Barr Tribunal Report Chapter 6

CHAPTER 6

The Management of the Incident at Abbeylara — Siege

Management Principles

Introduction

The objective of the Garda Sı´ocha´na in relation to crisis incidents, such as that at Abbeylara, is to achieve a peaceful resolution of the incident in as safe a manner as possible, where the risk to the subject, the police, and the public is minimised. The strategy adopted to achieve this end is one of isolation, evacuation, containment and negotiation. This strategy has been adopted in many countries and was used at Abbeylara. However, it has been observed by expert witnesses that there is no ‘‘perfect system’’ for the resolution of incidents such as that under review.

Tactical measures to achieve isolation, evacuation and containment include the formation and implementation of a cordon system, strategically placed and appropriately staffed by trained, experienced officers who are properly instructed and adequately resourced. During the evidence to the Tribunal it became clear that the negotiation leg of this strategy is a crucial one. The isolation and containment of the subject, while in the first place being for the purposes of public safety, after that aim has been achieved, is to provide an appropriate environment for the peaceful resolution of an incident through negotiation.

Tactical measures adopted internationally and in Ireland are considered in this chapter.

In section A the principles of isolation, evacuation and containment are discussed. Section A.1 sets out the observations of international policing experts in relation to cordons and containment. The training of the Garda Sı´ocha´na in relation to siege management is considered in section A.2. In section A.3 the application of these principles to the incident at Abbeylara is addressed. Section A.4 considers the role of local officers and the potential for police cross-fire, a ‘‘blue on blue’’ shooting. The response of officers to issues raised is dealt with in section A.5.

An important aid to the negotiation process is the gathering of information and its analysis and assessment for the purpose of providing intelligence to the officers involved. Section B deals with this matter, and includes the training received by members of the Garda Sı´ocha´na, the experts’ views and observations, and the responses thereto from the appropriate officers.

Section C deals with the principles of negotiation, their application at Abbeylara; the training received by the relevant officers in these principles; the implementation of

the principles and training at Abbeylara; the experts’ views and observations; and, the relevant officers’ responses thereto.

The Tribunal also considered the previous operational experience of the Garda Sı´ocha´na in responding to crisis incidents similar to that at Abbeylara. Evidence was received in connection with an incident at Bawnboy, Co. Cavan in January 1997. The features of the operational response to this incident are set out in section D.

SECTION A: — Isolation, Evacuation and Containment

SECTION A.1 — Cordons and Containment — Observations of
International Policing Experts

1. Containment

Mr. Bailey noted that the definition of containment is ‘‘the action of keeping something harmful under control or within limits’’. He referred to international consensus, that where an armed individual poses a threat to life, armed police physically restrict such individuals’ movements and isolate them from the public. This process is called containment. It is a well-accepted principle of siege management and requires the establishment of a number of cordons, which consist of an inner cordon of armed officers, whose focus is the individual at the centre of the incident (and who will also obtain intelligence on the subject’s movements); and an outer cordon, whose function and focus is to exclude members of the public from the area. The outer cordon provides the inner cordon with a sterile area within which to operate. Members of the public and unauthorised police officers should be excluded from the sterile area. Mr. Bailey said that access for police personnel should be restricted to armed officers going to and from the stronghold for specific operational tasks, or unarmed specialist personnel escorted by armed officers. The scene commander dictates who is allowed to enter the scene. In the United Kingdom, it is the practice to maintain written records of persons allowed through the outer cordon to the scene. The purpose of the visit is also recorded. This prevents officers congregating near the stronghold as bystanders.

Containment — a solution?

Containment is not a solution to an incident. Mr. Bailey explained that it provides police with the ‘‘control’’ necessary to ensure public safety; ‘‘time’’ to work towards a negotiated solution, to consider tactical options and to prepare detailed plans. The area contained by police will vary with the location and circumstances of the incident. Containment may be overt or covert. Overt containment ensures that the subject is aware that police are present. This may result in an immediate surrender or a change in behaviour thereby reducing the threat posed by his or her actions. When the subject does not surrender, the presence of police restricts movement and often assists in stabilising the situation. Covert containment allows for the organisation of personnel and the preparation of tactical plans before the subject is

made aware of police presence. Such containment usually provides greater safety for the first police responders. Mr. Bailey considered that, at Abbeylara, John Carthy was aware of police presence, but could not have seen the sort of numbers that he mentioned in his phone call to Kevin Ireland. As far as he could determine, the containment was effective but visually discreet. None of the evidence, of which he was aware, indicated that John Carthy could have seen gardaı´, other than those at the negotiation point.

Personnel at inner cordon

Mr. Bailey explained that no one should be allowed at or inside the inner cordon, other than armed officers putting into effect a tactical option. Exceptions to this rule include police dog handlers who are normally unarmed. Other specialists may also be permitted. These are people who require access to fulfil their specific role, such as personnel from a technical support unit who may be charged with putting into place appropriate specialist equipment. He reported that when such persons are unarmed each dog handler or specialist will require a dedicated armed officer to provide for his protection.

Containment — an illusion?

Mr. Lanceley, whose primary expertise is as a negotiator in crisis negotiation and not as a tactical scene manager, commented that when tactical personnel devised the concept of inner cordons or perimeters, what was really in mind was a combat or a hostage type situation. He observed that, in reality, what keeps a person contained is the fear of coming out. If he does not have such fear, he is not contained. Only persons who perceive a threat outside will stay inside, and thereby be contained. He commented that containment at Abbeylara was largely an illusion. Short of nailing the doors and windows closed, he queried how containment was possible to achieve. He felt that John Carthy was contained for as long as he chose to be so contained. When he chose not to be contained he walked out of the residence with a shotgun in his hand. He was not contained, he was ‘‘merely surrounded’’; containment prevents an escape. Mr. Lanceley believed that in the absence of proper containment the police would have to resort to tactical options, something which he had advised against on many occasions before. Reassurance to the subject that there would not be police encroachment is standard practice in the United States; something which he observed Detective Sergeant Jackson did ‘‘on almost every communication’’.

Mr. Bailey agreed with the psychology of the concept of containment. He did not agree, however, that containment at Abbeylara was largely an illusion. The containment at Abbeylara was similar to almost every firearms situation worldwide. Effective containment is achieved when police maintain their position, do not advance and the subject remains where he is. He had no criticism of the deployment of the ERU officers at Abbeylara, but highlighted what is considered good practice in the United Kingdom of deploying officers in pairs. This, he said, was for a variety of reasons including the requirement of continuing observation. He expressed the opinion that containment was effective at Abbeylara.

Containment — spontaneous incidents and planning

Pre-planned operation — Garda Code

The Garda Code makes specific provision for what are known as pre-planned operations. The evidence to the Tribunal suggests that the provisions of the Code, in this regard, are designed to deal with situations which are planned in advance. Personnel involved in pre-planned operations will have adequate time to make plans in advance of their participation in that operation. Generally speaking, such plans will be operation specific. Non pre-planned operations or spontaneous incidents include emergency situations which require immediate response, such as the incident at Abbeylara.

Initial response — planning — generic response plan

The evidence of Mr. Bailey is that in the initial stages of a spontaneous firearms incident, the police operation will be based primarily on a generic response plan. Such planning is normally limited to the selection of pre-learned tactics that provide the most likely solution to known events. He stressed the desirability and necessity of making plans, and of writing those plans down. Once a spontaneous incident stabilises, plans are made and written down to assist in the resolution of the incident. Contingencies are identified and plans are prepared to address them. These contingencies are sometimes known as the ‘‘what ifs’’, and involve thinking through what could happen in the particular incident. As the incident develops, the plans will be reassessed and may be amended, if required. They are also used to brief new personnel and enable senior officers to be informed of ongoing developments. He was of the view that, at some stage, an ongoing incident which commences spontaneously becomes a planned operation.

Tactical response defined by strategy

The response, tactical and otherwise, to any incident is defined by the strategy which has been set for the operation. The strategy which was adopted at Abbeylara was to evacuate, isolate, contain and negotiate. Such a strategy requires planning. It may be that there are standard plans that will be required at any siege. It is likely that these will be prepared in advance by the tactical team. According to Mr. Bailey, this will afford the team the opportunity, in training, to put plans into effect and to ensure that they have the necessary equipment available when responding to an incident. Such plans may also be generic and may include delivery plans, exit plans, break-out plans and a surrender plan. However, they should be adapted for use at the particular incident. In respect of any novel contingency which emerges, a specific plan should be prepared.

Planning — exit plan

One such plan, being an exit or break-out plan, has been described by Mr. Bailey in evidence as a moving containment plan. It is noted that during the course of the evidence at the Tribunal, this plan has been referred to as ‘‘moving containment’’, or ‘‘flexible or moving cordon’’ plan. It is a plan which allows a cordon of officers to move with the subject. It does not of itself provide a solution to the incident. It

provides more time to resolve the situation before there is a requirement to resort to lethal force, if necessary. The scene commander develops the plan in conjunction with the tactical team leader and the negotiator, if appropriate. The plan may include such things as how the person will surrender, a consideration of how he or she may come out, taking into account whether the subject is to be allowed come out with a firearm, and the instructions that are to be given to the subject in such circumstances.

2. Moving containment — the appropriateness of the tactic

Moving containment as a tactic — diverging views

Considerable evidence was adduced at the tribunal in relation to the moving containment, or flexible cordon plan, as a tactic which was purported to be employed at Abbeylara. Different views were expressed by various overseas policing experts as to whether it is an appropriate tactic to be adopted or employed in circumstances such as those that prevailed at Abbeylara. Some regard this tactic as being too dangerous, resulting in the transfer of the problem to a different location. It is a plan which is not favoured in certain jurisdictions, such as the United States and Victoria, Australia. Mr. Lanceley was particularly critical of the use of moving containment as a tactic, stating in his view, that a moving cordon is close to being an oxymoron: ‘‘if law-enforcement is moving the cordon with the subject, then he has already breached the inner cordon. There is no containment. There is no perimeter’’. However, Mr. Bailey was of the view that if the cordon is moving around an individual, he is still within the cordon. He has not breached the inner cordon. He remains contained. It may not be as satisfactory as if he were static in a building. There is still a perimeter, that perimeter is the outer cordon. It is providing a sterile area in ‘‘permitting the movement that the moving cordon creates’’.

Moving containment — a spreading of the threat? — sterile area

Mr. Lanceley in his report and evidence observed that containment and perimeters serve several purposes and functions. These include preventing the spread of the threat. A moving cordon does not accomplish this objective. If the subject is moving, the threat is moving with him to new areas. Another objective of the cordon is to prevent the escape of the subject. The experience in the United States is that subjects have escaped when moving cordons were attempted. Mr. Lanceley also expressed the view that, as the subject moves to new areas, the threat moves. Mr. Bailey agreed, but for him the real issue was whether those new areas were sterile. If the area is sterile, the threat is not increasing or changing; there is no one who might be subject to that threat. A sterile area is required so that the likelihood of confrontation between the subject and other police personnel is reduced. Mr. Bailey emphasised that if you have a sterile area with no one in it, this allows movement. The exclusion of the public from this area is of greater importance than the exclusion of police personnel. However, police personnel who are present should:

‘‘only be those that need to be there to provide the armed containment of the individual and those same individuals that would be providing the moving containment. If you have additional police personnel, the likelihood is that they

get in the way, they become potential targets themselves and reduce the distance that somebody can be allowed to move’’.

He accepted that it was more difficult to plan and allow a moving containment in an urban environment. However, it has occurred. The greater the distance the subject of the siege can be allowed to travel, the more time police have to deploy another tactic or to succeed in negotiation. To be most effective, alternative tactics, particularly less lethal ones, should be available to resolve the incident, before the subject reaches a point where the threat he poses to others requires police to use lethal force. Thus, in the United Kingdom, police dogs are an essential part of the cordon system.

Mr. Lanceley also observed that another function of containment and perimeters, namely the prevention of the entry of unauthorised persons to the operational area, is compromised when moving containment takes effect. Because the operational area moves, it becomes much more difficult for the authorities to prevent the entry of unauthorised persons into that area, particularly if the authorities do not know where the subject of the incident is going. Further, the subject effectively controls and determines the direction of travel. Mr. Bailey was in general agreement with these sentiments. Nevertheless, his view was that this also comes back to the question of a sterile area. If the area is sterile there is no problem. If it is not sterile, there is a problem:

‘‘It comes back to my point in relation to the location of the outer cordon ,i.e. the point at which no innocent parties could pass or get into it. Providing you have a sufficiently large sterile area, it is still safe and controlled by police because no one can get into it, there is no one there.... and you can allow the movement. If you were unable to make the area sterile, you wouldn’t be able to operate the containment system, hence you wouldn’t be able to operate a moving containment.’’

It is to be observed that in those circumstances the necessity to shoot an armed subject might be unavoidable.

Moving containment — isolation

Mr. Lanceley stated that a further purpose of the cordon was to isolate the subject from the outside world. When moving containment takes place, Mr. Lanceley expressed the view that the subject is no longer isolated. Mr. Bailey agreed but thought that this point was more significant from the negotiator’s perspective. In a moving containment, the subject is still isolated from the outside world in terms of posing a threat, which is the tactical firearms officers’ consideration. Psychologically, the subject may not be isolated from the outside world and this could be significant to the negotiator. It does not, however, create a reason for not adopting a moving containment, if it is safe to adopt, Mr. Bailey told the Tribunal.

Moving containment — pressure on the subject

Mr. Lanceley further noted that a purpose of moving containment is that it puts pressure on a subject and that while putting pressure on a hostage taker may be advantageous, putting additional pressure on someone such as John Carthy is not advantageous: ‘‘He is already under a lot of pressure’’. Mr. Bailey agreed, but stated that when one considers the alternative (being the use of lethal force to prevent him from leaving the curtilage of his house), the option of not shooting and attempting to peacefully resolve the situation has to be the option to be selected.

Moving containment — shape of cordon

Containment enables a disciplined controlled response of emergency resources by facilitating the establishment and placement of staging areas, command post, perimeters, and checkpoints. With moving containment or moving cordon, Mr. Lanceley was of the view that all of those advantages were lost. Further, he did not know what an ideal moving cordon looked like; thus, in his view an L-shaped cordon is extremely dangerous if anyone discharges a weapon. There was risk of crossfire. Many situations in the United States that ended tragically were moving situations. In other situations the subject escaped.

Moving containment — cover

A moving cordon requires personnel to leave cover and move to the next position of cover, if there is any. Mr. Lanceley visited the scene at Abbeylara and, from what he observed, there was no cover for gardaı´ to use in a moving incident. Mr. Lanceley queried how a moving cordon was to be safely achieved, with an obvious requirement for officers to maintain cover. The concept of moving containment achieves two things, Mr. Lanceley concluded — it leaves the decision to a lower ranking individual, and endangers lives. While a ‘‘lovely idea’’, the concept ‘‘horrified’’ him. He had never seen a single incident in his career where the concept worked.

While he understood why the gardaı´ wanted to perform a moving containment, he did not agree with counsel for the Commissioner’s suggestion that ‘‘on his own analysis’’, it was appropriate to try to have a form of moving containment, instead of an earlier and more potentially lethal option. The risk was too high. Gardaı´ put their own lives at risk:

‘‘once he came out the door with his shotgun, . . . any likelihood of a peaceful resolution had just evaporated’’.

He accepted that what had occurred was an ongoing deferral of the use of lethal force. The big difference between Ireland and the United States, he surmised, was ‘‘who makes the decision’’. In the United States the senior man makes the decision as to where to draw the line in the sand. In both the United States and Ireland, the use of lethal force is a last resort, but this is where the situations differed — when do you arrive at the point of last resort? He felt that the law and culture in Ireland was expecting a ‘‘whole lot from police officers’’. He agreed with counsel for the 36 named gardaı´ that the difference in culture and law (i.e. the taking or non-taking of advanced decisions whether to shoot or not) may provide a possible explanation

why moving containment is an option preferred in this jurisdiction. Perhaps it was a question of experience. Perhaps, he queried, the culture here will evolve but gardaı´ may die before such an approach is changed.

It was not entirely clear to Mr. Bailey how the ERU intended to safely achieve a moving cordon. From a training perspective people are trained to make as much use of cover as possible. Where you cannot make use of cover, officers are taught tactics to make themselves smaller targets. He noted that local officers and ERU officers demonstrated this when they moved into and out of the containment area during the course of the incident. The evidence demonstrated that they understood that buildings and objects provided them with cover. He expected that their training would have taught them to move from cover to cover.

Moving containment — planning for cover

Thus, in planning for moving containment one must consider the availability of cover and provide for cover if it is sparse or if none exists. For example it is possible to go to the opposite side of a wall as the subject moves to the other side. It is also possible to plan in advance by pre-positioning cover such as police vehicles. Generally speaking, the engine compartment, the wheels and the back axles of motor vehicles provide cover from bullets, but not necessarily cartridges. However, ballistic protection and cover can be provided by placing a ballistic or ‘‘Kevlar’’ blanket on a vehicle. A Kevlar blanket is made of the same material as body armour and would stop a shot from a shotgun. Therefore, with additional planning it would have been possible to position cover for officers, even in the absence of having a specialist armoured vehicle at the scene. In planning, if the point at which officers have no cover is identified, a risk assessment should be carried out and attempts made to reduce the risk. This is done by providing some cover. There is, however, a downside to providing cover in the middle of the road in that the subject may make use of this cover for himself. However, that, at least, would mean that the subject had stopped and had created a more static situation. In either eventuality, therefore, Mr. Bailey expressed the opinion that the provision of cover can only lead to an improved situation.

Mr. Burdis spoke about putting bulky obstacles in the way such as large bales of straw, sandbags etc., which might not only provide cover for officers but would also make life more difficult for John Carthy to walk along a straight path. However, he agreed with the Chairman’s observations that you would need an awful lot of obstacles in order to confine John Carthy, who was a fit young man, to the curtilage of the house or even within the garden. He agreed that he could not say you should put obstacles in every particular place. He saw benefit in putting an obstacle across the front gateway. Ultimately, Mr. Burdis was not critical of the fact that obstacles were not put in the way. ‘‘One must apply common sense in the circumstances’’. Essentially it came to a question of giving proper consideration and analysis as to whether obstacles could be of benefit.

Moving containment — a line in the sand

In his evidence to the Tribunal, Sergeant Jackson stated that the gardaı´ did not operate a policy of drawing a line in the sand; or that such a line could not be crossed regardless of the level of threat posed by the individual. In the United States, Mr. Lanceley stated that ‘‘a line would have been drawn in the sand’’. Mr. Carthy would have been told not to step over that line because ‘‘it would be just too dangerous for everyone’’. In the United States, he would have been told not to come out of the house with the shotgun, that if he came out of the house with the shotgun in his hand, he would be considered as presenting an imminent threat to officers. He would have been told that ‘‘you are going to get yourself hurt, Mr. Carthy. Do not do that’’.

Mr. Bailey commented that what was proposed in moving containment is to move a ‘‘bubble’’ around the subject maintaining the sterile area. No member of the public is present, there is no threat, and the police can keep a degree of control over the individual. He further agreed that it would be unreasonable and impossible to have a situation where the subject is permitted to ‘‘walk miles’’. There are few circumstances where that could be sustained and still maintain public safety. Most circumstances, in which moving containment operates, are measured in yards not miles, but is determined by the point at which the subject poses a threat to the lives of others. That becomes the point beyond which the subject cannot be permitted to pass. Thus, the immediacy of a threat may become apparent where a person is still in the building and in certain circumstances he may be justifiably shot. Similarly, such a ‘‘line’’ may be near the outer cordon, but, Mr. Bailey said:

‘‘it has to be drawn effectively where the outer cordon becomes part of the risk unless you can move your outer cordon, and that is considerably more difficult to do than moving your inner cordon or adjusting the deployment of your inner cordon’’.

Such a point is one that the scene commander identifies as being one where the subject is likely to confront unarmed personnel or endanger the public. He agreed however, that in placing containment on an individual who poses a potential threat to the public and others that you must identify where the line in the sand is. What permits a moving containment is when you can place the ‘‘line in the sand’’ next to, or extremely near, the outer cordon, and not the inner cordon.

Stopping John Carthy without risk to others

Mr. Lanceley observed that ‘‘unfortunately there is no technology, device, tactic or procedure that could have stopped Mr. Carthy without further risk to innocent parties’’. Mr. Bailey did not agree with this. He was ‘‘totally convinced’’ that a police dog would have been an option had the incident occurred in the UK. However, no such option, including the police dog option, could give any guarantees. The use of dogs in the potential resolution of incidents, such as at Abbeylara, is considered in Chapter 11.

Moving containment — inner cordon — specialist intervention

Mr. Burdis essentially agreed with Mr. Bailey’s observations on moving containment. Mr. Burdis accepted that it was a tactic which was difficult to deploy depending largely on topography and cover. In the circumstance that obtained at Abbeylara, he believed that it could have been used to good effect. There has got to be ‘‘quite a lot of space’’ in the sterile area especially if one is contemplating any form of moving containment. It was, at least, a means of securing more time and changing the circumstances and opportunities for a peaceful resolution.

Mr. Burdis also expressed the opinion, that where there is time to prepare for such eventuality, it was good practice to rehearse or at least to try out some of the thoughts and plans pertaining to the situation. Every officer concerned with the moving containment plan requires careful briefing and each needs to know precisely what the other is intending to do. He stated that it was not usual to use officers from the inner cordon to perform this function. He observed that it can be too difficult for them to move from their post quickly enough to maintain control over the subject, and to do so with proper regard for their own safety. Thus, if the entire inner cordon was in a fixed place they are not easily able to respond to a particular moving containment, especially in a breakout situation. Some of them will not be in positions where they are able to respond quickly:

‘‘having to run very quickly down the garden, for instance, is not really the best way of being able to respond to an incident. Whereas had the officers been located in very close quarters, but not responsible for actually manning the inner cordon, they would have been much better able to move — and much more quickly — and freer to move than they were in this instance’’.

However, he described that as a ‘‘luxury’’ which did not often apply.

Mr. Bailey agreed that in certain circumstances such a difficulty may arise. However, he remained of the view that it was possible for officers on the inner cordon to involve themselves in moving containment. He made the point that if one was to deploy officers to be available to do a moving containment, four separate teams of officers might be required to cover each side of the house. That could create a ‘‘logistical nightmare’’. It may well be that there is a requirement for additional officers but Mr. Bailey did not think that it should be said, as a matter of policy, that officers on the inner cordon should not be allowed to move. Further, it was appropriate to re-deploy officers who are no longer achieving their objective. Mr. Bailey’s comments in this regard were put to Mr. Burdis, who noted that certain officers arrived and were put in place at approximately 10:15 p.m. on the first night, and did not have an opportunity of talking together about how they might, as a unit, deliver moving containment if it was ever required:

‘‘they may well have talked on the radio to each other, but very much a face to face conversation and being part of a properly devised plan was never an option that they were able to take part in’’.

He felt that in this case it could be argued that there was sufficient time and resources for such an exercise to take place especially if the ERU had not been engaged almost

from the moment they arrived in the manning of the inner cordon. The ERU should have spent its time planning to manage the eventuality of an uncontrolled armed exit. He commented as follows:

‘‘... once the subject moves up the lane, then you have to think about how you get from that property into the next door’s property and whether you allow him to go to the next door property or go beyond that. What action you are going to do and where you draw the lines at that are going to prevent him moving any further.’’

Mr. Burdis also thought that officers engaged on both cordons require a briefing because the subject could easily approach their position. The officers also require to be briefed as to the limit of territorial boundaries and their legal duties in such circumstances where those boundaries might be breached.

SECTION A.2 — Training of Members of the Garda Sı´ocha´na in Relation to Siege Management

1. Evidence of Chief Superintendent Ludlow, Detective Superintendent Hogan

Evidence relating to the relevant training of gardaı´ was given to the Tribunal by a number of officers, including Chief Superintendent Kevin Ludlow, the director of training and development at the Garda College in Templemore, and Superintendent Patrick Hogan, who has overall responsibility for the ERU. The evidence of Chief Superintendent Ludlow and Superintendent Hogan is now considered in subsections 1 and 2.

Cordons

Officers of all ranks receive training in the operation of cordons. Chief Superintendent Ludlow stated in evidence that a ‘‘building block system’’ is utilised in training for a number of issues — cordons being a specific example of one of them. Insofar as student/probationer gardaı´ are concerned, they are first introduced to the concept of cordons by way of general discussions when considering issues involving major emergency planning. While there are no specific lectures on cordons, Chief Superintendent Ludlow stated that as they touch upon many areas of day-to-day garda activity, training is interwoven in those areas. Training in cordons is considerably more specific in the sergeants’ development programme. Furthermore, detailed training is given to inspectors and superintendents in their promotion courses which is directly related to the additional responsibilities that those officers have. The evidence proffered to the Tribunal indicates that in an incident of the type that occurred at Abbeylara, the system, as taught to officers envisages two cordons, an inner cordon looking inward, and an outer cordon looking outward. The former directs its attention to the stronghold; the latter ensures that unauthorised persons and vehicles do not trespass upon the scene. This is accepted by the gardaı´ as reflecting good international practice, and is reflected in the training received by

garda officers of different ranks. Chief Superintendent Ludlow also stated that the purpose of the outer cordon is to keep the area between the two cordons sterile. The concept of a sterile area is explained in training to the student/probationer gardaı´ in the context of the requirements of a response to a major emergency.

Flexibility within cordons

With regard to the concept of moving containment as referred to by various experts at the Tribunal, Chief Superintendent Ludlow stated in evidence that he was unaware of the term ‘‘moving containment’’. Flexibility within cordons arises from the concept that cordon plans should be sufficiently flexible to provide for changing circumstances. This was echoed in the evidence of Superintendent Hogan who stated that the concept of moving containment is not taught in the Garda Sı´ocha´na. What is taught is movement/cover within the training on the concept of cordons. The concept in general is based on issues of movement, cover and flexibility as to where cordons are placed. He confirmed that local detectives are aware of the concept of having to move during the placement of a cordon, and they receive training in connection with this. Members of an inner cordon, he stated, should not allow breakout from that cordon, because it lessens police control. Flexibility in the cordon system prohibits such an occurrence.

Back-up cordons and sterile areas

Superintendent Hogan was also questioned on the concept of a back-up cordon, as dealt with in training. This, he said, was addressed in the context of allocation of available resources and was dealt with in the practical aspect of the Superintendents Development Course. He observed that the training in the practical aspect of the Detectives Training Course is that such officers are taught and know that ‘‘they are resources’’ and will be allocated to such duties as the scene commander sees fit. He explained in evidence that while the sterile area required the exclusion of certain people, it did not prevent the reallocation or movement of personnel between the inner cordon and the outer cordon. That is a police operational area. It was important, he said, that officers understood the concept of the outer cordon, providing an area where policing can operate. In firearms incident training emphasis is placed on danger within the sterile area. Gardaı´ are aware, through training, of the need to keep cordons intact; and of the necessity to maintain the credibility of the cordon. However, he stated that the flexibility required to manage a scene must take cognisance of the fact that you may need to move resources in or out — or ‘‘whatever

you decide on’’.

2. Training — siege management

Senior officers — Operational Commanders Course

Chief Superintendent Ludlow provided evidence of the training received on the Operational Commanders Course, which is part of the Superintendents Development Course. It includes information and training on such issues as cordons and armed operations which are carried out on a theoretical and practical basis. In relation to the formulation of plans, preparation for contingencies, the keeping of logs, and the

gathering of information, contributions to the courses are made by officers who have expertise in specific operational areas or who have had training expertise in those areas. Training in relation to the interaction between the local commander and the ERU was done by way of table-top exercises. Log keeping was addressed in training connected with armed operations. The advice on the recording of logistical information such as duty times, entry and exit times from the cordons etc., he noted, was delivered in the lectures on ‘‘Siege Theory’’ and in the ‘‘Siege Practical’’ lecture. In his experience, the importance of intelligence and information gathering is explored in practical exercises. Teaching in relation to the location of the command and negotiation posts, and the safety of officers was also addressed in the context of the practical scenarios. Assessment of risk in connection with officer safety was taught in a number of different modules on the Superintendents Development Course.

The Chief Superintendents Development Course contains a lecture on ‘‘Principles of on-Scene Command, Including Hostage Negotiation and Management Development Programme’’. This lecture is given by a Detective Inspector from the ERU. As is appropriate to the role of Chief Superintendents, the training and discussion here is at a more strategic level.

In evidence Superintendent Hogan outlined the input of the ERU to the training of senior officers on scene management techniques. As a detective garda and a detective sergeant within the ERU, he was involved ‘‘on the ground’’ during practical exercises forming part of the Superintendents Development Course, though not in delivering lectures. As a detective inspector in charge of the ERU, he delivered lectures on the Superintendents Development Course from 1996 onwards. His involvement was in the theoretical aspects of siege management; what the ERU could bring to a siege; and in the broader assistance the ERU could be to district officers in their general policing role. ERU members took part in the practical exercises forming part of the course. These lectures, he said, provided an opportunity for interaction between the management of the ERU and district officers, and for informing the latter as to the specialist function which the ERU could bring to incidents. Such lectures also covered the key principles of ‘‘evacuate, isolate, contain and negotiate’’. In connection with cordons advice was given by the ERU participants on the necessity of establishing a sterile area between the inner and outer cordons; the purpose of this area being to exclude unnecessary people from the scene for safety reasons. The establishment of this area provides a working environment for the police to perform whatever tactic is required.

It was impressed upon the new superintendents that the cordon system is a key element to any major incident.

Joint training

It is not common practice for non-ERU detectives to train with ERU personnel in relation to tactical manoeuvres such as movement and cover. However, joint training opportunities may arise during tactical training courses for local detectives, and do arise in the practical siege scenario on the Superintendents Development Course.

Superintendent Hogan stated that local detectives are aware that they may form part of an inner cordon with the ERU. Thus, they have an academic knowledge from their training together with practical applications of this knowledge in the course of their training, of such a requirement.

Role, training and involvement of the ERU

Role at scene

Superintendent Hogan outlined the role of the ERU at a siege or barricaded incident. Its first role is primary containment; an additional role is to facilitate the negotiator in whatever tactic he or she adopts. The scene, however, remains under the control of the scene commander and ERU personnel operate under his or her control. Decision making rests ultimately with the scene commander. The scene commander receives advice which he or she is free to accept or reject from the tactical unit leader. Superintendent Hogan said that the primary response of the Garda Sı´ocha´na is to facilitate a peaceful resolution through negotiation. The gathering of on-scene intelligence, safe delivery of medicines and food and the implementation of release and surrender procedures are part of the overall response. He also stated:

‘‘As the ERU provides a specialist armed response to a wide variety of incidents, the firearms training element is emphasised. From this base other skills are added, such as first-aid, rope access, special entry techniques, driving and self-defence methods. Physical fitness also forms a major part of training as the role is demanding both physically and mentally. These various elements are combined in the development of tactical and operational methodology’’.

ERU training

Dealing with ERU training, Superintendent Hogan observed:

‘‘Approximately 25% of ERU time is scheduled for training, this compares equally with similar full-time police tactical units. In addition, each of the four units must attend bi-annual training weeks at the Garda College where fitness tests and firearms qualifications are undertaken, along with general training. The specialist school Garda College supervises this training’’.

He further stated in evidence that:

‘‘Prior to allocation to ERU each applicant must complete a two week pre-selection process. Those successful undergo a six week training module consisting of; qualification in pistol and Uzi, driver training and basic tactical skills. The latter module introduces trainees to the basics of siege management and the roles played by the various elements that compose the garda response to such incidents. Applicants are then allocated to an operational unit where they must complete a two year probationary period, prior to appointment as a detective in the ERU. It takes approximately eighteen months for new members of the ERU to qualify in all basic skills courses prior to specialisation. Following this, members may train to instructor level in skills such as firearms, rope access and first aid, with selected members specialising in other skills and equipment’’.

The training which members of the ERU receive is dealt with in more detail in Chapter 10.

The relationship between the ERU and the scene commander at the scene

Superintendent Hogan explained that ERU Headquarters does not interfere with what is going on at the scene of an incident, but is available to give advice to the scene commander. Headquarters’ involvement is confined to being familiar with what is happening at the scene, so as ‘‘to keep an eye’’ on the logistics and the use of resources.

3. The evidence of Detective Superintendent Maher

Superintendent Timothy Maher gave evidence in private session. It is therefore not intended to deal with his evidence in detail. Superintendent Maher lectured on relevant Garda training courses.

Much of what was stated by Chief Superintendent Ludlow and Superintendent Hogan is echoed in the evidence of Superintendent Maher. He observed that it was acknowledged within the Garda Sı´ocha´na that superintendents, as district officers taking over the management of a siege, would not have had substantial expertise or exposure to the management of such incidents. Therefore the primary objective of the course was to engender an understanding of the concept of siege management. In particular superintendents were made aware of the expertise that was available to them (negotiators, ERU, technical personnel etc.) and given an understanding of the format or structure of siege management. Superintendent Maher lectured on the course together with members of the ERU. The following is a brief synopsis of his evidence in relation to the training of scene commanders.

Command structure

Training emphasises that the scene commander retains overall responsibility for the incident and it deals with the skills necessary in bringing together a team of different experts or specialists and managing them in a coordinated way. He must maintain an integrated command structure so that all actions contribute to the overall objective.

Preparation — establishment of a forward control base

The superintendent of the relevant district (or someone delegated to act in his absence) should go to the scene of the incident and establish a forward control base. Forward control is located between the inner and outer cordons.

The scene commander should locate himself or herself at the forward control base from where all instructions will be issued. If the siege occurs in an isolated area the forward control may be situated in an official vehicle which has radio communication with the base station or headquarters; a steady stream of precise and accurate information should be relayed from forward control to the base station.

Assessment of required resources

Initially, the primary role of the scene commander is the development of an operational strategy for the resolution of the incident. This will involve contingency planning, the rapid evaluation of the situation, making decisions on the capability of the resources currently available to him or her and deciding whether extra expertise or resources are required. Appropriate officers should be selected to take charge of different facets of the operation (such as cordons, negotiations, firearms, etc.) together with dedicated liaison officers between these facets and the scene commander. The delegation of intelligence gathering is another important function and such intelligence should be available at forward control.

Contingency planning

This is described as asking ‘‘what if’’ and making arrangements accordingly. The ‘‘what ifs’’ common to most sieges (and suggested required measures) include:

i The possibility of injury — ambulance and medical assistance on standby. i The possibility of a fire in the stronghold — fire brigade on standby. i Relatives will arrive at the scene — appointment of a liaison officer. i Arrests may be necessary — appointment of an arresting officer.

i What will happen when darkness falls — arrange for lighting at the scene.

i Arrange for ground and area photographs of the scene — may assist in planning to resolve incident by force.

i Requests may be made for food etc. — make delivery plans. i Intermediaries may be requested — plan accordingly.

i A breakout plan should be considered which may involve considering the multiple ways in which a subject may leave the stronghold. The placement of the inner cordon is the first step in contingency planning for a breakout by the subject. A plan must be prepared in relation to surrender as soon as possible. Liaison with the firearms team in relation to the plan is critical, as well as liaison with the negotiator. The agreement of the subject should be secured in relation to the precise method of surrender.

Superintendent Maher observed that when the ERU are involved, a member of the ERU is in charge of the inner cordon which must operate at all times in a disciplined manner. They are told not to move around unduly in order to avoid ‘‘spooking’’ or intimidating the subject. There should be the least amount of visibility, from the point of view of the subject, in order that the subject is not crowded either deliberately or inadvertently. If this is happening there is a risk that it may interfere with negotiations and the negotiator may request the members to move back out of sight of the subject. The members of the inner cordon may play a role in intelligence gathering. The members of the inner cordon should liaise, through an officer, with the scene

commander, the head of the inner cordon and the negotiator (especially in relation to any movement in the stronghold). This liaison officer is part of the firearms team.

Containment

Superintendent Maher was asked to describe what would happen in the event that the ERU were brought in to participate in a siege type operation. He outlined that the ERU would ordinarily take responsibility for the inner cordon subject to the direction of the scene commander who retains ultimate control of the entire operation. It was acknowledged that in a situation of that type the scene commander normally utilises the resources of local armed officers prior to the arrival of the ERU. When the ERU arrives local armed officers may be withdrawn to fulfil some other function such as intelligence gathering. He observed that it was preferable that the ERU, who are trained as one unit, operate as a team alone; but this is subject to a decision about the redeployment of the local armed gardaı´ which would be made by the scene commander in conjunction with the leader of the ERU. In response to a question by counsel for the Commissioner, Superintendent Maher stated that there was nothing in training forbidding the scene commander from retaining the local armed officers in whatever capacity he or she deems appropriate and that there is nothing wrong or inconsistent with their training if a scene commander decides to deploy them as a back-up to the inner cordon.

4. Observations on training

Mr. Bailey stated that the material provided in evidence by Superintendent Maher demonstrates that the gardaı´ were as knowledgeable of the current thinking of siege command prior to April, 2000 as police in the UK and elsewhere. In his view it would stand the test of international benchmarking and should be considered a good practice model. The material that was provided to the Tribunal was appropriate for the command role at a firearms siege and likely to produce commanders who could be considered properly trained. However, Mr. Bailey found it difficult to reconcile the course material with some aspects of the incident at Abbeylara. He highlighted some issues of best practice that were explained in evidence by Superintendent Maher but that appeared, in Mr. Bailey’s view, to have been dealt with differently at Abbeylara. Such issues are referred to in this chapter.

5. Superintendent Shelly’s training

Operational Commanders Course

Superintendent Shelly underwent a three day Operational Commanders Course as part of his Superintendents Development Course at the Garda College between 7th April, 1997 and 10^th October, 1997. He confirmed that the course aims dealt with a number of objectives, including:

‘‘Operational Commanders Tactical Course Aims:

1. To appreciate the role/function of the operational commander.

2. To have an appreciation of the effects of firearms in different situations.

3. To understand the concept of operational planning.

4. Be able to plan and put into effect a tactical operation of any scale or size.

Objectives:

1. Be capable of assimilating information with a view towards assessing the requirements for any operation and devise an effective tactic.

2. Be capable of taking overall charge of any serious incident, such as a siege, hostage taking, a search.

3. Be competent to plan, organise, control and lead a pre-planned garda action involving firearms.

4. Be able to identify and effectively deploy the various skills and resources available at a serious incident’’.

This course also included a lecture described as ‘‘the siege — practical’’ where issues relating to cordons, negotiations, the media, equipment, assault, debrief and discussion were considered. It also covered topics such as firearms incidents and operational planning.

Superintendent Shelly also underwent the Tactical Supervisors Course between the 1 2th January, 1991 and the 21^st January, 1991. He told the Tribunal that he underwent basic firearms training ‘‘a good many years ago’’.

Cordons

In his evidence to the Tribunal, Superintendent Shelly confirmed that he understood from his training that the inner cordon looked inwards, its function being to contain. Because it is nearer the subject and the stronghold, it also has an intelligence gathering function. The outer cordon, he stated, was to prevent unauthorised access to the scene. He also accepted that the area in between is a sterile area; or as he described it, a ‘‘buffer zone’’. His understanding is that this:

‘‘is to allow the people on the inner cordon to perform their function. As I have already referred to the command post, in whatever shape or form it would take, would be between both cordons as well and, as scene commander, I would obviously be operating in that area’’.

Back-up cordons

Superintendent Shelly was queried on whether the concept of a back-up to a cordon featured in his training. He stated:

‘‘I believe it did. I believe that it is the responsibility and it is left to the resources of the person in charge as scene commander to deploy resources at a scene, as has been described in cordons. There is certainly nothing in my training that I can recall, that would prevent me from doing whatI did.’’

6. Detective Sergeant Russell’s training

General

Sergeant Russell received training in line with that received by other members of the ERU as outlined in Chapter 10. He was trained in the use of the Uzi sub-machine gun, the .38 Smith & Wesson revolver, the Sig Sauer 9 mm. pistol, the Heckler and Koch 33 rifle and the pump action shotgun. He attended numerous tactical training courses including a rural operations course at the Garda College, Templemore. Further, in line with other members of the ERU, he spent one week in every four undergoing tactical, physical and firearms disciplines training with his unit.

Cordons

Sergeant Russell also confirmed, in evidence, that the purpose of the inner cordon was to contain the subject within that cordon and to make sure there was no breach through it. The outer cordon was to make sure that no one entered the actual area from outside. It was also ‘‘a back-up to the inner cordon’’. The outer cordon was also to ensure that no unauthorized personnel such as civilians, family members etc., would gain access to the area ‘‘everything must be controlled through the scene commander and no one would enter it without knowledge of the control, which would be the scene commander’’. It was, he said, taken for granted that uniformed personnel would have occasion to come into the area. He had no difficulty with the fact that uniformed members of the garda might be located between the inner and outer cordon: ‘‘it is just a fact of life in dealing with situations that there will be, as we are primarily a uniformed force An Garda Sı´ocha´na, and that there would always be a uniform presence on any operation, particularly of a public nature like that’’.

7. Training of other senior officers

Superintendent Byrne

Superintendent Byrne underwent a three day Operational Commanders Course as part of his Superintendents Development Course in the Garda College during the period 22^nd November, 1999 to 28^th January, 2000. He also underwent the Tactical Supervisors Firearms Course, as a sergeant, in 1990/91. This course was similar in its contents and form to that which was undergone by Superintendent Shelly.

Assistant Commissioner Hickey

Assistant Commissioner Hickey underwent a three day Operational Commanders Course as part of the Superintendents Development Course between 21^st January, 1991 and 7th June, 1991. When appointed to the rank of Assistant Commissioner, in 1993, he underwent a Chief Superintendents Development Course.

Chief Superintendent Tansey

Chief Superintendent Tansey retired from the Garda Sı´ocha´na in February, 2003. In 1990, he attended the Superintendents Development Course including a 1 day Operational Commanders Course for senior officers which took place on 9th March,

1990. He also underwent the Chief Superintendents Development Course towards the end of 1996 beginning of 1997.

8. Technical support and equipment General

The Garda Sı´ocha´na has a technical support unit. Technical equipment available includes field phones where the incident is one that requires a trained negotiator. Other relevant equipment may include various visual aids such as cameras, televisions, closed-circuit television and sound devices. Cameras or closed-circuit television are important for securing sight of the stronghold. All such devices are relevant to the gathering of intelligence. Technical support unit personnel participate in training exercises. They are also involved in setting up the equipment on-site and providing ongoing technical support and upgrading of equipment as necessary.

Personnel

Inspector Michael Flynn, an inspector attached to the technical support unit of the Garda Sı´ocha´na, stated in evidence that the unit, as at present constituted, was developed as a result of an amalgamation of two units in January, 2000. It is part of the Telecommunications Section at Garda Headquarters under the control of a superintendent based there. The services of the unit are available to all members of the Garda Sı´ocha´na. It provides support for activities ranging from video enhancement, video processing and recording to more specialised operations.

Requests for technical support unit assistance are normally made by a scene commander to the superintendent in charge of the technical support unit.

Involvement in training

As a member of the technical support unit, Inspector Flynn has an input in relation to scene commanders training. He has contributed to both the Negotiators Training Course and the Scene Commanders Course. Such training is both theoretical and practical. He has provided presentations on the availability and capability of equipment.

Request for equipment to be brought to Abbeylara

Inspector Flynn confirmed that from January, 2000, when the unit was formed, until June, 2000, he was sergeant in charge in the technical support unit at Garda Headquarters. Specialist telephone and CCTV camera equipment was available. He did not receive any request for equipment to be taken to Abbeylara; no such request was made.

SECTION A.3 — Containment and Flexible Cordons at Abbeylara

1. Containment Expert opinion

According to Mr. Bailey, containment at Abbeylara was successful for most of the incident until John Carthy emerged from his home. Initial containment was achieved by Detective Garda Campbell and Garda Gibbons. When Superintendent Shelly arrived, he deployed armed gardaı´ in a more comprehensive containment. ERU members were thereafter placed on containment duties at the inner cordon. It will be recalled that six members of the ERU were deployed to Abbeylara, with two of those being the negotiator and his assistant. Therefore, four, including the tactical commander, were initially deployed to tactical duties. Three additional tactical officers arrived at approximately 1:00 p.m. on 20^th April, 2000.

Flexible Cordons — moving containment at Abbeylara — the evidence of senior officers

The evidence of senior officers and others is that an oral contingency plan was devised to the effect that in the event of John Carthy exiting the house in an uncontrolled manner, but not posing an immediate threat to life, he should be allowed to move within the inner cordon. Superintendent Shelly stated that he and Sergeant Russell discussed the principle that the inner cordon could be maintained in a flexible manner and move with John Carthy if he came out of the house; the inner cordon of ERU members would move with him in whatever direction he went. According to his evidence, some possibilities were considered for the role of the local armed members i.e., that if a member of the ERU was shot or injured, the local armed people, who were ‘‘back-up’’, might become involved. They might also become involved if they ‘‘saw that the ERU people needed assistance’’. What they were to do in these circumstances does not appear to have been considered.

When asked whether instructions were given to the local armed members as to what they were to do in the event of the ERU moving with John Carthy, Superintendent Shelly stated that it was conveyed to the local armed officers that they were now a back-up to the ERU. He stated that ‘‘they will understand that’’:

‘‘You expect that in the event of the cordon moving’’ that ‘‘all of them would take some sort of cover and in effect allow matters progress. They knew that they were back-up and for their own safety they would take cover’’.

They did not receive any more detailed instructions and at least one of them (Garda Campbell) received no instructions at all.

Questioned on whether he gave instructions to local armed officers to move or to remain flexible, Superintendent Shelly stated that as soon as the ERU had taken over the inner cordon, he instructed local officers that they were back-up; and in doing that ‘‘it would have been conveyed to them that obviously they would have to move back from their positions, if that was possible’’. This instruction was given to

Detective Sergeant Foley by Superintendent Shelly. It was his duty to inform other members that their role had changed somewhat in that they were now back-up and that if a situation arose where the inner cordon of the ERU people had to move in a flexible manner, that they would ‘‘obviously react to that by taking cover and allowing it to develop along those lines’’. Superintendent Shelly stated that he discussed the question of flexibility and that the non-ERU members might have to operate in a flexible manner. He was questioned as follows:

‘‘Q. I can understand that you may have told your own people that the ERU might move in a flexible manner, but what I am concerned about is, what instructions were they given as to actions they should take in those circumstances, where the ERU were moving in a flexible manner with John Carthy?

A. As I said, that they would move back, allow it to progress and obviously take cover and ensure that they were safe themselves, but they would take that action anyway, but I had told Detective Sergeant Foley that once, if it was to move and that scenario was to happen, that that is what would happen. That is as far as it went’’.

Containment — evidence of Detective Sergeant Russell

Sergeant Russell was questioned as to what containment meant in the context of what occurred at Abbeylara. Containment, he said, was an attempt to ensure that John Carthy did not leave the cordon area and pose a threat to other persons. Containment existed to enable negotiations to be conducted in as safe a manner as possible and to provide as secure an environment as possible considering the danger the firearm posed. He said that it would have been desirable if John Carthy had stayed in the house. The ERU could not have barricaded him into the house as that would be totally contradictory to what the negotiator was trying to achieve. They did not wish to contribute any further to any ‘‘siege mentality’’ that John Carthy may have possessed.

Exit plan — possibility and foreseeability of exit

The evidence of Sergeant Russell and Superintendent Shelly, suggests that a plan making provision for the exit of John Carthy was discussed. Sergeant Russell stated that he had an in-depth discussion with Superintendent Shelly as to what the response should be if the subject left the house and attempted to escape. A number of issues had to be considered in relation to such a plan. One was John Carthy’s possession of the firearm. The second was his ability to use that firearm (in that regard he understood that this was his own shotgun and that he was satisfied that he had expertise in its use). A further factor was the ERU’s capability as a trained firearms team.

When he learned that they were dealing with a person with a mental illness he considered it likely that John Carthy might act in an irrational manner. It was therefore a consideration that he might come out of the house. He had been informed by Superintendent Shelly, that the subject’s mother, in reply to a query as to whether he would be capable of harm, said that she didn’t know what her son would do.

He agreed with the Chairman that John Carthy had been behaving irrationally for some time.

Controlled or uncontrolled exit — the evidence

Detective Sergeant Russell explained in evidence that the two possibilities of either a controlled or uncontrolled exit were considered. An exit is controlled if the subject is compliant and responding to the instructions of the gardaı´. Otherwise it is described as uncontrolled.

He stated that if John Carthy left the house he could still be contained:

‘‘Absolutely, the cordon is designed to contain, that is the whole idea of putting a cordon in in the first place’’.

Confrontation on exit

Detective Sergeant Russell stated that it was discussed that should John Carthy come out of the house with the shotgun in his hand, the ERU’s function was to confront, overpower and apprehend him, if that was possible, considering the safety of the gardaı´ and the safety of the subject. He stated in evidence that he explained to his men that there were a number of possible exits. The plan for John Carthy’s exit was ‘‘generic in that respect’’. He indicated that he could not have a plan so rigid that he would suggest or even nominate any particular individual to approach or disarm him. Any member of the unit who found himself in that position:

‘‘would know from their training that the first individual that came in contact would make an assessment and would ask for support or cover and the cover would train the weapon on an individual until the first member had a chance to overpower’’.

His primary function was to bring the matter to a peaceful conclusion and to avoid confrontation if possible. They did not want to engage in anything which was reckless.

Sergeant Russell also explained that built into the exit plan was a degree of flexibility regarding moving with John Carthy should he leave the house. He stated that he discussed the concept of flexibility of the cordon with his team and with Superintendent Shelly. Only members of the ERU would be involved in such a movement. He did not discuss this with any non-ERU gardaı´ but he understood that Superintendent Shelly, who agreed the plan with him, was to convey it to the local members. When asked whether he would have had any concerns if it transpired that one or more members of the local gardaı´ at the location of the telegraph or ESB pole were not familiar with the possibility that he would have to be flexible, he stated:

‘‘well, they were all familiar with the regulations, the same regulations covered the local members as members of the ERU, there is no more latitude built into the regulations to cover members of the ERU, you still have to operate within the same regulations. They are familiar with it themselves, any person who

would be issued with a firearm would be familiar with that or they wouldn’t have one’’.

His evidence was that this was part of the training of the individual officer. In such a plan, there is no line drawn in the sand. It is an extremely difficult and dangerous procedure. Echoing the expressed opinions of policing experts, he stated that he understood that one purpose of moving containment was to afford the subject more time to consider his position. The greater the distance over which it could operate, the greater the time that the subject may have to consider his position. He stated, however, one could not take the view that this could go on indefinitely.

There was no discussion between Superintendent Shelly and Sergeant Russell, or indeed anyone at the scene, as to how far in geographical or territorial terms moving containment would be allowed to happen, if it arose:

‘‘I did not indicate any distance or draw any line to suggest that beyond that point we can’t achieve a flexible cordon.’’

How far it would be allowed to continue would depend on a number of factors, primarily safety. If at any stage the moving containment plan compromised the safety of the gardaı´ or of members of the public, then a different situation would arise.

2. Expert evidence on the propriety and effectiveness of the adoption of the moving containment plan at Abbeylara

An aspiration? — Mr. Bailey’s opinion

Mr. Bailey expressed the opinion that the ERU and Superintendent Shelly were right to have planned for the eventuality of moving with John Carthy. It was a logical option for a rural area. Therefore, he did not criticise the ‘‘principle’’ of moving containment as a tactic. It was appropriate, he said, to allow John Carthy move onto the road; and for officers to continue to attempt to call on him to put the gun down and not to point it at anybody. To the extent that officers were still in contact with him whilst he was on the roadway, he remained contained. They were still exercising some degree of control over him. Although an appropriate tactic, Mr. Bailey observed that in his opinion, moving containment at Abbeylara was not developed beyond an ‘‘aspiration’’. He observed that a written plan should have been prepared to ensure that such persons knew precisely what to do. In his opinion, there was a lack of detailed planning for this contingency. (Thus, by way of example, Mr. Bailey quoted from the evidence of Detective Garda McCabe as effectively identifying a particular tactic that would be used, but which did not detail how it would be put into effect.) If armed officers are expected to act in concert as a team in a high-risk tactic, everyone expected to fulfil a role should know exactly what he has to do. The higher the risks involved in a tactic, the greater the level of planning and practice required. At no stage was the plan committed to writing and at no stage was an analysis done to be able to anticipate how officers would move. For him, it should have been proceeded with in a more formalised way; and ‘‘hopefully have had a slightly different deployment of officers at or around the inner cordon’’. Further a written plan would

have established beyond doubt what had been considered and discussed by the officers. Having listened to his evidence and seen his training records, he believed that Detective Sergeant Russell was a competent tactical officer and could achieve any task set by the commander. The evidence of the instructions given to ERU officers demonstrated Sergeant Russell was aware of his duty as a firearms commander, he said.

Mr. Burdis’s opinion

Mr. Burdis commented that the ‘‘what if’’ of John Carthy coming out armed or unarmed was considered by all of the senior officers and Sergeant Russell. For him, however, the plan was generic and not specific enough. A plan would have ‘‘looked at where officers would go ahead of where John Carthy ultimately went’’. As far as he was concerned, no one knew ‘‘who was going to take what position’’ in the plan discussed. It was suggested to Mr. Burdis that the ERU officers had to go into operation straight away when they arrived, and this thereby created a predicament for Sergeant Russell. He was questioned as follows:

‘‘how could it be possible for one to do what, I think you describe it as the ‘‘what if’’ dialogue and go through not a generic plan, but a plan that was specific to all of the possible contingencies that could emerge were John to emerge armed... isn’t that the predicament Mr. Russell found himself in?’’

He replied as follows:

‘‘Absolutely, and the first thing that should have come to his mind is that, we don’t have the space, we don’t have the opportunity to plan correctly here, so what do we do about changing that situation? How can we achieve more time and more space to undertake that type of planning? That does not appear to have happened. I would suggest that they didn’t actually need to go into operation the moment they arrived at the scene; that the premises were well enough contained, There was no immediate threat of any emergency response that was required and there were opportunities there to start the process of thinking through, what about the various plans? There was no reason why those officers that came at lunchtime on the second day, couldn’t have been part of the planning process for an emergency exit. All I am saying is that they obviously, if they went through the process, that you have just gone through, they would have realised that there were various issues that they were not able to address, and they were not able to address them because they were immediately put into action. That should have rung some bells, particularly with Mr. Shelly and with Sergeant Russell’’.

It was suggested to Mr. Burdis, that the planning was as specific as it could be and that one could not predict exactly what John Carthy was going to do. Mr. Burdis thought that, for example, three or four officers came from the house and arrived at the wall, following John Carthy’s exit. Had the incident developed beyond that, and had John Carthy moved further up the road or in a different direction ‘‘how would each of those four officers arriving at almost the same point at the same time, how would they have known who was going to move where? What would have been the

plan (a) to retain a containment of a particular part of the wall and (b) to be able to move and develop the way that John Carthy was actually moving, if he moved in a particular direction? No one seems to know and no one seems to have been told who was moving where and who was expected to move where’’. Mr. Burdis was of the opinion that what occurred were discussions and ‘‘not a plan’’. He felt that they were merely ‘‘highlighting’’ the sort of problem that might arise. This was only one part of the process of planning.

A short-term option

Mr. Bailey contended that due to the lack of detailed planning, moving containment could only be a ‘‘short-term option’’. Personnel were allowed into what should have been the sterile area between the inner and outer cordons. Inner cordon members were not briefed on specific actions and their deployment made a confrontation near the gate likely. These factors reduced the distance John Carthy could be allowed to travel to just a few feet, before he was considered to present an immediate threat to life. The officers on the road at the command post were too numerous and had a difficult route to ‘‘move out of the way’’. Once John Carthy exited the house and turned in their direction he presented a danger to them.

A written plan would have helped to identify the potential conflict between the location of some of the local officers and the aspiration of the moving containment plan.

Mr. Lanceley commented that the plan regarding the uncontrolled exit seemed to him to be ‘‘vague and lacking in specificity’’, but that if it did it was because ‘‘there was not much that they could do in the event of an uncontrolled exit’’. The plan seemed more like a hope.

The command post — diminished value of moving containment/flexible cordons plan — location of command post

Mr. Bailey reiterated that the value of moving containment is to provide additional time to persuade the individual to surrender peacefully. For moving containment to be a viable proposition, there was a requirement to have a situation whereby the subject was not hemmed in and that he could proceed in one direction for a substantial space, without encountering anyone. The containing officers are behind him and are containing in that way. In Mr. Bailey’s opinion, greater latitude could have been given to John Carthy had local officers and the command vehicle been located further away from the house. This is considered in more detail below.

Establishment of the command post — prior to arrival of the ERU

From the time of his arrival until the arrival of the ERU, Superintendent Shelly operated from the ESB pole at the boundary of the Carthy and Burke properties. He described this as a ‘‘semi-official’’ command post.

Establishment of the command post — subsequent to the arrival of the ERU

Superintendent Shelly gave evidence of a discussion with Detective Sergeant Russell and Detective Sergeant Jackson following the arrival of the ERU. Sergeant Russell had looked at the area and satisfied himself about it’s topography.

There was cover at that location in the form of a wall, a pole and a mound of earth. The ERU jeep became the command post. This was located further back from the ESB pole, on the roadway, near Burke’s house. It was not possible to see the Carthy house from the jeep but ‘‘those of us that were operating in that area were able to operate without any problem or difficulty, by leaving the jeep, and walking a short distance.’’ Superintendent Shelly continued:

‘‘it was very important for me thatI could see everything that was happening from that location. I was satisfied and I needed to be in a position where I could see what was happening; see the people; the ongoing negotiations. In other words, to have a visual contact and a visual overview of the whole scene and I had that from that position’’.

Further, communication with ERU personnel was possible from the jeep which had a radio capable of communication with ERU personnel — but not with local gardaı´. Consideration was not given to establishing the command post in any other location as all were agreed that it was in the best location.

Appropriateness of jeep as command post

In his report to the Tribunal, Mr. Bailey advised that there were different views in the United Kingdom about the most appropriate command post for a firearms incident. There are specially designed and equipped command centres, in central police stations; they are used for all critical incidents. Certain city police forces have the benefit of a suite of offices in a central police station which are used for all incidents that require deployment of a silver commander (i.e. a scene commander in Ireland). In other circumstances use is made of mobile control vehicles located nearer to the scene. In rural areas, police have specific vehicles designed to fulfil that function. Such vehicles may vary in sophistication and equipment; the minimum provided being a place where notes can be taken, radios controlled, telephone calls made and logs maintained. The essential point is that effective command is made easier if the commander has a warm, dry, safe location with a seat, desk, means of communication, space for support staff and equipment to record and document events. According to Mr. Bailey, commanders must be able to communicate with all officers at the scene and with others, outside the containment area who have a role in events. Commanders should be accessible to those who need to consult or be consulted by them, particularly in a firearms incident when rapid decisions might be required. In the absence of a specially designed command vehicle, he considered that it was appropriate to use the ERU jeep at Abbeylara as a command post. This is good practice. In his experience, commanders in the United Kingdom frequently use such vehicles as an initial command post. The jeep was dry and provided radio contact with ERU personnel.

The position of the jeep/command vehicle

Mr. Bailey’s main concern, however, was the positioning of this vehicle vis` a vis the stronghold. His experience in the United Kingdom was that the overall commander would not locate the command post in a firearms incident where he can see the stronghold. It may be an appropriate position for the officer in charge of the inner cordon. He expressed the opinion that the command post should not be within sight of the stronghold and close to the scene. To do so potentially places it in line of fire. It has happened that police officers standing close to a command vehicle have been shot at, when the subject discharged his weapon in the direction of the sound of a radio message emanating from such vehicle. He accepted that the jeep at Abbeylara was out of the line of fire from the house to the extent that, short of leaving the house, to fire on the jeep, John Carthy would have to lean across the table in front of the window in the kitchen; and aim diagonally out of the window. In the United Kingdom, officers receive instructions through training courses, such as negotiators courses, siege commanders courses and firearms commanders courses. The advice given to persons who wish to use a command vehicle, such as a jeep, is that it should be located just inside the outer cordon. This prevents unwanted visitors, whether police or members of the public. It is usually sufficiently far away from the stronghold to be in a safe place. It is usually out of line of sight; and for that reason CCTV is often added to the vehicle. Many such vehicles have CCTV monitors. In protracted incidents, such as at Abbeylara, a commander in the United Kingdom would not expect to have a constant view of the house, although he would have CCTV views available to him. He would also expect to have radio contact with all members deployed at the incident and mobile phone contact with key personnel at the scene and elsewhere; all armed officers being on one channel and all other officers on a different channel. Both channels are linked into the command vehicle; and controlled from there by a dedicated operator who logs messages and events. Thus, for example, information coming from the inner cordon (which is part of the intelligence gathering operation) will be logged in order to keep the commander aware of events at the scene. At such place, meetings will be required at predetermined times, involving key personnel. Decisions are taken and recorded. In his view the ESB pole was initially a rendezvous point. While agreeing that it was an appropriate point for armed members in charge of the inner cordon to be placed, it was too close to the scene to be used as an overall command post. In the absence of a dedicated vehicle, the commander in the United Kingdom would position the jeep over the brow of the hill or perhaps in the vicinity of the church. In that location it would have been out of the line of fire and have been safe for unarmed personnel.

While Mr. Burdis accepted that Sergeant Russell might have used the jeep as a forward command post, the difference between that and the use of the vehicle as a overall command post was that where there were a number of unarmed officers at the command post, including Superintendent Shelly. If one is planning to allow an armed and uncontrolled exit by the subject to move in the direction of a command post and a location where there are people who are not properly protected, then that results in an unsafe position: ‘‘you can’t do that, you shouldn’t do that’’. In his view, it was not the vehicle which was the problem; it was the people that were in the area of the vehicle.

SECTION A.4 — The Role of Local Officers and the Potential for a ‘‘Blue on Blue’’ Shooting

1. ‘‘Blue on blue’’ shooting

A ‘‘blue on blue’’ shooting occurs when one group of police officers find themselves in a crossfire situation with their colleagues, a weapon is discharged and a colleague is struck. A matter which has been investigated by the Tribunal is whether such a situation, or the potential for such a situation, occurred at Abbeylara. This involves an investigation and analysis of the role of local armed officers following the arrival of the ERU; instructions given to them; their understanding of those instructions and functions; and their locations and the positioning of the command post at the time of the emergence of John Carthy onto the roadway. The risks associated with potential for crossfire form part of the training of armed garda officers and scene commanders. In his evidence to the Tribunal, Superintendent Shelly confirmed that he was aware that the potential for crossfire is always present in any operation involving the use of armed gardaı´. The possibility of crossfire exists, regardless of the particular unit of armed gardaı´ that may be involved in any given operation. He stated that steps can be taken to reduce the risk of crossfire, including, the training of officers in the use and effects of their firearms. In a written reply to questions posed by the Tribunal, Superintendent Shelly stated that as the scene commander, he ensured that each group of armed gardaı´ present at the scene were aware of their respective positions throughout the operation. Notwithstanding any contingency that might arise, local armed gardaı´ were instructed to act as back-up and, if necessary, to take cover if John Carthy exited the house in an uncontrolled manner; and to allow the ERU to carry out their instructions. The distinct and separate function assigned to each group was intended to ensure, in so far as was possible, that any potential risk of crossfire was significantly reduced, he observed. On the deployment of the ERU as the inner cordon, Superintendent Shelly stated that a reassessment of the situation was carried out by him, which indicated a requirement as scene commander that local armed members should be deployed in strategic positions as a back-up cover for the inner cordon. Consequently, he stated, consideration was not given to removing the local armed members from the scene.

2. Deployment of local armed officers prior to arrival of the ERU

Prior to the arrival of the ERU, Superintendent Shelly had deployed armed officers at a number of locations around the Carthy dwelling. These local armed officers formed the inner cordon from the time of their arrival at the scene at approximately 7:15 p.m. and the arrival of the ERU a few hours later.

Mr. Bailey stated in evidence that he had no criticism of the strategic placement of local armed officers in terms of achieving the objective of providing containment. He considered that the inner cordon placed by Superintendent Shelly was well thought out, at appropriate locations, in pairs and provided effective containment. As far as he was concerned, everybody responded in an ‘‘absolutely appropriate manner’’.

3. Numbers of officers on containment duty

Mr. Bailey observed that in the United Kingdom it is considered good practice to deploy armed officers in pairs, particularly at night and when working long hours. In certain forces in the United Kingdom, where only small numbers of tactical team members are available, they may be deployed with local first responders, to provide an appropriate number of officers for such an incident: ‘‘A sufficient number is one that allows members to be stood down for a break from the constant concentration required of the inner cordon’’. Therefore, at Abbeylara, he suggested that eight persons should have been on inner cordon duties. This would have allowed officers to be paired, and to take rests. This, in fact, was consistent with the numbers that Superintendent Shelly was able to deploy when he placed local armed officers in position. In his experience, the usual number deployed ranged between eight and twelve. These persons could be part of a dedicated team brought together centrally, or local officers, who train and operate together and who are mustered for the incident. It could be a combination of both local and centrally deployed officers. In the latter situation, local officers receive additional training relating to team tactics. Where it is known that a combination of local and centrally based officers may be brought together to resolve incidents, forces ensure that they train together and that their equipment is compatible. They have the same radio system, the same firearms and the same protective equipment. He noted that there was a difference between Ireland and the United Kingdom in this regard. Ireland has one police force. There are 43 police forces in England and Wales. These are smaller units.

4. New role for local officers after arrival of ERU

Local armed officers at the scene became back-up to the inner cordon when the ERU took over that role. Superintendent Shelly, having discussed the matter with Sergeant Russell, informed his senior local armed officer, Sergeant Foley, at approximately 10:15 p.m. on 19^th April, that the inner cordon was being taken over and manned by the ERU who had arrived at the scene, and from then, the local officers would act in a back-up role to that inner cordon. In evidence Sergeant Foley stated that following the arrival of the ERU he spoke with Superintendent Shelly who informed him that the ERU would take up positions closer to the Carthy household and that the local gardaı´ were ‘‘then a back-up to the ERU’’. Sergeant Foley could not remember Superintendent Shelly’s exact words, but he recalled being informed that ERU members would take up closer positions at the front and rear of the Carthy house: ‘‘we were then back-up to the ERU. In the event of John Carthy exiting the house, the ERU members would deal with him. We were told to move and allow the ERU room to deal with John Carthy’’. He was questioned on what he understood by the expression back-up and he stated ‘‘back-up in the event of the ERU requiring assistance, we were there to assist them’’.

He was directed by Superintendent Shelly to convey that instruction to other local armed officers. He spoke to Garda Boland, Garda Kilroy, Garda Barrins and later Garda Nolan, Garda Dunne, Garda Faughnan, Garda Mulligan and Garda Quinn.

The two armed local officers at the rear of the Carthy house were withdrawn. ERU personnel took up position there. Other than the two armed members at the rear of the house, no one else changed their physical position. Sergeant Foley was aware that members of the ERU had gone to the rear of the house, though he was not entirely sure of their exact position. He could, however, observe the position of other members of the ERU at the front of the house.

5. Evidence of Detective Garda Campbell

During the course of his evidence, Garda Campbell stated that he had not heard anything, or received instructions, in relation to the necessity for moving cordons; he was not told that containment needed to be flexible. Superintendent Shelly agreed that it was clear that he was not told. He, Superintendent Shelly, understood that everybody had been told. He himself did not discuss the matter directly with Garda Campbell. He accepted that it was important that everyone at the scene should be aware of the position in relation to flexibility. He agreed that if he had been aware that Garda Campbell was unaware of the need to be flexible this would have caused him concern. But he stated:

‘‘I would have thought that, by the very event happening, that flexibility would come into play anyway andI would — that nobody wouldn’t move, that once the subject moved and the ERU moved with him, that there would be movement all around and that people would move back and move into, what I would describe, as safer positions. I can’t see any situation where people would just remain static.’’

6. Evidence of Detective Sergeant Russell — back-up

When questioned as to what he understood by the expression ‘‘back-up’’, Sergeant Russell stated that it was:

‘‘to cover any eventuality, but in particular if for some reason John Carthy had actually breached the cordon and for whatever reason we were not in a position to respond, that there would be some other line of defence in place to prevent him threatening any member of the public’’.

7. The role of local officers to intercept John Carthy

In the context of their understanding of their back-up role, many of the local officers gave evidence that they understood that if John Carthy breached the inner cordon, they would attempt to intercept him. This appears contrary to Superintendent Shelly’s instructions that they were to stand back and the ERU would deal with the situation.

On his understanding of the use of cordons, and the cordon system in the United Kingdom, Mr. Bailey felt that this would be the role of a response team to a contingency and was the role of armed personnel. However, if it is feared that the inner cordon might be breached, the correct tactic is to reinforce that cordon with additional personnel. It is good practice to deploy to prevent a breach of a cordon rather than to respond when it has happened. In the context of the definition of

cordons, inner and outer, as previously discussed by Mr. Bailey, he noted a degree of confusion amongst both local armed officers and also members of the ERU, such as Sergeant Russell, as to the description of their (the local armed officers’) role.

8. ‘‘Poorly defined role’’?

Mr. Bailey indicated that from the arrival of the ERU and their takeover of the inner cordon there was a poorly defined role for the local armed gardaı´ which remained ill-defined for the remainder of the operation. The concept of a back-up role was not one with which he was familiar. He expressed the opinion that the role that they were required to fulfil was not clearly defined by them in their actions or their evidence. Thus, there were local armed officers on the inner cordon before the arrival of the ERU, who returned to the same positions after the arrival of that unit, and explained to the Tribunal that they were then on the outer cordon. In his experience cordons operate in ‘‘two’’, not ‘‘threes’’. When questioned as to whether there was anything wrong with having a second defensive line of armed officers, under whose control the subject may come, if either the inner cordon is breached or if moving containment commences; he stated:

‘‘ Yes, there is... if you have two groups of officers and put them into circles around the premises, each of them has guns and the man moves in between the two circles of armed officers, the potential for one group of armed officers to shoot the other has to be dramatically increased. That is why you have one group of officers and they are then under the same command, they are co-located and they would move to deal with any problems that occur. You may have a reserve and if the question you are asking me is, is it in order for a commander to keep a reserve of officers and to keep that reserve very near to the scene, then clearly the answer has to be, yes. The officers were the armed officers resting in the Carthy new house... in the latter part of the siege, that would be quite an appropriate place to have a small number of officers on constant relief, so that they are able to rest themselves and then relieve others. Those officers could be drawn down to deal with any incident, as indeed they did, in reality, when John Carthy exited the house. Tactically there are a number of potential difficulties in having more than one group of armed officers’’.

Mr. Burdis had experience of an armed back-up cordon operating in Yorkshire, and saw nothing wrong in principle with it — though it depended on the type of incident. However he deferred to Mr. Bailey’s greater experience in this matter. His concern was the distance between the two cordons ‘‘which I think was much too close to each other’’.

9. Risk of crossfire increased

Mr. Bailey reiterated his concern that by placing two rings of officers with firearms around the premises, with the subject of their actions potentially being between them, there is a real risk of officers facing each other; and one or other of them may open fire and hit one of his colleagues. That is why there is the tactic, and one which Mr. Bailey described as a fairly standard tactic worldwide, to have one group of

officers looking in (inner cordon) and one group of officers looking out (outer cordon). If there are reserves, or if there are officers ready for contingency planning, they should be part of the same team and under the same command as those persons comprising the inner cordon. The danger exists when you have two separate groups of armed officers. According to his understanding of the situation, two groups of armed officers moving towards each other is a high-risk tactic. In order to reduce risk, all personnel should be under the same command, on the same radio channel and briefed in detail as to exactly how they would move to effect an interception. He was of the opinion that there was ‘‘little evidence of a plan to ensure the safety of these groups of gardaı´ and to avoid a ‘blue on blue’ shooting’’. Evidence was given by all armed officers that they were aware of the risks associated with crossfire; that it was part of their training; and that they were conscious of this risk at Abbeylara. They denied that a crossfire situation occurred and pointed to the maps illustrating the positioning of officers on the roadway when John Carthy was shot, as demonstrating that such risk did not materialise. They did not accept that there were two groups of armed officers ‘‘moving towards each other’’. Mr. Bailey accepted what was put by counsel for the Commissioner that training includes the tactical planning not to position oneself where you might be in a position of crossfire. To the extent that officers on the road in front of John Carthy did run away, he accepted that concerns about crossfire were taken into account. However, Mr. Bailey felt that if, in the early stages, a better definition of the role of the officers had been established, they would not have been there, or needed to have run away in the first place.

10. Deployment of armed officers — placing of local armed officers under same command as ERU members

Mr. Bailey stated in evidence that local armed personnel were more of a liability than an asset, positioned as they were near the command post. It would have been better practice, he noted, either to include some or all of these local members within the inner cordon (placing them under the command of Sergeant Russell) or to have removed them from the immediate area of the house. However, he agreed with counsel for the Commissioner that while the best trained officers should be deployed as the inner cordon, that there could be training issues or difficulties, in marrying up local officers with those best trained officers. He also agreed that the ERU personnel at Abbeylara had achieved the highest level of skill at arms in training. He accepted that there was nothing wrong, in principle, in retaining local personnel for a firearms role, but what he considered one should not do is to position them so that they are neither one thing nor the other. He thought that it may have been possible that the location of local armed personnel at and around Burke’s house and the command post occurred by default, because no instruction was given to prevent them gathering there after the arrival of the ERU. Mr. Bailey accepted that the deployment of local officers may have been dictated by the positioning of the command post, ‘‘if their role was to be at the command post’’.

11. John Carthy’s exit and the significance of the need to exclude personnel

Mr. Bailey observed that the significance of the need to exclude personnel from the area of the stronghold became ‘‘all too obvious’’ when John Carthy exited the house. He queried, whether, with hindsight, what actually happened could be attributed to the failure to exclude non-inner cordon personnel from the sterile area between the cordons? The exclusion of non-essential personnel is something that should have been understood by the commanders. It is good practice. The reason that armed officers had discharged their weapons at John Carthy was because they feared for the safety of some of the gardaı´ near the command post jeep. Nevertheless, Mr. Bailey pointed out, that it could not be assumed that the outcome of the incident would have been any different, because there would still have been gardaı´ present when he left the house and they would have been at risk. He did not agree with the suggestion put by counsel for the Commissioner that the decision by Superintendent Shelly to foresee the possibility of a breach of the inner cordon, in circumstances when John Carthy may have been non-compliant but not threatening, and to provide a second line of armed officers, was an example of thinking ahead and could be proper contingency planning for an event that might occur. The option that was selected of allowing local armed officers to remain where they were originally, as an inner cordon, did not provide for the objective that Sergeant Russell and Superintendent Shelly had identified and were trying to achieve. Mr. Bailey did not have any difficulty with a contingency plan of having a number of officers available to deal with the eventuality which had been identified, namely that should containment not be effective, John Carthy would then potentially come under the control of local armed officers. However, the manner of their deployment did not, in his view, meet that eventuality. If local armed officers had been deployed in a different way with a stated objective, particularly if it had been a written documented plan, then he would have been in a position to agree with the suggestion. That was not done, however, and Mr. Bailey maintained his opinion that there was some confusion as to the role of the local officers.

12. Significance of location of the command post at the end of the incident

Mr. Bailey expressed the opinion that the significance of the location of the command post, at the end of the Abbeylara incident, could not have been anticipated when it was chosen. However, the closeness of the command post to the house should have been recognised by commanders and tactical officers, and caused them to relocate it further away. The location of a command post at the beginning of an incident is often selected by one individual. It is appropriate, however, for the scene commander to review the position from where the incident is being commanded. This is particularly so as the incident progresses and involves more personnel. He accepted that the evidence indicated that both Superintendent Shelly and Sergeant Russell had reviewed the position of the command vehicle; and moved it forward somewhat, to enable Superintendent Shelly to have an overview of the situation. He reiterated that he disagreed with the criteria that they used in making that decision.

13. Deployment — a command issue

The establishment of a single commander to command all armed personnel at the inner cordon means that one individual deploys his officers to achieve the tactical objective. In Mr. Bailey’s opinion a potential difficulty at Abbeylara was that the officer who commanded the inner cordon, Sergeant Russell, only had command of ERU personnel. There were other individuals at various times commanding local armed officers. The only true chain of command that he was able to identify was directly to either Superintendent Shelly or Superintendent Byrne, the scene commanders. It was, he observed, this command aspect that was important:

‘‘I think that is really the kernel of what would have ensured that only those officers required to be part of the armed aspect at the scene would be deployed, it is that command aspect’’.

Mr. Bailey saw no confusion in terms of where the outer cordon was positioned. That cordon was positioned at an appropriate distance. It provided exclusion for everybody from the scene, other than those who were allowed through. However, in his opinion, how the officers were deployed at the inner cordon was not best practice. He was questioned as follows by counsel for the 36 named gardaı´:

‘‘Q. Addressing the overall arrangement adopted by Superintendent Shelly, which permitted and indeed was designed to allow and provide for nongarda personnel to come to the scene to participate in negotiation, and fixing John’s exit, looking at John’s exit coming up to 6.00 o’clock, in the context of Dr. Shanley, Marie Carthy, Mr. Shelly being in the car, adjacent to the Walsh house just up the road, wasn’t it perfectly right that there should be armed personnel adjacent to the command post to ensure that should John Carthy escape, he could not get to such civilians to hurt them.

A. My answer to that question, Chairman, is that the principle that it is the responsibility of armed officers at the scene of an incident to ensure that the subject of the incident is unable to harm anyone, yes, that is quite correct. Whether in order to achieve that, there needs to be armed gardaı´ at the command post or whether they should have been deployed elsewhere, could be discussed, as could the point that if there is a risk to people such that they need armed police to protect them, certainly in the UK that would be flashed in big warning signs to the commander as to whether it would be an appropriate tactic for them to approve. That is what leaves me in the difficulty in providing a simple yes or no answer to the question, in that the premise on which it is asked is one that I wouldn’t have anticipated occurring in an incident had I had the command function or indeed, had it occurred in the UK because I think that the decision would have been not to provide armed gardaı´ to take people to the scene, because it was so vulnerable but not to have taken them there at all. I accept the constraints that that would have placed on the process of negotiation.

Q. It was one of those hard decisions, wasn’t it, Mr. Bailey, either to facilitate the negotiation by the bringing of the individuals or simply to exclude them and lose that option of persuading John, through friendly local negotiation, to come out.

A. Yes, Chairman, I think that would be or that is absolutely a correct analysis, it is one of the hard decisions. I hope that any of the answers I have given haven’t implied that these are easy choices, easy decisions for commanders to make because they certainly are difficult decisions to make’’.

SECTION A.5 — Observations of Garda Senior Officers and Others Regarding the Evidence of International Experts and Matters Arising from Training

In response to the observations of the experts and in the light of training received, senior officers and others were invited to respond and to provide further evidence in relation to a number of issues which had been commented upon.

1. Superintendent Shelly

Location of command post

Superintendent Shelly was trained as a tactical adviser and accepted that as part of his training he was aware of the capabilities of a shotgun. He was aware of the range of a shotgun. He accepted that a shotgun of the nature that John Carthy had, had a lethal range of about 55 yards and could cause serious injury up to a range of 200 yards. He accepted that people at the command post and the command post itself were within the lethal range of the shotgun, should John Carthy emerge on the roadway:

‘‘They were, as were everyone else, the first people who met John Carthy were the ERU people who were dealing with him’’.

He was therefore questioned as follows:

‘‘Q. In the context of your knowledge of the capability of the shotgun, in the context of the plan which you had devised concerning the uncontrolled exit and in the context of moving containment as a tactical option, in all of those circumstances, Superintendent, why did you not remove the jeep and other people out of that area, outside the lethal range of the shotgun?

A. It wasn’t removed for the simple fact that while the operation was ongoing, as I have already described how, I hope I am very clear in this — the command post, the jeep was at a location, first of all, John Carthy couldn’t see it from the house. It was safe andI felt safe there. IfI didn’t for one second feel safe operating there, I wouldn’t have left it there. The other people who were at the scene, some of them were there by

necessity, some of them at our request and people wanted to talk to John Carthy or whatever, they would be in that area, it was dangerous. I’m not saying it wasn’t dangerous, and we took every precaution that we could to protect those people, particularly when bringing these people down to speak to him. I didn’t see for one second or believe that the command post was a danger, was in a dangerous area, or causing danger, had the ability to cause danger, I didn’t believe that’’.

He accepted that the evidence of the ERU personnel was that there was a concern for the safety of the people at the command post and on the roadway beyond the command post. In those circumstances, and in the context of contingency plans to be put into place, he was asked whether the removal of the local personnel from the area was considered. He said it was not considered because he did not consider it to be a dangerous place or to add to the danger. People who were there took cover, he said — ‘‘In doing so they did the right thing.’’

The evidence of expert witnesses, that the command post should have been located over the hill or in some other location, was put to Superintendent Shelly. He stated that he had to ‘‘call it’’ as scene commander at Abbeylara, and he believed that the command post was in the right position. He certainly did not wish to do anything in the nature of siting the command post with a view to consciously or otherwise making it a source of danger. That didn’t arise, and he wouldn’t do that, he stated. Safety was paramount to him.

He had discussed the location of the jeep with his superiors. ‘‘I did tell them that I felt it was safe and it was appropriate to work from there. There wasn’t any difficulty with that’’. If somebody had said to him that he should not have it there, he would have taken that view into consideration.

Plans

Superintendent Shelly stated that one of the issues considered was the ‘‘what if’’ of John Carthy coming out the gate and turning in the Abbeylara direction. When asked whether he had made a plan as to what would happen he stated that Sergeant Russell and he had agreed that the ERU members would deal with the situation and that his officers would take cover and allow the situation to develop. They would not be involved unless, perhaps, a member of the ERU got injured. He was reluctant to call the moving containment plan aspirational, as he believed that moving containment had in fact happened, but ‘‘admittedly not for very long’’.

Deployment of local officers

Superintendent Shelly was queried on whether, following the arrival and deployment of the ERU, there was now a cordon of armed ERU officers looking inwards and then another cordon outside of them, of armed local officers also looking inwards. He stated: ‘‘certainly, you could take that from it’’. He was also asked whether the additional ‘‘back-up’’ cordon might have had any effect on the concept of the sterile area which he understood from his training. He stated:

‘‘No, I didn’t, because I knew from training that it is called a sterile area, but people have to operate within it andI didn’t see any contradiction with that and whatI was told in training and the positioning of those people’’.

While he could not say that the concept of a back-up cordon was addressed directly during the course of his training, it was however made clear at training exercises that the scene commander would take whatever steps he or she would deem necessary to deal with the situation. It wasn’t said: ‘‘don’t ever put in a back-up cordon or that should never happen’’. It was left up to the person in charge. His understanding of his training was that he was left an element of discretion and that each situation had to be dealt with as you found it. He considered that the positioning of the local armed gardaı´ in the locations where they were situated was ‘‘within my right’’ and was the correct thing to do. Superintendent Shelly further noted that when ERU personnel arrived and took up their positions, they did not have a difficulty with the positioning of the cordon by him; ‘‘and they would be a lot more highly trained than I would be, or the local people’’.

It was suggested to him, and he accepted, that discretion is exercised on the basis of either training or experience gained. He accepted that he had training but no experience. He saw no difficulty about exercising discretion as to where the back-up cordon might be located, or whether there would be a back-up cordon in circumstances where he had no experience and little training. It was a call that had to be made, he said, and he observed that many people are trained to do things in which they never have to engage in practice.

He did not agree with the comment of Mr. Bailey that local armed personnel may have found themselves at the command vehicle because no one gave an order as to where they should go or that their positioning occurred by default. They were, he said, properly deployed ‘‘and advised as to where they were now going and doing’’.

Number of personnel

He did not have any concerns about the number of ERU personnel that arrived at the scene to take over the inner cordon. He did not have any concerns about the reduction in the numbers of personnel who were manning the inner cordon. When asked whether he had no such concerns, why it was that it was felt that there was a requirement for a back-up, he stated that he felt that it was the proper thing to do. The local armed people had a role to play in this back-up role.

Moving containment

Superintendent Shelly had a knowledge of moving containment, that it was a ‘‘very dangerous task’’. He accepted that moving containment gave more time to people to assess the situation and more time to the subject himself to consider his own position. And that is one of the reasons that you put the moving containment plan into action ‘‘if it is considered appropriate and safe to do so’’. He also stated that he knew, in advance, that it was a tactic that might have to be engaged.

Role of local officers in moving containment

Superintendent Shelly gave evidence that the local officers had no role to play in the moving containment plan. He was queried as to whether this meant that they, the local officers, knew that they would have no such role to play and whether it was the case that they were unaware of what any moving containment plan would entail. Superintendent Shelly stated that at approximately 7:00 p.m., or thereabouts, the local officers were aware that John Carthy might emerge in a controlled or uncontrolled fashion. They were aware that they would have to confront him and totally disarm him, if he was armed in the uncontrolled scenario:

‘‘If not, that they would move with him as well. I think I said that as well, and tried to resolve the issue as best they could, given the training and the expertise that they had’’.

Thus, before the ERU arrived, local officers were aware that they might have to take part in such a tactic.

After the arrival of the ERU, it was not envisaged that local officers would take part in moving containment. At no stage, did Sergeant Russell suggest to him that the local officers would so take part. In evidence, Sergeant Russell had stated that he did not consider involving the local officers in the moving cordon; and therefore he did not think it was necessary to explain to the local officers how they would go about moving. From the perspective of Sergeant Russell, Superintendent Shelly accepted that the local armed people were not told what the moving containment plan would entail. He stated that they were told that the ERU would deal with the issue, and that they would be back-up. When the ERU took over, the local officers were not informed of what the plan was, because the ERU were going to deal with it.

It was put to him that he should have explained that the plan would have consequences and that if moving containment commenced that the ERU would be on top of the local armed gardaı´ ‘‘in quick time’’. If that had been done, it was suggested to Superintendent Shelly by counsel for the family, that it was ‘‘cryingly obvious’’ that that would have alerted them and his men that ‘‘we are too close’’. Superintendent Shelly stated, however, that he did not think that they were too close.

Each and every officer knew the position of everyone else, he observed. They knew what they were doing. He did not specifically tell anybody how to take cover or where to take it. People act on their initiative and judgement. The officers were experienced and trained in the use and carriage of firearms. They would know what to do in the event ‘‘of that unfolding’’. He accepted that taking cover in the context of firearms had specific meaning. When asked whether he had any specific discussion with his men as to what they should do or where they should go in the event of a moving containment commencing, he stated that he did not specifically tell them. He accepted that the local officers would be safe, from a ballistic perspective, behind the wall, unless John Carthy approached that wall. He agreed with the Chairman that they would not be safe behind the command vehicle, ultimately, because John Carthy would overtake the command post and then they would have no cover. Superintendent Shelly felt that the jeep would give some reasonable cover in the

circumstances. He accepted that nobody gave the officers any instructions as to the nature of the cover they should seek but stated that they would take that on their own initiative.

Crossfire — ‘‘blue on blue’’ — sterile area

Superintendent Shelly was aware of the dangers of crossfire and the potential for a ‘‘blue on blue’’ shooting, which ought to be avoided. He thought, however that ‘‘the measures put in place avoided that insofar as was possible.’’ Though he could not speak for the ERU, he stated in evidence that he felt sure that the ERU had positioned themselves in an ‘‘L’’ shaped manner to avoid that risk.

In the context of crossfire, Superintendent Shelly did not accept that when Sergeant Foley was contemplating taking action, that it involved the potential discharge of his weapon down the hill towards the Carthy house, or straight down the road:

‘‘I don’t believe when Detective Sergeant Foley was contemplating taking that action, ... it is my clear understanding that John Carthy was over at the ditch on the far side of the road, walking towards where they were, but nevertheless over, as you come out, I think, it would be on the right hand side of the road as you come up the road.’’

With regard to Mr. Bailey’s comment that there was little evidence of a plan to ensure the safety of two groups of gardaı´ and to avoid a ‘‘blue on blue’’ shooting, Superintendent Shelly accepted that whilst none of the plans were recorded, nevertheless, he stated he had a good understanding of what he was doing. His own people clearly understood what he was doing, what was anticipated and what was planned.

When asked whether he actually considered the question of crossfire at the scene he stated that he did ‘‘in the context of... every garda officer who is qualified to carry a firearm, obviously they have qualified to a high standard and they are trained . . . everyone of those people would be aware of the concept and the dangers of crossfire and if they weren’t, they shouldn’t be carrying cardholders, as we call them, and qualified to carry firearms on duty’’. He stated that the local gardaı´ knew exactly where the ERU people were and what they were going to do. The ERU people likewise knew where the local armed officers were and what they would do. Superintendent Shelly stated that you can never rule out crossfire or the danger of crossfire. It exists where groups of people with firearms are operating, but ‘‘I think everything that we did at the scene helped to alleviate, insofar as is possible, the danger of crossfire’’. He believed that the crossfire situation did not exist at the scene.

In view of the fact that it was accepted that the local gardaı´ did not specifically know what the ERU intended, he was asked how he could say that the local gardaı´ were aware of what the ERU were going to do. He stated:

‘‘from their training on how you would confront somebody in such a situation and they had been specifically told, before the arrival of the ERU: John Carthy could have come out of the house at any hour, at any minute, and from the

time that we were in position ourselves, they would be aware of that concept as well, and I believe that from their experience and training that the ERU would conduct a similar type operation’’.

2. Superintendent Byrne

Location of command post

Superintendent Byrne stated that the choice of location of the command post at the outset and during the operation was and continued to be under constant review. It was not considered appropriate to move its location. He could not say that he had any continuing discussion with anyone about the command post or its review. In a written answer to the Tribunal he stated that it’s position was under constant review though in oral evidence, he stated that he thought about it once or twice during the night. He did not think that the command post should be located over the brow of the hill or the back of the church. He felt that it was placed where they could best make use of the management of the scene and could bring third parties down to meet the negotiator. He did not agree with the observations of experts in relation to the positioning of the command post.

He was questioned:

Q. ‘‘Would you agree with this, superintendent, that had the command post been located further back as has been suggested by a number of the experts, if that had occurred, would you agree that the risk which was perceived by the two armed officers who discharged their weapons, that they may not have had that fear or risk at that time, do you understand?

A. I hear what you are saying, but it wouldn’t have been there at that moment, but it was only a couple of steps away until the next issue arose if John was pointing the gun at some person and it was believed he was going to fire’’.

Plans

Superintendent Byrne accepted that one of the responsibilities of the scene commander was to approve of plans, including break-out plans. The potential for an uncontrolled exit by John Carthy was planned for at a very early stage of the operation, he stated. Inbuilt in this plan were considerations in respect of what direction John Carthy proceeded in and also how all officers should be deployed in that eventuality. He noted that no specific instructions were given to local armed gardaı´ as to where they should move. However, they were told to move away to allow the ERU to deal with John Carthy but there was a ‘‘but’’ in that had one of the ERU people been injured or worse, that they would have been expected to assist. When he arrived at the scene, at 10:00 p.m. on Wednesday, 19^th April he did not have any discussion with any member of the ERU regarding the plan, though he did discuss it with Superintendent Shelly. When he was scene commander, he had a discussion with a local garda (who came on duty sometime after 1:00 a.m.) about the break-out plan. He told him that if John Carthy came out of the house, that the

ERU were to ‘‘deal with him’’ and he was to fall back, take cover and not get in the way. He was not going to be part of the moving containment plan. He was conscious that other officers had been briefed earlier because Sergeant Foley informed him of this.

Deployment of local officers

Superintendent Byrne was of the view that the most appropriate method of command for each group of officers was a ‘‘separate supervisory process’’. He saw no difficulty, however, with highly trained personnel being in the same area as local armed officers because ‘‘everybody knew their position, their job’’.

Superintendent Byrne stated that it was always considered best practice for the subject of a siege to see ‘‘members of the gardaı´ rather than to face only plain-clothes people and to either be confused or to think maybe they are not the police’’. This is not something which was discussed with Sergeant Russell. It was something that Superintendent Byrne decided himself. He also stated that uniformed gardaı´ were not visible unless John Carthy vacated the house.

Number of personnel

He was satisfied that the ERU had sufficient personnel at the scene to maintain the inner cordon. He did not have any input into the relocation of local armed personnel once ERU personnel came on duty. However, he was told about it and accepted it. It made sense to him and he did not attempt to change or interfere with it. He had not previously come across the concept of a back-up to a cordon on any previous occasion, or in his training. He had not been in such a situation before but it seemed reasonable to him. It was a contingency plan that had something gone wrong — such as the shooting of an ERU officer — that there was a second phase of a back-up in order to ensure that John Carthy did not come in contact with and shoot some civilian: ‘‘Without having back-up the question would have been why didn’t you have back-up, so the fact is we did have a back-up.’’ He was also asked that if there was a third armed cordon that this would mean that some persons would be pointing inwards with their weapons. He agreed that that cordon was inward-looking but they were supporting the inner cordon.

Moving containment

Before Abbeylara, he did not have any experience of the operation of moving containment. It was mentioned as an issue in his training. He could not recollect any practical exercise. He assumed that the ERU were familiar with it because of their higher level of training. However, he was never involved in any practical training incident. He was questioned on whether it was the case that moving containment could operate for a very short space of time only given the location of the command post. Superintendent Byrne accepted this point given that John Carthy walked in the direction of Abbeylara. He stated, however, that had John Carthy gone in any other direction, there was going to be more time assuming that he did not point his gun at another person, be it a garda or otherwise. He, Superintendent Byrne, did not agree that the moving containment plan was effectively ‘‘aspirational’’. It was

suggested that this was the case because it could not operate for any great length of time given the set up and given where people were located. He stated:

‘‘No. Had John left his gun open, he could have walked past the command post. It was the fact that John presented a danger with the gun closed pointed at people that resulted in what we are here about today’’.

He was asked whether anybody ‘‘Really thought about it at the time? — i.e. what would happen or what should be done if John Carthy came out on the roadway’’. According to Superintendent Byrne:

‘‘We had to be there. In my view, we had to be there, there was no question of not being there, because I thought that was a greater evil altogether to abandon John. So we were never going to do that’’.

Role of local officers in moving containment

There was no specific discussion with local officers as to where cover might or should be taken. That was left to the individual officers ‘‘because we couldn’t tell them where to take cover because we didn’t know where the danger would be coming from.’’ Superintendent Byrne did not agree that the plan could have been any more detailed from the point of view of what local officers should do in the circumstances.

Crossfire — ‘‘blue on blue’’ — sterile area

Superintendent Byrne acknowledged that in all firearms operations, it is recognised that risk of crossfire is present and where possible this should be minimised. In addition, individual armed members are given training in respect of this. People who carry firearms are very conscious of crossfire, he stated. He was familiar with the principle of a sterile area and he said that the evidence of Superintendent Hogan accorded with his training, that is, that the sterile area provides a working environment for police to ‘‘perform whatever tactic is required’’.

Superintendent Byrne did not agree that the tactic of two armed groups of armed gardaı´ moving towards each other was employed at Abbeylara. That did not occur, he contended.

3. Detective Sergeant Russell Location of command post

Sergeant Russell was asked to consider Mr. Bailey’s evidence that the location for the command post was something that should have been recognised both by the commander and the tactical officers. He stated that the reason for selecting that position was to afford Superintendent Shelly an overview of the situation. It would also provide him with communication to the inner cordon. Sergeant Russell could remain within the immediate area for the purpose of liaising with relevant personnel. He agreed with Superintendent Shelly that the ERU should provide the jeep. However, he did not involve himself in more detailed discussion regarding other

persons in the area. Final selection rested with Superintendent Shelly. Sergeant Russell’s immediate concern was with the inner cordon.

Plans

He did not believe that it was possible to make a number of written plans for how or what exit John Carthy was going to take. Sergeant Russell stated that it may be obvious with the benefit of hindsight that he took the most obvious route. But he wouldn’t necessarily agree that it was the most obvious route at that time. They had no indication that John Carthy had intended to come out. He did not state ‘‘I am heading into Abbe ylara.’’ He did not accept that the ERU had not made appropriate arrangements or contingencies.

He did not write down plans. While acknowledging that it might be part of the policy in the UK he stated that it was not the policy of the Garda Sı´ocha´na. However, he agreed, from a transparency point of view, that this appeared wise. He told the Tribunal that he did not write down the plan and he could not put the matter any further than that.

Sergeant Russell did not believe that any plan could have been written down for what John Carthy did when he came out of the house. There was, he said a

‘‘. . . dramatic change out on the roadway. I don’t think that anyone in this room would believe that you could consider all those variables in your plan.’’

He expressed the view that he was somewhat wary that if you do write a plan and put it into place and present it to people, that in some ways they become constrained by the plan and thereby initiative is removed. He would have a concern in relation to rigidity. The Chairman stated that there was no way that the minutiae of what occurred when John Carthy came out on the roadway could have been anticipated — however, the Chairman observed:

‘‘Mr. Bailey is saying that there should be a plan if he leaves the house and heads towards Abbeylara armed, what should happen.’’

Sergeant Russell stated that he catered for that:

‘‘We talked about that in the original testimony, about the generic plan and whatI had given consideration for.’’

He agreed that it would be useful to have a written plan in the event of people being replaced. In that regard, he stated:

‘‘I do accept in theory what Mr. Bailey is trying to achieve there in relation to a written [plan]. I would have to defer to that. I have no difficulty with that.’’

He was asked, bearing in mind that there were three or four more likely scenarios on exit than others, whether he considered discussing with his officers that if he goes in a certain direction that ‘‘this is the way we will organise ourselves.’’ He stated that he did not. The plan was generic in that sense. They would rely on their training and rely on their experience in that regard.

It was put to Sergeant Russell that the reality of the situation is that when John Carthy walked out of the house at 5:45 p.m. he had breached the inner cordon within 15 seconds. ‘‘However, he did not agree that the cordon was breached. He agreed that if the cordon remained ‘‘in a static position’’, the subject would have moved out of the inner cordon but, he had briefed his officers ‘‘a flexible cordon would prevail.’’

Sergeant Russell stated that when John Carthy walked down the driveway with the gun broken open, it was a reasonable interpretation that he was indicating that he wished to bring the matter to a peaceful conclusion:

‘‘I think if anyone had actually taken action that might have militated against that, it would have been unwise. I think the officers did the right thing. WhatI asked them to do was not to do anything reckless.’’

If John Carthy arrived at the gate and put the gun on the ground, officers would have acted in the right manner, he stated.

He accepted that it was a reality that within 1 5 seconds, John Carthy was on the roadway heading towards the opposite side of the road. However, in that 15 seconds John Carthy used the time to indicate another possibility, that he may be bringing the matter to a peaceful conclusion. The situation changed dramatically in a number of seconds from the gateway to the time that John Carthy was shot. That was a very short space of time. He felt it would be impossible to legislate for that scenario and to put such a plan into action. It is only fair, he stated, to recognise that people understand the difficulties that men were faced with at those cordons. The gardaı´, he stated, exercised considerable restraint. He thought it was fair to accept that if John Carthy had carried out the actions in another jurisdiction, that he would have been shot immediately.

Deployment of local officers under a single command

Sergeant Russell did not give consideration to advising that local officers be deployed under his command. He did not agree with Mr. Bailey in this regard. As the member in charge of the ERU personnel, he knew what he was bringing to the scene and he knew the capabilities and training of his personnel. He was tasked with the role of providing containment at the inner cordon. It would have been unwise to include a person about whom he had no knowledge, albeit that they would have been trained to some extent and that they would have had their training in relation to firearms. He felt that they had a more useful role as back-up:

‘‘What caused me some concern in this is that Mr. Bailey goes on at some stages to talk about moving containment and the principle of understanding and training and all this, andI cannot understand how he could suggest that they should be in place there on the inner cordon and then what happens when one has to move with moving containment? It would be very difficult to choreograph the process, so far as I am concerned’’.

Those local officers were under the control of Superintendent Shelly. There was never a question of any member of the ERU taking control of such individuals. He did not

recall that ever happening in the past. His task was to put in place the inner cordon. He felt that there were risks involved in any such scenario, but such risks would be heightened if local officers were included under his control in the inner cordon and had been expected to perform a duty they were not familiar with.

Number of ERU personnel

Sergeant Russell felt that he had sufficient personnel at the scene when he carried out a topographical assessment of the situation. He made an assessment of the stronghold, selected positions that he felt would afford the best opportunity to observe John Carthy and to observe the exits.

He took the view that four officers was adequate. The more people you add to the inner cordon, the more confusion one would create: ‘‘effectively we are talking about a unit of 48 personnel. You can’t just throw infinite resources at these situations.’’

Moving containment — role of local officers

Sergeant Russell was asked whether he recognised the risk identified by Mr. Bailey; namely, that because of the different level of experience of local officers, that he may not have been in a position to ensure that moving containment could be carried out in safety, as the local officers may not know exactly what they were expected to do. He stated that that is why he was surprised that Mr. Bailey had suggested in the first place that he place them at the inner cordon. If they were at the inner cordon, they could get involved in moving containment. Local members would only become a member of the inner cordon in extreme circumstances if someone was hurt. It was never envisaged that local officers would carry out the flexible cordon after the ERU arrived. However, he felt sure that Superintendent Shelly had discussed such a role with them before the ERU arrived. The model under which the Garda Sı´ocha´na operates is that they all perform under the control of a scene commander. Risk cannot be precluded. It was their function to cater for the risks and to identify with and try to plan for them.

Moving containment — shape of the cordon

With regard to the concept of an ‘‘L’’ shaped cordon, Sergeant Russell did not know if he graphically illustrated its shape at the scene; but, he said, the people under his control and command would be aware of it. They would not go into an area where they would inhibit a colleague from taking action. It would be impossible for him to spell out each individual eventuality and he also observed that he could only explain to his men that they have to have a consideration in their mind. It would be next to impossible to legislate for every possible scenario:

‘‘It brings me back to the thing about the plan being generic in that respect. If one took all the exits that were available for John Carthy, the windows and the door, the areas around the house that he could have travelled to it would be impossible for me to say ‘well you have an ‘‘L’’ shape here if he goes in this way’. That is why it is in their training that they know how to fit into gaps and fit into the area that has to be covered.

Q. Chairman: You really have to, as I understand your evidence, to wait and see what he does and then you apply the moving ‘‘L’’ shape containment in the context of the terrain, the location where you have to operate in view of what he has done. Does that sum up what you are saying to me?

A. That would be a fair assessment’’.

He agreed with the Chairman that there was no doubt that John Carthy did what he did without prior warning and that his officers had to tailor their response in the light of what he actually did. He agreed that this is what underlines the value of specialist training. They could only react to the situation as it was unfolding within the plan. If for some reason John Carthy escalated the situation, then they had to react to his actions. If he decided to point the weapon there was no question of the original shaped cordon continuing:

Q. ‘‘So the fact that someone was in danger from the very point when he started walking up the road, that meant that moving containment was over, is that right?

A. I think in the manner in which John Carthy presented the weapon, certainly, the danger was too great, I accept that’’.

He felt that the ‘‘L’’ shaped cordon would have worked had John Carthy gone in the opposite direction: ‘‘If you noticed the position that Detective Garda Carey and Detective Garda Ryan and myself took at the wall, we would have ended up going in the opposite direction’’. The other officers would have followed him.

It was suggested to Sergeant Russell that the fact of him getting on the wall ‘‘and not following your training here’’ is indicative of a fact that this wasn’t consistent with a planned ‘‘L’’ shaped operation. He answered as follows:

‘‘Can I just go back to what I’ve said about John Carthy leaving the household with the weapon open? Members actually believed, and rightly in my view, they took the view that this could become, this could be coming to a peaceful resolution, it is quite reasonable for them to assume that. I had cautioned against them actually, to be still concerned until the weapon was out of harm’s way, until John Carthy was restrained or overpowered. That left us in some respects with less time because he had arrived at the gate, and you now know what happened. The weapon was closed and they knew it to be loaded, so the time to react is decreased significantly, and we didn’t have the luxury of having some more time that would be helpful in that regard as a result of his action’’.

He did not accept that the jumping on the wall was an instinctive reaction, rather than being indicative of the planned ‘‘L’’ shaped operation. It arose as a result of the dynamics of the situation. He could not legislate for every factor in a dynamic situation when a person is moving with a gun.

He was also questioned on whether his actions sat comfortably with the contention that this was a planned and carefully organised and detailed system of moving containment:

‘‘What I can say is that the plan that I put in force, while it could cater, there is no guarantee that if one was going to achieve the ultimate of overpowering him. It is a plan you put in place to cater for the possibility, but there are no guarantees’’.

The solicitor for the Carthy family made the point that the ‘‘L’’ shaped cordon was not expressly referred to until day 76 of the Tribunal when Detective Garda Sisk gave evidence in relation to same. Sergeant Russell stated that ‘‘L’’ shaped cordons have been used for many years. The ‘‘L’’ shaped cordon plan was generic. He did not suggest to Garda Sisk that this is a position to take or that Garda McCabe should take such and such a position ‘‘as long as we understand that people will fall into position and have cognisance of crossfire, that is what they would be considering’’.

Crossfire — ‘‘blue on blue’’ — sterile area

Sergeant Russell noted that the risk of crossfire is present when firearms are used and that:

‘‘you can’t eliminate that risk but you have to get people to address it, and by explaining it to them beforehand or endeavouring to heighten their awareness in that regard, one hopes they address it’’.

Members of the Garda Sı´ocha´na who carry firearms have a fundamental knowledge of the risk of crossfire. He stated:

‘‘It is a basic principle, that you wouldn’t discharge a firearm without taking into consideration crossfire implications and the risk to other persons. That is covered in basic training’’.

This is further addressed in more advanced training in which members of the ERU have participated. A person carrying a firearm always analyses his or her position. While it was true that officers may never have to discharge their weapons, he doubted that it would make them either more or less aware of the dangers of crossfire, due to their training.

He accepted and agreed with the Chairman that it is regarded as advisable not to have two groups of armed officers facing each other with a subject in the middle and he also accepted Mr. Bailey’s observations that it is desirable that one should never have a crossfire situation or ‘‘blue on blue’’ scenario, but he did not believe that that occurred at Abbeylara. He stated as follows:

‘‘When Mr. Carthy was pointing his weapon at Detective Sergeant Jackson and Detective Garda McCabe, I don’t believe that we had a situation as described by Mr. Bailey. He is saying that it is desirable that you don’t have a ‘‘blue on blue’’. I don’t believe it was a ‘‘blue on blue’’ situation, insofar as thatI don’t believe that the local members advanced on our position. It is my understanding that they took cover, as agreed with Superintendent Shelly, and they remained as back-up to the ER U’’.

He did not believe that there was a risk of crossfire or that crossfire was a major concern at that particular time. What if John Carthy had proceeded further up the road? ‘‘We don’t know how it would have transpired... if John Carthy moved further up’’; he could only assume that people would take the necessary precautions against that.

Sergeant Russell stated that he briefed his own personnel extensively, that they wouldn’t put themselves in a position of crossfire. They understood that they should avail of cover, and that they should not put themselves in a position whereby they heightened the risk of crossfire. The issue of crossfire was addressed by him when he was placing the inner cordon personnel in their various locations.

He was also asked as follows:

Q. ‘‘In terms of the actual scenario that you are faced with, is it your belief that what you did in positioning the members of the inner cordon and giving the instructions, and indicating the positions of the local armed gardaı´ that, that was in part intended to deal with not just containment but any risk of crossfire?

A. That would be correct.’’

He confirmed that he was satisfied with the position in which Superintendent Shelly had stationed the local men. There was always the risk of crossfire but he was happy that the ERU and other gardaı´ addressed the issue and that members were cognisant of that fact and that they would make the necessary arrangements. The actions of Garda Sisk in adjusting his position, ‘‘I think demonstrated that he acknowledged the risk and took alternative action’’ and that movement by him was in accordance with his training.

Sergeant Russell stated that what he understood by sterile area was:

‘‘that there be no movement at all between the inner and outer cordon, that the whole area would be completely excluded from personnel, any personnel . . . that if there was an exit, that we would have an area to operate in that area, without the difficulty of people involved’’.

He accepted that Mr. Bailey was correct in theory in saying that a sterile area is desirable. He agreed with the concept of maintaining a sterile area, but it had to be predicated on the fact that it was Superintendent Shelly’s main concern and decision that negotiations ‘‘should be driving this’’. That was the key to resolving the situation. He had in fact expressed concern about bringing people in, ‘‘I think that is evident’’. He weighed up the merits of such a strategy, and he agreed that there was a risk. They would, he said, under the circumstances have to take some risk in order to resolve the situation. On that basis civilians (used as third party intermediaries in the negotiation process) were on occasions brought into the area to try to negotiate, or to have some dialogue with John Carthy.

Sergeant Russell accepted that once third parties entered the area it was no longer sterile. The difficulty which he had at the scene was trying to accommodate the process. He could not ‘‘wave a magic wand’’ and get a third party intermediary to appear in front of the wall. There is a risk in bringing anyone down. He accepted that:

‘‘Mr. Bailey takes the view that it shouldn’t happen. I am merely saying is that I accommodated it. I knew that there was a risk. I felt that the taking an overview of the whole situation, that it probably was the right thing to do because it could have resolved the situation. Any of these people could have made a connection with John Carthy and we might not have this whole process now. I think that ifI precluded it, ifI said no, it can’t happen under any circumstances, and we had the eventual outcome, I think we would have come under severe criticism and I may have a lot of difficulty in that regard’’.

He was asked whether he advised Superintendent Shelly or Superintendent Byrne as to whether it was prudent to ensure that any unarmed member who was in the sterile area, including in the command post, should be there for a specific purpose. He advised Superintendent Shelly that they should avail of cover and take appropriate action in the event of an exit:

Q. ‘‘Yes, I think we heard evidence about that, but whatI am asking you, really is, were you concerned that any unarmed local officer, uniformed or otherwise, who was present at the scene, would be there for a specific purpose and his entry into the sterile area would be specifically controlled?

A. Well again, I had no control over that, butI assume that any person there had a role to play’’.

Sergeant Russell stated that people were in the sterile area for good reason. Mr. Bailey, he said, had given an ideal scenario where there would be no one there. He stated that they engaged ‘‘in a process where negotiation was the ultimate, the key to unlocking this whole situation.’’ He did not think it was fair that on the one hand they would be open to severe criticism if they didn’t provide third parties to try and unlock the situation and bring the matter to a peaceful resolution and on the other hand suggest that there should have been nobody there:

‘‘While he suggested we have this sterile area, you have to take it in the overall context why these people were here. I don’t think you can isolate one.’’

From the time the negotiator arrived, Sergeant Russell was aware of the dangers involved. In the overall strategy he accommodated people entering the area. He felt that he had to defer to Superintendent Shelly who was in charge of the operation. He could merely point out the dangers involved and say that there is a risk. That was the strategy that had been adopted in the beginning and that is what he wished to accommodate.

Sergeant Russell was asked whether there was any discussion about the concept of sterile area. He stated that a sterile area could not have been achieved in the total sense that Mr. Bailey referred to. They discussed cordons and the fact that people

were not to enter the area unless they served a purpose. It was not discussed in great detail after that.

The fact that there were uniformed officers in the area did not give him cause for concern. The Garda Sı´ocha´na is primarily an unarmed force, he said. It would not be an unusual feature that uniformed people would be present for all sorts of reasons for example to reassure John Carthy. He was not directing operations up at that area and he had to leave that to other persons. He was, however, concerned for everyone’s safety at the scene. He could not recall whether he made any enquiries as to what those individuals were doing. Sergeant Russell agreed that he did not speak with Sergeant Foley. He was asked whether with the ‘‘bene fit of hindsight’’ he felt that he should perhaps have spoken to Sergeant Foley and with the local armed members who were in position. He stated that he would not accept that, and contended that he should report to his superior, the scene commander, which is what he did. Sergeant Foley was working under Superintendent Shelly.

He was aware that there were unarmed persons in the area as he had seen a uniformed presence. Being armed did not mean that you were not exposed to danger; the firearm provided you with a chance to defend yourself; that was the difference.

Sergeant Russell did not see any of the local gardaı´ exposed to a risk of crossfire following the exit of John Carthy. He believed that while a risk of crossfire always exists at such incidents, he did not believe that it happened in this case.

He did not agree with Mr. Bailey that the officers should have been further back on the roadway.

4. Assistant Commissioner H ickey

Location of command post

Assistant Commissioner Hickey in his written reply to the Tribunal stated that the location of the jeep, which became the command post, was at the most suitable location in the prevailing circumstances. The eventuality of John Carthy’s exit from the house was considered. He was conscious of various options open to John Carthy in relation to direction of travel and behaviour. The ERU tactical team was deployed to deal with him. The garda response would have to be governed by John Carthy’s actions and behaviour. In the event, the ERU dealt with the threat posed by John Carthy, and the local gardaı´ took cover, as provided for in the plan. He felt that in this case people concerned did what they were expected to do.

People who were there present were trained and he thought that what he saw, in terms of the location of the command post, was appropriate.

Plans

Plans are made by scene commanders. Other more senior officers may be consulted and intervene if there is something in the plan with which they do not agree. He told the Tribunal that there was no disagreement at Abbeylara.

Deployment of armed officers — placing of local armed officers under the same command as ERU members

Assistant Commissioner Hickey was asked whether consideration was given to removing local armed gardaı´ from the scene after the deployment of the ERU. He stated that local armed gardaı´ were deployed to support the ERU, if required, and the tactical team were deployed to deal with John Carthy’s exit from the house, controlled or otherwise. Therefore, consideration was not given to removing the local armed gardaı´. He was asked whether the local officers, armed and/or unarmed should have been in the immediate vicinity when John Carthy was walking up the road with his loaded gun. He answered:

‘‘sooner or later John Carthy was going to encounter somebody on that road, and if the command post was never at that location we had personnel posted at the ESB pole. That was Detective Sergeant Foley and two other officers’’.

He did not agree with Mr. Bailey that two groups of armed officers were moving towards each other. He felt that Mr. Bailey’s comments were obvious but, ‘‘that did not happen in this situation. They were not actually moving towards each other.’’ He accepted that while it was a ‘‘possibility’’ that the two groups could move towards each other, it did not happen in this case, and it was catered for where the local people were told to take cover. He was asked whether the risk of unpredictable behaviour was addressed in the context of a situation where there was a risk of a ‘‘blue on blue’’ shooting, and he stated that it was addressed in that the ERU were delegated to take charge of the situation and local people were told to take cover.

Assistant Commissioner Hickey also stated that the option of having local gardaı´ under the command of Sergeant Russell was not considered. He stated that in the deployment at any operation there was a rule of thumb that the sergeant takes charge of between four and six officers depending on the circumstances.

Number of ERU personnel

Assistant Commissioner Hickey stated that he had no concerns in relation to the number of tactical officers used. The geography of the location was such that the premises were covered front, side and back, and this seemed to him to be adequate.

Moving containment — shape of cordon

Moving cordon, he said, was not a new concept and the shape of the cordon at Abbeylara provided that people did not get into situations of crossfire.

Assistant Commissioner Hickey was questioned about whether when John Carthy came out of his gateway and presented his weapon it meant that at that point it was too dangerous to operate the ‘‘L’’ shaped operation, being the only plan that had

been conceived. He accepted that it was a short time frame and a short distance; ‘‘Any plan was only as good as first contact’’. If you have a plan and whoever you are dealing with does something unpredictable, you have to react ‘‘as Sergeant Russell has accepted’’, in relation to what is happening on the ground. He stated that from the start that there were various elements of the plan, but they were predicated on John Carthy’s actions and behaviour. Assistant Commissioner Hickey stated further, that in some jurisdictions it may be part of the culture of police operations that a person may not be allowed under any circumstances to come outside a gate with a loaded firearm, broken or otherwise. That is not how the gardaı´ work. It is not part of their regulations and ‘‘it was impossible to predict what might happen if he came out other than in a controlled situation’’.

Role of local officers in moving containment

He was not concerned about the position of local officers because they had ‘‘ready cover and they did take cover’’. Their very presence at the location was not something which at that time he visualized as being a particular problem. He stated that ‘‘there is a lot of talk about ‘‘blue on blue’’ shooting but there wasn’t actually and people did what they were trained to do and what they were instructed to do and were conscious of crossfire’’. It was his understanding that what actually happened with John Carthy was that when he proceeded up the roadway, Sergeant Jackson and Garda McCabe were behind him, slightly to his left, and the other ERU people were up parallel to him and one ahead of them. Sergeant Russell was up on the wall to his left; the other members had ‘‘got ahead of John Carthy on his left’’. He felt that the ERU members had moved in an ‘‘L’’ shape and had not stayed static.

Crossfire — ‘‘blue on blue’’ — sterile area

Assistant Commissioner Hickey stated that an integral part of firearm training is the inherent danger of crossfire in any armed operation. He indicated that the training highlights the absolute imperative of availing of cover where necessary. In this case the officers concerned, because of their positions, relied on their training and intuition, and despite John Carthy’s non-cooperation, and in particular his behaviour, avoided crossfire. In all operations you depend on people to behave as they are trained and he felt that that is what happened in this case. Crossfire was given consideration. In relation to the formulation of a plan to deal with the risk of crossfire he was happy with the situation as it existed. However, ‘‘it is predicated on when you are dealing with a subject who is armed and possibly moving, and that is an element that complicates the situation.’’

5. Chief Superintendent Tansey Location of command post

The command post was ‘‘a convenient location for meeting and communication between the scene commander, the negotiator and tactical commander.’’ The thinking was that it was necessary to have the command post there, primarily because of the lack of interaction or engagement by John Carthy insofar as the negotiation post was

concerned. The tactic of moving containment was taken into consideration, but it was a balancing act:

‘‘The way I looked at it was that it was important to have the command post in reasonably close proximity to the negotiating cell because of the fact that no progress had been made. I mean, I think I mentioned earlier on that if progress or substantial progress had been made insofar as negotiation process was concerned, then the negotiator and the scene commander and the command post could have been moved back.’’

He was questioned on whether: ‘‘If the people at the command post had not been there, the decision to shoot by Detective Sergeant Jackson and Detective Garda McCabe may not have been made at the particular point it was made.’’ Chief Superintendent Tansey said that he did not accept that proposition.

He did not agree that the positioning of the command post minimised the moving containment option, but he stated that certainly it was a balancing act. In the context of the moving containment plan, he was asked why they had not considered having the command post further away. He stated that when the actual plan for moving containment was put in place, there was no guarantee which way John Carthy was going to exit, if he did exit: ‘‘You could not say that the coming out on the roadway was an obvious option and you had to plan for every eventuality.’’

He stated that there was no consideration given to moving the command post from its original position; it was out of range and out of the line of fire. It was a position from where activity at the scene could be observed. It was available for communication and consultation with the negotiator and the tactical leader.

It was put to the witness by the solicitor for the Carthy family that, assuming the command post was not there, John Carthy would have continued walking up towards Abbeylara and would not be in a position of confrontation with local members. He responded:

‘‘if you are associating the three armed members, local members, as being posted at the command post, that is not correct. They were actually posted at the ESB pole. So regardless of whether the command post was there, they would have been there. That was their positioning. They weren’t posted at the command post, which was, I would say thirty feet at least back from the ESB pole’’.

He was also asked:

‘‘Q. Isn’t it the case that once John Carthy was out onto the roadway, that effectively the cordon had been breached and there were going to be difficulties, isn’t that the case?

A. Well, you see, the cordon wasn’t breached in the strict sense.

Yes, he came through the inner cordon as such, but I mean the members of that cordon — they were the people who were detailed to actually take on the moving containment.’’

Plans

In relation to committing plans to writing, it was not part of his training that strategic plans ought to have been written down. It was his experience that for major events, such as major sporting events, a plan would be written down.

He felt that you could not actually ‘‘dot your i’s and cross your t’s’’ insofar as an operation like moving containment was concerned. It is predicated to a great extent on what action the subject is going to take so that it is impossible to plan for every possible scenario.

As far as Chief Superintendent Tansey was aware, the question of potential risk of crossfire was not specifically addressed when plans for the uncontrolled exit were drawn up and implemented because it was part and parcel of and inherent in any operation of this nature. All armed members received very detailed instructions in this regard during the course of their training and refresher courses.

Deployment of armed officers — placing of local armed officers under the same command as ERU members

Chief Superintendent Tansey agreed that when the ERU arrived, they took over the inner cordon and the local armed officers were withdrawn to the extent that they had no further participation in that cordon. He outlined in a written reply to the Tribunal, that the precise deployment and positioning of personnel, both ERU and local armed members, by the scene commanders in this case contributed to a reduction in the potential risk of crossfire. Positioning of local armed members as back-up to the ERU, after they were deployed to man the inner cordon, was a necessary strategy in this case. For that reason, the withdrawal of local armed gardaı´ was never considered.

He was asked by the Chairman whether it was advisable that there should have been one tactical commander in relation to the whole scene that would include all armed officers. In response he stated that the ERU were a specialised and highly trained unit. Local members would have training, but not necessarily to the same degree, and consequently to put them under the same command as the ERU was something that would not be recommended because of the training that was involved. In any team people have strengths and weaknesses. The commander who was familiar with his own officers would know precisely what the strengths and weaknesses of his team were and he could use them as he saw fit.

Moving containment

Chief Superintendent Tansey confirmed that a moving containment was a tactic of which he was aware. He said:

‘‘I am sure I did receive some instruction on it, insofar as theory was concerned, but I was never involved in a practical situation where it was actually implemented’’.

He stated that he was not specifically lectured on the concept of moving containment in either his Superintendents Development Course or Chief Superintendents Development Course. But it:

‘‘would be in the ordinary course of garda operations, it would be something that we would be very conscious of. I am talking about firstly in the wider circle, in other words, that one would contain a suspect in a particular area, a wider area, and then obviously you break that down as time goes on to a smaller area, and that is all to do with cordons’’.

He had never been involved in a practical exercise involving moving containment though he accepted that it was going to be a difficult operation. It required everybody knowing their part. He agreed that one of the advantages of having the ERU present was their rigorous training regime. The programme of training one week in a month is an advantage. Moving containment was necessary because of the regulations which allow for the discharge of weapons only in certain circumstances:

‘‘if, as in this instance, John Carthy came out, initially when he came out he was not an immediate threat to life, so it was absolutely essential that the moving cordon system be brought into operation’’.

With regard to the involvement of local officers and moving containment, he understood that they were to be involved only in an emergency situation. They were not to take an active part in it: ‘‘that was a matter specifically for the ERU members’’.

Chief Superintendent Tansey thought that the local officers would have had some training in respect of moving containment.

Role of local officers in moving containment

Chief Superintendent Tansey was questioned on whether it should have been an important part of the plan regarding the uncontrolled exit that local officers would at all times remain under safe cover behind walls or buildings. He stated as follows:

‘‘well, what they were retained for was as back-up. They weren’t actually told that, Mr. Chairman. What they were told was that in the event of him coming out, they were to stand back and take cover. That is the actual instructions they got’’.

He further stated that:

‘‘every day of the week, ordinary armed members are back-up to the ERU. The ERU is a small unit and if they are carrying out an operation, there would always be back-up from other units’’.

Crossfire — ‘‘blue on blue’’ — sterile area

Chief Superintendent Tansey stated that there is an element of risk in all armed operations. The potential for crossfire is ever present. However, that potential in all tactical operations is significantly reduced with effective firearms training; an acute awareness of safety at all times; the knowledge of the use and effect of the discharge

of a firearm and the deployment and positioning of personnel. He contended that such a crossfire situation did not occur and was never likely to occur.

The two armed units were, he said, assigned specific but separate roles and briefed accordingly. The fact that John Carthy emerged onto the roadway with his loaded shotgun and turned in the Abbeylara direction did not alter the potential for crossfire in any way. The same level of potential risk of crossfire existed regardless of what route John Carthy decided to take, once it was an uncontrolled exit and he was armed with a loaded shotgun.

To say that there was a ‘‘blue on blue’’ was ‘‘simply not true’’, he stated. The instruction to local members was to stand back and take cover and let the ERU proceed with the operation. They would only become involved in an emergency situation.

In relation to the position of Sergeant Foley, Chief Superintendent Tansey did not agree with the Chairman’s suggestion that this was a ‘‘blue on blue’’ situation: ‘‘If Detective Sergeant Foley was firing, then he would have been firing across into the field, he would not have been firing down the road’’.

Chief Superintendent Tansey agreed with Mr. Bailey’s observation that two groups of armed police moving towards each other was a high-risk tactic. However, he contended that such an occurrence did not take place. Plans for the uncontrolled exit ensured that the situation would not occur.

In relation to sterile area, Chief Superintendent Tansey understood that the inner cordon was a completely sterile area and in between the inner cordon and the outer cordon is also known as a sterile area. It allows, however, for police to be in that particular area and for civilian people who are assisting in the actual negotiation. Chief Superintendent Tansey stated that he would be concerned that Garda Gibbons was in this general area. He was, he thought, some distance behind the command post and he was not between the command post and the Carthy household. He agreed that Garda Gibbons was in the sterile area, but it was the sterile area to which police would normally have access. It is ‘‘not the sterile area inside the inner cordon where there is absolute sterility insofar as that is concerned.’’ He accepted that Garda Gibbons had no function in the area and that he was not part of the back-up. He had just arrived in a patrol car a few moments before that and wanted to speak to someone in that general area: ‘‘it would have been much better if Garda Gibbons wasn’t there, no question or doubt about that’’.

6. Detective Sergeant Jackson

Crossfire

Sergeant Jackson observed that the risk of crossfire arises in most operations involving armed gardaı´. At the outset of the operation, crossfire was a concern, ‘‘since members were required to operate in a cordon system and at reasonably close proximity to one another.’’ These concerns, he noted, automatically became

heightened when John Carthy emerged onto the roadway with his weapon. Part of the training of the ERU involved movement and cover, and an appreciation of the difference between concealment and cover. In group deployments of armed personnel there is a consciousness among officers that you do not ‘‘place yourself at the opposite side of your colleague’’ and that you take cognisance of crossfire. It is a concept expanded upon as people develop and get more proficient in firearms.

Sergeant Jackson stated that while the risk of crossfire in armed situations is always present, he was of the opinion that when John Carthy emerged from his home, the risk was ‘‘minimal’’. ‘‘From a positional perspective’’, Garda McCabe and he were, he stated, out of the line of fire of those armed members who were at the command post. From a training perspective, the risk was also minimal because people there were trained to take cognisance of the effects of their weapon and the dangers of crossfire before discharging their weapons. The fact that local officers may never have discharged their weapons did not alter this because the bulk of gardaı´, even in the ERU, have never fired a weapon in a live situation. Further the plan at Abbeylara was that the outer cordon was a back-up cordon. They were not designated to intervene except in the contingency that something happened to an ERU person.

When questioned as to whether panic in an officer who feared for his life, might result in his not being accurate when discharging his weapon, he stated:

‘‘... with respect, I was one of the central figures on the roadway and I did not observe any panic’’.

If other evidence was accurate, and there was panic, would this add to the risk of injury by crossfire? The risk of crossfire was present when you have highly trained individuals. He reiterated that he saw no evidence of panic, but if persons did panic that would be a concern to him. However, the issues of crossfire and dynamics at scenes are addressed in training. He would therefore be surprised if a member carrying a firearm did display signs of panic. He did not observe panic, he did not panic, nor did he shoot John Carthy by virtue of any panic.

His action in discharging his weapon, he stated, was not precipitated or influenced by a potential danger or risk to himself from crossfire from a local armed officer. He discharged his weapon solely on the basis of the threat posed by John Carthy. Discharging a weapon on the basis of a risk of injury from crossfire was not compatible with the firearms regulations, he observed.

7. Other non-senior officers

Officers who stated that they engaged in the moving cordon observed that they had formed an ‘‘L’’ shaped cordon. They also addressed the issue of crossfire, and stated that while there is a risk of crossfire in relation to armed incidents, it did not occur at Abbeylara. Local armed officers who were at the scene gave similar evidence. All officers recognised the inherent danger of crossfire where two groups of armed police face each other, but none conceded that any such risk had arisen at Abbeylara. All gave evidence of their relative positions vis a` vis other officers and John Carthy,

as indicative that the risk of crossfire did not exist at the time the subject was moving up the road or when he was shot. ERU officers gave evidence of the more advanced training which they received in relation to both crossfire and moving/flexible cordons. Other officers also provided evidence on these issues.

SECTION B: — Information and Intelligence Gathering, Log Keeping and Family Liaison

1. Information and intelligence gathering Introduction

It was accepted by all witnesses that the gathering of information and its assimilation into intelligence is essential to a properly run police operation.

This was succinctly put by Detective Superintendent Hogan:

‘‘when things are happening very quickly, you want to get as much intelligence as you can from whatever source you can. I think the nature of policing is such that intelligence and knowledge of what is happening is an essential part of policing in a way, but particularly in a stressful situation or if you are going to deal with a stressful situation ... In a reactive situation, you need intelligence quickly, so you get it from whatever source’’.

In strict terms, information is what is gathered and intelligence is the product of the analysis and assessment of that information, including an assessment of its likely accuracy. In the course of the evidence and submissions made to the Tribunal, these definitions were sometimes used interchangeably and in particular on many occasions what should be more strictly called ‘‘information’’ was referred to as ‘‘intelligence’’, but in these cases the sense of what was meant was clear.

The approach taken by the scene commanders

Superintendent Shelly informed the Tribunal he was the person who received intelligence from the various officers and he was the person to assimilate all information. He assumed responsibility for any intelligence that came into the scene. He said he ‘‘felt comfortable’’ that he was ‘‘well able to manage that’’ and he ‘‘was happy with the decisions he made’’. He did not think that in the light of his other responsibilities, taking on the intelligence function himself was onerous. He said that he ‘‘didn’t feel under pressure’’, and that he felt he was ‘‘more than able’’ to handle the responsibility.

It will be recalled that Superintendent Shelly was not the local District Officer; he assumed the position of scene commander on 19^th April as Superintendent Byrne, the District Officer with responsibility for the Granard area, was in Dublin attending a course.

Superintendent Byrne said that when he came on duty as scene commander at midnight on 1 9th of April he looked at the question of the scene commander being responsible for the gathering of information and the assimilation and assessment of the information gathered, and decided that the scene commander ‘‘could manage the intelligence gathering’’. In his review of this issue he stated that he discussed the matter with Chief Superintendent Tansey, Superintendent Shelly, Inspector Maguire and others.

Superintendent Byrne said intelligence gathering was co-ordinated initially by Superintendent Shelly, while he was scene commander, and then by himself when he took over.

When asked whether he was concerned that the scene commander was taking on the burden of gathering and collating intelligence, Chief Superintendent Tansey said that the scene commander had plenty of people around him to assist and he gave as examples, Sergeants Dooley and Mangan and later Garda Gibbons and that it was not unusual for the scene commander to take on this role.

Keeping of a log and recording the information as gathered

Superintendent Shelly commenced the keeping of a log of events at approximately 10:00 p.m. after the arrival of the Emergency Response Unit. This log was taken over by Superintendent Byrne when he came on duty and was again taken up by Superintendent Shelly when he returned to duty as scene commander on the morning of 20^th April. The entries include some factual matters, certain instructions given to various officers and some of the information received from other parties, both gardaı´ and civilian; it is not complete.

Log entries were not always made contemporaneously in the wider context of it being a scene commander log and in the narrower sense of it being an intelligence log. It was subjected to criticism by policing experts, which is dealt with herein.

Training

The evidence of Chief Superintendent Ludlow

Chief Superintendent Ludlow informed the Tribunal that in the Operational Commanders Course given as part of the Superintendents Development Course, the importance of intelligence and information gathering was emphasised; particularly in the practical exercises that are conducted as part of this course.

On such courses instructions are given on the keeping of logs and the recording of information, particularly in aspects of the courses involving armed operations.

The evidence of Detective Superintendent Maher

Superintendent Maher lectured on the Superintendents Development Course. He said that in the context of discussions and lectures on the scene commander’s duties, instructions were given on the importance of the scene commander selecting

appropriate officers to take charge of different facets of the operation (such as cordons, negotiation, firearms, etc.,) together with the appointment of dedicated liaison officers. The delegation of intelligence gathering was stated by him to be an important function and that such intelligence as gathered should be available at the forward control point.

Superintendent Maher referred to the concept of an intelligence cell which was dealt with as part of a lecture delivered by him on the Hostage Negotiation Course. This is a cell where all relevant intelligence in relation to an incident could be gleaned and analysed and from which it could be disseminated. Relevant intelligence would include all information in relation to the subject of a siege so that a profile of a person could be created and developed. Superintendent Maher said that local detectives would be ideal persons for this role in a rural setting as they are the personnel who usually have knowledge of the individuals involved. The intelligence operation should be co-ordinated by a senior police officer typically the local detective sergeant, and he or she should have a responsibility for feeding the information and intelligence to the scene commander. He said that the intelligence cell may be located at the base station and the information sent forward to the scene commander by the intelligence co-ordinator. The base station would more than likely be the local garda station.

The evidence about their training on questions of information and intelligence gathering given by Superintendents Shelly and Byrne

Superintendent Shelly said that he was told during his Operational Commanders Course as part of the Superintendents Development Course that the gathering of information was very important in an operation and the guidelines as to how to deal with that were explained to him. He said that:

‘‘basically the establishment of an intelligence cell at the scene may be something that would be considered or should be considered by the people in charge, basically the operational commander’’. There was nothing written in stone he explained but, ‘‘obviously the principle of being aware of what was happening and gathering as much intelligence as you could was paramount to the success in any operation’’.

When questioned on whether he received guidance as to the circumstances in which it would be advisable to establish an intelligence cell, he stated that every case would be different. He explained that the length of the operation, and the likely continuing length of the operation were important factors in determining whether an intelligence cell would be required. He understood from his training that it was for the operational commander to reach a decision on that matter based on these factors and also on the amount of intelligence with which one would be required to deal.

Superintendent Shelly said that specifically in a siege type situation such as that at Abbeylara, guidance was given during the course of his training as to the circumstances when it would be advisable to establish an intelligence cell. Circumstances would depend on the particular incident that one was dealing with, and that a scene commander ‘‘would have to make a judgement call on that, as I did

at Abbe ylara when I was dealing with the issue there’’. He stated that that is what he understood and took from the training he received. He agreed that the importance of gathering intelligence was stressed on the courses and he described the gathering of intelligence as a ‘‘fundamental principle’’. He agreed, echoing the evidence of Superintendent Hogan, that when a situation is ‘‘foisted upon you as Abbe ylara just happened, then obviously you want to get intelligence, as quickly as you can get it, and find out as much as you can, as quick as you can’’. It was within his training, he said, and it was open to him to establish an intelligence cell and to appoint an officer to take charge of that cell. When asked as to whether at Abbeylara he gave consideration to the establishment of an intelligence cell, he stated that he took on the responsibility himself, and that any intelligence that came into the scene, came to him as scene commander, and that he dealt with it. When questioned whether there were benefits in establishing an intelligence cell headed by an intelligence officer, and whether any such benefits were explained to him during the course of his training, he stated that they were so explained to him. However, he repeated that what he took from the course was that there ‘‘was nothing written in stone in relation to it’’. He contended that he was ‘‘well able to deal with the intelligence that came to me’’. The benefits in the establishment of an intelligence cell that were described to him in the course of his training were, he said, that if one was getting a lot of intelligence from a lot of different sources, that there is someone to deal solely with the information.

Superintendent Byrne stated that his training was similar to that received by Superintendent Shelly.

The Experts’ views on information and intelligence gathering

Mr. Bailey

Mr. Bailey stated that in the United Kingdom scene commanders appoint individual intelligence officers for the incident. Their role is to gather information about the subject of the operation, the location, the weapons, motivation, family, friends, medical history, etc. Gathering of information is both self-initiated and in response to tasks set by the scene commander, to whom the intelligence officer reports. The intelligence officer gathers and collates information which is subjected to a process of cross-checking and assessment, the intention of which is to provide the commander with a view of its likely accuracy.

Mr. Bailey stated that information specific to the incident begins when the police first become aware of the incident. There is, however, often information and intelligence in the form of personal knowledge of individual officers and official records that exists before the incident begins. Collecting such details and actively seeking further intelligence are a significant contributing factor in the decision-making process. In the early stages of an incident, he stated, information may be recorded at the scene, at the radio control centre or at the initial command centre. As the incident develops, he stated that it was good practice to entrust the collection, evaluation, storage and retrieval of information and intelligence to one individual.

An illustration of what he perceived as a failure in the intelligence system was the fact that Detective Sergeant Jackson sought medical information in the early hours of Thursday 20^th April, although Dr. Cullen, from whom he was seeking that information, was one of the first on the scene when the incident commenced. Mr. Bailey thought that a successful intelligence officer would have obtained medical information from the doctor at the beginning of the incident and arranged to recall him in the event of additional information being required. He also believed that some information was obtained from Dr. Cullen in the early stages of the siege but it was not recorded in a way that could have been used at the command post to inform the decision-making process, e.g., Dr. Cullen’s understanding about John Carthy’s antagonism towards the police and his partial information on the subject’s mental history.

Mr. Bailey explained that in his opinion the absence of an intelligence cell rendered more difficult the gathering of information in a structured manner, but also rendered it more difficult in deciding which information was significant and which should have influenced decisions taken. An example which he gave of this was that in the early stages of the siege little or no significance was attached to the link between Detective Garda Campbell telling John Carthy that Dr. Cullen was outside in the car, and the shot fired which struck the wing of the patrol car in the driveway. It was not until some time later that it was established that John Carthy was reluctant to return to St. Loman’s hospital, which was what he might have considered the likely result of seeing Dr. Cullen.

Mr. Bailey explained his view that the analysis of information gathered early in the incident is one of the roles of the intelligence officer and involves ‘‘looking for links’’ with other intelligence or events that occur later. A successful intelligence cell should review intelligence and events and inquire why any particular individual ‘‘did this’’ or ‘‘said that’’. Trying to obtain answers to such questions is illustrative of the tasks of the intelligence cell. He believed that the scene commander should have the intelligence cell co-located with the command post whenever possible, so as to facilitate the continuous flow of intelligence which would inform the decision-making process. The intelligence officer is an adviser to the commander and attends meetings to review the progress of the operation and to provide reports of intelligence gathered. At such meetings he also receives requests for information required.

Mr. Burdis

Mr. Burdis was particularly concerned about the failure of the senior commanders to properly establish a formal intelligence gathering mechanism and an intelligence cell. He thought that, in fairness to Superintendent Shelly, ‘‘it is the system’’ that should have ‘‘automatically required an intelligence cell to be established’’. Superintendents Shelly and Byrne, he observed, carried intelligence in their heads, having appointed themselves as intelligence officers. He pointed to difficulty in relation to this in that the specific pieces of information that had been obtained by Garda Reynolds from Mrs. Rose Carthy on the morning of Thursday 20^th April were not recorded in the scene commander’s log. Additionally there was no record in Superintendent Shelly’s log of Inspector Magu ire’s conversation with Mr. Walsh on the question of a solicitor.

Mr. Burdis believed that the scene commanders failed to make use of senior detectives. Thus, for example, an officer should have gone to the local authority to see if a plan of the house existed, particularly when Sergeant Dooley failed to get any reliable plan from the family. Mr. Burdis believed that there was considerable information to be obtained from the family, John Carthy’s friends, his medical advisors and from records of the Garda Sı´ocha´na which were not obtained or recorded in a collective way. He pointed to the fact that it should not have been the responsibility of senior officers to look at the gun restoration file. This was a function for an intelligence officer. He also thought that by failing to appoint an officer or officers to collate and analyse any of the intelligence available, the operation was always going to ‘‘struggle’’. He thought that there appeared to have been no general management of the data; no assessment of what was effective and what was not, and no indication that intelligence played any part in assisting Superintendent Shelly and others to determine their strategies. Additionally there was little evidence to indicate how material was provided to Sergeant Jackson, other than to say that he was meant to ‘‘make of it what he could’’. Mr. Burdis thought that because much of the information was not developed or documented in a way that could be properly analysed, it was difficult for the senior officers to look at the advantages or disadvantages of adopting a particular line, and of allowing Sergeant Jackson to think through the best way of raising issues and opening topics of conversation during his negotiation. He thought that on many occasions Sergeant Jackson was left totally alone to determine how best to deal with a particular issue. An example he gave of this was the question of Kevin Ireland. He was concerned there was no attempt to properly debrief Mr. Ireland and there was little, if any, analysis made of what John Carthy had actually said insofar as it may have reflected his state of mind.

In relation to the officers who were asked to speak to the family, Mr. Burdis thought that they were not properly briefed. He believed that no proper record was maintained of conversations with the family. There was no collective record of what the family had said to the gardaı´ and no means of maintaining a record of what the negotiator had said. He was concerned that there was no written record of who Mr. Carthy’s friends were, and what they had to say about him. Insofar as the request for a solicitor was concerned, Mr. Burdis thought that an intelligence officer would not have been satisfied with a ‘‘I don’t know’’ type response from the family members and would have probed beyond that, particularly as the family was likely to have retained a solicitor in connection with the provision of the new house. Further, Mr. Burdis noted that there was no proper evaluation of the written material available in the garda station, insofar as this was read or examined.

Both Mr. Bailey and Mr. Burdis were of the view that the local officers released from cordon duty by the arrival of the ERU were ideally suited to be employed as information gatherers.

Mr. Lanceley

Mr. Lanceley said that in the United States a formal intelligence gathering effort would have been established at the command post and an officer assigned to oversee and co-ordinate that effort. As intelligence was gathered, it would be placed

on situation boards and disseminated to each component of the various management teams, i.e., the negotiation team and the command staff. This would apply even in simple incidents and situations. He pointed out that the benefit of adopting this approach is that everyone has access to the same information.

Dr. McKenzie

Dr. McKenzie stated in evidence that best practice suggests that the gathering of personal and sometimes intimate information about a subject in a siege is of critical importance. He thought that information about the most effective way of dealing with John Carthy was available from his family who had some years of experience of dealing with him in times of mania and in periods of depression. Details were available of solicitors used by John Carthy and his family. He thought that best practice would dictate that following the delayed transmission of information about the telephone call from John Carthy to Kevin Ireland, and regardless of the reliability of his reporting of that conversation, Mr. Ireland should have been urgently interviewed and debriefed, if only to deal with the problem of what amounted to hearsay at third remove.

Other matters which emerged in the evidence

In the course of the evidence on the issue of information gathering and intelligence, a number of specific areas of criticism emerged on certain key issues. Some of these have been referred to in the summaries of the experts’ views. Specific areas that were identified and explored by both the experts and by counsel for the Tribunal, and the parties, included the fact that Superintendent Shelly alleged that he did not learn at an early stage of Dr. Cullen’s comment to Garda Gibbons about John Carthy’s attitude to the gardaı´; the fact that Dr. Cullen was not interviewed in a comprehensive way as a matter of urgent priority; the fact that the gun licence file in Granard garda station containing Dr. Shanley’s letter was not examined until the following morning; the fact that the file in connection with John Carthy’s arrest for the burning of the goat mascot was not identified and examined; the fact that Kevin Ireland was not interviewed; the fact that Dr. Shanley’s involvement was not ascertained or identified at an early stage; and the fact that none of the solicitors who had acted on John Carthy’s behalf in the past or solicitors who had acted for the family were identified.

That Mr. Ireland was not contacted or debriefed represents a focal point of criticisms made in this area, in that this led to reliance by Superintendent Shelly on the information conscientiously given to him by Ms Leddy, which information he treated as accurate, notwithstanding that it had come through a circuitous route and was third or fourth hand. Two aspects of this were relevant; the first being that Kevin Ireland stated in evidence that in response to a request from him to John Carthy not to do anything stupid like shooting himself or anyone else, that the subject said to him that ‘‘He hadn’t a notion’’ and that he was ‘‘just trying to keep them away from the house or something’’. The second point is that Superintendent Shelly said that Ms Leddy reported to him that Mrs. Mary Ireland, Kevin Ireland’s mother, from whom she had received the information, had told her that her son had informed her (Mrs.

Ireland) that John Carthy had said something about ‘‘watching this space’’. It seems that this was not said in the telephone conversation between John Carthy and Mr. Ireland but rather in an earlier conversation between John Carthy and Mr. Ireland prior to 19^th April and in the passing from person to person the two conversations had become confused. In relation to the first point, i.e., that John Carthy hadn’t a notion of injuring anyone; this was not communicated to Superintendent Shelly or to the negotiator; and the second, insofar as it purported to have occurred in a telephone conversation that day, which was not so, was communicated to the negotiator Sergeant Jackson.

It was suggested in examination, most particularly of Superintendent Shelly, that the erroneous steps in relation to this information that were taken on foot of incomplete knowledge of the telephone conversation between John Carthy and Mr. Ireland could have been avoided if Mr. Ireland had been properly debriefed by an experienced officer who was familiar with events at Abbeylara and the intelligence thereby gleaned, analysed and assessed by an intelligence cell. It was urged that this was a stark example of the benefit of setting up such an intelligence cell as suggested by the experts and by the training provided by the Garda Sı´ocha´na. Sergeant Monahan who had spoken to Mr. Ireland when he telephoned Granard station, had not been involved in the Abbeylara siege and had no contact with Ms Leddy or Mrs. Ireland.

On this topic Superintendent Shelly agreed that it would have been better to have checked out the information by contacting Mr. Ireland.

In relation to many of the criticisms and comments from the experts, Superintendents Shelly and Byrne purported to deal with these by saying that they believe that they had complied with their training in that it gave them a discretion as to whether or not an intelligence cell and a dedicated intelligence officer were necessary, and they decided that they were not; a judgement with which they remained content. They formed that opinion and did not comply with the training they had received though neither had any prior experience as scene commanders or an armed siege situation or any experience of contending with a dangerous person motivated by mental illness.

2. Log Keeping

Introduction

The experts, particularly Mr. Bailey and Mr. Burdis, had criticisms and comments to make on the style and standard of log keeping at Abbeylara. These criticisms were not confined to the failure to keep a separate intelligence log, but were broader in their application, in that they dealt with the overall question of the logs, including the fact that they were kept by the scene commander. Accordingly, insofar as it has not been dealt with already, it is convenient to deal with the general question of log keeping here.

The Experts’ views

Mr. Bailey

Mr. Bailey thought that there were only so many things that can happen at a firearms incident and he said that it was accepted good practice to prepare record books in advance. These could be pre-printed in bound volumes and provide a chronological log of the incident and act as an aide me´moire to controllers and commanders. This ‘‘firearms log’’ would contain details of the original call to the police, the immediate response, subsequent actions, intelligence required, plans made and decisions taken. This record would be dated, timed and include options considered and rejected as well as the information and intelligence on which the decisions for selection of tactics chosen were based.

Mr. Bailey said that this documentation process should continue throughout the incident with each piece of intelligence being considered against the plan and contingencies to ensure that the appropriate decisions were taken. He said it was usual for the scene commander in the three tier system of ‘‘gold, silver and bronze’’ (this is discussed in detail in Chapter 10) to call meetings at regular intervals to review the progress of the incident and obtain the views of those able to advise him about the suitability of the plans, contingencies and tactics currently agreed. These meetings, he said, should be documented and the decisions recorded, thereby adding to the audit trail of the decision making process. In referring to the evidence of Chief Superintendent Ludlow, to the effect that the importance of keeping logs and recording information was a feature on which newly promoted superintendents would receive training in the course of their Superintendents Development Course, Mr. Bailey found it hard to reconcile the evidence given by Chief Superintendent Ludlow with what he thought was the failure to keep proper logs during the incident at Abbeylara. He thought there was poor quality in the details of what ‘‘passed for logs’’ at Abbeylara, which was not consistent with the description of the training given by Chief Superintendent Ludlow.

Mr. Burdis

Mr. Burdis expressed the opinion that the log keeping was very intermittent and incomplete, and that what notes were kept by Superintendents Shelly and Byrne were open to different interpretations. He thought that it was impossible for Superintendent Shelly to assimilate all the information he was receiving, and to evaluate and determine policies single-handedly. He believed that Superintendent Shelly had no prospect of ever being able to maintain a comprehensive log, and that a full time log keeper would have resolved the problem of recording the data and it would also have had the benefit of providing access to the data for a wider variety of senior and junior officers, and would form the basis of developing an intelligence strategy which would have allowed contingency plans to be worked on by a number of officers at the same time. Mr. Burdis said that a paper or computer based log would have ensured that every officer received the same material of briefings and that those briefings would have been available at all times, not just when Superintendent Shelly could find time to give them. He thought that as a senior

commander, pressures of the moment are often too demanding and too great to be constantly stopping to make notes.

The evidence about their training on the question of log keeping given by Superintendent Shelly

Superintendent Shelly said that in his training during the practical exercises, the person playing the role of scene commander had a loggist with him. His training informed him to maintain a written log but that the appointment of a loggist was an option open to the scene commander, depending on the circumstances with which he was dealing. Superintendent Shelly took the view that the log that he maintained met the requirements given to him during training by keeping a note as accurately as possible of everything that was happening, and of the information coming into his possession. He did not agree that it was difficult for him to keep a log, in circumstances where he had other duties and functions to perform. He said that as he was the person who was getting the information, he was the person to make the record and that that ‘‘was the best way to do it’’.

In summary on the question of log keeping, Superintendent Shelly said:

‘‘I think that, it is my own view you can either agree with it or disagree with it, butI think anyone who had a look at the log that we maintained at the scene — when you talk about future such incidents, or whatever — that they would say that they were well kept and they were detailed and they did have a good overview of what had happened’’

When Mr. Bailey’s criticisms of the log keeping, as outlined above, were put to Superintendent Shelly he said that ‘‘well, I don’t agree with him, it is as simple as that. I believe I kept a proper log at the scene, as did my colleague, Superintendent Byrne’’, and the former went on to say that he believed that the log that was kept was consistent with the training that he received. When it was put to Superintendent Shelly that it would have been more effective to have a loggist doing all this for him, he replied: ‘‘you could argue that, but as I said, I felt comfortable with what I was doing andI certainly felt that the log that was maintained was detailed and, indeed, was effective’’.

Other matters which emerged in evidence — the log kept by Detective Garda Sullivan

The other log that existed was that kept by Garda Sullivan. He informed the Tribunal that he was directed by Sergeant Jackson at the outset of the operation that he (Garda Sullivan) would be an aide to him and that this function would include note taking and liaising with the scene commander, together with such other duties that might arise when they arrived at the scene and became familiar with requirements.

Garda Sullivan did take a note. He was asked in evidence the purpose of the note and the reason why it came into existence. He said that the notes were ‘‘not meant to be a detailed account of what happened in the totality of the event and that is not whatI understood my role to be in taking a detailed note, they were not meant to be

an evidential log of events. They were taken, if you like, under difficult circumstances andI did my best to record as contemporaneously as possible some of the events that I was present for during the course of the event’’. He explained that an evidential log is one that consists of a complete and accurate record of everything that occurs at the negotiation point — this was not the type of note he was taking.

He went on to state that he confined himself to recording events that occurred or comments that were made while he was there, or comments made by John Carthy of which he was informed by Sergeant Jackson. He said that there were many happenings that were not recorded by him in that he didn’t see that it was possible for him to record every utterance and every movement that John Carthy made.

He was aware that standard operating procedures required the scene commander to keep a log, but he never saw that log, even to the time when he gave evidence to the Tribunal. He saw his log as providing some sort of time-scale of happenings as witnessed by him or events for which he was present, recorded so as to assist Sergeant Jackson while he was negotiating.

3. Family liaison

Introduction

Mr. Burdis described the historical perception from which the concept of family liaison grew. The current position in the United Kingdom is that family liaison officers are appointed where there is extreme trauma to family members. The intention in the appointment of family liaison officers is that they have a dual role. The first role is of reassurance to the family about the process and what is taking place. The second role is that such an officer, in the course of conversations with the family over a period of time, may gather intelligence and identify areas that might require further explanation, or that might provide further information and intelligence for the operation, whether from the point of view of negotiations, or tactical strategy.

Sergeant Mangan, one of the officers who spoke to members of the family, including Mrs. Rose Carthy, in the Mahon house over the period of the incident, appointed Garda Cunniffe as the family liaison officer. Garda Cunniffe had no experience or training as a family liaison officer. She had recently qualified as a police officer and Granard was her first assignment. She received no instructions on what her function was with the family. She was inappropriate for the role of family liaison officer. She did not know what information she should seek or might be able to obtain. She took up duty at approximately 10:30 p.m. on 1 9th April. Garda Cunniffe’s involvement and the state of her knowledge has been dealt with in Chapter 4.

While giving evidence in connection with this appointment Sergeant Mangan said that she ‘‘saw her [Garda Cunniffe’s] role as being a support to the family. That if they had any questions or any worries or whatever, that she would be able to either answer the questions or get the information they were looking for, and also that information would be fed back through her to the family as a link and she would become a familiar face to the family.’’

The evidence of Superintendents Shelly and Byrne

In his evidence Superintendent Shelly agreed with the general proposition that a family liaison officer was someone who not only imparts information to the family but also acquires information from the family. He said that this was a concept that was well known within the Garda Sı´ocha´na; a point which is also clear from the evidence of Superintendent Byrne.

The evidence on family contacts

In addition to the appointment of Garda Cunniffe as liaison officer, a number of other officers had contact with the family gathered at the Mahon household. These included Sergeants Dooley and Mangan and Garda Reynolds. Their evidence has already been outlined.

In particular it should be noted that when Garda Reynolds went to the Mahon house at approximately 8:30 a.m. on 20^th April, he did not know at that time that John Carthy had a mental illness.

The Experts’ views Mr. Burdis

Mr. Burdis thought that both Sergeant Mangan and Garda Cunniffe had been helpful in supporting the family but they provided little real intelligence. He believed there was no indication that either Sergeant Mangan or Garda Cunniffe were briefed in detail as to their role or about the importance of any focused intelligence gathering that could have been of value to the negotiator in bringing about a peaceful conclusion to the situation. He said that he found no indication that any form of log or note was being kept of the discussions with the family by members of the gardaı´. He thought that a full-time family liaison officer should have been appointed. He noted that Garda Cunniffe came off duty at approximately 3:30 a.m. on 20^th April, 2000.

An illustration of the failure to fully brief Garda Cunniffe, who had been appointed as the liaison officer, was that during her time in the Mahon house she did not receive any information from the scene. She returned to the Mahon house at approximately 8:30 a.m. on 20^th April and remained there until 11:00 a.m., but neither at the time of her return was she aware, nor during the period of her stay there did she become aware, that John Carthy had made specific requests, in particular requests for a solicitor and cigarettes. She said she was not in a position to give the family any further information as to what was happening.

Mr. Lanceley

Mr. Lanceley said that in the United States sometimes a family liaison officer is assigned to the family and in some cases may even move into their home for the duration of the incident. This officer stays with the family to pick up on information of use to the crisis management team and relay the information to the intelligence officer.

He said that another useful purpose for assigning an officer to the family is to gain the trust and confidence of the family. A final benefit of assigning someone to the family is that no one ‘‘gets lost’’. He instanced here the ‘‘losing’’ of Mr. Martin Shelly. This has been addressed in detail in Chapter 4.

The scene commanders’ evidence on, and their response to, the criticisms

Superintendent Shelly agreed that Garda Cunniffe was not told that John Carthy had made a request for a solicitor, which request had occurred approximately an hour after her appointment as family liaison officer. It was suggested to Superintendent Shelly that the full use and benefit of a family liaison officer would only arise if he or she was fully briefed and fully informed about what was going on at the scene. He agreed and said he thought that Garda Cunniffe knew exactly what was happening, explaining that in his view her knowledge came from the fact that she had been at the scene and should know what was happening, saying that ‘‘everyone there knew about it, what was happening, so I am sure Garda Cunniffe was no exception’’.

Superintendent Shelly agreed that the police officers who brought Ms Carthy and Mr. Shelly to Devines’ house should have been instructed to inform the scene commander of their whereabouts.

Superintendent Byrne said that during his period as scene commander he did not pass any information to either Sergeant Mangan or Garda Cunniffe to convey to the family, and he did not receive from them any information from the family. He was unable to comment on whether Sergeant Mangan or Garda Cunniffe were fully briefed, in that they had been appointed by Superintendent Shelly before his arrival. He did say that he did not have any discussions with either Sergeant Mangan or Garda Cunniffe during the night.

Superintendent Byrne did not have a satisfactory answer as to why Mr. Martin Shelly could not be located after John Carthy had agreed to speak to him or what efforts were made to locate the witness.

SECTION C: — Negotiations

Introduction

When asked in evidence as to what he saw as the essence of negotiation, Detective Sergeant Jackson said that in relation to incidents such as Abbeylara:

‘‘it is about interaction with the individual; getting involved with them and trying to open up a reasonable degree of dialogue with him. Having said that, if there is a difficulty in that area, it may involve, as I said, some degree of reasonably constant dialogue to try and reassure the individual inside as to the motivation of the guards for being there and an acknowledgement of the person’s fear of the consequence of their action and maybe of coming out. So, in this particular case, that would be the essence of it’’.

He then went on to agree with some general principles which had evolved for the conduct of negotiations, such as empathy and building rapport; building trust; being able to deliver on what you say you are capable of delivering on, as best one can; not misleading or telling the subject anything that is untrue or a lie; a willingness to compromise with the subject, in the context of an assessment of the individual factors and dynamics in each case; clear lines of communication; obtaining as much accurate information as possible, by way of background, from the subject himself; and ensuring that the negotiation did not deteriorate into a contest of wills.

The experts who dealt with negotiation issues were Mr. Lanceley, Dr. McKenzie and Mr. Burdis and to a limited extent, Mr. Bailey, who had certain comments to make on the location of the negotiation post.

1. The techniques

Sergeant Jackson said that at various times in the course of his negotiations he utilised the following techniques in his attempts to engage with John Carthy:

i A strong sense of empathy, showing that he understood and appreciated John Carthy’s feelings.

i Attempts to defuse the subject’s intense emotions, to try and reduce him to a more rational working level so as to allow him to interact with Sergeant Jackson. This involved engagement with John Carthy by displaying patience and understanding.

i An attempt to identify his state of mind and his feelings, then repeating them to him to show that he (Sergeant Jackson) was listening, and understanding the way the subject was feeling. Technically this is known as ‘‘emotional labelling’’. By way of example, Sergeant Jackson illustrated how you would effect this, when he said to John Carthy:

‘‘John, you sound very angry, you sound very upset, what is the problem and what has caused all of this, I am here, I want to hear about it’’.

He said that he utilised this method throughout the incident.

i An attempt to allay any fears John Carthy had in relation to the presence of the gardaı´ at the scene.

i On issues, such as the subject’s requests, revisiting them if there was no progress in other areas and being proactive to some extent, so as to achieve something positive out of them.

i Reassuring John Carthy and acknowledging his worries and fears.

i Giving Mr. Carthy time to consider and think. He said that silence is part of the process.

Sergeant Jackson drew a distinction between how a negotiator deals with a conventional hostage incident, where the hostage takers normally display goal

oriented and purposeful behaviour; and a non-hostage incident, where the person involved deals in a very self-destructive and senseless way, driven by anger as opposed to any particular demand for any advantage. In dealing with a hostage incident, the accepted police thinking is that the police should operate a high visibility containment by the firearms team, with negotiators rigidly playing for time, attempting to convince the person of the benefit of surrendering and that their course of action is not to their advantage. In the latter non-hostage situation the strategy should be based on low visibility containment together with engagement with the subject; allowing him to vent his anger; listening to the subject and providing him with problem solving solutions particular to the individual. The evidence indicates that the negotiator did nothing to provide John Carthy with problem solving solutions particular to his situation — such as his fear of a long prison sentence; his desire for a solicitor at the scene and his repeated requests for cigarettes.

From the evidence before the Tribunal it would appear that in the early stages of the development of the concept of a dedicated negotiator, police forces concentrated upon the utilisation of the negotiator in hostage type incidents. This arose as a response to such incidents as the Iranian Embassy siege in London in 1980. However, it appears that the current common experience is that the majority of incidents dealt with by police forces which require the use of negotiators are non-hostage type incidents. In response to this, in recent years there has been greater concentration on the separate techniques and skills that are required for this latter work, leading to the broader concept of a ‘‘crisis’’ negotiator rather than a ‘‘hostage’’ negotiator.

It is also worthwhile noting that Mr. Lanceley in his evidence illustrated another broad distinction that has evolved in the thinking in recent years — with particular reference to the position at Abbeylara — when he drew a distinction between crisis negotiation and crisis intervention. He said that negotiating by its nature would suggest that one or other of the parties could back out of any agreement reached, or of the negotiations themselves. He said that this could not happen in a situation where a police force is called to intervene in a siege. A police force cannot back out of the scene. In those circumstances, Mr. Lanceley believed that effectively the police are not negotiating but rather they are intervening in a crisis situation. He thought that negotiation was a term more particularly relevant to hostage scenarios. Effectively, Mr. Lanceley was of the view that in non-hostage situations one is dealing at root with crisis intervention. In a hostage situation, one is dealing with crisis intervention together with the use of bargaining; in hostage situations it is difficult to get away from bargaining.

Dr. McKenzie, differentiating between the principles and the techniques of hostage negotiation and non-hostage negotiation, said that the principles of hostage negotiations were firmly based on behavioural psychology. As an example of a practical illustration of this, he said that requests for such things as food, cigarettes and medicine would only be complied with following a positive response from the subject. He said that where hostages are being held and demands being made the practice of delay and prevarication followed by some reward for an acceptable piece of behaviour on behalf of the subject, such as allowing medical assistance, or

releasing a hostage, is perfectly correct. These are known as ‘‘positive reinforcers’’. They are based upon the sound behavioural principle that the reinforced behaviour will be repeated and that in turn the repeated behaviour may be further reinforced. The aim here is the negotiator will manipulate the behaviour of the subject leading in due course to a satisfactory outcome. Although he thought that this approach provided some useful strategy in a single-barricaded-subject situation, its excessive application in those circumstances may be unwise. In circumstances where there are no hostages and no demands (and in this regard he distinguished demands from requests) and ‘‘little to negotiate upon’’, the key feature is to keep matters under control.

Mr. Lanceley illustrated the practical distinction between hostage and non-hostage situations, by drawing attention to the question of ‘‘demands and goals’’. In a hostage situation, the hostage is being held for the fulfilment of ‘‘substantive demands’’, those being ones that the subject could not fulfil through legitimate means. In contrast what are described as ‘‘non-substantive demands’’ are ones that a subject can obtain through legitimate means. Demands that frequently arise in non-hostage situations are non-substantive demands, and when these arise in a non-hostage situation a negotiator has to ask why the subject wishes to have these non-substantive demands fulfilled. This is the question that the negotiator will more than likely have difficulty in answering and illustrates the difference in the skills required to deal with a non-hostage situation.

2. Detective Sergeant Jackson’s experience

Sergeant Jackson has been a member of the Garda Sı´ocha´na since 1980. Prior to that he had worked in Dublin Corporation, Dublin County Council, and for a manufacturing firm. He had about two years’ employment experience before joining the Garda Sı´ocha´na. His first posting was Harcourt Terrace station in Dublin and in 1982 he was transferred to Kilmainham station also in Dublin where he did general beat and patrol car duties dealing with a broad range of general police work. His period in Kilmainham also included some work in the local drugs unit.

In 1985 he joined the Special Detective Unit and was posted to Harcourt Square in Dublin, specifically to the Special Task Force in which he received firearms training.

In 1986 he joined the Emergency Response Unit and underwent the assessment and training procedures which are outlined in Chapter 10. He was promoted to the rank of sergeant in June, 1991 and returned to uniform attached to Store Street station in Dublin (where he remained, carrying out mainly personnel/supervision duties) until his transfer in January, 1994 to Blanchardstown station in Dublin where he was in charge of the local Crime Prevention Unit involving a broad range of work in criminal investigation and prevention.

In August, 1996 he was transferred to the Special Detective Unit as a detective sergeant and was a member of the Inquiry Unit for the North Dublin area, working primarily in intelligence gathering on subversive and serious crime. In September

1998 he rejoined the Emergency Response Unit. In October, 1998 he received tactical training in Germany and in August, 1999 attended the FBI hostage rescue team centre at the FBI headquarters at Quantico, Virginia. He said that negotiation was an element of this course but was not the specific reason for the training. It was broadly based, covering all the elements of hostage and rescue. His attendance at this course was primarily from a tactical team perspective.

In March, 2000, Sergeant Jackson was chosen to attend the London Metropolitan Police National Negotiators Course, a two week, full-time course. On return from it he was appointed national negotiator in the ERU.

Prior to this appointment Sergeant Jackson’s practical experience relevant to the matters that arose at Abbeylara came primarily from dealing with domestic violence issues, particularly during his period at Kilmainham garda station. In evidence Sergeant Jackson made the point that most garda personnel who are in the front line end up with a degree of experience in dealing with individuals in crisis states. In his evidence Sergeant Jackson drew the Tribunal’s attention to one incident in particular that occurred while he was stationed in Kilmainham. He was called to a business premises in Inchicore where an armed man had taken employees hostage; had fired shots and had refused to come out. This individual turned out to be a disgruntled employee who had been dismissed. The area was cordoned off and negotiating commenced leading to a surrender after five or six hours.

In 1990 Sergeant Jackson was part of a unit involved in the containment of an armed gang who were holding staff members hostage in a bank at Athy, Co. Kildare.

All of this having been said, the incident at Abbeylara was the first of its kind at which Sergeant Jackson attended with the designation of negotiator. In that capacity he had never before dealt with a live incident, and had not been involved in a siege type incident concerning an armed man motivated by mental illness.

3. Detective Garda Sullivan’s experience

As already stated, Garda Sullivan was appointed by Detective Inspector Hogan as Sergeant Jackson’s assistant. He was his only assistant, and together they made up the negotiating team.

Garda Sullivan joined the Garda Sı´ocha´na in 1982 and became a member of the Emergency Response Unit in 1994. Prior to that he was stationed in Clontarf Garda station and in the Divisional Task Force located at Santry, both in Dublin. His ERU experience included firearms duty, and he was part of the inner cordon team involved in the incident at Bawnboy, Co. Cavan in January, 1997. During training with the London Metropolitan Police in 1998 he served with a unit similar to the Emergency Response Unit for two weeks; the training he received being on the tactical side. In 1998 he also completed the firearms instructors course in the Garda Sı´ocha´na.

Garda Sullivan had no training in, or experience of, negotiations. He had never acted in the capacity of assistant to a negotiator before.

4. Other qualified negotiators

It appears that in April, 2000 there were a number of negotiators available within the Special Detective Unit in Dublin — approximately five in number. Additionally, there were in the region of 25 to 30 trained negotiators spread countrywide.

5. Detective Sergeant Jackson’s knowledge of mental illness

In his basic training Sergeant Jackson attended the lecture given in the Garda Training College, in Templemore on the Mental Treatment Act, 1945. Other than the knowledge that he gleaned on the London Metropolitan Police Negotiators Course, his knowledge of mental illness was derived from his own general reading and life experience.

In relation to his knowledge of manic depression, and in particular the distinction between it and depression simpliciter, he said that:

‘‘I had a general knowledge from, I suppose, my own general experience and reading in relation to manic depression. I also had knowledge from my training in the UKI was aware manic depression is a serious form of depression. I was aware that it involved swings between elation and depression. From my reading I was aware a lot of famous people, artists, writers, poets, suffered from manic depression. Abraham Lincoln, Winston Churchill, I think, were all sufferers, so in a general way from readingI was aware of the illness, that it was a serious illness. I was aware that during periods of elation people can have ideas of grandiosity and I remember reading at one stage, people tended to spend money above and beyond their means during periods of elation. I was also aware of the depressive state; people having morbid thoughts. Suicide was an issue when a person was in depression. Generally, thoughts of death, loneliness, low self-esteem, these were all in peoples’ minds when they were depressed. I was aware also that either in the elated phase or in the depressive stage, people in these particular instances, can lose touch with reality and may suffer from hallucinations or delusions during a bout of this particular illness’’.

6. Training

Detective Sergeant Jackson

Sergeant Jackson attended the London Metropolitan Police Negotiation Course which ran from 5th to 1 7th March, 2000. This course dealt with hostage and non-hostage situations, given that at that time 70% of incidents in the United Kingdom were of the ‘‘non-hostage’’ variety. As already stated, prior to attending that course the training Sergeant Jackson had received was primarily on the tactical side, and although it gave him some general knowledge of negotiation, the London Metropolitan course was the first one which was specifically concerned with

negotiations. At the outset candidates were required to undergo psychometric testing to assess their overall suitability for the course, and their capability to act as a negotiator.

The evidence established that the London Metropolitan Police Negotiation Course is one of a high standard and calibre, which is held in particular regard by police forces worldwide.

The topics and skills covered by the course included:

i The identification of the type of individual you are dealing with and setting out some information about various types of mental illnesses and conditions. From Sergeant Jackson’s evidence, it appeared that there was no specific reference in the London course to ‘‘elation’’ in the manic phase of bipolar disorder, or instruction on how to deal with such a phase.

i Appropriate negotiation strategy with people with depression. i The art of active listening.

i Styles of communication — emphasising empathy and honesty.

i Dealing with demands with an emphasis on the distinction between hostage and non-hostage situations, i.e., that in a non-hostage incident a demand, if reasonable, may be worth fulfilling without requiring something substantive in return and should be acceded to, provided the item can be delivered safely.

i The importance of the tone of voice, and body language.

In practical terms the course laid emphasis on the need for information and intelligence and the method of managing the use of the material generated, including as much relevant information as possible about what has motivated a person; what sort of person they are; their background, and state of health. The course stressed the importance of:

i Maintaining close contact with the stronghold.

i Ensuring an ability to record matters vital to the negotiations.

i Ensuring that negotiators operate as a team, ideally three or more in number but never less than two. In this connection Sergeant Jackson said his training taught him that the ideal situation was to build up a negotiation cell at a remove from the scene.

i While negotiations may start in ‘‘face to face’’ mode, the ideal position is a negotiating cell. In this regard his training indicated that ‘‘face to face’’ negotiations were to be avoided, if possible.

i In the event of ‘‘face to face’’ negotiations, secure cover should be sought and any display sheet on which relevant records of information and

intelligence have been made should be mobile, to allow for movement in the event of a retreat.

i That the negotiation cell established should:

y Be outside the inner cordon but near the forward command post;

y Be in a temporarily occupied building or a purpose-built or adapted police vehicle, capable of holding at least six people;

y Be comfortable, not in the line of fire and be protected from the elements;

y Be selected on the basis of long-term involvement rather than short-term deployment.

i That the negotiation team be as follows:

y Number 1, the principal negotiator, engages in conversation with the subject;

y Number 2, gives direct support to number 1 in interpretating and implementing the strategic commander’s overall strategy through a negotiating tactic. This negotiator is also responsible for the safety of the principal negotiator when both are engaged in ‘‘face to face’’ situations.

y Number 3, provides a communication link between the negotiator and the remainder of the command structure and also supports the role of number 2 in implementing the overall strategy and in the pursuit of shorter-term objectives in terms of intelligence gathering. Additionally, this individual is responsible for maintaining a detailed log of the events and may have to manage the visual displays as well.

y Number 4, is responsible for the maintenance of a visual display of all information relevant to the negotiations such as deadlines, demands, delivery or collection plans, the surrender plan, a break-out plan, and the general intelligence gathered.

In addition Sergeant Jackson stated that the London Metropolitan Police training stipulated that a negotiation coordinator, who is an experienced and competent negotiator with sound operational skills, should be part of the negotiation cell. His responsibility is to ensure that the cell is properly sited, equipped and run, and that the negotiators actively and accurately implement the overall strategy. He is also responsible for advising the scene commander on the best negotiating strategy and steers the team of negotiators by working closely with the other teams. He is responsible for arranging the deployment of a complete new team, normally after a twelve-hour shift has been completed, but this may vary according to the circumstances and should take account of the length of time each individual has already been on duty, prior to the incident commencing.

In his evidence Sergeant Jackson stressed that this is the ideal situation, and that his training indicated that ‘‘it is really on the basis of the primary resources of the incident, assessing the dynamics as to how many negotiators you actually need or want in that environment and really it would be very cumbersome to bring three or four negotiators on a ‘‘ face to face’’ and that is some of the issues that are discussed in training’’.

In this context Sergeant Jackson said his training provided that the roles as outlined can be compacted to suit a particular scene. He said that the role of number 3 and number 4 negotiator can be compacted into the role of number 2 negotiator; and that he received training on this topic. He was of the view that at least two negotiators should be used, and that if the circumstances allowed, then more could be employed.

i Also the London course stressed the benefit of other specialists such as a psychiatrist, medical advisors or clinical psychologists, who may be able to provide guidance in terms of negotiating and also advise on the welfare of the negotiating team. On the broader question of medical advisers, Sergeant Jackson said: ‘‘I think the common sense approach indicates that it would be very good practice to contact an individual’s medical specialist, either through the clinical psychologist retained, or directly, if necessary. So yes, that would be fair to say, it is something that should be considered and should be done on that basis, yes’’.

i The importance of maintaining a negotiating log. It was not done at Abbeylara.

i That, if possible, negotiations should be recorded.

7. Scene commander training

Introduction

The document entitled ‘‘The Siege Operations’’ which was prepared by Detective Superintendent Maher and used by him in his lectures was referred to in evidence. He said that the primary objective of this lecture was to engender the overall concept of siege management in district officers, who may not have had substantial expertise or exposure to the management of major incidents previously. The purpose was to make these officers aware of the expertise that was available to them and to give them some instruction as to how to manage a scene.

Superintendent Maher stated in evidence that the contents of the presentation are now given by Inspector Michael Jackson in his lecture on ‘‘Principles of incident and on-scene command’’ as part of the Operational Commanders and Superintendents Development Course and are similar to those that were given by him when he lectured on this course.

In relation to negotiations, these lectures involved instructions on various methods of communication, that is by way of telephone, loudhailer or direct contact and a discussion of the disadvantages of each of these methods. In particular,

Superintendent Maher said that instruction was given on the fact that ‘‘person-toperson’’ negotiation ‘‘places the negotiator in obvious physical danger’’.

The course also included instruction in the concepts of a negotiation cell and a negotiation coordinator.

Participants on the Superintendents Development Course were also informed of the availability of technical resources, including specialised telephones, and advice on the availability of the services of a clinical psychologist. Superintendent Maher’s course notes state that ‘‘his professional advice would be very valuable in a siege type incident’’.

8. The negotiation post and its location The evidence

Detective Sergeant Jackson

The evidence was that the initial attempts at negotiating were conducted by Sergeant Dooley and Superintendent Shelly before the arrival of Sergeant Jackson and the Emergency Response Unit. On his way to Abbeylara, Sergeant Jackson had given advice to Sergeant Dooley and Superintendent Shelly about the conduct of the preliminary negotiations being carried out by them. It was during their negotiations that Mr. Thomas Walsh had his first contact with his cousin by mobile telephone. Sergeant Jackson was not asked his advice in that regard.

During his journey to the scene from Dublin, Sergeant Jackson received the information already alluded to from Superintendent Shelly. Included therein was the brief partial information that had come to Superintendent Shelly from Dr. Cullen through Garda Gibbons. No details were furnished by or sought from the doctor. Superintendent Shelly did not interview him or arrange for any other officer to do so. Sergeant Jackson stated that he was not aware what specific information had come from Dr. Cullen, but that he took the information he received from Superintendent Shelly in ‘‘a block’’.

Sergeant Jackson agreed that making an assessment of the then current phase of John Carthy’s illness would be part of his overall investigation.

On his arrival at the scene Sergeant Jackson learned that Sergeant Dooley and Superintendent Shelly had carried out their attempts at negotiation from the ESB pole at the boundary between the Carthy and Burke properties. When Sergeant Jackson commenced negotiations he also occupied that position and he remained there for approximately ten minutes. Initially he thought that this was a point that was far enough out of John Carthy’s line of sight and range to be able to talk to him in reasonable safety. It was on high ground, looking down at the house and it also afforded good cover to anyone speaking to the subject from that point.

Soon afterwards Sergeant Jackson reassessed the situation. The main reason for doing so was his concern that John Carthy could not hear him unless by phone or loudhailer and Sergeant Jackson would have difficulty in hearing any response from him.

The witness believed that verbal communications were extremely important. In addition he thought that it would be helpful to be able to see how the subject was behaving which would allow him (Jackson) to ‘‘interact with him verbally on that basis’’.

He made it clear that he was wary about close contact with John Carthy, in the nature of ‘‘eye to eye’’ contact, because that can cause an adverse reaction in people who are depressed or in a crisis state. He described contact with the subject as ‘‘face to face’’ rather than ‘‘eye to eye’’. In the context of moving the negotiation post closer to John Carthy, he saw his physical closeness to him, and the danger of provoking an adverse reaction as a negative point, but he thought it was one that needed to be offset against the potential benefit of having communication with the subject.

Various alternative locations were looked at and a position at the pillar near the centre of the roadside boundary wall of the Carthy house was chosen. This pillar is shown marked as X on photograph numbers, 3, 8 and 11 in the series of photographs which are contained in Appendix 5. It was in a direct line with the gable window of the Carthy house, being the window of the kitchen. This was where the subject spent nearly all of his time during 1 9th and 20^th April. The distance from the kitchen window to the pillar in the wall is in the order of 38 feet. It was within the firing range of John Carthy’s shotgun.

Sergeant Jackson said that he thought that the advantages of this location were that the subject could hear him when he was using the loudhailer; that he was able to see his reactions to what he was saying and that he had the ability from this point to speak to him without the loudhailer unless he was threatening and firing shots.

Sergeant Jackson stressed that he saw the new location as a temporary measure. Because it was at the centre of the inner cordon it created an extra difficulty for the tactical team. It was identified as one of necessity rather than choice. He agreed that it was not ideal but that his thinking was that if and when he established telephone contact with John Carthy he would withdraw to a better position, such as one of the nearby houses. In general, Sergeant Jackson thought it was the best of a poor selection that was on offer.

He said that he discussed the matter with Detective Sergeant Russell and with Superintendent Shelly and it was agreed between them that he would move to the new location.

It was accepted by Sergeant Jackson that communication by loudhailer was not satisfactory for a number of obvious reasons, in particular that the subject did not have the benefit of a loudhailer and there was the unhappy situation that if private and intimate details were discussed by loudhailer, he would have the impression that

they were being broadcast generally. Sergeant Jackson and the other relevant garda officers agreed that the new negotiation post was physically unsatisfactory, requiring Sergeant Jackson to crouch behind the wall when John Carthy levelled his gun or fired shots, thus interrupting the flow of communications and cutting short any potential dialogue, leaving Sergeant Jackson exposed to the elements and creating difficulty in the recording of information, intelligence and events occurring at the scene, as well as causing significant further difficulties for the tactical team in that this new post was located within the ‘‘sterile area’’, a practice generally to be avoided. Probably the most serious disadvantage relating to the relocated negotiation point was that it gave John Carthy the opportunity, which he frequently enjoyed, of causing ERU officers there to duck up and down by levelling his gun at them (vide his telephone conversation with Kevin Ireland). He also availed of the opportunity to shoot a megaphone and a loose concrete block off the top of the wall. The latter fell on Sergeant Jackson who was crouching behind the wall at the time. The new negotiation point was severely criticised by the police experts — see hereunder.

Aside from one short period referred to below, Sergeant Jackson carried out all his efforts at contact and negotiation with John Carthy at the new negotiating point from about 10:30 p.m. on 1 9th April until he emerged from the house on the following day.

Sergeant Jackson never achieved sustained communication with the subject by telephone, much less his agreement to communicate in that way. His telephone contact was brief and intermittent and was only on the subject’s mobile phone. The negotiator never achieved any contact at all on the landline in the Carthy household. Sergeant Jackson’s only other contact with him during this period was either by direct speech over the wall or by the loudhailer. In summary, he was of the view that he never established a level of satisfactory communication with the subject that would have allowed him to move from his cramped and unsatisfactory location at the pillar of the garden wall.

He said that consideration was given to the suitability of the relocated negotiation post in discussions which he had with Superintendent Shelly and Superintendent Byrne, particularly in the context of the shots fired by John Carthy. During Sergeant Jackson’s watch eight shots were fired. Seven were in the direction of the pillar behind which the negotiation post was located, and there is photographic evidence of damage to the inner side of the wall at or about the pillar. There is no evidence that Mr. Carthy intended to shoot any police officer there. His subsequent telephone conversation with Kevin Ireland clearly indicates the contrary. It appears that the shots were fired after he caused the officers to duck behind the wall.

Detective Sergeant Russell

Sergeant Russell stated in evidence that he selected the negotiation position behind the pillar which was in direct line with the gable wall of the Carthy house. He said that in selecting this position he considered the safety options and had to weigh up a number of factors, believing that he was responsible for providing Sergeant Jackson with the opportunity to bring the incident to a peaceful conclusion. He said that it was ‘‘incumbent on us to take some risk to resolve the situation. If that meant exposing

ourselves to some degree of danger, well, we were prepared to do that if it meant that Michael Jackson could continue with his negotiation and hopefully bring it to a peaceful conclusion’’.

The experts’ views on and analysis of the location of the negotiation post

By way of general explanatory note, on each of the topics on which the experts gave their views, which were critical of the actions or decisions of any garda officer, each of the latter was given an opportunity to deal with such opinions and their attention was directed to certain specific areas by letter from the Tribunal. Their written replies were then amplified in evidence by the appropriate officers. In this chapter the letter written to each officer is referred to as the ‘‘recall’’ letter, and the evidence given by each as the ‘‘recall’’ evidence.

Introduction

The experts’ opinions on the location of the negotiation post were connected with their comments on the issues of officer and third party safety; risk assessment; the wisdom of ‘‘face to face’’ negotiations; the use of the loudhailer; the use of a separately located negotiation cell and the use of specialised equipment. It is convenient to consider all of these related issues under one heading.

It is also important to note that while the question of the location of the negotiation post is one that is firmly within the scene commander’s remit; in this instance the appreciation of the criteria involved in the selection of a negotiation point were matters of which Sergeant Jackson would be acutely aware, having just completed his London Metropolitan Police course. It was a number of years since Superintendent Shelly underwent his Superintendents Development Course, which contained limited instruction on the principles and techniques applicable to negotiation. Accordingly, Superintendent Shelly and subsequently Superintendent Byrne naturally relied on the advice they received from Sergeant Jackson, while at all times making clear in their evidence that the final decision on this, as with other operational issues within their remit, was made solely by them and if they were of the view that any suggestion on this or other topics from any relevant officers subordinate to them were ones with which they did not agree, they would have had no hesitation in rejecting such advice.

The distinction between the roles of the scene commander and the negotiator was illustrated by Mr. Bailey in his evidence when he said, in connection with the relocation of the negotiation post to the pillar in the boundary wall:

‘‘I think the negotiator quite rightly has focused on how best can they fulfil what is a difficult and complex role at the scene. It is also, I think, the responsibility of the scene commander to ensure that their safety is not compromised by their eagerness to fulfil that role. Therefore, whilst the commander should attempt to provide the negotiator with the negotiation point that they are seeking, they have to provide an overview of safety and effectively overrule the negotiator if safety is going to be compromised by the location that the negotiator would be in.

In the UK we have had shots fired that have hit negotiators, not fatallyI hasten to add, and negotiators have positioned themselves in positions which commanders have reviewed and withdrawn them from. So it is not an unusual situation. It is, I think, on the basis of the different focus of those two individuals, the scene commander’s overview of safety and the negotiator’s desire to conduct the negotiations in such a way that they will be successful’’.

Mr. Lanceley

Mr. Lanceley thought that from the outset of the negotiation response, there did not seem to have been an appreciation of the level of danger inherent in the incident. He said that the negotiation position, at the pillar, left negotiators and third party intermediaries too close to the Carthy residence and too vulnerable to hostile fire. He was of the view that the negotiators presented themselves as a target and John Carthy availed himself of the opportunity, firing on at least six occasions at the negotiation post. He said that the safety of the negotiators is a negotiation problem. He thought that it is not only that the negotiators are risking their lives but also that they are setting back the negotiation. He said that every time the negotiators exposed themselves to gunfire, John Carthy shot or aimed at them. He thought that John Carthy was amused by his power to make the gardaı´ duck for cover and that he boasted of this to Kevin Ireland in his conversation with him. In view of the fact that the negotiators could see the subject and he could see them, they had to be, at the very least, exposed to hostile fire. He said that there were a limited number of ways that negotiators could establish a dialogue. The first of these and the preferred method in the United States is the telephone whether it is a hard line telephone, mobile phone or telephone designed for law enforcement agencies in siege situations. The second and next best method is direct voice from cover with or without a loudhailer. The third method, and one that he was strongly of the view should be avoided especially with suicidal individuals, is exposed ‘‘face to face’’ negotiations. He thought that at Abbeylara a combination of all three methods was used. In the use of exposed ‘‘face to face’’ negotiations, cover was only used when Sergeant Jackson felt threatened or John Carthy was shooting in his direction. He said that in the United States negotiators are taught not to use ‘‘face to face’’ negotiations with armed subjects, including suicidal subjects, in that they are considered far too dangerous. As an illustration of the inherent dangers in this approach Mr. Lanceley drew attention to the fact that on one occasion when the subject fired the shotgun at Sergeant Jackson’s position, forcing him to take cover, a minute later Sergeant Jackson thought it safe to look over the wall again. Mr. Lanceley posed the question as to what had changed in that short period of time, from it not being safe to look over the wall to it being safe. He could find nothing that had changed. He thought that in the United States the scene commander, the tactical team leader or the negotiation team leader would have told Sergeant Jackson to find another negotiation position. He was strongly of the view that, in the United States, Sergeant Jackson would not have been allowed to negotiate from behind the boundary wall. Interestingly, he said that he saw it as a good measure of Sergeant Jackson’s skill as a negotiator that he almost convinced Mr. Lanceley in his evidence that being by the wall was a good idea. He said it was not a good idea because it was not safe. The witness said that if he had been in the position of the negotiation

team leader he would have deemed the negotiation position behind the wall to be clearly unsafe and would have attempted telephone contact from an alternative point. He said that in the United States if the subject did not answer the telephone immediately, and often this is the position, negotiators would keep calling until he did answer even if it took hours or days. In the context of being asked whether he believed that the scene commander, Sergeant Jackson and Sergeant Russell concerned themselves with officer safety, Mr. Lanceley said:

‘‘I don’t think they discounted it. However, at the same time I tend to think that their assessment was unrealistic. They were overly optimistic. If a negotiator can’t find a safe place from which to negotiate, that does not mean he goes to an unsafe place from which to negotiate. What he then does is he doesn’t negotiate at all. I would have preferred, Sir, that Inspector Jackson would not say anything to Mr. Carthy than have Inspector Jackson where he was. I would have preferred, Sir, that everyone just kept out of sight and said nothing at all to Mr. Carthy. That would be my preference. It might even have helped the negotiation process because I believe after several hours with nothing happening, Mr. Carthy may have said something. Where Inspector Jackson was, it was just a very dangerous place to be’’.

He went on to say that depending on the precise circumstances, he probably would have withdrawn from that point when John Carthy either pointed or fired the gun.

Mr. Lanceley said that by giving the subject the target of the negotiation post it allowed him to ‘‘self-enrage’’. The witness stated that with all the personal problems going on in his life, it would have been more appropriate to talk to him over the telephone. The loudhailer may be suitable at the beginning of an incident to gain the subject’s attention, but in the United States, concerted effort would have been made to transfer the negotiation to a more private form of communication, such as the telephone. He noted that very private issues were being discussed and he said:

‘‘shouting and using a loudhailer is not conducive to discussing and resolving such intimate and private issues as Mr. Carthy’s mental disorder, suicidal ideation, love life, job loss, loss of possible self-esteem and self-worth, anger, slagging he had been receiving, the feelings about the garda, guilt over self-inflicted blame for his father’s death, the loss of his family home, etc.’’

Mr. Lanceley said that any conversation under the Abbeylara circumstances would have been difficult but, ‘‘with a person who has been described as sensitive and diffident it would have been especially so’’.

Mr. Lanceley expressed the view that because John Carthy did not answer the telephone initially, this did not mean that he would never have done so. Even if it took him hours or days to answer the telephone, that extra time was likely to ‘‘pay big dividends’’. If no other means of communication were being employed, John Carthy would have eventually picked up the telephone realising that the incident was going to be worked in that way. He stated that ‘‘by using only the telephone Mr. Carthy would have been educated as to how things are done in an incident such as this’’. The very fact that he had to shout to be heard kept his arousal levels high.

Mr. Lanceley accepted that Sergeant Jackson went to ‘‘extraordinary lengths’’ to contact the subject by telephone. The latter rebuffed those attempts and he agreed that in those circumstances, it must have been very difficult and frustrating for Sergeant Jackson to try and establish telephone contact. He agreed that the use of the telephone and the attempts to make use of it presented difficult issues for Sergeant Jackson in the circumstances in which he found himself. However, he did say that no time limit should be placed on the attempts to achieve telephone contact, but that as the establishment of communication with the subject is the first step in trying to build up rapport with him a negotiator should keep calling.

Dr. McKenzie

Dr. McKenzie stated in evidence that the key problem in the negotiations, which was identified by Sergeant Jackson, was that the first position selected as a negotiation point was too far from the Carthy house, and the second was too close. However, regardless of any well-intentioned desire to develop a bond with John Carthy, any question of rapport/empathy development was severely damaged by the need to use a loudhailer to make contact with the subject. Even the alternative — shouting over the wall — was beset with problems. He said that he accepted that the circumstances surrounding Sergeant Jackson’s negotiation attempts were plagued by difficulty and danger. In his opinion the loudhailer is not commensurate with any effort to strike up rapport or to demonstrate empathy. Furthermore, if tone of voice and ‘‘echoing and feedback’’ are important, efforts to use such devices are rendered futile by the need for shouted ‘‘conversations’’. Subtleties of tone or voice (on either side) are non-existent. He said that he thought it was clear from the negotiator’s evidence as well as from the evidence of others at the scene, that Sergeant Jackson was a skilled, thoughtful and knowledgeable negotiator, and that he did his best in trying to display the skills of ‘‘active listening’’, but most, if not all of his efforts were thwarted by a lack of adequate (suitable) equipment. He said that in the absence of a proper facility for communication, however much the negotiator might wish it not to be so, a loudhailer produces a one-sided monologue approach.

He thought that it was of critical importance that such communications should take place on a person-to-person basis and, in the absence of a telephone line, it should be undertaken using a ‘‘throw phone’’ or a ‘‘field phone’’ or some similar form of equipment. He said that such equipment not only provides an effective form of rapport building through intimate communication (he described that ‘‘one can hear a smile’’ in a person’s voice on a telephone), it also provides the opportunity for gathering of intelligence. The issue of equipment is dealt with in more detail below.

Dr. McKenzie said that in the context of loudhailer use and the associated poverty of communication, it is important to consider what the situation looks like from the viewpoint of the subject inside the building. He may view him or herself as the principal negotiator and will expect, as a matter of course, responses to observations, questions, comments and demands that are made by him or her. Where, because of inadequate communication, the police negotiating team cannot hear responses or demands, any expectation of rapport is defeated. This almost inevitably leads to growing frustration in the subject. Dr. McKenzie was asked, in the context of the

numerous attempts that were made by Sergeant Jackson to make contact by telephone with John Carthy and in the context of the responses that he received, what he (Sergeant Jackson) was to do. Dr. McKenzie replied that the answer was simple — ‘‘keep on trying’’. In this context he drew the Tribunal’s attention to the fact that there was telephone contact between Sergeant Jackson and the subject in the early afternoon after the loudhailer had been shot from the wall at 1:06 p.m. This is a point which was elaborated upon by Mr. Burdis in his evidence. Dr. McKenzie thought that fairly subtle use of words and language should be used in repeatedly pointing out to a subject that the police officers conducting the negotiation are having difficulty outside in hearing what is being said. He stressed a negotiator should not be overbearing in such a situation.

Mr. Bailey

Mr. Bailey thought that it was unlikely that many commanders in the United Kingdom would have agreed, on the grounds of safety, with Sergeant Jackson’s request to move the negotiation post to the pillar at the boundary wall. Furthermore, he was of the view that if such agreement had been allowed, a negotiator would have been withdrawn immediately John Carthy aimed the shotgun at him, let alone fired shots at the wall. He said that he could understand Sergeant Jackson’s reason for making the request to negotiate from the wall, but thought that from a commander’s perspective the risk was too great to adopt the wall as the negotiation position. In his view it was a command responsibility to ensure the safety of the negotiator. He said that the safety of the negotiator should take priority over the effectiveness of the negotiation, if that choice needs to be made; and that if the contrary view is taken, eventually a negotiator will be shot by the subject of an operation.

He thought that in addition to the safety considerations, an additional reason that a scene commander in the United Kingdom would not have adopted the wall as the negotiating position is that it provided John Carthy with more control over the process than they would have wanted. Simply by pointing the shotgun he could stop the negotiation when he wished. He also believed that a scene commander in the United Kingdom would not have allowed non-police personnel to go to any negotiating point where there is a risk of them being shot. A further concern for a United Kingdom scene commander would have been that if a member of the inner cordon shot the subject through the window because they feared for the safety of someone at the negotiating post; it could be argued that the decision to negotiate from the wall contributed to the need to fire.

Mr. Burdis

Mr. Burdis was of the view that the location of the negotiation post put Sergeant Jackson in a very difficult situation. He would have to be in a crouched position most of the time while he was there, trying to receive information and having to assess whether it was safe for him to expose his head above the wall at all. Mr. Burdis thought that if one wants ‘‘face to face’’ negotiation, it has to be in circumstances where it is consistently safe to be able to do so, not relying on whether the gun is pointing in one’s direction or not at any particular moment. The difficulty that

presented itself was compounded by the requirement to use the loudhailer which was unsatisfactory for a number of obvious reasons. Mr. Burdis believed that Sergeant Jackson was in a very dangerous situation, and he (Mr. Burdis) would have wanted to move from that position as quickly as possible to a neighbouring property, or even a vehicle, but certainly away from the situation where he was under the threat of fire at any moment. He said that a necessary ingredient in such movement would have been the establishment of telephone contact with John Carthy. Mr. Burdis thought that not enough time was spent in trying to get him to use the landline. In echoing the point made by Dr. McKenzie, Mr. Burdis said that after the time when he shot the loudhailer from the wall, there was a period of communication which contained significant exchanges between Sergeant Jackson and John Carthy, which took place by way of mobile phone. Mr. Burdis thought that there was more depth to the conversation which took place at this time, and that these conversations were an opportunity to develop a relationship whereby Sergeant Jackson might continue to make contacts by use of the mobile phone. Mr. Burdis commented that it appeared as if Sergeant Jackson was only using the mobile phone on a temporary basis until a replacement loudhailer could be brought, and that once that had arrived he went back to using the loudhailer.

Mr. Burdis believed that by daylight on Thursday, 20^th April, he would have seen it as a priority to move the negotiation post from the wall, even in circumstances where Sergeant Jackson had not succeeded in establishing reliable telephone contact. He said that the scene commander should have given consideration to moving the negotiation post from the dangerous position it was in, being one where there was the risk of an officer exposing his head at the wrong moment and being killed.

The evidence on recall

Detective Sergeant Jackson

Consequent upon the evidence on training and also that from the experts, Sergeant Jackson was asked the following question by letter from the Tribunal:

‘‘Did he consider advising the establishment of a manned and equipped negotiation cell at a location removed from the immediate vicinity of the Carthy old house? If not, was there a reason for this?’’

His reply was:

‘‘At the outset and throughout the incident the potential for the establishment of a negotiation cell at a remove from the old house was a consideration that could arise if substantive phone contact took place with Mr. Carthy. In these circumstances the scene commander would be advised accordingly. The goal of substantive telephone contact was pursued from the outset of the operation and continued throughout, but was never achieved.’’

In further examination Sergeant Jackson justified choosing and remaining at the negotiating point at the garden wall. He said that:

‘‘a lot flowed from the position at the negotiation post in relation to limited communication with Mr. Carthy, bringing the intermediaries down to the scene and extracting, as best we could, some form of dialogue between the negotiator and the third party inside. That was only possible from that negotiation position, either on the loudhailer or verbally and also intermittently on the phone; but none of that would have been possible if we had decided, as the experts have suggested, to remain at a remove until Mr. Carthy answers the phone’’.

He answered the criticism made of the empowerment of John Carthy by accepting that he (John Carthy) had a degree of control over the negotiator’s actions but that this was accepted by the gardaı´ on the basis of having limited options in relation to communication.

He said that it was a matter of checks and balances in relation to living ‘‘with the level of threat that existed’’ and he said that ‘‘in our assessment we could’’.

During the course of the evidence the following exchange took place between the Chairman and Sergeant Jackson:

‘‘Q. Chairman: Would it come down to this, Inspector Jackson, as to the positioning of the negotiation point when it was moved to the wall opposite the kitchen, that there were considerable downsides in connection with that? Negotiating by megaphone, I take it you would probably agree with Dr. McKenzie, is far from being an ideal mode of communication. You would agree with that?

A. Yes, Chairman, yes indeed.

Q. Chairman: Secondly, looked at from the point of view of the negotiators, I think the weather situation wasn’t too difficult, fortunately, but if it had been bad, it would be very uncomfortable and unpleasant for the negotiators, to say the least of it, perhaps even impossible to persist in using that particular site. That is another downside to it. A preference, I suppose, would be to be able to use somewhere such as, for example, the Burke house, which would give you the comfort of having a roof over your head. It would enable you to negotiate more easily with John Carthy, insofar as you wouldn’t be posing a threat to him or an attraction for him, whichever way he was looking at it, causing you to jump up and down and so on, as he has described to Mr. Ireland in his conversation; but, the big downside about moving the place for negotiation was to be able to communicate, because that is the essence of the whole thing. It would really depend on being able to persuade him to communicate with you by telephone?

A. I think you have that in a nutshell, Chairman.

Q. Chairman: If that had been possible, then to negotiate from, let us say Burkes’ house, would have been a far more preferable arrangement than that which was actually used?

A. Absolutely, Chairman. In addition to reaping the rewards of very good verbal contact, you remove the difficulty for the tactical team in relation to the negotiating position. You do not have that dynamic within the inner cordon, of people attempting to communicate.

Q. Chairman: Yes, that is another advantage that is there in it. A. Yes.

Q. Chairman: It all turns on communication, and being able to persuade him to communicate?

A. Absolutely. Some of the experts have criticised the amount of time we have spent attempting to persuade Mr. Carthy to talk on the phone, and that was done at the start of the incident and throughout because I was very conscious of attempting to move the negotiation team back from the scene and to be able to talk on the phone with Mr. Carthy. Unfortunately, substantive phone contact, whilst there was intermittent contact on the phone, there was nothing substantive in order to allow me to remove myself back to a more suitable position, Chairman. That is the essence of it, I think you are quite right.

Q. Chairman: Yes. It would necessitate agreement with John Carthy to use, to be prepared to use the telephone?

A. Q. A.

That is correct, Mr. Chairman.

Chairman: Without that, you probably wouldn’t get very far?

It is impossible, andI think as we discussed before, technicallyI could be in Dublin and still be able to communicate with Mr. Carthy. Now, that is an extreme case but as long as he spoke on the phone I could select my position away from the immediate confines of the inner cordon.’’

As to Dr. McKenzie’s concern about the use of the loudhailer, Sergeant Jackson said that it was not the most beneficial means of communication but that it was the best form on the basis of what he was trying to achieve, that is, reassurance of and engagement with John Carthy.

On Dr. McKenzie’s and Mr. Burdis’s point that a significant passage of interchange occurred when the loudhailer was shot from the wall, Sergeant Jackson thought that similar parcels of communication took place in other periods during the incident and he did not see this particular exchange as standing out. For this reason he did not attach any significance to the fact that it took place by telephone and at a time when Sergeant Jackson was not within John Carthy’s view.

In relation to the main thrust of the experts’ criticism to the effect that the strategy in relation to the negotiation post, as initially adopted was not producing any significant benefit and that nothing new was tried, Sergeant Jackson said that the method and position that they had adopted was the only method ‘‘of realistically being able to bring to bear any sort of verbalisation with Mr. Carthy’’.

In relation to the establishment of a remote negotiation cell, Sergeant Jackson said that the key element in the establishment of such a cell was the existence of telephone contact with John Carthy. He said that throughout the incident during the ‘‘face to face’’ negotiations he attempted to establish and maintain telephone contact with a view to setting up and moving to a remote cell, but without success.

Superintendent Shelly

The Tribunal wrote to Superintendent Shelly and the other three senior officers, requesting a statement in relation to whether they had considered the establishment of a manned and equipped negotiation cell on a location removed from the immediate vicinity of the Carthy house? If not, was there a reason for this?

Superintendent Shelly replied as follows:

‘‘The potential for the establishment of a negotiation cell at a remove from the old house is a consideration that could arise as a result of substantive telephone contact with the subject, John Carthy. If this had happened we could have moved to a location away from the vicinity of Carthy’s old house. At the outset, Detective Sergeant Jackson had attempted to engage John Carthy by telephone from the ESB pole at Burkes’ house. However, this did not materialise and it was agreed to move the negotiation point to the pillar on the wall in front of the Carthy’s old house’’.

Superintendent Shelly outlined his training in relation to the location and siting of a negotiation cell as being in line with the foregoing statement. He stated that unfortunately they never got to a stage at Abbeylara where they could move the negotiation post from where it was. Having outlined the efforts made by Sergeant Jackson to make telephone contact with John Carthy he explained that he had agreed to the negotiation post being moved to the pier opposite the gable window of the Carthy residence so that the negotiator ‘‘could have eye contact at least with the subject and talk to him from there’’. Superintendent Shelly agreed that no consideration was given during the course of the operation to siting the negotiation cell in another locality because of the difficulty in establishing ongoing direct communication with the subject. He stated ‘‘had it been otherwise it could and would have been done.’’

He differentiated the incident at Bawnboy (referring to an incident which occurred in January, 1997 — see section D of this chapter), where a negotiation cell was established, from Abbeylara in that at Bawnboy there was telephone communication between the subject and persons outside from an early stage.

Superintendent Shelly was asked, in the context of his training, what planning was put in place for the establishment of a negotiation cell had John Carthy made the requisite amount of telephone contact. It was suggested to him that such an element of pre-planning did not appear to be present. Superintendent Shelly replied that the plan was to try to make contact with the subject through negotiation and if that happened the negotiation cell would have been moved to a remote location from the Carthy house.

Superintendent Shelly was asked whether he took the issue of safety into account when agreeing to the relocation of the negotiation point at the Carthy wall. He replied that the nearer you go to such a situation the more danger there is but that the ERU are specifically trained in relation to this.

Superintendent Shelly was asked to comment on the evidence of the expert witnesses that they would have been reluctant to allow the negotiation post to be located where it was. In particular Superintendent Shelly was directed to the evidence of Mr. Lanceley who felt that the officers located at the negotiation point provided John Carthy with ‘‘a target’’ to shoot at and that this had the effect of allowing him to get an adrenalin rush and ‘‘self-enrage’’. While Superintendent Shelly accepted that negotiating is a dangerous job, he stated that he was happy that the pillar of the wall provided Sergeant Jackson with adequate cover. He did not accept that Sergeant Jackson was a target or that he intended himself to be a target. Superintendent Shelly was specifically asked whether he felt that in agreeing to the siting of the negotiation point at the Carthy wall the risk of the safety of the negotiator and other officers concerned was increased. Superintendent Shelly agreed that there was a substantial risk but told the Tribunal that he was satisfied that there was good cover and that the negotiator was in a position to conduct negotiations, albeit with difficulty and with an element of danger. He stated that for this reason he did not consider moving the negotiation point at any time during the operation. He agreed that safety was a fundamental principle of any operation.

The Chairman stated that he understood the use of a negotiation point at the Carthy wall for a comparatively short period of time. However, he questioned Superintendent Shelly as to what the situation would have been if there had been a deterioration in the weather conditions and how this would have affected persons exposed to the elements at the negotiation point. Superintendent Shelly stated that officers are trained to operate in difficult conditions and repeated that the purpose of the negotiation post at that location was to try and make contact with John Carthy; had this happened they could have repaired to another location.

It was put to Superintendent Shelly by counsel for the Carthy family that he, Superintendent Shelly, had departed from his training in relation to the issue of the location of the negotiation point. Counsel enquired of Superintendent Shelly as to where in his training it is said that a ‘‘remote negotiation cell with a negotiation team is merely an aspiration?’’ Superintendent Shelly replied that he understood from his training that negotiations should be conducted from the place which the negotiator believes is best. It was suggested to Superintendent Shelly that one should apply what is in a training manual unless there are very good and substantial reasons for its non-application. Superintendent Shelly did not accept the assertion that he or his colleagues put some form of a gloss on the training or treated them as mere guidelines that did not require to be adhered to. In response to this Superintendent Shelly was asked by counsel for the Commissioner whether or not he agreed with the evidence of Chief Superintendent Ludlow that training programmes developed by the Garda Sı´ocha´na are generic in nature, noting that the unique nature of policing is such that no generic training model will provide a tailored response to meet the

challenge of every situation. What the generic approach allows, in conjunction with experiential learning, Chief Superintendent Ludlow explained, is the creation of a set of skills and abilities that can be drawn on to provide a balanced response to diverse incidents. Superintendent Shelly agreed that this was the nature of the training received.

During the course of the evidence the following exchange took place between the Chairman and Superintendent Shelly:

Q. Chairman: Is it the situation, Superintendent, that looking at the problem that you are faced with, you try to comply with the guidelines that you have received, insofar as it is possible to do it, but that there may be elements of a guideline, for instance, that is in the special circumstances not possible to comply with? For example, in the Abbeylara case to have a negotiating position removed from the house?

A. That is a very good example, Chairman, of what I was saying.

Q. Chairman: You couldn’t do that, your evidence is that you couldn’t do that, unless and until Mr. Carthy agreed to use a telephone?

A. Yes.’’

Superintendent Shelly was questioned as to why recourse was not had to any of the 26 other trained negotiators in the country throughout the duration of the siege? Superintendent Shelly explained that he felt that Sergeant Jackson and Garda Sullivan were ‘‘more than up to the task and able to continue on with it... and that there was sufficiency of them there to do it’’

Counsel for the Carthy family repeatedly explored a suggestion that Superintendent Shelly’s reasoning for not relocating the negotiation post was part of a wider pattern of blaming John Carthy for the actions or inactions of the Garda Sı´ocha´na. He suggested that it was ‘‘part of a wider pattern, a pattern of culture of blame, of spreading blame to detract attention in a way from the shortcomings of the gardaı´ in this operation’’. This was strongly rejected by Superintendent Shelly who agreed that such a tactic would be most unfair, and said that it was not adopted by him or anyone else at the scene.

In relation to officer safety, Superintendent Shelly told the Tribunal that he considered the position of the negotiation post to be as ‘‘as safe as was reasonably possible in the circumstances’’ and that if that position became unsafe in any way he would not have authorised the officers to be there. In relation to the proposition that such officers were presenting a target for John Carthy to shoot at, Superintendent Shelly spoke of the benefit of the negotiators being able to recommence negotiations after each shot. He also spoke of the fact that they allowed for periods of reflection during the negotiations for both John Carthy and themselves. ‘‘They didn’t bombard him continually with questions’’ he stated, ‘‘they were very measured, I thought, in the type of question that they asked and the content of it insofar as we could hear what was happening’’.

Superintendent Shelly also told the Tribunal that he was happy with the location of the negotiation post vis a` vis the third party intermediaries who were brought down to this point to speak to John Carthy. He stated that he considered all this and was happy with their safety.

Superintendent Shelly said that from his training he had an understanding of the role of the negotiating coordinator, and that he saw Garda Sullivan as occupying that role. He went on to say that he interpreted the role of assistant to the negotiator and the role of coordinator as being one and the same thing. He said that this was notwithstanding the fact that he knew that Garda Sullivan had no training as a negotiator, but that ‘‘when he was with Detective Sergeant Jackson that he would understand the concepts of everything that was happening on negotiation’’. It was put to Superintendent Shelly that training documentation seemed to indicate that the role of the coordinator was that of a strategic adviser, and he was asked whether he saw Garda Sullivan in this role. Superintendent Shelly said that he saw him as a coordinator even though he was untrained, saying that:

‘‘When he was with Detective Sergeant Jackson, I understood that he would understand and have knowledge of the basics of what was happening at least. He appeared to have that to me.’’

Superintendent Byrne

In response to the question put to the four senior officers as to whether they considered the establishment of a manned and equipped negotiation cell at a location removed from the immediate vicinity of the Carthy old house, and if not, was there a reason for it, Superintendent Byrne replied:

‘‘Given the method of communication which occurred during the incident, mainly face to face negotiations requiring proximity between the negotiator and John Carthy, the issue of a remote negotiating cell did not arise’’.

However, questioned later as to whether it was ever in his mind to pull back out of the negotiation area he stated, ‘‘it crossed my mind but no, we decided, it was never a decision I made to pull back’’.

Superintendent Byrne was aware that during the period that he acted as scene commander John Carthy discharged shots in the vicinity of the negotiation point, two of which were discharged at 3:30 a.m. on the morning of 20^th April. He was asked if he gave any consideration at that time to moving the negotiation point. He said that he did not consider that then, but there was ongoing consideration given to the issue. He explained the rationale for not moving the negotiation post as the following:

‘‘John was an ill man. If we had backed off and left him there, there was a great fear that John could harm himself and our anxiety was to help him and to try and talk him out, that was the rationale for all our activity’’.

He accepted that the positioning of the negotiation post was dangerous, but stated that he did not give any consideration to whether it was in some way interfering with the negotiation process. He felt that it was their ‘‘only hope’’,having failed after four

hours at the ESB pole to make any meaningful contact with John Carthy. He reiterated Superintendent Shelly’s belief that the Carthy wall provided cover to the negotiators from shotgun fire. He stated that ‘‘all those matters were thought of and addressed and seriously considered’’.

In response to Mr. Burdis’s criticism that there appeared to have been no objective plan to move from the front of the wall once a more suitable means of communication was established (an issue that should have been very much in the mind of the scene commander), Superintendent Byrne conceded that he probably wasn’t thinking ahead in that regard. He didn’t have ‘‘plan B ready’’. His efforts were focused on initiating dialogue with the subject and utilising third parties to try and achieve this, and he was motivated by the fear that the subject may harm himself.

Superintendent Byrne said that in his view Sergeant Jackson took on the role of negotiator and coordinator. He did not regard Garda Sullivan as a coordinator. While he was scene commander he did not see any necessity for a negotiating coordinator to assist Sergeant Jackson in the role of negotiator. This was not something to which he gave any consideration.

Superintendent Byrne thought that Sergeant Jackson and Garda Sullivan had set up ‘‘a negotiation cell’’ at the pillar of the garden wall.

The witness said in examination by counsel on behalf of the Commissioner, that it was not part of his training that you should establish a remote negotiation cell or should not attempt any other method of negotiation.

Chief Superintendent Tansey

Chief Superintendent Tansey responded to the question posed by the Tribunal to the four senior officers by saying:

‘‘A manned and equipped negotiation cell at a location removed from the immediate vicinity of the Carthy old house was a consideration, provided the negotiation process progressed to the level that facilitated/allowed such a move to take place, with benefit to the negotiation process. This situation was never arrived at.’’

Chief Superintendent Tansey’s training did not familiarise him with the concept of a formal ‘‘negotiation cell’’; such phraseology was not utilised during his training; however he was familiar with the concept of conducting negotiations at a remote location.

He had no conversation with the other senior officers or the scene commanders in relation to the provision of a negotiation cell. He stated that having requested a trained negotiator he believed that when such a person arrived together with an assistant that ‘‘that was sufficient to do the job that had to be done’’.

Chief Superintendent Tansey told the Tribunal that he gave consideration at the outset to locating a negotiation post at a remove from the scene. However, in the

absence of meaningful contact having been made between the negotiator and the subject, he did not see the point in removing the negotiation post to a remote location. He concluded that there was little point in having such a cell with all the facilities if ‘‘there is nobody to negotiate with’’. While accepting that safety is the ‘‘number one issue’’,he assessed the element of risk involved in the location of Sergeant Jackson at the Carthy wall and decided that it was ‘‘an acceptable risk to resolve the incident peacefully’’. He had regard to the fact that the negotiator and his assistant had body armour and ballistic helmets.

Chief Superintendent Tansey stated that they could have certainly moved back if a breakthrough had been made in the negotiations and further, that he would not have sanctioned the location of the post at the wall if there had been ongoing dialogue with John Carthy. However in the absence of any breakthrough he did not agree that they should have moved back having regard, inter alia, to the fear that they held that John Carthy may harm himself and/or others.

In relation to the possible risk to members of the public who were brought to the negotiation post, Chief Superintendent Tansey stated that any risk was acceptable given the need to initiate negotiations. In assessing the risk he had regard to the cover provided by the wall and the fact that such persons were under the guidance of Sergeant Jackson at all stages who, he stated, was extremely cautious regarding the situation and took the necessary precautions. Examined by counsel for the Commissioner, he asserted that the issue of third party intermediaries was specifically the responsibility of the scene commander in an operational sense. He would not expect to be consulted on matters in relation to the assessment of danger or risk. However, he stated that if something came to his notice with which he did not agree he would of course point it out.

In response to Mr. Bailey’s criticisms in relation to the location of the negotiation post (namely, officer safety; the element of control that it afforded John Carthy and safety concerns in relation to members of the public brought to the post), Chief Superintendent Tansey reiterated his reasons for not removing the post and stated that ‘‘it was an acceptable risk that was taken for honourable reasons . . . I would dispute the fact that it wasn’t a safe location, within certain limitations’’.

Chief Superintendent Tansey said that ‘‘a negotiation cell’’ was set up at the wall by Sergeant Jackson and Garda Sullivan. It was suggested to the witness that the negotiation cell as described in the training documentation is nothing to do with people talking on the telephone or otherwise, but rather the purpose of the cell is to provide a dedicated back-up team as described in the training documentation to improve the quality of the negotiation and the negotiator’s chance on the front line, whether it be at the wall or on the telephone line or by whatever means, to which Chief Superintendent Tansey replied that the difficulty was that Sergeant Jackson would have to leave his position at the wall on occasion and should John Carthy have wished to communicate at that precise moment there was nobody there to engage with him. Chief Superintendent Tansey thought that this was totally inappropriate.

Assistant Commissioner Hickey responded by saying:

‘‘The purpose of the Garda operation was the safety of the local community; the safety of Garda personnel involved and the safety of John Carthy. There were early concerns that he may harm himself. It was vital that he should not be allowed in any situation with his shotgun where he would put any citizen at risk. In order to achieve these objectives, because John Carthy did not engage on the telephones available to him, the negotiator was located as close as possible taking safety issues into account’’.

Assistant Commissioner Hickey was not asked to sanction the relocation of the negotiation post from the ESB pole to the wall on the night of 1 9th April. This was a decision that would be within the competence of the scene commander in conjunction with the tactical commander and the negotiator.

In light of this statement, Assistant Commissioner Hickey was questioned as to whether he was concerned for the safety of members of the public who were brought down to the negotiation post. He replied, that he considered it to be a ‘‘risky situation’’ but that having spoken with Superintendents Shelly and Byrne and Sergeant Russell he knew that an assessment had been made of the risk: ‘‘It was considered an acceptable risk. There were precautions taken andI was anxious that we should do anything humanly possible to try and resolve the situation’’.

Prior to April, 2000, Assistant Commissioner Hickey was not ‘‘acutely’’ aware of the concept of a ‘‘negotiating cell’’ but he was aware of the expression. He told the Tribunal that ideally in Abbeylara they would have removed the negotiating point to a remote location, but that this was dependent on telephone interaction between the negotiator and the subject. In response to the criticisms by Mr. Lanceley in relation to the location of the negotiation post he believed that some advantage was to be gained from the location at the Carthy wall in that the negotiator was able to tell the subject, via the loudhailer, who was ringing and was able to ensure that the phone was in fact ringing. He further thought an advantage was gained by the negotiator’s ability to see John Carthy in the house. Admitting that there was an element of danger in the positioning of the post, he emphasised the cover that was provided by the wall.

Questioned as to what he identified as sufficient progress by the afternoon of 20^th April to justify the risk of remaining at the Carthy wall, Assistant Commissioner Hickey stated that it was his belief that John Carthy had fired less shots after the arrival of the ERU. He also had regard to the fact that he would eventually run out of ammunition. He questioned Thomas Walsh as to the amount of ammunition that John Carthy may have in the house and he was aware that there are restrictions on the amount of ammunition one may have depending on whether the shotgun licence is limited or unlimited. He further discussed this point with Sergeants Russell and Jackson. Another justifying factor was that John Carthy was not using the telephone. Assistant Commissioner Hickey felt that the location at the wall was the ideal location to hear him if he responded by way of shouting.

9. Equipment

The evidence

Detective Sergeant Jackson brought with him to Abbeylara his ballistic protection equipment, radio units, lighting material, flip charts, pens and a tape recorder. In relation to the tape recorder it was his intention to use it if possible at the scene. His assessment at the scene was that because of the position he was in at the garden wall, with movement up and down and to the side it was not possible to record the various conversations. Other relevant equipment discussed in evidence during the course of the Tribunal, which may have been of use at the scene, were the ‘‘field phone’’ and ‘‘closed circuit television’’ (CCTV).

Sergeant Jackson and the relevant senior officers were aware of the availability of this equipment.

Field Phone

Sergeant Jackson did not bring a field phone with him to Abbeylara. He said that he would not consider the use of a field phone at the outset of the incident, as he needed to attend the scene and make an assessment of what was happening prior to deciding whether to request a field phone. He said that the field phone was available from the Technical Support Unit of the Garda Sı´ocha´na. His evidence was that the seeking of a field phone would only arise at the instigation of the negotiator and after detailed and substantive verbal contact and subsequent telephone contact. He thought that at the time he set out for Abbeylara from Dublin the question of the use of a field phone was at a relatively far remove. He said that he wished to see how he progressed with the equipment that was already at the scene. He knew that the landline had been reconnected to the house, and that Mr. Carthy had a mobile phone.

Senior Officers

In the letter of recall written by the Tribunal to the relevant senior officers, they were each asked the following:

‘‘Were they aware of the availability of a field phone and of its possible uses? If so, did they request or consider requesting that a field phone be brought to the scene? If not, was there a reason for this? In this regard I direct your attention to the evidence of Inspector Michael Flynn on day 108.’’

Inspector Flynn was in charge of the Technical Support Unit at Garda Headquarters in the year 2000. He told the Tribunal that a scene commander or the divisional officer at an incident could request equipment or personnel from the unit and a decision would be made on the deployment of such equipment or personnel by the appropriate officers in the unit in conjunction with the requesting officer.

Assistant Commissioner Hickey’s reply to this request was:

‘‘I was aware of the availability and possible use of a field phone. There was never a consideration that it be brought to the scene as John Carthy had a landline and a mobile phone, neither of which were used to engage with the negotiator.’’

Assistant Commissioner Hickey went on to state that he was not concerned about any third party, over whom the gardaı´ would have no control, such as the media, contacting Mr. Carthy. He said he had no evidence that such was a risk. In accepting that he never considered the possible use of a field phone he also accepted that there was a possibility that Mr. Carthy could have contact and be contacted by persons other than the gardaı´ and over whom the gardaı´ had no control.

Chief Superintendent Tansey

Chief Superintendent Tansey said in reply to the letter:

‘‘I was aware of the availability of a field phone. The use of a field phone is contingent on a number of issues, the arrival of a stage of substantial engagement in the negotiation process and if that is achieved, which was not achieved in this case, then secondly agreement with the subject on the safe delivery of the field phone to the stronghold. There are already two telephones in the house, but John Carthy would not engage’’.

He said that if the subject did engage on the telephone, either the landline or the mobile phone, he could not foresee a situation where a field phone would be mentioned to him for a number of hours into that interaction. He thought it would have the effect of possibly putting back the negotiation process. Accepting that there may have been a place for a field phone down the line had good interaction been established, Chief Superintendent Tansey pointed out to the Tribunal that a field phone had never been used in Ireland in any siege operation. He said that while a field phone was not at the scene, it could have been obtained within a short period of time.

Superintendent Shelly

Superintendent Shelly replied as follows:

‘‘Yes, we were aware of its availability and its use. However, the use of a field phone is dictated by a number of factors:—

consistent and substantive degree of engagement of the subject; securing agreement on the method of delivery of the field phone.

In this particular case neither of those considerations were present. The gardaı´ were aware that John Carthy had two phones in his house’’.

He said that the delivery and use of such an item would depend on the degree of engagement with him and that this was of paramount importance in that it would be

a question of getting a field phone into the house safely so that he could use it. Superintendent Shelly said that in his view they never arrived at that situation. He said that the use of such equipment was dependent upon the level of co-operation that they received from John Carthy.

Superintendent Byrne Superintendent Byrne’s answer was:

‘‘Yes, I was aware of its availability and its possible uses. No, I did not consider the field phone be brought to the scene. The requirement for the field phone at the scene did not arise’’.

Detective Sergeant Jackson’s evidence

Sergeant Jackson stated that a dedicated phone would only be introduced after a substantial period of engagement, so as to reduce the ris