The blog of an English law student.

NOTE: The size of this post, combined with the fact that this has taken considerably longer to research and write than I had anticipated, means it is being published in first draft form. I will be updating and editing it later.

The Ian Tomlinson case is a tragic one. A family lost a relative, and confidence in the police has been severely shaken. A man responsible for protecting the public appears to have become the very thing he was meant to protect them from. The anger at the CPS’s decision not to bring any criminal charges against PC Harwood is entirely understandable. Indeed, it was my initial reaction when I read the reports. After reading the decisions, contemporary reports and consulting with medical professionals over the evidence however, I am not sure that they had any alternative, with the possible exception of the misconduct charge. This looks like one of those deeply unfortunate cases of either tragic coincidence, or the fact that sometimes the guilty have to walk free to protect the innocent. Ironically the very system designed to protect the public from unscrupulous police may well end up protecting an unscrupulous policeman.

This irony is not one that I think we could change. If PC Harwood indeed acted as we think he did, then I would suggest that it is, overall, better for the public that we have a criminal legal system that requires evidence of the highest standard before convicting people. Police misconduct cannot be cured by weakening the legal rights of defendants; it would have entirely the opposite effect.

Before we continue though, it is worth reminding everyone that we haven’t actually heard PC Harwood’s side of the story. There may, on the face of it, be nothing that justifies what he did. But until we hear from him, we cannot be sure of that. We should remember that these are at present no more than allegations. Indeed I think this is something understood by most, given that the question is generally whether he should have been tried, rather than whether he is guilty. He is entitled to the presumption of innocence.

Furthermore, it is to misunderstand the role of the CPS to say that, in the face of a weak case, that it should nonetheless be put to a jury. When charging, the CPS have to consider a two-stage test: whether there is sufficient evidence, and whether a trial is in the public interest. The second question only arises if the first is answered affirmatively. It cannot be the other way round: if it were you would have a politically-motivated trial with a foregone conclusion that would waste public money and put more strain on courts that are already heaving.

I also do not think that this is a cover-up or an example of CPS corruption. This case is an absolute PR disaster for the police and CPS. If they were as unscrupulous as some claim they are, I doubt they would have much compunction about throwing PC Harwood to the wolves as a fall guy. They would have been able to draw the heat off them entirely, and nobody would be any the wiser.

Moving on to the substantive issues, there are four charges the CPS could have made against PC Harwood, and I will deal with them in turn. They are:

1. Common Assault;
2. Manslaughter;
3. Assault Occasioning Actual Bodily Harm (ABH);
4. Misconduct in Public Office

It has been said that a discussion of which charge applies is nothing more than a game of legal semantics in the face of an injustice. This is not a fair argument. Crimes need to be specifically defined so that people can defend themselves against the accusation. Anything else is entirely arbitrary and unjust. People would be in perpetual fear of breaking the law because there would be no clear boundaries.

Common Assault

Although the CPS say that this offence could have been proved before a jury, it is time-barred by a strict six-month limit. As the CPS’s investigation dragged on, it became impossible to complete within the six months, and thus no charge could be brought.

This raises two questions. First, why did the CPS take so long? While one can only speculate regarding the delay, I would suggest that it is because the medical evidence is more complex than it may first appear. I expected to publish this post days ago, but it took me considerably longer than expected because of the need to sift through the evidence and consult with medical practitioners. It took me days just to get a broad overview of evidence that already existed. The CPS had to go and get the evidence from three pathologists, consult other medical experts, gather evidence from other witnesses and consult with other experts in an attempt to reconcile the conflicting evidence (more on that later). This is going to be a time-consuming process and I doubt that it would even have been achievable within six months from the initial alleged assault.

The second question is why the CPS did not just charge PC Harwood with assault while they continued their investigations. The simple answer is that to do so would be an abuse of process. According to R v Brentford Justices ex p Wong [1981] 2 WLR 203, it is an abuse of process to charge simply to avoid the statutory time limit. If a charge of common assault were brought, it would have to be tried. If it were to be tried, then no other charges would be brought, under the rule against double jeopardy (Connelly v DPP (1964) AC 1254). The practical result of this is that had the CPS charged PC Harwood with assault, that would have been the only charge they could have brought; manslaughter and ABH would have to be abandoned as cases. That would have been just as unsatisfactory as the present situation: the CPS would have failed to fully investigate a possible police killing, and the alleged killer would have got a “slap on the wrist” verdict at most. Charging with common assault only looks sensible with the benefit of hindsight.

Manslaughter

The principal charge that was expected to be brought was manslaughter. This is a wide offence that can be committed in several ways. Here the suggested charge was “unlawful act manslaughter”. This is where the defendant commits a dangerous crime that results in the death of the victim. It is distinct from murder in that although the defendant may foresee some harm, he does not intend that his victim die or suffer grievous bodily harm.

The point of contention in this case is what lawyers term “causation”. For a charge to succeed, the jury must be absolutely sure that the unlawful act caused the death of the victim. The CPS claim that this was not possible on the medical evidence. In particular, there was an ‘irreconcilable’ disagreement between the pathologist who conducted the first autopsy, Dr. Freddy Patel, and the subsequent two pathologists, Dr. Nat Cary and Dr. Kenneth Shorrock. Dr. Patel concluded that Ian Tomlinson died of natural causes, while the later two pathologists concluded that he died as a result of an internal haemorrhage caused by PC Harwood’s shove.

The misconduct angle has been overplayed. It risks playing the man rather than the ball. Evidence of incompetence is not enough to discredit findings that are medically plausible. If it were, then we would have to disregard the evidence of Dr. Shorrock, confirming Dr. Cary’s findings, given that he was found guilty of professional misconduct by the GMC three years ago (see HERE and HERE). It is not enough to show that a pathologist is incompetent or guilty of misconduct in other cases; he must be shown to be absolutely wrong in this case.

It is also wrong to suggest that Dr. Patel was selected as part of a cover up. He was selected before it was realised that Ian Tomlinson had been struck by a policeman.

The particular dispute revolves around three litres of fluid found in Ian Tomlinson’s abdomen. Dr. Patel’s notes initially described it as ‘fluid blood’, which he later revised to read ‘fluid with blood’. He claims that the fluid was not blood, but ascites, a fluid that gathers in the abdomen as a result of liver failure. Given the grammar of this phrase, it is entirely possible that this was a typo. Dr. Carey and Dr. Shorrock however conducted their autopsies in the belief that the fluid was blood, and concluded that Ian Tomlinson died of a haemorrhage. Only Dr. Patel actually examined the fluid.

The difficulty with dismissing Dr. Patel’s evidence is that, in the absence of other pathologists examining the fluid, his conclusions remain plausible. First, it is difficult to confuse blood and ascites. According to a medical source:

Ascites is straw-coloured when drained, with a lower viscosity than blood. It doesn’t tend to mix well with blood if I remember my surgical training and experience. I would expect someone who has handled blood his whole professional career to know the difference.

Second, the ascites theory is plausible based on the other evidence available. It is common ground between the pathologists that Ian Tomlinson had severe cirrhosis of the liver. This is essential to all their theories. Ascites is a common complication of this condition. Furthermore, in severe cases of cirrhosis, it can also be present with Hepatic Encephalopathy. The symptoms of this condition include:

• disorientation;
• confusion;
• lethargy;
• reduced awareness

Compare those symptoms to the description of events given by the CPS:

One witness described Mr Tomlinson as looking ‘disoriented’ as he was in Royal Exchange. As the police line approached him, he had his hands in his pockets and walked slowly in front of the officers. A police dog handler put his hand out to move Mr Tomlinson away and a police dog bit him on the side of his leg. Mr Tomlinson did not appear to react to this dog bite, but continued slowly moving at an angle across the police line.

This would provide at least some explanation for why Ian Tomlinson was walking so slowly in front of the police at the time he was hit. It is entirely possible that this was not hepatic encephalopathy, but that is not what a trial is interested in. Rather it is an examination of the alternatives to the prosecution’s case, and a determination of whether any such alternatives are plausible. It appears reasonable to suggest that at the time he was hit, Mr. Tomlinson was not a well man. Of course, if PC Harwood’s hit exacerbated any such condition thereby causing death, that would not be a defence (this is called the think skull rule). However, it does suggest that the finding of a large amount of ascites in Mr. Tomlinson’s abdomen was entirely possible, and thus casts a reasonable doubt upon the case.

Notwithstanding the above, the Haemorrhage theory also has problems of its own. This theory suggests that Mr. Tomlinson lost around 3 litres of blood, and this blood loss caused him to collapse in the space of six minutes. That would require, according to my anonymous source, as well as the medical experts, very obvious injuries. Yet none of the pathologists found one. Would a reasonable jury then be sure that PC Harwood’s shove was the cause of death?

It has been suggested that the CPS could have prosecuted without the evidence of Dr. Patel. This is not possible. He was the only pathologist to have dealt with Mr. Tomlinson’s intact body, and the CPS concluded that they would have to have called him as their own witness. If they did so, they would not be able to cross-examine him, and even if they did, it probably wouldn’t sufficiently discredit his findings, for the reasons given above. The defence, for obvious reasons, wouldn’t cross-examine him. Furthermore, if the prosecution were to suggest that the allegations of misconduct against Dr. Patel made his evidence inadmissible, then it follows that Dr. Cary’s evidence would also be unreliable, as it was confirmed by a pathologist who the GMC have actually found guilty of professional misconduct in the past. The result is a nightmare back-and-forth of conflicting theories and imperfect autopsies conducted by imperfect human beings.

ABH

The third charge considered was that of assault occasioning actual bodily harm under section 47 of the Offences Against the Person Act 1861.

The level of harm is the matter in dispute here. According to the CPS, the only harm that could be proved to be the result of PC Harwood’s shove was ‘minor bruising’. Actual bodily harm is defined as ‘any hurt or injury calculated to interfere with the health or comfort of the’ victim that is ‘more than merely transient and trifling’ (R v Donovan [1934] 2 KB 498). It has been suggested in Blackstone’s Criminal Practice 2010 that ‘minor cuts and bruises may satisfy this test’ (B2.27). On that reading, it is possible to suggest that Ian Tomlinson’s injuries did constitute Actual Bodily Harm.

This is, however, at odds with the charging standard used by the CPS, which lists the following as the minimum injuries required for an ABH charge:

• loss or breaking of tooth or teeth;
• temporary loss of sensory functions, which may include loss of consciousness. (T v Director of Public Prosecutions, [2003] 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).

Although one could argue that the charging standard should be relaxed in this case, there is a wider factor that needs to be considered. Following the case of R v Brown, any injury constituting ABH or above cannot be consented to as a matter of law unless they constitute a specific exemption such as surgery or properly-conducted games. Although Brown is a controversial decision (and not for reading by the squeamish), it remains the law and was “approved” by the European Court of Human Rights. If minor bruising is ABH, then it would effectively remove the non-specific defence of consent from all but the most technical of batteries. It would mean that if you grabbed the arm of someone who bruised easily, you would be guilty of an offence with a maximum sentence of five years’ imprisonment and a rather unpleasant criminal record.

The upshot of this is that there would have to either be a reversal of the decision in Brown, or an expansion in the exceptions to the general rule against consent. That would be a legal minefield, leading to uncertainty and controversy, given that it is about the limits of what consenting adults may do. Charging with ABH would have a significant knock-on effect that could take a good deal of time to sort out.

Misconduct in Public Office

This is a common law offence committed when a public office-holder (which a policeman is ‘wilfully misconducts himself to such a degree as to amount to an abuse of the public’s trust in the office holder, without reasonable excuse or justification’ (Archbold, 2010, at 25-381). Jack of Kent has covered this in some detail. For the offence to be made out, the defendant must be subjectively aware that the likely consequences of his actions would be sufficiently serious to amount to an abuse of public trust. An error of judgment is also not misconduct in a public office. It has to be a deliberate act that you know, or are aware, is an abuse of trust in the office.

What has to be borne in mind here is that PC Harwood had no idea that his actions would (possibly) lead to someone’s death, nor that he would be recorded. Had this been a case of a policeman simply pushing someone over, absent any recording, the likelihood is that this incident would have barely registered on the media radar or caused the furore it has. It would have fallen into the background compared to the stories of kettling, police overreactions and criminal damage. Public confidence in the police would not have been shaken to the extent it has. It may also be that PC Harwood’s action was a colossal error of judgment rather than a deliberate abuse of his position. He may also have been acting according to orders. Neither is, however, enough to constitute misconduct in public office.

Problematically, however, we don’t have the full facts on this and it is hard to really conclude on this point. The CPS may have evidence that PC Harwood had a defence here. They may be withholding it because he is to face an inquiry for misconduct. This can only be speculation. The CPS’s argument appears unsatisfactory, and I agree partially with Jack of Kent’s analysis of this point on the information given to us at present. At the very least, we should have been given more information on this point.

Conclusions

This is one of those very hard cases where conflicting evidence makes a charge very difficult to sustain against the standard of proof required by the criminal justice system. It is in truth not uncommon, and the only real difference here is the very public setting in which the alleged offence occurred.

The CPS have however not done themselves any favours. It took me over a week to sift through and corroborate the findings in their press release, and as you can see above it leaves some questions unanswered. On a matter with a public interest as high as this, I should not have to be running to practitioners’ textbooks and medical professionals to try and understand the meaning of the statement. The counter-intuitive nature of the decision means it should be communicated as clearly as possible to the public, in a way that is easy to understand. The CPS know there is a need for this, given that they translate much of their website into basic english. Their website is intended to be visited and understood by members of the public. I should not have to be doing, what is in effect, their job for them.

The decision is, of course, immensely frustrating and upsetting for the Tomlinson family, who in many ways are no closer to the truth of what happened to their lost one. But a criminal trial is not always the venue for truth: it is about determining guilt and punishment according to a standard designed to be strict enough that innocent people are not wrongly punished. The inquest, IPCC hearing and a potential civil trial, all working (in general) on the balance of probabilities, will hopefully provide us with more answers than we currently have.

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