At times it’s difficult to maintain hope that our corrupt, incompetent political systems might be reformed. This is one of those days.
The statement this morning by Kier Starmer, Director of Public Prosecutions (DPP), is one that instills sheer disbelief and irreparably damages the Crown Prosecution Service (CPS), the Police and if they don’t respond it an appropriate way later today the Independent Police Complaints Commission (IPCC).
The investigation into the death of Ian Tomlinson has been a disaster from start to finish. From the IPCC’s initial refusal to intervene in his case and their backing of the City of London Police to conduct the investigation for the vital first week; to the IPCC’s humbling climb down 1 following the release of crucial video evidence to the Guardian2 and later additional evidence from Channel 4 news3; to the months of delays, broken promises and finally the announcement that no charges were to be made on the 5 year anniversary of the death of Jean Charles de Menezes at the hands of the London Metropolitan Police4;.
Fortunately it seems that the one thing that DPP realised is that his decision would cause disbelief and outrage amongst the general public and he has therefore published, for our consumption, his reasoning into why he felt that he would not be able to secure a conviction if the evidence had been placed before a jury to decide.
It is the DDP’s reasoning I now propose to examine, following the headings of the document itself. (Read it in full here.)
“It is important to appreciate and keep in mind the questions that the CPS has addressed in this case, namely whether there is enough evidence resulting from the investigation to provide a realistic prospect of conviction and, if so, whether a prosecution is required in the public interest.”
This is the most crucial sentence in the introduction, laying down the aims of the investigation, and can briefly reduced to:
- Is there enough evidence to provide a realistic prospect of conviction?
- Is a prosecution required in the public interest?
These are the two facts that we have to keep in mind as we follow through DPP’s reasoning in reaching in his decision not to prosecute.
The incident in Royal Exchange
This section details the incident itself and is to my mind riddled with inaccuracies, poor definitions and lack of plainly stated facts, which considering the investigation has taken 16 months to bring us a verdict is, to be frank, wholly unacceptable of public official. Take for example,
“On 1 April 2009 a summit of financiers, bankers and leaders of industrial countries took place in central London. The event was known as ‘G20’ because of the number of countries represented.”
Not only is this not accurate, the official definition of the G20, can be found by spending less than a few seconds googling their website5;:
The G-20 is made up of the finance ministers and central bank governors of 19 countries… The European Union, who is represented by the rotating Council presidency and the European Central Bank, is the 20th member of the G-20.
How is it that the DPP is not able to accurately define the G20? And if he’s not capable of it, why did he not just do exactly what I have and google it. In my mind this kind of sloppy drafting does not bode well as an indicator for the soundness of the DPP’s reasoning.
And it goes on,
“…there were reports that over 30 police officers suffered injury during the events of the day…”
Surely after 16 months it possible to not rely on report of injuries suffered by the police, but actually have accurate figures from quotable sources that can be substantiated. And surely if the DPP is prepared to speculate on the number of police injuries he should also have reported the number of protesters injured, so we are given a better picture of the events of that day, rather than one which is already biased towards the police, as the injured party.
He goes on to say,
“Mr Tomlinson had no connection with the demonstration on 1 April 2009. He had been in the general area for much of the day and appears to have been trying to get back to his residence but, because of the police cordons, was finding it difficult to do so.”
This sentence seems to suggest that Mr. Tomlinson was simply hanging around the area for most of the day, rather than stating that he had been working as a Evening Standard Vendor, as it is the fact, and was just trying to get home at the end of his working day. It does however infer that the police were failing in their attempt to redirect pedestrians that were not part of the protest away from the protest area, which they were trying to contain, in a now widely condemned police practice.
This conclusion is further strengthened by the DPP going on to say,
“He can be seen on CCTV pictures at various points in the area approaching police officers, and at one stage being moved by police officers because he was standing in the way of a police vehicle. At just after 7pm he was in Royal Exchange when the police started to move pedestrians out onto Threadneedle Street.”
“At about 7.15pm, a senior police office gave an order for officers to form a cordon and move people from the junction with Cornhill out onto Threadneedle Street.”
It was this decision, which the IPCC will presumably examine when it finally publishes its report, that was to prove fatal for Mr. Tomlinson; whether foul play was involved or not.
The DDP then goes on to describe the moments that lead up to Mr. Tomlinson’s death. Although for any of you in doubt as to the precipitating cause, I invite you to watch the video provided to the Guardian, by an American banker visiting London, once more:
The medical evidence
The DDP begins by stating:
“The Coroner for the District appointed a pathologist, Dr Patel, to carry out a post mortem. He did so on 3 April 2009. No other medical expert was present.”
He omits from this reasoning the reports, repeated by Jon Snow on this evening’s C4 News, that Dr. Patel denied the IPCC access to the original autopsy when it was carried out. As well as omitting wholesale from the reasoning that Dr. Patel was already under investigation for misconduct in multiple other autopsy’s at the time he performed Mr. Tomlinson’s autopsy, thereby potentially calling his conclusions into doubt6;.
He goes on to state,
“[Dr Patel] concluded that Mr Tomlinson’s death was “consistent with natural causes” and he gave the cause of death as “coronary artery disease“.”
But that the second pathologist concluded that,
“[Dr Cary] concluded that whilst Mr Tomlinson had a partial blockage of the artery, his death was the result of abdominal haemorrhage from blunt force trauma to the abdomen, in association with alcoholic cirrhosis of the liver. It was Dr Cary’s view that when Mr Tomlinson fell, his elbow had impacted in the area of his liver causing an internal bleed which had led to his death a few minutes later.”
And that the third pathologist,
“Dr Shorrock agreed with Dr Cary’s conclusion.”
So far that is two pathologists, with unblemished careers, one of whom represented the Metropolitan Police and the Police Officer under investigation, that agree that there was a causal link between the assault of Mr. Tomlinson and his death.
He goes on to reference,
“Other expert evidence was obtained from Dr Wilson, Professor Williamson, Dr Alexander and Dr Sheppard. Their evidence related to accident and emergency procedures, issues relating to the liver and microscopic changes to tissue.”
But fails to tell us if the expert evidence provided by those four other doctors sided with Dr. Patel’s interpretation of the events or the interpretation of Drs Cary and Shorrock. If they did indeed support the conclusions of Drs Cary and Shorrock then surely there was adequate evidence to proceed with a prosecution and let the jury weigh up the dispute.
The disagreement between medical experts
The basic disagreement between the medical experts, is quite simple: it’s about missing evidence.
“In his first report, Dr Patel reported that he had found “intraabdominal fluid blood about 3l with small blood clot.” This had been interpreted by the other medical experts to mean that he had found 3 litres of blood in the abdomen.
If Dr Patel had found 3 litres of blood, this would have been approximately 60% of Mr Tomlinson’s blood volume and would have been a highly significant indicator of the cause of death.”
However, Dr. Patel amended his report three days after the autopsy (06 April 2009), by which time a public furor was already building into Mr. Tomlinson’s death and it was clear that it was not going to be quite the straightforward case that Dr. Patel might have first presumed. We are not told by the DPP how many alterations were made to this report, however, this is the crucial change:
“intraabdominal fluid with blood about 3l with small blood clot“
The DDP goes on to say,
“Since Dr Cary and Dr Shorrock inevitably depended on Dr Patel’s notes of this finding to inform their own opinions, the significance of this more recent description of Dr Patel’s findings had to be clarified with Dr Patel and discussed with the other experts.”
This was because,
“[Dr. Patel] had not retained the fluid nor had he sampled it in order to ascertain the proportion of blood because, he said, he had handled blood all his professional life and he knew that this was not blood but blood-stained ascites.”
If this was the case why did his original report not say this? Why did it need to be amended three days later, when significant publicity was growing around the case? And why if the IPCC had initially asked to be able to attend the original autopsy did he not, as an experienced home office pathologist, think to keep a sample of the fluid? These are questions that need answering.
Otherwise are we just left to draw our own conclusions. As there are only ten home office registered pathologists available in Greater London 7; how can we be expected to believe that the coroner appointing Dr. Patel wasn’t aware of his current circumstances? How was he selected? What was the reasoning?
Although earlier the DPP stated,
“Because Mr Tomlinson had walked some distance from the incident in Royal Exchange before collapsing in Threadneedle Street, the two events were not immediately linked…”
Are we seriously expected to believe that the police, the paramedics, the doctors, all those involved in helping Mr. Tomlinson in his final moments, as well the inevitable press coverage that began the same night didn’t cause them to stop and think that the events might, just might be connected and that it might be best to take extra care. In appointing this pathologist it is beyond reasonable doubt that such reasonable caution was not followed.
In conclusion to this section the DPP states,
“It is clear from this that even after the extensive exercise of examining all the notes and findings recorded carefully, and meeting with the experts on several occasions, there remained an irreconcilable conflict between Dr Patel on the one hand and the other experts on the other as to the cause of death.”
“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.”
So the DDP agrees that there was sufficient evidence to charge PC ‘A’ with assault, drawing his conclusions from the video evidence provided. However, he chose not charge PC ‘A’ with assault at this time pending possible additional charges, to following, and instead chose to,
“…[consider] the possible criminal charges.”
Unlawful act of manslaughter
This was the most serious charge that PC ‘A’ could of faced. However, from the outset it seems that to gain a conviction for this charge the CPS would have to prove,
“a causal link between the alleged assault on Mr Tomlinson and his death.”
And as the DPP had previously asserted there was, in his considered opinion a fundamental disagreement on the medical circumstances of Mr. Tomlinson’s death. However, this conflict must have been apparent within the first month of Mr. Tomlinson’s death, when all three autopsies had been completed. And although the DPP goes into detail about the considerations he does not convincingly explain why he didn’t to the conclusion that,
“…there is no realistic prospect of a conviction for unlawful act manslaughter.”
earlier. How could the formation of this opinion have taken 16 months? Surely the DPP and the CPS have experience with such cases and therefore can be expected to draw conclusions much more promptly. For example, the decision no to prosecute in the Jean Charles de Meneze case only took 4 months, despite involving a much larger group of people and being infinitely more controversial.
“Two types of assault charge were considered: assault occasioning actual bodily harm and common assault.”
By the first paragraph we find the same legal conundrum for assault occasioning actual bodily harm as we had found for the unlawful act of manslaugher,
“the conflict in the medical evidence prevents this [proving actual bodily harm]”
The DPP goes on to say that,
“If the push caused Mr Tomlinson’s death, the appropriate charge would be manslaughter, not assault occasioning actual bodily harm.”
So in reality the DPP could never of considered the charge of occasioning actual bodily harm, as if they had been able to prove that, they would have been able to prove the unlawful act of manslaughter. So the inclusion of this charge can only be seen for what it is: a smoke screen.
Now whilst we are led to believe that the DPP was carefully considering the evidence for these possible charges the simpler charge of common assault, already conceded as chargeable by the the DPP was subject to the following,
“Common assault does not require proof of injury, but it is subject to a strict six month time limit.”
Unbelievably he then goes on to say,
“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.”
So PC ‘A’ wasn’t charged because the DPP was unable to complete his enquiries in time? Seriously? Does he expect us to accept that reasoning? And if there was any doubt as to the possibility of being able to charge PC ‘A’ under the more serious of the two charges, which there apparently was from within the first month, then why was PC ‘A’ not charged under the lesser charge? At least whilst the more serious charge was investigated?
Misconduct in public office
This entire element of the reasoning seems to be a smoke screen. Please feel free to read it in full here. The only point worth mentioning is that,
“The CPS is aware that comment has been made about the time taken to reach a decision… He is satisfied that the CPS acted as quickly as was consistent with the thorough and careful review of the evidence that was necessary.”
Well I have to say the DPP has a lower standard of satisfaction than I would have or I would expect of an individual holding office. After all by the time he makes this statement he has already conceded that he cannot charge PC ‘A’ with the only charge he concludes is legally possible because he spent so much time examining charges that he now considers not legally possible. Amazing work.
Blogger Jack of Kent has written an excellent blog post examining the charge of misconduct in a public office: read it here.
The DPP concludes with the following,
“In this case there has always been and, despite the efforts of the prosecution team to resolve issues, there remains an irreconcilable conflict between Dr Patel on the one hand and the other experts on the other as to the cause of death. As the sole medical expert who conducted the first post mortem, Dr Patel would have to be called at trial as a prosecution witness as to the primary facts. As a result, the CPS would simply not be able to prove beyond reasonable doubt that Mr Tomlinson’s death was caused by PC ‘A’ pushing him to the ground. That being the case, there is no realistic prospect of a conviction for unlawful act manslaughter. It also follows that there is also no realistic prospect of a conviction for assault occasioning actual bodily harm or misconduct in public office.”
At no point in this conclusion does he deal with the fact that the delays in time cost the Tomlinson family the only opportunity they had for a successful prosecution of PC ‘A’ nor does he really explain why it took so long to reach this conclusion. The only thin sliver of hope he offers the family is,
“The Coroner will now be informed of this decision so that he may move to an inquest. At the conclusion of the inquest the matter will be reconsidered by the CPS in the light of any evidence which may be presented.”
I cannot imagine the suffering and pain that this process and the delays after delays have put the Tomlinson family through, but they must be unbearable. And it was clear from watching them give statements after meeting him that he had simply failed to explain to them why a common assault charge could not have been pressed, nor does he seem to have consulted them during his deliberations, as he surely must have know that this deadline was approaching.
I think the only reasonable thing a member of the public could call for at this point is his resignation, as he is clearly unsuitable for the post he holds. And to offer the Tomlinson family my thoughts in this difficult time. And if they need it what money I can spare so that they can mount a private prosecution of PC ‘A’ and let a jury decide on the medical issues of the case.
What Can I do?
Write to your MP at writetothem.com
Join the Facebook Group: Ian Tomlinson Deserves Better and recommend it to all your friends.
Tweet about it and help make Ian Tomlison a trending topic.
- IPPC Takes Over Investigation: http://bit.ly/diOVQc ↩
- Guardian Video: http://bit.ly/c8MLst ↩
- Channel 4 News Video: http://bit.ly/9Hq53O ↩
- http://en.wikipedia.org/wiki/Jean_Charles_de_Menezes ↩
- G20: http://bit.ly/9RfSbm ↩
- BBC: http://bit.ly/aKEDvE
- NPIA Register of Pathologists: http://bit.ly/9wkaYG ↩