The Police Ombudsman has concluded that a police officer was justified in using CS Spray against an off-duty soldier who had punched him in the face, but warned that officers need to ensure that people targeted with CS Spray are given proper aftercare.
Two police officers had gone to a hotel in Portrush in the early hours of 14 November 2004 following reports of an assault. The victim of the assault identified two men he believed were responsible.
As an officer was talking to one of the men - who it later transpired was an off-duty soldier - without warning the soldier punched him in the face.
The officer pushed him away and when the soldier fell face first onto the ground, the officer attempted to handcuff him. The soldier continued to struggle and managed to turn so that he was lying face up on the ground, before punching the officer twice more on the head.
At this point the officer took out his canister of CS spray and shouted "Stop or CS Spray will be used." When this went unheeded he discharged the spray towards the soldier's head.
The soldier was then handcuffed and brought to his feet, still struggling. He was instructed to calm down and then allowed to stand for a period to allow the effects of CS Spray to wear off.
He was arrested and taken to Coleraine police station and, once the effects of CS spray had worn off further, he was placed in custody. The Custody Sergeant noted that the soldier showed signs of intoxication, as well as red eyes and a runny nose most likely caused by CS Spray.
A police doctor arrived at the station at around 4.10am to examine the soldier, who was recorded as being drowsy and did not respond to questions.
The Police Ombudsman's Office began an investigation after being informed of the incident, which occurred during the first five months following the introduction of CS Spray to Northern Ireland in the summer of 2004. The PSNI had requested that all discharges of CS Spray during this period should be investigated by the Police Ombudsman' s Office and the results of these investigations have been fed back to the police.
Police Ombudsman investigators attended the scene but found no forensic evidence to assist their enquiries. There was no CCTV coverage of the area and no witnesses were identified. Staff at the hotel were also contacted but no one had seen the incident.
The soldier who had been sprayed was also contacted but he did not co-operate with the Police Ombudsman's enquiries.
Training records revealed that the officer who had used the CS Spray had been trained in its use and was authorised to carry it at the time of the incident.
Having considered the evidence the Police Ombudsman, Mrs Nuala O'Loan, concluded that the officer had been entitled to use CS Spray, although she noted that he had not recorded all necessary details about the incident. This included the distance from which the spray had been used, and the aftercare advice and treatment which he had given to the soldier.
She also noted that police custody records showed that police had failed to check on the soldier every 30 minutes as they are required to in cases where people who have drink taken are placed in police custody. In this case, the soldier was checked upon at intervals of 43, 45 and 48 minutes. The delays were exacerbated given that the Custody Officer had been assisted by a gaoler, and also by the fact that the soldier had been sprayed with CS Spray, had appeared drowsy and had not responded to questions.
"This apparent failure of duty is a concern," noted Mrs O'Loan.
Her report on the incident makes a number of recommendations to the police, including that officers should be reminded of the need to record all information relating to CS Spray use and aftercare procedures, and the need for enhanced supervision of those who are placed in custody following CS Spray use. She also recommended that the Custody Officer should be reminded of the requirement to visit and rouse drunk prisoners every 30 minutes.