Thursday, July 19, 2012 

No alarms and no surprises redux.

Hearing today of the verdict in the Ian Tomlinson case, it was difficult not to be reminded of Blackstone's formulation. William Blackstone, the 18th century author of the Commentary on the Laws of England, had it that it was better that ten guilty persons escape than that one innocent suffer.

This is not to say that PC Simon Harwood was guilty of anything more on the 1st of April 2009 than common assault. The jury more than understandably decided that it was not proven beyond reasonable doubt that Harwood caused the manslaughter of Tomlinson, and we have to respect that decision. You really can't envy those chosen to serve on this particular case, thanks to the incompetence of Freddy Patel, the pathologist who carried out the first autopsy on Tomlinson. They had to reach their decision based on conflicting accounts: Patel continues to maintain that Tomlinson died of natural causes, coincidentally just a matter of minutes after he was pushed over and struck by Harwood, while the two other doctors who subsequently carried out a re-examination decided the cause of death was internal bleeding caused by trauma associated with a blow to the abdomen. The material that would have established the cause beyond all doubt was poured away by Patel, who when giving evidence continued to insist that the bloody fluids found within Tomlinson's stomach cavity were ascites stained with blood, rather than just blood. The Crown Prosecution Service's initial decision not to bring charges was justified on this irreconcilable difference of medical opinions. The jury was not told that Patel had been suspended last year by the General Medical Council after similar failings in the autopsy he carried out on Sally White, who he found had died of natural causes. Her body had been discovered in the house belonging to Anthony Hardy, who later pleaded guilty to the murder of White and two other women.

In fairness to Patel, he wasn't aware when he conducted the post-mortem of what had happened to Tomlinson just a few minutes before he died, the footage not being uncovered until it was sent to the Guardian a week after the protests. New evidence was also presented during the trial which hadn't been given during the inquest, with trauma specialist Alastair Wilson hypothesising that the internal bleeding could have started before Tomlinson came into contact with Harwood. All the same, it still raises the question of why it was decided that Patel's suspension was considered to be prejudicial, and so withheld from the jury. It may not have made any difference, just as it's doubtful that had they known of Harwood's chequered disciplinary record, including his resignation from the Met following a road rage incident and subsequent rejoining of the force with Surrey police it would have changed their decision. When it was a majority decision of 10 to 2 though, after four days of deliberations, it could potentially have led to a retrial instead of a not guilty verdict.

All this considered, it was clearly the right decision by the CPS to change their initial decision and bring the manslaughter charges following the unlawful killing verdict of the inquest's jury. While both verdicts were delivered under the same burden of proof, beyond reasonable doubt, there's clearly a massive difference between a jury deciding a police officer was guilty of unintentionally killing a man through inappropriate use of force and a jury deciding that the police officer should potentially go to prison for doing so. Harwood's behaviour, though reprehensible as there was no reason whatsoever for him to push Tomlinson, would have been unlikely to have done lasting damage to someone who was in good health. Indeed, as I previously noted, it's a wonder there weren't far worse injuries on the day considering the number of protesters who were hit repeatedly on the head with batons.

In this respect, as much as Harwood on the day was lashing out anyone who got in his way following the humiliation he felt after failing to arrest a man who vandalised a police van, Duncan Campbell is right to lay the blame at the feet of those who authorised the completely counter-productive tactic of kettling protesters, to say nothing of the storming of the Climate Camp, later ruled to have been an abuse of power. Regardless of whether there had been violence or not, and much of it on the day was limited to the smashing of windows and spraying of grafitti rather than attacks on police, who were in any case mostly watching as it went on, officers had been briefed that a bunch of black flag wielding anarchists were coming from across Europe to lay waste to the City, while senior officers were telling the media of how ready they were for just such an eventuality.

Unlike some others, I'm not so sure that this verdict will make police officers feel that they're above the law: while it's true that there has still not been a officer convicted of murder or manslaughter while on duty since 1986, it only hasn't in this case thanks to the disagreement between pathologists. With recording equipment now ubiquitous, the chances of abuse going unchallenged have also never been slighter. Just as the police are so keen on recording us, so on protests from now on we should be recording their every move. And considering what's happened, they can hardly complain.

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Wednesday, May 04, 2011 

No alarms and no surprise revisited.

If it wasn't apparent before, it ought to be now. The real reason why it's such a rare occurrence for police officers who've killed members of the public while on duty to face trial is because when the facts of similar cases are laid out before juries, whether in the form of health and safety prosecutions or inquests, they have this irritating habit of finding either the defendants guilty or that the victim was unlawfully killed.

This isn't to suggest that the director of public prosecutions, Keir Starmer, who made his name as lawyer working on human rights cases conspired with the police when he decided that PC Simon Harwood would not face any criminal charges over his assault on Ian Tomlinson. Rather, it seems he fell into the trap of believing that it would be too difficult to convince a jury beyond reasonable doubt that the actions of the officer lead directly to the Tomlinson's death. Considering the differences of opinion between the pathologists, with the first, Dr Freddy Patel ruling that Tomlinson had died from a heart attack rather than internal bleeding caused after he fell following being pushed, it would have hardly been an easy case, and one on which there would have been much media attention.

Nonetheless, and indeed exactly because as the Guardian puts it there is nothing more serious than the state taking the life of one of its subjects with the exception of agents of the state covering just such an incident up, Starmer ought to have erred on the side of letting a jury hear all the evidence. Such a case would have been clearly in the public interest. The virtues of taking just such a nuanced approach could hardly have been more vindicated than by the inquest into Tomlinson's death, helmed by Judge Peter Thornton QC. Unlike in the inquest into the death of Jean Charles de Menezes where the coroner disgracefully decided that the jury could not reach a verdict of unlawful killing, Thornton gave the jury the option, while stressing that they had to be certain beyond reasonable doubt, the same legal distinction as that required in a criminal trial. Having expected a longer wait, the court was relatively startled when the jury took just under three and a half hours to decide that Tomlinson had been unlawfully killed.

Considering the evidence presented, this wasn't exactly surprising. PC Simon Harwood himself was almost the definition of an unreliable witness, repeatedly changing his story when it was challenged, not just by the lawyers for Tomlinson's family, but also by the quality and quantity of the material shot on the day of the G20 protests. Having initially claimed to investigators that Tomlinson had been defiant and resisting orders when he pushed him, he still maintained that the strike and push which felled him were justified in the circumstances, rather than say prodding him, taking him by the shoulders and physically moving him away, or, heaven forfend, forcefully but politely asking him to move faster. Whether or not Harwood, who in the minutes before pushing Tomlinson had swung a coat at a protester, knocked over a BBC cameraman and used a "palm strike" against someone else, was acting out his anger and embarrassment following his failure to arrest a man who had vandalised a police van is known only to him.

Similarly, Dr Freddy Patel was left with little option than to change his original opinion faced with the three other pathologists and other medical experts all deciding that Tomlinson's cause of death was abdominal bleeding. Patel was admittedly put at a disadvantage from the very beginning, the police having told him when he was brought in to perform the post-mortem that Tomlinson had not been involved in any public disorder and that he had sleeping rough for the last 20 years, just one of the many untruths originally put out to the media by the Met, along with the claim that they had been assaulted with missiles while tending to Tomlinson. Even so, Patel erred in not retaining or sampling the three litres of intra-abdominal fluid blood or intra-abdominal fluid with blood which had collected in Tomlinson's abdomen, which would have proved the key to whether he had died from internal bleeding as the other pathologists believed. In any case, that Patel had previously been criticised for discussing confidential details in public, as well as being involved in the failings concerning Anthony Hardy ought to have disqualified him from any possibility of carrying out the autopsy.

As wearingly familiar as this sad tale of changing stories, incompetence and abuses of power is, the real outrage is that the overall cause remains the same. Just as the officers on the morning of the 22nd of July 2005 were briefed that those they were after were "up for it" and ready to commit acts of mass murder, giving the impression that lethal force was permissible even when it hadn't been authorised, so the police prior to the G20 had made clear just how determined they were to crack down hard on those who were out to smash up the City. We duly saw police medics brandishing batons, those without the first idea how to "safely" use a truncheon flinging it around, and of course, the storming of the entirely peaceful Climate Camp, since found to have been illegal. Ian Tomlinson died both as he was in the wrong place at the wrong time and because he was vulnerable to just such an injury as he received; dozens of others got cracked heads or worse just for daring to take part in a demonstration. It would be nice to think that following such regrettable incidents that future policing would have been rethought, but no, as the example of Alfie Meadows so pungently demonstrates.

Whether Simon Harwood will now face a manslaughter charge following the CPS review remains to be seen. Doubtless his representatives will argue that the inquest and the coverage of it has damaged his chances of receiving a fair trial. What hopefully will change is the giving of the benefit of the doubt to the police and the authorities when such prosecutions are first considered, something which has gone on for far too long, as does the condescending view that juries are incapable of following or making a judgement on complicated, conflicting medical evidence. Justice, even if it involves the throwing out of cases by judges or acquittals which result in questions over whether a prosecution should have been brought, has to been seen to be done.

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Thursday, July 22, 2010 

No alarms and no surprises.

Hands up those surprised in the slightest that the Crown Prosecution Service has decided that no charges will be brought against the Metropolitan police over the death of Ian Tomlinson? None of you? Jolly good. Finally, maybe, the message is now starting to get into the thick skulls of everyone that whenever the police, either accidentally or in the most brutal manner imaginable kill members of the public that it's only in incredibly rare circumstances that the officers themselves face prosecution. The only example in recent memory of a police officer facing a charge of both murder and manslaughter as a result of their actions while on duty was in the case of James Ashley, who was shot dead in his bedroom during a botched police raid back in 1998. The officer was acquitted of both charges when the judge agreed that he had acted in self-defence, believing he was about to be shot himself. This was despite Ashley being naked, acting in a daze as he had just been woken up, and having no weapon to hand. Last year Sussex police apologised to Ashley's family, admitted negligence and paid compensation.

Since then, no further charges in similar cases have been forthcoming. There were none when 10 bullets were pumped into the head and shoulder of Jean Charles de Menezes, the end result of an operation which was memorably described by a Met source as a "complete and utter fuck-up", although there was the small matter of the successful prosecution against the Met on health and safety grounds. There were none when Harry Stanley was shot dead, a Scotsman described to the police as an Irishman carrying a shotgun in a plastic bag which turned out to be a chair leg. Indeed, even though no officer was actually charged with a criminal offence, when the second inquest into his death resulted in a verdict of unlawful killing and the officers responsible were suspended from duty, their colleagues in other armed response units took umbrage and handed their weapons in. Happily, the High Court later overturned the second inquest's result, reinstated the first's open verdict and everything was right with the world again. There were also none when a CO19 officer shot dead Azelle Rodney, despite the Independent Police Complaints Commission agreeing that he was not holding a weapon when the car he was in was surrounded.

In all of those cases the evidence was far more clear-cut than that against the officer who pushed over Ian Tomlinson. True, they all claimed they were acting in self-defence, believing in the case of de Menezes that he was a suicide bomber about to detonate his explosives, while the others believed they were in mortal danger from armed men, something which PC Simon Harwood, as he has been named, clearly couldn't, threatened so visibly as he was by Tomlinson walking away from him and the other officers with his back turned and hands in his pockets. It was always going to be difficult to prove beyond reasonable doubt in a court that the baton strike and push unequivocally led to Tomlinson's death and so justify a charge of manslaughter against Harwood. That was without the conflicting evidence of the 3 post-mortems.

Here's where it gets murky. Dr Freddy Patel, the pathologist who carried out the first autopsy, had previously been criticised by the General Medical Council for discussing confidential details about a man who died in police custody outside of an inquest. He had also performed the post-mortem on Sally White, a 38-year-old woman whose body was found in a locked bedroom in the home of Anthony Hardy, a death initially deemed by the police as suspicious. Patel's verdict was White had died from heart disease, and the investigation was dropped. Hardy subsequently pleaded guilty to the murder of three women, including White. Patel has since been charged with misconduct by the GMC over three other post-mortems he is alleged to have conducted incompetently.

He may eventually face a fifth, if he isn't struck off at the conclusion of the current hearing. Crucially, while concluding that Tomlinson had died from natural causes as a result of coronary artery disease, Patel recorded but did not retain or sample 3 litres of either intraabdominal fluid blood or intraabdominal fluid with blood which had collected in Tomlinson's abdomen. His first report suggested the former, but in a second submitted on the 6th of April this year he settled on the latter. If it was blood, according to the Crown Prosecution Service's statement, that would have been highly significant indicator as to the cause of death. However, when meeting the prosecution team, Patel maintained it mainly consisted of ascites, having formed in Tomlinson's damaged liver, which had been stained with blood. He didn't retain or sample it as he had handled blood his entire professional life and was convinced it was ascites stained with blood rather than just blood. Moreover, he had found no internal rupture which could have led to such a level of blood loss. The doctors who conducted the second and third post-mortems, while acknowledging that Tomlinson had a partially blocked artery, concluded that he had died as a result of abdominal haemorrhage from blunt force trauma to the abdomen, in association with alcoholic cirrhosis of the liver. They believed that when Tomlinson had fell following being pushed, his elbow had impacted in the area of his liver causing an internal bleed and leading directly to his death a matter of minutes later. The only way to be certain would have been to re-examine the fluid initially found by Patel and which he had removed without retaining. For Tomlinson to have died so quickly from blood loss there would have had to have been some kind of internal rupture, something found by none of the doctors. Since Patel was the only doctor to examine Tomlinson's intact body, he was in the best position to have considered the fluid and found a rupture, leaving the CPS to decide the differences between the doctor's opinions was irreconcilable.

The key question is why Patel was chosen to conduct the post-mortem in the first place. It's believed he didn't have a police contract at the time, yet instead of an accredited team of 9 pathologists who more usually deal with suspicious deaths, he was picked by City of London coroner Paul Matthews. At the time the City of London police were handling the investigation rather than the Independent Police Complaints Commission, who despite the circumstances of the death during the G20 protests let them get on with it, not getting involved until the Guardian posted the footage of Tomlinson being pushed over online. Proving there was an active conspiracy to chose an incompetent pathologist will be next to impossible; even if the City of London police were willing to overlook the shortcomings of their colleagues in the Met, and already knew about what was likely to have happened, would their coroner have took part in a cover-up too? The trusty blade of Occam's razor would instead suggest it's more likely to have been incompetence and cock-up, especially when they would have had to depend on Patel either playing along or performing his usual shoddy job, not always guaranteed. That's not to say it couldn't have happened, just less plausible than the alternative.

Clearly, the IPCC should have been in charge from the beginning, although their record is hardly sparkling either. Even so, as the Guardian argues, even with the inherent difficulties in a prosecution case it should have been up for a jury to hear the contradictory post-mortem evidence and make a decision, especially when Patel's standing as a pathologist is so under question. That not even an attempt has been made to prosecute Harwood with assault on the grounds the legal limit for doing so had long since passed is disgraceful. How many other cases involving members of the public are lost each year due to the incredibly short six month timeframe for charges being brought? The pathologist who carried out the second post-mortem has also disputed the CPS's justification for not bringing charges of assault occasioning actual bodily harm saying the injuries which they called minor were in fact more serious, involving a large area of bruising.

This is without considering the crucial test of turning the tables. If a member of the public had hit and then pushed over an on-duty police officer who had their back turned to them, who subsequently died a matter of minutes later, would the CPS then be so reticent in bringing charges, even if there was a similar dispute over the cause of death? While the inquest is still to come, it seems for now that yet again the police have got away scot-free after being involved with a death of an entirely innocent bystander. Public confidence in the police, the CPS and the IPCC relies on their best practice and independence. When on so many separate occasions they seem determined to ignore what is staring them in the face and accept in good faith everything they're told by the police while casting doubt on anything that contradicts those statements it starts to look like collusion. And then the media, police and all right-thinking people wonder how Raoul Moat could possibly be sympathised with, let alone lionised.

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