Court urges Hilary Benn to ‘remedy egregious delay’ and set up public inquiry into Sean Brown murder

Senior judges upheld a previous determination that Northern Ireland Secretary Hilary Benn had unlawfully failed to set up a statutory probe and gave him four weeks to confirm a process for complying with their ruling.

Lady Chief Justice Dame Siobhan Keegan stressed how the UK Government has remained in continuous breach of an Article 2 human rights obligation to effectively probe the full extent of state collusion in the May 1997 murder.

She stated: “This is a shocking state of affairs in that a quarter of a century has passed since Sean Brown was murdered and yet there has been no lawful inquiry into the circumstances of his death.”

The victim, a 61-year-old father of six, was abducted by a Loyalist Volunteer Force gang as he locked the gates at Bellaghy Wolfe Tones GAA Club in Co Derry.

He was bundled into the boot of his car, taken to Randalstown, Co Antrim and shot dead.

No-one has ever been convicted of his murder.

It emerged last year at an inquest that state agents were among more than 25 people linked by intelligence to the killing.

At that stage the coroner halted proceedings due to the extent of confidential material excluded or withheld on national security grounds and wrote to the previous Conservative Government requesting a public inquiry.

In September Mr Benn confirmed that those calls had been rejected.

He instead recommended that the bereaved family should engage with the Independent Commission for Reconciliation and Information Recovery (ICRIR), a new body set up under the controversial Northern Ireland Troubles Legacy Act.

The Court of Appeal has previously ruled that parts of the legislation breaches human rights law, with the Government having too much power to prohibit the Commission from sharing sensitive information and uncertainty about effective participation for next of kin.

Even though the Labour Government has pledged to repeal the Act, it intends to retain the ICRIR and is currently seeking to appeal the findings made against it at the Supreme Court.

Mr Brown’s 87-year-old widow, Bridie, mounted a successful judicial review challenge against the decision not to set up a public inquiry into her husband’s death.

In December, a High Court judge ordered Mr Benn to establish a public inquiry after finding the Government remains in breach of its Article 2 duty.

Mr Justice Humpreys identified a “clear and unambiguous obligation” to establish such a statutory probe in order to satisfy the state’s investigative duty under Article 2 of the European Convention on Human Rights.

Lawyers for the Government appealed his ruling arguing that it was legally and constitutionally wrong to make a mandatory order while there is still legal uncertainty over the status of the Legacy Act and the ICRIR.

They further contended that the financial bill for a Commission-led process would be just a fraction of any public inquiry while achieving the same outcome.

Counsel representing Mrs Brown responded that the decision to compel the Secretary of State to set up a public inquiry in a bid to finally uncover the full truth about state involvement in her husband’s murder was unimpeachable.

The killing was described as “an indelible stain on the body politic of this state”.

Appeal judges were told his elderly widow has attended court nearly 60 times in her legal battle to ensure the Government finally complies with its obligation to effectively investigate the death.

Ruling on the case, Dame Siobhan said the Commission currently has insufficient powers and is not equipped to deal with sensitive material.

“Mrs Brown is 87 years old. She has been pursuing her remedy for 28 of those years,” the Lady Chief Justice pointed out.

“So, in this case, the ICRIR is not fit for the purpose of delivering the remedy she needs now.”

With a statutory investigation under the 2005 Inquiries Act identified as the only resolution currently available on the statute book, she said there is nothing to prevent it incorporating all material already collected via the inquest process.

Rejecting further submissions about costs and administrative burdens as “mere assumptions”, the Court of Appeal found that it was a flawed basis to deny Mrs Brown access to the available remedy.

The decision of the Secretary of State to refuse the Brown family a public inquiry into the murder of Sean Brown therefore cannot stand,” the Chief Justice stated.

Mr Benn has failed to give proper weight to the current inadequacy of the ICRIR to carry out a human rights compliant investigation, according to the court’s findings.

Questions were raised about the independence of advice about the interests of the Ministry of Defence and MI5 officials in the ultimate decision.

Citing unique circumstances, Dame Siobhan disagreed with assertions a public inquiry would open the floodgates to an influx of similar requests.

“The only lawful option available to the Secretary of State to remedy the egregious delay in providing the Brown family with an Article 2 compliant investigation was to order a public inquiry,” she held.

The Chief Justice declared: “An independent public investigation, dealing with the coroner’s concerns, capable of dealing with sensitive material, with the Brownfamily legally represented, provided with the relevant material and able to examine the principal witnesses, must be held without further delay in order to satisfy the obligations imposed by Article 2 of the ECHR which all parties agree the UK Government is in breach of.”

But holding off from imposing any mandatory order, the court adjourned proceedings for four weeks in a “staged approach” to achieving a final remedy.

Dame Siobhan said it was to give the Government time to consider the judgment.

But she also stressed: “There cannot be any further delay, we trust that the Secretary of State will confirm the mechanism which he proposes to comply with the declaratory order within the time provided for.”