PFC response to the report of the Police Ombudsman on the use of plastic bullets April 2001 to March 2002 : A Clean Bill of Health?

On 4 October 2002 the United Nations Committee on the Rights of the Child, in its concluding observations on "United Kingdom of Great Britain & Northern Ireland" called on the British Government to immediately ban the use of plastic bullets. The Committee concluded that:

(27) The Committee is concerned at the continued use of plastic baton rounds as a means of riot control in Northern Ireland as it causes injuries to children and may jeopardise their life.

(28) Following the recommendations of the Committee against Torture (A/54/44, para. 77(d)), the Committee urges the State party to abolish the use of plastic baton rounds as a means of riot control.    (NOTE: See Committee On The Rights Of The Child; Thirty-first session; Consideration Of Reports Submitted By States Parties Under Article 44 Of The Convention; Concluding Observations of the Committee on the Rights of the Child; United Kingdom of Great Britain & Northern Ireland; 4 October 2002)

This follows the United Nations Committee Against Torture’s call for abolition of the use of plastic bullets in its report issued in November 1998.

In May 2002 the Office of the Police Ombudsman released a report which justified the use of plastic bullets in the north of Ireland on a number of occasions in 2001 and 2002.

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1. Introduction

1.1 In May 2002, the Police Ombudsman released a report into the use of plastic bullets by the RUC/PSNI on selected occasions during 2001 and 2002. Based on her research, the Ombudsman concluded that the use of plastic bullets was "fully justified and proportionate" in the incidents examined.

1.2 The PFC issued an initial response to this on 30 May 2002, highlighting a number of problems with the Ombudsman’s report, to which the Ombudsman replied on 7 June 2002. This is a response to both the report and the Ombudsman’s reply.

1.3 Despite the Ombudsman’s reply, and in some cases because of the Ombudsman’s reply, the PFC has a number of grave concerns with the Ombudsman’s stated position on the RUC/PSNI’s use of plastic bullets during the period covered.  (NOTE: Since the official name-change from RUC to PSNI occurred during the period in question, this document uses both in general comments, and refers to the RUC regarding incidents before November 2001, and the PSNI after that date. )  The PFC firmly believes that the Ombudsman’s inquisitorial role over the police use of plastic bullets is of vital importance because, as the Oversight Commissioner highlighted, "the Police Service [had not at the time of the report] established a policy requiring a post utilisation review of each incident involving the use of the baton round due to its position that such a review is the authority/responsibility of the Police Ombudsman." In other words, if the Ombudsman’s office is the only agency investigating police use of plastic bullets, then it is imperative that it exercises this responsibility with the utmost vigour, impartiality and effectiveness. The PFC does not believe that it has, and there are serious questions arising from the Ombudsman’s report and her reply.

1.4 Our concerns with the Ombudsman’s report and her reply include:

• The Ombudsman’s attempt, in her published report, and in her reply to the PFC, to distance the new L21A1 plastic bullet from the old L5A7 plastic bullet and the fourteen fatalities and numerous very serious injuries caused by it.
• The Ombudsman’s assertion that, based on evidence, the L21A1 is more accurate, and by implication safer, than the L5A7. Available scientific evidence demonstrates that it is in fact much more dangerous.
• Having distanced the ‘baton round’ from the ‘plastic bullet’ the report purports to examine seven incidents where ‘baton rounds’ (not plastic bullets) were used. In fact two of the seven incidents involve the older plastic bullet, the L5A7.
• The Ombudsman’s failure to make it clear that her report covers less than a third of the plastic bullets fired by the RUC/PSNI during the period in question.
• That the report does not make clear that the outstanding investigations that were not completed and were therefore not included in the report actually constitute a majority of the incidents involving plastic bullets.
• That the report relies heavily on RUC/PSNI versions of events, with little or no attempt to ascertain or include other accounts, from civilian witnesses, local community leaders or interested NGOs, which contradict the police version.
• That the report will have a ‘chilling’ affect on those who may wish to log complaints regarding the use of plastic bullets with the Ombudsman’s office.
• That the Research Report is in effect providing a ‘clean bill of health’ to plastic bullets.

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2. The Report

2.1 The Ombudsman states in the foreword to her report that: "Injuries and deaths resulted from the use of the precursor of the baton round, the plastic bullet…" The use of the phrase "the precursor of the baton round, the plastic bullet" left the reader in no doubt that:

• A differentiation could be made between ‘plastic bullets’ and ‘baton rounds’.
• This report only concerned incidents involving the new ‘baton round’.

2.2 This is a factually incorrect and careless use of language. The security forces and the British Government routinely refer to the ‘baton round’. This is evident in press statements, official reports and in the parliamentary record Hansard. On the other hand the media, NGOs, politicians and victims have referred to plastic bullets. The issue is not that the Ombudsman should choose to use the official term, the baton round, but rather that her report creates an artificial distance between ‘baton rounds’ and ‘plastic bullets’.  (NOTE: The weapon that can accurately be described as the 'precursor' of the plastic bullet was the rubber bullet. In addition to the fourteen people killed by plastic bullets, three people were also killed by rubber bullets. )  

2.3 It concerns us greatly that this inaccurate use of language is repeated in the subsequent reply to the PFC where it is stated: "The reason that I have produced this report is that the use of baton rounds by the security forces has given rise to much debate and that injuries and deaths resulted from the firing of plastic bullets, and also that there have been injuries consequential upon the use of the baton round." This implies that deaths have been caused by a quantifiably different weapon-the plastic bullet. Baton rounds on the other hand have not resulted in fatalities. This is incorrect. It is disconcerting but clearly necessary to point out the obvious: the official precursor of the L21A1 baton round was the L5A7 baton round. Both are also widely referred to as plastic bullets.  (NOTE: For instance, the title of the DSAC report refers to both the L5A7 and the L21A1 as a "baton round." The ACPO Guidelines from 1999, when only the L5A7 was issued, are titled "Guidelines on the use of baton rounds and firearms in situations of serious public disorder." )  

2.4 The effect of this confusing use of language is to suggest that the RUC/PSNI and British Army are using a new weapon, a baton round, different from that which killed fourteen people and injured thousands of others, the plastic bullet. The weapon currently being used is not a new weapon; it is a modification of the previous one. It is fired from the same gun — the L104, albeit with a new sight attached — and the bullet fired — the L21A1 — is in fact potentially more dangerous than the previous version, the L5A7.  (NOTE: Defence Scientific advisory Council: Statement on the comparative injury potential of L5A7 baton round fired from the L104 Anti-riot gun using the battle sights, and the L21A1 baton round fired using the X118E3 optical sights. )  

2.5 In her reply to the PFC, the Ombudsman restates her position, claiming that "this is a new and different baton round…more accurate…it will not bounce high from the ground…The redesigned weapon and projectile is far more accurate and I have evidence to substantiate that…I do therefore say that this is a new and different baton round."

2.6 Leaving aside the apparent contradiction in the reference to a ‘different baton round’ (as opposed to the precursor, the plastic bullet) the Police Ombudsman appears to have failed to comprehend that her report also covers incidents — in Lurgan, 24 April 2001, and in Portadown, 26 May 2001 — when the older L5A7 plastic bullets were used. Neither in her report, nor in her subsequent reply to the PFC, does she acknowledge this fact. She does not even appear to be aware that plastic bullets that she considers to be ‘less accurate’ and ‘would bounce higher from the ground’ were used.

The Ombudsman defines the L21A1 as a baton round and the L5A7 as a plastic bullet. In the introduction to her report she refers only to "incidents relating to the discharge of baton rounds by the police." According then to her own contested definition, both plastic bullets and baton rounds were fired during the incidents covered in her report. The L21A1 was not issued until 1 June 2001; two of the reported incidents occurred before that date. This error calls into question the integrity of the entire research conducted by officials in her office.

2.7 The Police Ombudsman also refers to evidence she has to support her view that the new bullet is more accurate, and therefore, it is argued, less likely to cause serious injury. The main scientific evidence on the L21A1 — The Defence Scientific Advisory Council Report — bases its assertion on the accuracy of the L21A1 on the assumption that "batons will be fired to comply with the ACPO and MOD policy on the use of the L21A1 baton round."  (NOTE: If the Police Ombudsman has access to evidence other than the DSAC report she should state what it is, and if it is not already public, it should be made public immediately. )  

2.8 We would question the Ombudsman’s interpretation of the scientific evidence. The DSAC report accepts that plastic bullets may be fired outside operational guidelines, and admits that it is impossible to predict the levels of injury resulting: "The Guidance to firers is beyond SC, DSAC remit. The SC, DSAC’ recognises that it may be difficult to maintain the acceptance incidence of injury at the low level currently envisaged, in all operational as distinct from test and training circumstances." [Their emphasis.]

2.9 In other words, the DSAC accepts that its findings are based on plastic bullets been fired in carefully controlled situations. The relationship between accuracy and safety, upon which the Ombudsman places so much weight, is entirely dependent on the security forces following ACPO guidelines. But the reality is that the security forces have frequently shown scant regard for these guidelines. The fact is that plastic bullets have been fired, often deliberately, in flagrant contravention of guidelines, with very serious and sometimes fatal consequences.  (NOTE: That the courts have rarely had occasion to deliberate on the issue is a damning indictment of the Office of the Director of Public Prosecutions which sought to protect members of the security forces rather than prosecute those who had caused the deaths of children killed by plastic bullets. Despite fourteen deaths, only one RUC officer has been prosecuted in relation to the use of plastic bullets. The case, R v. Hegarty, which followed the televised killing of Sean Downes in 1984, ended in acquittal. The practice of paying compensation to victims through out of court settlements has also prevented the issue from being properly examined in court. To date £millions has been paid in compensation. According to CAJ over £1million had already been paid out by 1990. The extensive use of plastic bullets around such incidents as Drumcree 1996-1998 will have increased this figure. (Plastic Bullets and the Law, CAJ 1990) )  

2.10 The DSAC report also provides deeply disturbing information on the injury potential of the L21A1 if it is fired outside the given guidelines. It concludes that the incidence of intra-abdominal injuries is likely to increase, that the severity of brain injuries is likely to be greater with the L21A1, that there is more risk of the L21A1 being retained in the head on impact, and that "deliberate or inadvertent elevation of the mean point of impact", i.e. the bullet deliberately being aimed higher than allowed, a situation which has led to most of the deaths attributed to plastic and rubber bullets, "will have more serious medical implications to the target than elevation of the mean point of impact of the L5A7."

2.11 Considering the fact that plastic bullets have been regularly ‘deliberately or inadvertently’ fired at the upper part of the victim’s body this hardly supports the Ombudsman’s assertion that the new plastic bullet is an improvement. All of the 14 fatalities caused by plastic bullets have resulted from injuries to the upper body or head. 11 of these deaths were caused by plastic bullets fired from less than 20 metres. Seven of the victims were aged 15 or under. 

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3. Plastic Bullet use between April 2001 and March 2002

3.1 The foreword to the Ombudsman’s report states it "contains a review of seven reports of investigations completed during the period April 2001 to March 2002 into incidents in which police officers discharged baton rounds."

3.2 In the Executive Summary and in the Introduction to her report the Ombudsman states that her office is "currently investigating a further six referrals from the Chief Constable dealing with the discharge of baton rounds and five complaints from members of the public in relation to the discharge of baton rounds during these latter incidents." This suggests that the Chief Constable made thirteen referrals to the Police Ombudsman regarding the use of plastic bullets — the seven investigated plus a further six. In her annual report the Ombudsman (p32) states that her research report covered "7 of the 8 baton round incidents referred by the Chief Constable." Which is the correct figure, and why are the two different?

3.3 We are concerned that the inference may be drawn that this report covers the majority of, or even a logical sequence of, incidents between April 2001 and March 2002 where plastic bullets were used. An example of such an inference being drawn was provided by the new Chief Constable Hugh Orde when he said:

"Plastic bullets, at the moment, are used after much thought and decision making by senior officers and their use is now scrutinised by the Police Ombudsman (Nuala O'Loan) who, on the last seven occasions, said she thought their use was justified." (Our emphasis.)  (NOTE: Irish News 02/09/2002 )  

3.4 The Research Report from the Police Ombudsman did not of course justify the use of plastic bullets on the last seven occasions in which they were used. The report focused on the firing of 36 plastic bullets in seven incidents in no particular sequence. Other more serious incidents involving the use of even greater numbers of plastic bullets in the same time period are not mentioned in the report other than in an innocuous reference to a "further six referrals". Whether the six referrals refers to six plastic bullets or six incidents involving multiple use is left unclear. In actual fact it refers to the firing of at least 84 plastic bullets, more than twice as many as the report actually covers.  (NOTE: The figure of 84 comes from the minimum number fired by the RUC/PSNI during this period, minus the 36 covered in the Ombudsman's report. See below, footnote 10. )  

3.5 The Oversight Commissioner, Tom Constantine, also appears to have interpreted the report as providing a ‘clean bill of health’. He stated in his September report (Report 5) that the Ombudsman’s report "generally demonstrates that these references [ACPO Guidelines on plastic bullets, UN Code of Conduct for Law Enforcement Officers etc — see pp 55,56] have been incorporated…" We do not accept that the Ombudsman’s report, given the limited nature of the study (less than one third of plastic bullets fired in the given time period), and the flawed methodology employed, can justify the conclusion that guidelines have been ‘incorporated.’

3.6 The reference to a further six referrals from the Chief Constable where investigations have yet to be completed provides no comparative data on which to make a judgement on the effectiveness of Police Ombudsman’s investigations or the legality and proportionality of the circumstances under which plastic bullets were used in the period April 2001 — March 2002.

3.7 At least 120 plastic bullets were fired by the RUC/PSNI between April 2001 and March 2002.  (NOTE: These figures, which pertain to the PSNI only and do not include British Army use, are sourced from the PSNI website, the Ombudsman's report and Hansard. We believe that 120 is a conservative figure. We have omitted PSNI press releases referring to "a number" of plastic bullets being fired without exact information as to how many and by whom, and because of discrepancies between security and civilian sources. The figure of 120 is therefore the minimum admitted by the RUC/PSNI during this period. The difficulty in judging the accuracy of figures can be seen in reference to Report 7 in the Ombudsman's report where it is reported that 9 plastic bullets were fired. The PSNI press release for this incident states that eight were fired. (MoD figures state that soldiers fired 15 plastic bullets in the period covered by the report.) )   This, in our view, was highly relevant information that should have been included in the report. To conduct and publish research based on a sample is of course legitimate. Not to inform the reader of the limitations of the research sample however undermines the conclusions of the research. For instance, the report does not actually cover the two most serious incidents involving RUC/PSNI use of plastic bullets that occurred during the period in question. The report does not inform the reader of this.

3.8 The most serious incident was in Ardoyne on 12 July 2001. 48 plastic bullets were fired. At the time SDLP councillor Martin Morgan described the actions of the RUC in the area as "police brutality".  (NOTE: Irish News 13/07/01 )   The second most serious incident was also in north Belfast, on 11 January 2002. 27 plastic bullets were fired according to a PSNI press release. At least seven people were injured as a result according to contemporary reports from the Irish News and North Belfast News.

3.9 In her reply to the PFC the Ombudsman states that her report only refers to completed [her emphasis] investigations, that the outstanding investigations are mentioned, and that the incidents in Ardoyne are under investigation. Again we would be concerned that the published report makes no specific reference to the two most serious incidents involving plastic bullets in the period under consideration, or give any detail whatsoever on the "further six referrals."

3.10 It must also be asked why an investigation into events on 12 July 2001 could not be completed in time for the report, yet other reports initiated the same day, the same month, and even one initiated six months later, could?  (NOTE: While the incidents in Ardoyne on 12 July 2001 are not mentioned in the Ombudsman's report, it is clear from her reply that they were under investigation. The PFC referred to an incident on that night where a 16-year-old girl was apparently hit on the head by a plastic bullet, and in her reply the Ombudsman claims that this matter was "thoroughly investigated" but no evidence, either eye-witness, medical or video, was found to substantiate the claim. If she was in a position to make such a definitive statement on this one part of an incident, why does the entire incident not even merit a mention in her report? )  

3.11 The PFC also criticised the fact that the report only dealt with plastic bullets fired by the RUC/PSNI, and not those fired by the British Army. The Ombudsman replied that it was not within her remit to investigate plastic bullets fired by the army, and that she had stated this in her report [in a footnote on page 10]. She then states that: "The firing of baton rounds by the army can only be the subject of an investigation by the police." This being the case, we would ask that the Ombudsman should consider using her authority to investigate PSNI investigations into the firing of plastic bullets by the army? This would allow her to investigate army firings by proxy.  (NOTE: Since the British Army are officially acting in support of the PSNI during public order situations we do not accept that there are two entirely distinct command structures operating in such situations. This being the case, the police bear some responsibility for all plastic bullets fired, and therefore the Police Ombudsman bears the same responsibility for investigating all plastic bullets fired. The Police Ombudsman must be more pro-active in ending this situation whereby there is even less scrutiny of soldiers firing the same plastic bullets from the same weapons in the same situations as the PSNI. )  

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4. Investigation Methodology

4.1 In the section titled Investigation Methodology the Ombudsman includes the following investigative methods:

• Taking statements from any witnesses
• Talking to local community leaders
• Monitoring media reports of the incident

4.2 The PFC remains concerned that the Ombudsman’s report relies almost entirely on information provided by the RUC/PSNI, and takes little or no account of conflicting civilian versions of events. For instance, in the section on Portadown, 26 May 2001, the report states that six plastic bullets were fired. The Garvaghy Road Residents Coalition claimed that between twelve and fifteen were fired. In this incident L5A7 plastic bullets were fired. The Ombudsman does not mention this.

4.3 The Ombudsman’s report also gives details of civilians being hit by plastic bullets — claiming five hits from six of the bullets fired in Portadown — but the report fails to mention that one of those hit was an Authorised Officer of the Parades Commission. This official was hit on the ankle by a plastic bullet, and reported this to the Parades Commission, who he believes have reported it to the police, yet there is no mention of this in any police statements issued afterwards. The PFC has spoken to the Authorised Officer who has confirmed this version of events. This raises the following issues:

• Was the shooting of an official observer, who it can be safely assumed was not rioting, considered as "fully justified and proportionate"?
• If the Ombudsman was unaware of this incident can the investigation be described as "very thorough"?
• In her report, the Ombudsman (p15) claims that in this incident, there was "justified, reasonable and proportionate use of force." Did the police inform her that one of the people they had hit with a plastic bullet was an official observer, working for a government agency?

4.4 Press coverage of this incident also highlights a further discrepancy in the RUC’s version of events. At the time, ACC Stephen White, claimed that one RUC officer claimed to have hit a civilian with a plastic bullet,  (NOTE: Irish News, 28/05/01 )   yet in her report the Ombudsman, relying on RUC information, details five civilians being hit. How, and why, did this figure change between the initial RUC statement and the information provided to the Ombudsman? Which figure, if any, tallies with hospital records or local accounts, and was any credible attempt made by the Ombudsman’s office to find out?

4.5 In her response to the PFC, the Ombudsman notes that civilian witnesses may be available who did not provide evidence for her report. But she does not provide evidence that enough was done to obtain civilian eyewitness accounts. The "Investigation Methodology" referred to above states that it includes taking statements from any witnesses, talking to local community leaders and monitoring media reports of incidents. Civilian witnesses can only help in the preparation of a report like this if they are aware that it is being prepared.

• Were any press appeals issued for witnesses to come forward to help with the production of this report?
• Were any NGOs, community organisations or community leaders approached for assistance?

4.6 The Garvaghy Road Residents’ Coalition released a statement claiming that between twelve and fifteen plastic bullets were fired on 26 May 01, and not the six claimed by the RUC and accepted by the Ombudsman. This statement was carried in the press at the time.  (NOTE: e.g. Irish News, p4, 28/5/01 )  The GRRC has informed the PFC that the Police Ombudsman at no stage made contact with them in connection with this incident.

• Why was no attempt made to explore the contradictory claims regarding plastic bullets or seek civilian witnesses with the co-operation of the GRRC? In an incident such as this one, where there are two clear, and obviously conflicting versions of events — i.e. the RUC say 6 plastic bullets were fired, local residents claim between twelve and fifteen — the Ombudsman should have given both versions in her report, and explained exactly why, and on what evidence, she chose to accept one over the other.

4.7 Brid Rodgers MLA SDLP (then Minister for Agriculture) condemned the actions of the RUC on the day and the press carried her statement that she would raise the issue of the use of plastic bullets with the Irish Government. Did the Police Ombudsman contact this elected official or the Irish Government?  (NOTE: "Rioting follows Orange March" BBC Online, 27/5/01 )  

4.8 As argued above there is considerable concern that the Ombudsman’s office failed to follow the investigative methods outlined in the report. The example of Portadown (26 May 2001) is mirrored in other areas where local representatives and media have informed the PFC that they were completely unaware of any research being carried out by the Ombudsman’s office in the preparation of this document.

4.9 In north Belfast for instance the North Belfast News revealed that the report was due to be published some four weeks before it was published. The journalist who wrote the story for the North Belfast News has since confirmed to the PFC that her story was, to the best of her knowledge, the first time that the existence of this impending report was made public in north Belfast, despite the fact that three of the incidents occurred in north Belfast. It may be argued that even a local newspaper that is close to the community and had reported on the events in question could well be unaware of such research. Of greater concern is the fact that local representatives who had spoken out on the incidents were not consulted. We have spoken to a number of locally elected officials and community leaders in north Belfast. None were contacted by the Ombudsman in the preparation of the report.

4.10 There are also three NGOs with a well-publicised interest in the issue of plastic bullets, and who would have regular contact with plastic bullet victims and their families — the PFC, the United Campaign Against Plastic Bullets and the Committee on the Administration of Justice. None were contacted by the Ombudsman in connection with the incidents in this report. The failure to contact the United Campaign Against Plastic Bullets in particular is difficult to comprehend.

4.11 The problems surrounding the failure to consult is also demonstrated by the incident in Lurgan, 24 April 2001. It was claimed by the RUC and accepted by the Ombudsman that a plastic bullet was fired at a person who was about to throw a petrol bomb. However, another person approached the PFC in the immediate aftermath and claimed that the plastic bullet was fired at him deliberately, without justification, narrowly missing his upper body/head area. He has said that at the actual time the plastic bullet was fired, no petrol bombs were being thrown and that most of the crowd of ‘rioters’ had actually left the immediate area. This person provided us with the names of witnesses. Neither we, the individual in question nor local community leaders in Lurgan were aware that this investigation was in progress, even though this instance provides, at the very least, a credible alternative version of events to that of the RUC which should at least have been investigated before the Ombudsman could conclude that the firing of the plastic bullet on this occasion was "fully justified and proportionate." In this incident L5A7 plastic bullets were fired. The Ombudsman does not mention this.

4.12 The issue of who is contacted by investigators from the Ombudsman’s office in the aftermath of incidents takes on even greater importance in view of the fact that investigators do not, as a matter of policy, attend public order situations and have therefore no first hand knowledge of the incidents under investigation.

4.13 The reliance on the RUC/PSNI versions of events is also problematic because of the nature of the PSNI’s recording of incidents. In May 2001, not long after the first two incidents covered by the Ombudsman’s report, the NI Human Rights Commission criticised the RUC for keeping "inadequate" records on the firing of plastic bullets. The HRC found that: ‘RUC files often took months to complete; that forms used were inadequate; that over one third of police witness statements were not properly signed; that documents did not give a full enough picture about the level of violence being used at the time the plastic bullet was fired and that files had been closed when they should not have been by any meaningful standard of accountability.’  (NOTE: The Recording of the use of Plastic Bullets in Northern Ireland, NIHRC, May 2001 [as quoted in Irish News 2/6/01] )  

4.14 The Oversight Commissioner has also highlighted problems with the PSNI’s recording of the use of plastic bullets, stating that procedures for a central mechanism for the recording of all use of plastic bullets by the police were not yet in place (as of 7 January 2002, a period which covers six of the incidents covered by the Ombudsman’s report, and also presumably the seventh, unless such procedures were set up within two days of the Oversight Commissioner’s comments) as required by PSNI and other guidelines. (See pp48-52 Office of the Oversight Commissioner Report 4 April 2002.)

4.15 His next report, dated September 2002, admits that at that time there was still no central mechanism to collate records of deployment of plastic bullets. He also points out that PSNI reports to the Policing Board on the use of plastic bullets do not include a section where the "justification" for the authorisation for their use can be specifically outlined. That the police justify the use of plastic bullets to the Policing Board is one of the major recommendations of the Patten Report. This places an even greater onus on the Ombudsman to properly fulfil her role to investigate and comment on the "justification" for the use of the plastic bullets.

4.16 Even the Ombudsman admitted in her Annual Report, published some months after her report on the use of plastic bullets, that she had found problems with the PSNI’s recording of plastic bullet incidents, stating that: "In the course of investigations into the discharge of baton rounds at the request of the Chief Constable, my investigators were concerned at some inadequate and tardy completion of logs and reports in relation to the incidents being investigated."  (NOTE: Police Ombudsman for Northern Ireland, First Annual Report November 2000 Ð March 2002, p8 )   Although she does refer to this in her report on the use of plastic bullets, the criticism there is much more muted. Furthermore she accepts the proffered RUC/PSNI explanation of resource intensive operations for any delays.  (NOTE: The Ombudsman refers to "resource-intensive operational issues such as Drumcree" as contributing factors to the delay in the RUC/PSNI supplying reports about the use of plastic bullets. Only two of the seven incidents covered occurred in the same month as 'Drumcree 2001'. Notwithstanding the fact that 'Drumcree 2001' was probably the most peaceful one in recent years, it is precisely at times of "resource-intensive operational issues" when most plastic bullets are likely to be fired and therefore proper and prompt recording and scrutiny at its most important. )  

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5. Flawed Research

5.1 In terms of providing evidence with which to support the assertion that the firing of plastic bullets was "fully justified and proportionate" the report is at times inconsistent and contradictory. In a number of cases no explanation is given to justify the eventual conclusions. In correspondence with the PFC the Ombudsman states that: "I cannot reach decisions unless there is evidence to support those decisions." We would therefore question how the Ombudsman reached the conclusions she did in the following sections of her report:

• Ardoyne 20-21 June 2001. The report states that eleven plastic bullets were fired in this incident, but only gives details for ten. How and why was the eleventh fired, and why is it not reported? It is also reported that a 15-year-old boy was hit on the arm by a plastic bullet, but does not give any details as to how or why. Without explaining how or why the boy was hit, or how, why and at whom the eleventh plastic bullet was fired, it is impossible to claim, as the Ombudsman does, that the firing of plastic bullets was, in this case, "fully justified and proportionate."
• Ardoyne, 26 July 2001 The Ombudsman concludes in this incident that the firing of the plastic bullets was "fully justified and proportionate" despite admitting that it cannot be proved that the third bullet was fired when the victim was more than 20 metres away. Since the firing of a plastic bullet at a range of less than 20 metres is against ACPO guidelines these two statements are difficult to reconcile. The firing of a plastic bullet at a range of less than 20 metres is only justified under ACPO guidelines when "there is a serious and immediate risk to life which cannot otherwise be countered." The Ombudsman does not offer any evidence that this was the case when this plastic bullet was fired.
• Ardoyne, 9 January 2002. The report refers to a plastic bullet being fired at "a youth", but does not explain what the youth was doing to justify the bullet being fired.

5.2 These three instances illustrate some of the problems with the methodology. Conclusions were reached with no evidence being provided to justify the conclusions. If evidence does indeed exist this should have been included, or at least summarised, in the report.

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6. The general context of each incident

6.1 In the foreword to the report the Ombudsman states,

"The function of this report is to inform the public and the police of the nature and outcome of each of these investigations. I make no other comment."

6.2 In providing the details of each incident the Ombudsman comments on the general situation leading up to the firing of plastic bullets. In Report 7 for example, concerning rioting in Ardoyne on 9 January 2002, the Ombudsman concluded "that rioting arose spontaneously". The parents of children attending Holy Cross Primary School would dispute this conclusion. Parents believe that the trouble on the day in question was planned and co-ordinated. They also believe that the policing of the protests contributed to the violence.  (NOTE: See for instance the North Belfast News (12/01/02) )   They have informed the PFC that were not consulted by the Police Ombudsman.

6.3 The versions of events that led to disturbances in Lurgan (Report 1) and on the Garvaghy Road (Report 2) were also disputed by local people. In Lurgan the local priest was quoted in the press as saying that it was a, " very heavy handed" security presence which had provoked the riot in the first place.  (NOTE: Irish News 'Riot was provoked-Priest' (26/04/01) )   Again we can find no evidence that those who voiced a different opinion to that of the RUC were consulted. To only include one version of an event without even investigating and commenting on another credible alternative is in itself a serious flaw in the application of the stated methodology.

6.4 We remain deeply concerned at the tendency in these comments to accept the police version of events without proper questioning. The problems of an unquestioning acceptance of the police version of events surrounding the shooting of plastic bullets are starkly highlighted by the case of Nora McCabe, a Belfast mother-of-three deliberately killed by an RUC officer firing a plastic bullet in 1981. After the fatal shooting, the RUC officers involved, including the Chief Superintendent who had ordered that the bullet be fired, fabricated a version of events to justify the shooting, and presented it to the inquest into her death. The inquest was adjourned, however, when film footage was traced which proved that the RUC version of events was entirely fictional, and that there was absolutely no justification for firing the bullet that killed Nora McCabe. The inquest jury found that "there is no clear evidence to suggest that there was a legitimate target to be fired at in that street. Neither is there evidence to suggest that the deceased was other than an innocent party." [Lost Lives 2342] Despite this no RUC officer has ever been held accountable for the death of Nora McCabe. Instead, the officer in charge, Chief Superintendent Critchley, who should have been prosecuted for his role in the shooting and the attempted cover-up, was promoted to Assistant Chief Constable. Nora McCabe’s family were paid compensation after suing the RUC Chief Constable.

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7. The Police Authority and the Police Ombudsman

7.1 In the original press release from the PFC we had argued that Nuala O’Loan was ‘well aware’ that the plastic bullet was not the ‘precursor’ of the baton round since she had spent ‘many years on the Police Authority, the body which purchased and authorised the use of plastic bullets’. The Police Ombudsman has since corrected this and pointed out that she was a member of the Police Authority from 1997 to 1999 or ‘just over two years’. We accept this correction. This does nothing to alter the core of the original assertion. As a former member of the Police Authority Nuala O’ Loan was, in our view, aware that the plastic bullet was not the ‘precursor of the baton round.’  (NOTE: The Police Authority purchased 33,900 plastic bullets In 1997, 2527 were fired, 75,227 plastic bullets in 1998, 1236 were fired, 50,400 plastic bullets in 1999, 111 were fired. In other words, a total of 159,527 were purchased at a unit cost of £6.82 per round representing expenditure for the Police Authority of £10,87974.14. It cannot have escaped the attention of a member of the Police Authority that the minutes of meetings and financial documents relating to this not inconsiderable purchase totalling over £1million all referred to baton rounds not plastic bullets. )  

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8. Conclusions

8.1 Until the use of plastic bullets is finally banned, it is of the utmost importance that their use is subject to the most rigorous and demanding scrutiny. Since the Police Ombudsman’s office is the only organisation in a position to properly do this, it is therefore important that their scrutiny and reporting of the use of plastic bullets is improved.

8.2 The Research Report 1/2002 came to the conclusion that the use of ‘baton rounds’ was fully justified and proportionate in seven incidents. The incorrect terminology in the report in reference to plastic bullets and baton rounds makes it difficult for the reader to understand what exactly was being researched. It would appear that the researchers were not themselves clear on this point. The Investigation Methodology was not adhered to in that there was inadequate consultation with anyone other than the RUC/PSNI. The limited scope of the research was not made clear. Conclusions are drawn on individual firings without any evidence being provided to justify the findings. Reference is made to the ‘official’ context in which plastic bullets were fired without any reference to conflicting civilian accounts, i.e. can the firing of a plastic bullet be considered without reference to allegations that it is the actions of the RUC/PSNI which have provoked the situation in which it is fired or that the RUC/PSNI might be giving the Ombudsman’s investigators an incomplete or untruthful account of their actions?

8.3 In our original response we stated that this report would have a chilling effect on all those who may have considered filing complaints regarding the use of plastic bullets with the Police Ombudsman. We are still of that belief.

8.4 The Research Report 1/2002 was the first major report of the Ombudsman’s office into the use of plastic bullets. It was and remains our view that this report is seriously flawed and will be used by those who argue for the retention of this lethal weapon. Unless and until the Office of the Police Ombudsman takes on board the serious concerns outlined above our position remains that we cannot recommend that anyone with a complaint regarding plastic bullets should contact the Police Ombudsman. We will feel compelled to inform anyone who approaches us in regard to taking a complaint on the use of plastic bullets of our serious concerns about the Ombudsman’s handling of the issue to date.

8.5 This is regrettable. Until publication of the report the policy of the PFC was to recommend that complaints regarding plastic bullets should be made to the Police Ombudsman. As a result of this report we no longer have confidence in the ability or willingness of the office of the Police Ombudsman to investigate such complaints with the vigour and impartiality necessary to restore public confidence. We are more than willing to engage with the Office of the Ombudsman with a view to exploring the issued raised by the Research Report and our critique.

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