No realistic prospect of conviction

July 22, 2010 1:29 PM

On 1st April 2009, a newspaper seller called Ian Tomlinson was returning to his home, through the middle of the G20 protests. He was not part of those protests. He was struck from behind, by a masked policeman who had covered up his identity numbers, and fell to the ground. A few minutes later, Ian Tomlinson was dead (previously on mefi) Today, the Crown Prosecution Service (motto 'Fair, Fearless and Effective') announced that there would be no criminal charges against the policeman (CPS statement , Guardian coverage).

At first the police reported that he died of a heart attack. This was not true. Then they reported that he had not come into contact with any of their officers. This was not true. Then they reported that he had come into contact with their officers, when they tried to help him amidst a hail of bottles from protesters. This was not true. An American fund manager on a visit to the UK realised that he had captured the assault on Ian Tomlinson on camera, and the video was seen around the world. The police officer did not come forward immediately, but was eventually suspended, and the Crown Prosecution Service started its consideration.

Today, Keir Starmer (director of the CPS and previous winner of Justice/Liberty's human rights lawyer of the year award), announced that no charges could be brought. The main reason was the conflicting pathologists' reports meant that there was no reasonable chance of mounting a prosecution.

The first pathologist backed the police story that Tomlinson had died of a heart attack. A second pathologist found that he had actually died from internal bleeding. A third, appointed on behalf of the police officer, supported the second finding. The first pathologist is today in front of a General Medical Council hearing, accused of arriving at questionable verdicts on four deaths. In another case, not included in the GMC hearing due to procedural errors, he determined that a woman found naked and dead in a man's house had died of natural causes. The man later went on to murder two other women, and confessed to the killing of the first woman.

The CPS state that there was one that could have been pursued successfully - common assault. This charge, however, can only be made within six months of the incident.

The CPS (motto, Fair, Fearless and Effective) took sixteen months to reach this decision.

posted by reynir (59 comments total)

*sighs and fondly remembers rights*
posted by Lutoslawski at 1:35 PM on July 22, 2010

The CPS say they couldn't get a prosecution up because of the "sharp disagreement" between the first, outrageous, incorrect postmortem, which backed the police story that Tomlinson died of a heart attack, and the second postmortem, which confirmed he had died of internal bleeding. The existence of contradictory reports would supposedly ensure reasonable doubt and make it impossible to obtain a conviction. So the fake postmortem worked, despite being exposed for what it was. It still did the job of protecting the police from any consequences.
posted by stammer at 1:36 PM on July 22, 2010 [10 favorites]

Lutoslawski, you have plenty of rights!

As long as you're rich, or a police officer.
posted by mr_crash_davis mark II: Jazz Odyssey at 1:37 PM on July 22, 2010 [4 favorites]

I think it's fair to say that nobody at all attached to this, at any level, should remain working in their current positions, or any position attached to the policing, law or medicine at all really. And it would be nice if the people involved who are clearly criminal or involved in a criminal cover up could, you know, do some time. But that;s not going to happen.

Fucking G20.
posted by Artw at 1:37 PM on July 22, 2010 [2 favorites]

They have all these CCTV cameras and they still had "no" footage of either the de Menezes killing or the attacks on Ian Tomlinson. The system seems to have a blindspot alright. Police misconduct.

and misconduct is about the mildest word I could use there.
posted by knapah at 12:48 AM on April 16, 2009 [2 favorites +] [!]

Emphasis added...
posted by knapah at 1:40 PM on July 22, 2010

Citizen! Do not step behind the ballot box.
posted by lalochezia at 1:43 PM on July 22, 2010 [5 favorites]

Remember also the official police story that was being circulated before the video was discovered: Tomlinson fell ill and the police rushed to help him, but were unable to get him to an ambulance because they were being pelted with rocks and bottles by deranged protesters.
posted by stammer at 1:43 PM on July 22, 2010 [3 favorites]

Yeah, not a single word has passed their lips that has not been demonstrated to be an utter lie. Sickening.
posted by Artw at 1:46 PM on July 22, 2010

Not worthy of its own post, but in a sort of related move, the city of Baltimore, Maryland, USA, has decided that the cop who assaulted the skateboarder in this video will not face any charges.
posted by crunchland at 1:47 PM on July 22, 2010 [1 favorite]

Disgusting.
posted by The Winsome Parker Lewis at 1:49 PM on July 22, 2010

Lutoslawski, it is important to know your rights.

I tried hard not to editorialise too much. But it was very, very hard because I am so truly angry today, as are many people I know, of all political persuasions. And not just because of the lack of prosecution, but because just like the de Menezes case, the Met lied and lied and lied again when one of their own did wrong. And nothing has happened to any of them as a result, not a thing.

So they will do it again.
posted by reynir at 1:50 PM on July 22, 2010 [5 favorites]

knapah. I'm failry sure the area Tomlinson was killed is actually pretty heavily covered in CCTV cameras. However that's fairly irrelevant given that there's excellent footage of the incident anyway. Could you ask for better evidence than that? I mean really, people should go back and watch those videos, and then read about this all over again.

I know we make fun of pointless outrage on MeFi quite often but if you are going to get angry on the internet I think we can make an exception for this.
posted by public at 1:54 PM on July 22, 2010

It's bad enough that this stuff happens, but you'd think by now they'd learn not to bother covering it up. The public and establishment will pretty much always side with the police in a riot situation, even if it is obviously unprovoked assault.

But every time, they lie and obfuscate and then fail entirely to cover up anything but their increasingly slim reputation for competence. The army does the same - it's war, we know mistakes happen, don't lie because then you're a murdering arsehole and not a victim of ineffective equipment, bureaucracy or the general horrors of war.

The whole concept leads me to think they must get away with it a lot to make these periodic embarrassments worth it to them.
posted by shinybaum at 1:56 PM on July 22, 2010 [1 favorite]

At the risk of sounding frivolous, if I were one of the Northumbria police officers involved in the apprehension and death of Raoul Moat (spree killer recently at large in the north of England, for the non-Brits), and the IPCC inquiry did anything other than send me a bouquet of flowers and a box of chocolates, I would at that moment feel the north-south divide very strongly.
posted by DNye at 1:58 PM on July 22, 2010

You can criticise the CPS, particularly for the length of time it took to reach a decision, but they were also put in a very difficult position by failures by first the Met and then the IPCC. The CPS are required by law to put every decision to charge to an evidential test then a public interest test - but the evidential test comes first and if charges do not meet that, the CPS cannot lawfully proceed with them even if it may be in the public interest to try. And the time limit on charges of common assault deprived them of any other option. So the CPS did not have any choice under the law than to act as they have, although the time it has taken them to reach the decision must still have been a source of significant anguish for the family and I cannot really understand why it took so long. But ultimate fault for no charges being brought really lies with the Met trying to cover its tracks at every stage - "working together for a safer London". I think it would be unfortunate if Keir Starmer becomes the target of justifiable public outrage that should really be directed at Sir Paul Stephenson.

Hopefully the family will be able to bring a private prosecution if that is what they wish, although private prosecutions against the police do not have a good track record either (cf the private prosecution over the Hillsborough disaster).
posted by greycap at 2:00 PM on July 22, 2010 [2 favorites]

This seems like exactly the kind of thing that would generate protests. Perhaps this will start a never ending loop of protest leading to cop killing someone to cop getting off to protest to cop killing someone to cop getting off to...

And we can all watch and cry at what a ridiculous miscarriage of justice it is.

"The CPS state that there was one that could have been pursued successfully - common assault. This charge, however, can only be made within six months of the incident"

I'm am going to make a wild, crazy speculative assertion here; if it was the other way around, and a cop had been killed by a newspaper seller, they would have found a charge other than common assault.
posted by quin at 2:06 PM on July 22, 2010 [9 favorites]

.
posted by blue_beetle at 2:13 PM on July 22, 2010

I thought as soon as Smellie got off something like this would happen in this case.

Currently read the Red Riding quartet which is all about police corruption in the 70s and even with the introduction of PACE and the like you have to wonder how much things have actually changed.
posted by fearfulsymmetry at 2:14 PM on July 22, 2010

knapah. I'm failry sure the area Tomlinson was killed is actually pretty heavily covered in CCTV cameras. However that's fairly irrelevant given that there's excellent footage of the incident anyway. Could you ask for better evidence than that? I mean really, people should go back and watch those videos, and then read about this all over again.

public, indeed I do know that the area was heavily covered in CCTV cameras, and have watched the videos of the assault more times than is healthy.

My point was that the IPCC initially said that there were no cameras in the location that he was assaulted, or that none were working. They have since changed their mind on that, and claimed to be examining footage from the 6+ CCTV cameras in the area.

Imagine my lack of surprise then to hear that he isn't being charged. The state has acted at every step of both this and the de Menezes investigation to ensure that these criminals avoid justice, merely because they were police operating in 'difficult' circumstances, i.e. 'terrorist' surveillance and G20 protests.

It would be too much to ask that they prosecute someone for it. They cleared Sgt Delroy Smellie of assaulting Nicola Fisher too, and that was clearly caught on camera as well.

It's fucking disgusting.

They took 38 years to own up to Bloody Sunday, hopefully Ian Tomlinson's family won't have to wait so long for some measure of justice.
posted by knapah at 2:18 PM on July 22, 2010 [1 favorite]

Greycap, you may understand more about this than I do, so please correct me if I am wrong, but isn't the core of the CPS's evidential test their view that the conflicting pathologist reports would undermine any prosecution for manslaughter?

Seems to me that's for a trial to decide - if they have three expert witnesses whose evidence conflicts, then a jury should hear their testimony and decide on who to believe - the two pathologists who concluded that Tomlinson died from an internal bleed consist with injuries from an assault, or the heart attack theory from the pathologist currently up in front of his professional body on charges of incompetence and who may end up being struck off.

I'm probably being hopelessly naive, but I can't understand why it should not be a jury deciding that, not the CPS.
posted by reynir at 2:19 PM on July 22, 2010

Oh, and feafurlsymmetry - just finished Ninety Seventy-Seven this week, and thought exactly the same thing.
posted by reynir at 2:21 PM on July 22, 2010

I don't know what the laws are in the UK, but why would the six month requirement apply to the CPS investigation if, as appears to be the case, the police involved were lying or withholding evidence? Statutes of limitations are desirable, but if this kind of behavior doesn't stop the clock, subjects of investigation have an effective tool for killing charges before they are brought.

And why aren't there any charges for lying to investigators? Maybe everyone told the truth, but it doesn't seem like the police were forthright here. And if everyone did tell the truth, why the hell would it take more than 6 months to get to the assault charges? Yeah, I know; the answer is that there are no charges by design, but my point is that the "our hands are tied" bit is bizarre even from within their narrative. I wonder if someone at the CPS fucked up and blew the deadline for charging assault.

Honestly, I'd prefer charges for lying over charges for manslaughter since death from shoving is something of a freak (but still actionable!) outcome, while impeding an investigation is the clear purpose and result of lying to investigators.
posted by Marty Marx at 2:24 PM on July 22, 2010 [1 favorite]

reynir - the CPS's page on the evidential test, and the Code for Crown Prosecutors [PDF], may give a bit more explanation. The jury is there to decide if the defendant is guilty beyond all reasonable doubt, and in this case there would be reasonable doubt because Dr Patel was the only doctor who examined Ian Tomlinson's body immediately after his death.
posted by greycap at 2:27 PM on July 22, 2010

You can criticise the CPS, particularly for the length of time it took to reach a decision... the time limit on charges of common assault deprived them of any other option. So the CPS did not have any choice under the law... and I cannot really understand why it took so long

The CPS had a choice. Either uphold the law and charge one of their own, or use some legalistic tap-dancing (and apparently, falsified evidence) to let him get out of it. It seems even you know the choice they made, though you haven't made the connection yet.
posted by atypicalguy at 2:30 PM on July 22, 2010 [1 favorite]

Seems to me that's for a trial to decide - if they have three expert witnesses whose evidence conflicts, then a jury should hear their testimony and decide on who to believe

I'm wondering about that, too. I have more familiarity with the US system, but the basis of the decision just seems off to me.
posted by rtha at 2:36 PM on July 22, 2010

Dammit; Canada was going to be my fallback country for when the shit really hits the fan in the US. Now I have to find another.

Anyone know anything about New Zealand?
posted by ZenMasterThis at 2:41 PM on July 22, 2010

Statutes of limitations are desirable, but if this kind of behavior doesn't stop the clock, subjects of investigation have an effective tool for killing charges before they are brought.

Prosecutions for most summary offences (like common assault) must be brought within six months. For a more serious crime, this particular time limit would not apply.

I don't think a conviction for which the maximum sentence is six months imprisonment would have satisfied anyone. I also don't think the maximum sentence would be given out to someone with no prior offenses, and after reductions in sentence for a guilty plea, time off for good behavior, he'd be in there for two months tops, probably less.
posted by grouse at 2:43 PM on July 22, 2010

Whoops, that was April 2009.

Nevermind.
posted by ZenMasterThis at 2:43 PM on July 22, 2010

My apologies knaph. Apparently my sarcasm detector is not functioning :)

People are definitely wrong to direct their anger at the CPS over this. I am sure given sufficient incentive they could have done a better job but the real blame lies with the police. They are the ones who have trained their officers with such a disregard for the public good, have mislead the investigation and ultimately, killed Ian Tomlinson and others due to these glaringly obvious systemic issues for which we have no legal ability to correct.
posted by public at 2:44 PM on July 22, 2010

Sure sure, grouse. If there are no conditions that stop the clock, they've only got six months from the shove, full stop. And maybe that really is the state of the law. I'm saying that it is surprising (and unwise) not to have provisions that stop the clock for interference with an investigation, since it creates an additional incentive for non-cooperation.
posted by Marty Marx at 2:50 PM on July 22, 2010

Ironically this whole thing makes me feel like hitting something with a stick. Gah!
posted by Artw at 2:52 PM on July 22, 2010 [1 favorite]

Well, if you can't get them for assault, get them for conspiracy. I'm sure this Freddy Patel person could be compelled to provide some interesting testimony.
posted by TheWhiteSkull at 3:03 PM on July 22, 2010

Anyone know anything about New Zealand?

I've been led to understand that it's filthy with hobbits.

More seriously: yeah, I was thinking of emigrating north as well after 2004; Toronto looked especially nice. So much for that.
posted by Halloween Jack at 3:07 PM on July 22, 2010 [1 favorite]

I'm saying that it is surprising (and unwise) not to have provisions that stop the clock for interference with an investigation, since it creates an additional incentive for non-cooperation.

I think the idea is that summary offences are chump change and having extra procedures for this is not usually worth it.
posted by grouse at 3:21 PM on July 22, 2010

quin's right, just imagine the tables had been turned and some protester (or, for maximum accuracy, random passer-by) had pushed a policeman to the ground and he'd died shortly afterwards.

The guilty party would literally have never had a day of freedom since, and rightly so.

If only the original coroner (currently under investigation for other spectacular cockups) plus Keir Starmer plus the commanding officer on the day could be done for perverting the course of justice.
posted by imperium at 3:32 PM on July 22, 2010

Grouse: Ah, that makes sense then.
posted by Marty Marx at 3:35 PM on July 22, 2010

Anyone know anything about New Zealand?

I've been led to understand that it's filthy with hobbits.

More seriously: yeah, I was thinking of emigrating north as well after 2004; Toronto looked especially nice. So much for that.

You realize this post is in regard to a different G20 meeting than the one that just occurred in Toronto, yes?

As to the whole need for a trial, this is the same issue that came up in the Michael Bryant situation (which was in Toronto). In the Canadian (and apparently English) systems, the Crown's job is not to convict but to see that justice is done. That sometimes means withdrawing charges.
posted by maledictory at 3:44 PM on July 22, 2010

No realistic prospect of conviction, alright. When the powers that be suppress the evidence, and the investigators deliberately obstruct justice, yeah, I guess I would agree with their assessment.
posted by Xoebe at 3:47 PM on July 22, 2010

IIRC the CPS guidelines require them to bring a prosecution where there's a >60% chance of securing a conviction "beyond reasonable doubt" and where a prosecution is in the public interest. Note that 60% probability; it's there to save the public purse the expense of prosecuting marginal cases where a successful conviction is unlikely.

Based on interviews Keir Starmer has given prior to this case I suspect he's probably gutted over it.

I wonder what the chances are of successfully prosecuting Dr Patel for conspiracy to pervert the course of justice, if the GMC nail him for gross professional misconduct?
posted by cstross at 4:20 PM on July 22, 2010

.


Shame on you, CPS.
posted by elsietheeel at 4:43 PM on July 22, 2010

Note that 60% probability; it's there to save the public purse the expense of prosecuting marginal cases where a successful conviction is unlikely.

And >60% of the autopsy reports said internal bleeding. Funny how that doesn't count.
posted by knapah at 4:56 PM on July 22, 2010

just imagine the tables had been turned and some protester (or, for maximum accuracy, random passer-by) had pushed a policeman to the ground and he'd died shortly afterwards

Or imagine if a group of people had seen Tomlinson getting pushed to the ground, and decided to jump the attacking officers, tear off their coward-masks and beat them to death.

Imagine if that had happened.
posted by Civil_Disobedient at 5:05 PM on July 22, 2010

Imagine if that had happened.

Well, first they'd have been beaten up and arrested and the cover-up would have been all the more effective. "Protesters" would have been blamed for everything. It's called playing into their hands.
posted by howfar at 5:21 PM on July 22, 2010

To all those who confused London and Toronto G20 meetings - It's OK, we'll see you here next year.

We've got complaints against police and calls for inquiry to be dismissed, too!
posted by anthill at 5:25 PM on July 22, 2010

Don't think this has been added yet. The second pathologist to examine Mr Tomlinson's body believes that the CPS are in error over the issue of an assault charge. He claims that the observations recorded in his report were consistent with actual bodily harm.

"Advice to charge police officer over Ian Tomlinson death ignored"
posted by howfar at 5:38 PM on July 22, 2010

Does anyone, anywhere, ever tell the truth anymore?
posted by wv kay in ga at 5:42 PM on July 22, 2010

first they'd have been beaten up and arrested

Ah, but not if they were dressed like police themselves! Then because of their coward-masks, you wouldn't be able to tell the protesters from the real police in the videos.

You just gotta imagine better.
posted by Civil_Disobedient at 6:09 PM on July 22, 2010

I was mere feet from a situation at a US national party convention in a presidential election year where an undercover police officer on an unmarked motor scooter drove into a completely peaceful crowd of protesters who were pretty much just milling around, much like this gent who died. He (the cop) got his ass kicked quite a treat for his trouble, and the press the next day was all about how protesters assaulted a police officer - no mention of his utterly unmarked status, that he drove a potentially deadly vehicle (a scooter, sure, but it weighs +/- 2 or 3 hundred pounds, and was driven into people who were sitting in the (barricaded, approved protest zone) street or just standing around), or how protesters were at that time routinely threatened with death by just regular people on the side of the road....

I've personally seen far too many incidents of police brutality provoked by nothing more than disagreement with the established order, and I've said it before...the fucking police are totally out of control in this city country planet.
posted by nevercalm at 6:54 PM on July 22, 2010

Find the cops name. Print posters all over his town, "[cop's name] killed x, out of hate, and still has his job." Keep putting them up, so he can't go anywhere without seeing them. Then maybe he'll think twice.
posted by uni verse at 7:34 PM on July 22, 2010

The officer who attacked Ian Tomlinson had already been investigated twice for incidents of over-the-top aggression. One is described as an incident of "road rage".
posted by stammer at 7:40 PM on July 22, 2010

As a friend put it elsewhere, no jury wouldn't convict, yet the CPS give us this.
posted by Abiezer at 8:23 PM on July 22, 2010 [1 favorite]

"Kurt Loder asked me what I say to a dead cop's wife. Cops kill my people everyday, that's life."

RIP
.
posted by schyler523 at 10:11 PM on July 22, 2010

motto, Fair, Fearless and Effective

Pick any two.
posted by DreamerFi at 10:59 PM on July 22, 2010

So then, this stuff happens in places other than the USA? I was beginning to think we had a monopoly on this sort of thing.

So, justice is officially dead everywhere, I guess. Did it ever really exist, or was it another one of those many things that people lied to me about when I was a kid?
posted by InsertNiftyNameHere at 12:20 AM on July 23, 2010

Worth emphasising what the FPP says about the fact there was not just a second but third pathologist:

Dr Nat Cary carried out the second postmortem on Tomlinson at the request of his family and the Independent Police Complaints Commission. Making his views public for first time, Cary said the shove by the officer caused Tomlinson to fall to the ground, and the impact led to internal bleeding that killed him within minutes. A third pathologist, Kenneth Shorrock, commissioned by the Metropolitan police, agreed with Cary's view that the cause of death was an abdominal haemorrhage.

Cary has been described as Britain's top pathologist and has worked on some of the most difficult and high-profile cases at home and abroad.

And regarding the first pathologist:

Two days after the death, in what would become a crucial decision, the City of London coroner, Paul Matthews, requested that forensic pathologist Freddy Patel conduct a postmortem. Patel had once been reprimanded by the General Medical Council over his conduct, and is not thought to have had a police contract at the time of the Tomlinson case. The Met had written to the Home Office four years earlier raising concerns about Patel's work in a number of cases.

Leading forensic pathologists say privately that they were astounded to learn such a controversial postmortem would be entrusted to an expert who was no longer thought to be actively dealing with suspicious cases. Patel has since been barred from the Home Office register of accredited forensic pathologists and from carrying out postmortems in "suspicious death" cases. Matthews has declined to say why he chose Patel. One theory was that the coroner was recommended Patel's services by City of London police. The force has declined to comment.

posted by ninebelow at 2:19 AM on July 23, 2010

On BBC's Question Time last night (iPlayer link, around 55min in) Bob Crow claimed that 1000 people have died in the last 50 years in police custody in the UK, without a single resultant charge. The statistics on campaign site Inquest show that there have in fact been some coroner's findings of unlawful death, and some charges brought, in the last 10 years, although no convictions have resulted.
Coupled with the fact that, AFAICR, none of the major acknowledgements of miscarriages of justice in the UK has been accompanied by a successful prosecution of officers involved in fabrication of evidence, this presents the appearance of the police operating outside the law. This is not a healthy state of affairs for either the police or the populace and it's most definitely something that needs to be addressed in an open manner.
posted by Jakey at 4:16 AM on July 23, 2010 [1 favorite]

it took 30 years for them to fess up over Blair Peach. My sympathies go out to Mr Tomlinsons family.

. for Mr Tomlinson

. for our rights

. for justice
posted by marienbad at 5:10 AM on July 23, 2010

it took 30 years for them to fess up over Blair Peach. My sympathies go out to Mr Tomlinsons family.

And they still haven't accepted responsibility for the death of Kevin Gately in 1974.
posted by knapah at 6:15 AM on July 23, 2010

For those who didn't read it, stammer's link above contains the following quote.

The CPS lawyer who made the decision was the same one who decided no officer should face charges for the shooting dead of Jean Charles de Menezes by police who mistook him for a terrorist. That shooting happened five years ago yesterday.
posted by knapah at 7:18 AM on July 23, 2010 [1 favorite]