Law Review: The CPS decision in the matter of the death of Mr Ian Tomlinson

There has been a great deal of comment on Twitter, blogs, the mainstream press about the decision of the DPP not to prosecute in the case of Mr Ian Tomlinson.

I extract below questions put by a very experienced lawyer – Simon Myerson QC – and my response.  You will appreciate that my response is no more than an attempt to consider issues.  I have no expertise in this field.  Simon Myerson QC is a very experienced practitioner and I am grateful that practising lawyers are prepared to comment on other blogs [Simon Myerson writes a very useful blog 'Pupillage and How to Get It' for prospective barristers]

This is Simon Myerson QC’s comment on the original blog post

Some questions, if I may:

On what basis did the IPCC reveal its ‘recommendation’ to prosecute? The IPCC has no statutory obligation to recommend criminal prosecution and is not bound by the Code of Conduct for Crown Prosecutors. Did it have any business trying to dictate a course of action to the CPS?

To what extent is the officer’s past relevant? His previous alleged misconduct might be admissible before a jury but it has to be relevant. Does it tend to show a disposition to act in a particular way? It seems impossible to say without knowing the details. I make the same observation about the casual assumption that the pathologist’s view must be flawed because he is facing criticism for unrelated matters.

If these points are irrelevant, then many of the calls for prosecution seem to do nothing more than rely on a wish to see things a particular way – or the view that ‘he did it before so he must have done it this time’ – rather than the objective examination of the evidence which is generally agreed to be necessary before making serious accusations against someone. There is a whiff of hypocrisy here as the ability to take previous conduct into account is often said to be a bad thing. If anyone is adopting the view that it is ok to use it when the accused is a police officer, they ought to stop.

As to manslaughter the rule is that the force must be unlawful (an issue of fact) and must cause some injury (another issue of fact) which causes the death (another issue of fact). In order to secure a conviction the Prosecution would have to make the jury sure of each issue. That the CPS decided that this was likely to be an assault is a view on 1/3 of the case. On what basis, please, is it being asserted that the decision that there is a less than 50% chance of success is a political one?

The view that there should be a prosecution anyway, on the other hand does strike me as political. In most cases, a fair conclusion that a conviction was unlikely would be sufficient to ensure that neither the accused nor the family of the victim were put through the emotional wringer of a trial. My experience of experiments in justice where there is a trial without the likelihood of conviction test applying, is that this decision is the right one.

Finally, it is depressing that in suitable political circumstances, a great many people who would otherwise argue that accidents can happen and that a rush to retributive justice is unseemly, can reverse themselves in an instant. I hold no brief for the police officer: it seems to me that the real issue is not whether he committed a minor assault (at worst) but whether he should have been permitted to regain his post after leaving the force once. That is a question for more senior personnel and it is being obscured in the quest to ensure that a man who pushed someone over when he did not have to, although in the middle of a riot, should face his trial for an utterly unintended and unanticipated consequence.

This is my response to Simon Myerson.  I hope that Simon Myerson’s questions prompt further analysis.

Simon Myerson QC

Simon – thanks for your useful questions above.

I am not, as you know, a criminal lawyer. My academic side has been in the field of Contract, Tort, and more recently an interest in civil liberties and human rights. Criminal Law, however, has long been of interest – but my expertise extends only to the extent of the ‘man on the Clapham omnibus reading Smith & Hogan’.

1. I cannot see any bar to the IPCC making representations to the CPS but it is clear, from your first paragraph, that this is not the usual course of events

2. Your point in relation to previous conduct is an important one and you are right.

3. “As to manslaughter the rule is that the force must be unlawful (an issue of fact) and must cause some injury (another issue of fact) which causes the death (another issue of fact)….”

It is clear from the statement of Keir Starmer QC, the DPP, that the CPS had little difficulty in forming a view on the first element. Indeed Starmer makes that point quite clear.

“The first issue that the CPS considered was whether the actions of PC ‘A’ were lawful. Having analysed the available evidence very carefully, the CPS concluded that there is sufficient evidence to provide a realistic prospect of proving that the actions of PC ‘A’ in striking Mr Tomlinson with his baton and then pushing him over constituted an assault. At the time of those acts, Mr Tomlinson did not pose a threat to PC ‘A’ or any other police officer. Whilst the officer was entitled to require Mr Tomlinson to move out of Royal Exchange, there is sufficient evidence to provide a realistic prospect of proving that his actions were disproportionate and unjustified.

Having concluded that the officer’s actions could constitute an assault, the CPS then considered the possible criminal charges…..

The difficulty lies, as you point out, in the second and third elements of the offence. The medical evidence was not sufficiently clear to bring a prosecution with a realistic prospect of conviction.

The DPP formed the view that while the conflict on cause of death between the pathologists would not have precluded the bringing of a prosecution “Dr Patel would have to be called at trial as a prosecution witness as to the primary facts.”

The “CPS concluded that the evidence of those primary facts undermined the basis upon which the other experts reached their conclusions about the cause of death. As a result, the CPS would simply not be able to prove beyond reasonable doubt that there was a causal link between Mr Tomlinson’s death and the alleged assault upon him.

That being the case, there is no realistic prospect of a conviction for unlawful act manslaughter.”

This also precluded the bringing of a case – : “Assault occasioning actual bodily harm would require the prosecution to prove that the alleged assault on Mr Tomlinson caused him actual bodily harm.”

A prosecution for ‘simple’ assault was time barred. The DPP does not give a detailed reason in that statement as to why the delay arose.

It is widely believed – I have seen no documentary evidence – that there have been 1000 deaths on police custody without a single prosecution being brought. Sgt Smellie, in a widely reported recent G20 case,  was acquitted by a district judge of charges in relation to his conduct.

The video evidence of PC Simon Harwood pushing Mr Tomlinson over is clear – the unlawful act referred to by the DPP.

That it now transpires that Dr Patel is being investigated – and there were prior misgivings as to his competence – one wonders why Dr Patel was selected as the pathologist for such an obviously sensitive case?

There are many commentators on blogs, twitter – and some in the media – who express discontent with police, ranging from the absurd to the well thought out and not unreasonable.

The Police themselves have expressed misgivings about this case – and certainly the appointment of Harwood to the TSG, after difficulties experienced in his previous force, is a matter for investigation by Police.

I do not see the decision of Keir Starmer QC as political. I see a DPP faced with a very real problem – but would it not have been advisable to accept the conflict between the pathologists and put the case to the jury? This hasn’t been fully explained by anyone – and is certainly beyond me.

Would it have been  unfair as you suggest in your comment above?

Given your particular experience as a Silk with many years of practice in the Criminal courts, you are able to give a view?

Given the difficulties experienced in this case – a source of frustration to many and, I suspect, to the CPS also, it is clear that procedures need to be tightened up in terms of the recruitment of pathologists and procedures to ensure that time limits for bringing prosecutions do not expire. Or is that being unreasonable, neigh naive?

There is a widespread feeling that had a member of the public assaulted a police officer from behind with a baton a prosecution would have been brought. Is that an unreasonable feeling?

This case and the Sgt Smellie case have not done the Police any favours in terms of public perception – and it is that perception which becomes a political issue, not the law itself?

It is important to get a clear understanding when important cases like this come along – but the newspapers don’t always get it right and, certainly, general commentators like me can only really try and report as we find. It is particularly helpful when specialists, with experience, are prepared to give of their time and put forward analysis.

***

You may wish to look at these posts (and the comments) from law blogger Jack of Kent

11 thoughts on “Law Review: The CPS decision in the matter of the death of Mr Ian Tomlinson

  1. Great blog. The QC’s response is humbling. However, surely misconduct at the very least ought to have been charged. The public trust has been well and truly abused if this can be surmised from the widespread negative reaction.

  2. Matt – Emotion and politics are part of our lives – but lawyers and judges can only work with the law that politicians give them. (Perhaps an over simplification – but not far off the idea)

    We see this with human rights /civlib cases and the Supreme Court all the time.

    For my part – I would rather have the ‘odd problem case’ than a host of repressive laws..and mob rule…. hang on… I think that the Coalition government may be getting rid of a few of those in the Great Repeal Act. I hope so.

  3. On the facts as they appear to be, as you’re pointed out, causation would be the sticking point in an unlawful act manslaughter prosecution. That leaves you with ‘simple assault’ – but not being a criminal lawyer, I thought that there was no form of limitation when it came to criminal acts. What is this delay which prevents the CPS from taking such a prosecution further?

  4. Pingback: The CPS decision not to prosecute: other perspectives « MTPT

  5. Charon – glad to see this exchange getting the prominence it deserves. While my personal view is much the same as yours (especially as regards the delay on the part of the CPS), I think Simon Myerson contribution is helpful, when too much is being made of the police officer’s past conduct.

    Serious questions are raised by the officer’s reported job history, but those are questions for the Metropolitan Police, and for the Home Office more generally (possibly for the new National Police Agency?), not specifically for the CPS when deciding whether to prosecute for violent offences.

    Where it might be more relevant is the decision to prosecute for misconduct in public office, and in that connection Jack of Kent’s analysis – and rebuttal – of the CPS decision not to charge that is well worth a look.

    I fear there’s one QC – the Lord Chancellor – who’ll be striving to avoid getting involved in this debate, and he’s probably the one lawyer with the power to repair some of the damage that the police and CPS have so far done.

  6. I am commenting as an officious by stander with no legal education. It weems to me that whilst accepting what is said about the prospect of securing a conviction for manslaughter, there is an overwhelming public interest to be served by an examination of the whole matter under oath. Why did the police authority act in the way it did at the outset and bend every sinew to obfuscate the act by the constable? Why was the pathologist selected when there were already known shortcomings in his work? Why were untruths told by the City of London police about the availability of CTV footage? Why did all this take so long? Why did the CPS not put in a preliminary charge of assault within the 6 months limitation? As a layman, to me this creates a presumption that the police authorities knew they were in trouble and acted acccordingly and the enforcing authorities have been dilatory in bringing this to a conclusion. Isn’t this the same as with the inquiry into the Falklands when the judge leading it did a throrough job of investigation until he reached a conclusion and threw a bucket of whitewash over it?

    Now add in the fact that in the last 5 years, nearly 500 have died as a result of contact with the police – the majority no doubt fortuitously and by misadventure but there have been enough fatalities at police hands for which there has been no adequte accounting in court. This needs to be properly and publicly investigated and quickly if confidence in the integrity of the police service is to be re- established.

  7. The IPCC made a press release about the Tomlinson case. It is dated 22nd July – see:

    http://www.ipcc.gov.uk/news/pr_220710_responsetocpstomlinson.htm

    Of course, none of us have seen the actual IPCC report which (according to their press release) should now be in the hands of the Metropolitan Police. Probably, the IPCC report will contain the views of the Police Officer in question.

    HIS side of the story is not (as far as I know) in the public domain. We have to remember the fundamental principle of justice – audi alteram partem (hear the other side). Nevertheless, we do have the detailed statement by the CPS which, as you state above, is clear in saying:

    ” ….. there is sufficient evidence to provide a realistic prospect of proving that the actions of PC ‘A’ in striking Mr Tomlinson with his baton and then pushing him over constituted an assault. At the time of those acts, Mr Tomlinson did not pose a threat to PC ‘A’ or any other police officer. Whilst the officer was entitled to require Mr Tomlinson to move out of Royal Exchange, there is sufficient evidence to provide a realistic prospect of proving that his actions were disproportionate and unjustified.”

    Those pressing for some disciplinary sanction will be hanging their case on those words. This will be the next area of interest and the Met. faces a difficult decision given, on the one hand, the public view of the Police which has resulted from the case and, on the other hand, the need to be fair and consistent in how the disciplinary process deals with officers – discussed in The Guardian 23rd July:

    http://www.guardian.co.uk/uk/2010/jul/22/police-discipline-officer-ian-tomlinson

    I have read the views of Simon Myerson QC carefully. I also did not see why the IPCC would offer even a suggestion as to the charge to be brought. That is surely outside their remit. Even the making of a suggestion might make the CPS decision more difficult though, in this case, it does not appear to have done so. However, I do not see them as trying to dictate to the CPS.

    I think that there may be some ground to criticise the Dr Patel post-mortem. The criticism has nothing to do with the fact that he his now subject to proceedings before the GMC. He failed to retain fluid taken from the body though he referred to it in his notes. [Even the notes were not well-phrased on this point]. This would make it more difficult for any subsequent PM and those are not unusual in such cases.

    At this point, a further question arises. Dr Patel conducted (so we are told) his PM in ignorance of the immediate history. This may help to explain why he did not retain the body fluids. Should a pathologist know as much of the history as possible? I am not sure on that point since there is also an Inquest at which the PM report(s) form part of the evidence. However, it would seem sensible that any material taken from a body during ANY PM should be retained for a period of time.

    However one looks at the possibility of a manslaughter charge, proof of causation was always going to be problematic. It may be that the CPS lacked a certain robustness in deciding that they would not be able to prove it. However, I think that (on balance) Simon Myerson must be right in concluding that it would not have been right to run the “emotional wringer” of a trial.

    If I may add just one last comment. I am not entirely sure why the general 6 month bar to prosecution in the magistrates court continues to apply to assault. Quite a number of summary only offences have longer time limits (e.g. a number of road traffic offences) and I think that this case highlights a need for a longer time limit. I would suggest within 2 years for any charge of common assault with (perhaps) a proviso that prosecution after 6 months have the specific consent of the DPP.

    Just some further thoughts on a damp and dismal Monday a.m. up ‘ere in t’ north country. All the best for a good blogging week.

  8. in this matter, i prefer the view of the officious bystander to that of the silk. (cheaper for a start and if it’s good enough to tell us what a contract means…). there are times when you just have to listen to the evidence of your nostrils. if it smells like a rat… i agree that isn’t the criminal standard, but i’m not trying to apply it to a finding of guilt.

  9. Hi Charon,

    Gosh – I didn’t realise I had been quoted in full. I’m flattered, I think.

    The 6 month time limit seems to be statutory and based on the fact that Common (simple) Assault is now triable only in the Magistrates. That the investigation should take over a year is not uncommon in a case with a political dimension, a genuine medical difficulty and significant publicity. I would not myself take the length of time as proof of anything.

    If the officer struck the deceased deliberately, without any belief in the need to do so in self-defence then it would be an assault. The CPS took the view that an assault could be charged (they were unsure about the actual bodily harm element which translates a Common Assault into an Assault Occasioning Actual Bodily Harm). This is the CPS limiting itself via its own guidelines by the way. AOABH has always been dealt with in cases by saying that actual bodily harm means what it says. As part of the economy drive the CPS downgraded things like bruises so that Defendants could not elect Crown Court trial with its attendant costs and (allegedly) greater ‘risk’ of an acquittal. On the basis of the guidelines and the medical evidence I think the concern was well-founded.

    The causation issue was clearly the most difficult. One of the commentators on your post (not the man whose political prejudices dictated that murder was the only appropriate charge) suggested that any manslaughter case was thus unsustainable, because there is no intention. But that is not an issue on causation – on the facts the jury would have to be sure that the assault caused the death. There was no solid evidence.

    Interestingly, the intention issue is more complicated than your commentator suggested. In a typical ‘one punch’ manslaughter, the deceased falls over and knocks his head on the curb. the punch put him on the floor and was intended to do so. There is often an intention to cause some harm, although not the grievous bodily harm required to prove murder. Moreover, it is often foreseeable that harm will result and the death is simply a different degree of harm, rather than a different type of harm. Here, I think, the type of harm was different. That does not come into the legal argument (it might if the charge was Affray or Violent Disorder), but it can sensibly be factored into the public interest test. Whatever the officer intended, it wasn’t to damage the deceased’s heart.

    Misfeasance is not a substitute for another crime – as I think the CPS said. It exists to punish those who abuse public office for their own ends (used, for example, to prosecute officers who take advantage of their access to the Police National Computer to extract information and sell it or use it to pay off an informant). The CPS guidance which mentions assault contemplates the deliberate assault of a citizen under cover of police action, for reasons of the officer’s own which he conceals using his official identity. This is not that case. Caution is necessary here – only public servants are subject to this standard and we should not imperil the livelihood and working conditions of millions of our fellow citizens simply to meet a particular difficult case.

    As to the proposition that justice requires a jury verdict. Well, yes and no. In this case, had the Judge reached the same conclusion as the CPS, she would have been obliged to withdraw the case from the jury – no doubt amidst howls of anger and denunciation – and we would be no further forward. Yet, to suggest otherwise implies that there exists a category of person who is NOT entitled to the protection otherwise afforded to us all by law. That is such a dangerous breach in the rule of law that I am adamant that it cannot be justified. Boiled down to its essentials, therefore, this argument amounts to urging a trial in case the Judge takes a different view to the CPS.

    Now, I agree that some evidence would have been heard but as the assault is a given this means that the focus is on the Prosecution’s medical evidence, which would have to change. How could it? The Prosecution would simply adduce the report, with which the Defence would agree. It is quite wrong for the Prosecution to cherry pick its ‘best’ evidence whilst refusing to acknowledge the worst. When that is tried, people complain and the Defence say – usually successfully – that it is an abuse of process. Again, why should a particular policeman be in a different position. That is a really dangerous contention.

    Sorry to take up the space but this is an uncommonly civilised discussion (by which I mean, of course, that no one is abusing me).

    Best.

  10. my relative has recently been given a 6 yr sentence for manslaughter which relied on medical evidence. The CPS took 14 months to make a decision to charge him as permission had to come frm the Attorney General. This happened because of a pub brawl in which the victim fell and hit his head on a table. The police delayed in attendance, paramedics were on the scene in 2 mins but the victim had a cardiac arrest and paramedics were told to stand off. The victim died 7 months later but was an alcoholic, had cirrhosis of the liver with hepatitis, heart disease, and the brain was starved of oxygen because of paramedics being told to stand off. My relative was charged with GBH because the victim did not die for 7 months but the judge knew when sentencing him for GBH that the victim had been dead for 7 wks. The victim had been on a 3 day drinking bender and we asked for his blood alcohol levels on night of admission. Thr pathologist said in his report the man could have spontaneously dropped dead at any time. The 2 medical experts involved said they had seen no toxicology or blood results from the night of admission. The CPS insisted no blood or toxicology was ever taken. My relative served 13 months in prison for GBH and 6 wks before his release the police went to the prison and charged him with Manslaughter! He was advised to plead guilty to get a third discount off the sentence, by now he had served 17 months in custody. Three months on remand. The judge that should have been dealing with the case had had a hip replacement and he was sent to Liverpool court which was involved in a pilot scheme being run by the government on early guilty pleas. This was to secure the discount, the catchment area we live in was not involved in this scheme which my relative knew nothing about! He was waiting for his medical report to arrive and because of this delay he lost his discount which was worth 12 months!!! He was sentenced to 6 yrs and now the CPS have admitted the bloods which could have had a significant effect on the opinions of the medical experts were done by the hospital and have mysteriously disappeared from his records or “gone” as they are saying. The person died in March last yr!! My relative has gone frm high risk to low risk as he qualified for a cat D before his recharge back to high again and he has not left the prison system!!! he has lost all his enhancements and had had to start again frm the beginning and this is his first offence which was a tragedy with no intent. IF this is not a cover up I dont know what is!!!!!

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