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]
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.
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.
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You may wish to look at these posts (and the comments) from law blogger Jack of Kent
I have to say that I am baffled about Keir Starmer QC ‘s statement on Mr Tomlinson and the events surrounding it. As you know, 
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visit to the choppers in Battersea Square. A lovely Spanish hairdresser did the business…. I removed the tache myself some weeks ago.
Charon QC 