A recent Irish Echo article, "Rights Groups Concerned Over Thompson Ruling," highlighted the negative ramifications of the United Kingdom (UK) Supreme Court's decision in the Paul 'Topper' Thompson case. The ruling deals a major setback to families seeking justice for loved ones killed during the Troubles.
Daniel Holder, Director of the Belfast human rights group Committee on the Administration of Justice, said the Court's ruling enables the British government "to conceal the involvement of state agents in killings" during the Troubles.
I concur, and will explain why the case was wrongly decided.
Paul Thompson was shot and killed in 1994 in Belfast. Collusion involving state agents is believed to have played a role in his murder. The Thompson Inquest into his death began hearing evidence in 2023. It was forced to close on May 1, 2024, before it concluded, due to the statutory deadline enacted in the Northern Ireland Troubles (Legacy and Reconciliation) Act, which shut down 36 Inquests. To date, the full circumstances surrounding Thompson’s killing have not been investigated, and no one has been held accountable.
Paul 'Topper' Thompson.
The Supreme Court judgment criticized the Thompson Inquest Coroner’s legal analysis and critiqued the rulings of the Northern Ireland (NI) High Court and Court of Appeals, which upheld the coroner’s determination to admit certain national security evidence by finding that the balance of competing interests on whether to make the information public or keep it secret came down on the side of disclosure. For added measure, the Supreme Court admonished the Police Service Northern Ireland (PSNI) Chief Constable for supporting the coroner and transparency.
At issue in the London Court, was a “gist” - i.e., a summary of information in one national security folder - that the coroner ruled was admissible at the Inquest. Hence, the gist would be provided to the family and become public. (The coroner upheld the PII [public interest immunity] national security claim raised by the NI Secretary of State [NISOS] on six other folders. This meant information in those folders remained secret.) The NISOS objected to the Folder 7 gist because, he said, it was contrary to the government’s NCND (neither confirm nor deny) policy on the use of informers or other secret sources of information.
The test to be applied by courts in deciding whether to disclose information when PII has been asserted by the government is set forth in the UK Supreme Court’s 1995 Wiley decision. Wiley held that a court must balance the competing public interests of disclosure to further the fair administration of justice with non-disclosure due to the countervailing risk of harm to national security and determine which has greater weight.
The coroner and NI courts found that the gist furthered the due administration of justice into the investigation of Thompson’s killing, and its weight favored providing it to the family. The Supreme Court, however, found the coroner did not properly consider all factors required under the Wiley balancing test, and the NI courts erred by failing to recognize this flaw.
In particular, the Supreme Court said it was significant that the coroner did not consider the implication of the NI Troubles (Legacy and Reconciliation) Act, which ended the Thompson Inquest before it could be completed. The deadline meant no Inquest verdict could be rendered.
In reversing the lower courts, the Supreme Court applied the Wiley test on its own. The Court held the statutory deadline for completing Inquests undercut the effectiveness of the Thompson Inquest to such an extent that the primary public interest surrounding the gist was national security, and this weighed against disclosure. Otherwise, the Court said, the gist would be left “hanging in the air,” inviting speculation.
This statement suggests that, in the Supreme Court’s view, it is better for the speculation to be about the depth of the wrongdoing. It also reflects serious misjudgment by the Court in how it performed the balancing test in a matter where an individual’s murder has gone uninvestigated for more than three decades. Most fair-minded people would say the more the family and the public know about the killing, the better.
How does a court get it so wrong? The answer: by ignoring the societal damage caused by protecting wrongdoers.
The Thompson case is representative of many other Troubles-legacy murder cases (too many to list here) that have not been properly investigated in compliance with Article 2 of the European Convention on Human Rights (ECHR). For decades, the Thompson family has hungered for answers, waged a desperate fight for the truth, and held a forlorn hope for justice. They, and others, have been denied answers about how and why a loved one was murdered, prevented from learning the truth about who was involved, and blocked from receiving any form of justice in terms of accountability and/or acknowledgment of wrongdoing.
The coroner, NI courts, and PSNI Chief Constable understood that. In the Thompson case, they appreciated the significant public interest in transparency and disclosure. The Supreme Court chose to reject this assessment of NI’s Troubles-legacy reality, and to protect the UK government by ring-fencing allegations of collusion and state involvement in the commission of crimes.
It is not enough for the Supreme Court to recognize, as they did in the final paragraph of the decision, the state’s duty under Article 2 of the ECHR to investigate Thompson’s death and suggest this obligation can be fulfilled by a statutory public inquiry or, alternatively, by the Independent Commission for Reconciliation and Information Recovery (ICRIR).
First, the two are not equivalent or interchangeable, despite what the NISOS is arguing in the Sean Brown case pending before the Supreme Court. Second, under the British government’s proposed Troubles-Legacy replacement bill, national security claims are still grounds for withholding information from the public and the NISOS retains authority to have ICRIR final reports redacted on those grounds.
The stark difference in the approaches between the NI courts and UK Supreme Court on this important issue reminds us that forcing NI’s citizens to rely on the Court in London to be the final arbiter of NI Troubles-legacy matters is another reason for people to support a democratically unified island.
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