The police operation which resulted in the first fatal shooting by the PSNI was poorly managed by senior officers, but the officer who fired the fatal shots was justified in using his firearm to protect the life of a colleague.
These are the main findings of the Police Ombudsman investigation into the circumstances in which police shot dead 21-year-old Neil McConville on 29 April 2003.
Mrs Nuala O'Loan also expressed "grave concern" that sensitive intelligence was deleted from a PSNI computer during her investigation, at the attitude of officers who were in the Control Room, and at their failure to co-operate with her investigation.
Mr McConville was shot three times as he attempted to drive away from police officers who had stopped his car following a pursuit along the Aghalee Road near Ballinderry, outside Lisburn. The shots were fired when officers believed he was about to drive over a police officer who had been knocked down and was lying injured directly in his path.
Decision to pursue car and stop it from behind was a high-risk strategy.
Mrs O'Loan said the police decision to pursue the car and stop it "from behind" was a high-risk strategy. She criticised senior officers for failing to properly consider alternative options. As a result of her investigation Mrs O'Loan recommended that two officers be transferred to "less contentious areas of policing" and that most PSNI weapons be adapted to remove their capacity to fire automatically.
Police had begun monitoring the movements of a red Vauxhall Cavalier car after they learned that "Man A" was planning to collect a firearm which would subsequently be used in an attack on a named individual. Police tracked the red Cavalier to a meeting point in Belfast at which Man A was expected to obtain a firearm. Various people were seen getting into and out of the car before it headed south out of the city. A helicopter was used to monitor the car's progress. The Silver Commander of the Belfast Control Room was Detective Superintendent BB who was responsible for identifying the tactics to be used during the operation.
At 6.55pm he was told that the suspect car had left the city and was heading southwards towards the village of Stoneyford. He ordered two police vehicles to pursue the Cavalier and stop it from behind. The crew commander of the lead police pursuit vehicle twice asked for, and received, confirmation of the order. By this stage Mr McConville was driving the Cavalier. The two police cars caught up with the Cavalier on a relatively straight section of the Aghalee Road. Officers shouted a warning that they were armed and ordered the men to stop. When they failed to do so the police cars brought the Cavalier to a standstill. It came to rest sitting sideways across the road, but continued to rev loudly as the driver tried to put it into gear.
Civilian witnesses corroborated police accounts that driver ignored police warnings.
A number of armed officers got out of their cars and again ordered the men to stop. Civilian witnesses later provided statements which corroborated police accounts that the driver of the Cavalier showed no signs of aborting his bid to escape despite warnings from the police.
One officer broke the driver's side window of the car, grabbed Mr McConville's clothing and tried to pull him out of the car as he struggled with the gear-stick. The car suddenly reversed, striking the officer on the hand and knocking another officer into the air. The officer fell onto the road in front of the car and lay injured in a four to five foot gap through which the suspects would have to drive if they were to escape. The car was still revving loudly and three officers later told investigators that they feared the life of their colleague was in imminent danger.
Officer intended to fire only one shot, but discharged three because gun was in "three-shot burst mode".
An officer then fired a burst of three shots at the driver. He intended to fire only one shot, but his gun had inadvertently been set to "three shot burst" mode, and three shots were discharged. Two other officers stated they were also preparing to fire given the risk to their colleague lying on the road. Mr McConville was struck three times and seriously injured. His passenger was also struck by a bullet which passed through Mr McConville, but sustained less serious injuries. Both men were given first aid and taken to hospital. Mr McConville was pronounced dead at 8.07pm, shortly after his arrival at Valley Hospital in Lisburn.
After Mr McConville and Man A had been removed from the car, police found a "sawn-off" single barrel shotgun wrapped in a nylon coat and newspaper beside the front passenger seat. Later analysis established that the gun was unloaded, there was no ammunition in the car and there appeared to have been no attempt to use the gun during the pursuit.
POLICE OMBUDSMAN INVESTIGATION
The Police Ombudsman was informed of the incident and a total of 37 investigators were sent to various locations in response to the call. The incident scene and the vehicles involved were forensically examined. House-to-house enquiries were conducted and an appeal for witnesses was made. Witnesses included officers involved in the operation, ambulance and hospital personnel, civilian witnesses, the forensic scientist and the helicopter pilot. The accounts of the civilian and medical witnesses broadly corroborated those provided by officers at the scene. Investigators secured a variety of police documentation relating to the operation, and engaged forensic experts to produce a computerised representation of the circumstances of the shooting.
No criticism of officers on the ground.
Having considered the evidence, Mrs O'Loan said she had no criticisms to make of the officer who fired the fatal shots. "There were six officers at the scene initially. Having concluded that there was a serious and imminent threat to life, one officer discharged his weapon and at least two other officers were preparing to fire. "Independent advice also indicated that the lever controlling the mode of fire of his Heckler and Koch MP5 weapon could easily be selected in error or accidentally moved to a different setting during a pressurised situation. This is not the only time that I have investigated a situation when an MP5 was accidentally engaged in the fully automatic mode". On January 17 2005, following another investigation, I recommended that this function be disabled on the weapon," she added.
Intelligence went missing
Mrs O'Loan expressed "grave concern" that some of the intelligence on which the operation was based was deleted from a computer during her investigation. There was a delay of more than six weeks between the initial request for the intelligence and the PSNI granting access. During this time the Assistant Chief Constable (Crime) indicated that, following advice he had received, he was minded to refuse access. This prompted the Police Ombudsman's Executive Director to write to the PSNI to warn that the Police Ombudsman would refer the matter to the Chief Constable unless the information was supplied within seven days. The Chief Constable then intervened and access to the intelligence was agreed.
However, when they went to retrieve the intelligence, Police Ombudsman investigators were told that a specific piece of intelligence, critical to the investigation, had been accidentally deleted from a police computer. Despite seizing the relevant computer hard drive and securing expert assistance, it proved impossible to recover the information. There was no evidence to either support or disprove the police explanation of human error for the deletion of the information. Mrs O'Loan said: "People may have great difficulty accepting the explanation offered, particularly following the resistance to granting access to the material. A note of the information had been prepared by a police officer and this was available. However, it was not possible to check its accuracy
Most control room staff were uncooperative
Of the five officers who were identified as being in the control room, three did not co-operate fully with the investigation. An Inspector and a Sergeant refused to be interviewed, gave written answers to questions asked by the investigators, and then alleged that their written answers had been tampered with. When they were challenged they withdrew these allegations. The third officer, an Acting Inspector, refused to write a witness statement when ordered to do so by the PSNI at the request of the Police Ombudsman.
Mrs O'Loan said: "The lack of co-operation and the attitudes displayed by these officers is totally unacceptable and will undermine public confidence in the PSNI, particularly as they are employed in such a sensitive department of the organization. "Their attitude was in stark contrast to the officers involved at the incident scene, who were fully co-operative.
Police adopted a high-risk strategy without proper consideration of other options
Mrs O'Loan criticised the Gold and Silver Commanders for failing to consider properly alternative methods for apprehending the suspects. She said there was little evidence, and no documentary evidence, that they had considered other options. "The tactic of pursuing a vehicle and stopping it from behind is inherently dangerous and placed both officers and suspects at risk," said Mrs O'Loan. "When overtaking the suspect car at speed the officers conducting the stop were placed within the firing range of the potentially armed occupants of the vehicle.
"Loss of control of the vehicles and collisions would also be likely, particularly as the roads were wet on the night in question. This was a high-risk strategy with a high likelihood of requiring the use of potentially lethal force."
There are occasions when such a tactic is necessary, but only after careful consideration of other options. There is no evidence in this case that such careful consideration took place."
The Police Ombudsman's report states that alternative strategies would have included mounting a vehicle checkpoint ahead of the suspect vehicle, stopping the Cavalier en route to collecting the weapon, disrupting the exchange of the weapon in Belfast, or stopping the suppliers of the gun on their way to meet Man A.
Mrs O'Loan added that, due to the potential for loss of life, police firearms operations should be managed in accordance with clear rules and procedures.