Barr Tribunal Report Chapter 11

CHAPTER 11

Less lethal options¹

Introduction

Part of the remit of the Tribunal is to consider whether alternative measures could have been taken to deal with the threat posed, either when John Carthy was in his house, or when he emerged from it. This involves an examination of what are known as ‘‘less lethal’’ options and particularly, in the first instance, what options were available to the Garda; and secondly, what options, if any, were available internationally in April, 2000. Section A is a consideration of less lethal ‘‘devices’’. The potential use of dogs as a tactical option at a firearms incident is considered in section B. This includes an examination of the availability of appropriately trained dogs to the Garda Sı´ochana´.

SECTION A: — Less Lethal Devices

The Tribunal heard evidence on this topic from Detective Superintendent Hogan, the officer in charge of the Emergency Response Unit.

Issues relating to less lethal options have been exhaustively considered in Northern Ireland by the Independent Commission on Policing for Northern Ireland, whose report entitled ‘‘A New Beginning: Policing in Northern Ireland’’ was published in September, 1999. This Report and the Commission are referred to herein as the ‘‘Patten Report’’ and the ‘‘Patten Commission’’, the names by which they are more commonly known.

The Patten Commission in its initial report made two recommendations in connection with alternative measures to the use of firearms. They can properly be described as ‘‘less lethal options’’ rather than ‘‘less than lethal options’’, in that no weapon is without risk of injury, including fatal injury.

The Patten recommendations include the following:

Recommendation 69 states that ‘‘an immediate and substantial investment should be made in a research programme to find an acceptable, effective and less potentially lethal alternative to the Plastic Baton Round (PBR)’’.

1 The Tribunal wishes to thank the Northern Ireland Office for permission to use the Patten Report; The Police Scientific Development Branch of the Home Office in the United Kingdom for permission to utilise the Donnelly Review and Evaluation; the Association of Chief Police Officers in England, Wales and Northern Ireland for permission to use its ‘‘Manual of Guidance on Police Use of Firearms’’; the Police Complaints Authority of England and Wales for permission to use its ‘‘Review of Shootings by Police in England and Wales from 1998 to 2001’’, and the Royal Canadian Mounted Police for permission to use its ‘‘Major Case Management Task Force Report’’.

Recommendation 70 postulates that ‘‘the police should be equipped with a broader range of public order equipment than the RUC currently possess, so that a commander has a number of options at his/her disposal which might reduce reliance on, or defer resort to the PBR.’’

In the summer of 2000, the then Secretary of State for Northern Ireland, having consulted with Cabinet colleagues and others, ‘‘established a UK wide Steering Group to lead a research project aimed at establishing whether a less potentially lethal alternative to the Baton Round is available; and reviewing public order equipment which was then available or could be developed in order to expand the range of tactical options open to operational commanders’’.

The implication in the recommendations is that they relate primarily to public disorder involving groups of individuals, but, as made plain in the Patten Report, such an examination overlaps with incidents involving single individuals who are armed with a firearm or other offensive weapon. It is therefore of relevance to the Tribunal.

Interestingly the Patten Report stated at paragraph 9.14 that:

‘‘In view of the fatalities and serious injuries resulting from PBRs and the controversy caused by their extensive use, we are surprised and concerned that the government, the Police Authority and the RUC have collectively failed to invest more time and money in a search for an acceptable alternative. We were able to discover very little research work being done in the United Kingdom (except in the development of more accurate PBRs), by contrast, we were impressed by the efforts being made and commitment to develop non-lethal weaponry alternatives in the United States, particularly at the Institute for Non-Lethal Defense Technology at Pennsylvania State University and the National Institute of Justice in Washington. Nevertheless, although this work appears to hold some promise, we are advised that as yet, no non-lethal alternative to the PBR exists which can effectively intercept the petrol bomber while protecting the police and the public from injury.’’

The first steering group paper was published in April, 2001. The group comprised representatives of Her Majesty’s Inspectorate of Constabulary, the Home Office, the Association of Chief Police Officers of England, Wales and Northern Ireland (ACPO), the Ministry of Defence, the Police Authority for Northern Ireland, the Police Scientific Development Branch of the Home Office (PSDB), and the Royal Ulster Constabulary (RUC). The steering group was chaired by the Northern Ireland Office. At the stage of the first report, the group had concentrated on Phase I of the terms of reference and in accordance with Recommendation 69 of the Patten Report, addressed the following specific areas:

i. Acceptability,

ii. Effectiveness, and

iii. Lethality in minimum force.

The importance of the first report, from the point of view of the inquiry conducted by this Tribunal, is that it sets out what the state of literature and research was at its establishment in June, 2000 and the completion of Phase I in mid-February, 2001, i.e., broadly speaking the literature and research that would have been available internationally at the time of events at Abbeylara in April, 2000.

The steering group took steps to ensure that its work was consistent with the approach adopted by AC PO. In addition it made contact with a range of other bodies with relevant experience and expertise, including, for example, the National Institute of Justice in the United States, a body which comes under the aegis of the United States Department of Justice, and Pennsylvania State University.

In relation to the first topic reviewed i.e ‘‘acceptability’’, three aspects were considered by the steering group; the human rights and legal requirements; the ethical and cultural grounds, and the medical issues.

While the consideration of the group was primarily directed towards the possible alternative to baton rounds, or what are colloquially but rather inaccurately called ‘‘rubber’’ or ‘‘plastic bullets’’, a number of operational requirements were considered in the context of providing a means of keeping at a safe distance those posing a serious threat to life which would otherwise require the intervention of police officers at close quarters, potentially placing them at great risk. These requirements included repelling an individual attacker with potentially life-threatening weapons — and in certain circumstances, incapacitating temporarily those intent on violent attack.

The United States National Institute of Justice has described less lethal options as:

‘‘Devices or agents used to force compliance with law enforcement personnel without substantial risks of permanent injury or death to the subject’’.

Importantly the steering group contended that the performance data on commonly available products provided in their paper originated from manufacturer’s data which had not yet been verified by a PSDB testing programme. It also cautioned that little evidence of independent medical assessment was available for much of the commercially obtainable equipment covered by that review.

The technologies then available were divided by the steering group into the following categories:

i Chemical

i Diversion and Distraction i Electrical

i Impact

i Mechanical.

Chemical Agents

CS (O-Chlorobenzylidene Malononitrile), OC (Oleoresin Capsicum), CN (Chloroacetophenone) and CR (Dibenz(b.f.)-1 :4-oxazepine), and PAVA (Pelargonic Acid Vanillylamide) delivered by grenade or projectile, or used as a personal incapacitant spray together with olfactory agents were considered. The various agents were analysed in depth in the report.

Diversion and Distraction Devices

Diversion and Distraction devices include agents intended to utilise methods of overloading the senses by sound, light, smell or a combination of these to promote a distracting or disorienting effect. In this category the group considered sound and flash grenades, and smoke grenades.

Sound and flash grenades include ‘‘stun grenades’’ that emit one or more loud bangs or flashes of bright light. They are hand thrown and are typically used in rapid entry situations where police officers need to gain access or apprehend individuals before they can injure themselves or others. The ERU at Abbeylara were in possession of ‘‘two bang’’ and ‘‘nine bang’’ distraction devices. These were the only such devices available to the Garda in April, 2000.

As entry of the Carthy house had been ruled out by the scene commander and the ERU tactical commander, it appears that the potential use of these devices was not considered. It seems that that was reasonable in all the circumstances.

Light devices which use distraction or disorientation by virtue of dazzle effect were considered by the steering group but concerns existed on the question of eye safety. Additionally in bright sunlight, the power needed for such devices to be effective could lead to exposure above safe or admissible limits, and on that account those devices were eliminated from consideration by the group.

Electrical Devices

Electrical devices include any weapons which use the effects of electricity to incapacitate the subject or target. There were a variety of different devices available in the year 2000 but their principle of operation was the same. They are battery powered and use a low current, high voltage shock for incapacitation. The electrical stimulus delivered by the device temporarily interferes with the normal electrical signal generated by the human nervous system. Incapacitation by electrical means appears to be a virtually instantaneous method with almost instant recovery, although some questions remained on delivery methods and on health effects.

The most widely used electrical device, at this time, was the Taser. This was first used in l976 and has been used by hundreds of police departments in the United States for many years. Taser is an acronym for ‘‘Thomas A. Swift Electric Rifle’’.

Put in simple terms, a cartridge attached to the front end of the weapon contains two barbs, each of which is fixed to a coiled length of wire. The barbs are fired at the target and attach themselves to the skin or clothing of the individual. They are propelled by a small cylinder of compressed gas which is ruptured by a pyrotechnic mechanism within the cartridge. When the barbs strike a subject, a current can be sent down the wires and through a person’s body between the two barb points. This current interferes with and overrides the body’s neuromuscular system and thus voluntary muscle control is lost between the two dart points, which usually results in the subject falling to the ground or ‘‘freezing’’ in place.

The maximum range of a Taser is 21 feet (6.4 metres), with some devices having a maximum range of only 1 5 feet (4.6 metres).

There were a number of potential problems with the Taser in its then original design and tests have shown its effectiveness to be between 55% and 86 %. There are a number of potential reasons for this which are summarised below:

i. One of the wires failing to attach or falling out would render the device ineffective;

ii. Poor contact with the barbs;

iii. Excessively thick or insulating clothing;

iv. Flat batteries (batteries need replacing and are vulnerable to extreme cold) or other electrical problems;

v. Operator difficulties (missing target, failing to hold down button or discharge current);

vi. Abnormal physiological resistance to the electric shock. Some individuals have been found to have a potential to fight through the effects of the Taser.

Over and above this, there are concerns about the effect of the Taser current on the body with potential for a number of secondary injuries occurring. This matter is dealt with at some length in the First Steering Group report.

The use of Taser guns was widely publicised in the media in July, 2005 in connection with the capture of a suspected suicide bomber as he fled from the police in the city of Birmingham. Its use in that particular case was criticised on the grounds that the incidence of success is less than 86% at best and, even if successful, the potential bomber, though disabled, might not be prevented from detonating his bomb. (In the event it transpired that the subject was not in possession of a bomb at the time.)

However, in an Abbeylara type situation, use of a Taser gun, if available to the ERU officers who were close to John Carthy when he vacated his house, would seem to have given them good prospects of success in disabling and apprehending him without resort to a lethal option. In fact no such weapon was available to the Garda Sı´ocha´na at that time.

Impact Devices

The first steering group report also considered the effect of Impact Devices, such as bean bags, soft rounds, powder filled rounds, sponge grenades or rubber ball rounds, the fin stabilised rubber projectile, multi-ball rounds and baton rounds.

That report summarised the effect of these as follows:

‘‘This type of equipment probably comprises the majority of commercially available less lethal products and includes bean bag rounds, sock rounds, sponge grenades and baton rounds (polymer, plastic, rubber or wood). There are many different manufacturers producing different types of round — for instance, there are at least twenty different types of bean bag round — and product accuracy, range and quality differed tremendously. Recent tests in America have shown more than half of various types of impact rounds on the market are unable to hit an 18’’ (455 mm) diameter target at 25 yards (23 metres). In assessing impact rounds, a complex balance between effectiveness and unintended consequences is likely to have to be taken into account. It is currently believed that, in order to be effective, the impact is such that striking vulnerable areas of the body runs a risk of causing serious injury or death. To be effective and safe requires control of the impact point. Hence, accuracy is one of the most important attributes of these types of round, if unintended injuries are to be minimised. For example, the manufacturers of one type of round recommend that it is not fired at the head, neck, heart or spine; if the round is inaccurate it may be impossible to do this with certainty. Recent innovations in baton round design and delivery systems have produced greater consistency at longer ranges, whilst reducing injury potential, particularly at closer ranges. This is a significant development. Some types of impact rounds attempt to spread the energy and impact; sponge grenade, sock round and liquid filled rounds are examples. This could reduce the seriousness of injuries but the accuracy, effectiveness and other attributes of these rounds needs to be verified’’.

The steering group commissioned the Police Scientific Development Branch of the British Home Office to carry out extensive examination and research by way of review of the then commercially available and near market, less lethal technologies.

The steering group thought it essential to distinguish between systems that might have potential for use in the UK and those that were judged not to be suitable. The group and ACPO identified three separate categories arising from their research. This analysis was based substantially on the review carried out in February, 2001 by the Police Scientific Development Branch referred to as the Donnelly Review. It has been summarised in the second report of the steering group published in December, 2001 and provides a good overview of the benefits and drawbacks of the various technologies:

‘‘3. Category A

Devices, which may be subject of immediate, more in depth research:

(i) Medium-Range (5-20m) to Long-Range (over 20m) Devices

(a) Kinetic Energy Rounds

This generic category includes sponge grenades, beanbags, sock rounds and single and multiple ball rounds. (Note — the L21A1 [plastic baton round] has not been included in this study as extensive testing has already been carried out for this round.)

(b) Discriminating Chemical Delivery Devices/Rounds These devices/rounds can be used to deliver a quantity of chemical irritant (e.g. CS) to a target at an extended range, i.e., further than is possible using conventional hand held sprays (10-14ft). These tend to combine kinetic impact effects with chemical irritant effects to produce incapacitation of the target. The degree of each effect varies with each system and is dependent on the velocity, size, shape, material etc. of the round and also the quantity of irritant contained within it.

(ii) Water Cannon

Conventional vehicle mounted water cannon are in use throughout Europe and in other parts of the world. Work has been carried out by the Home Office between 1981 and 1987 but was discontinued by the then Home Secretary. A review of all currently available vehicle mounted and portable water cannon is underway to identify those systems which most closely meet the operational requirements of the UK police.

(iii) Electrical Devices (e.g. Tasers)

Electrical devices include any weapons that use the effects of electricity to incapacitate the target. There are a variety of different devices but their principle of operation is the same. They are battery powered and use a low current, high voltage impulse shock for incapacitation. The electrical stimulus delivered by the device interferes with the normal electrical signals generated by the human nervous system. Incapacitation by electrical means appears to offer a virtually instantaneous method of incapacitation with almost instant recovery, although some questions remain on delivery methods and on health effects. Priority has been given to those devices that can be used at an effective range, for example the Taser.

(iv) Laser/Light Devices

The effects of bright light/laser devices can range from dazzle or glare to image formation, flash blindness and irreversible damage. Generally, these devices do not incapacitate a person, although there may be some deterrent effect as the target becomes aware that he/she has been picked out. A device that dazzles at large

distances may cause irreversible damage at close range. These devices are considerably less effective in daylight or in the presence of strong artificial light.

(v) Noise Generating Devices

The potential of loud noise to distract and disorient is well known and can be incorporated into devices that are either hand thrown or fired from weapons. The requirement is for a non-fragmenting and non-pyrotechnic device that will provide a potentially less injurious alternative to the more traditional stun grenade.

4. Category B Devices warranting further research over a more extended time frame:

(i) Malodorants

Malodorants may be of assistance in dispersing crowds although they are unlikely to prevent a determined assailant at short range. There may be issues about decontamination following deployment, especially in residential or heavily populated areas. The possibility of developing malodorous devices appears not to have been fully explored and exploration of this technology will necessarily be longer term. There may also be toxicological considerations for these types of device.

(ii) Tranquillisers

It has been suggested in some quarters that in a broadly similar way to that in which vets and game wardens are able to tranquillise animals, the police should have the capability to tranquillise subjects. However, the speed of reaction to any anaesthetic or drug will be an important factor in its use, as will the possibility that different people will react differently to it and the dose required to incapacitate one person may prove harmful to another.

5. Category C Devices, which presently do not require further research:

(i)

Stun Grenades

These devices could be considered to be too indiscriminate and potentially dangerous.

Smoke

These devices could be considered to be too indiscriminate and potentially dangerous.

Acoustic Devices

This is not yet a mature technology and there is a lack of scientific evidence on the effectiveness and risks of infrasound and acoustic shock wave devices.

Text Box: Electromagnetic Waves

This device is still subject to further development. It may also be potentially easily countered by adequate protection by the subjects.

Nets and Wire

Potentially injurious due to the indiscriminate nature of the necessary weights attached to the devices.

Glue, Foam and Grease

Problems would appear to exist with respect to potential suffocation of subjects, decontamination and exclusion of emergency services as well as disorderly/dangerous individuals.’’

The Donnelly report indicates that the United Kingdom experience is significant. A major driving force in research in the UK has been the Patten Commission and ACPO operating through the PSDB.

It can be seen that at the end of 2001, CF spray, which had been introduced in l996, was in use in 41 of the 43 constabulary areas in England and Wales. Its use is more appropriate to police officers on the beat or patrol, its effective use being at close quarters. Interestingly, the second report prepared by the steering group, published in December, 2001 makes the following points at paragraphs 95 and 96 under the heading ‘‘Armed and Violent Individuals’’:

95. The threat posed by individuals armed with sharp and bladed weapons was one of great concern to officers who were interviewed in the study both in Great Britain and Northern Ireland. Unarmed officers considered this one of the most hazardous threats to deal with. Whilst armed officers have the re-assurance that ultimately they could utilize their firearms to defend themselves from lethal attack, there is both a desire and requirement to have a viable less lethal alternative. Such an alternative would need to be effective in bringing about immediate incapacitation at ranges out to 10 metres.

96. Officers considered the maximum range of the personal incapacitant sprays to be too restrictive in these situations and they wished the ability to maintain a distance of in excess of 7 metres. They also realized the importance of being at a distance which enabled effective verbal negotiation to take place.

This report found that sprays require to be used at relatively close quarters (1-3 metres) and are not 100% effective.

In the third report prepared by the steering group, published in December, 2002, it referred to the fact that PSDB had recently become a member of the European Working Group on Non-lethal Weapons and also continued to strengthen relations within Europe itself. In the US there was little consideration of the evidence from Europe concerning any detailed evaluation of less lethal technologies or weapons prior to their introduction in that jurisdiction. The European Working Group was

impressed by the UK methodology and expressed particular interest in the results that were being obtained by the PSDB research.

Police in Europe are generally armed, as they are in the US. In Europe and the US the introduction of less lethal weapons may be seen primarily as an attempt to defer resort to firearms. This may explain why the public and governments in those countries are prepared to accept a less structured and researched implementation of these weapons. The police here, as in Great Britain, are generally unarmed and any additional weaponry, even less lethal weapons, may be seen by some as an erosion of that concept.

Accordingly it would seem that from the Irish perspective caution should be exercised in adopting technologies that have been embraced more readily in some police forces in North America and in Europe.

Paragraphs 21 and 22 of the third report of the steering group under the general heading of ‘‘An overview of this Report’’ deal with the fact that the search for a safe and effective alternative to the baton round then in use in Northern Ireland, the L21A1, had not identified at that stage any suitable round, despite an extensive review and evaluation of commercially available and near market products.

Paragraph 22 went on to state that:

‘‘The Steering Group is aware that in Europe, North America and elsewhere, a wide range of commercial products, including impact and chemical delivery rounds, is used. Often the only testing for safety and medical purposes is that reported by the manufacturer which we do not believe is a sufficiently thorough test for the acceptance and deployment of use of less lethal options. The criteria are set high in the United Kingdom — the accuracy threshold (described again in detail in Chapter 6) in the independent medical evaluation are exacting by any standard. The Group does not consider it could credibly recommend at this stage any existing commercial round as they have not yet been shown to have met our criteria. One impact round — a 12 gauge sock round — is being further evaluated against medical (and effectiveness criteria); but its range limit of 25 metres is a significant limitation. Moreover the sock round is fired from a shotgun; there may be issues relating to the use of conventional firearms to fire a less lethal projectile in a public order situation.’’

The third report of the steering group also makes the point that there is less public resistance to the use of less lethal options fired from weapons in the US and Canada because police forces there are armed and that concept is widely accepted in those jurisdictions.

The Taser is the weapon most frequently referred to by the public when speaking of issues such as that at Abbeylara. It has been adopted by a large number of police forces world-wide, particularly in the United States and Canada and studies of the experience in those jurisdictions is set out in the steering group’s third report.

The Taser is now being researched in England and Wales and year-long operational trials are in progress in Northamptonshire, Lincolnshire, the Metropolitan Police, North Wales and the Thames Valley Police, which are being backed by the Home Office in Britain. A considerable volume of research and development information, together with experience in the use of the Taser, is referred to in great detail in the Steering group reports.

The Commissioner of the Garda Sı´ocha´na undertook in the report that he submitted to the Minister concerning the events at Abbeylara, to carry out a review and evaluation of ‘‘less than lethal’’ weapons and to this end established a Working Group to make recommendations on their use. This was established in September, 2001 and on 14^th September, 2001 various companies that produce less lethal devices came to Dublin and a one-day demonstration took place. A report was submitted to the Commissioner on 1st November, 2001. The working group focused on the following weapon types or categories:

i. Physical — blunt impact from projectiles.

ii. Chemical — gas aerosol projectors.

iii. Electrical — Taser.

iv. Non-lethal entanglement technology (Nets).

An implementation team was established by the Commissioner of which Detective Superintendent Hogan was a member. This team completed its work and reported on 10^th June, 2002. The report was sent to the Minister on 30^th July, 2002. The Commissioner sought Government approval for the implementation of the recommendations therein contained.

The following options were recommended in the original Working Group report:

i 12 gauge 2 × 2 Square ‘‘Bean Bag’’ shot, shotgun and cartridges (Fin Stabil ised);

i 12 gauge Ferret 12 gauge OC/CS shotgun cartridge; i OC/CS Multi-purpose Grenade.

In Chapter 8 of the Working Group Recommendations these devices are described as follows:

‘‘12 gauge 2 × 2 square ‘‘Bean Bag’’ shot, shotgun cartridge

12 gauge 2 × 2 square ‘‘Bean Bag’’ shot, shotgun cartridge is a high energy, single target round for incapacitation or the distraction of a non-compliant, armed aggressive suspect. The ‘‘Bean Bag’’ round is widely used both in the U.S. and Europe. It has been successfully used against a broad range of individuals and in a variety of scenarios. A 12 gauge ‘‘Bean Bag’’ is intended to be direct fired. The [sic] must be adequately trained in the use of Specialty Impact Munitions and have a thorough understanding of the round and

considerations for selecting shot placement such as level of threat, target distance, size and clothing.

12 gauge Ferret 12 gauge CS/OC shotgun cartridge

The 12 gauge Ferret 12 gauge CS/OC shotgun cartridge is a fin-stabilised, frangible projectile filled chemical agent. It affords stand off distance for safety. It is used primarily by tactical teams. It is designed to penetrate barriers, such as windows and hollow core doors. On impacting the barrier the small chemical is released inside a structure or building. It is primary [sic] used to dislodge barricaded suspects from small confined areas. Shot placement and trajectory are important considerations for use.

OC/CS Multi-purpose Grenade

OC/CS Multi-purpose Grenade is designed for indoor or outdoor use. The Grenades can be hand-held or launched. A variable delay mechanism for either two or five seconds allows the user to effectively discharge the chemical within the target area. It is used primarily by tactical teams ... to dislodge suspects from confined areas. Shot placement and trajectory are important considerations for use.’’

The implementation team availed of the opportunity to revisit the preferred options in light of additional information which became available since the original report. It recommended the acquisition of:

i A Bean-Bag cartridge incorporating a ‘‘drag stabilised’’ projectile. This is considered to be aerodynamically superior to its square counterpart, thereby providing greater accuracy.

i 12 gauge Ferret 12 gauge OC/CS shotgun cartridge.

i DEFTEC, MK-21 Aerosol Projector. It comprises a pressurized aluminum canister (rechargeable and refillable) equipped with a nozzle which allows for the directional, high volume discharge of Oleoresin Capsicum (OC) to a target at distances of up to 25-30 feet. Its target-specific stream allows for controlled delivery, whilst minimising the effects of wind and rain on accuracy. It is more discriminating than other options.

The net effect of these reports is that the Commissioner proposed to the Minister that the three devices recommended by the implementation team be introduced. The Minister approved their introduction in November, 2002.

Conclusion

The Tribunal’s remit is not to investigate current effectiveness and safety of ‘‘less lethal’’ weapons but to examine what was available in April, 2000; whether any such weapon then widely available could have been used at Abbeylara; and whether they would have been safe and effective from an operational point of view.

Detective Superintendent Hogan told the Tribunal that 25 yards is the effective range of the most common police firearms. If a subject is armed any activity within such a distance from him or her leaves both the subject and the armed police officer in a very dangerous position. He also told the Tribunal that the use of less lethal options against a firearm is not regarded in every case as an appropriate first choice bearing in mind the right to life of the officer and his right to protect either himself or the public.

No instrument of force is 100% effective each time it is used. The response of an individual depends not only on physiological but also on psychological conditions. Therefore the only available comparisons of various weapons are generalisations. When a police organisation considers adopting a certain type of instrument it must check medical data and consult experts to make sure that all relevant aspects and issues involved are known and considered.

It seems clear from the evidence of Detective Superintendent Hogan that the less lethal equipment now authorised for use by the Garda Sı´ocha´na was not available to it in April, 2000 and was not then generally available to other European Union police forces. Some of the devices were used by certain North American police forces, but it appears from the reports available to the Tribunal, and particularly the first and second Steering Group reports of the Patten Commission, that at the time of their publication no less lethal weapon then available had passed safety and medical considerations which would have been acceptable in this jurisdiction.

The Tribunal does not regard itself as being sufficiently informed to have an authoritative opinion on whether the three options in the area of less than lethal weapons recommended by the Commissioner and authorised by the Minister in November, 2002, are likely to have been effective in disarming John Carthy after he left his house on the evening of 20^th April, 2000 and headed towards Abbeylara. It appears that all of them could have been advantageous in achieving that purpose, but the Tribunal has insufficient information to assess the prospect of success in each case.

The fourth less than lethal option, the Taser gun, referred to earlier in this chapter would seem to have had a greater prospect of success than any of the other three options if available at Abbeylara. It is of particular interest that use of the Taser weapon is presently being researched in depth by five police forces in the UK under the auspices of the British Home Office. I recommend that the Garda Sı´ocha´na should carry out similar research with a view to deciding whether the Taser should be adopted as part of the armoury of the ERU and the inclusion of instruction in its use in their training regime.

SECTION B: — The Potential Use of Dogs at the Scene

There were in fact no police dogs at Abbeylara. Should a team or teams of specialist dogs and handlers have been available to the ERU and, if used, what benefit (if any) is likely to have ensued?

The following expert witnesses gave evidence on this subject: Sergeant David Lee, a police dog specialist supervisor attached to the West Mercia Constabulary in the UK; Mr. Alan Bailey, former superintendent of the West Mercia Constabulary and an expert in the police use of firearms who is also familiar with the use of dogs; Mr. Michael Burdis, former detective chief superintendent of the South Yorkshire Police; Superintendent Neville Matthews of the New Zealand police; Mr. Ray Shuey, former assistant commissioner of the Victoria police, Australia, and Superintendent Aidan Reid who is the officer in charge of the Operational Support Unit of the Garda Sı´ocha´na which includes the specialist dog unit. The following conclusions are drawn.

General Background

Broadly speaking there are two types of police dog — known as compliant and non-compliant. All are under the individual direction of police officers who are specialist dog trainers and handlers. There are three categories of compliant dogs. The first are general purpose dogs (usually Alsatians) which in Ireland are used for beat patrols; crime prevention; tracking criminals; searching for missing persons; and, pursuit of fleeing criminals. The second category (usually Labradors) are used for tracing drugs. The third category (usually Spaniels) are for tracing explosives. All compliant dogs are under the strict control of their handlers. They work in collaboration with other police units, such as the ERU in this jurisdiction. Where a compliant general purpose dog is used to pursue and overpower a fleeing criminal, the concept is that it will be faster than the subject who is running away and also faster than pursuing police officers. Through training the dog is aware that it will reach the fleeing subject first and that its function is to jump on and overpower him or her. However, if the subject stops, or walks rather than runs from the scene a problem arises. The dog is trained not to attack in such circumstances but to stand off and leave it to police officers to apprehend the subject. Superintendent Reid has indicated in evidence that if the fleeing subject walks from the scene and does not run, a compliant dog may not attack the person because such a situation does not accord with its training. In practical terms this problem does not arise in many instances because criminals fleeing from the scene on foot usually do so by running away as fast as they can in order to avoid capture.

Non-compliant police dogs (usually Alsatians or Dobermanns) are specially trained as firearms support dogs. They are taught to bite or attack people on command. Sergeant Lee explained that the objective is to make the dog aggressive and to achieve a situation where it will attack and bite a person when instructed to do so even if he/she is standing still and making no noise. Once the non-compliant dog is instructed to overpower a subject, it will attempt to do so whatever the conduct of that person. It is common practice in most parts of the UK, in New Zealand and in Victoria, to avail of firearms support dogs and to provide a minimum of two with handlers for use at firearms incidents such as that at Abbeylara. Where a criminal attempts to escape from the scene, non-compliant dogs are often successful in bringing about the capture of the subject, thus avoiding the use of lethal force. There are some problem areas, but the general experience in the foregoing jurisdictions appears to be that the use of firearms support dogs is a valuable less lethal option

with a substantial incidence of success in an Abbeylara type situation. All of the experts were of opinion that use of non-compliant dogs would have been a valuable less lethal option for contending with John Carthy when he made an armed uncontrolled exit from his house and failed to respond to officers who called on him to surrender his gun. However, in the context of events at Abbeylara, it is very unlikely that compliant general purpose dog teams (being the only type then available to the gardaı´) would have been of practical value. John Carthy at no stage ran on leaving his house but at all times walked in an apparently normal way. The evidence indicates that compliant general purpose dogs would not attack him unless he had appeared to them to be running from the scene. However, non-compliant dogs would have attempted to attack and overpower him whatever course of action he might have taken. If two such dogs were available at the scene, as postulated by Sergeant Lee, Mr. Carthy, having a single cartridge in his gun after discarding the other one, could have shot only one dog if he had been attacked by two. It seems likely that in such circumstances either the uninjured dog would have overpowered him or he would have been overpowered by one or more of the nearby ERU officers as some of them were aware that he had only one cartridge in his gun having discarded the other one on reaching the road. In the light of the foregoing, it will be appreciated that potentially in the future it is likely to be of great value for a scene commander and an ERU tactical unit to have the benefit of two non-compliant firearms support dogs and handlers in close proximity to the stronghold for use in the event of an uncontrolled armed exit by the subject from the premises.

Conclusion

The expert evidence received by the Tribunal on the use of police dogs establishes beyond doubt that the ERU should have the benefit of non-compliant firearms support dogs and handlers for use in contending with armed criminals and also dangerous persons who may be motivated by mental illness. The training of such dog teams should include regular work with the ERU officers so that all may learn to operate successfully together and to create the ‘‘pack’’ concept referred to by Sergeant Lee in his evidence. I also apprehend that the use of firearms support dogs might well be of crucial importance in the context of ‘‘moving containment’’ which arises if the subject makes an uncontrolled armed exit from the stronghold. Such dogs could be invaluable in bringing ‘‘moving containment’’ to a successful conclusion without resort to lethal violence.