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The
prospect of new inquiries finding the truth about
alleged security force collusion in killings in the
North has been thrown into doubt by Britain's highest
court. Inquiries recommended by Canadian judge Peter
Cory into the murders of Pat Finucane, Rosemary Nelson,
Billy Wright and Robert Hamill will be directly affected.
Five
Law Lords ruled unanimously on March 11th that the
Government's obligation under Article Two of the European
Convention on Human Rights---to carry out "effective
and independent" investigations into killings
involving State agents---did not apply to deaths that
happened before the Human Rights Act brought the provisions
of the convention into domestic UK law in 2000.
The
ruling related to an appeal by the Crown against a
decision in the Northern courts in January last year
that the family of Gervaise McKerr was entitled under
Article Two to a new investigation into his death.
Lord Chief Justice Carswell ruled that a RUC investigation
which had led to failed murder charges against three
RUC officers had not met the convention standard.
McKerr,
together with fellow IRA members Eugene Toman and
Sean Burns, had been ambushed and killed by a RUC
unit near Lurgan in November 1982. All three men were
unarmed at the time. McKerr's was a test case for
the families of eight other "shoot-to-kill"
victims, including Toman and Burns, who had launched
proceedings.
The
Cory review of six separate "collusion"
cases---the four in the North, plus two in the South---was
commissioned by the British and Irish governments
following the Weston Park talks in August 2001. Both
governments pledged to implement Cory's findings.
The reports were delivered last October. The Dublin
authorities accepted Cory's recommendation of an Inquiry
into alleged garda collusion in the March 1989 IRA
killing of RUC officers Bob Buchanan and Harry Breen.
Cory did not recommend further inquiry into the April
1987 killing by the IRA of Lord Justice and Lady Gibson.
The
British Government has cited legal and security reasons
for refusing so far to comment on the reports. Apparently
unhappy at the delay, Cory personally contacted the
four families last month to tell them he had recommended
an inquiry in each case.
On
March 12th---the day after the Lords' ruling on McKerr---Northern
Secretary Paul Murphy wrote to Rosemary Nelson's mother
to confirm that Cory's report will be published before
the end of this month.
The
significance of the McKerr ruling has to do with the
balance inquiries would have to strike between considerations
of national security and the safety of security forces
witnesses on the one hand and the rights of the families
to a full investigation on the other. Article Two
has been widely seen as enormously strengthening the
families' hand in such situations. The Law Lords have
now withdrawn this advantage from families of pre-October
2000 victims.
It
is difficult to see how a public inquiry into the
Finucane case, for example, in which the bulk of the
evidence would refer to the identity and roles of
intelligence and security force personnel, could be
made genuinely public given that the family will now
be unable to cite Article Two rights in arguing for
disclosure. The Nelson, Wright and Hamill families,
too, could find that inquiries which Murphy may announce
within the next few days will have been conceded just
at the moment when the Lords have made effective and
independent inquiries in their cases even more problematic.
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