Sunday Tribune

Law Lords ruling undermines families' case for collusion inquiries
--by Eamon McCann, Sunday Tribune

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 10 days ago 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 brought the provisions of the convention into
domestic UK law in 2000.

The Lords' 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 nine days will have been conceded just at the moment when the Lords have made effective and
independent inquiries in their cases even more problematic.

March 25, 2004

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