Investigation into police shooting of IRA man was ‘wholly inadequate’ – watchdog

A police investigation into the shooting of an IRA man in Co Down was “wholly inadequate” and lacked independence and rigour, a watchdog has found.

Colum Marks, 29, was shot by an RUC officer, known as officer B, on April 10 1991, in Downpatrick. The Newry man died later in hospital.

Two years ago, Northern Ireland’s Public Prosecution Service decided not to pursue any charge against officer B, determining there was no reasonable prospect of conviction.

The shooting happened during an intelligence-led counter terrorism operation designed to thwart a planned IRA mortar attack on passing security forces and to arrest suspects.

Mr Marks’ family lodged a complaint with the Police Ombudsman of Northern Ireland (PONI) some 10 years ago.

The family said new evidence contradicted the police’s version of events. The bereaved relations said Mr Marks was not armed and was posing no threat when he was shot in the back as he ran away.

In 2017, the watchdog commenced an examination into the investigation of the shooting, which was headed up by the RUC’s Criminal Investigation Division (CID).

Ombudsman Marie Anderson’s review of available documentation included the interviews given by officers involved in the police operation that night, as well as an interview under caution with officer B the day after the fatal shooting.

During this interview, he was asked only five questions, two of which related to distance and lighting between two points on a map.

Ms Anderson said that approach by CID, given the seriousness of the incident, was “wholly inadequate in a number of important respects”.

“Officer B’s interview failed to adequately examine his actions or mindset at the time of the incident, and lacked the necessary depth and rigour expected in light of the fact that this was a fatal police shooting,” she said.

The anti-terror operation was undertaken by the RUC’s south region tactical co-ordinating group (TCG).

The ombudsman found most of the records detailing the management of such covert TCG operations have been destroyed, including those related to the incident on St Patrick’s Avenue in Downpatrick.

Ms Anderson said the absence of such records “severely hampered” her investigation.

She said evidence that was available, including radio transmission logs of the operation, showed Mr Marks was seen carrying what appeared to be a mortar at 9.29pm on April 10 1991.

A few minutes later he was seen in the driveway of a house in St Patrick’s Avenue and the mortar was confirmed as having been assembled in the driveway at 9.46pm.

At 9.47pm officers were instructed to arrest the man, who then fled the scene across a recreation ground at which point the shooting occurred.

The ombudsman said the lack of records limited her ability to fully assess opportunities that may have been presented to arrest Mr Marks prior to his sighting at St Patrick’s Avenue with the mortar.

“I am unable to conclude, therefore, whether there was an opportunity to disrupt the planned mortar attack, to arrest Mr Marks before that evening or to arrest him prior to the first recorded sighting of him by police officer B at 9.29pm,” she said.

“However, from the evidence which is available, there was a short window of opportunity to arrest Mr Marks on that evening between 9.29pm, when he was first observed carrying the mortar, and 9.47pm, when the instruction was given to arrest him.

“It is clear that police intended to arrest suspects in circumstances that connected them to the weapon, and the intent to commit an unlawful act, rather than possession of the weapon alone.

“In the presence of what was described as a viable explosive device, it is my view that this was a high-risk strategy on the part of police, whose primary duty was to protect life.”

While the RUC had the ability to refer itself to the Independent Commission for Police Complaints For Northern Ireland (ICPCNI), the ombudsman said there was no record of it ever doing so.

Mr Marks’ widow subsequently made a complaint to the commission in November 1991 in an effort to secure an independent investigation into her husband’s death.

Her complaint was then investigated by RUC Complaints and Discipline (C&D) under the ICPC’s supervision. As a result, a further interview of officer B was conducted under criminal caution.

Ms Anderson’s team located a list of questions that police intended to put to the officer during interview but were unable to find a transcript of the interview itself. Original documentation generated by the ICPC was also absent.

No criminal proceedings were directed against any police officer for any offence arising out of the fatal shooting.

Mrs Anderson said she was “surprised” that the opportunity was not taken to refer the death of Mr Marks to the ICPC.

While the family of Mr Marks have claimed there was a conspiracy involved in his death, the ombudsman said she could find no evidence of one.

Family members have also expressed concerns that Mr Marks was not given medical attention or taken immediately to hospital, and that he was not moved by ambulance.

Ms Anderson found that first aid was provided at the scene and Mr Marks was taken to hospital around 15 minutes after the shooting occurred. The ombudsman said she considered that timeframe to be as “soon as was practicable”.

While the watchdog probe found he had been transported in a police car, Ms Anderson said that was likely to be the quickest way of getting him there at that time.

The ombudsman also addressed questions as to whether a mortar had been found at the site on the evening of the shooting. She concluded, based on witness statements and scene photographs, that the mortar was present.

An allegation that Mr Marks was shot in the back was considered by the ombudsman’s investigation. An independent forensic scientist was commissioned to examine his clothing and a virtual reconstruction of the incident was also created.

The ombudsman determined that a criminal offence may have been committed and forwarded a file of evidence to the NI Public Prosecution Service in 2021.

In May 2023, the PPS concluded that there was no reasonable prospect of a conviction of officer B based on the evidence.

The ombudsman also conducted a parallel investigation related to the incident prompted by a referral from the PSNI’s chief constable in 2017. It related to allegations that officer B had sent a text message to another police officer claiming he was asked to lie about his debrief after Mr Marks’ death.

Interviewed under caution by Police Ombudsman investigators, officer B accepted that he had sent the message.

He claimed that although he had been asked to lie about the post-incident debrief and procedures, because these had not been carried out correctly, he had never been subject to a debrief process.

He insisted he had not been asked to lie about the events of the incident itself.

The ombudsman found there was insufficient evidence to conclude that officer B had been asked to lie by his supervising officers.

Reflecting on the overall case, Ms Anderson acknowledged that examining historical matters is “challenging” due to the passage of time and unavailability of relevant witnesses and documentation.

“In their complaint, the Marks’ family sought clarity as to the events of April 10 1991,” she said.

“Regretfully there remain unanswered questions due to the absence of records and in particular information about the TCG operation. The effect of the practice of destruction of these records is that the TCG operation has not been subject to independent examination and scrutiny.

“However, I am critical of aspects of the initial RUC CID investigation, particularly the initial under caution interview of police officer B on April 11 1991.

“I am also concerned that this matter was not referred to the ICPC by the Chief Constable given its gravity.

“In consequence I conclude that the initial police investigation lacked sufficient independence and was not afforded the scrutiny and rigour that a fatal shooting of this nature warranted.”

A solicitor for the Marks family said the ombudsman’s findings supported their long-held view that the RUC did not properly investigate the fatal shooting.

Gavin Booth from Phoenix Law said: “It’s clear from the findings that there was time to arrest Colum prior to the shooting and this was not acted upon by the RUC at the time. We now know that for three days the RUC knew about this and opportunities clearly existed to arrest.

“The ombudsman was clear that Colum was unarmed, unmasked and not posing a threat when he was shot several times.

“It’s wholly disappointing that much of the evidence was destroyed by the RUC and some former officers did not co-operate with this investigation.

“Finally, it was accepted by PONI and the PPS that many questions remained unanswered.”