appeal continues.