Carberry family court challenge to British government: “Your soldiers killed our father in cold blood; now investigate this properly.”
- Factual background to the case
Stanislaus Carberry – known as Stan – was killed on 13th November 1972 on the Falls Road, Belfast. He was shot dead by a British foot patrol. He was in a car that he had hi-jacked 20 minutes earlier, along with a young colleague. The foot patrol had been told to look out for the stolen car and apprehend the occupants. However, in the event, they opened fire, killing Stan. The autopsy revealed he had three wounds which entered his back. The soldiers claimed they were returning fire; yet no weapons were ever found. From the start, civilian eye-witnesses contradicted the soldiers’ account saying Stan Carberry was getting out of the driver’s side of the car with his arms in the air when he was shot. The Irish News at the time reported that, according to eye-witnesses, Mr Carberry was shot “in cold blood”.
The investigation was carried out by the Royal Military Police. The only civilian witness was the man (known as X) whose car was hi-jacked at gunpoint. He said that Stan got into the driver’s side while his colleague got into the passenger seat. The inquest was held in October 1974 and returned an open verdict. The soldiers did not attend though their statements were read into the record. Their account has Stan in the passenger seat firing at them out of the car’s open door. The general contradictions in the evidence were not explored. No conflicting eye-witness statements were gathered by the RUJC; it is in any event unlikely that civilians in the area would have felt there was any point in speaking to the RUC, even if they had wanted to.
There the matter rested until the Historical Enquiries Team (HET) began looking at the case in 2009. Contacting Stan Carberry’s family, his children Stan Jnr. and Betty, had some meetings with HET officers and were unimpressed with their approach which appeared to accept the army version of the killing too willingly. An appeal for witnesses in the local press yielded two new statements. The HET had begun to interview the soldiers when serious concerns began to be raised by an official inspection into the HET which discovered that deaths caused by the British army were being treated with kid gloves.
- An incomplete investigation
The Carberry family had already come to this conclusion and had initiated judicial review proceedings to halt the HET investigation; they did not believe their father’s death would be examined with an open mind. With the HET review/investigation into Stan’s killing incomplete, the full inspection report lead to suspension of all reviews into army killings and, ultimately, to the abrogation of the HET itself in 2013. The family’s court case was no longer necessary.
Yet, the Carberry family were left with a situation where new evidence from two eye witnesses called into question the official account of their father’s death. They were also acutely conscious of their widowed mother’s advancing age – 83 at the time of writing – and that the re-opening of Stan’s case now left unfinished business. Time after time, political negotiations appeared to suggest the establishment of a successor body to the HET which would complete outstanding cases: first the Haass/O’Sullivan process in 2014, then the Stormont House Agreement in 2015 – which proposed the establishment of an Historical Investigations Unit – and most recently the Fresh Start Agreement which has left the matter in suspended animation pending agreement between the Northern Ireland Office and nationalist Ireland.
- Developing the legal challenge
In this circumstance, a re-focussed judicial review was developed seeking to cut through the nebulous promises of completed investigation and seek to force the issue; the review would seek to challenge the British Government, through the NI Secretary of State, to face up to its responsibility – institutionally and financially – and get the job done. The argument is that there is sufficient case law to indicate that in circumstances where agents of the UK state have caused death relatives are entitled – by way of Article 2 (the right to life) of the European Convention of Human Rights (ECHR) – to an independent examination of the facts to assess whether the taking of life was absolutely reasonable in the circumstances.
The substance of the judicial review cannot be considered until the judge hears the main elements of the argument and decides whether the applicants have “an arguable case” with “a reasonable prospect of success”. If their application surmounts these two hurdles, the case can then proceed to a full judicial review hearing.
- The leave application
The hearing took place over the 3th and 4th of May 2016 in front of Mr Justice Paul Maguire. Frank O’Donoghue appeared on behalf of Mr Carberry’s son – who was named Stanislaus after his father – while Tony McGleenan responded on behalf of the Secretary of State.
Essentially, the case on behalf of the Carberry family consists of 3 propositions:
- there in an article 2 requirement for investigation in relation to the state killing of Mr Carberry;
- the responsible authority is the British government; and
- delegating the responsibility to devolved authorities is not right.
The family therefore wish the court to direct that the Secretary of State establish the independent investigation required under international law and – through the incorporation of the ECHR via the Human Rights Act (HRA) which came into force in 2000. The British government cannot offload responsibility to a dysfunctional devolved government that will never agree on how this should be done.
All three propositions were debated in some detail over the course of a day and a half with the judge exploring the various the arguments in favour and against. Most discussion related to the question of whether article 2 – the right to life – was, in fact, engaged in this case.
- Is the Secretary of State (SoS) the right respondent?
For the NIO side, the SoS is not the correct respondent and this, according to Mr McGleenan, is “a knockout blow to the action”. Going through the history of correspondence in this case, the applicant has been trying different options: the chief constable, the devolved Department of Justice, the Ministry of Defence as well as the SoS.
In any event the Human Rights Act is about actions by public authorities and complaints about the lawfulness of those actions. It’s not about general complaints such as arise from this application. No one has acted unlawfully. If your complaint is that the state has failed to honour its article 2 obligations, this cannot be addressed by way of the Human Rights Act and judicial review proceedings.
Furthermore, the Northern Ireland Act 1998 and associated memorandum show in any event that human rights are devolved and no longer the responsibility of the NIO. If you have a complaint about this, contact the local Minister for Justice; but it has to be a decision that you want to challenge rather than a failure in the abstract.
In respect to this, the judge wanted some clarity regarding what the impugned decision of the SoS actually is. He suggested that the applicants need to convince him that SoS has an obligation herself to deliver an article 2 investigation in circumstances where she hasn’t yet been asked to do so. Alternatively, she could be asked to set up an inquiry under the Inquiries Act but this hasn’t been done.
He then wanted to know why the applicants felt that the SoS cannot delegate responsibility for article 2 to local authorities or processes: an inquest; disciplinary or civil proceedings; the DPP or other local public authorities; the PSNI. Moreover, the judge pointed out that if the file in Stan’s case has not been closed someone or somebody must have carriage of it. Is this not the right target for a case such as this?
If, on the other hand, the applicants were saying the SoS has a residual role in the absence of action to implement the article 2 obligation, have they tried the available mechanisms first? In response to this, counsel for the Carberry family said that, indeed, civil proceedings have been launched and an application has been submitted to the Attorney General for a new inquest. Counsel passed up to the judge the reply received from the Attorney General; in the letter, the AG said that he would follow the current Judicial review with interest and only make a decision once he could take the jr decision into account! The inter-relatedness – to say the least – of some of the processes in play was perfectly revealed.
Having explored these issues, the Judge seemed to understand something of the quandary facing families. He suggested to counsel for the SoS that in circumstances where the family get “the run-around” from mechanism to mechanism with no one taking responsibility, surely there has to be a back stop which can’t dodge the article 2 obligation. Mr Justice Maguire and counsel for the SoS agreed that, should the case go to full hearing, the question for the court will be whether the HRA allows such a challenge.
Responding to these points, counsel for the Carberry family reminded the judge of recent news regarding the failure of the Executive to advance the Lord Chief Justice’s plan for legacy inquests, denying it the resources required and therefore delaying sine die the progress of these important cases. It is a neat summing up of the deplorable position regarding the courts and legacy cases: “we are at an absolute impasse on legacy cases” and they are “shorn of financial resources”.
Mr O’Donoghue contradicted the substance of SoS submissions regarding the division of responsibilities consequent of devolution. The relevant provisions in Schedule 2 of the Northern Ireland Act listing devolved and reserved/excepted matters do indeed confer powers on the assembly; but, crucially, they do not divest power from Westminster and the SoS. The proposition that because the assembly has been enabled the SoS has been disabled is not so in law. Thus, the SoS can direct by order that the assembly must do something in respect of the UK’s international obligations. This is particularly so in circumstances where you have a dysfunctional assembly that won’t do what it’s supposed to do. There is nothing in the act that prevents the SoS doing something in such a case.
The SoS cannot say to this court: “I have no power to do anything”.
- The importance of Article 2 – the right to life
Article 2 of the ECHR relating to the right to life is the key area of law in cases where the state is responsible for causing death. Cases from the north of Ireland have been important in setting out the European case law for Article 2, defining and elaborating a range of issues which now have to be borne in mind by any court addressing state killings. The law is also continually evolving. And of course, the HRA, which came into force in 2000, incorporated the ECHR into domestic law allowing for discussion of ECHR cases in UK courts with more venues for elaboration of relevant issues.
Mr Justice Maguire has only recently taken over judicial review cases, at a time when a considerable backlog of such cases has built up – at least 40. He made the point that there is a job of work to be done in respect of case management, identifying and categorising cases, seeing where there is congruence and where decisions in one case may affect argument in other cases.
Furthermore, as a new judge to judicial review cases, he must familiarise himself with all the relevant judgments and case law; he doesn’t want to make weak decisions which will be appealed left, right and centre or be knocked out on appeal due to inaccuracies on his part. Neither does he want to be blind-sided by cases that come before him which he does not expect. For all these reasons, he was keen to explore the case law in some detail so that he can grasp the issues and arguments.
On a more sombre note, a comment by Tony McGleenan was instructive of some of the dangers of case-hardening over Article 2. When mentioning a grid drawn up by the Crown Solicitors Office as a management tool to manage all the judicial reviews arising from conflict-related deaths he referred to a hand-written note on the page “and hundreds more”. This comment provoked laughter in the court suggesting that state lawyers view the number of cases as a sign of vexatious or speculative litigation. It is to be regretted that victims of state caused deaths which have not been properly resolved should be a cause of humour amongst lawyers paid – out of public funds – to defend the state and its agents. It is also a danger that abstract discussion of law can lead one to forget that there are victims whose lives have been traumatised by loss who are at the centre of these applications seeking justice at last where the state has provided none.
- The argument over Article 2
Mr Justice Maguire wanted to avoid drawing too many conclusions about the facts of the shooting given that this case relates to Article 2 and the desire on the part of the family for a new investigation compliant with the procedural requirements such an investigation would attract: independence, thoroughness, promptitude and in full consultation with the family.
Suffice to say that there are different versions of what took place. The first issue is when the two versions emerged in competition. A witness statement contradicting the army version was made by a Mr Wright in 2011, 29 years after the incident. A Ms McGlinchey has also made a statement – in response to the same call for eye-witnesses to which Mr Wright responded – which also contradicts the military version. But the Irish News at the time reported that according to eyewitnesses, Mr Carberry was shot “in cold blood”. The events took place on a Monday afternoon in broad daylight in front of a number of people. “Did no one make a statement at the time?”, wondered Mr Justice Maguire before himself pointing out that, quite likely, people within the Falls Road community would not have felt able to tell RUC what they saw at the time even if the RUC would have been interested. (He also wondered whether it is even possible, from a distance of 44 years, to have a clear view of what took place.)
Nevertheless, the fact remains that despite contradictory views the official position at the inquest considered only the army version of events.
Mr O’Donoghue stated the Carberry family’s position:
- the HET took Mr Wright’s statement in 2011 after he responded to the call for witnesses issued by Relatives for Justice;
- his evidence is that Mr Carberry was not the passenger as claimed by the soldiers but was driving:
- these contradictions give rise to a need for a new investigation and it is clear that the soldiers need to be interviewed under caution;
- the family have been long of the view that Mr Carberry was murdered and they want to see the matter looked into in an objective way which was not done at the time;
- the court is reminded that Mr Carberry’s widow is 83 years old;
- his two children are present in the court signifying their continued and justified interest.
The case is clearly “caught” by Article 2.
In response to Mr Maguire’s reminder that the Article 2 obligation can be delivered via – for example – civil proceedings and a new investigation is not necessarily required, Mr O’Donoghue stressed that it was the state which promised an independent investigation when the HET was abolished after it had started its inquiries. Three years later, the UK government has done nothing except point to local politicians and the local assembly saying that they have to set something up.
For the NIO the Article 2 obligation has not been revived. Tony McGleenan asserts that the RUC investigation and the inquest in 1974 concluded the case. This was 26 years before the HRA came into force in 2000. It cannot have retroactive effect in this case nor have there been further investigative steps since then which could reanimate matters. Two cases are relevant in outlining the NIO argument. First of all, the McKerr case draws a timeline knocking cases out of consideration which pre-date the coming into force of the HRA in 2000. The McCaughey case softened the McKerr approach as follows; where the state after 2000 has decided to hold a new inquest, Article 2 is triggered. There has been no trigger reviving Article 2 in relation to Mr Carberry’s killing and therefore McKerr applies. Thus far, the Attorney General “has declined” to open a new inquest. If he did “we would be in McCaughey territory”.
Mr Justice Maguire wondered whether anything else could revive Article 2; after all there are new statements by two new witnesses. In the alternative, is the HET investigation a triggering event? The NIO view is that neither is a sufficient trigger; the statements were not acquired as a result of a state investigation; and the HET only reviewed cases and did not investigate to an Article 2 threshold.
The judge seemed unconvinced that the triggering event can only be from or by the state. The Brecknell case ruled that it does not need necessarily state action provided the new fact or material “is sufficiently credible and of substance”. While Mr McGleenan conceded this point, he felt that the test for credibility and substance should be whether the Attorney General considers the new evidence merits an order for a new inquest.
Having outlined the domestic steps to be taken into account, Mr McGleenan outlined his analysis of the approach taken by the European Court of Human Rights (ECtHR) in Strasbourg, which he described as taking “a more generous view”. The key decisions setting out the evolving position are McCaughey, Silih (a Slovenian case) and Janowiec (against Russia being a case arising from the Katyn Massacre during World War II). According to these authorities, if the death occurred up to 10 years before the country signed up to the ECHR then it can be considered by the ECtHR. This time limit can be extended in circumstances where there is a “genuine connection” between an earlier death and a relevant event (e.g. a new investigation or new evidence) which takes place within the 10 years allowed.
There was, finally, a reference to the Keyu case (arising from British army killings in Malaysia in 1948). It had been hoped that the Supreme Court would use this case to clarify and simply some of the considerations and contradictions now swirling around critical dates, time constraints and Article 2. In the event, the UK Supreme Court declined to do so.
Summarising, Mr McGleenan said that all serious investigative steps into the death of Mr Carberry were completed in 1974, well before the McKerr cut-off date. The Carberry family can avail of the McCaughey caveat but only in Strasbourg not in this state. The “only way round the McKerr roadblock for the applicant is a new inquest as per McCaughey; but there is none here”.
Mr Justice Maguire appeared much less definitive on a range of points: he felt that there is not enough information about the HET investigation to assess its significance; it could perhaps be viewed as a McCaughey trigger”; the eye-witness statements are certainly at face value significant and raise the question of murder/manslaughter and/or the reasonable use of force, even if the passage of time has to be taken into account; rather than knocking all cases out on the basis of a critical date, it is more probably case specific and depends on the nature of the evidential breakthrough.
The hearing concluded with Mr O’Donoghue’s response to Mr McGleenan’s arguments.
Firstly, he emphasised the importance of the new statement, the first piece of evidence that the victim was the driver in complete contradiction of the soldiers’ story. But further, the new statement grows substance when it appears to cohere with the account of the car owner whose evidence was that the older of the men who took his car got into the driving seat. Yet this was not taken into account even though it contradicts the evidence of the soldiers only 20 minutes after the hijacking. The soldiers were extremely clear that they shot the passenger. The new statement “has weight and significance which easily breach the Brecknell trigger”. It can’t be dismissed.
Secondly, it is wrong to categorise the HET as a reviewing body only. Its importance was laid before the Committee of Ministers of the Council of Europe as an intrinsic part if the package of measures implementing article 2 obligations arising from ECtHR judgements. Furthermore a number of prosecutions for murder have been taken forward after HET examinations. It follows that the HET was clearly an investigative body thereby hurdling the McCaughey requirement.
Thirdly, he pointed out that the government department that liaises with the Committee of Ministers in the Legacy Unit of the Northern Ireland Office, a clear indication of who is responsible for Article 2.
Fourthly, the relevant trigger doesn’t have to emanate from the state but has to be credible.
Finally, he cited authorities regarding whether Strasbourg law is applicable in the domestic courts. The cases cited clearly indicate that it is.
All in all, he finished, “the Carberry family have the right to assert their article 2 rights in this court”.
Mr Justice Maguire reserved judgement emphasising that he wished to consider matters in some detail before deciding whether to take the matter to a full hearing.