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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 -
v-
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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