Family take significant civil action against the British army for killing their father on 13th November, 1972
Stanislaus Carberry – known as Stan – was shot dead by British soldiers who had spotted him near where Daly’s garage is now as they drove city-wards down the Falls Road in their militarised vehicles. Stan was in a car that he had hi-jacked 20 minutes earlier – along with a young colleague – and was driving away from the soldiers when he was shot. They were both IRA volunteers on active service.
The patrol had been told to look out for the stolen car and apprehend the occupants. Instead, they got out of their vehicles and opened fire as the car drove towards Donegall Road. It rolled to a halt at the junction of La Salle Drive. The soldiers claimed that there was shooting from the car, though no soldier was injured nor were weapons recovered. Their shots, however, killed Stan; his colleague escaped. The autopsy revealed three wounds in Stan’s back. Civilian eye-witnesses contradicted the soldiers’ account, though these were not collected into the official investigation at the time.
Stan’s children have, for years, been trying to get a proper investigation into the incident which requires the soldiers to explain their actions. Instead, the state has protected them from accountability and sought to frustrate the family’s search for truth. In the absence of any other mechanism, and after years of campaigning and legal actions to access state-held information, this civil case has come to trial. It has great significance for many other such incidents where British soldiers killed people during the conflict in disputed circumstances.
Remarkably, when faced with an accusation of unjustified killing, the state has come to court with no witnesses and no evidence. None of the soldiers who fired shots at Stan have been brave enough to attend and explain themselves, an attitude suggestive of disdain for the loss they caused, and for the family left without a father.
Relatives For Justice (RFJ) has supported the family for years and has been proud to do so. We understand their determination to assert that their father did not need to be shot. Having been denied by the British government of other means to do so, such as were supposed to be established under the terms of the Stormont House Agreement, this has been their chance to have their day in court.
The evidence has now been heard; final submissions are awaited; and then the court must give its ruling.
What follows is an account of how the case has proceeded.
Note of Proceedings
Stan Carberry (on behalf of the estate of Stanislaus Carberry) v. Ministry of Defence (MoD)
(N.B. Each day’s note was completed at the end of each day, with an indication of likely events in the succeeding session. Appearing for the Carberry family was Frank O’Donoghue QC, instructed by Gary Duffy of KRW Law; appearing for the MoD was David Dunlop QC, instructed by the Crown Solicitors Office.)
Proceedings on Wednesday 24 March
On behalf of the plaintiff, Frank O’Donoghue QC took Mr. Justice McAlinden through the soldiers’ statements and outlined the inconsistencies and impossibilities in their accounts. He concluded by saying that their reason for opening fire “falls miles short of a reasonable justification for” for shooting at Stan. The accounts show that they claim to have been able to see things which it was impossible for them to have seen. There are different stories as to which soldiers fired and in what sequence. One of the soldiers fired and did not mention an order to fire. Others claimed the senior officer had ordered them to do so. The order was supposedly to fire at the tyres, but one soldier fired at the back window: that was shooting to kill. There was no justification for the lethal use of force.
The judge himself noted that the soldiers’ claim that shots had been fired from the car from the front passenger side which went over their (the soldiers’) heads was impossible given the angle which was needed.
The forensic engineer, Brian Murphy then gave his evidence and the question of sightlines was gone into in some detail. The judge was interested in the age of the tree that the car was stopped by, given that nearly 50 years have passed. Was it old enough then to have halted the vehicle’s momentum. The barrister for the crown cross-examined the engineer. He focused on undermining the eye-witnesses but was cut off by the judge who said that his line of questioning was a matter for closing submissions rather than for a forensic engineer.
The question of limitation, to explain why the case was lodged so long after the incident, will be an important element tomorrow. Stan is likely to be called to answer questions on this. Mike Ritchie of Relatives For Justice (RFJ) may also have to give evidence about the sequence of getting the new eye-witness’ statement.
The former soldier will give evidence in the morning. The new witness, Rosetta McGlinchy, will testify from Canada at 11.
The judge has an appeal at 1pm and another matter at 10.30am so it will be a short day. They are going to try and start first thing at 9am to mitigate the loss of time.
Proceedings on Thursday 25 March
The first witness was Richard Rudkin, the former soldier.
He provided information in relation to patrolling procedures and radio traffic protocols. The judge was very interested in the approach of the soldiers to the Yellow Card. The witness said that all soldiers were given a card. “I put it into a pocket and never looked at it again.” The gist of it was don’t open fire unless your life or someone else’s life is in danger. As against that, he remembers that their commanding officer said you can fire in the direction of shooting as long as no civilians are put in the firing line. (This contradicts the Yellow Card!) No real cross examination.
Then Stan himself gave his evidence. David Dunlop QC, counsel for the MoD pressed him hard in cross-examination suggesting that action should have been taken back in the 70s or 80s. Clearly the tactic for the case is to focus on limitation, which makes the case out of time. Stan was questioned for a prolonged period. Surely he could have questioned the circumstances of his father’s death as he grew up. Surely his sister who worked in the NHS as a manager could have taken an action. Did your mother not engage a solicitor?
Eventually, Frank O’Donoghue intervened. In response, the judge acknowledged medical reports as part of the trial papers which outline Stan’s psychological history and that he should not be put under undue stress. Nevertheless, he said that the questions did have to be put to Stan. The judge, therefore, ordered a break for lunch to give Stan an opportunity to compose himself.
Questions continued after lunch. Mr. Dunlop was trying to get Stan to acknowledge that the facts about his father’s death were disputed long before this action was taken. Stan resisted any attempt to suggest that taking a civil case or accessing more information about the incident would have been straightforward. Overall, Stan stood up well to the line of questioning.
After Stan finished, Mr. O’Donoghue said that Stan’s mental state may be relevant in respect of Article 50 of the legislation underpinning compensation actions. This refers to the fact that a court his discretion to allow out of time applications
Rosetta McGlinchy then gave her evidence through counsel. The judge was keen to get correct positioning of the car when it hit the tree at the top of La Salle Drive. She was asked about other incidents and became upset. The judge ordered a short recess.
Cross examination focused on the fact that she couldn’t see the shooting. She seemed to talk about low and high velocity shots. The MoD is likely to use this to argue this suggests shots were fired at the soldiers. Dunlop also went through other inconsistencies in her statement as against the forensics and other accounts. Thus, tartan on the soldiers’ caps is belied by the fact that this was an English regiment, three bullet holes in the back windscreen when he showed her a picture with glass completely shattered. The witness remained pretty strong throughout.
Frank O’Donoghue clarified a number of points on timing. He also got her testimony that police never questioned her, and she didn’t attend the inquest.
The Judge asked her about the other incidents she had witnessed. He asked about her father’s actions, striking a solder and taking his weapon. At no stage was he challenged about that or turning off the car engine. He was never arrested for these “offences”. She responded well saying that the soldier was almost hysterical and perhaps the other soldiers were relieved his gun had been taken off him and given immediately to another soldier as the soldier had seemed about to shoot someone else in the mayhem.
After completing the day’s evidence, Mr. O’Donoghue indicated that Mr. Dunlop had suggested that all other dependents might need to be called to ask why they didn’t do anything about their father’s case before now as the court has to have proof in relation to each of them. It seems a complicated point that they might have to mull over. Should Justice McAlinden rule on this matter before the case goes ahead to the next stage?
In the end, it turned into a very long day despite the judge’s other commitments, an indication of the judge’s admirable drive to get through the evidence in timeous fashion.
In like manner, the judge wants to complete getting all the evidence: that’s Mike Ritchie’s testimony on behalf of RFJ and possibly Stan’s sister, Betty. This will happen sometime next week, at which point the matter of limitation and dependency can be addressed also.
Proceedings on Wednesday 3 March
There were two witnesses, but before they testified, the judge addressed some remarks to counsel for the MoD on the limitation point, the main plank of the defendant’s case.
McAlinden J. pointed out that the basis for the action is a claim by the plaintiff (Stan Jnr) that the defendant (the MoD) through its agents assaulted Stanislaus Carberry in November 1972, killing him, and that that assault was unjustified. The MoD says that claim is out of time. The plaintiff has addressed the limitation point through a range of evidence and has asked the court to exercise its wide discretion to accept the claim even if it is out of time.
In response, the defendant (the MoD) is proposing absolutely no evidence. If it wishes to defend itself, it needs to present evidence justifying the assault on the balance of probabilities, otherwise, the judge seemed to be implying, the plaintiff’s claim must succeed. He also pointed out that this would be a significant precedent and many other cases involving use of lethal force by British soldiers could conceivably be taken forward from this jurisdiction where trends in law have a habit of developing into multiple legal actions, he pointed out. He seemed to be suggesting that the MoD needed to consider these implications.
Mr. Dunlop said that his instructions are to present no evidence. The judge suggested that given his remarks he should perhaps consult with his clients to ensure that they understood the position. At the end of the testimony of the two witnesses, the judge adjourned to give Mr. Dunlop an opportunity to consult his client. When the court reconvened, Mr Dunlop said that he had been unable to contact the MoD and would have to continue with his current instructions. However, the judge once again was anxious not to proceed until Mr. Dunlop had spoken to his client. It was agreed to reconvene the following morning to arrange how to continue.
It was clear that the judge wished to be scrupulously fair to the defendant.
After the initial remarks by McAlinden J, Elizabeth Tierney, the daughter of the deceased, then gave her evidence. In order to address the limitation point that might have required each sibling to give evidence, she outlined the circumstances of each of them indicating why they would not have sought to bring a claim before now. She outlined the consequences of having a parent as an IRA volunteer who is killed by British security personnel: the house searches, the fear, having to hide the circumstances from work colleagues, the death threats. And she outlined Stan’s determination to get to the bottom of what happened their father. She was clear and coherent in her evidence and there was little cross-examination.
Mike Ritchie then gave evidence concerning the work of RFJ in general, the casework function in greater detail – the way staff support families and both guide them through legal mechanisms and refer them as appropriate for legal representation. He emphasized the importance to families of changing the existing official account of what happened to their relative to take account of their perspective, something which never happened during the conflict due to hostility by RUC investigators to the catholic population. He also outlined the steps which led RFJ to the new eye-witness, Rosetta McGlinchey.
This concluded the evidence.
Proceedings on Thursday 4 March
This was a short discussion to hear what the reaction of the MoD was to the judge’s remarks the previous day.
Counsel for the MoD confirmed that he had now consulted his client and they still do not wish to present any evidence.
Accordingly, written submissions will be supplied next week, and final oral submissions will be heard on Monday 15th March at 10am.