A few days ago the CPS finally drew their investigation of the death of Ian Tomlinson to a close. It took them nearly 16 months. Now, given the very serious nature of the events and the considerable public scrutiny focused on the case, it is not unreasonable for the investigation to have taken longer than is normal. However this strikes me as an inordinately long time to investigate, but I will return to this point later.
I’d like to start with the video of the incident, which was obtained by The Guardian shortly after Mr Tomlinson’s death.
You can quite clearly see a police officer (who has not, as far as I’m aware, been named and is referred to as PC A in the CPS report) strike Mr Tomlinson (herafter referred to as ‘V’) from behind with his baton and then push him to the ground. It is the unquestionable nature of this evidence which is fuelling much of the outcry at the CPS’ decision. I’m not going to be referring back to this because my concerns are mainly with the puzzling law behind the CPS but I think it’s important to see as it emphasises that there is strong evidence for the prosecution.
The full statement issued by the CPS can be found here. I shall be quoting it throughout, but it’s useful to read the whole thing if you are so inclined.
PC ‘A’, who was behind the dog handler, moved forward and using his baton struck Mr Tomlinson on the left thigh. Almost immediately he pushed Mr Tomlinson very strongly in the back. This push caused Mr Tomlinson to fall heavily to the floor and, because he had his hands in his pockets, he was unable to break his fall.
So the CPS fully accept that PC A struck V and pushed him from behind (not that they could contest it, with the video evidence, they’re not that stupid). This makes the conclusions they come to all the more baffling.
There are several areas that the CPS examine in the course of the statement. These are; the inconsistencies of the medical evidence and the four offences considered for charging. These are, beginning at the most serious, unlawful act manslaughter, assault occasioning actual bodily harm, common assault and misconduct in a public office.
I shall first turn to the medical evidence. Not being an expert on the law of evidence, I can only make a few obvious surface observations.
A total of three autopsies were performed over the course of the investigation and the conclusions reached are inconstant, therein lies the problem.
The first autopsy was performed by one Dr Patel. He came to the conclusion that V had died of natural causes, brought on by coronary artery disease. Dr P was unaware of the earlier incident involving PC A as V had walked some way before he had collapsed and died. Now call me cynical, but given that at the time V just seemed to have keeled over in the street, it is not outside the realm of plausibility that an overworked pathologist would have done a quick autopsy without investigating in close detail. Now that is all speculation and wouldn’t stand up in court, but it’s just an observation.
The IPCC and V’s family sought a further autopsy and Dr Cary was brought in. He concluded that V’s death was the result of ‘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 [V had a history of alcoholism and had spent time homeless as a result]”. Dr C belived that V’s fall had caused his elbow to impact in the area of his liver, causing an internal bleed. Needless to say this is in direct opposition to Dr P’s findings.
So as is usual practice, a third opinion was sought. Dr Shorrock was brought in and he agreed with Dr C. Suddenly, there was a major problem.
The disparity in evidence is key to the CPS’ reasoning for not bringing charges because they raise causation problems. More on those in a minute.
As I say, I’m clueless about evidence law so I can’t talk about what is normal procedure when there is such a conflict of key evidence. However I would argue that given the public interest in this case, the CPS are bloody stupid not to bring this to trial. So there’s a conflict of evidence? Let the jury decide. The CPS doesn’t bring charges in every case because there either isn’t enough evidence or it’s not in the public interest, the reasoning behind this is that a) the court system would implode and b) it would cost them a fortune if every case came to trial. Nevertheless, this one case, expensive and long as it may have ended up being isn’t going to bring the judicary tumbling down and, bizarre understanding of the law aside, it’d make the CPS look good. Even if PC A was acquitted, the public would’ve been happy-ish and you avoid affirming the idea the the police look after themseles above all others.
Now I’m going to move on to aspects of the law I actually know about. It’s all uphill from here.
The first charge the CPS considered what unlawful act manslaughter. This is basically what it sounds like: in the course of an unlawful act, death is caused. The defendant only needs the mens rea for the ‘unlawful act’, so we have a form of constructive liability (which is in itself problematic, but that’s another discussion). Causation problems arise here, which is understandable. Causation is generally not an issue in most criminal cases. Person stabs a person, person dies. Simple really. When causation does arise, however, it can get very, very confusing. Now I won’t go into a detailed ramble about criminal causation (mostly because I’ve forgotten most of it) but I’d like to point out the case of Sarah Campbell. The facts were these: Sarah was a drug addict who took to begging to get some money. She confronted a man, begging him for money and when he refused she told him that she would cry rape. This man was, unbeknownst to her very ill and he had a heart attack and died. The CPS found sufficient causation there and she was given a sentence of 2 and a half years for manslaughter. Evidential issues aside, the CPS seem to be setting the bar for bringing charges far higher than precedent would dictate when a member of the public is the defendant.
The next charge considered was assault occasioning actual bodily harm, per section 47 of the Offences Against the Person Act 1861. This being a very old statute, is not ery helpful to us so we have to examine the case law and the CPS guidelines.
In Donovan  2 K.B. 498 the threshold for ABH was set extremely low. Per Swift J it ‘includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling.’. Being struck by a baton is, prima facie in my eyes, enough to amount to ABH.
Dr C, the second pathologist has since come out and strongly criticised the CPS, claiming that in his report he explicitly said that the inures were severe enough to sustain a s.47 charge.
Cary, speaking for the first time about the case, said: “I’m quite happy to challenge that. The injuries were not relatively minor. He sustained quite a large area of bruising. Such injuries are consistent with a baton strike, which could amount to ABH. It’s extraordinary. If that’s not ABH I would like to know what is.”
If we look at the CPS’ guidelines for ABH here you’ll see that ABH is fulfilled by any of the following
- loss or breaking of tooth or teeth;
- temporary loss of sensory functions, which may include loss of consciousness. (T v Director of Public Prosecutions,  Crim. L. R. 622)
- extensive or multiple bruising;
- displaced broken nose;
- minor fractures;
- minor, but not merely superficial, cuts of a sort probably requiring medical treatment (e.g. stitches);
- psychiatric injury that is more than mere emotions such as fear, distress or panic. In any case where psychiatric injury is relied upon, as the basis for an allegation of assault occasioning actual bodily harm, and the matter is not admitted by the defence, then expert evidence must be called by the prosecution. (R v Chan-Fook, 99 Cr. App. R. 147, CA).
So if we believe Dr C (and he has no reason to lie) then the CPS have not followed their own guidelines. Not looking good for them, I’m sure you’ll agree.
Now a charge of assault would be far too lenient given the circumstances, but it would nevertheless have been something. But no, no charge of assault can be brought. Now the CPS pretty much admit that a charge of assault could have been brought against PC A, there’s no way around it. Handily they avoid having to charge him because the limitation period of six months had run out. This was because they’re investigation took so long. Oops.
Now my issue here is not with statutory limitation periods, they are a necessary and useful aspect of the law, it’s that the CPS are once again ignoring the case law.
In R v Scunthorpe Justices ex parte McPhee & Gallagher  EWHC Admin 228, the initial charge was robbery, but this was then amended to include a charge of common assault. This was six months after the offence had been committed, so the limitation period (provided by s.127 of the Magistrates’ Court Act 1980, if you’re interested) had run out. It went to appeal on this issue and it was held that the limit doesn’t extend to amending an existing indictment. So the CPS could have charged s.47 and then tacked on common assault. Of course they’d painted themselves into a corner, they wouldn’t admit ABH so there could be no common assault.
I’ll deal very briefly with misconduct in a public office. Basically the apparent problem in establishing the causal link between V being pushed and his death means that no charge can be brought here because there needs to be an aggravating factor (which V’s death would be) to sustain a charge.
It all comes down to the medical evidence really. We have to ask the question though: just how reliable is Dr P’s evidence? We have a second pathologist coming out saying in effect ‘Actually no, you’re talking bollocks here’. Also worth noting is that Dr P is being investigated by the GMC for incompetence. Incompetence in performing autopsies. Ah. The inquiry is ingoing, so Dr P may be cleared and nothing more can be said of it. You do have to wonder though.
Dr P’s conflicting evidence does raise an element of doubt and this may have been reasonable doubt enough to prevent a jury from finding PC A guilty of any charges but the CPS seem to have overstepped the mark here and are encroaching too much on the power of the jury to decide when there is reasonable doubt. There must be cases where the CPS believe there is no reasonable doubt, and then a jury find that there is, otherwise every case which went to court would see the prosecution winning. Why then can the reverse not be true?
The decision has been branded a ‘disgrace’ and a ‘cover-up’ by Mr Tomlinson’s family, the media and the public at large. There are some definite legal holes in the CPS’ decision and they’ve set the bar far higher than if the roles had been reversed. Imagine if a member of the public had pushed a police officer over from behind. You can be sure the CPS would not spend 16 months investigating and they would almost certainly not have been so unwilling to bring charges. If the decision stands (it looks like it is going to be contested) it will do severe damage to the relationship to the relationship between the police and the public. I hate the view that some hold that all of the police are bastards, because it is mostly bullshit. This decision will just affirm that view in people’s minds.
This is the same CPS that decided it was in the public interest to bring charges against a man who posted and ill-advised but harmless tweet. They were so determined to bring charges in fact that they resorted to an obscure and badly drafted piece of legislation not intended for the case, being drafted as it was some years before social media became prevalent, when they couldn’t get enough evidence for a bomb hoax charge.
I always heard lawyer in-jokes about how stupid the CPS were, but I never thought they were true. The CPS aren’t really doing much to inspire confidence in me, let me tell you.