The Gazette 1992

GAZETTE

JULY/AUGUST 1992

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.

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.

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 Legal Advice and Assistance on Wills, Inheritances, Family Searches, t h r oughout the U.S.A. Specialising in Immigration, Personal Injury, Property Transactions, Divorces, Wills, etc.

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