The Police Ombudsman has found that a police officer was justified in using CS Spray to prevent a vicious assault on a man in Enniskillen in August 2004, but has warned against the dangers of using CS Spray during situations of spontaneous public disorder.

Thie incident happened at Forthill Street in Enniskillen in the early hours of Sunday 29 August 2004 as officers attempted to break up a fight involving six or seven males. One male was lying on the ground and being repeatedly kicked and punched by others.

The officers involved told Police Ombudsman investigators that the attackers had ignored requests to stop fighting and had continued even when officers tried to separate them.

The incident happened in the months following the introduction of CS Spray by the PSNI during a period in which, at the request of the PSNI, the Police Ombudsman investigated all occasions on which CS Spray was used.

The officer who discharged her CS Spray told investigators she was concerned that the victim of the attack would be seriously injured if the fight continued. She said she chose to use the spray instead of her baton because she had been trained that the spray represented a lesser use of force.

Having shouted a warning that the spray would be used if the fighting did not stop, she said she sprayed one continuous stream at the group of males from a distance of about three metres, aiming at their face and chest areas. She told investigators that she had taken care to aim directly at the group to minimise the chance of indirectly hitting bystanders.

The spray initially seemed to have little effect, but a number of youths gradually began to show symptoms. The officer said, however, that one of the males who had been involved moved aggressively towards her and demanded to know what had been sprayed in his face.

The officer warned him that the spray would be used again if he did not back off. She said he then dropped to his knees as the spray took full effect. The officer offered medical advice, explaining that the effects would wear off after a short time, and advised the youth to avoid rubbing his eyes.

The officer then went to speak to the youth who had been the victim of the assault to check on his welfare and establish if he wished to make a compliant of assault. However, he pushed past her and ran off.

As the officer followed she came across two girls fighting in the road. The officer arrested one of the girls and then returned to the site of the original fighting. Many of those who had been involved had by that stage dispersed. She was informed that the male who had been targeted with CS Spray had since been arrested.

The CS Spray canister used during the incident was seized by another, more senior, police officer and sealed in an evidence bag. A form recording its use was completed and the canister weighed in order to establish the amount of spray discharged. The canister's weight before use had been 54.7g, and following discharge, 45.0g.

Other police officers who had been at the scene provided statements to the Police Ombudsman's Office which corroborated the version given by the officer who used the CS Spray.

Police Ombudsman investigators also contacted local businesses, as well as the police, to establish whether the incident had been captured on CCTV. No footage of the incident was found.

Letters were also sent to a number of witnesses and to those who had been arrested by police, asking them to contact investigators in order to provide statements. No response was received to those requests.

The training records of the officer who discharged the spray were also analysed, and these established that she was qualified to carry the spray on the date of the incident.

Having reviewed the evidence of the case, the Police Ombudsman, Mrs Nuala O'Loan, found that the officer had been faced with "a situation where immediate action was necessary to stop the continued threat of violence posed to a member of the public who was being attacked by a number of youths."

She concluded that the use of  CS Spray "was justified, reasonable and proportionate."

"Undoubtedly, the CS Spray prevented further injury since, following its use, the youths stopped fighting and eventually ran off," said Mrs O'Loan.

She added, however, that she had "some concerns" regarding the suitability of CS Spray in situations of public order and unanticipated street disorder.

She urged that the suitability and risks of CS Spray in such situations should be re-emphasised during police training, and welcomed a memo issued by the Deputy Chief Constable dealing with the subject.

In the memo, DCC Paul Leighton warned that CS Spray was not designed for use in such circumstances, stating that it was not always effective and had the potential to affect innocent bystanders and other officers. He warned that this could leave officers vulnerable and undermine public confidence in the PSNI.

Mrs O'Loan added that her investigators had received full co-operation from the PSNI during the investigation, and concluded that no disciplinary or misconduct offences had been committed by any police officer.