Submissions Subsequently Considered
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Committee on the Administration of Justice
Deaths caused by RUC/British Army personnel in 1990 and 1991.
1. On Saturday 13 January 1990, John McNeill, Eddie Hale and Peter Thompson were shot dead during a robbery of a betting shop at the junction of the Falls and Whiterock Roads in West Belfast. The shooting was carried out by British army undercover operatives of the 14th Intelligence Company. John McNeill was sitting in the getaway car, unmasked and unarmed, when he was hit by six bullets, the fatal wound being caused by a bullet fired from a range of less than 24 inches. Eddie Hale and Peter Thompson were shot on the steps. The DPP decided in December 1990 that no prosecutions would be initiated. A BBC Panorama programme in July 1991 produced new evidence; the DPP informed McNeill’s widow that the case had been reopened. As of mid-October 1991 the RUC had still not completed the further investigation. There are currently 39 inquests pending.
2. On 18 April 1990, Martin Corrigan was shot during an INLA attack on an RUC man’s house in Armagh. The circumstances appear consistent with an ambush by the security forces.
3. On 30 September 1990, Martin Peake was driving a stolen car late at night in West Belfast. Karen Reilly and Markievicz Gorman were passengers. A British army patrol opened fire, killing Martin Peake and Karen Reilly. Eye-witnesses contest the official account that the car had crashed through a checkpoint. Six soldiers were later charged with offences ranging from murder to perverting the course of justice.
4. On 9 October 1990, Desmond Grew and Martin McCaughey were shot dead by British undercover soldiers. Official reports claimed they were armed. Later reports raised questions as to whether weapons were found some distance from the bodies.
5. On 12 November 1990, undercover soldiers shot dead Alexander Patterson, an INLA operative, near Strabane. Panorama alleged he was a police informer and that a soldier shot him after he had stopped the car and was waiting. The DPP re-opened the case.
6. On 30 December 1990, British marines opened fire on a car in disputed circumstances in Cullyhanna. Official accounts claimed the car had crashed through a checkpoint injuring two soldiers. Fergal Caraher was shot dead and his brother Míceál Caraher was seriously injured.
7. On 10 April 1991, Colum Marks, acknowledged by the IRA to have been on active service, was killed by the RUC in Downpatrick. Other reports claimed the rocket was found some yards from where he was shot.
8. On 5 June 1991, Michael Ryan, Tony Doris and Lawrence McNally were killed in an ambush-style operation in Coagh, Co. Tyrone. The car burst into flames. The families claimed the incident was evidence of a shoot-to-kill policy.
9. On 29 September 1991, Kevin McGovern, a 19-year-old student, was shot dead by the RUC in Cookstown. The RUC later retracted their initial account and acknowledged he was an uninvolved and innocent victim. An independent autopsy showed he had been shot in the back.
10. On 4 November 1991, Gerard McGinn (17), an occupant of a stolen car, was shot dead by members of the RUC in West Belfast. A survivor claimed the car was stationary when fired on and that no warning was given.
On Article 6 (the right to life), the CAJ states that the law on the use of force in section 3 of the Criminal Law Act (NI) 1967 is inadequate. The test should be whether force was absolutely necessary to preserve other human life, not whether it was reasonable in all the circumstances. Very few police officers or soldiers have been charged in connection with the 339 deaths at the hands of the security forces since 1969. Of these, 184 involved civilians with no connection to any paramilitary group. The one British soldier convicted of murder, Private Thain, was released after serving less than three years of a life sentence. Plastic bullets are used in situations where life and property are not seriously at risk; in 11 of the 14 deaths caused by plastic bullets, army and police claims that the victim was rioting have been contested. Coroners’ inquests in Northern Ireland return only “findings,” not verdicts of unlawful killing. Soldiers and police officers cannot be compelled to attend. Forensic and other evidence is frequently withheld from families until the inquest opens. The House of Lords in McKerr v Armagh Coroner [1990] upheld rules forbidding the calling of persons charged with an offence relating to the death.
Prepared by Michael Ritchie on behalf of the Committee on the Administration of Justice, November 1991. Extract from a submission to the United Nations Human Rights Committee, February 1991.
Amnesty International
Amnesty International’s submission reiterates concerns about inadequate investigations of disputed killings. Recent public reports, including the BBC’s Public Eye programme (14 June 1991) and Panorama (22 July 1991), have raised further issues related to the Stalker/Sampson inquiry and to more recent incidents. It was reported that Chief Constable Colin Sampson had recommended in 1987 that some RUC officers be prosecuted on charges including conspiracy to murder Michael Tighe; prosecutions were not brought on “national security” grounds. It has also been reported that Sampson recommended charges against MI5 officers for the deliberate destruction of a tape recording of the shooting of Michael Tighe. The government has not responded to these statements.
Panorama alleged that in some incidents soldiers may have lied about what had happened or tampered with the evidence, that soldiers faked an injury to support a claim that one had been hit by a car, and that soldiers fired shots at suspects’ heads after they had ceased to pose any threat. Amnesty has sought clarification as to whether the DPP has requested the RUC to reopen investigations, and why senior officers from another force have not been requested to investigate disputed killings as recommended after the Stalker/Sampson inquiry.
Families of those killed are not informed properly of the death, nor kept informed of the investigation. In many instances they have been refused copies of autopsy reports. The Caraher family was refused permission to arrange an independent forensic examination of the car in which Fergal Caraher was shot. Current investigative procedures in Northern Ireland contravene the United Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (endorsed by the General Assembly in 1989). Principle 9 requires a thorough, prompt and impartial investigation. Principle 10 requires the investigative authority to have the power to obtain all necessary information, including the authority to oblige officials allegedly involved to appear and testify. Principle 16 requires families and their legal representatives to have access to all information relevant to the investigation. Principle 17 requires a written report to be made available to the public. The government has repeatedly told Amnesty that reports of police investigations are never made public.
Amnesty International continues to call upon the government to establish an independent and impartial judicial inquiry to review the issue of disputed killings by security forces with regard to policy matters, legislation, investigative procedures and conformity with international standards.
Amnesty International, International Secretariat, 1 Easton Street, London W1X 8DJ.
Colm Campbell — 26 July 1991
Outline: (1) Legal regulation on the use of lethal force; (2) The inquest process in Northern Ireland; (3) Current trends in security policy.
Legal regulation. The Criminal Law Act 1967 invokes the “reasonableness” concept whereas the ECHR speaks of the use of force “which is no more than absolutely necessary.” The argument that the two tests are equivalent is unconvincing. Even if UK law were brought into line with the ECHR, there might still be problems in obtaining convictions because of the reluctance of Diplock courts to bring in murder verdicts. The situation might be ameliorated by a reformulation of the law of manslaughter whereby a person acting in self-defence who used an unreasonable degree of force could be convicted of that offence, and by the creation of one or more lesser offences so that there would be a continuum of possible offences.
Inquest process. In 1983 the CAJ made a submission to the Lord Chancellor setting out the need for changes in law and practice. The main conclusions were that coroners should insist on their right to proceed with an inquest at the soonest practicable occasion if criminal proceedings are not initiated very quickly, and that the Coroners Rules in Northern Ireland should be brought into line with those in Britain. The Lord Chancellor indicated that no changes were necessary. In Northern Ireland the range of verdicts was severely restricted; in 1980 the Rules were further amended to prevent an inquest from returning any verdict at all by prescribing that all verdicts should be in the form of factual findings. It is the practice of coroners in Northern Ireland not to open any inquest until they have been informed by the prosecuting authorities that no charge is to be made. There is an additional rule which prevents the coroner from calling as a witness anyone who is suspected of causing the death or who may be charged with an offence relating to it. The validity of this rule was upheld by the House of Lords in the McKerr case.
Recommendations: (1) Coroners should open the inquest and then adjourn for a specified period as in England. If there is no decision after say three months, the inquest should go ahead. (2) The provision prohibiting a coroner from compelling a suspected person to give evidence should be abolished. (3) The English system allowing a full verdict, including “unlawful killing” and an “open” verdict, should be introduced.
Current trends in security policy. The Anglo-Irish Agreement of November 1985 had an important initial impact. Since then the picture has been one of steady decline. In the latter part of 1988 remission was reduced from 50% to one-third, a ban was introduced on the transmission of interviews with representatives of a number of groups including Sinn Féin, and the right to silence was severely abrogated. All of these measures were introduced by Ministerial Order or by Order in Council. Army searches of occupied premises rose by 186% in 1987 and by a further 91% in 1988. The 1991 Emergency Provisions Act gives searchers a power to examine virtually any documents and creates a number of dangerously vague new offences. If emergency powers which are open to abuse are created, the pressure of the emergency is such that these powers will be abused.
Colm Campbell, BCL, PhD, Solicitor, Law Lecturer.
Irish Council for Civil Liberties — 8 August 1991
In this submission we focus on two aspects of the legal system of Northern Ireland: the problem of legally questionable killings of civilians by members of the security forces and the inadequacy of inquests in relation to enquiring into such killings. Public order in a democratic society must rest on the people’s sense of the legitimacy of the rule-making institutions and of the rules these institutions make. In a politically divided society like Northern Ireland it is all the more important that the integrity of the law be self-consciously maintained.
The separation of powers is part of the democratic sense of the rule of law. As regards the lethal use of force by the security forces, the legislature at Westminster has been remarkably reluctant to debate fully policy decisions regarding the use of special under-cover army forces. The adoption of such policies appears to have been made in secretive executive processes under military guidance. The courts have been unwilling to apply the law with integrity to cases which arise from killings by members of the security forces. The present standards regarding the “reasonable use of force” promise more control than they can ever deliver because they are flexible, expansible and chameleon-like terms.
The law concerning the use of lethal force is inadequate. 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. The legal test should be whether the degree of force used was absolutely and urgently necessary to preserve other human life and no less extreme alternative method of apprehension or incapacitation was available. The new test should be at least as strict as the standards contained in the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.
The United Nations Special Rapporteur on summary or arbitrary executions recommended in 1988 that the minimum criteria for acceptable investigations include promptness, impartiality, thoroughness, and publication of the findings. It flies in the face of justice to allow the RUC to investigate claims that members of the force have used firearms unlawfully. While the RUC indicated after the Stalker/Sampson inquiry that such claims would in future be investigated by an outside police force, this promise has not been kept. When Seamus Duffy, 15 years of age, was killed in 1989, the RUC carried out the investigation. In December 1990 Fergal Caraher was killed by members of the army; the RUC investigated the killing and made statements on behalf of the army at the same time. The Stalker/Sampson inquiry indicated that RUC officers had attempted or conspired to pervert the course of justice in relation to the 1982 killings. Senior police officers had manufactured a false account of the incidents and ordered police officers, under the provisions of the Official Secrets Act, to lie.
Inquest procedures have been muzzled. The inquest cannot name individuals responsible for unlawful killings. It is no longer possible to bring in an “open verdict.” Members of the security forces cannot be compelled to give oral evidence. The police read out written statements which are not made available to the family before the inquest. Lawyers for the family — for whom the family must pay since there is no legal aid for inquests — are denied the opportunity to cross-examine. The practice is to deny the family’s lawyers access to specific forensic evidence. Coroners cannot require members of the security forces involved in a disputed killing to attend. Inquests may be delayed for unconscionable periods. A number of deaths which occurred in 1982 have still to be investigated at an inquest.
Another concern relates to collusion between members of the security forces and members of loyalist paramilitary groups. There has been no inquiry into the scope, in Northern Ireland as a whole, of this problem. The Stevens inquiry, completed in March 1990, had a narrow focus on the leakage of confidential intelligence material. As a consequence, 59 people were charged or reported to the DPP. Two UDR soldiers and one British soldier were charged with responsibility for leaking 59 of the 187 documents believed to have gone missing.
We recognise that conditions in Northern Ireland are politically fraught, and we appreciate that members of the security forces live under the threat of political terrorism. But we hold the view that in such conditions it is all the more important that security forces be impartial and be seen to be impartial. Using the notion of the “rule of law” in a context where those who engage in lethal killings on behalf of the state are shielded against the due process of law is merely a way of obscuring hard and brutal facts about law enforcement in Northern Ireland.
Britain and Ireland Human Rights Project — July 1991
The Britain & Ireland Human Rights Project is grateful for the opportunity to make a submission. The Project sent an independent observer to the Inquiry hearing, who has reported that she was satisfied that it was conducted properly and carefully and that the evidence given by witnesses gives cause for grave concern. The Project is concerned not only about the shooting of these two young men, but about the continuing string of incidents involving shootings, both fatal and non-fatal, of unarmed people by the army and police in Northern Ireland. The right to life is possibly the most fundamental of all human rights; the use of lethal force by the security forces should always be a last resort and must always be subject to the closest scrutiny. We are not satisfied that force was justified in the cases of Míceál and Fergal Caraher. Nor are we satisfied that the procedures for scrutinising such incidents are adequate to their serious nature.
It is a symptom of the inadequacy of the existing mechanisms that the Caraher family felt the need to organise a Public Inquiry at all. Although the incident occurred on 30 December 1990, at the time of writing (July 1991) no inquest has been held on the death of Fergal Caraher, nor any decision been made on whether anyone should be prosecuted. Even had such an inquest been convened, it is likely that, because of the limited terms of reference of Coroners’ Inquests in Northern Ireland, the family would not have gained any comfort or satisfaction from its findings. The Caraher family, the Irish National Congress, and the Cullyhanna Justice Group are to be congratulated on having organised their own Public Inquiry.
The Project examines the terms of reference in detail. It notes that witness statements in the possession of the authorities are made available to the security forces’ lawyers in advance, whereas they are made available to the families’ lawyers only at the inquest. Coupled with the lack of any right to cross-examine witnesses, families’ lawyers are left with one hand tied behind their backs. There is no automatic right to see the autopsy report. Public Interest Immunity Certificates can effectively block the family and the general public from ever finding out what exactly happened. The withholding of the names and ranks of the members of the security forces who caused the death or wounding amounts to special treatment and has the side-effect of making it seem that the deceased, and by implication his or her family, must in some way have been dangerous. Equality before the law and the equal protection of the law are fundamental human rights.
The powers to stop, question, arrest and interrogate civilians are draconian and are open to abuse. The civilian population, in particular the Catholic community, see themselves as open to harassment by the security forces. Civil liberties and human rights are held in very low respect in Northern Ireland. This is reflected in internment without trial, the abolition of jury trials for scheduled offences, and the abrogation of the right of silence. The UK government is currently in a state of derogation from the European Convention on Human Rights over prolonged detention under the Prevention of Terrorism Act. As an absolute minimum, seven-day detention should be abolished, the right of silence should be restored, jury trials should be restored, interviews should be tape-recorded and videoed, and lay visiting schemes should be introduced. The mechanisms for making complaints against the army and police should be completely revised and put in the hands of totally independent authorities.
In every incident where the security forces shoot dead an unarmed person who is not offering them any violence they deprive that person of his or her right to life and contravene Article 3 of the Universal Declaration of Human Rights and Article 2 of the European Convention on Human Rights. The European Convention authorises the use of force against a person only to the extent that it is “absolutely necessary” and only in specified circumstances. The definition of “reasonable force in the circumstances” as enshrined in the UK legislation and interpreted by the courts goes far wider than this narrow limitation on the right to life, which is non-derogable. Article 6 of the International Covenant on Civil and Political Rights states that “No-one shall be arbitrarily deprived of his life.” In our view, the death of Fergal Caraher potentially comes within the ambit of the definitions of summary or arbitrary execution given by the UN Special Rapporteur. We recommend that the report of the Inquiry is sent to the Special Rapporteur with a request that he investigate the incident.
The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials contains detailed provisions expanding on Article 3 of its Code of Conduct. Principle 9 says that law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life. These internationally accepted standards are far tighter than those pertaining in domestic legislation or applied by the UK courts.
Controversy has raged over many years as to whether or not the UK government is pursuing a “shoot-to-kill” policy in Northern Ireland. In giving evidence to the United Nations Human Rights Committee in April 1991, the UK denied yet again the existence of any such policy. In his report on the question in 1985, Kader Asmal concluded: “The evidence we have heard leads us to conclude that an administrative practice has been allowed to develop in Northern Ireland, by which killings in violation of the European Convention and the International Covenant are at least tolerated, if not actively encouraged.” It is a tragedy that, six years on, nothing appears to have changed. In our view the time has come for the weight of international opinion and experience to be brought to bear, not only on lethal force, but on the whole pattern of human rights abuse in Northern Ireland.
Britain and Ireland Human Rights Project, London, July 1991.
Irish National Caucus, Inc. — 18 July 1991
Here is our recommendation to the Public Inquiry at Cullyhanna which investigated the death of Fergal Caraher and serious wounding of Míceál Caraher by British Royal Marines at Cullyhanna on Sunday 30 December 1990 at 3:30 pm. The protection of human rights as a matter of international concern is a fairly recent concept. The Universal Declaration of Human Rights (UDHR) adopted in 1948 remains the blueprint of the system of international laws safeguarding human rights. In the case of Fergal and Míceál Caraher, the British Government — as a member state of the United Nations and a signatory to the Charter on Human Rights — has derogated from its signed covenant to uphold all articles of the Universal Declaration by apparently violating Articles 3 and 6: “Everyone has the right to life, liberty and security of person” and “Everyone has the right to recognition everywhere as a person before the law.”
As a territory under British jurisdiction, Northern Ireland has seen many instances of derogations from the UDHR by the British Government. Few derogations are more apparent than the cases before the inquiry. Independent monitoring efforts like the Public Inquiry of 22–23 June 1991 at Cullyhanna are essential to the enforcement of human rights. Without such monitoring, there would be little to pressure member states to comply with international human rights standards. For this reason I would recommend to the panel of the inquiry that all documentation and conclusions be forwarded to Mr. Amos Wako, Center for Human Rights, UN Office at Geneva, 1211 Geneva 10, Switzerland. The documentation should be submitted under the Individual Complaints Procedure provided in the Optional Protocol to the Convention on Summary and Arbitrary Execution.
The primary responsibility for the protection and the realization of human rights continues to rest with the State. The State must respect, protect and fulfil the human rights of all its citizens. No State — the British or any other — may derogate from its covenant obligations. I realize the long, slow process involved. But I would reiterate Peter John Caraher’s own words: “This inquiry will not bring Fergal back to us, nor will it ease the heart break and sorrow which we still feel. But we hope that it will help to prevent similar murders of Irish people by British soldiers in the future and that other families will be spared the tragedy which our family and community suffered.” Perhaps the findings of the UN Convention on Summary and Arbitrary Execution will, indeed, prevent similar deaths in Northern Ireland by finding the Government of the United Kingdom in violation of the Covenant on Civil and Political Rights.
Sincerely, Rita Mullan, Executive Director.
United Campaign Against Plastic Bullets — July 1991
Given the preamble to the Public Inquiry into the murder of Fergal Caraher and wounding of Míceál Caraher held in Cullyhanna on 22 and 23 June 1991 and given the Terms of Reference of the inquiry and specifically A (7)–(13), it is important that the use of lethal force by the security forces in the North of Ireland be examined in all its forms. Lethal force has been used in the form of rubber bullets and later plastic bullets in the North of Ireland since 1970. To date 17 people have been murdered by plastic and rubber bullets, 8 of them children, aged 15 years and under. Thousands have been injured, many seriously and permanently disfigured or maimed.
In the use of these weapons the State has acted outside the Rule of Law. Those who have acted outside the law have been unofficially granted immunity to prosecution. Relatives and victims of these lethal weapons have been denied access to the facts and evidence surrounding the deployment of plastic and rubber bullets in circumstances which have resulted in death or injury. Families who have pursued redress through national and international courts have been systematically harassed and intimidated. Claims for damages through the civil courts have been indefensibly delayed. Those who have received compensation for death/injury have had such damages as they have received clawed back through the withholding of state benefits. Most civil claims have been settled outside court with a refusal to admit liability.
In the absence of a will by the State to prosecute, relatives have sought justice through private prosecutions. In such cases they have been denied access to the identity of the individual responsible for the discharge of the lethal bullet. In some cases, that of John Downes being one example, the State has refused to hold an inquest. In other cases, e.g. Julie Livingstone, the family were initially informed by the police that they were not entitled to a solicitor; the coroner then wrongly refused to summon a jury. Inquests have been inexcusably delayed. Death certificates have been withheld for inordinately long periods. Rules of Engagement for the use of Plastic Bullets have been issued. Evidence indicates that individual members of the security forces are sometimes unaware of their very existence, were often ignorant as to what exactly the rules state and rarely adhered to them. The rules cannot be enforced through the existing legal system. So far as can be ascertained no member of the security forces has been disciplined for breaching the Rules of Engagement.
In many cases of wounding/murder by plastic bullets the State has immediately issued statements which are found to be totally fabricated. This happened in the case of Nora McCabe. Members of the security forces including Chief Superintendent James Crutchley were proven by film evidence to have committed perjury in recounting the circumstances of Ms McCabe’s murder. No action, disciplinary or legal, was taken in respect of the perjury. The factual circumstances surrounding the murder of Fergal and the wounding of Míceál Caraher in Cullyhanna on 30 December 1990 are unique. The type of bullet, lead, is obviously different from plastic and rubber bullets. However the operation of a “Shoot to Kill” policy, the security forces not being subject to the Rule of Law, the denial of justice to the families, the harassment of relatives, neighbours and witnesses, the excessive use of force by the security forces, the immediate misleading and inaccurate publicity campaign launched by the Northern Ireland Office and the Ministry of Defence and the denial to the families of access to information and evidence are all disturbingly familiar to those who have been the victims of plastic bullets. The Ministry of Defence’s proposal to eventually replace plastic bullet weapons with a comparable weapon displays a failure on the part of the State to adequately protect the right to life of persons within its jurisdiction.
This is a paper which the United Campaign Against Plastic Bullets asked the Inquiry Panel to consider as part of their deliberations.
U.S. Congressmen Demand End to British Human Rights Abuses — September 1991
At a packed Hearing on 17 September 1991, Members of Congress heard compelling evidence that British troops frequently use lethal force without cause against members of the community in Northern Ireland. The hearing — cosponsored by the Ad Hoc Congressional Human Rights Caucus and the Congressional Committee for Irish Affairs — looked into allegations of a shoot-to-kill policy by the British Government. The Hearing on unlawful killings by Northern Ireland Security Forces demonstrated the significant strides that have been made in raising the level of Congressional understanding about Irish issues.
Thomas Manton (D-NY), Co-Chair of the Hearing and Co-chairman of the Congressional Committee for Irish Affairs: “The Carahers present the most compelling case that can be made for the Hearing we are holding today. We in the Congress must exert pressure on the United Kingdom to bring those responsible for the shoot-to-kill murders to justice.”
Benjamin A. Gilman (R-NY), Co-chairman of the Congressional Committee for Irish Affairs: “It is clear that these human rights issues, and the failure in some cases to adequately address the issues, have contributed to tensions and distrust between the Nationalist community and the Security Forces in Northern Ireland.”
Eliot L. Engel (D-NY): “It is particularly outrageous when a country which prides itself as a pillar of Western society and democratic tradition, such as Great Britain, seems to look the other way when its security forces abuse the human rights of the Catholic minority in the Six Counties. We, in this country and in Congress, cannot continue to look the other way.”
Joseph P. Kennedy II (D-MA): “Whether a shoot-to-kill policy exists by official decree or not is academic. For by its silence, secrecy and willingness to tolerate corrupt practices the government condones killings that can only be motivated by an intent to shoot-to-kill.”
Hamilton Fish Jr. (R-NY), Co-chairman of the Congressional Committee for Irish Affairs, expressed his willingness to “discuss actions the U.S. can take to bring about justice in the case of Fergal Caraher.” Also in attendance were Representatives William Coyne (D-PA), Richard Neal (D-MA) and John Porter (R-IL). In a related event, Senators Christopher J. Dodd (D-CT) and Alan Cranston (D-CA) have distributed an open letter in Congress that requests President Bush’s personal intervention with the government of the United Kingdom to stop its ongoing human rights violations in Northern Ireland.