Police were not justified in shooting a teenager who was killed by a plastic bullet during rioting in Londonderry in 1981, the Police Ombudsman today ruled.
However, Nuala O'Loan has found no evidence that there was intent to kill 15-year-old Paul Whitters and there will be no prosecution of the officer who fired the baton gun 26 years ago.
The Catholic teenager was hit on the head by a baton round at short range on April 15, 1981, which occurred during a period of heightened tensions while republicans were on hunger strike in the Maze. He died 10 days later.
The Ombudsman's investigators identified evidence to suggest that the baton gun may have misfired and the baton round may have malfunctioned, but have ruled that it was an unjustified shooting.
They have backed a complaint from the Whitters family that the police had made no attempt to arrest Paul before the shot was fired and that they did not conduct a proper investigation into his death. There was also no attempt made by police to interview six individuals who gave statements to a solicitor about the shooting.
Nuala O'Loan said that several police officers, including the officer who fired the baton gun, refused to speak to her investigators.
Mrs O'Loan said: "We have found no new evidence that the police officer who fired the gun intended to kill Paul.
"In my view, the firing of the baton gun on that occasion was wrong and unjustifiable. The gun was used in contravention of the rules in place at the time. No warning was given by loudhailer and it was fired at less than the permissible range of 20 metres.
"The police justification for the shooting was that the baton gun was used to prevent a lorry being hijacked, and they said that the rules permitted this.
"We have found no evidence that Paul intended to hijack the lorry or that the safety of officers was at risk. Police officers did not say that the gun was fired because there was a serious risk of injury to anyone."
Paul Whitters' death was the subject of an inquest and was referred to the Director of Public Prosecutions, who directed no prosecution. In 1987 the RUC settled a subsequent civil action without any admission of liability.
Although complaints to the Police Ombudsman are normally limited to incidents alleged to have happened within the preceding 12 months, the Police Ombudsman undertook this investigation, she said, because of the gravity of the allegations.
Mrs O'Loan described it as a long and difficult investigation. Her investigators sought to establish if there was 'significant new evidence' not previously available to the Coroner or to the then Director of Public Prosecutions.
She said: "Initially, we had difficulty in tracing key witnesses and documentation but, after a lot of painstaking work, were successful. There were other difficulties, however.
"The solicitor who handled this case for Paul's family has since died, as has the Coroner. The Ministry of Defence was very slow in responding to our requests for information and Paul's hospital records have been destroyed.
"The police officers to whom we wanted to talk have retired and for the most part either refused to speak to us or stated that they had nothing they could add.
"The officer who fired the gun refused to speak to us and could not be compelled to do so in the absence of new evidence."
A total of 17 people are known to have died after being hit by plastic bullets in Northern Ireland since they were introduced here in 1973.