The Police Ombudsmans Office has released details of its investigation into an incident just before Christmas 2004 when police officers and a member of the public ended up in a fight in a dimly-lit graveyard in County Tyrone, with both sides kicking and punching at each other.
Although it did not receive any complaints about the matter, the incident happened during the six-month period in 2004 when the Police Ombudsmans Office agreed to a request from PSNI to investigate all its use of the CS Spray. During the altercation two officers used the spray.
The incident arose following a disturbance late on Tuesday night, December 22, outside a public house at Killyclogher. During a fight one man was knocked unconscious, a number of police officers were assaulted and six men were arrested for various public order offences.
Shortly after two oclock on Wednesday morning police saw another fight break out between two men on the Old Mountfield Road near the bar. They separated the men but one of them then ran into the graveyard at St. Marys Chapel - an old graveyard, with uneven ground and numerous gravestones.
One of the policemen followed the man into the graveyard, which was dark and not near any street lighting. As the police officer caught up with the man, he punched the police officer twice on the right side of his face. As the officer tried to restrain him, the two fell to the ground, with the officer ending up pinned under the man, who continued to punch him about the head.
The police officer shouted at the man to stop or he would use his CS Spray. The officer then fired his spray but it did not appear to have any effect on his assailant.
A second police officer arrived on the scene and saw his colleague being punched about the head. He shouted a warning to the man, discharged his CS Spray, but again it had no effect. The man continued to beat the police officer about the head. The officer then punched the man on the head but this too did not have any effect.
The officer then aimed a kick at the mans rib cage and then at his leg. The man fell onto his stomach. He was then handcuffed and arrested.
Police Ombudsman investigators visited the graveyard but did not discover any forensic opportunities. Investigators established that there were not any CCTV systems in place covering the graveyard. They also noted that there were no houses in the area and this, coupled with the fact that there was no street lighting near the area of the fight, suggested that no one could have seen clearly what happened. No one came forward as witnesses.
The investigators examined police documentation and details from the doctor who examined both the injuries of the man and of the police officer. Both sets of injuries appeared consistent with the police officers accounts of what happened.
The man who had been injured by the police did not make a complaint and did not cooperate with the Police Ombudsman investigation.
The Police Ombudsmans Office concluded that the officers had been right to use CS Spray and that the officer who kicked and punched the man had little option:
It was only after he was punched and kicked that the man was brought under complete control. Although the police officer who did this used a greater degree of force than he had used earlier, it could be argued that it was still reasonable in the circumstances given the violence he faced.
Although a hypothetical assumption, it would appear that the man had no intention of stopping the assault by his own volition and the longer it was allowed to continue the greater the consequences of the police officer being injured.
The Police Ombudsmans Office did, however, criticise the PSNI in Omagh for not using the oncall procedures in place at the time for such incidents.
This meant a gap of some six days between the incident and the Office becoming aware of it. Although no evidential opportunities were lost in respect of the delay on this occasion, this might have not been the case in a different set of circumstances, it said.