The three-decade long concealment of the truth behind the murder of a gaelic games official should be a source of “profound shame and embarrassment” for the British state, a court has been told.
A barrister for the family of Sean Brown described his 1997 killing, which has been linked to several state agents, as an “indelible stain” on the body politic of the UK.
Des Fahy KC was responding to a Government bid to overturn the decision of a High Court judge last year to order a public inquiry into the murder.
Northern Ireland Secretary Hilary Benn’s challenge against the order was heard in the Court of Appeal in Belfast on Thursday.
SDLP leader Claire Hanna (left) and First Minister Michelle O’Neill arrive at Belfast High Court (Liam McBurney/PA)
Mr Benn’s barrister argued that Mr Justice Humphreys was wrong in law to compel the Government to set up a public inquiry.
However, Mr Fahy said the judge’s decision was “unimpeachable”, with an inquiry the only legal means left to uncover the facts around the murder.
He noted that the appeal case marked the 57th occasion Mr Brown’s 87-year-old widow, Bridie, had come to a courtroom in her long campaign for justice.
“The murder of Sean Brown is an indelible stain on the body politic of this state,” he told the three Appeal Court judges.
“The fact that 28 years later no-one has been prosecuted and convicted of this heinous murder is egregious in itself.
“However, the further fact that 28 years later the truth about what happened to Mr Brown remains resolutely and determinedly hidden from Bridie Brown, his 87-year-old widow, should be a source of profound shame and embarrassment for all of the institutions of the British state.”
The family of murdered GAA official Sean Brown walk to Belfast High Court on Thursday (Liam McBurney/PA).
Earlier, Tony McGleenan KC, representing the Government, said that Mr Justice Humphreys “seized the discretion” that should have been held by Mr Benn and exercised it himself when he ordered an inquiry.
He further described the judge’s decision as unprecedented, highlighting that there had never been another instance of a court making an order of mandamus, compelling the Government to hold a public inquiry.
“There’s not a single example anyone will show you of a court doing that,” he said.
Mr Brown, 61, the chairman of Bellaghy Wolfe Tones GAA club in Co Londonderry, was ambushed, kidnapped and murdered by loyalist paramilitaries as he locked the gates of the club in May 1997.
No-one has ever been convicted of his killing.
Stormont First Minister and Sinn Fein vice president Michelle O’Neill and SDLP leader Claire Hanna were among supporters who accompanied the Brown family to the Court of Appeal in Belfast on Thursday.
Last year a coroner halted an inquest into the death, expressing concern that his ability to examine the case had been “compromised” by the extent of confidential state material being excluded from the proceedings on national security grounds.
Preliminary inquest proceedings had already heard that in excess of 25 people had been linked by intelligence to the murder, including several state agents.
It had also been alleged in court that surveillance of a suspect in the murder was temporarily stopped on the evening of the killing, only to resume again the following morning.
Coroner Mr Justice Kinney called on the Government to establish a public inquiry into the loyalist murder.
Mr Benn decided against holding an inquiry, saying the case could instead be dealt with by a new Troubles investigatory body, the Independent Commission for Reconciliation and Information Recovery (ICRIR).
Bridie Brown, the widow of murdered GAA official Sean Brown, holds a picture of him (Liam McBurney/PA)
However, aspects of the legislation that underpins the work of the ICRIR was later found to be incompatible with human rights laws in a different Court of Appeal challenge, separate from the Brown case.
Mr Brown’s widow challenged Mr Benn’s decision not to order a public inquiry and Mr Justice Humphreys found in her favour in December and ordered the Government to establish one.
Northern Ireland’s Lady Chief Justice, Dame Siobhan Keegan, joined two other Court of Appeal judges, Lord Justice Treacy and Lord Justice Horner, in hearing the case on Thursday.
Mr McGleenan suggested that ordering a public inquiry was premature, as he said Mr Benn remained committed to making the ICRIR compliant with human rights laws, either by legislative changes or by successfully challenging the separate Court of Appeal judgment at the Supreme Court.
He said Mr Justice Humphreys should have adjourned Mrs Brown’s case until the outcome of the appeal over the ICRIR’s compliance ran its course.
During exchanges in court, Lord Justice Treacy told Mr McGleenan that a judge’s job was to make a ruling based on the state of the law at the time, and not on what the legal position might look like in the future.
He suggested that a public inquiry was the “only show in town” in terms of a human rights-compliant investigation, as he predicted that Government moves to make the ICRIC compliant could take years.
Mr McGleenan said that the ICRIR would be made human rights compliant “by hook or by crook” and it could then deal with the Brown case “faster and cheaper” than a public inquiry.
He said Mr Justice Humphreys was aware of the Government’s commitment to make the ICRIR compliant when he ordered the public inquiry.
Noting the family’s long wait for justice, the barrister acknowledged that it was “not a comfortable position” for the Government to be mounting the appeal challenge.
But he maintained that Mr Justice Humphreys should not have ordered a public inquiry while the issues of “considerable importance” around the ICRIR’s ability to hold a compliant investigation were still unresolved.
Mr McGleenan said: “We say, regardless of the emotive facts of this case, and one can’t have but sympathy for the Brown family having to come here again to hear these arguments; regardless of that, there’s a very important point of principle that is live before the appellate court, and in those circumstances, we say, it was an error for the judge to address the case in the way that he did and make a mandatory order.”
He said it was Mr Benn’s constitutional right to make the decision as how best to deal with the Brown case.
Mr McGleenan said the Secretary of State made his decision not to hold a public inquiry after weighing up “live” issues over the status of the ICRIR, and the judge then ruled that Mr Benn was “completely wrong”.
“The judge, by taking that approach, completely sidestepped the qualitative analysis of whether or not a public inquiry was warranted or not,” he said.
“He seized the discretion from the hands of the Secretary of State and exercised it himself without having regard to any of those factors.”
Questioning the barrister’s contention, Lady Chief Justice Keegan said she did not understand why the Government did not appeal against the judge’s decision not to adjourn the case at the time, and before he got to the point of delivering his order.
Mr McGleenan said his argument about the failure to adjourn the ruling would not be one of the substantive grounds offered by the Government in the appeal court case.
Responding on behalf of the Brown family, Mr Fahy said their “concern and indignation” over the failure to uncover the truth would continue until “the circumstances of the murder and state involvement in it are exposed”.
“Sean Brown’s widow appears in court today for the 57th time to ask a court to ensure that the state adheres to its minimum obligation to ensure an effective investigation of how her husband died and in what circumstances,” he added.
“She knows the prospect of a conviction in a criminal court is now vanishingly small.
“The killers have in all likelihood escaped accountability for their actions, but the reasons why that was, and is, still can, and must, be examined.”
He said the only lawful way to do that was through a public inquiry.
Mr Fahy said the “illegality at the centre of this challenge” was the “refusal by the Secretary of State to convene a public inquiry”.
“In refusing to do so, he is presiding over a state of illegality,” he said.
The barrister said the order of a public inquiry was legally sound and had vindicated Mrs Brown’s human rights entitlements.
“It also represented the first occasion in 28 years in which the prospect of the spotlight of truth finally being shone on what happened to Sean Brown becoming tangible and real,” he added.
The case continues.