Soldier B finally gave his evidence today (Thursday 26th May, 2022) in the Carberry civil case, which has been running since January 2021. Notes of an earlier hearing can be found here.
Mr Dunlop, counsel for the defendant (i.e. the Ministry of Defence) reminded the court that B will conclude the MoD’s evidence. Soldier A died in July 2021. Soldier C had been subpoenaed but was declared unfit to give evidence on medical grounds. The person identified as Soldier D disputes he was involved, so we have to conclude that the MoD don’t know what became of him.
Judge McAlinden began by saying that the nub of the case will be whether the firing that killed Stan Carberry was justified. He suggested that if the court can’t justify the shooting, the question of limitation (that the case has been brought outside the time limit) becomes irrelevant. This was strongly opposed by Dunlop who argues the reverse. The court must decide on limitation first. If the case is knocked out because of the time limit, it cannot then proceed to the question of whether or not the shooting was justified. This question was returned to at the end of the hearing. However, the judge remarked to Frank O’Donoghue, counsel for the Carberry family, that he may want to reconsider his decision not to provide medical evidence on Stan Carberry Jnr as this may weigh in favour of the judge exercising his discretion to allow the case, notwithstanding the limitation point.
Soldier B was sworn in. He was addressed as Mr B. throughout. He was visible via Sightlink from his home. Mr Dunlop took him through his statement.
A Scot, he joined the Royal Green Jackets in 1969 and left the army in 1973. The incident in November 1972, that claimed Stanislaus Carberry’s life was during his second tour of duty. On the day in question, he was section commander for one half of the platoon and was in the first of the two Saracens carrying the soldiers who fired the shots which killed Stan Carberry. He recounted receiving a radio notice to look out for a blue Vauxhall Viva that had been hi-jacked by two armed men and was believed to be in the area.
He saw the vehicle through one of the portholes on the side of the Saracen and said to the men in the back with him: “We’ve to stop that vehicle”. They got out of the back door. There was a lot of shouting and he heard two low velocity shots. One of the soldiers with him fired two shots at the car with his .303 sniper rifle. The rifle had telescopic sights attached. B claimed the first shot burst one of the back tyres of the Viva. The car started swerving from side to side. Another shot was fired. The Viva’s passenger door opened and someone fell out of it. There was a hostile crowd gathering mostly of school-children. B told the men to secure the car. The driver had escaped into the crowd and ran away. An ambulance came and the casualty (Mr Carberry) was taken away.
The final point emphasised by Mr Dunlop was that B didn’t know where the low velocity shots came from. Other soldiers had told him they came from the Viva as it was driving away.
Cross examination by Frank O’Donoghue followed. He clarified with B that he had only been asked to give evidence in December 2021, despite the fact that the main hearing of evidence had taken place a full eight months earlier. Counsel got B to say what documents he had been given to prepare for the hearing. It turned out he had received quite a bundle, which seemed irregular. He asked for a list of all the documents that had been received and this was done by way of a short recess
Turning to the day in question, B said that he was in radio contact with the second Saracen in which his Corporal was sitting. There was prolonged questioning of B as to the position of the Viva when he first saw it. B said it was driving slowly (perhaps 20 m.p.h. or less) past the Saracen in the opposite direction, going country-wards. In the statements from 1972, the soldiers’ accounts all had the Viva stopped at the corner of a side-street and waiting to turn onto the Falls Road. This fairly clear conflict of evidence proved to be significant, and Mr Dunlop and the judge also came back to it at some length.
In the meantime, counsel for the Carberry family asked why B had not got the second Saracen to stop the Viva. He asked B about his descriptions of the occupants of the car. And he confronted him about the fact that he has now given a different version of the facts in respect of when he first saw the Viva.
At this point the judge intervened at length and began to remark on how difficult it is to expect witnesses to remember from 50 years ago; that it’s a big ask and not surprising that memories will fade; “this is the difficulty with legacy processes being dragged out”. Frank O’Donoghue sought to intervene saying that those points might be a matter for submissions at the end of the case but in the meantime, he had to complete taking B through the evidence.
After this, B confirmed that he hadn’t seen a gun in the Viva and nor had he given the order for any soldier to fire as Soldier A had claimed in his statement. B was adamant about this. A soldier doesn’t need an order before opening fire. There was a further intervention by the judge reminding the witness of Rosetta McGlinchy’s testimony about having heard low velocity shots. He spoke of the fact that these were IRA personnel, that Stanislaus Carberry had been given a paramilitary funeral. He wondered whether Frank O’Donoghue was not trying to re-write history with his questions to B.
There was further questioning. Counsel put it to B that so much had changed in his testimony that, really, could he not just accept that as soon as the Viva was spotted, the soldiers de-bussed and started firing aimed shots at the car without giving the two individuals a chance. Soldier B conceded: “It could have been like that”. It seemed a significant concession. At which point the judge intervened yet again.
Eventually counsel asked to speak to the judge in the absence of the witness, and a short recess followed.
On return, Mr O’Donoghue addressed whether it was the passenger or the driver who fell out of the car as the civilian witness testified. At which point, B had to concede that, despite what his statement said, he hadn’t seen the car door opening but simply assumed it was the passenger from the position of the body. He testified that the car had been driven back between the two Saracens to the army base on Broadway. Even with two wheels shot out it was possible to drive it slowly.
He told counsel that he and the other soldiers had been told not to speak about the incident to each other until they had given their statements. When counsel asked him how it was then that they had all placed the Viva waiting to turn on to the Falls Road, B said: “I don’t know”.
Counsel for the MoD, Mr Dunlop, sought to retrieve the situation by reviewing what B had said about the various discrepancies between his 1972 statement and his oral evidence. Frank O’Donoghue resisted this, and the discrepancies stand in the evidence.
The judge then outlined what he saw as the effect of B’s testimony. The clear discrepancies have “significantly undermined the defendant’s case”. And this related to an incident in which human life has been taken. B has given an account that is materially different from the statement which, after all, he has had for a number of months to review. The judge considered that the evidence “does not exist” which can be said to represent a justification for opening fire. In these circumstances he feels “uncomfortable” with the notion that a time limit should prevent the court from making a ruling, on the balance of probabilities, on the lawfulness of the shooting.
Nevertheless, in response Mr Dunlop argued the limitation point. He also mentioned some cases arising from British actions during the Land and Freedom Resistance Army rebellion in Kenya which he said would support his contention. He also sought to play down the significance of B’s account. “A blind man on a galloping horse”, he said, could see that B was not coherent and cogent. He also argued that, had the case been heard in the late 1970s, the evidence would have greater solidity. The passage of time has prevented the defence from providing its best evidence. This is a fair trial point which should weigh in the balance of the decision on limitation.
The MoD must now provide written closing submissions by 2nd August. The Carberry family will submit plaintiff’s closing written submissions by 30th August. Oral closing submissions will be heard at 2pm on 29th September 2022.