Recommendations by Hon. Kevin Burke — District Attorney, Massachusetts, USA
January 1992. Return to jurists’ full-text index
As a member of Northern Ireland Justice Watch, I was invited to participate as a jurist in a public inquiry into the shooting of two citizens of Northern Ireland by British Royal Marines on December 30, 1990, in the village of Cullyhanna, County Armagh. The known circumstances of the killing of Fergal Caraher and the wounding of his brother Miceal Caraher by Royal Marines gave rise to very serious public concern regarding the use of deadly force by security forces. This concern, coupled with a failure of the police or the government to provide information concerning the shooting, caused the Caraher family, the Cullyhanna Justice Group, and the Irish National Congress to sponsor a public inquiry into the shooting, on June 22 and 23 in Cullyhanna, County Armagh, Northern Ireland.
An international panel of jurists chaired by Michael Mansfield, Q.C. of England, and including myself, Judge Andrew Sommers of Wisconsin, Maitre Anne-Carine Jacoby, avocat a la cour, Paris, and Ms. Veronika Arendt-Rojahn, Rechtsawaltin and Notarin, Berlin, was assembled for the inquiry. The panel undertook this task having been satisfied as to the independence of the inquiry, and out of concern as to the use of lethal force in Northern Ireland. We clearly understood that, as an unofficial inquiry, our findings would have a somewhat limited scope, especially given the fact that the army, the government and the police had declined invitations to participate in the inquiry.
The procedures for the inquiry were developed by the jurists and two Irish lawyers, Fergal Kavanagh, a barrister, and Colm McGeehin, a solicitor. At the inquiry itself, Mr. Kavanagh, assisted at counsel table by Mr. McGeehin, examined the witnesses. At the completion of Mr. Kavanagh’s examination of each witness, the panel was allowed to examine the witnesses. There is a stenographic and videotape record of the proceedings.
The panel adopted a Preamble which recognises that the inquiry is not to be seen as the equivalent of a court of law. The Preamble does prescribe, while clearly recognising the State’s right and duty to enforce the law and maintain order, that there should be a prompt elucidation of the facts surrounding and inquiry into the death of any human being so as to allay the legitimate public concerns and fears. In addition, and most fundamental to this inquiry, the panel recognised in the Preamble that the law must be just and must apply to all equally and must be seen to be just and apply equally.
Finally, the panel adopted Terms of Reference which in essence frame the issues that each jurist should address in their findings. For the purposes of my findings, I will restate the issues to be examined in a form which combines the purpose and objectives of several terms of reference.
Statement of facts
On Sunday, December 30, 1990, at approximately 3:15pm, Miceal Caraher and Liam Murphy left McGeeney’s Pub at Freeduff Road, Cullyhanna. They entered a red Ford Granada owned by Murphy, and with Murphy driving they drove from Slate Quarry Road into Tullynavel Road. While on Slate Road just before the intersection with Tullynavel Road, they encountered a vehicle driven by Dr. Donal O’Hanlon of Dublin. As Dr. O’Hanlon turned onto Tullynavel Road, his vehicle, which was not operating properly, stalled. Liam Murphy and Miceal Caraher pulled in behind Dr. O’Hanlon’s car to see if they could assist with the problem. They spent several minutes unsuccessfully trying to start the car. Subsequently, Oliver McArdle, a neighbour of Caraher’s and Murphy’s who was driving up Tullynavel Road from Dundalk, pulled in on his right behind Dr. O’Hanlon’s car and assisted with the repair of the vehicle. In a matter of about ten minutes through the assistance of Mr. McArdle, Dr. O’Hanlon’s car was repaired and the doctor proceeded in the direction of Dundalk. Oliver McArdle departed immediately after Dr. O’Hanlon.
Around the time of Dr. O’Hanlon’s departure, Fergal Caraher, who was driving a white Rover, arrived at the scene. Fergal Caraher pulled his car in behind Liam Murphy’s vehicle, facing in the same direction (south). The Carahers and Murphy stood talking for a few minutes when they were approached by a foot patrol of four soldiers coming from the direction of Slate Quarry Road. One soldier asked for the names, addresses and purpose of travel of the Carahers and Liam Murphy. In addition, the soldier checked the registration of each vehicle but did not search the cars.
While the Carahers and Murphy were being questioned, a neighbour, Jim McAlistair, drove up from the direction of Dundalk and inquired if they were all right. Fergal Caraher replied that they were. Maeve Murphy, Liam Murphy’s wife, who was driving south toward Dundalk in her father-in-law’s car, also inquired about them. She too was given assurances by Fergal Caraher that there were no problems. After the soldiers completed their questioning of the Caraher brothers and Liam Murphy, the soldiers turned towards Slate Quarry Road.
The Carahers and Murphy continued to talk and decided that they would drive to Dundalk. Initially, they decided that they would use Liam Murphy’s car and that Fergal Caraher would leave his car at the Lite’n Easy car park just up the Tullynavel Road toward Dundalk. Fergal left first in his car. Liam Murphy with Miceal Caraher followed a minute later due to difficulty in starting Murphy’s car.
A short distance up Tullynavel Road and around a slight bend, Fergal Caraher encountered a motor vehicle checkpoint manned by a group of British soldiers at St. Patrick’s Chapel Gate. This patrol was entirely different from the group encountered near the intersection of Slate Quarry Road. Fergal Caraher was waved through the road check by a member of the patrol because at that moment the patrol was only checking traffic coming from the direction of Dundalk. Fergal Caraher then turned into the Lite’n Easy Pub car park, which was located just beyond the Chapel gate checkpoint. Mr. Caraher parked his vehicle with the front of the vehicle near the edge of the road.
In the meantime, as Liam Murphy was proceeding in his vehicle with Miceal Caraher as his passenger, he decided that he should leave his car with his wife at the Spar shop just beyond the Lite’n Easy Pub. Murphy informed Miceal Caraher that he would drop him off at Fergal’s car in the Lite’n Easy car park. He, Murphy, would then proceed to the Spar shop where he could leave his car with his wife and where Fergal, who would now be driving to Dundalk, could pick him up. Murphy explained to Miceal Caraher that his wife, Maeve Murphy, was using Murphy’s father’s car and the car needed to be returned. Liam Murphy and Miceal Caraher were also waved through the checkpoint near the Lite’n Easy car park and proceeded to the Spar shop. At the time Miceal was dropped off, there were at least six cars in a queue at the checkpoint.
Immediately after Fergal Caraher parked his car at the Lite’n Easy he was approached by two soldiers who were manning the checkpoint at the Chapel gate. At that time there were five vehicles queued at the motor vehicle checkpoint with the queue extending from the Chapel gate back toward the Lite’n Easy car park. When Miceal Caraher arrived he observed one of the soldiers…
The full analysis of the evidence, the assessment of the soldiers’ accounts, and Mr Burke’s specific recommendations on lethal force, investigations, and the coroner system continue in the printed report (pages 13–24). The text above is the opening framework and the statement of facts as recovered from the source. The printed volume remains the archival master.