Impartial Reporter
29 December 2007
The Police Ombudsman has come in for scathing criticism over the prosecution of a “very brave officer” who attempted to arrest a Fermanagh Gaelic football supporter for allegedly shouting “Up the ‘RA” at a Royal Black Preceptory church parade in Enniskillen.
Constable Keith McCabe was charged with assaulting Brian O’Connor after he allegedly used excessive force in arresting the Republican Sinn Fein Election worker.
O’Connor and another man, Paul Corrigan, were initially charged with disorderly behaviour but the Public Prosecution Service “inexplicably” dropped the cases against them and instead began proceedings against the police officer.
Constable McCabe’s defence barrister, Mr. David Dunlop, BL, said a “shocking and outrageous” investigation by the Ombudsman’s office had led to a “travesty of justice” in the decision to prosecute the officer.
Dismissing the charge, Mr. James McFarland, R.M., said he had sympathy with Mr. Dunlop’s remarks and they were not without basis.
“Had it been investigated fairly and properly this case would never have got off the ground,” he stated.
“This was an investigation quite clearly loaded against Constable McCabe from the word go,” he added.
“It has all the hallmarks of a witch hunt. It’s just about as unsatisfactory an investigation by the Ombudsman’s Office that it has been my misfortune to come across,” said the R.M.
He said that if it had been his decision, Mr. O’Connor should have been before the court.
“It’s a matter of regret that the charges were dropped,” he stated.
He said it was also a matter of regret that a constable “who behaved as bravely as he did” should have to wait until now to have his name cleared and be able to resume his normal life.
“That must have been a very traumatic time,” said the R.M., and had to be contrasted with the “almost cavalier attitude” of the Police Ombudsman’s Office.
“An innocent man has been affected in the most traumatic way,” added the R.M.
Fermanagh Court heard that the incident that gave rise to the officer being charged with assault took place around 8pm on Sunday, July 30, last year.
Fermanagh had been beaten by Donegal in the all-Ireland qualifiers and there were numerous supporters “milling about” in their green and white tops.
At the same time the Royal Black Preceptory who had been attending a service in Enniskillen Methodist Church began parading through the town, accompanied by a pipe band, travelling against the normal direction of traffic flow.
The prosecuting counsel said that as the parade made its way down East Bridge Street towards the cenotaph some of the GAA fans took umbrage and began shouting abuse and giving Nazi salutes.
He said Brian O’Connor and his brother Philip were walking up East Bridge Street accompanied by Colm Donnelly and his girlfriend, Edel McCusker, when they met the parade.
Mr. O’Connor gave evidence that they were just talking among themselves and none of them shouted abuse at the parade.
He said Constable McCabe, who was walking alone at the back of the parade, came over and grabbed him, accusing him of shouting abuse and “Up the ‘RA,” and arresting him for being disorderly. He was placed in handcuffs and then kicked on the back of the leg and “manhandled” into the back of a police car.
“In no way was I resisting him or interfering with him,” stated Mr. O’Connor.
The court heard that when the police officer was interviewed about the incident he made the case that he had put his knee into the back of Mr. O’Connor’s knee because he was refusing to get into the police car. He maintained this was a reasonable and proper use of force to get Mr. O’Connor to bend his leg so that he could get him into the car.
Dunlop McCubbin, a deputy senior investigating officer with the Police Ombudsman’s office, subsequently accepted under cross-examination that such “knee strikes” are a recognised tactic used by the police.
A doctor who examined O’Connor could find no evidence of any swelling or bruising but Mr. O’Connor complained of “tenderness” to the back of his left leg and took the following week off work.
Cross-examined by Mr. Dunlop about his involvement as an election worker with Republican Sinn Fein, Mr. O’Connor, said he did not support “eternal hostility” to the PSNI.
“This is a very live political issue in the nationalist community. In the last fortnight an elected member of the Assembly, Gerry McHugh, has resigned from Sinn Fein solely over their stance on the policing issue,” he stated.
Two of Mr. O’Connor’s companions: his brother, Philip, and Colm Donnelly; and two people who had been drinking in a nearby bar: Mr. O’Connor’s former co-accused, Paul Corrigan, and his partner, Emer McGullion, gave evidence about the incident.
Mr. McCubbin, the deputy investigating officer with the Police Ombudsman’s Office in Belfast, accepted under cross-examination that the same standards applied to their investigations as are applied to a police investigation and that witnesses would be interviewed whether their evidence pointed towards or away from a suspect.
The R.M. said that in this case “that level of fairness does not seem to have been observed.”
He stated: “This matter does need to be investigated and it is in the public interest that it does be investigated. I’m really concerned about it.
“I’m interested in how the Ombudsman’s office investigated this and if they investigated it fairly and properly,” he added.
Mr. McCubbin was shown a statement from an independent witness, Mr. David Black, identifying people in the vicinity of where Mr. O’Connor’s group was and accusing them of making sectarian remarks. It was suggested to him that the failure of the Ombudsman’s office to interview Mr. Black was “an astonishing failure to follow up a line of inquiry.”
The R.M. said it was “absolutely unacceptable” from the point of view of a fair investigation and people like Mr. Black ought to have been interviewed. Mr. Dunlop went on to point out to Mr. McCubbin that the other police officers on duty with Constable McCabe were not interviewed nor were other independent witnesses from the Royal Black Preceptory nor Edel McCusker.
Mr. McCubbin agreed that these were reasonable people to have been interviewed and accepted that it was not fair that not one witness who could have backed up Constable McCabe was interviewed.
The court was told that Constable McCabe was surrounded by a hostile crowd while arresting Mr. O’Connor.
The R.M. commented: “He must have been a very brave officer to attempt to arrest somebody, single handed, in that situation and that is to his credit.”
Mr. Dunlop submitted that the case had the “most appalling” inconsistencies that one could imagine and that the witnesses had told a range of lies.
The R.M. agreed that “certainly there are inconsistencies” in the evidence.
Dismissing the case against Constable McCabe he stated: “Had it been investigated fairly and properly this case would never have got off the ground.”
And he concluded: “I must say that if I had the power to do it I would award costs against the Ombudsman.”