Barr Tribunal Report Chapter 5

CHAPTER 5

The Final Minutes — John Carthy’s Exit from the House

and Subsequent Fatal Shooting

SECTION A: — Introduction and Summary

At approximately 5:55 p.m. John Carthy, without prior warning, exited his house through the front door. He was in possession of his shotgun, which he had in the broken-open position. He immediately turned to his left, walked down by the side of the house, rounded the corner, passed the gable-end, paused momentarily at the next corner and proceeded down the driveway. As he passed through the gateway he closed the gun. Having moved on to the road he then opened the weapon, discarded one of two cartridges from it and closed it once more. He then turned up the roadway and proceeded to walk in the direction of Abbeylara with his shotgun closed, loaded with one cartridge and pointed in the direction of the command post, near which non-ERU members, armed and unarmed, were on the road. Moments later he lay fatally injured, having been shot four times by two members of the Emergency Response Unit. What occurred during those fateful few moments is now considered.

On his exit, the manner of John Carthy’s walk was described by Detective Garda Finnegan, who was observing the house door from a mound at the rear of the building, as a ‘‘very set walk’’, ‘‘a very determined set’’ and a ‘‘mid-march’’ pace. He issued a radio message to all ERU officers that John Carthy had exited his house. According to the witness the subject, on exit, did not stop or look right and he seemed unaware of anything that was around him. He was carrying his gun which was broken open and he followed the path by the gable end of the house. When he exited, Detective Sergeant Jackson was down behind the front wall of the house at the negotiation post. He had been in a crouched position because, prior to his exit, the subject had been constantly raising and levelling the shotgun in his direction but without firing. Detective Garda McCabe was on one side of Sergeant Jackson and Detective Garda Sisk on the other. All three were close together. Immediately on hearing the radio message the negotiator stood up and looked over the wall. He saw the subject on the front pathway near a small gravelled area, walking by the gable window. Sergeant Jackson observed that he had the shotgun on his right side, the butt was tucked under his right elbow and his right hand was in the area of the trigger mechanism. The shotgun was broken open ‘‘similar to a hunting stance, a safety stance’’. His left hand was under the front portion of the barrel and he was then walking at a reasonably brisk pace past the gable window towards the driveway. According to Sergeant Jackson:

‘‘Obviously this was a serious development, Mr. Chairman. John had exited the house. It was an uncontrolled exit. His exit was sudden, but not unexpected,

and certainly a dangerous situation prevailed at that stage, so I drew my Sig pistol at that stage, but he had the gun in his possession so I felt he may be going to do harm to somebody. That was my initial assessment. I also made the assessment certainly he was a threat but not an immediate threat; the gun was broken, which was obviously something we took cognizance of. Certainly I perceived him as a threat but not an immediate threat at that particular stage...’’.

When Garda McCabe heard the radio call, ‘‘he is out, he is out’’, he too was crouched behind the wall at the negotiation point near Sergeant Jackson. He stood up from behind the wall and cocked his Uzi sub-machine gun by pulling back the cocking lever and selecting the repetition mode. He brought it to his shoulder, to the ready position, and looked over the wall. All of this was done in one motion. There are three selectors on the Uzi. These are ‘‘safe’’, ‘‘repetition’’ and ‘‘automatic’’; repetition meaning that discharges from the weapon will be shot by shot, and that as the trigger is squeezed, one bullet only will be fired. The trigger must be released and squeezed again for a second discharge. An automatic selection will produce a burst of fire in one action.

Detective Garda Carey had come out of the new house on hearing the radio message of the exit. He proceeded quickly to an area between the abandoned patrol car and the sheds at the side of the old house. John Carthy entered the driveway and momentarily paused when he saw Garda Carey, who pointed his weapon at him and called on him to put down the gun. The subject proceeded down his driveway and at some point as he was passing through the gateway on to the road he closed the gun. Members of the ERU were at this time calling on him to drop the gun and informing him that they were armed gardaı´.

As he moved on to the roadway John Carthy looked to his right in the direction of Sergeant Jackson, Gardaı´ McCabe and Sisk. He momentarily paused. The look on his face was described in evidence as a ‘‘blank stare’’. Nevertheless, they thought that he was aware of their presence. At this stage the gun was closed and pointing straight across the roadway to the field opposite. John Carthy’s left hand was under the barrel, his right hand was in the trigger area and the butt of the gun was tucked under his elbow. Sergeant Jackson has described the subject’s gun, at this stage, as being in a firing position. As he reached the middle of the road he paused and broke open the gun with his right hand. He removed a cartridge from the right barrel and threw it to the ground in the area of a ditch, on his right, and slightly in front of him. This was described by Sergeant Jackson as ‘‘a very quick movement’’. Immediately on closing the gun, he turned towards Abbeylara. He was now at the far side of the road, that is, the side furthest from Carthy’s house and no more than three feet from the grass verge on that side. The gun was held as before, left hand under the barrel, right hand in the trigger area and the butt of the gun tucked under his elbow. He proceeded to walk up the road in the Abbeylara direction.

Detective Sergeant Russell was in the new house, having been on a rest break, when he heard of the exit. He proceeded through the front door. The first time that he saw

the subject was when he, John Carthy, was heading through the pillars at the gateway. He, the witness, ran diagonally across the garden in the general direction of Burke’s hedge, halfway between the hedge and the pillar. He ran towards the roadside boundary wall and jumped onto it. John Carthy was to his right and was still walking. Sergeant Russell stated in evidence that the subject was not, at that stage, ‘‘far away’’ and that he was on the far side of the roadway. He did not see him progress through the gateway, nor did he see him remove the cartridge from the barrel of the gun. The witness had accelerated a short distance and it took him a while to compose himself. He was standing on top of the wall. He remembered trying to keep John Carthy in view ‘‘but at the same time he heard [the] panic of people’’ to his left. He knew that there were people in positions around the command vehicle. He heard some panic and in the corner of his eye observed movement of people fleeing to his left, up towards the Abbeylara side. While on the wall he had his pistol drawn and trained on the subject.

Detective Garda Sullivan, who had gone up the road to fetch Dr. Shanley, drew his pistol and went back towards the scene. He went to a position on the road just past the hedge dividing Burke’s and Carthy’s. He saw John Carthy emerging onto his driveway heading towards the road. He heard colleagues shouting to him, ‘‘armed gardaı´, drop your gun’’, and pleading with him, ‘‘drop your gun, John’’. He could see the shotgun in his hands and he, Garda Sullivan, took a number of steps backwards. He was concerned for his own safety and the safety of other people, some of whom were gardaı´ in uniform and were ‘‘gathered in this area’’. He turned and formed the impression that there was a hesitation in that people may have been initially making their way towards the scene when the crisis happened. ‘‘There was a hesitation there. I just decided to shout to alert them’’. He shouted at everybody generally to ‘‘get back and get into cover’’. He turned around and jumped the wall into Burke’s garden. Immediately before this, he heard Sergeant Jackson appealing to the subject and using his first name, saying, ‘‘John, please drop the gun’’.

At this time there were people, armed and unarmed gardaı´, on the roadway in the vicinity of the command vehicle. There were also civilians in a car further up the road in the vicinity of the Walsh house. Sergeant Jackson, fearing that the subject was about to discharge his weapon at people in the area of the command post, decided that he was left with no option but to discharge his weapon. He fired a shot from his Sig Sauer pistol into John Carthy’s left leg. This bullet struck him and the material of his jeans was seen to ‘‘flicker’’. The shot was described as having no effect on his demeanour or on the manner in which he held his gun, and he continued to walk. Sergeant Jackson, continuing to fear for those on the road, discharged a further shot to the left leg area. He was unaware of whether this shot struck the leg. Again no effect was noted. Garda McCabe, also fearing that John Carthy was about to discharge his weapon at people in the vicinity of the command vehicle or further up the road, fired a shot, the third in all, and his first, which struck the subject in the lower torso. Garda McCabe saw no reaction and thought that he may have missed. The subject was described by the ERU members as continuing to walk with the gun pointed at the command vehicle. Garda McCabe discharged his second shot, the fourth in all, which struck slightly higher on the lower torso. John Carthy immediately

fell to the ground. The evidence of witnesses at the scene indicates that the entire incident from the time the subject exited his house to the time he was shot dead was brief, perhaps no more than one minute. The time-lag between the first and fourth shots was also very short; the evidence being that there were no more than seconds between these shots. Witnesses close to the scene gave varying accounts of the number of shots that they heard. All four shots struck John Carthy, the first two in the left upper leg and the last two in the torso area. The shots to the leg caused soft tissue injuries and did not damage any bone.

Having been struck by the fourth and fatal bullet, he turned, faced Sergeant Russell, who at that stage was still standing on the boundary wall of the Carthy house almost opposite him, and fell backwards and ‘‘somewhat to his right’’. Having fallen to the ground on his back, he attempted to roll over on to his right side. His head was towards the grass verge and his legs were diagonally across the road. Garda Finnegan was the first to reach him and in carrying out what he described as the ‘‘standard procedure’’ of ‘‘cover and contact’’, he placed his foot on the subject’s foot and trained his gun on him. He immediately saw that he was badly injured. First aid was administered by Detective Gardaı´ Flaherty and Sullivan (who rolled John Carthy onto his back) with the assistance of Detective Garda Ryan. Resuscitation was attempted by means of an air vent and by cardiac massage. An ambulance, which had been based at Granard garda station, was summoned. Dr. Donohue was also called to the scene. He administered adrenalin. All attempts at resuscitation failed and at 6:11 p.m. John Carthy was pronounced dead.

The core of the evidence from the relevant gardaı´ is that the subject was perceived to be a threat, and continued to be so when he turned and walked in the direction of Abbeylara. ERU witnesses felt that, earlier, when he had been shooting at them from inside the house he was displaying threatening behaviour and therefore would not agree that Mr. Carthy had not threatened them at any stage. After his emergence from the house, however, he did not point his weapon in the direction of any member of the ERU before he was shot. The evidence suggests that while all members of the ERU were concerned in a general way for their safety, in that John Carthy could have turned the weapon on them in a ‘‘split second’’, their primary concern was for the safety of the people on the road in the vicinity of the command vehicle and further up the road. The area within range of John Carthy’s weapon was, at that stage, populated with armed and unarmed local officers, including Superintendent Shelly, the scene commander; and, somewhat further back, civilians who had been brought to the scene to attempt to assist in negotiations or to speak to John Carthy, including Ms Marie Carthy and Dr. Shanley who were in a police car on the road at Walsh’s house, a short distance away. The statements, evidence and actions of many of the garda witnesses on the road at that time establish that they were caught entirely unawares and unprepared for what had happened and feared for their own safety.

The evidence of Professor Jack Phillips, a consultant neurosurgeon, indicates that the subject was capable of forward motion between the final two shots, as his central nervous system was not compromised by any of the first three bullets. The first two

shots struck John Carthy in the upper left leg and comprised soft tissue injuries only. This was unfortunate as the medical evidence suggests that had a bullet struck a bone, he probably would have fallen. The third bullet struck the deceased’s pelvis and deviated at an angle in a downward direction, entering and exiting his right calf. While the evidence of a fifth wound raised the prospect of a fifth bullet, the Tribunal has previously ruled that it is satisfied that John Carthy was struck by four bullets only, notwithstanding the pathologists’ original doubts in that regard.

SECTION B: — Eyewitness Accounts

When John Carthy emerged from his house, more than 20 gardaı´ and other personnel were present in the vicinity of the house or on the roadway nearby.

1. ERU members at the scene

Nine members of the ERU were in the vicinity of the house: one at a mound behind the old house (Detective Garda Finnegan); four in the new house (Detective Sergeant Russell and Detective Gardaı´ Flaherty, Ryan and Carey); three on the road in the vicinity of the negotiation post (Detective Sergeant Jackson, Detective Gardaı´ McCabe and Sisk); and one (Detective Garda Sullivan) further up on the roadway near Burke’s boundary.

Garda Finnegan was behind a mound at the back of the old house, from which position he had a side view of, and was covering, the front door. He neither saw nor heard the door open. He first observed John Carthy, from side on, stepping through the door area and emerging from the porch. The subject did not announce the fact that he intended to exit before so doing. Garda Finnegan relayed the fact of the exit by radio, to other ERU members. He had no means of communication with the scene commander or any of the local officers at the scene. On exiting, John Carthy promptly turned left. At no time did he look in Garda Finnegan’s direction. He was in ‘‘mid-march’’ and had a very determined set about him, meaning, according to the witness, that as he emerged from the house, he did not stop, and ‘‘was unaware of anything that was around him’’. He had the shotgun in his left hand, holding it at the point where it breaks open. It was broken, but Garda Finnegan could not, at that stage, see if it was loaded. He, and each of the other ERU officers in the general vicinity, described in evidence what they saw and what they did when the subject vacated his house. On reaching the gate piers he closed his gun; walked to the middle of the road or thereabouts; then opened the gun again and removed one cartridge which he threw into the ditch on the far side of the road. He closed the weapon again with one cartridge remaining in it and commenced walking in the Abbeylara direction towards the gardaı´ who were on the road in the vicinity of the command vehicle (which was between Burke’s gate and the ESB pole). He was then about three feet out from the grass margin on his right side. As he walked he held the gun across his chest and his right hand was close to the trigger mechanism. He was described as being in a position to fire the gun instantly. It was perceived by witnesses that he was a danger to the lives of gardaı´ on the road in the vicinity of the

command vehicle. From the time when he left the house ERU officers had shouted at John Carthy on numerous occasions that they were armed gardaı´ and called upon him to drop the gun. He ignored them and did not respond in any way. Inner cordon officers and others who had been in the Carthy new house followed the subject and took up positions along the Carthy boundary wall. There was insufficient time for a strategy of moving containment to be put into effect as the subject had taken only a few paces in the direction of the command vehicle when he was fatally shot. (The concept of moving containment is discussed in Chapter 6.) He was still in line with his own boundary wall when he fell. As already stated, the time-lag from when he left his house until he was shot appears to have been no more than one minute.

The evidence of four ERU officers is of particular significance in the context of John Carthy’s final movements, i.e., Sergeants Russell and Jackson and Gardaı´ Sullivan and McCabe.

Detective Sergeant Gerard Russell

At the time of John Carthy’s exit, the team leader, Sergeant Russell, was in the new house having completed a rest break. Shortly after a shot was discharged by the subject at 5:06 p.m., he (Sergeant Russell) went down to Superintendent Shelly to discuss the situation and to let him know that he was ‘‘back on duty’’. He returned to the new house at 5:20 p.m. and was informed by Garda Flaherty that the subject had been seen breaking furniture which signified to him that he was frustrated or angry with something. Sergeant Russell had a brief telephone conversation with Detective Inspector Hogan and reported that there were no breakthroughs and that everyone was safe. Shortly after this he heard the radio message from Garda Finnegan that John Carthy ‘‘was out’’.

While Sergeant Russell accepted that the exit was unexpected at that particular time, he stated that it was not unexpected in the overall context. He also stated that he was not disadvantaged by being in the house at that time because he was in radio communication.

Sergeant Russell followed his colleagues, Gardaı´ Carey, Flaherty and Ryan, out of the house. When he got to the front door of the new house he could see John Carthy walking down the centre of the driveway, ‘‘just going through the gate’’. From his position he could not see whether he had a weapon in his hands, but he heard shouts directed at him to ‘‘put the gun down’’. He heard Sergeant Jackson ‘‘deliver the command’’ to the subject in what he described as a calm, non-threatening manner:

‘‘There were a number of shouts to put the gun down butI heard, in particular, Detective Sergeant Jackson speaking... he is not an excitable individual and on this particular occasion I was amazed, he was so calm, his voice, it was just ‘put the gun down John’. That was the fashion that struck me that he was still adopting the same attitude he adopted right through the negotiation and it was very clear. It wasn’t in a threatening manner or it was very — like some people would put it more forcefully, and I put it more forcefully, but I remember his voice being distinguished from all the other shouts and calls, but

Detective Sergeant Jackson was very calm and was very levelled, the actual way he delivered the command’’.

Sergeant Russell ran diagonally across the front garden to head in what he described as the general direction of the ‘‘outer cordon position’’. He drew his pistol from its holster. He accelerated towards and jumped onto the boundary wall. It took him a while ‘‘to compose’’. He tried to keep John Carthy in view. He heard the panic of people to his left:

‘‘I knew that there were people in position around the command vehicle. I heard some panic and, in the corner of my eye now, I observed movement of people fleeing to my left or up towards the Abbe ylara side’’.

He had not seen, nor was he aware of the actions of John Carthy on the roadway.

When he got onto the wall he saw the subject to his right, walking on the other side of the roadway. He could now see the shotgun under John Carthy’s arm; with the butt tucked under his right arm, the right hand in the trigger area and the barrel being supported by his left hand. It was pointed in the direction of Abbeylara. He agreed with counsel for the Carthy family that John Carthy never held the shotgun at shoulder height. At no stage did he see him point his weapon at any member of the ERU.

John Carthy was now moving at a brisk walk. There was ‘‘purpose’’ to the walk, according to Sergeant Russell. He did not at that stage see the subject’s face. He was looking at the gun and at his profile. The first occasion that he saw his face was when he was struck by the last bullet. The witness was aware of the presence of his colleagues behind the subject, because he could hear their voices, though he could not at that stage, say for definite, who was there. He was concerned that ‘‘maybe people had left it to the critical point’’. He stated that he was aware of the danger and felt that they had now reached that point. He stated that he was in no doubt that ‘‘some person there [on the roadway] was in immediate danger’’ and that he ‘‘feared for the safety of people on the roadway’’. From the corner of his eye he could see people ‘‘fleeing’’. He stated that he knew, at that time, that John Carthy had pointed his gun in the direction of those people. That is what he meant by using the word ‘‘critical’’. He was concerned not only for the safety of those who were fleeing, but also for ‘‘anyone’’ in that area, including people at the command post, whom he knew were armed, and also the members of the ERU. He continued:

‘‘... I suppose there is a certain onus on us, we were the people tasked with providing security ... without sounding bravado about it, the onus was on us to deal with the danger and there is a certain inherent danger in the job and one is more concerned about other persons at that stage’’.

The moment John Carthy emerged from the house, he observed: ‘‘the safety of everyone was compromised’’.

Sergeant Russell had his mind made up that he was going to have to take action but was, at the same time, ‘‘somewhat puzzled’’ that John Carthy had walked past people

in the area. He did not know at that time that he had walked past some of his men without evidently ‘‘taking any interest’’ in them. The subject was holding the gun in a dangerous manner, but Sergeant Russell knew he was a sick man and was trying to assess all of these considerations. He proceeded to take aim. He steadied himself, trained his pistol on John Carthy and aimed at the lower portion of his body. He was hopeful that if he had to take action it would be the minimum amount. He wondered why someone had not taken action earlier and whether he was reading the situation correctly. He was in the process of ‘‘taking a squeeze on the trigger’’ when he heard the first shot being discharged. The subject continued to walk, ‘‘maybe two steps’’. He was not sure whether the first shot had struck. He then heard a second shot. The time between the first and second shot was ‘‘about a second’’. He did not see any reaction to the second shot. John Carthy continued moving and Sergeant Russell did not notice any change in the pace of his walk. When he heard the shots, he was expecting the firearm to be dropped but that did not happen. He heard a third shot, but the weapon was still in John Carthy’s hands and he continued to move. He then heard a fourth shot. While he could not be certain of the time-lag it seemed ‘‘a second or two seconds’’. He did not see or notice the subject’s upper body position move between the second and third, or the third and fourth shots. He did not ‘‘even know whether he had been hit’’. His recollection was that the subject was walking in an upright position between the shots and he did not notice any movement in terms of crouching or falling between those shots. He was focusing on the shotgun and was expecting it to be discharged at ‘‘any minute’’. He observed that John Carthy walked a pace or two between the third and fourth shots. He was then approximately fifteen feet from him and he still had the gun in his hand:

‘‘. . . at the fourth shot he almost paused and turned around in my direction, almost opposite, in my general direction, and that is the first time I got a look at his face. I remember him groaning as if that had caused a pain. I had no knowledge at that stage butI knew that he was hit, I knew that that shot had hit him, I had no knowledge that he had been struck by shots up to that’’.

There was a ‘‘short space’’ of time between the first and the last shots. He heard a number of his colleagues call out warnings to John Carthy but could not say whether such warnings were called out between the shots. However, he himself had shouted such a warning between the first and the last shot.

John Carthy then fell backwards, ‘‘almost facing me as ifI was the last person he had eye contact with’’. He fell with his head to the ditch and his feet out across the road. The gun fell from his grip. The witness knew at that stage that he was badly injured. He saw the colour draining from his face. He shouted for an ambulance.

After Dr. Donohue arrived, Sergeant Russell spoke to Superintendent Shelly and told him that they had ‘‘no other option’’.

Detective Sergeant Michael Jackson

According to the evidence of Sergeant Jackson, John Carthy had been constantly raising and lowering his weapon prior to his exit. For this reason, he was down behind the wall at the negotiation point when the subject emerged. He received a

radio message from Garda Carey. He stood up and looked over the wall, at which stage John Carthy had reached the gable window. He observed that he had the butt of the shotgun tucked under his right elbow, with his right hand in the area of the trigger mechanism. The gun was broken open, ‘‘similar to a hunting’’ or ‘‘safety’’ stance. His left hand was under the barrel. He was walking at a ‘‘reasonably brisk pace’’ towards the driveway. Sergeant Jackson regarded this as a ‘‘serious development’’. The exit was sudden, but ‘‘not unexpected’’, according to the witness. The situation was now dangerous. The exit was uncontrolled. He drew his pistol. His initial reaction and assessment of the situation was that John Carthy had the shotgun in his possession and may be going to do harm to somebody, albeit that the gun was broken open. He was a threat, but because the gun was broken, he was not an immediate threat. He heard other members calling to him. He initially shouted ‘‘John, we are armed guards, drop the gun’’. The subject continued walking and as they ‘‘came to a closer degree of contact and communication’’, he said ‘‘John, this is Mick, please, please drop the gun’’. He had been present for 19 hours and had been assessing John Carthy’s condition:

‘‘His actions now were not of a rational man ... going through my mind was . . . if the possibility did arise that we were able to confront John and disarm him in an unarmed fashion, that was certainly going through my mind also at that stage, that the opportunity may arise when he exits, that we may get an opportunity to disarm him at some point as he was exiting. . .’’.

Sergeant Jackson thought that there was still some prospect that he might be able to negotiate and to get him to drop the gun at that stage. Garda McCabe, who had an Uzi sub-machine gun, was to his right, slightly behind him; with Garda Sisk, who was in possession of a high velocity weapon, also behind him.

Sergeant Jackson was now three to four feet out from the front boundary wall. He moved towards the gateway. Garda McCabe was three or four feet to his right, walking in tandem with him. The shotgun remained open as John Carthy crossed the path onto the driveway. When he emerged onto the roadway, the gun was closed. Sergeant Jackson did not, however, see him close the gun. His left hand was under the barrel; right hand in the trigger area and the butt was tucked under his elbow. The gun was pointed straight across the road in the direction of the field opposite, in the direction John Carthy was facing. Sergeant Jackson moved slightly up to ‘‘engage’’ with the subject, constantly calling on him to drop his weapon and saying: ‘‘John, this is Mick, it is over, please drop the gun’’. He was very concerned about John Carthy’s action of closing the gun. The level of threat was now heightened substantially as the gun was in a firing position. However, the direction in which the gun was pointed, across the road, gave him some limited leeway to ‘‘attempt to try and induce John to drop the weapon’’.

When the subject reached the middle of the roadway, Sergeant Jackson was between 10 and 13 feet from him and approximately three feet out from the wall. Sergeant Jackson had his pistol pointed at him. While John Carthy did not point the shotgun at the witness, he still feared for his own safety, but was prepared to maintain communication with him to attempt to ‘‘implore him’’ to drop his gun.

The subject did not respond, nor did he appear to be reacting to anything that was said. He stopped on the roadway and looked in the direction of Sergeant Jackson and his colleagues:

’’. . .he certainly was looking in our direction, I won’t say with any discerning indication that he was aware of what we were doing or what we were asking him to do, but certainly he did appear to be aware of our presence and that presence appeared to impact on him, but I can’t say he was responding to what we were saying. His behaviour appeared to take into account the position we were in’’.

Sergeant Jackson observed that as John Carthy turned his head ‘‘ever so slightly’’ to his right that he could:

‘‘. . . see behind John, people at the command post, there was a group of members at the command post. I knew some of them were uniformed members. I was obviously taking them into consideration there, I was just aware of them andI could see them behind John at that stage. ... John, as I have described, had the gun facing towards the field on the far side of the road. We had our guns trained on John. I knew it was a critical point in this particular situation. We were still calling on John to drop the weapon, but it was going through my mind at that stage that John may turn to fire the weapon at us and we may be forced to discharge our weapons at him at that point. That is how I perceived the situation at that stage’’.

The gardaı´ on the road were slightly out from and to the rear of the command vehicle. Sergeant Jackson was concerned for their safety.

John Carthy then broke open his weapon and in a ‘‘quick movement’’ removed the right hand cartridge with his right hand, and threw it on the ground to his right. He then closed the shotgun.

On the closing of the gun the subject immediately turned towards the command vehicle. He crossed from the centre of the road to the side opposite his house. The butt of the weapon was under his right elbow. His right hand was under the area of the trigger mechanism. His left hand was under the barrel. The gun was now ‘‘pointed at’’ the group of people at the command vehicle and he marched ‘‘towards them at a brisk pace’’ and in a ‘‘determined and purposeful fashion’’. Sergeant Jackson observed quick movement from people, in the vicinity of the command post, going for cover. There was, he said, concern but not panic. He was 10 to 12 feet from John Carthy, still on Farrell’s side of the gateway, and about three feet out from the wall. John Carthy gained some ground and Sergeant Jackson moved with him, attempting to maintain his position on the road, calling on him to drop his weapon. At that stage he was aware that Garda McCabe, who was slightly to the rear, to his right, also moved with him as they walked up the hill in the Abbeylara direction.

The shotgun was, at this stage, pointed slightly diagonally across the road at the people at the command post.

Sergeant Jackson feared and believed that John Carthy was in the ‘‘final act of firing the shotgun’’. He was aware that people on the road were moving for cover. He was also aware of the capabilities of the shotgun and of the damage that a round of shot could do. The shotgun, he said, is an indiscriminate weapon. The people moving for cover ‘‘obviously perceived the same danger I did’’. He felt that he had no option but to discharge his weapon at John Carthy.

‘‘I followed John up the road as he was advancing on the command post. I knowI called on him once, maybe twice, but I know one last time to try and get him to drop the weapon because it was a critically dangerous stage at that point in time and John wasn’t responding to any of our exhortations to him to drop the weapon. So, because of the danger I perceived, John in my mind was going to fire his weapon at the people at the command post, I called on him to drop the weapon and he wasn’t responding. I felt I had no other option at that point in time other than to discharge a round from my firearm in order to prevent and stop John from killing or maiming one of the people at the command post. That is what was going through my mind at that point in time. I discharged a shot, Mr. Chairman, from my Sig pistol. I aimed at John’s higher left leg area of his body. As I’ve described, I discharged a shot to prevent John from killing or injuring one of the people at the command post. I aimed at this particular part of John’s body in an attempt to achieve that objective of stopping John killing or maiming one of the people at the command post. I aimed at this particular part of John’s body to try and minimise the risk to John’s life and minimise the harm done to John, while at the same time preventing him, or stopping him, from killing or maiming one of the people he had his gun pointed at, Mr. Chairman.’’

The bullet struck the subject in the left leg. He knew this because he could see a ‘‘slight flicker’’ in the material of the jeans. The shot did not, however, have the effect of stopping him. He continued to move in a similar, determined and ‘‘purposeful’’ fashion, according to the evidence of the witness, advancing on people at the command post. John Carthy maintained his position, two to three feet out from the grass margin on the far side of the road, and he did not cross diagonally towards people at the command post. According to Sergeant Jackson the route he was taking was potentially more dangerous than if he had walked directly at the command vehicle. It offered him a greater view of individuals there because the angle was closing. The threat Sergeant Jackson perceived was immediate and ‘‘the further Mr. Carthy walked up on that side of the road the more people that were exposed to the barrel of his gun’’.

John Carthy was still being called upon to drop his weapon. Sergeant Jackson felt that he had no option but to discharge his weapon for a second time.

‘‘As I have described, I had fired a shot, the same situation prevailed; John was advancing on the right-hand side of the road, he had the gun in a firing position pointed at the people at the command post, his right arm was in the trigger area, as I described before, his left arm was under the barrel and from John’s movements, he appeared determined, as I have described previously, to use

the weapon. I came to the conclusion at that stage, Mr. Chairman, thatI had no option other than to discharge another round at Mr. Carthy because of the danger he posed to the people at the command vehicle. I decided to fire a second round at Mr. Carthy, to aim it in a similar area as I fired my first shot. I decided to fire that second round because I believed John was about to fire his weapon.’’

While remaining in the conventional shooting position, Sergeant Jackson fired at the same, higher left leg area. He was approximately 25 feet away from John Carthy when he discharged that round. Sergeant Jackson thought that the subject took one, ‘‘possibly two’’, paces between these two shots. There was no change ‘‘in the status of the weapon or indeed in Mr. Carthy’s demeanour from the time I fired my first and second shot’’. The gun was maintained in the same direction. He did not see that shot strike the victim.

‘‘The possibility thatI had missed him obviously entered my mind, so I just didn’t know whether I had hit him or not. There was no change in Mr. Carthy’s demeanour at that stage, he was still advancing towards — up the road on that side of the road, as I have described, up the hill and still maintaining his position of pointing the firearm at the individuals at the command post. . ..’’

Sergeant Jackson felt that the same immediate threat posed by John Carthy was maintained after he had discharged the second shot. He took a decision to fire again — which he was about to do when he heard a shot coming from his right-hand side. He assumed Garda McCabe had fired that shot. Of this third shot, he stated:

‘‘I heard the shot, Mr. Chairman. I didn’t see it hit, it didn’t have an effect on Mr. Carthy whatsoever. Mr. Carthy continued after the third shot, he continued to advance in the fashion as I have outlined to you. The weapon was still in the same position pointed at the individual at the command post and John was still advancing up the hill at that particular stage after the third shot was fired’’.

The same situation prevailed after the third shot. The witness continued to believe that there was an immediate threat to the people at the command post. He felt that he would have to discharge his weapon once more. He was now about 30 to 35 feet away from John Carthy. Having decided to discharge his weapon, he heard another shot, again from his right.

When the fourth shot rang out, he observed that the subject appeared to swivel, by turning towards the wall of the Carthy house, and then immediately fell on his back. He did not see any stumble, falling forward or crouching motion by the subject after the third shot, and before the fourth and fatal shot.

Sergeant Jackson stated that he did not discharge his weapon because of panic. He did not detect panic by the ERU members or local members. He was questioned as follows:

‘‘Q. Did you shoot at John Carthy by virtue of any panic that was then prevailing?

A. No, Chairman. I think, as I have described at length in my evidence, to some degree it was a relatively long period of time with which we had to react with Mr. Carthy. Certainly, it was only as a last option when Mr. Carthy became an immediate threat to the lives of people at the Command Post and I was left with no other option, after all the various processes of calling on him to put down the weapon, pleading with him, had failed that I discharged the weapon. So, on no other basis did I discharge my weapon.’’

Could it be that John Carthy had no intention of discharging his weapon, given the fact that he did not do so after having been shot at and struck? Sergeant Jackson did not believe this to be the case.

‘‘Mr. Chairman, I firmly believe that but for our action, Mr. Carthy would have fired the weapon. I am not saying that in any subjective way, I am basing it and trying to be as objective as I can. I know I am one of the individuals involved in the incident, butI thinkI have outlined the pattern of behaviour. . .it is those factors that were taken into consideration, that the only action which I believe Mr. Carthy was about to take was to fire the weapon, and that the only thing that prevented him from doing it was action taken by myself and Detective Garda McCabe. That is whatI believe, Mr. Chairman.’’

Detective Garda Aidan McCabe

Garda McCabe was behind the wall at the negotiation position when he heard that the subject was out of the house. He stood up and cocked his Uzi sub-machine gun, selecting the repetition mode which discharges one shot per action. He observed him walking along the gable wall from the corner, moving in the direction of the gable window and carrying the shotgun which was broken open. The butt of the gun was underneath his right arm and he had his hand in the trigger area. His left hand was underneath the barrel and he was walking ‘‘quite fast’’ at that stage. After walking along the remainder of the gable, he came to the driveway. As he passed the kitchen window, Garda McCabe called upon him to put his gun down, but got no response. John Carthy then paused at the driveway and looked around, though the witness did not feel that he was specifically looking at him. The subject then proceeded down the driveway.

He considered that the emergence of John Carthy with the broken open shotgun constituted an uncontrolled exit. He was a threat, though not an immediate threat. In view of the fact that the gun was broken, the witness was hopeful that maybe he was ‘‘giving up’’.

Garda McCabe lost sight of John Carthy momentarily when he passed by the pillar of the gate, which obstructed his view somewhat. Other than that, he had a clear view of him at all times. As he emerged through the gateway Garda McCabe could see that the shotgun was now closed, though he did not see him closing it. With the closing of the weapon, the witness considered that the level of threat had increased.

After the subject had gone through the gateway, Garda McCabe once again called upon him to drop his gun, saying ‘‘armed gardaı´, put the gun down’’. He could hear Sergeant Jackson also call on him: ‘‘John, John, put the gun down’’. While on the roadway and approximately 10 to 12 feet away from the three ERU gardaı´ there, the subject momentarily paused and looked in their direction. It did not appear to Garda McCabe that he was looking or staring at any one of them, though he thought that he ‘‘was possibly looking at me... we would be the first thing that he would see and that is whatI imagine he saw’’. When John Carthy was about a ‘‘step or two’’ away from the centre of the roadway, he looked in their direction, opened the shotgun, and withdrew the cartridge from the right-hand barrel and threw it away to the witness’s right. He knew that it was a live cartridge. He saw the brass of the cartridge in the left-hand chamber of the shotgun. The subject then closed the gun, walked towards the other side of the roadway and began walking up the road towards Abbeylara.

Garda McCabe had his weapon at his shoulder in the ready position and pointed at John Carthy. While fearful that the subject would turn the shotgun in their direction, it was, at that stage, pointed towards the field opposite the house.

Garda McCabe moved a few paces from the wall and in the Abbeylara direction. He again called on John Carthy, saying, ‘‘armed gardaı´ put the gun down’’. He had, he said, no doubt that the subject could hear him, but he got no response. John Carthy then turned and commenced walking up the hill. Garda McCabe had his weapon trained on him. Sergeant Jackson and he continued to call on the subject to put the gun down. He was now standing behind John Carthy and to one side of him. He began moving after him, and the distance between them increased. He could not see his face but he saw him holding the gun with the butt under his right arm and the top end of the butt under ‘‘his oxter’’. His left hand was under the barrel of the gun and it was pointed at, or in the direction of, people at the command vehicle. He could see people running and moving in different directions, seeking cover. John Carthy moved approximately 10 paces on the right-hand side of the roadway, close to the grass margin. As he walked along the road he was equidistant from the margin. He walked along ‘‘quite purposefully’’ — by which the witness meant the manner in which the gun was being held and the manner in which it was pointed at people. He described the position in which it was held as menacing.

Garda McCabe did not at any stage observe Sergeant Russell standing on the Carthy boundary wall. He did not walk up the roadway directly behind John Carthy but was behind and to the subject’s left, approximately five to six feet from the margin, at the gate opposite the Carthy dwelling. It was at that stage that he saw people ‘‘running in different directions’’ scattering on the road ahead. The subject, stated Garda McCabe, was pointing his gun in the direction of the people at the command vehicle. The gun was not aimed from the shoulder, but it could be fired from that position. He did not see the gun tracking any particular individuals. John Carthy was now getting closer to the people at the command vehicle and Garda McCabe believed that he was about to pull the trigger and possibly kill or injure some of those people. He decided that in order to achieve his ‘‘legal objective’’ in saving the lives of those

officers that he should prepare to discharge his own weapon. He believed that all other means of stopping the subject had been exhausted. He was about to discharge his weapon when he heard a shot coming from his left-hand side. He could see the movement or ‘‘flicker’’ of material on the left thigh of John Carthy’s jeans and therefore ‘‘saw’’ the shot hit his left thigh. He was not aware, however, that this was where Sergeant Jackson had aimed. From the time he closed the shotgun and turned in the direction of Abbeylara before the first shot was discharged, the subject had walked approximately ten paces on the right-hand side of the road, close to the grass margin.

John Carthy continued to walk a number of steps. The shot did not seem to have any effect. The subject may have taken three, four or five steps — though in later evidence he stated that this may have been two or three paces. He stated that he wasn’t counting the number of steps and he also accepted that other witnesses gave varying accounts of the number of steps taken. He decided that he was going to discharge a shot in order to save the lives of ‘‘those gardaı´ that were at the command post’’. As he prepared to discharge his weapon, he heard a second shot being discharged from his left. He could not see, nor was he aware whether the second shot impacted on the subject. He saw no reaction to this shot. He stated that the subject continued walking in the manner described with the gun pointed at the people at the command post. He believed that he was about to discharge his weapon and kill or seriously injure those people. The witness took an ‘‘aimed shot’’ through the sights of the weapon and discharged it at the lower torso area.

On firing the shot, he thought that he had hit John Carthy’s torso but when he lowered the sight line of the gun, to look over the top of the weapon to see the effect of the discharge of the shot, he saw no reaction to it. This surprised him. He thought he may have missed.

The subject continued to walk and had the gun pointed at the people at the command post. His upper body position may have moved slightly more forward, but he ascribed that to the fact that the subject was walking up the hill further away from him. He continued to fear for people at the command vehicle.

‘‘I believed that John Carthy only had to pull the trigger on the shotgun and because the shotgun was pointed at the members at the command post, I felt that in order to save their lives and achieve my legal objective of preventing John Carthy killing those people, a shot had been fired at his leg, another shot had been fired, I had discharged a shot, the danger was still, the imminent danger was still whatI had described previously.’’

The shotgun was still pointed at the people at the command vehicle and Garda McCabe believed that they continued to be in imminent danger. He believed that he had a duty to save the lives of those people and therefore discharged his weapon for the second time. He took ‘‘the same sight line’’ but, on this occasion, aimed the shot higher in the general area of the lower torso.

Before he discharged his weapon for the second time, he did not notice any movement or difference in the angle of the subject’s upper body or any falling action on his part, apart from the fact that his body was slightly more forward, as he was walking up the hill. He ‘‘certainly was not stooping or crouching’’. Further, he was looking from behind, not from the side. He did not count the number of steps taken by John Carthy between the two shots. He disagreed with counsel for the Carthy family that the subject was falling over when the fourth shot was discharged and further disagreed with counsel who suggested that ‘‘tragically the decision was unnecessarily taken to discharge that fourth shot’’.

He then saw John Carthy fall to his right, went to him and moved the shotgun away from his body.

Detective Garda Michael Sullivan

Shortly after 5:20 p.m. Garda Sullivan went to the police car on the road outside Walsh’s house and had a discussion with the occupants, Dr. Shanley, Thomas Walsh, Marie Carthy and Martin Shelly. He returned to the negotiation point to Sergeant Jackson, who requested him to bring Dr. Shanley to the scene. At approximately 5:40 p.m. he commenced making his way back up to the car, having passed the command vehicle on the road near Burke’s house, when he heard shouts of ‘‘he’s out, he’s out’’ over his radio. He drew his pistol and headed back towards the Carthy house and got into a position on the roadway near the hedge that divides Burke’s and Carthy’s, in the vicinity of the ESB pole. He heard a number of his colleagues call on John Carthy to drop his gun. He saw him coming down the driveway. The gun was in his hand and was broken open and when he saw this he took a number of steps backwards and turned. He was concerned for his own safety and that of the people on the road, some of whom were uniformed gardaı´ ‘‘who were gathered’’ in that area. He shouted at everyone to ‘‘get back and get into cover’’. As he turned around he noticed that there appeared to be some slight hesitation among the gardaı´ and people may have been ‘‘initially making their way towards the scene’’. However, he disagreed with counsel for the family’s description of the scene as being one of chaos.

When he turned back he could see John Carthy emerging on the roadway. Three members of the ERU, who were behind him, spread out on the road. He noticed that the gun was now closed. He did not see the discarding of a cartridge or the closing of the weapon. However, when he was a ‘‘couple of feet’’ from the grass margin on the far side of the road, he saw him turn. The barrels of the gun were now facing in his direction. He did not make eye contact with John Carthy, and therefore he could not say if the barrels were pointed at him; but they were in his direction. The subject’s left hand was under the barrel and the butt of the gun was ‘‘up near his shoulder’’, but under the shoulder area. His right hand was in the trigger area. The moment he turned in his direction, Garda Sullivan felt that he was in danger: ‘‘having regard to what I had seen John doing earlier. . .his dexterity and what I perceived to be his willingness to shoot’’. He could see some of his colleagues behind the subject. He considered that if he were to confront him from where he was and were to open fire, the possibility of a ‘‘stray bullet hitting my colleagues was in my

mind’’; because of their proximity ‘‘there could be a crossfire situation’’. Considering that his colleagues had the situation under control, and fearing for his own safety, he immediately jumped over Burke’s boundary wall and into Burke’s garden. He heard his colleagues shout at John Carthy to drop his weapon, stating they were ‘‘armed gardaı´’’. He then lost sight of the subject. He did not see anything further until the shooting had ceased. It happened ‘‘pretty quickly’’. He was unaware of the position of his colleagues who had been around the house, and while he could hear movement, his attention had been focused on the subject. He found it difficult to recall how many shots he heard, though he thought he heard ‘‘three or four’’. The first shot may have been discharged as he was jumping the wall, the other three afterwards, but he was unsure of this. They all seemed evenly spaced, with a small break between each. He peered over the wall and saw John Carthy lying on the road. He approached him. He saw the gun being moved away by one of his colleagues. John Carthy was lying on his right side. He was then rolled onto his back. Garda Sullivan, a trained first aider, administered first aid, in the form of cardiac massage, but to no avail. Garda Flaherty gave mouth-to-mouth resuscitation, again to no avail.

2. The evidence of non-ERU members concerning the exit of John Carthy from his home.

At the time of the exit of John Carthy from his home, apart from and in addition to the members of the ERU, there were a number of plain-clothes and uniformed members of the Garda Sı´ocha´na present on the roadway at the ESB pole at the Carthy/Burke boundary or nearby in the vicinity of the command vehicle. Some were armed and a number were unarmed uniformed officers. The armed members included Detective Sergeant Aidan Foley and Garda Eugene Boland, whose evidence is referred to hereunder.

There were two armed officers on the road at the Ballywillin, or Cavan, side near Farrell’s house: Detective Garda Joseph Faughnan and Detective Garda Shane Nolan. There were also a number of officers in the vicinity of Burke’s and Walsh’s houses. These were Garda Christy Connolly, Garda Frank Bohan, both armed; and Garda Maeve Gorman and Garda Colin White who were unarmed.

A number of senior officers were also present, primarily on the roadway at the Abbeylara side of the Carthy house and beyond the command vehicle. These included Superintendent Joseph Shelly, Inspector Martin Maguire and Chief Superintendent Patrick Tansey. Other gardaı´ who were present included Garda Michael Carthy, Garda Gerard Newton, Garda Eugene Waters, Garda P.J. Diffley, Garda Thomas Farrell and Garda Frank Reynolds.

It is to be noted that during the course of his evidence to the Tribunal, Garda Sisk stated that some of the uniformed members, who were on the road beyond the command vehicle, actually came down towards the area as they ‘‘had heard commotion’’. The impression that he formed was that some of these people were coming down to see what was happening. The evidence of Garda Sullivan already

considered would tend to support this assessment. According to Garda Sisk they began to run for their lives. A number of them ran in the direction of Burke’s. The evidence of these officers, particularly those who were unarmed, concerning the events which occurred when John Carthy emerged from his house lends substance to Garda Sisk’s observations.

Detective Sergeant Aidan Foley

Sergeant Foley, Athlone, was at the ESB pole approximately 25 feet forward from the location of the command vehicle on the Carthy side. Some time prior to the emergence of John Carthy, he had heard him shouting ‘‘Why? Why? Why?’’ He formed the opinion that he was becoming more agitated. At 5:46 p.m. he was speaking to Sergeant Alan Murray in connection with reliefs. Garda Boland was standing beside him while Garda Quinn was seated in the command vehicle. ‘‘An ERU man’’ (presumably a reference to Garda Sullivan) walked by him, while he was speaking to Sergeant Murray, and headed towards the negotiation post. Sergeant Foley then heard a shout to the effect of ‘‘get back, take cover’’. His attention was immediately drawn to the Carthy household. He saw Mr. Carthy coming out his gateway between the two pillars. Members of the ERU were also on the roadway at that stage. He saw an ERU member coming across the garden from the new house. As he looked down the road, past members of the ERU who were on the road, he could see Garda Nolan and Garda Faughnan, both of whom were armed. The ERU members were now situated between him and those gardaı´.

Sergeant Foley moved backwards and sideways at a brisk pace, but he said, not running, from the ESB pole to the command vehicle, a distance of some 25 feet. He kept John Carthy under observation while he was doing this. When he observed him exiting through the gateway, he drew his firearm. He proceeded down by the side of the jeep. Garda Boland was to his right and moved back with him. He had ‘‘a full view down the road’’ before he took up position behind the jeep. He was aware of other ERU members coming across the grass towards the front boundary wall. He was also conscious of other persons behind him moving away from the vicinity of the command post. Sergeant Foley and Sergeant Murray, who was unarmed and in uniform, had been standing at the ESB pole beside the wall and Sergeant Murray ‘‘just hopped over the wall’’ of Burke’s house.

Sergeant Foley could not recollect seeing John Carthy stop when he opened the gun. He saw the cartridge enter the ditch. When John Carthy got to the far side of the road, he closed the gun and he then ‘‘veered in my direction’’. He was holding the gun waist-high. His left hand was on the barrel and his right hand was on the trigger mechanism and he appeared to be walking within a step of the grass verge. John Carthy veered and turned and faced in his direction causing him to move further in behind the jeep. He appeared to be coming straight up the hill walking at what Sergeant Foley described as ‘‘a normal pace’’. There was nothing in his walk which he observed to be strange. Members of the ERU continued to call on him to leave down his gun saying that they were ‘‘armed gardaı´’’. When he started coming up the hill he was followed by members of the ERU. When the subject turned in his direction, he, Sergeant Foley stated that he was ‘‘solely focused on John Carthy’’.

Sergeant Foley was now at the back of the vehicle on the outer side, and when the subject ‘‘was coming towards’’ him with ‘‘the gun pointed’’ at him, he moved in and told Garda Boland to move in. Garda Boland had to move in to make room for him. The two of them were now behind the jeep and, according to Sergeant Foley, they had ‘‘cover from the jeep’’. The witness could see John Carthy’s face:

‘‘He was an unusual yellow colour. That is the only wayI can describe his face, and he was fixated.... He had a stare, a dead stare, Mr. Chairman’’.

It was his opinion at that time that John Carthy was staring in his direction, but not necessarily directly at him. Whilst he had taken cover behind the vehicle, he could see John Carthy and the latter could see him. He was crouched behind the jeep but out to one side, ‘‘peeping out’’, and had John Carthy under surveillance. He continued to walk up the roadway. ERU personnel were still calling on him to drop the gun but without any reaction.

John Carthy appeared to be quite close, a number of yards away. Sergeant Foley stated: ‘‘I felt I was going to be shot, Mr. Chairman, that was my belief’’.

After he had asked Garda Boland to ‘‘move over and to take cover’’, when John Carthy proceeded to walk towards them Sergeant Foley decided that he would have to discharge his weapon. He said to Garda Boland ‘‘move in Eugene, we are going to have to do it’’. This was, he said, to make Garda Boland aware of his intention that he intended to discharge his firearm. He clarified that there was a slight pause between the comment ‘‘move in Eugene’’ (which took place when John Carthy turned towards him) and ‘‘we are going to have to do it’’ (which took place when the subject commenced walking towards him).

Questioned on his belief that he was going to be shot, in view of the fact that John Carthy had passed other armed gardaı´and paid no attention to them, Sergeant Foley stated that ‘‘what was going through my mind was the fact that John Carthy was walking towards me with whatI believed to be an armed gun’’.

‘‘Q. Have you any idea why he would select you to shoot at and not the other officers that he had passed by.

A. I didn’t give that thought at that stage.’’

He believed he was in immediate danger. At this time he was, he stated, concerned for his own life and those of his colleagues. His gun was aimed at John Carthy, he had his finger on the trigger and there was no further action for him to take other than to pull the trigger.

Sergeant Foley disagreed with counsel for the Carthy family’s description of events as dramatic, but rather described them as being tense. He agreed with his own counsel that the implication of his remark to his colleague Garda Boland was that he might have to take some action himself. He confirmed that his remark was to make him, Garda Boland, aware of what he was thinking namely, that he was going to have to shoot the subject. His assessment was that he would have to shoot him to

disable him. He had, he said, observed John Carthy firing shots at gardaı´. He was now on the roadway, a short distance away, with a loaded firearm pointed in his direction and walking towards him. He felt his life was in danger. He felt he was going to be shot by the subject and there was no other action open to him. It was not an option for him to do as Sergeant Murray had done, to avoid the danger by ‘‘sprinting and jumping, vaulting the wall and lying down behind the wall’’. When John Carthy came out on the roadway, Sergeant Foley stated, he posed a danger and it was his duty to observe him, to ‘‘cover John Carthy’’. That was the ‘‘job’’ he was given by Superintendent Shelly, to ‘‘provide back-up’’. Had the subject passed him by without being disabled, people behind, including Dr. Shanley, Marie Carthy and Thomas Walsh would have been in immediate danger. He was aware that they were waiting in a car located further up the road.

He was within a ‘‘split second’’ of discharging his weapon when he heard a shot, followed by two or possibly three shots. When he heard the first shot he could not see any reaction from John Carthy. Following the last one, John Carthy fell to the ground.

A specific written query was put to Sergeant Foley by the Tribunal as to whether the remark ‘‘we will have to do it ourselves’’ was intended as a criticism of the ERU, and, if so, to clarify the nature of that criticism. In answer to the Tribunal he stated that his remark was not intended as a criticism. In his original statement to the Tribunal, Sergeant Foley stated that he was ‘‘concerned as to when the ERU unit would respond’’. He was asked to explain what he meant by this statement, to which he replied:

‘‘What I meant by that, Mr. Chairman, that it was the ER U’s responsibility to deal with John Carthy. At that stage, John Carthy was approaching me with a firearm pointed in my direction andI feared for my life, Mr. Chairman’’.

When asked whether he was worried that the ERU unit was not going to respond, he stated that he was ‘‘just concerned’’ as to when they would respond.

The thought had come into his mind that the response of the ERU unit might be too late, insofar as he was concerned. Sergeant Foley confirmed in evidence that he did not at any stage during the course of the incident at Abbeylara discharge his firearm. Furthermore, he confirmed that no local officer discharged his firearm after John Carthy left his house on 20^th April.

Garda Eugene Boland

Garda Boland, Athlone, armed with an Uzi sub-machine gun, was located at the ESB pole, in the company of Sergeant Foley. He became aware that efforts were being made to bring Dr. Shanley and Ms Carthy to the scene. He observed a concrete block being shot off the wall shortly after 5:00 p.m. He noticed that John Carthy became more agitated in the minutes that followed. He could hear shouts coming from the house. He heard the sound of breaking glass. He also heard furniture being moved and the only words which he could discern were ‘‘Why? Why? Why?’’, which

were said by John Carthy in a loud voice. He could see the barrel of the shotgun protruding through the window, causing the negotiator to duck down.

Whilst at the ESB pole, at approximately 5:45 p.m., he saw a member of the ERU coming back down to the scene from the Abbeylara direction. He then heard him say ‘‘get back, get back’’. He saw John Carthy emerging from the gable-end of the house, walking ‘‘normally’’ along by the gable-end window and carrying a firearm, though he could not state whether it was opened or closed.

On hearing the warning to get back, he retreated, walking backwards, to the command vehicle, at which stage the subject was somewhere in the driveway of the house. He observed:

‘‘I was walking backwards and when I reached the back of the jeep, I turned around and saw a big rush of members going up the road running for their lives’’.

He saw an officer, Sergeant Murray, jumping over the wall and others going back up the road at pace. He did not, however, see any armed people running on the road. He stated that he did not observe panic. There was no panic at the command post at any stage during the incident, he said.

Garda Boland did not have the subject under full observation for the entire period. He thought that he appeared to be walking ‘‘just above normal pace’’. Having taken cover behind the jeep he next observed the subject exiting through the gateway; and when in the vicinity of the gate he closed the shotgun. John Carthy then walked across the road and because he was behind the jeep, Garda Boland momentarily lost sight of him. Sergeant Foley and Garda Quinn were behind the jeep at that time, with him; Sergeant Foley to his left, Garda Quinn to his right. He looked around the left-hand corner of the rear of the vehicle and he could see John Carthy. Sergeant Foley was slightly to his left at that stage, having moved a small bit further out. Garda Boland thought that Sergeant Foley was there, slightly beyond the cover of the jeep.

Garda Boland next observed John Carthy when he turned left and started walking up the hill ‘‘walking in my position’’ with his gun carried waist-high. He stated in evidence that ‘‘I saw that it was pointed in my direction’’, that is, in the direction of ‘‘myself and Detective Sergeant Foley’’. His focus was now on the subject:

‘‘He had his right hand on the trigger section of the gun with his left arm under the barrel. Mr. Chairman, this gun was pointed in my direction. I noticed a fixed stare on Mr. Carthy’s face and also I remember his face was a yellow colour’’.

When questioned on the meaning of a fixed stare, he stated: ‘‘I took it that he was looking in my direction’’. Counsel for the Carthy family put it to Garda Boland that at all times John Carthy was heading towards Abbeylara rather than heading towards the vehicle behind which they say they were taking cover. Garda Boland disagreed; he stated that John Carthy was ‘‘heading towards me’’. He was asked:

‘‘Q. Isn’t that because in taking a view of him, yourself and your colleague, Sergeant Foley, you both stepped out from the cover of the vehicle where you had initially taken cover?

A. I would not agree with that Mr. Chairman, no’’.

He disagreed with the suggestion that he and non-uniformed armed members of the gardaı´ stepped out from behind the command vehicle and confronted John Carthy. It was put to him that this was done in circumstances where he had neither announced himself to John Carthy, nor warned him that he was armed, nor invited him to put the gun down. In response, Garda Boland stated that he had heard members of the ERU on numerous occasions saying to John Carthy ‘‘armed gardaı´, lay down your weapon’’. He agreed that he did not ‘‘announce his status to John Carthy’’ and that neither he nor Sergeant Foley addressed John Carthy at all, or at any time. He denied he ‘‘confronted’’ the subject.

As the subject got closer, he stated: ‘‘I was waiting for something to happen’’, which he later clarified as his hope that John Carthy would put down the firearm. Then ‘‘I thought thatI would have to be the one to shoot him’’. He continued:

‘‘John Carthy was walking towards me with a shotgun held waist-high pointed in my direction. I genuinely feared for my own life. I had watched John Carthy during this incident and I had seen him discharge shots at gardaı´. I had seen him shoot the loudhailer off the wall. I had seen him knock a concrete block off the wall, Mr. Chairman. This man was now facing me with a firearm pointed in my direction. I genuinely feared for my own life and that of my colleagues, especially Detective Sergeant Aidan Foley’’.

He agreed with the Chairman that John Carthy had paid no attention to members of the ERU when he came out on the roadway.

When at the back of and to the side of the jeep Sergeant Foley said to him: ‘‘ ‘move in Eugene, we are going to have to do it ourselves’, or words to that effect’’. The tone used by Sergeant Foley was one of concern, an ‘‘urgent’’ tone. He took it that Sergeant Foley was referring to the fact they would have to shoot John Carthy themselves. At that stage Sergeant Foley had moved in somewhat to the right. He was in a crouched position. Garda Boland feared for his life and that of Sergeant Foley but, he said, was not concerned that no action had been taken up to that point by the ERU. He denied that he had lost confidence in the ERU’s ability to deal with the threat posed at that stage by John Carthy. He feared for the uniformed members of the gardaı´ further up the road.

At this time, members of the ERU appeared to have been to John Carthy’s right according to Garda Boland. He did not see their exact position as he was concentrating solely on the subject. He heard them shouting to him ‘‘armed gardaı´, lay down your weapon — down your gun’’ or words to that effect. He put his hand on the cocking mechanism of the Uzi sub-machine gun but did not release the safety catch. His gun was not prepared for firing and he did not raise it to his shoulder. He did not discharge his weapon. He agreed that what he had described to the Tribunal

was a mental state of consideration as to how grave the situation was but that he had not yet got to the point of making a deliberate decision to discharge his weapon.

3. Other local officers (armed and unarmed)

Seventeen local officers (6 armed and 11 unarmed, including 10 in uniform) who were at the scene on and about the road in the vicinity of the command vehicle; also near the Carthy entrance on the Farrell side and in the curtilege of the Burke and Walsh properties, gave evidence about what they saw and heard when John Carthy vacated his house and walked in the direction of the command jeep. In the main, their testimony broadly accords with the evidence already described in this chapter. When the subject emerged onto the road they took cover or ran away from the scene. Most stated that they were put in fear by his conduct. All of the armed local officers denied having fired their weapons at the scene and the only shots which any witness heard appear to have been those fired by Sergeant Jackson and Garda McCabe. There is no evidence that any other ERU officer fired his weapon.

4. Senior officers at the scene

A number of senior officers, Chief Superintendent Tansey, Superintendent Shelly and Inspector Maguire were on or about the road on the Abbeylara side of the command vehicle. Their evidence is summarised as follows:

Superintendent Shelly

Superintendent Shelly had been in the area with Dr. Shanley. Garda Sullivan had gone down to arrange to have Dr. Shanley brought to the negotiation point. As he was coming back, events unfolded. Superintendent Shelly was standing on the road near the entrance to Burke’s house on the Abbeylara side of the command vehicle waiting for Garda Sullivan to come back from the negotiation point. He saw ‘‘some commotion and people moving about down at the — around the area of the front of Carthy’s house’’. He saw John Carthy cross the road. ‘‘Unconsciously’’, he took a step or two forward. He then realized that the subject was armed and he turned to take cover. He did not see John Carthy take the cartridge out. He observed him in a somewhat stooped position, walking up in his general direction. He turned to take cover. Chief Superintendent Tansey who was with him did likewise. It all happened very quickly. He did not have time to take cover behind Burke’s wall. He got to the area of the pillar. He then heard a number of shots followed by silence. He could see gardaı´ moving towards an area at the ditch. He knew then that John Carthy had been wounded. He went down the road and saw ERU personnel rendering assistance. Superintendent Shelly heard ‘‘a number of shots being fired. I can’t put a definite figure on it’’.

Chief Superintendent Tansey

Chief Superintendent Tansey was at the gate of Walsh’s house, when he heard shouts directed at John Carthy to drop the gun. He noticed that people in the area of the ESB pole were ‘‘coming back, scattering back with a great sense of urgency’’, and

thought that they were coming from the ESB pole to take cover behind the jeep. According to Chief Superintendent Tansey, there was a great sense of urgency and also a sense of fear. He became alarmed for his own safety and felt that his own life might be in danger. He went into the gateway of Walsh’s house and took cover behind the hedge. He did not see John Carthy. He heard a number of shots but could not give precise details. He thought that there were a number of seconds between the shots.

Inspector Maguire

Inspector Maguire was walking down towards the scene when he heard ERU members shouting at John Carthy. Examined as to whether there was any degree of panic or surprise demonstrated by the shouting he said:

‘‘... the shouting was in a very loud controlled voice, they were shouting at John, they weren’t shouting in an uncontrolled or panicky voice, it was controlled and measured and they were actually emphasising the words for John’’.

He was in the middle of the road by the entrance to Burke’s house and could see that the men at the negotiation point were now in a different mode, no longer crouched along the wall and that they were extremely alert. He saw John Carthy walking past the kitchen window at the gable-end of the house and he could see the gun broken open. He then made his way to the back of the command vehicle for cover so as not to make himself a ‘‘presentable target’’. He took one more fleeting glance from behind the command vehicle and could see that the subject had moved out onto the road. The ERU were fanning out behind him. At that stage the witness ran up along the gravel by the wall to the entrance of Burke’s house and ‘‘flung myself into the entrance of Burke’s’’, as close as possible to the pier, hugging the wall. He then heard shots. He heard four shots being fired. The shots were not in quick succession; they were distinguishable sounds.

5. Civilians in the police car at Walsh’s House

There were four civilians in a car on the road at Walsh’s house when John Carthy emerged. They were his sister, Ms Marie Carthy, his psychiatrist Dr. David Shanley, his cousin Mr. Thomas Walsh, and his friend Mr. Martin Shelly. The following is a synopsis of their evidence.

Dr. David Shanley

Dr. Shanley was sitting in the front seat of the car when John Carthy emerged from his house. He saw people running and then heard shots. These were very rapid — within seconds. He did not see John Carthy walking on the roadway. His view was obscured by the command vehicle and by police personnel on the road.

Ms Marie Carthy

Ms Carthy was also in the car, sitting on the back seat:

‘‘Then there were a load of shots, they were in very quick succession, straight after each other and just all the gardaı´ started running and getting out of the way because there were a lot of unarmed gardaı´ there. . .’’.

Mr. Martin Shelly

Mr. Shelly stated that from his position in the middle of the car outside Walsh’s house he was able to look down through the back window of the command jeep. He could see people running and he could see John Carthy’s legs. He saw him coming out but he couldn’t see him after that. He then heard a body of shots; about four or five shots.

Mr. Thomas Walsh

On noticing a lot of commotion Mr. Walsh jumped from the car and told Martin Shelly, to keep Ms Carthy in the car. ‘‘I heard whatI thought were two shots butI could be wrong.’’ He ran towards Carthy’s house. His attention was focused on the right-hand side of the road because a lot of people were running towards that wall and one person jumped over it. He saw John Carthy falling to the ground.

SECTION C: — Relevant Training

Preparation for the taking of fundamental decisions, including the discharging of weapons, is grounded in both experience and training. At Abbeylara, there was very little experience, and none of a similar incident involving a mentally ill man who emerged armed from a stronghold. The training and instruction received by officers is, therefore, of major importance.

1. Legal obligations

The use of a firearm by a garda officer in course of duty is regulated by Chapter 25.42 (4)of the Garda Code, which is in the following terms:

‘‘In order that the discharge of firearms may be justified in any particular case, it must be shown that the intention of the member firing was to achieve a legal purpose and that all other means of achieving this purpose had been exhausted before firing’’.

The law requires the armed officer to assess the risk presented by the subject; to decide whether his or her own life or safety or that of another person or persons is endangered thereby; whether all other available means of lawfully achieving that purpose have been exhausted before firing and that the officer, in the interest of saving life, has no other reasonable alternative but to use his or her firearm to remove the risk presented by the subject. The officer is obliged to assess the situation created by the subject and to decide whether in all the circumstances he or she has a justification, or obligation in law, to shoot him or her in order to protect himself, herself or another from the risk of death. The decision whether or not to use a firearm is that of the armed officer and no one else.

2. Where to fire — the central body mass

Ireland

In Ireland gardaı´ are trained to shoot at the central body mass.

Gardaı´ must achieve proficiency in the use of firearms before they are permitted to carry and use such weapons. The standard required of members of the ERU is higher than that of local armed officers. The scoring system used to assess the proficiency of a trainee in firearms consists of a target in the shape of an upper torso. Higher marks are awarded for shots closest to the centre of the torso. Members of the ERU must achieve an 80% mark; other gardaı´, 65%. Detective Superintendent Hogan stated in evidence:

‘‘The centre mass provides the most likely area where you will more or less disrupt or effectively stop any threat posed by a person by firing into that centre of mass. It is taught throughout firearms training in most of the countries I have visited that that is the generic form of training where you shoot at the central mass because you shoot for effect and you will achieve the most efficient effect from the shot by hitting that particular area and that is where you are trained to shoot at’’.

Gardai were not trained to discharge shots ‘‘at limbs’’ He said:

‘‘No, it is not taught, no.... You may practise, you may practise. As I have said to you, there may be situations where people are in cars and point a firearm at you or people during a hostage rescue scene where you have people blocking your view, that in those situations it would be only correct that officers, sent out to deal with those situations, would have some understanding that the availability of the target area, on the opponent posing the threat, may not always be in the very favourable silhouette that is presented here this afternoon for training’’.

Superintendent Hogan stated, by way of further explanation:

‘‘As a matter of understanding the complicated nature of this process, there is a study in England... in 1993... in relation to the discharge of shots by police in England, Scotland and Wales and out of the number of shots there fired in, say, the range of 10 to 15 metres away from the opponent. There were 10 shots fired in that particular study that was undertaken and out of them only one shot hit the target. So my point here is that it is very necessary for us to teach people to shoot at a place where they will more than likely hit the target, when you introduce the likes of threat, risk,... the officers’ safety, fear of being shot yourself’’.

Superintendent Hogan emphasised the necessity of ‘‘neutralising the threat’’:

‘‘. . . people are trained to shoot at the central mass. That is the most likely area where you will neutralise the threat, thereby maybe negating the necessity to fire a second round’’.

On further query as to whether this should be done in every circumstance, he replied:

‘‘Mr. Chairman, people are taught to fire at the central mass. The individual officer has to assess a justifiable circumstance that he is going to fire his or her gun and they must assess individually the particular situation but they are taught on the basis that if you are firing your gun, you shoot at the central mass’’.

International practice

The training in the UK, at the time of evidence to the Tribunal, was to shoot at the central body mass. Mr. Bailey, the firearms expert engaged by the Tribunal, stated:

‘‘The usual point of aim that an officer in the UK would be trained to take when confronted with an individual whom they believe is about to fire would be the head or the central part of the chest. This is because when shots are fired as a last resort there is a need to achieve immediate incapacitation which only comes from a shot that hits the central nervous system. It is my understanding that, in common with most democratic countries, this is the training in Ireland also’’.

The position is the same in New Zealand, and Victoria, Australia. Mr. Lanceley, the negotiation expert engaged by the Tribunal, noted that in the United States, once a decision has been made to shoot, an individual must be stopped with certainty. It is a life-changing event for all concerned: ‘‘there is no way to make that situation nice’’. It is always a ‘‘nasty situation’’. To his knowledge, no US law enforcement agency permits or trains officers to shoot to wound.

3. When to shoot, not shoot or withdraw — judgmental shooting

In addition to training where to shoot and the ability to shoot, in addition, training is intended to assist a member, in an operational capacity, about ‘‘when he should shoot. . .’’. In this regard, Superintendent Hogan outlined the concept of judgmental shooting, the assessment of whether to shoot or not, which forms part of the training of ERU officers:

‘‘Judgmental shooting is where you instruct the people who are going to be armed and placed out in the operational scene; is a question of basing their assessment of the threat presented to them in a particular situation .... It is a shoot, or no shoot, situation training .... You must base your judgment on whether the threat is sufficient enough that you are legally entitled to use lethal force and you are complying with the Garda code and regulations in relation to the use of firearms. So basically it is a shoot/no shoot instruction on that particular skill’’.

Judgmental shooting training is not confined to ‘‘shoot or no shoot’’ but also encompasses situations of whether, ‘‘I should withdraw from [the area] and not present a firearm at all’’. He noted that, as an instructor, one could not possibly envisage and lecture on all combinations and permutations that an officer might find himself in at a future date. For this reason there is both an ‘‘academic and operational’’ content to the training, with operational personnel being rotated onto

the training courses. It is part of the training that ‘‘each individual shot is assessed prior and after, before any further action is taken’’.

4. An individual decision — the role of the senior officer

Superintendent Hogan emphasised the fact that, in training, officers are taught that the decision to fire is an individual one and is based on the officer’s assessment of the situation. He was directly questioned on whether, in training or otherwise, one armed officer should seek advice from another as to whether to fire. He stated that individual officers ‘‘must take responsibility for the discharge of firearms on an individual basis’’. This, he said, was regardless of what his senior officer, who may be close by, might do. There was nothing in training, or in his experience, which would indicate or dictate that the senior officer has authority over how, where and when, the junior officer might shoot.

A senior officer cannot order a junior officer to discharge his weapon. In certain situations, he can order a junior officer to withdraw from the area. However, even if a senior officer perceived that it was not necessary to shoot a potentially fatal shot, he would not be entitled to instruct his junior officer, not to shoot at the torso.

Even if there were available ‘‘seconds’’ as opposed to ‘‘milliseconds’’ to make such a decision, it was still down to the individual officer making the assessment. Continual assessment of a threat is part of the firearms training process.

5. The actions of Detective Sergeant Jackson, in the context of training received, in shooting at John Carthy’s leg

In his evidence, Sergeant Jackson stated that he aimed at the subject’s leg and that the sole purpose of his action was:

‘‘to try and minimise the risk to John’s life and minimise the harm done to John, while at the same time preventing him, or stopping him, from killing or maiming one of the people he had his gun pointed at’’.

As already stated, the evidence adduced in relation to training, indicates that police officers are trained to aim at the central body mass. Sergeant Jackson was questioned about his actions in this regard.

He accepted that the actions he took were not, strictly speaking, in accordance with his training, but he had attempted to stop John Carthy and at the same time minimise whatever damage might be done. He informed the Tribunal:

‘‘Certainly, you take cognisance of your training; you take cognisance of your experience and obviously your own individual perception on the day. I think it is important to bear in mind there may be environmental factors that affect how your own training is implemented on the ground and, certainly, in An Garda Sı´ocha´na we are trained to use our own initiative to some degree. So accepting the point, the rigid training in relation to the use of firearms is the central mass, as we have discussed, would cause the best chance of immediate

incapacitation, and also offers the best option in relation to a target, notwithstanding that, in this particular situation, I think, I brought to bear my own training, as you have set out there.... My own experience in relation to police work generally, but also in relation to this specific incident, andI think bearing in mind my option was to use the weapon but to minimise the harm to Mr. Carthy, whilst at the same time achieving my objective. So number one, my objective was to prevent Mr. Carthy from discharging his weapon. I believe the best way to do that and, at the same time attempting to ensure that the risk to the subject was minimised, was to fire at his upper left leg area. Factored into that also was the fact that Mr. Carthy was actually moving at the time he was posing a threat, which was an additional aspect that may have helped me achieve the objective of stopping him. So there were various considerations. Primarily was the risk Mr. Carthy posed to other members, but also, I would have to concede that I certainly wanted to minimise whatever damage was done to Mr. Carthy. On that basis the action I took is strictly speaking not in accordance with training, but these are the peripheral issues in relation to training that may or may not be applied on the day in a particular action, Mr. Chairman’’.

His training, he said, did not prevent ‘‘individual initiative’’:

‘‘I suppose ‘rigid’ is probably a bad word, to those areas in relation to stopping a potential threat, butI think that does not stop an individual member of the gardaı´, if he is firing a weapon, to use his own individual initiative and to try and achieve the same objective. It is the ultimate objective of stopping the individual, at the same time taking cognisance of the risk to Mr. Carthy himself’’.

He stated:

‘‘I think, in the sense that it is the individual member who makes the decision to fire; it is the individual member who will be held accountable for firing his weapon. It is in that context, and certainly the training in relation to firearms is not to the extent where we aim for extremities or anything like that. I think that goes back to experiential learning in relation to firearms that in situations of high stress, there is a high miss rate.... But I suppose whatI am saying there is that there are other environmental issues that may impact on the member firing. If he feels he has a capability of neutralising the threat, whilst at the same time preventing or attempting to prevent serious injury to the individual that is what you are trying to achieve. Ultimately, I suppose, the raison d’etre for An Garda Sı´ocha´na is to save life where possible, andI don’t think the imposition rigidly of a particular regulation in relation to the use of firearms would supercede that, whilst it is not specifically in the training’’.

And further:

‘‘In my estimation at the time, Mr. Carthy was a moving target, with respect, so my assessment was ifI fired at his legs it would minimise the harm done to Mr. Carthy and at the same time would knock him to the ground and neutralise the threat without the need to seriously injure him’’.

Mr. Bailey considered the actions of Sergeant Jackson in discharging his weapon at John Carthy’s left leg. Armed police, he said, are usually taught to fire at the centre of the body mass presented to them. They aim for the biggest target area which increases the likelihood of them hitting what they are aiming at. Mr. Bailey felt that if Sergeant Jackson believed that a second shot to the leg would remove the threat posed, that he was right to try it. He observed, however, that it could be argued that having seen the first shot fail to remove what Sergeant Jackson believed was an immediate threat to life, then it would have been logical if he fired into the central nervous system in order to achieve instant incapacitation. He was not, however, critical of Sergeant Jackson’s actions in this regard.

6. The actions of Detective Garda McCabe in light of training received

Garda McCabe confirmed that his training was that he should aim at the central body mass. He stated that he discharged his weapon in accordance with his training. This, in common with the training of all officers, was based on an objective assessment of the threat. What might motivate a person in carrying out certain actions was not a factor in training. He was questioned about the fact that Sergeant Jackson did not discharge his weapon at the central body mass or torso, and the evidence of Sergeant Jackson’s explanation in this regard was put to him for his observations and comment. He was also questioned on whether his decision to fire at the torso area was influenced by Sergeant Jackson’s aiming at the leg of John Carthy. He stated that while he was aware that Sergeant Jackson struck John Carthy’s leg, he was not aware that that was where he aimed.

Where the entirety of the body is presented to him, it was his understanding of his training that, in order to achieve the objective of stopping the individual, he should shoot at the central body mass.

He did not consider shooting at the legs:

‘‘ . . . because of the fact that he had already been shot, two shots had been fired, one I had seen hitting him in the leg and that had not stopped John Carthy. So therefore the threat had increased butI felt that I had no choice but to fire at the central body mass. I didn’t reckon on firing at a limb’’.

He stated that the decision to fire is an individual decision, and that it was not part of his training or instruction to receive any guidance from any particular officer in a situation like this. His consideration was the perception of an immediate threat to life from John Carthy and that received ‘‘my greatest consideration and consequently governed my actions’’. That was his assessment of the situation.

In answer to the Chairman he stated that a shot to the leg could be fatal, though he also accepted that it was unlikely to be so. If he discharged his gun at the limb which was required to hold the weapon, he agreed that it might cause the limb to cease to function as a gun holding mechanism, but he felt that John Carthy would still possibly be in a position to discharge the firearm. It would only take a second to pull the trigger. However, the subject was moving, and he needed to have an ‘‘assured shot’’.

An arm or a limb is a smaller target and when it is moving the chances of missing are greater. It was suggested to him that one would not expect to miss at short range, but he stated that in a lot of scenarios in police shootings it is at short range that a lot of shots are missed. He restated that his training was to shoot at the torso, and that there was a high incidence of missing targets at close range.

Garda McCabe was questioned on why he considered that John Carthy might fire at someone in the vicinity of the command post, when he had not responded to the first three shots. He stated that it was because of the way he was holding the shotgun: ‘‘If he pulls the trigger then at that moment, even afterI fired the third shot, if he had pulled the trigger then, those gardaı´ could have been killed or seriously injured’’. It was hard, he said, to put into words how dangerous that situation was for those members who were there.

That was what he was ‘‘fathoming’’ into his thinking at that time. He was questioned on why John Carthy might be intent on doing injury to someone in the area of the command post and not, it seemed, to ERU officers who were nearer to him. He replied that while he could speculate on what John Carthy was thinking, he could only deal with the immediate threat to life as he saw it. His intention was to ‘‘stop’’ John Carthy from killing those persons at the command post.

7. The warning

Detective Sergeant Russell, when questioned as to why John Carthy was not informed what would happen him if he did not put down his weapon, stated that it was not the practice of, or in the instructions to, the gardaı´ to do so. The gardaı´ are not encouraged to threaten persons that they will shoot them. The Garda Code does not require that such a warning be given. Sergeant Russell felt that such a warning as ‘‘put down your weapon or you will be shot’’ could be perceived by the subject to be a threat by the person giving the warning.

Superintendent Hogan in relaying to the Tribunal evidence in relation to Garda training stated that officers are trained to give a warning to the subject prior to opening fire. The training is expressed in this form: ‘‘Armed gardaı´, put down your gun’’ or a requirement to comply with some other request. The training does not include an instruction to inform the subject that if he does not comply he will be shot. To do so would indicate that a pre-emptive decision had been taken by the officer involved. He stated that the giving of the warning advised in training leaves open the possibility of issuing a second, third or fourth warning allowing a continuous reassessment of the situation. There is also a danger, that if an officer says words to the effect of ‘‘stop orI will shoot you’’, that the subject may react by shooting first as an instinctive survival response.

International experience

Mr. Lanceley told the Tribunal that in the US a ‘‘line would have been drawn in the sand’’. He said that in the US a person in John Carthy’s position would be told not

to come out of the house with the gun in his hand, and that if he did so he would present an imminent threat to police officers and his safety could not be guaranteed.

In Victoria, Australia and New Zealand, police practice is to give a warning that informs the subject that the police are armed and may involve an instruction of some type, depending on the circumstances of the incident, such as to leave down a weapon. At no stage would the subject be warned that failure to comply with an instruction may result in their being shot. However, Mr. Shuey, former Assistant Commissioner of the Victoria Police, said that the practice in Victoria is such that ‘‘the intonation in what is being given would leave the offender or suspect in no doubt that there would be some dramatic consequences for failure to comply with the action’’.

It is interesting to note that both Mr. Bailey and Mr. Burdis, a retired Chief Superintendent proposed as a witness by the Carthy Family, were aware of incidents in England and Wales where a variety of warnings were given depending on the specific circumstances involved. Neither criticised the warnings given by members of the ERU at Abbeylara.

SECTION D: — John Carthy’s Body Position when the Fourth Shot was Fired

1. Eyewitnesses’ accounts

None of the ERU witnesses who observed John Carthy between the third and fourth shots noticed any, or any obvious, crouching or falling motion on his part, nor indeed did they see any change in his upper body position, between those shots. Their evidence in this regard has been recounted in detail.

2. Evidence of opinion of Professor Jack Phillips

From a medical perspective, was John Carthy capable of forward motion following the discharge of the third shot?

Professor Phillips, consultant neurosurgeon, who gave evidence to the Tribunal, noted that one bullet, which evidentially coincided with the third bullet, entered the lower lumbar area, traversed the abdominal cavity and exited the genitalia. On his review of the evidence available, particularly the radiographic evidence, he concluded that this bullet did not transect the spinal cord. It did not shatter the spinal column. He did not believe that it damaged the sacral plexus.

The spinal cord emits various nerves at multiple levels called the sacral plexus. From the autopsy photographs, he was of the opinion that the sacral plexus appeared to be intact. The motor function which was transmitted from John Carthy’s ‘‘brain to his spinal cord, through the sacral plexus to his legs, was intact, allowing him, so to speak,

to send messages from his brain to his spinal cord to his legs, to propel himself forward’’.

The fourth bullet entered the lumbar area, went forward at a trajectory or an angle and lacerated the left ventricle of the heart, this being the fatal injury.

Professor Philips stated that neuroscience teaching is that a person with an altered state of mind is capable, to varying degrees, of ignoring outside stimuli, even painful stimuli. He noted that there were clinical situations, in emergency practice, where people came into hospitals in psychotic states having withstood ‘‘amazing tissue injuries’’ and not complaining of the pain, walking around in an agitated state, oblivious to significant soft tissue injuries. That is a phenomenon which he personally had observed in practice.

With regard to the first two injuries to his leg, if a person, not in an agitated state, were to receive a very painful stimulus to the flesh of a limb, his immediate reaction would be reflex, to reach for the wound. As it was his leg, he would be caused to stumble. The third bullet must have been a ‘‘severely noxious or painful stimulus’’ inducing pain of a very severe nature. The third wound, in a normal person, not in an agitated state, would have felled that person instantly.

However, the position in relation to someone who is in a heightened state as a result of mental illness is somewhat different. He stated that ‘‘it would be reasonable to interpret that John Carthy was in an altered state of mind’’, while he ignored two initial stimuli and then a third stimulus of a severe nature. On the basis of witness evidence that he remained upright, he would have to conclude, in a layman’s words; John Carthy must have been in a ‘‘frenzy’’. John Carthy’s agitated brain overrode the painful stimulus which he felt. He ignored the pain because of his state of mind. He did not do what an ordinary person would have done which would have been, with regard to the first two wounds, to stop and hold his leg. He just marched on. It would be reasonable for a person to conclude that if John Carthy proceeded to move after having been shot, that he was not reacting to painful stimuli in the way a normal person would. The evidence suggested that John Carthy’s nervous system was intact, so the stimulus from the first two bullets which went to his brain was overridden by him, using his frontal brain to suppress it, and to allow him to keep going forward.

That John Carthy was capable of voluntary movement after the third shot was because he had full nervous spinal system control.

Thus, he concluded that, from a medical perspective, John Carthy had an intact peripheral nervous system which allowed him to maintain motor function in his lower limbs, thus enabling him to propel himself forward or to be capable of forward locomotion. He was capable of voluntary, or intentional, forward locomotion after the third shot.

3. Evidence of opinion of Professor John Harbison

In his report, Professor Harbison, who performed the post-mortem examination on John Carthy, described the track of the fourth bullet as entering to the right of the midline of the back at the level of the first lumbar vertebra, passing upwards into the abdominal cavity, passing through the left psoas muscle and then lacerating the left kidney. It penetrated the fullness of the stomach posteriorally and anteriorally and then penetrated the diaphragm into the left ventricle of the heart. The bullet then passed through the left lingular of the lung exiting through the front of the chest. This was 2.5 cm to the left of the nipple. The wound was 12.5 cm, from the midline and 134 cm from John Carthy’s heel. Anatomically, this wound passed forward from right to left approximately 6 inches and upwards approximately 9.5 inches. This was the fatal wound to the heart. Professor Harbison expressed the opinion, that John Carthy was either falling forwards or stooping when this wound was inflicted. The angle was in the order of 45 degrees, so he would have had his body angled forward for the bullet wound track to occur. As the bullet travelled from right to left, John Carthy’s body must have rotated; his left shoulder moving forwards and/or his right shoulder backwards. These findings were consistent with his crouching, or falling away to his right and forwards as the last shot was fired. He commented that ‘‘as far as I can deduce, therefore, Mr. Carthy was therefore crouching somewhat when struck by this, the immediately fatal bullet’’. He stated:

‘‘Because the first bullet rose from where it entered the back and rose to a much higher position on the front of the body, nevertheless the injury in the back was a proper entry wound, fairly neat and circular. The exit was a bit more irregular because it would have struck soft tissue and probably some bone on the way. As the bullet must have been travelling more or less parallel with the ground, the implication is that the deceased was leaning forward so that the entry and the exit were roughly on the same level’’.

The extent of such movement, however, could be affected somewhat by the hill, the manner in which the shotgun was held by the deceased, and the fact that John Carthy’s right leg was shorter than his left. Professor Harbison also stated: ‘‘perhaps he was stooping at the time, I am not sure’’. He felt that John Carthy was 40 degrees out of the vertical leaning forward for the fatal shot on his heart. He also agreed that blood staining on his shirt might be indicative of standing following the fourth shot. Professor Milroy did not accept that significance attached to such blood staining.

Professor Harbison also accepted the possibility that there could have been some deflection in the flight path of that bullet. He thought that the track through the body seemed to be straight but advised that there may be confusion between the track of the bullet and the orientation of the bullet: ‘‘Of course the bullet could, and did from the appearance of the exit wound, deviate, not going straight nose first, come out sideways’’, though his recollection was that the trajectory was straight. Counsel for the Commissioner reminded Professor Harbison that the evidence suggested that John Carthy had his left hand under the barrel of the shotgun and his right hand in the trigger area. Professor Harbison described that as being the normal way for a right-handed person and that this would be what is often called ‘‘the ready position’’. He accepted that this could also result in a degree of rotation of the body from the

hips and that rotation and movement of his body from the hip was consistent with the manner in which he held the shotgun.

He was also asked whether the upward nature of the trajectory, in his opinion, was consistent with a combination of the upward nature of the terrain and some leaning into the gun or over the gun. He stated: ‘‘Yes, in other words, it wasn’t just the terrain, that he must have leaned forward to get the upward trajectory inside the body’’.

4. Evidence of opinion of Professor Christopher Milroy

Professor Milroy, in his original report to the Tribunal, expressed the view that John Carthy was falling away from an upright position when struck by the fourth and fatal bullet, and that this accounted for the trajectory of the bullet which passed through his body. None of the bullets lodged in his body, which Professor Milroy thought typical of ‘‘full metal jacket bullets’’. He agreed with the analysis of Professor Philips that John Carthy was capable of forward ambulation, of voluntary movement, following the infliction of the third wound.

On his analysis, the trajectory of the third bullet, as noted at post-mortem examination, suggested that John Carthy was standing upright and that the person who was discharging the gun was at approximately the same level. The bullet wounds were consistent with the officer being behind John Carthy and on the road with him. Professor Milroy stated that as the fatal bullet ‘‘went upwards 9 inches’’ and thus, ‘‘it has got to come down 9 inches for it to be horizontal and in doing that that would mean the body leaning forwards’’. He thought that the angle of leaning was approximately 45 degrees. It therefore followed that there was some movement of his upper body position between the third and fourth shot. He also expressed the view that there was some rotational movement of the upper body at this time. In order for the bullet to travel from right to left required rotation of the hips. When he prepared his opinion, his state of knowledge was that John Carthy had been holding the gun across his body. He was questioned whether, if he had been holding the gun with his left hand outstretched under the barrel and the right hand in the trigger area, with the right shoulder being back and the left shoulder being more forward, that that would involve rotation from the hips. While it depended on how John Carthy was holding the weapon, he accepted that if he had been holding the weapon with his left hand towards the top end of the barrel, right hand in the trigger area and the weapon pointing forward; that his body position would be slightly rotated. He further accepted that in walking up the hill, there possibly could be forward movement of the limbs and arms. When one leg is shorter than the other, a person’s gait can be affected. John Carthy had a slightly ‘‘short right leg syndrome’’. This also could in fact cause a slight tilt in the pelvis and he may have had an abnormal gait as a consequence of the short leg syndrome.

John Carthy may have been further away from the ‘‘firer’’ for the fourth shot, and further up the hill. If the evidence established that the weapon was pointed in front, he accepted that rotation could occur. When questioned as to whether this would form a reasonable basis for attributing the movement of a bullet from right to left across the body, he stated:

‘‘anatomically that will change the pathway so that it appears to be going from right to left when it is apparently going — you know, the bullet is discharged straight, yes’’.

He accepted that in walking up the hill, it was possible that there could be forward movement of the limbs and arms. Movement and rotation could be accounted for if John Carthy was turned sideways. However, he reiterated that a simple leaning forward or crouching, without any upper body rotation, such as the turning of the shoulder, would not account for the lateral anatomical movement or direction of the track of the fourth bullet as observed at post-mortem examination.

There was no evidence of a deflection of the bullet occurring after the bullet entered John Carthy’s body from the rear and there was no obvious bony damage to indicate that it struck any bone at that point. He did not agree with Professor Harbison, that the point of entry was to the right of midline. If it was to the right of midline, it would have hit and shattered bone and there would have been an obvious injury. It may have appeared to have been on the right but was in fact on the left.

Questioned whether a bullet going into the right of the midline made sense in the context of a bullet moving from right to left, he disagreed. For the bullet to thus move ‘‘would have taken an extraordinary deviation and it would have smashed to pieces the spinal cord, the spinal column. It has done no such thing and it can clearly be seen entering to the left of the spinal column. It must have had its entrance wound to the left of the midline of the back’’. He thought that the bullet must have entered to the left. It ‘‘may fit in with the short right leg syndrome’’ of having a slightly curved spinal column and, therefore, he thought the bullet must have entered to the left of it.

Would the position be altered and his opinion change if the person discharging the shots had changed position between the shots? He agreed that if either the person firing the weapon, or the subject changed positions or moved to the left or right, then the position would be ‘‘clearly altered’’. However, in this case the bullet exited through the upper part of the torso and therefore, ‘‘we must have the person falling forwards or stooping forwards unless the officer has... ducked down or gone into a crouching position, when that would give you an upward shot’’. Detective Garda McCabe had discharged both bullets in the direction of the lower part of the torso, the second one being aimed somewhat higher on the lower torso. Garda McCabe had given evidence that ‘‘the aim was different, so I raised the gun slightly in that regard’’. Professor Milroy felt that it could not just be the ‘‘re-sighting of the gun’’ by Garda McCabe on the body; there must have been ‘‘movement of the victim’’ as well. He agreed that it was reasonable to take into account at least two other factors, namely the possibility of body movement by John Carthy, in that he could have gone up the hill ‘‘a bit more’’, or the fact that he may have either taken a pace or was stooping. This was, however, a ‘‘significantly upward movement’’, or as Professor Harbison had described the bullet as having taken ‘‘an altogether different pathway’’. It was not just a ‘‘simple case’’ of a slightly raised gun; that would still give a ‘‘fairly horizontal track’’. The subject must have changed his position as well, ‘‘by bending over or falling’’. He could, of course, have moved forwards, but ‘‘he must have flexed

forward on his hips’’, for whatever reason, either because he was stooping or he was falling. It was also, in his opinion, entirely reasonable that John Carthy started to fall after being struck in the pelvis by the third bullet and as he fell, another bullet was discharged; one with a similar trajectory to the third but because he is falling forwards, and away to the right, this fourth bullet had a different track through the body.

What of the external bleeding patterns as noted on the garment? Would these provide assistance? Professor Milroy thought not. It was suggested to him that the absence of blood above the entry and exit wound and the preponderance of the great majority of blood below the wound would suggest that he was in an upright position after he was shot. He did not believe that John Carthy falling after the fourth shot would have altered the external bleeding pattern on the T-shirt. Most of the bleeding was internal and ‘‘one must be careful about interpreting blood patterns of clothing because blood can leak into them afterwards’’. He would not have expected to find bleeding all around the wound, or any difference in bleeding whether John Carthy was upright or whether he was falling. When a person is being resuscitated, blood can leak ‘‘all over the place’’. One could not say from the blood patterns that he was vertically upright or leaning forwards when he was shot. Blood pattern analysis, which emerges from small wounds do not distinguish between those two propositions, he stated.

The wound inflicted by the third bullet must have been excruciatingly painful, he observed. Several parts of the body were affected by the bullet: the pelvis, the rectal passage, the testicle and penis. One such wound would have been very painful. Adding them together meant that the whole area would have generated substantial pain, though it didn’t necessarily mean that there was an increment in pain. Nevertheless, he accepted that such pain would become the ‘‘principal conscious priority’’. Mechanical movements are related to conscious decision making and, as a basic proposition, ‘‘if your conscious decision making is concentrated entirely on pain, what you can do mechanically is relegated’’. He echoed Professor Phillips’s sentiments, however, in relation to pain in persons who are in an agitated state. Professor Milroy referred, additionally, to the phenomenon of ‘‘temporary cavitation’’, which he concluded, did not apply in this case. This phenomenon is connected, inter alia, with the velocity of the bullets used. Professor Milroy thought that there was ‘‘no evidence from the nature of the bullets used that ... [John Carthy] ... would have suffered incapacitation in respect of the spinal cord’’.

5. Reconciliation of eyewitness evidence and the pathologist’s evidence

Professor Milroy’s observations

Gardaı´ at the scene stated in evidence that they did not notice any falling or crouching motion between the third and fourth shots. Was there an explanation, in Professor Milroy’s opinion, for the fact that no garda observed movement between the third and fourth shots?

Professor Milroy thought it likely (but not certain) that the third bullet, inflicting the pelvic wound, would have caused John Carthy to fall to the ground. People do not always collapse immediately from gunshot wounds. Depending on what part of the anatomy is struck, they can carry on moving. When struck in the chest, a person would collapse very quickly. It was possible, he said, that when struck in the pelvis, as John Carthy was, that one could move a step or two, and then collapse. He could have had voluntary movement after the infliction of that wound, enabling him to walk forward or to move his own body position, despite the gravity of the pain described. As has been observed, Professor Milroy echoed what Professor Phillips had noted in relation to pain in persons who are psychiatrically agitated. A person in a very agitated state does not always respond in the same way as ‘‘a normal person’’. He stated:

‘‘ . . . some psychiatric patients, if they are in a high state of agitation, may have a higher pain threshold and a higher ability to cope with pain, or not respond as normally as you would expect’’.

This adds to their physical capacity and they carry on in a way that you might not expect, he observed. The fitter, younger and healthier one is, the more one is capable of activity such as ‘‘fight or flight’’.

‘‘But certainly John Carthy could, in my opinion, have continued his activity. I think the likelihood is that he would collapse butI cannot exclude him being able to take voluntary movements.’’

This was due to a combination of a higher pain threshold and a delayed reaction to pain. His action may be so ‘‘pumped up’’ by psychiatric disorder that he may not observe or appreciate the effect of the pain; he may carry on, not for very long, but for a significant length of time. Another piece of evidence, which in Professor Milroy’s opinion supported this, was his failure to respond when shot twice in the thigh.

As the person is falling another shot is discharged. This sequence of events occurs very quickly and would account for the failure to observe the falling, or crouching, between shots. Witnesses may not have realised where the subject had been hit — or that he had been hit in the pelvis and would collapse. Accordingly Professor Milroy stated that he was ‘‘not surprised that people don’t see a change in the movement’’. If the officer discharged two bullets ‘‘relatively quickly, he wouldn’t necessarily realise that the person was falling’’. Counsel for the family further queried Professor Milroy as follows:

‘‘Q. Put another way, had there been a slight delay between those shots, even of a couple of seconds, the last shot might well have been redundant because it would have already been on the ground?

A. If it was a long gap and the person was falling from the third, then, yes, the person would then be on the ground. But if the shots are relatively close together or if the shot delivered as the person starts to fall, that is the point, then the person may not realise that they are falling as they discharge the gun’’.

If the sacrum injury had caused the person to fall, then had there been a delay on the fourth shot, it may well have been ‘‘hitting air’’. Garda McCabe stated that following his first shot, he could still see that John Carthy was taking steps and that the gun was pointed at the people at the rear of the command post. The position of the shotgun had not changed. He was aware that if John Carthy pulled the trigger there was an immediate threat to their lives ‘‘at that stage’’. Those were the factors that he had in mind between his first and second shots. When asked to comment on Professor Milroy’s evidence that had there been a further delay between the third and fourth shots, that the fourth shot might not have been necessary he stated:

‘‘I think Professor Milroy mightn’t necessarily be thinking about the fact that the shotgun is still pointed at the people and there is still an immediate threat to life. I am sure that when Professor Milroy said that, he may not have been factoring that into his answer’’.

He stated that his overriding consideration was the continuing immediate threat. That was the reason why he did not delay or why there was no further delay on his part in taking action.

Mr. Bailey’s observations

Commenting on Garda McCabe’s evidence that he was surprised that he did not see any reaction to his first shot; to the extent that he thought that he may have missed, Mr. Bailey observed that other police officers involved in incidents, where they had discharged their weapons at people, have also expressed similar surprise. Believing that they have missed, many police officers in such situations have proceeded to fire another shot. In order to aim a weapon using the sight, which Garda McCabe did, one must focus one’s eye on the front sight. The eye can only hold focus on one point at a time. The back sight of the weapon is slightly out of focus and the target more out of focus because it is further away from the point in focus, being the front sight. This, he said, is the normal sight picture that armed officers are taught to use:

‘‘it is a biological fact that the human eye focuses in this way. Once on aim, a shot could be actually fired in less than a second, and at such a short distance, the bullet strike would be almost instantaneous. It is therefore possible for the target to move while the firer aims and fires a shot, but because the target remains out of focus and every detail is not registered by the eye, the firer could be unaware. I have been involved in other cases of shootings by police, where the subject of the operation was moving and the officer believed that he had fired at a man facing them, but the shots hit the suspect in the back or side’’.

The padded, blue jacket that John Carthy was wearing, if anything, would render movement less distinct and more difficult to notice when the focus of his, Garda McCabe’s eye, was on the front sight. Mr. Bailey thought this consistent with Garda McCabe’s reply when asked if there was any change in the upper body position after his first shot. In evidence, in answer to the question of whether this position had changed, Garda McCabe had stated that the body position may have changed slightly and that it may have been slightly more forward. He put that down to the

fact that John Carthy was walking up the hill further away from him. Mr. Bailey commented that the significance of the slight adjustment and the position of John Carthy were not appreciated by Garda McCabe and that this was consistent with the level of physical and mental activity required in making a judgment to fire, and the need to focus his eye on the front sight of the weapon. That Garda McCabe attributed this ‘‘slight adjustment’’ to the subject moving up the hill was understandable, according to Mr. Bailey, because in his view, the brain rapidly fills any gaps in knowledge to make sense of the situation. He also felt that it was possible to reconcile the evidence of Garda McCabe, that he was not aware of John Carthy falling when discharging the fourth shot, with the opinion of the forensic pathologists. In order to aim the weapon for a second time using the sights, he would have to focus on the front sight. This would place the subject out of focus, allowing his body to move into a position consistent with the opinions expressed by the pathologists, before the bullet struck. As he previously observed, the padded jacket worn by John Carthy would make it more likely that this movement could pass unnoticed.