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

Public Inquiry convened at the invitation of the Caraher family, Cullyhanna, Newry, County Armagh

22nd-23rd June 1991

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 decide 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 followind at the meting 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.

TERMS OF REFERENCE

A. TO INQUIRE insofar as is practicable (given the limitation of the scope of the Inquiry by reason of the non-availability of evidence which is in the exclusive knowledge and control of the State) into the following matter of urgent public importance:

1 TO EXAMINE and to ascertain insofar as is possible the facts and the circumstances surrounding the death of Fergal Caraher and the wounding of Micedl Caraher by members of the British Security Forces at Cullyhanna, South Armagh on 30th day of December 1990 and in this connection to have regard to all circumstances or events pre-dating the said death and wounding with appear to be relevant or connected therewith.

2 TO EXAMINE and to ascertain insofar as it possible the degree of risk if any including in particular the risk to life (if any) to which the member or members of the British Security forces involved were subjected to immediately prior to and at the time of the said death and wounding by the action of Miceal and Fergal Caraher.

3 TO EXAMINE and to ascertain insofar as it possible any apparent lawful objective of the British Security Forces or legally justifiable reasons for their opening of fire at Cullyhanna, Sough Armagh on the 30th day of December 1990.

4 TO EXAMINE whether any challenge or order to halt was made to which either Fergal or Miceal Caraher had a reasonable opportunity of responding to prior to the use of lethal force.

5 TO EXAMINE:

a. The method of operation of formal vehicle or civilian checkpoints and

b. the method of checking, questioning and/or interrogating citizens in conjunction with or in connection with such formal checkpoints by the British Security Forces as carried out at Cullyhanna, South Armagh on the 30th December 1990.

6 TO EXAMINE whether or not the use and method of use of firearms on the 30th December 1990 at Cullyhanna, Sough Armagh, by a member or members of the British Security Forces as could on the facts available to this inquiry be legally justifi able on the grounds that it is in the circumstances necessary to protect the life of any person or to effect a lawful arrest.

7 TO EXAMINE the current official procedures for the investigation of killings and/or woundings carried out by the British Security Forces including the Police and to consider the adequacy of the same having regard to the necessity in a democratic society under the Rule of Law that fear, suspicion and rumour be allayed and that a prompt and comprehensive inquiry by carried out which will explain to the satisfaction of the public the circumstances of any such killing or wounding.

8 TO EXAMINE the extent and limits of the powers of arrest granted by law to British Security Forces and to consider whether:

a. such powers are excessive in their express terms.

b. the ambit of these powers insofar as they have been interpreted by the Courts is excessive.

9 TO EXAMINE all legal provisions which authorise and permit British Security Force to use firearms in the course of their duties in the circumstances which presently exist in Northern Ireland and to consider:

a. such powers are excessive in their express terms.

b. the ambit of these powers insofar as they have been interpreted by the Courts is excessive.

10 TO EXAMINE the practice which denies the family and legal adviser of a person whose death or serious injury was caused by members of the British Security Forces prompt access to evidence which is in the exclusive knowledge and control of the state and which evidence is vital for the prosecution of any legitimate claim against the Security Forces.

11 TO EXAMINE the practice which denies to a family of a person whose death or wounding was caused by members of the British Security Forces, the names and ranks of the members of the Security Forces who caused the said death or woundings.

12 TO EXAMINE the relevant domestic laws of the United Kingdom and Northern Ireland which relate specifically to the operation of the Security Forces in Northern Ireland and in particular their powers to stop, question, arrest and interrogate civil ians and to consider whether the express terms of those powers or their current interpretation by the courts are adequate to protect the right of life of all persons within its jurisdiction so as to ensure that no person shall be arbitrarily deprived of his or her life.

13 TO EXAMINE the relevant domestic laws of the United Kingdom and Northern Ireland which relate specifically to the operation of the Security Forces in Northern Ireland and consider whether same infringe the provision of the European Convention of Human Rights, the Geneva Convention for the Protection of Civilians and all other relevant international laws and conventions designed to protect the lives of citizens in accordance with the Rule of Law.

B. TO MAKE all such recommendations (if any) relating to the death of Fergal Caraher or the wounding of Miceal Caraher as the Board may deem appropriate having taken into account the limitations on the scope of this Inquiry.

C. TO MAKE such further or other recommendations (if any) as the Board may deem conducive to prevent the recurrence of similar deaths or woundings in Northern Ireland in the future.

Dated: 21st June 1991 SIGNED: Colm Mac Geehin 15 Prospect Road , Glasnevin, Dublin 9 SOLICITOR FOR THE BOARD OF INQUIRY.