The Gazette 1992

GAZETTE

JULY/AUGUST 1992

Report of the Pub l ic I nqu i ry into

the Killing of Fergal Caraher a nd

the Wo u n d i ng of Mi chael

Caraher

(Published by the Irish

National Congress and the

Cullyhanna Justice Group, 1991,

£3.50).

This report provides the preliminary

findings of four of the five

international jurists who presided

over a public inquiry into the killing

of Fergal Caraher and the wounding

of his brother, Michael Caraher, in

Cullyhanna, Newry, County

Armagh, on 30 December, 1990.

Michael Mansfield QC chaired the

panel of jurists. The call for an

independent public inquiry came

from the Caraher family, and this

call gathered support from many

quarters, regardless of religious or

political beliefs.

The Report also contains

submissions made to the inquiry by

individuals (e.g. Professor Tom

Hadden of Queens University) and

groups (e.g., Amnesty International,

the Committee for the

Administration of Justice, and the

Irish Council for Civil Liberties)

who are concerned about human

rights and the way the authorities in

Northern Ireland deal with legally

questionable killings by members of

the security forces.

The Report's introduction reveals (at

p.7) why the inquiry was established.

It says that in a democratic society,

"there should be no need for a

community response to such killings

as this inquiry and Report." Then it

notes, "But because of the deep-

seated fears that exist that all the

facts of this incident would not be

examined under public scrutiny, and

because of the lengthy and limited

legal process that does exist,

attention must be drawn to this case

to prevent further injustices." The

Report raises matters which should

be of concern to lawyers in this

jurisdiction, not least because it

addresses problems about the "rule

of law" in a jurisdiction which is

next door to us in the European

Community.

The Report clearly shows that the

killing of Mr. Caraher, and the

wounding of his brother, are legally

questionable. The Report recognises

that its work in this regard is no

substitute for a proper official

investigation. Compelling analyses

contained in the Report conclude

that the criminal law concerning the

use of lethal force by members of

the security forces is inadequate for

dealing with the "shoot-to-kill"

incidents which have recurred with

alarming frequency in Northern

Ireland. The current law is encoded

in Section 3 of the Criminal Law

Act (NI), 1967 and requires that the

use of force be reasonable in all the

circumstances. The courts have

interpreted these provisions in a way

that leans in favour of members of

the security forces who use force in

disputable circumstances [See

AG for

Northern Ireland's Reference (No. 1

of 1975)

[1977] AC 105, and

Farrell -

Secretary of State for Defence

[1980] 1 All ER 166]. The question

is also raised whether the legal tests

in this area comply with

international legal standards.

The Report expresses concern about

the lack of objective, prompt,

impartial and thorough,

investigations into disputed killings.

The RUC investigate their own

members. Investigations take too

long. The coroner's inquest may

make "findings" only as to the

cause of death; it is no longer

possible to bring in an "open

verdict" which indicated the

inquest's view that someone other

than the deceased was responsible

for his or her death.

Members of the families, and their

solicitors, do not have adequate

access to the written statements

made by members of the security

forces for inquests, and they are

denied access to specific forensic

evidence relating to killings. The

authorities often claim immunity

against the disclosure of

information at the inquest. Coroners

cannot require members of the

security forces involved in a disputed

killing to attend an inquest. Inquests

may be delayed for unconscionable

periods of time. There is reason

to fear that the authorities have

deliberately sought to weaken

the coroner's inquest as a truth-

finding procedure in Northern

Ireland.

Political conditions in Northern

Ireland are fraught. Members of the

security forces live under threat of

terrorism, on-duty and off-duty. It is

all the more important that the

security forces - and especially the

legal process - be impartial and be

seen to be impartial. It is therefore

vital that the security forces operate

within the law and that where their

personnel violate the law they are

held accountable with due

promptitude before the courts. This

Report warns us that things are not

as they should be.

Tom Cooney

Denis C. Guerin

New York Attorney at Law

Member of the Law Society, Dublin

Native Killarney, County Kerry.

Willing to act as agent or counsel

to you in the US

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