Thursday, July 22, 2010

Ian Tomlinson

I suppose I should say something about this.

The facts are set out clearly in that report. What isn't mentioned is the fact that the police originally asserted that the paramedics were pelted with bottles and prevented from treating Mr. Tomlinson by the crowd at the scene. That didn't happen. Although, given the police officers = bastards starting point that a lot of people take, I can understand a defensive attitude. Porky pies cross the line, however.

Anyway, the DPP didn't want to deal with that, but I'm a shite sight less sensitive or politically exposed, so there you go.

The decision itself...well, it's fully argued, and appears to be from someone who has carefully read the papers. It's in the minority there.

The part I'm struggling with is this:

The separate strike with the baton was also considered. It had left patterned bruising. But where injuries are relatively minor, as these were, the appropriate charge is common assault in accordance with the CPS Charging Standard, which is applied nationally. This Charging Standard was applied in another incident arising from the G20 where a police officer had struck the complainant twice with his baton.

What it doesn't say is whether it was applied to not charge that officer, or whether it was applied to charge the officer. Slightly unclear phrasing, perhaps.

So what do the Charging Standards actually say?

16) However, there may be cases where the actual injuries suffered by a victim would normally amount to common assault, but due to the presence of serious aggravating features, they could more appropriately be charged as actual bodily harm contrary to section 47 Offences Against the Person Act 1861.

17) Such serious aggravating features would include:

a) the nature of the assault, such as the use of a weapon, biting, gouging or kicking of a victim whilst on the ground, or strangulation which is more than fleeting and which caused real fear to the victim; or

b) the vulnerability of the victim, such as when the victim is elderly, disabled or a child assaulted by an adult (so that where an assault causes any of the injuries referred to in sub-paragraph (vii), other than reddening of the skin, the charge will normally be assault occasioning actual bodily harm, although prosecutors must bear in mind that the definition of assault occasioning actual bodily harm requires the injury to be more than transient and trifling); or

c) other circumstances when though the injuries are relatively minor the existence of aggravating features mean that the sentencing powers of the court may not be adequate. Refer to the section on Defences to assaults below.


I would suggest that a) - c) do not form an exclusive list and the fact that the suspect was an on-duty police officer could properly be said to be a serious aggravating feature. I have also decided on previous occasions that, for instance, using a piece of wood justifies a charge of ABH where the only injury is minor bruising. This is a matter of opinion, and the DPP clearly doesn't share mine.

So, then. Why didn't we charge the officer with common assault?

Common assault does not require proof of injury, but it is subject to a strict six month time limit. That placed the CPS in a very difficult position because enquiries were continuing at the six month point and it would not have been possible to have brought any charge at that stage.

Ah.

57 comments:

  1. The fact that this case has not come before a court is shocking, and will continue to have repercussions on relations between the police and the policed for years to come.

    Clearly they are not held subject to the same laws we are.

    Martin

    ReplyDelete
  2. If the roles had been reversed, and a police officer had been the victim of an assault like that and later died, the perpetrator would very definitely have been taken into custody forthwith and charged with some offence involving violence and would probably not have been granted bail.

    The investigation would have been very much swifter than in this actual case.

    Sad. It makes the establishment look worse than it probably is.

    ReplyDelete
  3. Whilst no jury can convict unless they are sure "beyond reasonable doubt" that there was criminal wrongdoing, sadly the CPS have decided that no jury will be asked to test the prosecution evidence.

    However, it has taken 15 months for the CPS to decide on no prosecution, and this raises serious questions over their ability to promptly investigate the facts. 15 months is a painful wait for the family and for the CPS to take so long over a decision not to prosecute. What a good jolly along for the CPS all at the taxpayer’s expenses. In my opinion, the government's impending cuts to the Criminal Justice System can't come quick enough if this is how the CPS wastes taxpayers’ money.

    Look at the video evidence, the Police Officer clearly did not have a need to defend himself when he struck Ian Tomlinson and he should at least be charged with Actual Bodily Harm and a jury asked to consider a verdict.

    The family have been let down badly by the CPS and the CPS should review their incomprehensible decision not to bring a prosecution.

    ReplyDelete
  4. Why could they not charge with common assault at that stage in the investigation? Surely they already had enough evidence to show that there was a case to answer! Or would this have precluded more serious charges at the end of the investigation - if so, there's a pretty big hole in the law.

    I want to be able to trust my police force. Why is this asking too much?

    ReplyDelete
  5. I think they're saying the the IPCC took longer than 6 months to investigate the case. I.e. it wasn't even passed to the CPS within the 6 month time limit for summary only cases.

    I quote from the CPS statement linked above:

    "a) Since Dr Patel had not retained the 3 litres of fluid he found and since he had not sampled it in order to ascertain the proportion of blood, firm conclusions about the nature of the fluid cannot now be drawn.

    (b) For Mr Tomlinson's death to have occurred from blood loss so quickly, there would have to have been an internal rupture of some significance.

    (c) Dr Patel found no internal rupture which would have led to such a level of blood loss.

    (d) At the later post mortems there was no visible sign of a rupture.

    (e) Since Dr Patel was the only person to examine Mr Tomlinson's intact body, he was in the best position to have considered the nature of the fluid he had observed and removed, and he was in the best position to have identified any rupture."

    The second and third post-mortems based their findings on one line in the notes of the first doctor. This line said there was fluid 3 litres of blood. The doctor who wrote that note says he meant Fluid 3 litres with blood. 3 litres of blood is about 2 thirds of the blood in the body.

    The only injuries they can prove with any certainty were bruising and this would amount to a summary only charge of common assault. The 6 month time limit for prosecutions prevents this.

    The other G20 incident referred to is presumably the case of Sgt Smellie(?) he was charged (and acquitted) with common assault for hitting a protester with his baton. This was obviously concluded within the time limit for prosecutions.

    It does occur to me, somewhat ironically, that one of the reasons that this took so long to investigate was the sheer number of people coming forward as witnesses - more than were actually present - I understand. In my experience when the police look look for witnesses most people don't want to get involved. It would appear this doesn't hold true if the person has their own axe to grind.

    ReplyDelete
  6. Jane,

    I'm fairly sure if they'd charged for Common Assault within the 6 month time limit they'd never have been able to charge with anything else.

    Firstly as this could be seen as an abuse of process which could well lead to the case being thrown out, but also under the double jeapordy laws. As all the evidence would have available at the time of charging for common assault it would not have been possible to then charge with something more serious.

    For it what it's worth I personally think that, whilst the whole thing was handled dreadfully from start to finish, the right decision has been made.

    ReplyDelete
  7. I am ashamed to be (a very lowly) part of our criminal justice system.

    ReplyDelete
  8. AP, I think you are wrong to suggest that using the fact of being an on-duty police officer as a factor in deciding what type of assault to charge is wrong. The proper place to include that as an aggravating factor is post-conviction, at sentence. You can't increase the level of assault charged from Common Assault to ABH simply on the basis of who is alleged to have committed it - it has to come down to the nature of the assault itself - as your paragraphs from the Charging Standards suggest.

    The 'could he have been charged within six months?' argument - if he'd been charged with common assault within six months simply to ensure the limit wasn't breached it would have probably led to one of two outcomes:-

    1) the trial is concluded, the CPS then try to charge him with more serious offences and they can't as he's been properly tried on the circumstances anyway, whether he's found guilty or not - you can't then go and re-charge the same set of facts unless (in the case of an acquittal) significant NEW evidence that WASN'T available at the time of the initial investigation is found. This would be hard to argue with such a fresh case that was still being investigated for the first time, or

    2) the prosecution attempt to adjourn the case 'in case we decide to replace it with a more serious offence' and get short shrift from the court for abusing process.


    'Self-defence' Not Guilty Juror brings up the valid point that there is no evidence to show that Mr Tomlinson was a threat to the officer, and this is a point which has been repeatedly made. It's true so far as I can see. However, there are circumstances in which a Police Officer is permitted to use force other than in self-defence. This argument will be a little winding, but bear with me.

    Police Officers have a common-law duty to keep the peace and prevent crime. That was their overarching intention on that day. The incident commanders there will have been working to a - probably ever-changing - strategy to try and achieve that. It would have involved deciding which areas were threats, which areas could cause that peace to be broken or threatened. They would have then directed officers to clear certain areas of people - they wouldn't necessarily tell the officers exactly why it was needed, but the officers directed would be expected to presume that there was a good reason and get on with it. It's well documented that Police can use force (and by this I mean it in the wider sense) to control crowds where there's a need to do so for keeping the peace - think of how they confine football supporters to certain areas, or even crowds at concerts. There's an element of 'force' used there even if it's just a line of police officers holding out their arms or hands and saying 'don't go down there'. The holding of protestors at Oxford Circus for some hours was found by the High Court to be justified - and that would clearly have involved the use of force against individuals in that crowd.
    If Mr Tomlinson was in an area that it was decided needed clearing, and you can see from the footage that the officer who pushes him was in a line which is emerging from an alley-type area, and was not going voluntarily (remember there's footage of him earlier in the day blocking the way of a police carrier - good evidence of his beligerent and non-cooperative nature) then the officer would be well within his rights to push him in order to get him to move. A lawful use of force based on the common law duty of Police to keep the peace. The baton strike is a separate question - I'm of the opinion that of the two uses of force seen, that one is the more difficult to justify, however you'd be really hard pushed to say that a leg strike could in any circumstances lead directly to ruptured internal organs, therefore trying to charge manslaughter on the basis of the baton strike would be impossible.

    ReplyDelete
  9. And having read the CPS explanation of their decision, I note that it in fact points out that 'PC 'A' was entitled to require Mr Tomlinson to move out of Royal Exchange,' adding that 'there is sufficient evidence to provide a realistic prospect of proving that his actions were disproportionate and unjustified'

    What they're basically saying is that he was well within his rights to use some level of force to clear the area of Royal Arcade, notwithstanding that Mr Tomlinson was not a threat, just that they disagree with his choice of the level of force used.

    ReplyDelete
  10. Anonymous, are you honestly trying to tell me that if enough people come forward as witnesses, even in a high profile case that will have a large amount of resources thrown at it, the criminal justice system will be unable to cope? If I was a rich criminal would this mean that I could easily evade justice by throwing extra witnesses into a case where I was accused?

    Or having tried to blame the protesters for the man being injured or throwing bottles at policemen and paramedics are we now seeing an attempt to try and blame the protesters for the lack of charges being brought against the police?

    ReplyDelete
  11. Don't you think the CPS should have went a bit harder on misconduct in public office? I recognise it is something of a cop-out, but I thought the statement was filled with Court of Appeal authorities that seem, to me, to not pose too much of a problem. Surely the CoA would have distinguished many of the points in this case.

    ReplyDelete
  12. So 'the Court of Appeal has indicated that it would be wrong to charge misconduct in public office as an alternative to a charge of manslaughter in circumstances where the prosecution cannot prove the cause of death' not cover it for you then?

    ReplyDelete
  13. A-G's Reference 3 of 2003: Lord Justice Pill: "we do not consider that, in future, in circumstances such as the present, a charge of misconduct in public office should [[routinely]] be added, as an alternative, to a charge of manslaughter by gross negligence on the basis that it may be difficult to establish causation."

    So there is some room for exceptional cases, in my view.

    ReplyDelete
  14. Showing beyond a reasonable doubt that the officer committed an assault that caused bruising is sufficient to secure an ABH conviction, subject to any defences that may apply.

    The CPS will not normally charge an assault as ABH unless the injury inflicted upon the victim is much more serious than the black letter law requires.

    My question is whether the evidence used to conclude that there is a likelihood of securing a conviction has to be the same as the evidence used to meet the charging standard.

    Could the CPS consider, when analysing the charging standard, the severe internal injuries that the assault likely inflicted? Can it then use the bruising alone to conclude that it could prove ABH beyond a reasonable doubt?

    ReplyDelete
  15. No, because you could never ever show that the baton strike led to the internal injuries, since the strike was in the upper thigh area of the left leg. The common opinion of the later two pathologists is that the internal injuries were most likely caused by his own elbow impacting his stomach area during the fall/impact with the ground. Therefore the only injury that the strike caused was the brusing. Hence no ABH charge for that.

    In answer to your other question, the CPS Charging Standards address which specific offence to charge, the question of whether there's enough evidence is tested elsewhere. The evidence used is the same, but it's tested in different ways.

    ReplyDelete
  16. If the internal injury was caused as a result of the fall which in itself was caused by the baton what would be the potential charge?

    If I push you cause no injury but as a result you trip and fall down the stairs - have I only committed Common Assault?

    ReplyDelete
  17. No, you've caused whatever injuries result from the fall down stairs, as you caused the fall. In this case it's not the strike that caused the fall, but the push, therefore the link is not complete. The key here is the phrase 'as a result'. If the baton strike was found to be unlawful, then the officer would be liable for whatever injuries resulted, in this case bruising. To hold the officer liable for the internal injuries you'd have to prove that a) the push was unlawful and b) that the injuries were caused by the fall. Both need to be present to convict.

    ReplyDelete
  18. There are multiple aggravating features (officer on duty, baton used, victim (possibly?) vulnerable - sounds like a doddering old man) in this case and I think I would have charged an ABH.

    The DPP wasn't technically wrong to charge a common assault. BUT, an ABH was open to the CPS to charge, and it would have resulted in a trial, and given some closure to the case in a "we didn't sweep it under the carpet" sort of way.

    ReplyDelete
  19. Soz. The DPP wasn't technically wrong to NOT charge an ABH. (I understand the reasons for not charging a common assault) Oops!

    ReplyDelete
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