Legal hurdles reduce chances of conviction: Case prompts renewed concern over justice system, reports David McKittrick

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The Independent Online
THE ACQUITTALS in the Caraher case have caused the latest in a long line of controversies centring on the issue of the use of lethal force by members of the security forces.

Widespread concern was expressed by political, church and legal sources after the death of Fergal Caraher in the staunchly republican south Armagh village of Cullyhanna. He was shot after an encounter with Marines following what appeared to be a routine roadblock.

Foremost among the critics at the time was Cardinal Cahal Daly, leader of the Catholic church in Ireland, who said: 'Many responsible people are completely unconvinced by the accounts so far given by the British army.' This comment was based on the substantial amount of eyewitness evidence which was later produced in court but rejected by the judge.

About 350 people - some terrorists but mostly civilians - have been killed by on-duty members of the security forces during the Troubles. Just under two dozen prosecutions have been brought, with the courts usually acquitting the soldiers and policemen charged. Several months ago a paratrooper was jailed for life after an incident in 1990 in which two joyriders were killed. He was only the second member of the security forces to be convicted of murder.

Critics cite this record as statistical evidence for the argument that British governments' primary concern has been not to ensure justice but to protect members of the security forces who pull the trigger. The IRA says it demonstrates that there is one law for the Army and Royal Ulster Constabulary and another for everyone else.

There are a number of legal and other factors that, in sum, constitute a formidable series of hurdles which help ensure that soldiers and policemen are not convicted of offences in connection with fatal shootings.

A cardinal principle is that members of the security forces are subject to the same laws as other individuals. The 1967 Criminal Law (Northern Ireland) Act states that 'such force as is reasonable' may be used to prevent crime or apprehend offenders or suspected offenders.

But critics argue that the judgments in these cases have left the security forces too much licence in questions of lethal force. In each case a report is sent to the Northern Ireland Director of Public Prosecutions, who decides whether or not to bring a charge. Murder is the most serious charge in the law, and one of the most difficult to prove.

Lord Colville QC, who has carried out a number of reviews of emergency legislation for the Government, has pointed out the dilemma: 'The policeman or soldier, his family and friends, say that it is monstrous that a minor misjudgement in a man's reaction to a split-second emergency, should lead to a sentence of life imprisonment. But the victim's family and friends will be outraged by an acquittal.'

For the critics, the bottom line is that the system that each year puts hundreds of suspected terrorists behind bars has resulted in the jailing of only two soldiers. The Caraher case will now be cited as further evidence that the dice are loaded in favour of members of the security forces; and that, even when in error, the system gives them preferential treatment.