Public Inquiry into the Killing of Fergal Caraher — Jurists’ Findings (Full Text)

Preface

The findings and recommendations of the jurists, the Hon. Kevin Burke, a District Attorney from Massachusetts, (U.S.A.), Veronika Arendt-Rojahn (Germany), Anne-Carinne Jacoby (France) and Hon. Judge Andrew L. Somers, Jnr, from Wisconsin, (U.S.A.) are printed as a Preliminary Report of the findings of the Public Inquiry held in Cullyhanna, Co. Armagh on 22nd/23rd June 1991 into the killing of Fergal Caraher and the serious wounding of his brother Miceal on 30th December 1990 by British soldiers.

The findings must be considered in the context that during the inquiry and subsequently the Northern Ireland Authorities refused the Caraher family, their legal representative and the inquiry’s solicitor access to the autopsy report, ballistics reports, statements of the soldiers responsible for the shooting, details of “reported” injuries to soldiers and forensic reports.

At the time of publishing this report in January 1992 more than one year after the killing, an inquest has not yet been held, the family have never been officially notified of the killing of Fergal and the D.P.P. has still not announced his decision as to whether there will be a prosecution or not.

Due to an unprecedented turn of events by representatives of the D.P.P.’s office the inquiry chairman has decided to reserve his findings and recommendations to a later date, in order that any new evidence or matters arising can be duly considered.

Introduction by Inquiry Solicitor

In May 1991 I attended a public meeting in Dublin at the invitation of the Cullyhanna Justice Group, a group formed in the wake of the incident on the 30th December 1990 which resulted in the death of Fergal Caraher and wounding of Miceal Caraher in an incident near an Army checkpoint at Cullyhanna, County Armagh. It was explained at the meeting that: (a) the Caraher family had not been given any explanation or account by the authorities as to how the incident happened; (b) they had not been informed as to what progress there had been in the Police investigation; (c) they had been denied access to forensic and pathology reports; and (d) the entire matter appeared to be shrouded in secrecy by the authorities.

It was under those circumstances that the Caraher family decided to hold an independent Public Inquiry to ascertain the facts relating to the incident. The proposal was adopted by several civil rights activists and groups and backed by the local community. This led to the formation of The Cullyhanna Justice Group. At the meeting we were told that an International Panel of Lawyers had been invited to conduct the Inquiry and that a hearing would take place in Cullyhanna Community Hall, County Armagh on the 22nd and 23rd June 1991.

During the discussion that followed at the meeting Fergal Kavanagh B.L. and I, being as it transpired the only legal practitioners present, were invited to make some suggestions as to how the Inquiry should be conducted. We suggested that they emulate the procedural standards which would be observed in an official Public Inquiry in relation to standards of proofs, evidence and so on. We emphasised the need for clarity and specificity with regard to the terms of reference.

Subsequently Mr. Kavanagh and I were invited to act as Solicitor and Counsel to the Inquiry by the Caraher family. After due consideration we agreed to accept the invitation of the family subject to the following: (a) we would act as representatives of the Panel of Jurists only and while we were prepared to communicate with all parties interested we would not be bound by any suggestion or submission emanating from any individual or group; (b) the Inquiry would set its own Terms of Reference and conduct its proceedings independently of the Cullyhanna Justice Group, the Caraher family and all other parties; (c) we would assess and evaluate the information available which consisted primarily of statements given by eye-witnesses to the police after the incident and whatever forensic and medical evidence had been made available. Having reviewed the evidence we would then make our own inquiries as we deemed appropriate for the presentation of the evidence to the Inquiry.

Having explained the foregoing and having underlined the independent character of the Inquiry we were satisfied that these terms and conditions were fully understood and accepted by the Caraher family and by the Cullyhanna Justice Group without reservation. We therefore drafted the Preamble and Terms of Reference and submitted them to the Panel of Jurists who duly approved and adopted them.

We then examined copies of the statements made by eye-witnesses and others to the police and the completed witness questionnaires sent by the police to certain witnesses. We decided the fuller and more complete statements should be sought from a large number of key witnesses. We arranged to have the additional statements taken prior to the Inquiry. All statements were then collated to form a Book of Evidence and presented to the Inquiry. We gathered what information we could in relation to forensic and pathology evidence.

We drew up an Agenda for the Tribunal with a view to observing as closely as possible judicial practice and procedure. We determined the manner in which the evidence should be presented, the attendance of relevant witnesses and the order in which witnesses were to be called. We also reviewed the submissions made by various parties to the Tribunal and selected those which were to be presented orally to the Inquiry.

The oral hearing took place on the 22nd and 23rd June 1991 and by the end of the hearing all of the witnesses selected by us and requested to attend had done so and had given their evidence. We were satisfied that the conduct of the Inquiry had not been impeded or obstructed in any way nor had it been influenced by any party.

Later acting on the direction of Panel of Jurists I requested the authorities, namely the RUC, the Northern Ireland Office, the British Army and the Ministry of Defence to make their contributions to the Inquiry. I also invited various organisations, lawyers and other interested parties to make submissions to the Inquiry. The various responses were submitted to the panel of Jurists for their consideration.

In conclusion I would say that for any lawyer to act outside the judicial system is not unusual. I have no doubt, however, that the circumstances surrounding the Cullyhanna incident justified our participation and I have confidence that the findings of the Inquiry will contribute significantly to establishing the facts of the inquiry and make constructive recommendations for the revision of laws and regulation governing the use of lethal force.

Colm MacGeehin, Dublin, 11th November 1991

Preamble

Believing that all States do or should subscribe to the Rule of Law in regulating the conduct of all persons including law enforcement agencies. Recognising that a State has the right to enforce the law and to maintain order in accordance with the Rule of Law. Convinced that the law must be just and must apply to all equally and to be seen to be just and to apply equally. Reaffirming that it is the duty of a State to protect the life of persons within its jurisdiction without exception. Recognising that killing is irrevocable and can be inflicted on the innocent. Reaffirming that which is contained in all human rights declarations, conventions and covenants both national and international, namely that everyone has the right to life, liberty and security of the person. Recognising that the Rule of Law prescribes that there should be a prompt elucidation of the facts surrounding and an inquiry into the death of any human being so as to allay legitimate public concerns and fears. Recognising that this Inquiry is not in any way a Court of Law and expressing the wish that it be seen and understood not to be a Court of Law. Believing therefore that it is desirable in the public interest in the circumstances of this particular case to hold an inquiry now as to the presently ascertainable circumstances of the death of Fergal Caraher and the wounding of Mica Caraher. In pursuance of an invitation by the Caraher family this Inquiry accordingly adopts the following terms of reference.

Terms of Reference (summary)

The full Terms of Reference, adopted 21 June 1991 and signed by Colm MacGeehin as Solicitor for the Board of Inquiry, require the panel to inquire (insofar as practicable, given the non-availability of evidence in the exclusive knowledge and control of the State) into thirteen specific matters, including the facts of the death and wounding, any risk to the soldiers, whether a challenge was given, the operation of checkpoints, the lawfulness of the use of firearms, the adequacy of investigation procedures, the powers of arrest and of the use of firearms, the denial of prompt access to evidence and to the names of the soldiers involved, and the compatibility of domestic law with the European Convention on Human Rights and other international standards. The panel is also authorised to make recommendations relating to the Caraher case and to the prevention of similar deaths or woundings in the future.

Recommendations of the Jurists

The full text of each jurist’s recommendations is available on the linked pages below. The pages preserve the individual attributions as they appear in the printed report.

• Hon. Kevin Burke — District Attorney, Massachusetts, USA
• Veronika Arendt-Rojahn — Germany
• Anne-Carinne Jacoby — France
• Hon. Judge Andrew L. Somers, Jnr. — Wisconsin, USA

Appendices

• Appendix A — Correspondence with the Northern Ireland Office (includes the three full-page letter images)
• Appendix B — Preliminary steps when a death results from lethal force (CAJ)

Return to the jurists’ summary page | Community report